1\ Library of Wm.H.Schroeder Date "-nim^Y ^.^"^^ Remarks . . ^L^vS UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY A TREATISE LAW OF BAILMENTS, INCLUDING CAEEIERS, INNKEEPERS AND PLEDGE. BY JAMES SCHOULER, LL.D., PROFESSOR IN THE BOSTON UNIVERSITY LAW SCHOOL, AND AUTHOR OF TREATISES ON THE " LAW OF THE DOMESTIC RELATIONS, "wills," "personal PROPERTY," AND "EXECUTORS." THIRD EDITION. BOSTON: LITTLE, BROWN, AND COMPANY. 1897. Copyright, 1880, By James Schouler. Copyright, 1887, By James Schouler. Copjjright, 1897, By James Schouler. Typography by J. S. Gushing & Co., Norwood, Mass. NOTE TO THIRD EDITION. In preparing this edition the author has made due reference to the latest decisions, English and American, and has per- sonally revised this whole volume, with competent assistance in the more mechanical details. A chapter under the law of Carriers has been added upon the new topic of the Inter- State Commerce Act of Congress ; which, with other matter, actually increases the book about one-tenth beyond the pre- ceding edition ; but by the adoption of a laj-ger-sized page, the printers have made the actual bulk appear somewhat less than before. J. S. August 3, 1897. 735S74 PREFACE. A TEXT-BOOK on Bailments may be thought a fitting sup- plement to my work on Personal Property. When the second volume of that work appeared I was urged to prepare such a text-book by some whose judgment appeared worthy of great confidence ; and earliest among these was my honored friend, John William Wallace, Esq., of Philadelphia, who inherits, with scholarly tastes of a high order, a peculiar aptitude for studies in this department of jurisprudence, and from whose critical suggestions I have especially profited. But, thinking the profession well enough satisfied witli the earlier Avorks of Angell and Mr. Justice Story, I passed the subject from my thoughts ; and this volume would not have been written had not the publishers of those works and my own informed me, many months later, that they intended issuing a new text-book on Bailments which should give par- ticular prominence to the modern law of Carriers, and that I had the first opportunity of becoming its author. Upon this unexpected invitation I undertook in good faith a task whose results, after the lapse of two years, are now before the reader. Without forcing comparisons, I may be permitted to re- mind my professional brethren that, while tlie primitive writer has the advantage of legal princi})les in tlieir sim- plicity, one w^ho presents the law in its mature state draws from far more copious sources, and may picture our juris- prudence more faithfully and as men of the day wish to see it, confused as many of its features may appear. Vi PREFACE. The aim of this treatise is to supply both students and practitioners with a fresh and exhaustive exposition of legal principles, whose influence far transcends the limits placed by our jurists fifty years ago ; and, by treating the whole subject from a modern standpoint, and newly classified, to make it better understood, and give each special branch its due consideration. Nor have important doctrines been dis- cussed without the effort to present something like an his- torical sketch of their development in England and America. One may be a useful torch-bearer if he does no more than light up new paths ; and, so far as I am aware, there is no writer now living who has already laid before the public, or promised, a full treatise upon Bailments or any one of its subordinate topics. JAMES SCHOULER. Boston, Jan. 1, 1880. TABLE OF CONTENTS. PART I. BAILMENTS IX GENERAL. Page § 1. Nature of Bailment ; its Special oi* Temporary Character . . 1 § 2. Bailment defined 2 § 3. Who may be Bailors and Bailees ; Constructive Bailees, etc. . 4 § 4. The Same Subject ; Public Officers, etc 6 § 5. The Same Subject; Creditor by way of Pledge 6 § 6. But Delivery back or over is intended; Mutuum no Bailment 6 § 7. Bailment and Sale further distinguished 8 § 8. The Same Subject; Grain Elevators 9 § 9. Bailment relates to Personal Property ; whether a Branch of Contract Law 10 § 10. History of Bailment Jurisprudence ; Coggs v. Bernard, etc. . 11 §11. The Same Subject; Sir "William Jones ; Judge Story ... 12 §12. The Same Subject ; Final Comments 13 § 13. Bailment Classification as formerly made 14 § 14. Bailment Classification preferable according to Recompense . 15 §15. Standard of Care and Diligence, etc., in Bailments .... 17 §10. The Same Subject ; Other Tests attempted 19 § 17. Honesty and Good Faith required of Bailees; Criminal Accountability 22 § 18. Tortious Possessor liable absolutely 23 § 19. Agents or Servants in a Bailment 24 § 20. Effect of Special Contract 24 §21. Other Cardinal IMaxims stated; Bailment and Contract for Bailment; Compound Bailments 26 § 22. The Same Subject; whether Bailor is Owner; Title of Bailee . 26 § 23. Burden of Proof in Suits against the Bailee 27 vii Viil TABLE OF CONTENTS. PART II. BAILMENTS FOR THE BAILOR'S SOLE BENEFIT; OR, WITHOUT BENEFIT TO THE BAILEE. GRATUITOUS SERVICE ABOUT A CHATTEL. Page § 21. Classification of this Chapter 32 § 25. INIatters Preliminary ; Nature of Undertaking 32 § 26. Division of Depositum and Mandatum inapt 33 § 27. Fundamental Rules applied where Bailment is founded in Contract 35 §28. Bailments not strictly ujjon Contract; Finding; Attaching; Stakeholding, etc 36 § 29. Test of Recompense or No Recompense 38 § 30. Servants or Agents in Such Bailments ; Bank Officers, etc. . 39 §31. Subject-matter of Bailment ; Personal Property 42 § 32. Delivery or Holding Possession an Essential 43 § 33. The Same Subject ; Privity between the Parties 44 § 34. Whether Mere Contract for Bailment is Actionable .... 44 § 35. Accomplishment of Bailment Pur2:>ose ; Standard of Care and Diligence 46 § 36. The Same Subject; Same Diligence as to One's Own con- sidered 48 § 37. The Same Subject ; Circumstances, etc., should be considered 50 §38. The Same Subject ; whether Skilful Performance is required. 51 § 39. Honesty and Good Faith reijuisite 51 § 40. Liability of Bailee illustrated 52 § 41. Non-Liability of Bailee illustrated 53 §§ 42-44. Illustrations of Special Deposit in Banks 55, 57 § 45. Other Illustrations ; Finding, Attaching, Constructive Cus- tody, etc 59 § 46. Liability as concerns Skilled Performance 59 § 47. Inevitable accident, etc., excuses 60 § 48. Liability for Contents of Closed Receptacle 61 § 49. General Conclusion as to Bailee's Liability 61 § 50. Practice in Such Suits 62 § 51. Special Contract may modify ; Public Policy, etc 63 § 52. Other Mutual Duties and Rights ; whether to use or mis- appropriate 65 § 53. Right to incur Expense, make Sub-contracts, etc 66 § 54. Rights and Duties as to Third Persons ; Special Property, Suits, etc 67 TABLE OF CONTENTS. IX Papo §§55,56. Termination of the Bailment; how brought about . . 09,70 § 57. Redelivery or Delivery over ; in what Condition 71 §58. Redelivery or Delivery over; to whom; Stakeholder, etc.; Misdelivery 72 § 59. The Same Subject ; Bailor's Agent, Successor, etc 73 § 60. Delivery over where Adverse Claims of Title are made ... 73 § 01. Effect of Death upon the Bailment 75 § 02. Where the Bailment is Joint or Common 76 § 63. Place of Delivery back or over 77 § 64. Duty of rendering an Account 77 PAET TIL BAILMENTS FOR THE BAILEE'S SOLE BENEFIT. GRATUITOUS LOAN FOR USE. § 65. Introductory ; Loan for Use defined 79 § 66. The Same Subject; Commodatum and Mutuum . . . . . 79 § 67. Heads of the Present Chapter stated 80 § 08. Matters Preliminary ; Mutuality, etc 81 § 69. Subject-matter of Loan ; Things Non-consumable, etc. ... 81 § 70. Period of Loan; Definite or Indefinite 82 § 71. Bailment and Contract for Bailment compared 82 § 72. Accomplishment of Bailment Purpose ; Great Diligence required 83 § 73. Good Faith requisite; no Misuse, Sale, Pledge, Deviation, etc. 83 § 74. What is Excusable Loss or Injury 84 § 75. More Diligence than to One's Own no Test 86 § 76. Loss or Injury occasioned by Third Persons 88 § 77. Bailment affected by Special Contract 88 § 78. Borrower's Right to Use ; Incidental Expenses, etc 89 § 79. Lender's corresponding Duties 90 § 80. Rights of Action against Third Parties 90 § 81. Bailment, how and when terminated 91 § 82. Borrower's Duty to deliver back or over 92 § 83. Whether Borrower may detain for Expenses 93 § 84. Intervention of Lender does not release Borrower from LiabUity 94 X TABLE OF CONTENTS. PART lY. » ORDINARY BAILMENTS FOR MUTUAL BENEFIT. CHAPTER I. BAILMENTS FOR HIRE IN GENERAL. Page § 85. Bailments Gratuitous and for Hire compared 95 §86. Hiring and Letting; the Roman Locatio-Conductio . ... 96 § 87. Classification of Ordinary Bailments for Hire 97 § 88. Essentials of Bailment Contract for Hire 98 § 89. Essential of Chattel as Subject-matter 98 § 90. Essential of Recompense 98 § 91. . Essential of Mutual Assent to a Specific Accomplishment . 99 § 92. The Same Subject; Competent Parties; a Lawful Purpose . 100 § 93. Contract for Hire compared with Contract of Sale . . . 101 § 94. Contract for Hire distinguished from Bailment 101 CHAPTER II. HIRED SERVICES ABOUT A CHATTEL. § 95. Classification of the Present Chapter 103 § 96. Matters Preliminary ; Vocations for Hire 103 § 97. Vocation is of Secondary Consequence lOi § 98. Whether Bailment is for Hire or Gratuitous; Change from One Class to the Other 104 § 99. Doctrine of Accession; Repairs by Workman, etc. . . . 105 § 100. Delivery and Acceptance considered 106 §101.- Accomplishment of the Bailment Purpose; Standard of Care and Diligence 106 § 102. Elements which qualify One's Liability in Such Cases . . 109 § 103. Ordinary Care and Diligence illustrated 110 §§ 104, 105. Element of Skill considered ; Hired Work upon a Thing 112, 113 § 106. Special Contract Terms and Usage should be considered . 114 § 107. Honesty and Good Faith requisite 115 § 108. Rule of Agency applied 116 § 109. Liability of Bailee to Third Persons 117 § 110. Right of Hired Bailee to Undisturbed Possession .... 117 §§111-113. Right of Compensation considered . . . .117,120,121 TABLE OF CONTENTS. xi Taco § 11-1. IIow Expenses shall be liorne li'l § 115. Hired Bailee may sue Third Parties for Dispossession, Injury, etc 122 § 116. Whether Hired Bailee should insure 123 §117. Termination of Bailment; Redelivery or Delivery over . . 124 §118. Delivery to Paramount Owner ; Adverse Claim.s, etc. . . 126 § 119. Delivery over, on a Change of Owners 127 § 120. Remedy against Bailee who is remiss in Delivering . . . 128 §121. Successive Bailment Duties considered 129 § 122. Right of Lien to secure Recompense 129 §123. IIow Lien is lost or secured 132 § 121. Right to sue for Recompense, apart from Lieu 133 §125. Bailee how put in Default ; Demand, Tender, etc 133 §126. Means of enforcing Lien 13-1 § 127. Priority among Liens, etc 135 § 128. General Right of Recompense 136 CHAPTER III. HIRED USE OF A CHATTEL. § 129. Classification of the Present Chapter 137 §130. Matters Preliminary; Nature of Hired Use; Gratuitous Loan compared 137 § 131. Right to Use, how understood and limited 138 § 132. Contract for Bailment and Bailment compared .... 139 §133. Accomplishment of Bailment Purpose ; Hirer's Duties . . 140 §134. Measure of Care and Diligence ; "Ordinary" 140 § 135. The Same Subject ; Instances where the Hirer is excused, etc 140 § 136. Law of Other Countries compared 141 § 137. Rule illustrated ; Instance of Hired Horse 141 §138. Elements affecting such Issues ; Nature of Thing; Charac- ter of Hirer, etc 143 §§139-141. Where the Hirer transcends the Bailment . 143,145,147 § 142. Hirer's Misappropriation of the Thing 148 § 143. Illegal Use; Disregard of Sunday Laws, etc 149 §144. Remedies for Loss or Damage ; Proof, etc 150 §§ 145, 146. Bailee's Responsibility for his Sub-Users, etc. . . 151, 152 §147. The Same Subject ; Driving by a Hirer's Servant . . . 154 §148. Liability of Joint Hirers, etc 156 § 140. Hirer's Liability as to Tiiird Persons 156 § 150. Hirer's Rights against his Letter; Right to use, etc. . . . 156 xii TABLE OF CONTENTS. Page § 151. Whether the Letter warrants the Enjoyment, etc. . . . 157 § 152. How Expenses shall be borne 158 § 153. Letter responsible for Letting injuriously 159 § 154. Right of Action and Damages as against the Public . . . 160 §155. Special Contract may affect the Hire ; Insui-ance, etc. . . 161 § 156. Bailment how terminated 162 § 157. The Same Subject; how Hirer or Letter is put in Default 163 § 158. Hirer's Duty to restore and make Recompense .... 163 § 159. Duty to restore or deliver over considered 163 §§ 160, 161. Duty of Final Recompense considered .... 165, 166 CHAPTER IV. PLEDGE OR PAWN. § 162. Nature of Pledge or Pawn as a Bailment 167 § 163. Historical Development of the Transaction 167 §16-4. " Collateral Security " in this Connection 168 §165. Use of Words "Pledgor" and "Pledgee" 170 §166. Roman " Pignus " and " Hypotheca " compared .... 170 i§ 167, 168. Pledge distinguished from Chattel Mortgage . . 170, 173 § 169. Transfer apparently Absolute shown to be intended for Security 174 § 170. Classification of the Present Chapter 175 §171. The Pledge Contract, and its Essentials 176 §§ 172, 173. First Essential ; Subject-Matter of Pledge . . . 176, 178 § 174. Pledge of Thing which has ceased to exist 178 § 175. Pledge of Thing not yet in Existence 179 § 176. Natural Increase as accessory to the Pledge 181 § 177. Things whose Pledge is forbidden, etc 181 § 178. Second Essential ; Debt or Engagement 182 § 179. Third Essential; Mutual Assent as to Particular Subject- Matter, Debt, etc 184 §180. The Same Subject; Illegal Pledge Contracts 185 §§ 181, 182. The Same Subject ; where Pledgor is not Owner . 185, 188 § 183. Power of Executors, Guardians, etc., to pledge .... 189 § 184. Pledge by Factor, Broker, etc 190 § 184 a. Conclusion as to Pledge by one not the Owner .... 191 § 185. Power of Life Owner, etc., to pledge 192 § 186. Whether Corporation or Partnership may pledge .... 192 § 187. What Security the Pledge is given for 193 § 188. Delivery in Pledge ; Effect of Contract without Delivery . 194 §189. What constitutes Delivery ; Actual or Constructive . . . 194 TABLE OF CONTENTS. xiii Viigo § 190. Delivery, as to Bills of Lading, Warehouse Receipts, etc. . 195 § 191. Where Pledgee is already in Tcssession 197 § 192. Delivery by Means of Agents 197 § 193. AVhether Pledgor may hold as Pledgee's Agent .... 198 §§ 194, 19.5. Element of Notice to Another considered . . . 199,201 § 196. Other Formalities of Registry, etc 201 § 197. Indorsement, Assignment, etc., in Delivery 202 § 198. ^liscellaneous Points in Delivery 203 § 199. General Conclusions as to Delivery in Pledge 203 § 200. Bailment in Pledge pending Full Performance .... 205 §§ 201-203. Duty of Pledgee to keep Possession . . . 205, 200, 208 §§ 204, 205. Measure of Care and Diligence as Bailee . . . 209, 211 §§206-208. Rule applied where more than Custody is expected; CoUection, etc 211,213,214 §209. Pledgee's Jimploymeut of Agents ; Pledgor's Agency . . 215 § 210. Good Faith must be exercised 215 §211. Pledgee's Rights ; Right to use the Pledge considered . . 216 § 212. Pledgee should account for Profitable Use 218 §213. Antichresis; or keeping down Interest by Profits . . . 219 § 214. Right to hold Pledge and Increments for Security . . . 219 § 215. Rule as to incurring Charges, etc 219 § 216. Whether Pledgee of Stock can vote 220 § 217. Pledgee's Right to Undisturbed Possession, etc 221 § 217 a. Subordination of Pledge Lien 221 §§218,219. Right of Pledgee to assign; Effect of Sub-Pledge, etc 221,222 § 220. Pledgor's Right to assign, etc., subject to the Pledge . . . 224 § 221. Whether Goods in Pledge can be attached, etc 225 § 222. Pledgor's Bankruptcy, Insolvency, or Death 225 § 223. Pledgor's Right to sue Third Persons 226 § 224. Warranty of Title under a Pledge 226 § 225. Effect of Special Contract upon Pledge Transaction . . . 227 § 226. Effect of Bailment on Pledgor's Default, etc 228 § 227. Pledgee's Remedies on Default ; Judicial or Non-Judicial Sale 228 § 228. Requirements of the Non-Judicial Sale 229 § 229. Sale should lie on Due Notice, Demand, etc 229 §§ 230, 231. Method of Conducting the Sale 230, 231 § 232. Effect of Pledgor's Waiver of Defects ; Ratification, etc. . 232 §233. Peculiar Pledge Sales; Stocks on Margin 233 § 234. Sale of Pledged Stock 234 § 235. Enforcement of Mortgage Security 235 §§ 236-238. Enforcement of Negotiable Securities by Collection, etc 236, 238, 239 xiv TABLE OF CONTENTS. Page § 239. Enforcement of Debts, Claims, Insurance Policy, etc., as Security 240 § 210. Every Security to be enforced according to its Nature and the Mutual Intent 240 § 241. Rules of Priority; Application of Proceeds, etc 241 § 242. Various Securities; how applied 242 § 243. Right of Third Party who discharges to the Securities . . 243 §§ 244, 245. Pledgee not bound to sell on Default .... 244, 245 §§ 246, 247. Pledgee may sue the Pledgor on Default . . . 246, 247 § 248. Remedies on Default regulated by Statute or Special Con- tract 248 § 249. Oppressive Stipulations violate Public Policy 249 §§ 250, 251. Pledgor's Right of Redemption 250, 252 § 252. Pledgor's General Right to Pledge on Fulfilment of Secured Undertaking 253 § 253. The Same Subject; Tender of what was due, etc 253 § 253 a. Obligations of Pledgor and Pledgee Concurrent and Re- ciprocal 255 §§ 254, 255. The Same Subject ; Suit for Repossession . . 255, 256 § 256. What the Pledge protects ; Expenses, etc 257 § 257. Rule as to Future Advances, etc 257 § 258. Equitable Remedies on a Pledgor's Behalf 258 §§259-262. What is to be restored; Mutual Adjustment when Bailment ends 2.59, 260, 261 § 263. Extinguishment of Pledge ; Satisfaction, Renewal, etc. . . 261 § 264. General Conclusion as to Pledge ; Equity Principles . . . 262 PAKT Y. EXCEPTIONAL BAILMENTS FOR MUTUAL BENEFIT. POSTMASTERS AND INNKEEPERS. CHAPTER I. POSTMASTERS. § 265. Exceptional Bailments in General ; the Public Vocation for a Recompense 264 § 266. Postmasters, Innkeepers, and Common Carriers to be con- sidered in Order 265 TABLE OF CONTENTS. XV Pago § '2G6 a. Elements of a Public Vocation exercised by I'rivate Per- sons 2G5 § 207. Postmasters ; Nature and Origin of Mail Transportation . 2G0 § 2G8. History of Mail Transportation 2G7 § 2G9. Theoretical Bailment Kespousibility of Government . . . 269 § 270. Postmasters, ^lail Contractors, etc., as Public Servants . . 270 §271. The Same Subject ; how far liable 271 §272. Local Letter-Carriers; wliat is " Mail" 27^5 § 272 n. Telegraph and Telephone Business 273 CHAPTER II. INNKEEPERS. § 273. The Innkeeper as a Bailee 276 § 274. Nature and Origin of this Exceptional Liability .... 276 § 275. Preliminary Points to be considered 279 § 27G. "Who are Innkeepers; Circumstances considered .... 279 § 277. The Same Subject ; Tavern, Hotel, Restaurant, etc. ... 281 § 278. The Same Subject ; Apartment-houses, Boarding-houses, etc. 283 § 279. The Same Subject; General Conclusion 284 § 280. Who are Guests ; Circumstances considered 285 § 281. The Same Subject; Transients, Boarders, etc., distinguished 286 §282. The Same Subject; General Conclusion 287 § 283. What Property is embraced under the Exceptional Bailment 288 § 281. The Same Subject ; Rigor mitigated by Modern Legislation 289 § 285. Limits of Relation ; Inn Precincts, etc 290 § 286. Innkeeper's Common-Law Responsibility for Personal Prop- erty of Guests; Common Carrier distinguished .... 292 § 287. The Same Subject ; Roman Law compared 292 § 288. Standard of Liability at Connnon Law ; Confusion in the Cases; Liability exceptionally Great 293 § 289. Standard of Liability at the Civil Law 294 § 290. Instances of Common-Law Liability stated ; Acts of those about the Inn 295 §291. The Same Subject ; Acts of those from without the Inn . 296 § 292. The Same Subject ; Forcible Robbery, Riots, etc 297 § 293. The Same Subject ; Loss by Accidental Fire 297 §294. The Same Subject; Cases of Clear Immunity 298 §295. The Same Subject; Liability where actually Negligent . . 299 § 296. Liability for Animals and Things inanimate compared . . 300 § 297. Liability for Chattels brought within tlie Inn Precincts, etc 301 XVi TABLE OF CONTENTS. Page § 298. When Liability as Innkeeper ends 302 §§ 299, 300. Remedies for Loss; Points of Practice 303, 304 § 301. Innkeeper's Exoneration at the Common Law 305 § 302. The Same Subject ; Custody not confided to the Innkeeper . 305 § 303. The Same Subject; Chattels not bailed in Capacity of Guest 307 §§ 304, 305. The Same Subject ; Guest's Contributory Negligence 307, 310 § 306. Exoneration by Reason of Excusable Loss 311 § 307. Innkeeper's Liability holds, though he be not licensed . . 312 § 308. Special Qualifications of Innkeeper's Responsibility . . . 312 § 309. The Same Subject ; by Special Contract 312 § 310. The Same Subject ; Reasonable Rules, etc 313 §311. The Same Subject ; Effect of Custom or Usage 314 § 312. The Same Subject ; Statute Qualifications of Liability . . 315 § 313. Innkeeper an Ordinary Bailee where Public Vocation is not exercised 317 § 314. Liability of Innkeeper as to Boarders 318 § 315. Lodging-house and Boarding-house Relation considered; English Rule 319 § 316. The Same Subject ; American Rule 320 § 317. General Duties and Rights of Innkeepers 321 §§ 318, 319. General Duties of Innkeeper to Guest, etc. . . . 322, 323 § 320. Duty as to Others on Inn Premises 324 § 321. Whether One may select his Guests, discriminate, etc. . . 324 § 322. Innkeeper should refuse Guests when Health and Safety require it 325 § 323. Innkeeper's Liability for Assault upon Guest; Other In- juries, etc 325 § 324. Other Duties of Innkeeper ; Charges, License, etc. . . . 326 §325. Rights of Innkeeper ; Rules, etc 326 §§ 326-328. Right of Recompense ; Lien, etc 327, 329, 330 § 329. Whether Boarding-house Keepers have Lien, etc 330 TABLE OF CONTENTS. XVll PART VI. EXCEPTIOXAL BAILMENTS FOR MUTUAL BENEFIT. COMMON CARRIERS. CHAPTER I. CARRIERS IN GENERAL. Page § 330. Magnitude of the Present Topic ; Common Carriage simply a Bailment 331 § 331. Private and Public Carriers of Personal Property; Common Carrier defined 332 § 332. Carriers by Land or Water 333 § 333. English Theory of Exceptional Responsibility ; its Roman Origin 334 § 334. Carriage and Innkeeping Responsibility to be distinguished; also Roman and English Theories 335 § 33.5. Foundation of Exceptional Responsibility is Public Policy . 336 § 336. Influence of Compensation in this Connection 3.37 § 337. Private and Common Carriers for Hire distinguished . . 338 § 338. Common Carriers by Land or Water follow the Same Rule of Responsibility 340 §§ 339, 340. The Ancient and IModern Conmion Carrier compared 340, 342 § 341. Carriers of Personal Property to be considered; Carriers of Passengers distinguished 343 CHAPTER II. NATURE OF THE COMMON CARRIER RELATION. § 342. Essentials of the Common Carrier Relation stated .... 344 §§ 343, .344. Transportation must be for Reward; Presumption of Recompense, etc 344, 345 §§ 345, 346. Transportation must be in Pursuance of Vocation 346, 347 §347. The Same Subject ; Casual Occupation, etc 348 § 318. The Same Subject ; Carriage between Fixed Points ; from Town to Town, etc 349 § 349. Either a Professed Vocation or a Special Undertaking should appear 3.31 Xviii TABLE OF CONTENTS. Page §350. What Pursuits are classed with Common Carriers; Carriers by Laud 351 §351. The Same Subject ; Express and Forwarder distinguished 352 § 352. The Same Subject ; Carriers of Passengers, Baggage, and Goods 354 § 353, The Same Subject; Sleeping-Cars, Bridge and Turnpike Companies, Stockyards, etc 356 §§ 354, 355. Common Carriers by Water 356, 359 § 356. Relation attaches to the Responsible Bailee as Individual, Partnership, or Company 359 § 357. How Agents may become solely Responsible 360 § 358. The Same Subject ; Scope of an Agency which shall bind Principal 362 § 359. Test of Responsible Employment as against Ownership; Lessee, Charterer, etc 362 § 359 a. Common Carriers as to Express or Mail Matter .... 363 § 360. Rule applied to Railways ; Letting, Chartering, etc. . . 363 §361. The Same Subject; Charter Restraints; Use of Motive Power, etc 364 § 362. The Same Subject; Case where Railway yields Partial Control 366 j 363. Operation of Railways; President, Trustees, Contractors, etc 367 § 364. Partnership Responsibility in Carrier Business .... 368 § 365. Connecting Carriers ; Agency and Partnership Principles applied 368 § 366. What Kinds of Property may be carried 369 §§ 367-369. The Same Subject ; Money and Valuables . 369, 371, 372 § 370. Animals are Subjects of Common Carriage 372 § 371. Dangerous Articles, etc., as Subjects of Carriage .... 373 CHAPTEE III. WHAT CONSTITUTES BAILMENT TO THE COMMON CARRIER. § 372. Duty of Carrier to receive for Transportation ; how far qualified 374 § 373. Customer should offer for Hire 374 §§ 374-376. The Same Subject; Reasonable Hire; Discriminating Rates 375, 377, 378 §377. Carrier's Duty qualified by his Accommodations; Reason- able Delay 379 § 378. Carrier's Duty qualified by Scope of Vocation 380 § 379. Carrier may prescribe Reasonable Rules as to Receiving, etc. 381 TABLE OF CONTENTS. xix Pape §§ 380, 380a. Undue Preference, Discrimination, etc., in General; Express Facilities, etc 381, 383 § 381. Carrier's Waiver of Right to refuse, etc 384 § 382. Carrier not bound to receive from Wrongful Parties . . . 384 § 383. Carrier's Liability for Refusing to receive 384 § 384. When the Carrier's Responsibility commences 385 § 385. Delivery and Acceptance considered; Carrier's Agent, etc. 385 §380. The Same Subject ; Place and Manner of Delivery . . . 386 § 387. The Same Subject ; Acceptance ; Bill of Lading, Way-bill, Receipts, etc 388 § 388. Effect of Usage or Special Contract in determining De- livery 389 § 389. Custom of Sending to Receive Freight 390 § 390, Where Carrier is Bailee in another Preliminary Capacity . 391 §391. The Same Subject; Acceptance as Common Carrier, etc. . 392 § 392. Carrier need not forward where Destination is unknown . 393 § 393. Carrier usually loads and stows 393 § 394. Delivery and Acceptance illustrated ; Bill of Lading, Way- bill, etc 394 § 395. Further Illustration ; Carriers by Ferry 395 § 396. Further Illustration ; Delivery by Apparatus, etc. . . . 396 § 397. Duty of Consignor in making Delivery 396 § 398. Rule where Consignor deceives as to Contents of Pack- age, etc 398 § 399. Consignor should make Full Delivery 399 § 400. Theory of Mixed Responsibility where Consignor accom- panies the Goods in Transit 400 CHAPTER IV. BAILMENT RESPONSIBILITY OF THE COMMON CARRIER. §401. Perilous and Exceptional Responsibility assumed; but Duty is that of Bailee for Hire 401 § 402. Bailment Duty first considered; Loading, Propelling Force, Vehicles 401 § 403. Carrier's Duty in Transporting 403 § 404. Carrier's Duty in Case of Disaster or Delay 404 § 404 a. Premature Shipment as well as Delay renders Carrier Liable 406 § 405. Legal Liability distinguished from Duty ; how far Carrier is answerable as an Insurer 406 §§ 406, 407. Reason for this Severe Rule of Public Policy . 408, 409 XX TABLE OF CONTENTS. Page § 408. Modern Rule affected by Legislation, Special Contract, etc. 411 § 409. Influence of Modern Insurance as a Special Pursuit . . . 411 §410. First Exception ; Loss or Injury by Act of God .... 412 §411. The Same Subject ; Loss by Fire or Explosion .... 413 § 412. The Same Subject; Effect of a Sudden Strike or Impress- ment 415 § 413. The Same Subject ; Hidden Obstructions, etc., through Natural or Human Agency 415 § 414. The Same Subject; Accidents in Transportation, Colli- sion, etc 417 § 415. The Same Subject ; Destruction by Animate Nature ; Rats, etc 417 § 416. The Same Subject; Natural Decay, Waste, Wear and Tear, etc 418 § 417. The Same Subject ; Jettison 419 § 418. Second Exception ; Loss or Injury by Public Enemies . . 419 §419. The Same Subject; Acts of Mobs, Rioters, etc 420 §420. The Same Subject ; Pirates; Privateers 421 § 421. Third Exception; Loss or Injury by Act of the Customer . 421 § 422. Tlie Same Subject; Packing, Loading, Selection of Place, etc., by Customer 421 §423. The Same Subject; Customer's Bad Faith; Deception as to Contents 423 § 424. The Same Subject ; Negligent Omission to state Contents . 424 § 425. The Same Subject ; Mixed Custody in the Transit . . . 425 § 426. The Same Subject; Customer's Act must have primarily occasioned the Loss 426 §427. The Same Subject; Carrier's Own Vigilance should not relax 426 §428. Fourth Exception; Loss or Injury by the Public Authority 427 § 429. Carrier liable for Negligence or Default of Servants . . 429 § 430. Fraud and iSIisconduct of Cai'rier or his Servants is Inexcus- able 430 §§ 431, 432. Proximate and Remote Cause alveays regarded, where Excuse is set up 431, 433 § 433. The Same Subject ; Bad Stowage in a Vessel ; Jettison, etc. 433 § 434. Proximate and Remote Cause ; Rule further applied to Excuses for Loss 435 § 435. Perplexing Instances of Proximate and Remote Cause ; In- fluence of Carrier's Contributory Negligence 436 § 436. The Same Subject ; English Instances 437 § 437. The Same Subject ; American Instances 438 § 438. The Same Subject ; where Disaster was Inevitable, notwith- standing Default 440 TABLE OF CONTENTS. xxi Page § 439. Legal Excuses, how set up; Presumption ; Burden of Proof, etc 442 §440. Carrier not a Teclinical Insurer; Right of Insurance Com- pany 444 § 441. Care and Diligence is according to Circumstances .... 444 §442. Instances of Mixed Custody considered; 1 land-Baggage; Animals 444 §§ 443, 444. The Same Subject ; Animals 447, 448 § 445. Instance of Ferry Transportation 448 § 44G. Expressions in Bills of Lading ; " Perils of the Sea," etc. . 450 CHAPTER V. USAGE, SPECIAL CONTRACT, AND LEGISLATION, AFFECTING THE COMMON carrier's BAILMENT RESPONSIBILITY. § 447. ^lodern Qualifications of Carrier's Responsibility .... 45G § 448. Carrier's Responsibility affected by Usage 457 § 449. Carrier's Responsibility affected by Special Contract . . . 458 § 450. English Doctrine of Contract Qualification traced down . . 458 §§ 451, 452. The Same Subject ; Railway and Canal Trafiic Act of 1854; Later English Policy 461,464 §§ 453, 454. American Doctrine of Contract Qualification. . 466, 467 § 455. The Same Subject ; Latest Decisions ; Rule as to Servants . 409 § 456. American Rule ; Permitted Qualifications by Contract; Fire; Loss by ]\Iobs, etc 470 § 457. Contract for Valuation ; as to Time of presenting Claims, etc. 471 § 458. Miscellaneous Qualifications by Special Contract .... 473 § 459. Carrier's Enlargement of Risk by Special Contract. . . . 474 § 460. How Special Contract with Carrier is made 475 §461. The Same Subject; Former Practice of giving Notices . . 476 § 462. The Same Subject ; Present English Rule 478 § 463. American Rule; General Notices not favored; IMutual Assent 479 § 464. ^lutual Assent in Bills of Lading and Similar Documents . 480 § 465. Indirect IMutual Assent in ^lodern Cases ; the Decisions reconciled 482 §§466,467. Character of Document; Bill of Lading; Way-bill; Receipt, etc 483, 485 § 468. Carrier's Fairness in making Special Terms plain . . . 486 § 469. Carrier's Seasonableness in announcing Special Terms . . 487 § 470. Wlu'lher Special Terms are made known to the Proper Party 488 §471. Wiiether the Sender has acted fairly 489 XXU TABLE OF CONTENTS. Page § 472. "Whether the Special Terms have been waived or not . . 490 § 472 a. Whether the Special Contract was duly made on the Car- rier's Behalf 490 § 473. Legal Effect of giving Document to Sender; Sender's Op- tion to require Full Legal Risks 491 § 474. Proof of Special Conti-act ; Terms, Written, Printed, or Oral 492 §475. Bills of Lading ; their Nature and Characteristics . . . . 493 § 476. Master's Authority to issue Bills of Lading 495 § 477. Rules applied to Inland Bills of Lading 496 § 478. Loss under Special Contract ; Burden of Proof, etc. . . . 498 §479. Carriage of Animals under Special Contract 500 § 480. Use of Concise Expressions or Letters by Way of Special Contract 503 § 480 a. Rule of Proximate Cause applies in Special Terms of Carriage 504 § 481. Carrier's Responsibility affected by Legislation .... 504 § 482. Acts reducing Ship-owner's Risks, etc 505 § 483. Acts restraining the Transportation of Explosives, etc. . . 506 § 484. English Carriers' Act of 1830 ; Railway, etc., Traffic Act of 1854 507 § 485. Legislation against Unfair Rates, as to Standard of Care, etc 509 § 486. Legislation affecting the Carriage of Animals 510 CHAPTER VI. TERMINATION OF THE COMMON CARRIER'S BAILMENT RESPONSIBILITY. § 487. When the Carrier's Responsibility ends ; General Rule . . 512 § 488. Delays how far Excusable 512 § 489. Delivery within Reasonable Time after Arrival .... 514 § 490. Delivery to the Right Party 514 § 491. Delivery to the Owner's Agent, etc 516 § 492. Delivering under Bills of Lading, etc 516 § 493. Directions of Consignor, etc 517 § 494. Delivery to Paramount Owner ; Good Faith requisite . . 518 § 495. Carrier's Course where doubtful as to the Person entitled to Delivery 519 § 496. Where Goods are addressed " Care of," etc 519 § 497. Misdelivery through Consignor's Carelessness, etc. . . . 520 § 498. Failure to deliver because of Legal Process 521 § 499. When Stoppage in Transitu prevents Delivery 521 TABLE OF CONTENTS. Xxiii Pago § 500. Carrier's Duty as to Unclaimed or Refused Property ; Stor- age, etc 522 § 501. Delivery to Joint Parties, etc 523 § 502. What constitutes a Complete Delivery 524 § 503. Carrier's Duties in Unloading, etc 524 § 504. Methods of Unloading ; Carrier and Consignee 525 § 505. Consignee's Right to intercept Goods on Transit .... 526 § 506. Notice without Personal Delivery, etc 526 §507. Undertaking to collect on Delivery; C. O. D 527 § 508. Ratification or Waiver on the Customer's Part 528 § 509. Bearing of Usage, etc., upon Modern Rules of Delivery . . 529 § 510. One may be Carrier for Transit and Simple Bailee after Arrival 529 § 511. Mode of Delivery by Vessel; Responsibility how divested . 530 § 512. Delivery by Land-Carrier ; Responsibility how divested . 532 § 513. The Same Subject; Conflict of Doctrine as to Railway Carriers 532 §514. The Same Subject ; Delivery by Expressman, etc 536 § 515. Carrier's Obligation to make Personal Delivery affected by Circumstances, Contract, etc 537 § 516. Responsibility as Warehouseman further considered . . . 538 § 517. Responsibility of Carrier to forward beyond his Route ; Connecting Carriers 539 § 518. Carrier's Duty of making Proper Delivery where receiving from another Carrier 540 §§ 519-521. Usage, Special Contract, or Legislation affecting Delivery 540, 542, 543 CHAPTER YII. GENERAL RIGHTS OF COMMON CARRIERS. § 522. General Rights of Carrier stated 545 §§ 523, 524. Carrier's Special Property in the Thing ; Right of Action 545, 546 § 525. Carrier's Right of Compensation 546 § 526. Recompense, how denoted ; Freight ; Contract, etc. . . . 547 § 527. When Freight begins ; Removal of Goods placed on Board . 547 § 528. Recompense where Goods are intercepted by Owner . . . 548 §§ 529, 530. Rule of Full Freight or None considered . . . 549, 550 § 531. Freight where Deliveiy is incomplete 552 § 532. Recompense paid in Advance recovered if not earned . . 553 § 533. Recompense under Bill of Lading or Special Contract . . 553 Xxiv TABLE OF CONTENTS. Page § 534. Consignee in General liable for Freight; his Cross-Action for Damages 554 § 535. Consignor is originally liable for Freight or Recompense . 555 §§ 536, 537. Liability for Recompense mider a Bill of Lading 555, 557 § 538. Reimbursement of Carrier's Expenses; Extortionate Charges not allowed 557 § 539. Charges where Sender imposed upon the Carrier .... 558 § 540. Right to charge Demurrage 558 § 541. Legislative Tariff of Charges 559 §542. Carrier's Recompense secured by Lien; its Priority, etc. . 559 § 543. What Charges a Carrier's Lien protects 560 § 544. No Lien against Owner where Bailment was Wrongful . . 561 § 545. Lien how preserved ; Possession Necessary 562 § 546. Lien not lost by a Partial Delivery 563 § 547. Total Delivery on Stipulation that Lien shall continue . . 564 § 548. Extension or Waiver of Lien by Special Agreement . . . 564 § 549. Lien for Unpaid Instalments of Freight 566 § 549 a. Where Damage to Goods exceeds Recompense .... 566 §550. Legal Effect of Carrier's Lien; Right to sell 567 § 551. Carrier may sue for his Compensation, etc 568 § 552. Payment and Delivery are Concomitant Acts 568 § 553. The Same Subject ; Mutual Rights of Carrier and Consignee 570 § 554. Goods shipped as Entire not to be treated as in Portions . 570 CHAPTER VIII. REMEDIES AGAINST COMMON CARRIERS. § 555. Causes of Action against Common Carrier stated .... 571 § 556. Remedy for Refusal to receive 571 § 557. Remedy for Loss or Injury in Transportation 572 § 558. Form of Action in Such Cases 572 § 559. The Same Subject ; Action Ex Delicto 573 § 560. The Same Subject; Count in Trover 574 § 560 a. Whether Replevin lies 576 § 561. The Same Subject; Action Ex Contractu 576 §562. The Same Subject; Forms of Action compared 577 § 563. Admiralty Proceedings considered 578 § 564. Party Plaintiff in Case of Loss or Injury 579 §§ 565, 566. The Same Subject ; Consignor or Consignee . . 579, 581 § 567. The Same Subject ; Test of Contract 581 § 5G8. The Same Subject; General or Special Ownership . . . 582 § 569. The Same Subject ; Miscellaneous Points 583 TABLE OF CONTENTS. XXV Papo §570. The Same Subject ; Right under a Bill of Lading . . . . 583 § 571. General Conclusion as to the Party riaintiff 585 § 572. Party Defendant in Case of Loss or Injury 587 § 573. The Same Subject ; Master of a Vessel 588 §.574. The Same Subject; Corporate Carriers 589 §§ 575-577. Declaration and Pleadings in Such Suits . . 589, 591, 592 §§ 578, 579. Proof in Suits for Loss or Injury 593, 590 § 580. The Same Subject; Proof of Contents of Trunk, etc. . . 597 §581. Sufficiency of Evidence 598 §§ 582-584. Damages recoverable for Loss or Injury . . 598, 600, 602 § 585. Remedies for Negligence or ^Misconduct in Final Delivery . 602 § 586. The Same Subject ; Effect of Acceptance 603 § 587. Recovery of Extortionate or Illegal Charges 604 § 588. Conflict of Laws in Pursuit of Remedies 604 CHAPTER IX. CONXECTING CARRIERS. § 589. Topic to be considered 606 §590. Nature of Carriage by Connecting Routes; Principle of Partnership or Mutual Agency 606 § 591. The Same Subject; how held out to the Public, the Main Consideration 608 §592. The Same Subject ; Partnership Arrangements .... 609 § 593. Through Contract may be made ; Ultra Vires not presumed 610 § 594. Principles of Liability for Loss stated 612 § 595. Confusion of Authority relates to Proof and Presumption concerning the Actual Engagement 613 § 596. English Presumption favors the Idea of a Through Under- taking 613 § 597. American Presumption favors Idea of a Forwarder's Under- taking 614 §598. The Same Subject ; Exceptions stated 610 § 599. American Rule favors suing the Carrier who occasioned the Loss 610 §§ 600, 601. Special Contract to carry through, how shown . . 017, 618 § 602. The Same Subject; Effect of a Through Receipt in Con- nection with Other Circumstances 619 § 603. Special Contract may exclude a Through Liability . . . 620 § 604. Special Contracts of Connecting Carriers in General ; Special Exemptions, etc 621 § 605. Intermediate Carrier not in Default is not Liable . . . 622 XXVi TABLE OF CONTENTS. Page § GOO. rresumption in Case of Loss or Injury 623 § 007. Liability of Connecting Carriers towards One Another . . 624 § 608. Commencement of Connecting Carrier's Risk 625 § 600. Termination of Connecting Carrier's Risk 626 §610. Compensation of Connecting Carriers; Back Freight or Charges 628 § 611. Notice of Default, etc., in a Continuous Transportation . . 630 CHAPTER X. INTER-STATE COMMERCE ACT. § 611 a. Origin and Purpose of Inter-State Commerce Act of 1887 632 § 611 b. Inter-State Commerce Commission 634 § 611 c. Discriminations and Preferences, etc 636 § 611 d. Pooling Earnings, etc 637 § 611 e. Long and Short Haul Provisions 638 PART VII. CARRIERS OF PASSENGERS. CHAPTER I. MATTERS PRELIMINARY TO THE JOURNEY. § 612. Carriage of Passengers no Bailment, but a Corresponding Relation 639 § 613. Topics for Preliminary Discussion in this Chapter . . . 640 § 614. Who are Carriers of Passengers 640 §§ 615, 616. The Responsible Transporter considered; Connecting Carriers, etc 642, 643 § 617. Responsible Transporter further considered ; Connected Facilities, etc 644 § 618. The Same Subject ; Control of the Transportation . . . 645 § 619. Conclusion as to the Responsible Transporter 647 §§ 620, 621. Who are Passengers 647, 649 § 622. Obligation to receive for Carriage 652 §623. The Same Subject; Accommodations; Suitable Persons, etc. 652 § 624. Carrier's Reasonable Rules as to Accommodation . . . 655 TABLE OF CONTENTS. XXvii Page § 62o. Passage Tickets and Fares 657 § G'JO. The Same Subject ; Reasonableness of Fares, etc. . . . 658 § 627. Contract evinced by Ticket, etc 659 § 628. The Same Subject; Differing Rates import Differing Facili- ties 001 § ()2!». Special Restrictions of Carriage by Ticket, etc 003 § Olio. The Same SuV)ject; Reasonable Rules as to Tickets . . . GOi § 631. Special Instances ; Lost Tickets; Travelling without Tickets, etc 667 §632. Special Instances ; Improper Tickets 668 § 033. Enforcement of Fares by Conductor, etc 609 § 031. Whether Aggrieved Passenger may refuse Fare, etc. . . 670 § 035. Ticket-Seller's Representations, how far binding . . . . 671 §630. Aggrieved Passenger's Right of Action; Damages, etc. . . 071 § 637. Legislation as to Fares and Duty to receive 673 CHAPTER II. DUTIES AND RIGHTS INCIDENTAL TO THE JOURNEY. § 638. General Duties of Carrier with Reference to the Journey . 676 § 639. The Same Subject; Suitable Depot; Means of Ingress, etc. 676 §§640,64:1. Suitable Means and Appliances for the Transporta- tion 078, 080 § 642. Suitable Provision for Safety and Comfort in Transporta- tion 681 §643. The Same Subject ; Maintaining Order on Board ... 682 §644. The Same Subject; Good Treatment by Carrier's Servants 684 §§ 645-647. The Same Subject; Care in Conducting the Transpor- tation 087, 088, 689 § 648. Duty to carry without Unreasonable Deviation or Delay . 090 §649. The Same Subject ; Published Time-Tables, etc 691 § 650. The Same Subject; Passenger's Remedies for Breach of Duty 692 § 651. Carrier's Duty as to Changes, Way-Stations, etc 093 § O.J2. Carrier's Liability for injuring a Passenger 094 § 0."}3. The Same Subject ; Burden of Proof, etc 099 § 654. Carrier's Liability for causing Death 700 § 655. Whether Special Contract affects Liability for Injury, etc. . 701 § 050. The Same Subject ; Travellers on Free Pass, etc 701 § 057. General Conclusion as to Passengers ; Trespassers con- trasted 703 § 658. Carrier's Right of Ejection 704 XXviil TABLE OF CONTENTS. CHAPTER III. TERMINATION OF THE JOURNEY. Pago § 659. How One's Journey may prematurely end 707 § GGO. Journey naturally ends at Place of Destination ; where to stop 707 § 661. Opportunity to alight ; Proper Landing-Place, etc. . . . 708 § 662. Passenger's Duty in Landing 709 § 663. Final Compensation, Surrender of Ticket, etc 710 § 664. Remedies of Passenger in General ; Damages 711 CHAPTER IV. TRANSPORTATION OF BAGGAGE. § 665. Baggage Transportation Incidental to Carriage of the Pas- senger 713 § 666. The Same Subject ; Vocation of Innkeeper compared . . 713 §§ 667, 668. What is Baggage or Luggage 714 § 669. The Same Subject ; Money, etc 716 § 670. The Same Subject ; Value, etc 718 § 671. The Same Subject ; Conclusion as to what is Baggage . . 718 § 672. Nature and Extent of Risk for Baggage ; Common Carrier Liability 719 §§ 673, 674. Carrier's Liability for what is not strictly Baggage 721, 723 § 675. Rule that Passenger and Baggage should go together . . 724 § 676. Baggage Express distinguished ; where Passenger is not taken ,725 §§ 677, 678. When the Carrier's Liability for Baggage com- mences .■ . 72.5, 727 § 679. Reciprocal Duties of Passenger and Carrier as to Receiving 728 § 680. Bailment of Hand-Baggage ; Mixed Custody 729 § 681. Common-Law Liability for Baggage stated 730 §§ 682-684. Liability for Hand-Baggage, etc., considered . 730, 732, 733 § 684 a. Loss of Hand-Baggage, etc., in Sleeping-Car 734 § 685. Carrier's Rules as to Special Articles, Animals, etc. . . . 734 §§ 686, 687. Liability for Articles, not Baggage, taken by the Pas- senger 735, 738 § 688. Carrier may charge Freight for what is not Baggage . . . 739 §§ 689, 690. Special Contract Terms affecting Liability for Bag- gage 739, 740 § 691. Legislation affecting Liability for Baggage 742 TABLE OF CONTENTS. XXIX § 092. "\\'Tien Liability for Baggage terminates, etc. § 0'J3. Carrier's Right of Lieu as to Baggage .... § 694. Burden of Proof where Baggage is lost or injured § 695. Practice in Suits for Lost Baggage § 090. Connecting Carriers as to Baggage § 097. Conclusion as to Modern Law of Bailments . . Patro 742 744 744 745 746 748 Table of Cases xxxi Index 751 TABLE OF CASES. Section Abbett 17. Frederick 204 Abbott V. Bratlstreet G80, 682, 684 Abraham v. Nnnn - 101 Abrauis v. Milwaukee R. 479 Accoinac, The 446 Acker v. Bender 168 Ackiey v. Kellogg 517 Adams v. Clark 542, 543, 552, 560 Adams y. Clem 285, 298, 313 Adams v. Lancashire 11. 652 Adams v. O'Connor 217 Adams Express Co. v. Haynes 467, 580 Adams Express Co. v. Jackson 431 Adams Express Co. v. McDonald 404 Adams I'Lxpress Co. v. Reagan 457 Adams Express Co. v. Stettaners 466, 478 Adams Express Co. v. Wilson 602 Aigen v. Boston & Maine R. 572, 581, 591, 599 Ainsworth v. Bowen 230 Alabama R. v. Kidd 117, 490, 499, 513, 516, 519 Alabama R. v. Mount Vernon Co. 608 Alabama R. v. Searles 402 Alabama R. v. Thomas 455 Alair v. Northern R. 457 Albin V. Tresby 297, 302, 311 Alden v. New York Central R. 640 Alden v. Pearson 439, 552, 560 Alderman v. Eastern R. 492 Aldricli V. Boston & Worcester R. 108 Alexander v. Greene 453 Alexander v. Southey 495 Alexandria R. v. Rurke 229, 238 Allday v. Great Western R. 479 Allen V. Barcda 537 Allen V. Bates Allen V. Ilam Allen V. Maury Allen V. Sackrider Section 533 122 117 346 Allen V. Sewall 344, 354, 357, 367 Allen V. Smith 285, 298, 327 Allender v. Chicago R. 639 Alliance Bank, Ex parte 263 Ailing V. Boston & Albany R. 562, 068, 673, 674 Alsager v. Dock Co. 548 Alston, Ex parte 184 Alton V. Herring 432 Alvord V. Davenport 326, 327 American Contract Co. v: Frost 668 American Express Co. v. Greenhaigh 494, 500, 507 American Express Co. v. Lesem 507 American Express Co. v. Milk 490, 491 American Express Co. v. Perkins 397, 423 American Express Co. v. Pinckney 351 American Express Co. v. Smith 488 American Merchants' Union Express Co. V. Wolf 507, 514 American Refining Co. v. McGhee 50 American Steamship Co. v. Bryan 680 American Transportation Co. v. Moore 470, 474 Ames V. Belden 155 Ames V. Palmer 544 Amies v. Stevens 402, 410, 446 Amos V. Temperley 637 Anderson v. North Eastern R. 585 Anderson v. Olin 235 Andrews v. Scotton 187 XXXll TABLE OF CASES. Section Androscoggin R. v. Auburn Bank 209, 212 Angus V. McLaclilan 327, 328 Anne, The 101 Anonymous v. Jackson 345, 450 Ansell V. Waterhouse 572 Appleby v. Myers 111, 112 Appleton V. Donaldson 172 Appleton V. Turnbull 230 Arbuckle v. Thompson 570 Archer v. Walker 20, 69, 77 Arendale v. Morgan 246 Armlstead v. White 283, 306 Armory v. Delamirie 33, 54 Armour v. Michigan Central R. 394, 477 Armstrong v. Chicago R. 585 Arnold v. Halenbrake 355 Arnold v. Illinois Central R. 623 Arnott V. Kansas Pacific R. 99 Arthur v. Schooner Cassias 550 Artz 17. Chicago R. 649 Asfar V. Blundell 530 Ashendon v. London R. 451, 479, 486 Ashmore v. Penn. Steam Towing Co. 354 Ashton V. Atlantic Bank 183 Ashton's Appeal 218, 234 Aston V. Heaven 642 Atchison R. v. Brewer 694 Atchison R. v. Chicago R. 565 Atchison R. v. Henry 658 Atchison R. v. Roach 606, 615, 696 Atchison R. v. Weber 643 Atkinson v. Maling 189 Atkisson v. Castle Garden 530, 586 Atlantic Insurance Co. v. Bird 530 Atlantic R. v. Dunn 658, 664 Atlas, The 646 Attenborough v. Commissioners 167, 168 Attorney-General v. Edison Tele- graph Co. 272 Atwater v. Mower 167, 168 Atwater v. Sawyer 307, 318, 324 Atwell V. Miller 533 Atwood V. Reliance Trans. Co. 461 Audendried v. Phil. R. 372, 375, 380, 383 Section Auerbach v. New York Central R. 628 Augusta R. V. McElmurry 647 Auld V. Butcher 254 Aurentz v. Porter 28, 101 Austin V. Great Western R. 616,628, 632, 637, 656 Austin V. Manchester R. 16, 450, 461, 576, 577 Austin V. Miller 144, 155, 161 Austin V. Seligman 6 Ayers v. South Australian Banking Co. 175, 179, 217 Ayers v. Western R. 408, 520 Aymar v. Astor 355, 446 Ayres v. Chicago R. 370 B. Babcock v. Lawson 182, 202, 219 Backhouse v. Sueed 415 Badlam v. Tucker 178, 244 Baggett V. McCormack 115 Bailey v. Cobb 142 Bailey v. Colby 107 Bailey v. Damon 527 Bailey v. Shaw 579 Baird v. Daly 101, 108 Baker v. Arnot 224 Baker v. Brinson 478 Baker v. Louisville R. 370 Baldwin v. American Express Co. 514 Baldwin v. Bradley 187, 242 Baldwin v. Liverpool Steamship Co. 539 Baldwin v. London R. 397, 422 Baldwin v. United States Telegraph Co. 272 Balfe V. West 34 Ball V. Liney 118 Ball V. Wabash R. 479 Ballentine v. North Missouri R. 410 Ballon V. Earle 457, 467 Baltimore Mar. Ins. Co. v. Dalrymple 230, 231, 233, 234 Baltimore & Ohio R. v. Blocher 630 Baltimore & Ohio R. v. Wilkens 394, 476, 477 Baltimore R. v. Keedy 437, 581 TABLE OF CASES. XXXIU Section Baltimore II. r. Pumphrey 495, 668, 682, 683 Baltimore Steamboat Co. v. Brown 61)3, fi02 Baltimore Steam Packet Co. v. Smith am, 0(58 Bamberg v. South Carolina R. 370 Bancroft v. Boston, &c. R. 654 Bancroft v. Merchants' Desp. Trans. Co. 5U0, G04, 609 Bancroft v. Peters 634 Banfiuld v. Whipple 137, 148 Ban<;s V. Bcacham 64, 68, 60 Bank v. Lanier 177, 179 Bank of Commerce v. Bissell 492, 493; 496, 520 Bank of Kentucky v. Adams Exp. Co. 351,429,446,454,456,001 Bank of Old Dominion r. Dubuque K. 230 Bank of llutlaud v. Woodruff 244, 246 Bank of United States v. Dunn 43 Bank of Utica V. M'Kin.ster 40 Bank of Utica v. Smedes 40 Bankard v. Baltimore & Ohio R. 479 Bansemer v. Toledo R. 613, 516 Barber v. Brace 433, 475 Barber v. Meyerstein 189, 190, 670 Barclay v. Cucullay Gana 419 Barclay v. Heygena 419 Barker v. Midland R. 639 Barker v. New York Central R. 648, 651 Barkwell v. Swan 208 Barnes v. Foley 619 Barney v. Oyster Bay Steamboat Co. 623 Barringer v. Burns 139 P.arron v. Eldredge 390 Barrow v. Rhinelander 206, 208 Barry v. Midland R. 637 Barter v. Wheeler 688, 592 Bartholomew v. St. Louis, &c. R. 692 Bartlett v. Pittsburg R. 479 Bartlett v. Western Union Telegraph Co. 272 Barton v. St. Louis R. 652 Bass V. Chicago R. 623, 624 Bass V. Glover 492 Section Bass V. Upton 122 Bassett v. Spofford 494 Basten v. Butler 112 Batavia Bank v. New York R. 477 Bates V. Stansell 120 Bates V. Stanton 60 Bates V. Todd 475 Batson v. Donovan 37, 450, 471 Batutu. Hartley 101, 119 Baxendale v. Eastern Counties R. 374 Baxendale v.. Great Eastern R. 450, 484 Baxendale v. London & Southwestern R. 485 Baxter v. Leland 448 Bay ley v. Manchester R. 644 Bayley v. Merrill 329 Baylis v. Lintott 558, 560, 575 Bayliss v. Fisher 84 Bay on v. Prevot 28 Bazin v. Steamship Co. 583 Beach v. State Bank 241 Beale v. Posey 281, 312 Beale v. South Devon R. 16, 74, 451, 479 Bealle v. Southern Bank 181 Bean v. Sturtevant 357, 369 Beard v. Illinois Central R. 431, 448 Beardslee v. Richardson 23, 40, 66 Beauchamp v. Powley 35, 40, 336, 343 Becher v. Great Eastern R. 695 Beck V. Evans 450 Beckman v. Shouse 352, 461 Beckwith v. Frisbie 354 Beebe v. Ayres 630, 632 Beebe v. Roberts 668 Beeman v. Lawton 188, 202 Belden v. Perkins 20, 218, 219, 249, 254 Belfast R. v. Keys 674, 687 Belger v. Dinsmore 351, 457, 466 Bell V. Drew 668 Bell V. Pidgeon 354 Bell V. Reed 355, 439 Beller v. Schidtz 74, 75 Bellows V. Denison 7 Bellows V. Wells 175 Bendetson v. French 298, 302, 312 Benett v. Peninsular Co. 622 XXXIV TABLE OF CASES. Section Benior v. Paquia 236 Benjamin v. Stremple 217 Benje v. Creagli 157, 159 Benner v. Equitable Safety Ins. Co. 533 Bennett v. Dutton 622 Bennett v. Express Co. 428 Bennett v. Filyaw 354 Bennett v. Manchester B. 485 Bennett v. Mellor 280, 290, 296, 299, 318 Bennett v. New York Central R. 629 Bennett v. O'Brien 23, 72, 78, 79, 130 Bennett v. Stoddard 222 Benson v. Gray 503 Bentinck v. Joint Stock Bank 181 B6rard V. Boagni 41,64 Berg V. Atchison R. 603 Bergheim v. Great Eastern R. 680, 683 Berkley v. Watling 475 Berkshire Woolen Co. v. Proctor 281, 283, 299, 304, 311, 326 Berlin v. Eddy 234 Bernstein v. Sweeny 276, 310, 312 Berry v. Cooper 478 Berry v. Gibbons 178, 183 Betsey, The 18 Betterton v. Roope 206 Betts V. Farmers' Loan Co. 479, 656 Bevan v. Waters 122 Beverly v. Brooke 135 Beyris v. Spor i 50 Bickford v. Metropolitan Steamship Co. 499, 500, 514 Biddle v. Bond 47, 82, 118, 119 Bidstrof v. Thompson 194 Biebinger v. Continental Bank 178 Bigbee v. Coombs 144, 161 Bigelow V. Heaton 545 Bingham v. Rogers 461 , 580 Bird V. Astcock 417, 433 Bird V. Cromwell 404 Birney v. New York Telegraph Co. 272 Bishop V. Shillito 3 Bishop V. Williamson 270 Bissel V. Price 475, 610 Bissell V. New York Central R. 479, 656 Section Black V. Bogert 201 Black V. Chicago R. 437 Black V. Rose 552 Black V. Wabash R. 457 Blackburn v. Gresham 268 Blackham v. Gresham 272 Blackman v. Pierce 123, 127 Blackstock v. New York & Erie R. 412, 429 Blackstock v. New York R. 377 Blackstone Bank v. Hill 241 Blackwood v. Brown 178, 252, 254 Blaikie v. Stembridge 573 Blair v. Erie R. 657 Blake v. Buchanan 215 Blake v. Great Western R. 615 Blake v. Kimball 45, 58, 101, 108 Blake v. Nicholson 123 Blakemore v. Bristol 70, 79, 111, 504 Blanchard v. Isaacs 343, 385 Blanchard v. Page 475, 537, 567, 570 Blanchett v. Powell's Colliery 533 Bland v. Adams Expi'ess Co. 418 Bland v. South Pacific R. 658 Bland v. Womack 36 Bliss V. Schaub 154 Blitz V. Union S. S. Co. 458 Bliven v. Hudson River R. 428, 498 Block V. Fitchburg R. 592 Blocker v. Whittenburg 104 Blossom V. Dodd 403, 467, 468, 690 Blossom V. Griffin 390 Blouin V. Hart 194 Blower v. Great Western R. 442 Blum V. Pullman Palace Car Co. 353 Blum V. The Caddo 563, 564, 566, 571 Blumenthal v. Maine Central R. 674 Board of Education v. Sinton 181 Board of Trade v. Buckingham 122 Boardman v. Thompson 271 Boatmen's Bank v. Western R. 492 Boaz V. Central R. 558 Bobo V. Patton 45, 101 Bodenham v. Bennett 450 Bodenhammer v. Newsom 202 Bodwell V. Bragg 290, 302, 310 Boggs V. Martin 533, 546 Bohler v. Owens 304 Boies V. Hartford R. 23 Bomar v. Maxwell 669 TABLE OF CASES. XXXV Section Bonner v. Marsh 566 Bonner v. Wflborn 276, 277 Boornian v. American Express Co. 454, 457, 474 Boscowitz r. Adams Express Co. 351, 429, 466 Bostick V. State 276 Boston R. V. Brown 552, 585 Boston & Albany H. v. Slianly 371, 397, 427 Boston & Lowell R. v. Proctor 627, 629 Boston & Maine R. v. Brown 531 Boston & Maine R. v. Mower Co. 568 Bostwick V. Baltimore & Ohio R. 469, 474 Bostwick V. Champion 364, 429 Bott V. McCoy 184 Boucher v. Lawson 338, 355 Bowen v. Cleary 182 Bowes, He 178 Bowlin V. Nye 560 Bowman v. Hilton 354, 545, 610 Bowman v. Teall 410, 582, 586 Boyce v. Anderson 355 Boyle V. M'Lauglilin 431 Boynton v. Tayrow 172, 192, 197, 227, 240 Boys V. Pink 389 Brabant v. King 101 Bradburn v. Great Western R. 664 Bradley v. Boston & Maine R. 647 Bradley v. Cunningham 106 Bradley v. Dunipace 397, 475, 477, 493 Bradley v. Parks 219 Bradley v. Waterhouse 484 Bradshaw v. Lancashire R. 654 Bradstreet v. Ilcran 476, 477 Brahm v. Adkins 26 Branch v. Wilmington 402, 404, 458, 488 Brandon v. Gulf City Manuf. Co. 107 Brandon v. Scott 62 Brandt v. Bowlby 571 Branley v. South Eastern R. 374 Bran.son v. Heckler 181 Brant v. McMahon 44, 58 Brass v. Maitland 371, 397, 424 Brass v. Worth 230 Section Brassell v. New York Central R. 662 Breen v. Texas R. 630, 033, 651, 658 Bremner v. Williams 640 Brennan v. Fair Haven R. 652, 657 Brent v. Miller 190 Brctherton v. Wood 659, 622 Bretz V. Diehl 8 Brewster v. Hartley 168, 177, 186 Brewster v. Warner 154 Brick V. Brick 194 Brick V. Freehold Co. 178, 212, 243 Briddon v. Great Northern R. 488 Bridges v. North London R. 661 Brien v. Bennett 621 Briggs V. Boston & Lowell R. 543, 544, 550 Briggs V. Jones 172 Briggs V. Light-Boats 643 Briggs V. Taylor 16 Brightman v. Reeves 254 Brind v. Dale 348 Bringloe v. Morrice 78 Brintnall v. Saratoga R. 594, 597, 606 Bristol R. V. Collins 593, 596, 096 British Columbia Bank v. Marshall 167, 168 British Columbia Sawmill Co. v. Net- tleship 394, 583 British Insurance Co. v. Gulf R. 458 Brittan v. Barnaby 468, 526, 554 Britton v. Atlanta R. 624 Britton v. Aymar 60, 118 Broadway v. Granara 326 Brock V. Gale 482, 671, 695 Bronnenburg v. Charman 35, 41 Brooke v. New York R. 475 Brooke v. Pickwick 450, 471, 668, 672, 681 Brookman v. Hamill 122 Brown v. Adams Express Co. 478 Brown v. Bement 167 Brown v. Camden R. 588 Brown v. Clayton 355, 416 Brown v. Dempsey 120 Brown v. Eastern R. 468 Brown v. Harris 636, 692 Brown v. Hitchcock 6, 101 Brown v. Hodgson 566 Brown v. Johnson 23 Brown v. Merchants' Bank 264 XXXVl TABLE OF CASES. Section Brown v. Runals 258 Brown v. Thayer 60 Brown v. Walker 611 6 Brown v. Warren 191, 192 Brown v. Waterman 23 Brownell v. Hawkins 217 Browning v. Goodrich Co. 004 Browning v. Trans. Co. 439, 578 Bruce v. Garden 172, 195 P.ruloy V. Hose 201 Brumby v. Smith 111 Brunswick Co. v. Hoover 3 Brush V. S. A. & D. R. ., 485 Bryan v. Baldwin 229, 2:]0 Bryan Shoe Co. v. Block 222 Bryant v. Rich 642, 644 Bryant v. Wardwell 142 Buchanan v. International Bank 187, 242 Buchanan v. Smith 73, 139, 144 Buck V. IngersoU 246 Buckland v. Adams Express Co. 351, 466, 467, 470 Buckle V. Knoop 633 Buckman v. Levi 385 Buddenburg v. Benner 305 Buffett V. Troy R. 593 Buis V. Cook 135, 137 Bulkeley v. Welch 231, 254 Bulkley v. Cotton Co. 429 BuUard v. American Express Co. 378 Bullard v. Young 560 BuUer v. Fisher 446 Bunch V. Great Western R. 677, 683 Bunnell v. Stern 90, 103 Burbank v. Chapin 310 Burdict v. Murray 115 Burgess v. Clements 303 Burgess v. Gun 527 Burk V. Dempster 40 Burke v. South Eastern R. 615 Burke v. Trevitt 28, 101 Burnap v. Potsdam Bank 178 Burnell v. New York Central R. 694 Burnett v. Kensington 446 Burnett v. Lynde 139 Burnham v. Grand Trunk R. 627, 633 Burnham v. Young 293, 312 Burnside v. Grand Trunk R. 579 Burnside v. Union Steamboat Co. 409 Section Burrell v. North 387 Burritt v. Rench 570 Burroughs v. Norwich & Worcester R. 597, 602 Burrows v. Bangs 206, 235 Burrows v. Treiber 304 Burtis V. Buffalo 348, 593 Burton v. Ferry Co. 623 Burton v. Wilkinson 118 Burton's Appeal 181, 182 Bussey v. Miss. Valley Trans. Co. 354 Butcher v. London R. 683 Butler, The 112 Butler V. Basing 580 Butler V. Hudson R. 385, 678 Butler V. Kenner 118 Butt V. Great Western R, 23, 577 Buttrick v. Holden 183 Buxton V. North Eastern R. 445 Cady V. McDonald 278 Cahill V. London R. 668, 673, 687 Cahn V. Michigan Central R. 513, 515, 519, 538 Cailiff V. Danvers 101, 103 Calais Steamboat Co. v. Van Pelt 182 Caldwell v. Hall 6, 41 Caldwell v. Murphy 652 Caldwell v. Southern Express Co. 418, 582 Calhoun v. Thompson 107 Callanan v. Smart 264 Calye's Case 270, 280, 283, 290, 294, 297, 304, 323 Camden R. v. Baldauf 454, 463, 468, 690 Camden R. v. Bausch 620 Camden R. v. Belknap 677 Camden R. v. Briggs 375 Camden R. v. Hoosey 623 Camden & Amboy R. v. Belknap 681 Camden & Amboy R. v. Burke 352 Camp V. Hartford Steamboat Co. 454, 456, 576 Campbell v. Chicago R. 649 Campbell v. Conner 523 Campbell v. Morse 431 Campbell v. Parker 169, 172 TABLE OF CASES. XXXVU Section Campion v. Canadian R. 404 a Caniptoii V. vShaw 119 Candec v. Pennsylvania R. 006 Canfield v. Baltimore R. 478, 480 Canfield v. Minneapolis Association 230 Cannon v. Midland R. 639 Cantlinji v. Hannibal R. 444, 403, 479 Cantwell v. Pacitic Co. 569 Cautwell V. Pacific Express Co. 404 Capcliart v. Seaboard R, 457 Cardin v. Jones 206 Carey v. Berkshire R. 654 Carle v. Bearce 58 Carnes v. Nichols 125 Carpenter v. Boston & Albany R. 639 Carpenter i'. Branch 74, 90, 98, 130 Carpenter v. New York R. 084 Carpenter v. Taylor 277 Carpue v. London R. 647, 653 Carr v. Lancashire R. 450, 451, 479 Carrico v. West Virginia R. 652, 657 Carrier v. Dorrance 135, 137, 144 Carrini,aon v. Ficklin 23, 35, 41 Carrington v. Ward 202, 220 Carr<^ll, The 646, 652 Carroll v. Staten Island R. 623, 640, 647 Carson v. Gas Light Co. 248 Carter v. Graves 505 Carter v. Hobbs 280, 313 Carter v. Humboldt Ins. Co. 116 Carter v. Peck 616, 650, 096 Carter v. Wake 235 Cart Wright v. Wilmerding 96, 184, 189, 192 Cary v. Cleveland R. 692 Case V. Fant 263 Case I'. Fogg 327 Casey v. Cavaroc 193, 201 Casliill V. Wright 16, 290, 304, 305 Cass V. Boston & Lowell R. 23 Cass V. Higenbotam 253 a Castle V. Hickman 201 Caswell r. Boston & Worcester R. 652 Caswell V. Keith 169 Caterham r. London R. 637 Catlin 17. Baltimore R. 579 Caton I). Rumney 354 Causey v. Yeates 180 Section Central R. v. Bryant 479 Central R. v. Combs 615, 016 Central R. v. Cupeland 598 Central R. v. Georgia Exchange 429, 602 Central R. v. Lampley 270, 347, 359 a Central R. v. Perry 017, 021, 639 Central R. v. Roberts 058 Central R. v. iSniitiia 442 Central Trust Co. r. Wabash R. 152 Chafee v. Sprague Man. Co. 227 Chaffe V. Mississippi R. 570 Chalk V. Charlotte R. 513 Chamberlain v. Masterson 281, 290, 304, 305, 316 Chamberlain v. West 80, 299 Chamberlain v. Western Transporta^ tion Co. 482 Chamberlin v. Cobb 78, 90, 98, 130, 134 Chambersburg Ins. Co. v. Smith 164 Champion v. Bostwick 592, 602 Charles v. Coker 246 Charleston Steamboat Co. v. Bason 446 Chase v. Alliance Co. 532 Chase v. Gates 58 Chase v. AVashburn 6, 8 Chase v. Westmore 548 Chattahoochee National Bank v. Schley 30, 59 Cheesman v. Exall GO, 255 Cheney v. Boston & Maine R. 629, 630 Chenowith v. Dickinson 101, 103 Cherry v. Frost 182, 194, 219 Chevaillier v. Patton 433 Chevaillier r. Straham 347, 411 Chicago Artesian Well Co. v. Corey 230 Chicago R. r. Ackley 541 Chicago R. v. Boyce 608 Chicago R. v. Conklin 673 Chicago R. v. Dewey 639 Chicago R. v. Dickinson 570, 581 Chicago R. v. Fahcy 606, 696 Chicago R. v. Flagg 058, 604 Chicago R. v. George 648, 649, 650 Chicago R. v. Hale 583 Chicago R. v. Jenkins 640 XXXVIU TABLE OF CASES. Section Chicago R. v. Michie 621 Chicago R. v. Morris 654 Chicago R. v. Moss 456, 478 Chicago R. v. Osborne 611 e Chicago R. v. Parks 6o0 Chicago R. v. Pillsbury 623, 643 Chicago R. v. Pondroin 652 Chicago R. v. Pullman Car Co. 155 Chicago R. -y. Scott 513 Chicago R. v. Stanbro 585 Chicago R. v. Suffern 376 Chicago R. v. Thompson 353, 423 Chicago R. v. Wallace 361 Chicago R. v. AVilliams 624, 625 Chicago R. v. Wolcott 380 a Chicago, &c. R. v. Boyce 692 Chicago, &c. R. v. Chicago, &c. Coal Co. 375 Chicago, &c. R. v. Northern Line Packet Co. 523, 524, 601, 607 Chicago, &c. R. v. People 378, 383 Chickering v. Fowler 511 Child V. Hugg 230, 232, 233 Chiles V. Garrison 55, 56 Chippendale v. Lancashire R. 450, 451 Choate v. Crowninshield 420, 477, 579 Choteaux v. Leech 475 Chouteau v. Allen 229, 232, 248 Chouteau v. Steamboat St. Anthony 307, 404 Christenson v. American Express Co. 351, 454, 456 Christie v. Griggs 640, 653 Christy v. Row 535 Chy Lung v. Freeman 637 Cicalla v. Rossi 55 Cincinnati Mail Line Co. v. Boal 345 Cincinnati R. v. Cole 664 Cincinnati R. v. Commission 611 b Cincinnati R. v. Eaton 664 Cincinnati R. v. Marcus 673 Cincinnati R. v. Skillman 630, 658 Cincinnati R. v. Spratt 600, 608 Citizens' Bank v. Dows 246 Citizens' Bank v. Nantucket Steam- boat Co. 344, 345, 349, 357, 367, 378, 563 Citizens' Ins. Co. v. Kountz Line 592 Citizens' National Bank v. Hooper 201 City Bank v. Babcock 248 Section City Bank of Racine v. Babcock 185, 229, 231 City Fire Ins. Co. v. Olmsted 188 City of Brooklyn, The 646 City R. V. Chicago R. 571 City Savings Bank v. Hopson 236, 238 City Savings Bank v. Nevin 236 Claflin V. Boston & Lowell R. 490, 560 Claflin V. Meyer 23, 101, 125 Clapp V. Nelson 70, 81 Clapp V. Stanton 354 Clare v. Agerter 202 Claridge v. Tramway Co. 80 Clark V. Barnwell 416, 427, 439, 477,478 Clark V. Bouvain 232 Clark V. Burns 277, 292, 680, 682, 684 Clark V. Eastern R. 678 Clark V. Eighth Avenue R. 652 Clark V. Gaylord 9, 51, 62 Clark V. Gray 461 Clark V. Holland 210 Clark V. Lowell, &c. R. 544 Clark V. Needles 390, 404 Clark V. Rochester 370 Clark V. St. Louis R. 479, 576 Clark V. Wilmington R. 630 Clarke v. Earnshaw 101, 103,104, 108 Clarke v. Gray 575 Clarke v. Poozer 154 Clarke v. Rochester R. 442 Clary v. Willey 276, 279, 294 Classen v. Leopold 228, 290, 300, 304 Clay V. Creditors 172, 178 Claypool V. McAllister 359, 395, 445 Clayton v. Butterfield 326 Clayton v. Hunt 462 Clement v. We.st. Union Tel. Co. 272 Cleveland R. v. Bartrara 629, 630 Cleveland R. v. Curran 656 Cleveland R. v. Perkins 469, 474 Cleveland R. v. Shoeman 17.3, 184 Cleveland R. v. Walrath 614, 652 Clifford, In re 122 Cloyd V. Steiger 101 Clute V. Wiggins 290, 291, 295 Clyde V. Hubbard 593, 600 Coal Co. V. Richter 50 Coats V. Chaplin 565 TABLE OF CASES, XXXIX Section Cobb V. Great Western U . G8« Cobb V. Wallace 159 Cobdcn V. Bolton 476 Cochran v. Dinsniore 23, 478 Cochran i». Moore 120 Cochran v. Kipy 117 Cock V. Taylor 536 Cocke V. Chaney 230 Coggs V. Bernard 2, 10, 11, 13, 20, 31, 30, 40, 51, 57, 60, 72, 87, 89, 104, 130, 100, 172, 210, 211, 221, 334, 335, 330, 337, 343, 344, 400, 418, 419, 422, 433, 459 Cohen r. Frost 680, 682 Cohen v. South Eastern R. 451, 484, 691 Cokendale v. Eaton 295 Cole V. Goodwin 399, 453, 401 Cole V. Tyng 124 Coleman v. Lambert 500 Coleman v. New York R. 629, 658 Coleman v. Shelton 201 Coles V. Clark 117 Collender v. Dinsmore 507 Collett V. London & North Western R. 341 Collier v. Swinney 404 Collier v. Valentine 140, 413, 438 Collins V. Bennett 23, 134, 155 Collins V. Boston & Maine R. 608, 672, 687 Collins V. Bristol & Exeter R. 590 Collins V. Buck 201 Collins V. Burns 490, 511 Collins r. Dawley 203 Collins V. Martin 184 Collins's Appeal 172, 175, 180 Colquitt V. Kirkman 122, 326 Colquitt V. Stultz 240, 245 Colson V. Arnot 181 Colt I'. M'Mechen 410 Colton V. Cleveland R. 478 Columlius R. V. Ludden 513 Colyar v. Taylor 40, 47 Commercial Bank v. Chicago R. 492 Commercial Bank v. Martin 209 Commercial Bank of New Orleans v. Martin 204 Commonwealth v. Alger 108 Section Commonwealth v. Cooper 233 Commonwealth v. Metropolitan R. 054 Commonwealth v. Mitchell 319, 323 Commonwealth v. Morse 54 Commonwealth v. I'ower 030, 639 Commonwealth v. Vermont R. 620 Commonwealth v. Worcester R. 374, 485 Compton V. Shaw 122 Comstock V. Scales 175 Comstock V. Smith 169, 242 Conard v. Atlantic Ins. Co. 570 Condon v. Marquette R. 609 Congar v. Chicago R. 392, 422 Conger v. Hudson River R. 442 Conkey v. Milwaukee R. 009 Conn. Mut. Life Ins. Co. v. New York, &c., R. 654 Connecting R. v. Wabash R. 503, 513 Connolly v. Warren 668 Consolidated Co. v. Taborn 058 Constable v. Steamship Co. 511, 520 Converse v. Boston & Maine R. 508 Converse v. Brainerd 446 Converse v. Norwich Trans. Co. 593, 596 Conway Bank t7. Am. Express Co. 20 Conwell V. Smith 155 Conwell V. Voorhees 270 Conyngham's Appeal 172, 229, 234, 254, 260 Cook V. Gourdin 431, 445 Cook V. Holt 60, 118 Cook V. Kane 326 Cooley V. Minnesota R. 203, 217 a, 542 Coombs V. Bristol R. 491, 565 Coombs V. Bristol & Exeter R. 565 Cooper V. Berry 389, 474 Cooper V. London R. 628 Cooper V. Ray 193, 201, 203 Cooper w. Willomatt 56, 81, 142 Cope V. Cordova 611 Cope V. Dodd 636, 693 Coppin V. Braithwaite 626, 643 Coquard v. Wernse 7 Corbett v. Chicago R. 404 Corbett r. Underwood 188 Corkle v. Maxwell 96 xl TABLE 01 Section Cortelyoii v. Lansing 250, 254 Coskery v. Nagle 297 Cotton V. Atlas Hank 203 Cottrell V. Branin 105 Coty V. Uarnes 167 Coulthurst V. Sweet 533 Coup V. Wabash II. 361 Coup6 Co. V. Maddick 147 Coupland v. Housatonic R. 442, 443 Coventry v. Great Eastern R. 475 Covington i'. Newberger 327 Covington Co. v. Keith 380 a, 503 Cowles V. Pointer 101 Cox V. Easlcy 115 Cox V. Fortescue 404 Cox v. O' Riley 101 Cox •;;, Peterson 411, 446, 448, 474, 475, 586 Cox V. Reynolds 100 Coxe V. Heiseley 423, 448 Coxon V. Great Western R. 590 Coykendall v. Eaton 280, 295, 299 Crafter v. Metropolitan R. 639 Cragiu v. N. Y. Central 443, 479 Cram v. Aiken 433 Crawford v. Clark 511 Crawford v. Southern R. 597, 600 Crawford v. Williams 530 Creamer v. West End R. 621, 660 Creed v. Penn. R. 621, 652 Creery v. Holly 433, 475 Crocker v. Crocker 234 Crocker v. New London 630 Croft V. Alison 147 Crofts V. Waterhouse 645 Cromwell v. Stephens 274, 277, 278 Cronkite v. Wells 385, 386 Crosby v. Fitch 403, 446 Cross V. Brown 3, 4, 23, 28, 34, 94, 101, 137, 178, 248 Cross V. Wilkins 280, 329 Crouch V. Great Northern R. 372, 374, 556 Crouch V. London 323, 348, 398 Crouch V. London & N. W. R. 477 Crump V. Mitchell 56, 73, 81 Crystal Palace v. Vanderpool 680 Cullen V. Lord 18, 73, 130, 140 CuUum V. Emanuel 187, 242 1^ CASES. Section Culver V. Wilkinson 207 Cummings v. Gann 101, 113, 122 Cumnock v. Institution for Savings 254 Curling v. Long 527 Curtis V. Leavitt 179, 180 Curtis V. Murphy 281 Curtis V. Rochester R. 653 Gushing v. Cable 155 Gushing v. Wells 682 Cushman v. Hayes 229, 254 Cutler V. Bonney 293 Cutler V. Powell 112 Cutting V. Grand Trunk R. 488, 552, 582, 583 Cutting V. Marlor 209, 247 Cutts V. Brainerd 600 Czech V. General Steam Nav. Co. 452, 478 D. Dale V. Brinckerhoff 52, 56 Dale V. Hall 415, 446, 558, 579 Damont v. New Orleans 652 Dando v. Foulds 3 Daniel v. Metropolitan R. 618, 653 Daniels v. Robinson 296 Dansey v. Richardson 146, 278, 315, 316 Danville Bank v. Waddill 47 D'Arc V. London R. 488 Darling v. Boston & Worcester R. 592, 594 Dart V. Lowe 29, 98 Dartnall v. Howard 40 Davey v. Chamberlain 148 Davey v. Mason 389 Davidson v. Bodley 183 Davidson v. Graham 439, 454, 456, 463, 576, 690 Davies, Ex parte 118, 159 Davis V. Bigler 107, 123 Davis V. Carson 264 Davis V. Central Vermont R. 464, 480 a Davis V. Funk 229, 231, 254 Davis V. Garrett 141, 403, 431. 438, 446 Davis V. James 505, 567 Davis V. Kansas City R. 623, 628, 634 TABLE OF CASES. Xli Section Davis V. Michigan R. 669 Davis V. I'atlison 636 Davis V. Russell 117 Davis V. South Michigan R. 608 Dawes v. I'eck 564, 566 Dawson v. Chamney 288, 204, 295 Day V. Bather 288, 290, 294, 295 Day V. Owen 624 Day V. liidley 569 Day V. Swift 201 De Haven v. Kensington Nat. Bank 44 De Menacho v. Ward 374 De Mott V. Laraway 121, 354, 504 De Rothschild v. Mail Steam Packet Co. 446 De Silvale v. Kendall 533 De Voin v. Michigan Lumber Co. 139 Dean v. Vaccaro 511, 582 Dearborn v. Union Nat. Bank 44, 50, 204, 209 Dearden v. Townsend 630, 632, 637 Deb.s, J?e 611 a Decuir v. Benson 624 Deford v. Seinour 524 Deforest v. Fulton Insurance Co. 116 Delaware R. v. Stock Yard Co. 353 Demandray v. Metcalf 227 Deming v. Grand Trunk R. 488 Deming V. Railroad 579, 581, 582, 583 Denipsey v. Gardner 119 Denny v. New York Central R. 410, 437, 609 Denton v. Chicago R. 478 Denton v. Great Northern R. 627, 648, 650 Denver R. v. Frame 568, 583 Depuy V. Clark 237 Dermott v. Jones 112 Derrick v. Baker 56 Derwort v. Loomer 642 Dessauer v. Baker 200, 295 Detroit, &c. R. v. Farmers', &c. Bank 603 Detroit R. v. Commission (\\lc Devalcourt v. Dillon 53, 64 Devereux v. Barclay 490, 560 Devereux v. Buckley 582 Devereux v. Fleming 122, 128, 256 Dewart v. Masser 253 Section Dewey v. Bowman 172 Dewey v. Field 60 Dexter v. Syracuse R. 668, 671 Deyo V. New York Central R. 640, 652 Dibble v. Brown 352, 672 Dibble v. Morgan 520 Dickerson v. Rogers 276, 295, 307, 324 Dickinson v. ^yinchester 286, 297, 299 Dickon v. Clifton 560 Dickson v. Chaffe 64 Dickson v. Renter's Teleg. Co. 272 Diebinger v. Continental Bank 178 Dietrich v. Penn. R. 629 Dilberto v. Harris 103 Dilk V. Keighley 91 Dill V. South Carolina R. 681 Dillard v. Louisville R. 454 Dillenback v. Jerome 54 Ditman v. Cottrell 3 Divver v. McLaughlin 178 Dix V. Tully 236 Dixon V. Birch 279 Dixon V. Chicago R. 403 Doak V. Bank of State 167, 196, 253, 258 Doane v. Russell 327 Dobbin v. Michigan R. 508 Dobbins v. Clark 127 Dodge V. Meyer 60, 118, 492 Doe V. Laming 277 Domestic Sewing-Machine Co, v. Watters 326 Donald v. Suckling 172,218,219,223, 231, 254 Donlin v. McQuade 103 Donnell v. AVyckoff 210, 247 Donohoe v. Gamble 223, 229 Donovan v. Hartford R. 621 Doolan v. Midland R. 451, 461, 484 Doorman v. Jenkins 36, 40, 50 Dorr V. New Jersey Nav. Co. 463 Dorr V. N. J. Steamboat Nav. Co. 454 Dorr V. Steam Nav. Co. 453 Don-ill V. Eaton 249 Dougal V. Kemble 636 Douglass V. Mundine 200, 245 xlii TABLE OF CASES. Section Dow V. Packet Co. 578 Downer v. Whittier 232 Downs V. New York R. 630 Dows V. Nat. Exch. Bank 101, 189, 190 Doyle V. Riser 580, 668, 669 Drake v- Cloonan 218 Drake v. Redington 154 Drake v. Shorter 28, 45 Drake v. White 206, 225 Draper v. Delaware R. 520 Dresser v. Bosanquet 122, 125 Du Laurans v. St. Paul R. 633 Duchman-r. Hagerty 324 Dudley v. Smith 645, 660 Duell V. Cudlipp 254 Dufee V. Blake 263 Duff V. Budd 490, 493, 512, 565 Duffy V. Thompson 668, 669 Dufolt V. Gorman 543 Dufour V. Mepham 117 Dugan V. Sprague 246 Dulin V. Pacific Co. 216 Dumas v. Hampton 80, 154 Dunbar v. Boston & Prov. R. 490 Duncan v. Blundell 104, 105 Duncan v. Brennan 178 Duncan v. Stone 3 Dunham v. Boston & Maine R. 608 Dunham v. Jackson 253 Dunham v. Lee 6, 142 Dunham v. Pettee 123 Dunlap V. Gleason 3 Dunlap ■;;. Hunting 120 Dunlap V. International Steamboat Co. 399, 482, 669, 672, 679, 687 Dunlap V. Munroe 270, 271 Dunlap V. Thorne 326 Dunn V. Branner 39 Dunn V. Grand Trunk R. 621, 652 Dunn V. Hannibal R. 442, 479, 503 Dunn V. Meserve 172, 197 Duntley v. Boston R. 457 Durgin v. Am. Express Co. 457 Durnford v. Pattei'son 40 Durr V. Hervey 117 Duthie V. Hilton 533 Dwight V. Brewster 342, 347, 352, 367, 398, 461, 560 Dwinelle v. N. Y. Central R. 644 Section Dyer v. Erie R. 147, 148 Dyer v. Grand Trunk R. 534, 552, 585 Dykcrs v. Allen 230, 234, 259 Dyott's Estate, In re 247 E. Earl Vane v. Rigden 183 Earle v. Grant 232 East India Co. v. Pullen 399 East Tennessee R. v. Hunt 540 East Tennessee R. v. Rogers 598, 600 East Tennessee R. v. Whittle 360, 443 Eastern R. v. Relief Fire Ins. Co. 116 Eastman v. Patterson 101 Eastman v. Sanborn 135, 137 Easton v. Dudley 383 Easton v. Hodges 203 Eaton V. Boston & Lowell R. 645 Eaton V. Delaware R. 621, 652 Eaton V. Lynde 115 Eddy V. Livingston 41, 50 Eden v. Lexington R. 654 Edmunds v. Merchants' Trans. Co. 490 Edson V. Weston 47 Edwards v. Carr 135, 137 Edwards v. Martin 172, 194, 195 Edwards v. Sherratt 377 Edwards v. Steamer Cahawba 446, 477 Edwards v. Todd 534 Edwards v. White Line Transit Co. 428, 498 Eichelberger v. Murdock 178, 187, 241 Ela V. American Merchants' Union Express Co. 496 Elcox V. Hill 304, 312 Elder v. Rouse 246 Eldridge v. Adams 154 Eldridge v. Hill 41 Elkins V. Boston & Maine R. 345, 346, 352, 357, 568, 571 Ellet V. St. Louis R. 640, 652 Elliott V. Rossell 338, 348, 355, 573 Elliott V. Western R. 657, 658 Ellis V. Hamlen 111 TABLE OF CASES. xliii Section Ellis V. Narragansett Steamship Co. G42 Ellis V. Tui-ner 4.')0 Ellis V. Willard 477 Ellsworth V. Tartt 615 Elmore v. Sands 627, 029 Elsee V. Gatward 34, 71, 94, 100 Elwell V. Grand Junction K. 579 Elwell V. Skiddy 428, 5:50 Emery v. Kersey 368 Empire Trans. Co. v. Wallace 410, 437 Empire Trans. Co. v. Wamsutta Oil Co. 456 Engel V. Lumber Co. 115 English V. Delaware Canal Co. <)58 English V. McElroy 172, 235 English V. Ocean Steam Nav. Co. 477 Epps V. Hinds 290, 299, 300, 302 Erie Bank v. Smith 204, 205 Erie K. v. Lockwood 456, 603 Erie R. v. Wilcox 392 Erwin v. Arthur 119, 159 Esmay v. Fanning 81, 82 Estes V. Boothe 118 Estey V. Cooke 123 Eureka Springs R. v. Tinimons 361 European Royal ^Mail Co. v. Royal :\Iail Steam Packet Co. 159 Evans v. Atlanta R. 358, 606 Evans v. Dunbar 442 Evans v. Fitchburg R. 399, 442, 443 Evansville R. v. Baum 147 Evansville R. v. Marsh 600 Everett v. Saltus 566 E'vershed v. London R. 380, 485 Ewart V. Stark 329 Exchange Co. v. Caldwell 457 Exchange Ins. Co. v. Delaware Canal 354 Fairbanks v. Sargent 172, 240 Fairchild v. California Stage Co. 640 Fairchild v. Philadelphia R. 588 Fairchild v. Slocum 364, 572, 590, 592 Fairfax v. New York Central R. 466, 469, 669, 671, 675, 677, 694, 695, 696 Section Falcon, The 652 Fall River Bank v. Slade 241 Falmouth Bank v. Cape Cod Canal Co. 264 Farish v. Reigle 640, 642, 644, 645, 653 Farkas v. Powell 141 Farmers' Bank v. Champlain Trans. Co. 367, 506, 597 Farmers' &c. Bank v. Erie R. 461, 466, 475 Farnham v. Camden & Amboy R. 23, 478 Farnsworth v. Groot 640 Farrant v. Barnes 397, 424 Farrington v. Meek 122 Farrington v. South Boston R. 181 Farwell v. Importers Bank 181, 264 Faucett v. Nichols 293, 296, 312 Faulkner v. Hart 513 Faulkner v. Hill 185, 241, 247, 260 Faust V. South Carolina R. 428, 498 Faxon v. Mansiield 111 Fay V. Gray 234 Fay V. Steamer New World 25, 27, 336, 343 Fearn v. Richardson 476 Feige v. Michigan Central R. 485 Feige v. Michigan R. 520 Feinberg v. Delaware R. 442 Feital v. Middlesex R. 361, 618, 623, 653 Fell V. Knight 318, 319 Fellowes v. Gordon 34, 51 Feltman v. Gulf Brewery 100 Felton V. Chicago R. 643 Felton V. Hales 117, 154 Fenn v. Bittleston 142, 219 Fennell v. McCiowan 250 Fenner v. Buffalo, &c. R. 513 Fenwick v. Schmalz 459 Ferguson v. Cappeau 528, 575, 581 Ferguson v. Porter 34, 40, 51 Ferris v. Union Ferry Co. 354, 445 Field V. Brackett 135, 155 Field V. Chicago R. 454, 456, 474 Field V. Schieffelin 183 Fifth Ave. Bank v. Ferry Co. 182 Fillebrown v. Grand Trunk R. 470 Finn i;. Western R. 390, 397, 493 xliv TABLE OF CASES. Section Fiiiucaiie v. Small 23, 147 First National Bank v. Boyce 184, 219 First Nat. Bank v. Dean 190 First National Bank v. Graham 30, 36, 38, 44, 40, BO First Nat. Bank v. Harkness 190 First National Bank v. Kelly 104, 189, 190, 190 First National Bank v. Marietta R. 609, 686 First National Bank v. Nelson 184, 188, 193 First National Bank v. Ocean Na- tional Bank 9, 10, 30, 32, 35, 44, 50 First National Bank v. Root 120, 220, 225 Fish V. Chapman 337, 345, 347, 349, 461 Fisher, Ex parte 232 Fisher v. Bartlett 60 Fisher v. Bradford 220 Fisher v. Brown 253, 254 Fisher v. Fisher 181, 236, 246 Fisher v. Geddes 692 Fisher v. Kelsey 312 Fisher v. Kyle 18, 92, 139, 143 Fisk V. Newton 499, 506 Fitch V. easier 280 Fitch V. Newberry 373, 382, 544, 556 Fitchburg R. v. Gage 374, 376 Fitchburg R. v. Hanna 390, 534 Fitchburg & Worcester R. v. Hanna 592, 602 Fitzgerald v. Blocher 242, 201, 271 Fitzgerald v. Elliott 123 Fitzsimmons v. Southern Express Co. 496 Flanders Fire Insurance Co. 116 Flarty v. Odium 177 Flautt V. Lashley 346 Fletcher v. l^ickinson 235 Fletcher v. Harmon 232, 242, 246, 251 Flint V. Norwich Trans. Co. 643 Flint R. V. Weir 343, 562, 673, 686 Fluker v. Bullard 197 Foltz V. Stevens 118 Foote V. Brown 206 Foote V. Storrs 101 Section Forbes v. Boston R. 492 Ford V. Mitchell 385 Ford V. Parker 270, 271 Ford V. Simmons 23 Fordyce ■;;. IMcFlynn 393, 422 Forsythe v. Walker 397, 493 Forth V. Simpson 122 Fortune v. Harris 40, 72, 74, 76 Forward v. Pittard 23, 410, 411, 415, 439, 461, 516 Fosdick V. Greene 7, 66 Foster, JEx jjarte 264 Foster v. Berg 264 Foster v. Colby 548 Foster v. Essex Bank 11, 19, 26, 27, 30, 33, 36, 42, 43, 145, 147, 271 Foster v. Magill 167 Foster v. Pettibone 6 Fouldes V. Willoughby 139, 142 Foulkes V. Metropolitan R. 615, 616, 617, 639 Fowle V. Ward 254 Fowler v. Lock 147, 153 Fowles V. Great Western R. 603 Fowles V. Ward 234 Fox V. McGregor 327 Fox V. Nott 536 Foy V. London R. 639, 661 Fragano v. Long 566 Fraker v. Reeve 164, 172, 208, 238 Francesca, The 90, 101 Francia v. Joseph 181 Francis u. Castleman 101, 103, 104 Francis v. Dubuque R. 101, 103, 513, 516 Francis v. Shrader 90, 98, 104, 130, 135, 137 Franklin v. Neate 220 Franklin Bank v. Harris 189 Eraser v. Telegraph Construction Co. 402 Frazier v. Kansas City R. 379 Frederick v. Marquette R. 633 Free State, The 646 Freeman v. Birch 565, 507, 568 Freeman v. Newton 677 Freiberg v. Steenbock 119 French v. Reed 34 French v. Star Co. 428 TABLE OF CASES. xlv French v. Star Transp. Co Fridloy v. Boweii rnedliiiuler v. Texas R. Frli'ud V. Woods Frink v. Coe Friiik 0. Potter Frost V. riunib Frost V. Shaw Section , 498, 400 178 304 413 044 640, (io2 92, 94, 143 177 Fry V. Chartered Bank of India 548 Fry V. Louisville 11. 471, 530 Fuentes v. Montis 184 Fuller V. Bradley 340, 546 Fuller V. Coats 286, 302, 304, 310 Fuller V. Naugatuck R. 051 Fuller V. Parrish 100 Fulton V. Alexander 41, 50 Funkhouser r. Wagner 23 Furlow V. Gillian 6 Furinan v. Chicago R. 428, 569 Furness v. Union Bank 256 G. Gabay v. Lloyd * 442 Gaff V. O'Neil 98 Gage V. Tirrell 418, 446 Gaines i'. Union Trans. Co. 469, 470, 474 Galatea, The 046 Galena K. v. Loomis 647 Galena R. v. Rae 373, 377, 381, 383, 556 Gallin v. London R. 451, 656 Galveston R. v. Allison 604 Gamber v. Wolaver 104 Gammell v. Schley 122 Ganlcy v. Troy City Bank 44 Garden Bank v. Hunieston R. 190 Gardner v. Maxwell 23() Gardner v. New Haven R. 620 Gardner v. Smallwood 438 Garlick v. James 172, 237 Garnett v. Willan 450, 512 Garrard v. Moody 113, 123 Garrigues v. Coxe 446 Garrison v. Memphis 446 Garside v. Trent Nav. Co. 516, 517 Garton v. Bristol R. 451, 485, 587 Garton v. Bristol & Exeter R. 538 Seclion Garton v. Union City Nat. Bank 230 Gary v. Meagher Gass V. New York, &c. Gastenhofer v. Clair Gasway v. Atlanta R. Gates V. Chicago R. Gatlil'fe r. Bourne R Gay t?. Moss 367 502 280 044, 652, 078 491 411, 512, 579 167, 172, 197, 229 Geddes v. Bennett 193 Gee V. Metropolitan R. 652 Geismer v. Lake Shore R. 377 Gemmell v. Davis 178 Genet v. Ilowland 248 George, The 101 Georgia R. v. Cole 604 Georgia R. v. Gann 463 Georgia R. v. Phillips (J02 Georgia Southern R. v. Bigelow (i28 Gerber u. Monies 119 German Bank v. Renshaw 219, 233 GermaniaFire Ins. Co. v. Memphis R. 456, 467, 460 Geron v. Geron 212, 253, 254 Gibbon v. Paynton 36, 423, 450, 462,470 Gibbs V. Potter 481 Giblin i'. McMullen 16, 30, 35, 36, 43, 44, 50 Gibson r. Boyd 201,217 Gibson v. Culver 506, 512 Gibson v. Hatchett 101 Gib.son V. Sturge 533 Gilbart v. Dale 23 Gilbert v. Hoffman 322 Gile V. Libby 200, 295 Giles V. Fauntleroy 284, 668 Giles V. Grover 54 Gilkison v. Middleton 548 Gill I'. Manchester, &c. R. 365, 443, 451, 479, 592, 593, 594, 596 Gillenwater v. Madison R Gillespie v. Thompson (iillctt V. Ellis Gillett i\ Mawman Gilliat V. Lynch Gil lis V. Telegraph Co. Gilmore v. Carman Gilpin V. Howell Gilson V. Gwinn 41- 627 432 , 433 111 257 272 411 194 114, 122, 544 Gilson V. Martin 178, 212, 254, 259 xlvi TABLE OF CASES. Section Girard Fire Ins. Co. v. Marr 204, 237, 2G3 Gisbourn v. ITurst 345, 350 Gittings V. Nelson 175 Glasco V. New York R. 687 Gleason v. Beers 101 Gleason v. Goodrich Trans. Co. 386, 668, 680, 684 Glidden v. Mechanics Bank 230 Glyn V. East India Dock Co. 190, 195 Goddard v. Grand Trunk 11. 644 Goff V. Clinkard 338 Goins V. Western R. 636 Golden v. Manning 506 Goldsmidt v. Church Trustees 229, 236, 238, 249 Goldstein v. Hort 181, 224 Goodall V. Richardson 206, 208 Goodenow v. Dunn 175 Goodenow v. Snyder 28, 41 Goodfellow V. Meegan 23 Goodman v. Simonds 181 Goodrich v. Transportation Co. 379 Goodrich v. Willard 122 Goodwin v. Baltimore & Ohio R. 504 Goodwin v. Boston R. 652 Goodwin v. Mass. Loan Co. 184 Goodwin v. Mass. Trust Co. 256 Goodwin v. Robarts 172, 192 Goodwyn v. Douglas 567 Goold V. Chapin 517, 609 Gordon v. Great Western R. 520 Gordon v. Hutchinson 347, 350 Gordon v. Manchester R. 649 Gordon v. Silber 326 Gore V. Norwich Trans. Co. 680 Gosling V. Higgins 428, 523 Goss V. Emerson 220, 243 Gott V. Dinsmore 343, 469, 474, 574, 588 Gottberg v. Bank 183 Gottlieb V. Hartman 181 Gouger v. Jolly 462 Gould V. Central Trust Co. 264 Gould V. Hill 453 Govett V. Radnidge 560 Grace v. Adams 456, 466, 467, 470 Graff V. Bloomer 411 Graham v. Pacific R. 656 Grand Tower Co. v. Ullman 391 Section Granite Bank v. Richardson 244 Grant v. Newton 669 (Jrant v. Norway 394, 476 Grapeshot, The 166 Graves v. Hartford Steamboat Co. 511, 513 Graves v. Lake Shore R. 457 Graves v. Smith 128 Graves v. Ticknor 64 Gray v. Bates 23 Gray v. Carr 548 Gray v. Jackson 588, 600, 602 Gray v. Merriam 43 Gray v. Missouri River Packet Co. 336, 343, 344 Great Northern R. v. Harrison 620, 656 Great Northern R. v. Morville 461 Great Northern R. v. Shepherd 673, 687 Great Northern R. v. Swaffield 499, 500, 515 Great Western R. v. Blake 616, 617 Great Western R. v. Braid 640 Great Western R. v. Goodman 672, 689 Great Western R. v. Pocock 629, 630, 663 Great Western R. v. Redmayne 583 Great Western R. v. Sutton 374, 485, 538, 587 Green v. Birchard 27 Green v. Boston R. 458 Green v. Boston & Lowell R. 583 Green v. Clarke 565, 571 Green v. Hollingsworth 72, 81, 82 Green v. McNamara 147 Greenleaf v. Dows 8 Greenwood v. Cooper 394 Gregg V. Illinois R. 500 Gregg V. Wyman 92 Gregory v. Stryker 99 Gregory v. West Midland R. 451, 479 Greismer v. Lake Shore R. 429 Grey v. Mobile Trade Co. 446, 478 Griffith V. Zipperwick 16, 35, 37, 44, 50 Grigsby v. Chappell 354 Grill V. Collier 446, 452 Grill V. Iron Screw Collier Co. 16 TAI5LE OF CASES. Xl vn Section Grindle r. Eastern Ex. Co. 488, 583 Grinnell v. Cook 122, 20(), 320 Grinnell v. Western Union T cleg. Co. 272 Griswold v. New York K. 020, OaO Grosvenor v. New York Central H. 380, 387 Grove v. Brien 537 Grove v. Roberts 2U8 Grover Sewing Machine Co. v. Mis- souri Pacific R. GDI Guenther v. Cary 240 Guillanme v. Transp. Co. 407 Gulf R. V. Levi 377 Gulf R. V. McGown 050 Gulf R. V. Trawick 472 Gullcdge V. Howard 35, 50 Gulliver v. Adams Ex. Co. 517 Gunsel v. McDonnell 203 H. Haas V. Kansas City R. 377 Haas V. Taylor 23 Hackett v. Boston R. 582 Hadd V. U. S. Express Co. 400, 468 Hadley v. Baxendale 583 Hadley v. Cross 153 Hadley v. Musselman 150 Hadley v. Upshaw 304 Hagan v. Providence R. 064 Hagebush v. Ragland 08, 72 Hagedorn v. Whitniore 446 Hagerstown Bank v. Adams Ex. Co. 530, 584 Haigh V. Packet Co. 654, 656 Haines v. Chicago R. 673, 074, 680 Hakes v. Myrick 172, 182 Hale V. Barrett 123, 124 Hale V. New Jersey Steam Nav. Co. 354 Hales V. London 403, 404, 431 Hall V. Boston & Wore. R. 510 Hall V. Cheney 343, 344, 439, 552, 575, 581 Hall V. Corcoran 92, 94, 143 Hall V. Mayo 475 Hall V. Memphis R. 030 Hall V. IVnn. Co. 570 Hall r. Pike. 280,231,282 Section Hall r. Power 039 Hall V. lUnfro 354, 442, 445 Hallenbrake r. Fish 300 Hallgartcn v. Oldham 117 Halliday v. Hamilton 470 Halliday r. Ilujgate 172, 222, 254 Halliday r. St. Louis R. 598 Hallowell v. Blackstone Bank 248, 253 Halty V. IMarkel 101 Halyard v. Dechelman 101, 103, 104, 120 Hamblcton v. Central Ohio R. 181 Hamburg Co. v. Gattmau 073 Hamilton v. Elstner 101, 104 Hamilton v. Kennedy 122 Hamilton v. Nickerson 500, 510 Hamilton v. State Bank 230, 232, 248 Hamlin v. Great Northern R. 050 Hammond v. ]M'Clunes 530 Hammond v. North Eastern R. 020 Hancock v. Franklin Lis. Co. 230, 238, 241, 244, 250, 254, 200 Hancock v. Rand 281 Hand v. Baynes 404, 405, 440, 488 Handford v. Palmer 134, 137, 152 Hanna v. Holton 172, 206 Hannibal R. v. Swift 352, 302, 382, 393, 399, 502, 068, 672, 073, 087 Hanson v. European R. 644, 658, 664 Harding v. Coburn 175 Hare v. Fuller 115 Harker V. Dement 217 Harmon v. New York & Erie R. 427, 479 Harmony v. Bingham 459, 488 Harper v. Second Bank 245 Harrington v. King 3, 28, 29, 54 Harrington v. M'Shane 354, 368, 400 Harrington v. Snyder 135, 137, 141, 152, 155 Harris v. Grand Trunk R. 000 Harris v. Great Western R. 468, 690, 092 Harris v. Lombard KiO Harris v. Nicholas 147 Harris v. Northern Indiana R. 403, 422, 442, 443 Harris v. Packwood 450 xlviii TABLE OF CASES. Harris v. Rand Harris v. Stevens Harris v. Woodruff Harrison v. London K. Section 410 636, 639 122 451, 486 Harrison v. Roy 337, 347, 348, 349 Harrison v. Stewart 556 Hart V. Allen 140, 438 Hart V. Chicago R. 443, 485 Hart V. Penn^ R. 457, 479 Hart V. Rensselaer 696 Hart V. Ten Eyck 227 Hartan v. Eastern R. 615, 630 Harter v. Blanchard 53, 64 Hartford v. Jackson 150 Hartop V. Hoare 52, 54 Harvey v. Conn. R. 376 Harvey v. Epes 139, 141, 144 Harvey v. Murray 155 Harvey v. Rose 354 Harvey v. Terre Haute R. 115, 457 Haslain v. Adams Express Co. 345, 351, 514 Hasse v. Express Co. 507 Hastings v. Pepper 355, 403, 431, 439, 477 Hatcher v. Independence Bank 181 Hatchett v. Gibson 101, 103, 106 Hathaway v. Fall River Bank 263 Hathaway v. Haynes 173, 190 Hathorn v. Ely 516, 520 Havana Co. v. Ashurst 52 Hawcroft v. Great Northern R. 623 Hawes v. South Eastern R. 459 Hawkins v. Great Western R. 442, 479 Hawkins v. Hoffman 560, 672 Hawkins v. Providence, &c. R. 569 Hawley v. Smith 297 Hawthorn v. Hammond 318 Hayes v. Campbell 382 Hayes v. Paul 354 Hayes v. Welles 267, 423 Haynie v. Baylor 347 Haynie v. Waring 345 Hays V. Millar 354 Hays V. Riddle 201, 261 Hayward v. Rogers 234 Hazard v. Fiske 202 Hazard v. Manning 123 Hazard v. New Eng. Ins. Co. 415, 446 Section Hazeltine v. Weld 128 Headrick v. Virginia R. 482 Healey v. Gray 280, 296, 305 Heath v. Gr is wold 218 Heath v. Silverthorn Co. 172, 216 Hedges v. Hudson River R. 513 Hegeman v. Western R. 640, 641, 653 Held V. Vreeland 242 Heirn v. McCaughan 648, 661, 664 Heiserman v. Burlington R. 538, 587 Heller v. Chicago R. 443 Helm V. Meyer 175, 196 Helsby v. Mears 364, 462, 472 Hemphill v. Chenie 511, 516 Henderson v. London R. 484 Henderson v. Louisville R. 683, 686 Henderson v. New York 637 Henderson v. Ship Maid of Orleans 440 Henderson v. Stevenson 468, 690 Henderson v. Williams 119 Hendricks v. Mount 60 Henley v. Brooklyn Ice Co. 503 Henry v. Patterson 6 Henry v. Phil. Warehouse Co. 184 Herbert v. Markwell 304 Herman v. Drinkwater 50 Hersfield v. Adams 351 Hestonville R. v. Shields 230 Heugh V. Loudon R. 499 Hewett V. Chicago R. 381, 431, 474 Hewins v. Baker 197 Hibbard v. N. York & Erie R. 630, 658 Hibernia Association v. McGrath 41 Hibler v. McCartney 446, 456, 494 Hick V. Rodocanachi 540 Hickman v. Thomas 122, 326 Hickok V. Buck 150 Hickox V. Naugatuck R. 387, 391, 669, 677 Hicks V. Life Ins. Co. 239 Hicks V. Shields 533 Higgins V. Cherokee R. 620, 621 Higgins V. Hannibal R. 621, 652 Higgins V. Senior 568 Higgins V. Watervliet Turnpike Co. 658 Higmon v. Camody 135 Hill V. Burlington R. 605 TABLE OF CASES. xlix Hill V. Finisan Hill V. Leadbelter Hill V. Mitchell Hill V. Owen Hill V. Sturgeon Hill V. Syracuse R. Hill Manufacturiut' Co Section 232 634, 635 643 294 438, 439, 440 G29 V. Boston & Lowell R. 482, 592, 593, 002 Hill V. Providence Steamship Co. 482 Hilliard v. Goold 630 Hillis V. Chicago R. 46 Hillyard v. Crabtree 101, 104, 111, 112 Hilton V. Adams 285, 296 Hilton V. Tucker 189 Hilton V. Waring 236 Hinckley v. l'fi.ster 263 Hingston v. Wendt 643 Hinsdell j;. Weed 534, 636 Hinton v. Dibbin 16, 450, 462 Hoadley v. North. Trans. Co. 437, 464, 456, 467, 588 Hoare v. Parker 184, 185 Hobbs V. London R. 627, 648, 650, 661 Hobson V. Woolfolk 3, 47 Hodges V. Hurd 119 Hodgson V. Malcolm 412, 446 Hodkinson v. London R. 692 Hocger v. Chicago R. 671, 674 Holbrook v. Baker 178 Holden v. Liverpool Gas Co. 679 Holder v. Soulby 146, 278, 315 Holderness v. Collinson 122 Holford V. Adams 625 Holladay v. Kennard 418, 434, 437 Holliday v. CamscU 62 Hollingsworth v. Dow 122 Hollister v. Nowlen 337, 406, 461, 672 Holly V. Atlanta Street R. 614, 643 Holmes v. Bailey 197 Holmes v. Doane 650 Holroyd v. Marshall 176 Holt V. Westcott 635 Holton V. Smith 184 Homer v. Thwing 91, 94, 139 Honold V. Meyer 182 Hood V. New York & New Haven R. 593 Hooper v. London R. 696 Section Hooper v. Ramsbottom 185 Hooper v. Wells 454, 456 Hope V. Lawrence 230, 263 Hopkins v. Westcott 668, 690 Hopper V. Burness 630 Hopper u. Miller 115,154 Home V. Meakin 141, 143, 163 Hosea v. McCrory 307 Hot Springs R. v. Trippe 692 Hough 17. People's Ins. Co. 116 Ilouser V. Houser 236 Houser u. Kemp 169, 172 Ilouser V. Tully 302 Houston R. V. Adams 490, 620 Houston R. V. Ilarn 404, 679, 682 Houston R. V. Smith 374, 666 Houton V. Holliday 212, 269 How V. Kirchner 649 Howard v. Chicago R. 628 Howard v. Farr 164 Howard v. Macondray 648 Howard v. Roeben 26, 65 Howard v. Tucker 476 Howe Machine Co. v. Pease 288, 294 Howell V. Jackson 319 Howland v. Green way 428, 5.30 Howth V. Franklin 276, 288, 290 Hoyt V. Allen 578 Hubbell V. Blandy 40, 58 Hubbersty v. Ward 476 Hubert v. Creditors 196 Hubgh V. New Orleans R. 654 Hudson V. Baxendale 416 Hudson V. Kansas Pacific R. 6.36 Hudson V. Wilkinson 167, 169 Hudston V. Midland R. 668 Hufford V. Grand Rapids R. 634, 635, 658 Hughes V. Boyer 147 Hughes V. Great Western R. 677 Hughes V. Sun Ins. Co. 530 Huiett V. Swift 288, 293, 312 Hull V. East Line R. 660 Humphreys v. Perry 674 Humphreys v. Reed 652 Hunnewell v. Taber 446 Hunsaker v. Sturgis 212, 254, 259 Hunt V. Haskell 628, 660 Hunt V. Mississippi R. 477 Hunt V. New York R. 692 TABLE OF CASES. Section Hunt V. Wyman 3 Hunter v. Hamilton 248 Hunter v. Potts 44G Hunter v. Westbrook 569 Kurd V. West 81, 154 Hursh V. Byers 329 Hurst V. Coley 215, 256 Hurst V. Great Western R. 649 Hussey v. The Saragossa 4.'39 Hutchings v. Ladd 507 Hutchings v. Western R. 669 Hutchins v. Brackett 270 Hutchinson v. Coumionwealth 17, 107 Hutchinson v. Guion 423 Hutton V. Arnett 201 Hyatt V. Taylor 312 Hyde v. New York Steamship Co. 426 Hyde v. Noble 54 Hyde v. Trent Navigation Co. 411, 450, 506, 510, 512, 515, 516 Hyland v. Paul 135, 155 Hyman v. Nye 640 I. Idaho, The 82 Illinois Central R. v. Adams 442, 443, 479 Illinois Central R. v. Cobb 477 Illinois Central R. v. Copeland 598, 602, 616, 669, 696 Illinois Central R. v. Downey 147 Illinois Central R. v. Frankenburg 466 Illinois Central R. v. Johnson 631 Illinois Central R. v. McLellan 488 Illinois Central R. v. Smyser 386, 387, 390, 393, 474 Ilsley V. Stubbs 566 Independence Co. v. Burlington R. 503 Indianapolis R. v. Hall 647 Indianapolis R. v. Herndon 343, 490, 493, 550 Indianapolis R. v. Horst 656 Indianapolis R. v. Strain 442, 479 Ingalls V. Bills 640, 651, 653 Ingallsbee v. Wood 280, 293, 296 Section Ingate v. Christie 345, 348 Inger.soll v. Van Bokkelin 203 Inglebright v. Hanunond 8 Ingledew v. Northern R. 582 Insurance Co. v. Chase 116 Insurance Co. v. Kiger 117, 184 Insurance Co. v. Railroad Co. 588, 592, 594, 597 International R. v. Wentworth 472 a Inter- State Commerce Commission v. Baltimore R. 611 c Inter-State Commerce Commission v. Brumson 611 6 Inter-State Commerce Commission v. Cincinnati R. 611 e Inter-State Commerce Commission v. Lehigh Valley Co. 611 b Ireland v. Johnson 577 Isaack v. Clarke 45 Isaacs V. Third Avenue R. 644, 653 Isaacson v. New York Central R. 696 Jackman v. Partridge Jackson, Ex parte Jackson v. Cummins Jackson v. Isaacs Jackson v. Robinson Jackson v. Rogers 55 268 122 533 137 373 Jackson v. Sacramento Valley R. 513, 576 Jackson v. Second Avenue R. 644, 658 Jacobus V. St. Paul R. 652 Jalie V. Cardinal 281, 302, 304 Jarvis v. Rogers 181, 219, 234, 257 Jason, The 431 Jasper Trust Co. v. Kansas City R. 490 Jeanes's Appeal 210, 2.32 Jeffersonville R. v. Louisville Ferry Co. 108 Jeffersonville R. v. Rogers 630 Jeffersonville R. v. White 117, 121 Jeffries v. Fitchburg R. 554 Jellett V. St. Paul R. 582 Jencks v. Coleman 321, 354, 622, 623 Jenkins v. Bacon 40 Jenkins v. Pickett 357 TAI'.LE OF CASES. li Section Jennings v. Camp 1 1 1 Jennings v. Grand Trunk R. 457, 458 Jennings v. Great Nortliern R. 024, 030, 658 Jennings v. Rundall 91, l-JO Jerome v. McCarter 17'2, 222 Jerome v. Smith 6o0, 0;!1 Jersey City, The 115 Jessel V. Rath 477 Jesup V. City Rank 241 Jewett V. Olsen 428 Job V. Job 45 Joel V. Morison 147 John V. Racon 017, 030, 001 Johnson v. Campbell 110 Johnson v. Concord R. 029 Johnson v. Hill 320 Johnson v. Midland R. 321, 378, 0(i5 Johnson v. New York Central R. 351 Johnson v. Pensacola R. 374 Johnson v. Reynolds 280, 310 Johnson v. Richardson 288, 304 Johnson v. Stear 219, 231, 254 Johnson v. Stone 609 Johnson v. Strader 600 Johnson v. Tennessee R. 437 Johnson v. Tons of Coal 370 Johnson v. Willey 142 Johnston v. Crane 417, 433 Johnstone v. Richmond R. 403 Jones, In re 277 Jones V. Baldwin 203 Jones V. Cincinnati R. 604 Jones V. Gilmore 101 Jones V. Greenwood 101, 111 Jones V. Ilatchett 101 Jones V. Hawkins 230 Jones V. Morgan 101, 114, 135, 152 Jones V. Morrill 329 Jones V. Norwich Transp. Co. 692 Jones V. Page 153 Jones V. Pitcher 446, 575 Jones V. Richardson 175 Jones V. Thurmond 250 Jones V. Tyler 295, 297, 302 Jones V. Voorhees 461, 403, 408, 008, 609, 672, 690 Jordan r. Fall River R. 669, 677, 680 Jordan v. Plazard 677 Jordan v. New York R. 639 Section Joslyn V. Grand Trunk R. 491, 492, 493 Joy V. Winnisimmet Co. 639 Judson V. Western R. 387, 391, 437, 403, 608, 609 Julien V. Steamer Wade Hampton 039 K. Kansas City v. Lilley 386 Kansas City R. v. Higdon 685 Kansas City R, v. Morrison 668 Kansas Pacific R. v. Nichols 370, 479 Kansas Pacific R. v. Reynolds 473, 479 Kansas R. v. Fitzsimmons 303, (il8 Kaskaskia Bridge Co. v. Shannon 534 Kay V. AVheeler 415, 440 Kearney v. Boston & Worcester R. 054 Keefe v. Boston R. 002 Keeley v. Boston & Maine R. 029 Keenan v. Southworth 270, 271 Keiser v. Topping 199 Keith V. Pinkham 042 Keller v. Smith 110 Kelley v. Bowker 477 Kellogg V. Sweeney 283, 284, 299, 300, 302, 312 Kelly r. Patchell 118 Kelsey v. Berry 302, 304 Kelton V. Taylor 101 Kember v. Southern Express Co. 471 Kemp V. Coughtry 307, 308 Kemp V. Westbrook 172, 227, 244, 250 Kendall v. London R. 442 Kennard v. Burton 645 Kennedy v. Ashcraft 18, 73 Kennedy v. Rosier 206, 238 Kenney v. N. Y. Central R. 055 Kenrig v. Eggleston 423 Kent V. Buck 6 Kent V. Midland R. 092 Kent V. Shuckard 283 Kentucky Bridge Co. v. Louisville R. 353 Kentucky Central R. v. Thomas 621, 652 Kentucky Co. v. Ohio R. 540 lii TABLE OF CASES. Section Keokuk Packet Co. v. True 651, 652, 661 Kcr V. Mountain 625, 6(i0 Kerford v. Mondel 548 Kerr, In re 172 Kerr v. Willan 462 Kerr's Policy, In re 256 Kettle V. Bromsall 36, 51, 459 Kidney v. Persons 231 Kiff V. Old Colony R. 428 Kimball v. Hildreth 167, 202 Kimball v. Rutland R. 352, 360, 474, 479, 576 Kimball v. Rutland & Burlington R. 463 Kimball v. Western R. 513 Kinchelo v. Priest 29, 41 King V. Bates 3, 52, 56 King V. Green 180 King V. Richards 544 King V. Shepherd 338, 446 King V. Texas Banking Co. 230 King V. Texas Co. 249 Kingsford v. Marshall 446 Kinloch v. Craig 545 Kinney v. Central R. 656 Kinnick v. Chicago R. 393, 404, 431, 442, 479, 488 Kinsley v. Lake Shore R. 353, 684 Kirchner v. Venus 548 Kirkland v. Dinsmore 451, 466, 473 Kirkpatrick v. Kansas City R. 566 Kirkstall Brewery Co. v. Furness R. 579 Kirst V. Milwaukee R. 578 Kirtland v. Montgomery 29, 41, 98, 343 Kisten v. Hildebrand 276, 288, 291 Kittera's Estate 239, 253, 432 Klauber v. American Express Co. 406, 431 Knight V. Portland R. 593, 615, 639 Knight V. Providence R. 597, 610, 611, 615 Knight V. St. Louis R. 558 Knowles v. Atlantic R. 35, 36, 102 Knowles v. Dabney 459, 488 Knox V. Rives 343 Knox V. Turner 258 Kohler v. Hayes 3 Section Kohn V. Packard 506 Kohn V. Richmond R. 428 Koons V. Western Union Telegraph Co. 272 Kopitoff V. Wilson 402, 415 Rowing V. Manly 117 Kremer v. Southern Express Co. 499, 514 Krender v. Woolcott 397 Krohn v. Oechs 582 Krohn v. Sweeny 276, 278, 302, 312 Kuehn v. Wilson 104 Kyle V. Laurens R. 598 L. La Borde v. Ingraham 3 La Motte v. Angel 534 Ladd V. New Bedford R. 640 Lafarge v. Morgan 58 Lafaye v. Harris 383, 556 Laffrey v. Grummond 678 Lafourche Navigation Co. v. Collins 26, 29 Lain v. Gaither 82 Laing v. Colder 645 Lake Shore R. v. Bennett 377, 559, 576 Lake Shore R. v. Foster 679 Lake Shore R. v. Pierce 635 Lakeman v. Grinnell 387, 394, 582 Laloire v. Wiltz 219 Lamar v. New York Steamship Navi- gation Co. 375 Lamb v. Camden & Amboy R. 478 Lamb v. Tuckerman 359 Lamb v. Western R. 23 Lamberton v. Windom 206, 221, 236, 261 Lament v. Nashville R. 437 Lampley v. Scott 47, 50 Lanata v. Ship Henry Grinnell 552 Lanaux, Succession of 192 Lancaster Co. Bank v. Smith 20, 44, 50 Lane v. Boston & Albany R. 579, 581 Lane v. Cameron 73, 139 Lane v. Chadwick 560 a Lane v. Cotton 270, 309, 339, 378, 407 TABLE OF CASES. liii Section Lane v. Old Colony R. 546, 647 Lang V. I'enn. 11. 480 a Langdon v. Ilowells 0o2 Langloy v. Boston & Maine U. oOl Langton v. Wailo 172, 234, 254 Langton v. White 259 Langworthy v. New York, &c. R. 351, 542 Lanier v. Youngblood 304, 312 Latham v. Bank of India 100, 107, 172 Latliam v. Rutley 67G Laugher v. Pointer 147 Laughlin v. Chicago R. 606 Laurie v. Douglas 446 Laussatt v. Lippincott 184 Laveroni v. Drury 415, 440 Law I'. Hatcher 564, 505 Lawrence v. Denbreens 416 Lawrence v. Howard 280, 316 Lawrence v. Maxwell 210, 212, 234, 253, 259 Lawrence v. McCahnont 221, 225 Lawrence v. Minturn 417, 4o3, 5(!0 Lawrence v. Winona R. 597, 009 Lawson v. Worms 533 Lazier v. Nevin 230 Le Barron v. East Boston Ferry Co. 039, 041, 053, 088 Le Blanche v. London R. 027, 048, 050 Le Conteur v. London 399, 083 Le JIarchant v. Moore 222 Leach v. Kimball 107, 108 Learned Co. v. Fowler 113, 157 Leavy v. Kinsella 3, 122 Lebeau v. General Steam Navigation Co. 398, 427, 479 Leek t;. Maestaer 101, 104 Lecky v. McDcrmott 550 Ledyard v. Ilibbard 8 Lee V. Atkinson 139 Lee V. Baldwin 200, 225 Lee V. Kimball 499 Leech v. Baldwin 432, 534 Lees V. Uwight 60 Leeson v. Holt 401, 402 Loggott V. Great Northern R. 054 Lehman v. Skelton 124 Leigh V. Mobile R. 123, 125 Leigh V. Smith Leiper's Appeal Leitch V. Wells Lemon v. Chanslor Lemon t v. Lord Lenz V. H.arrison Leo V. St. Paul R. Leonard v. Dunton Section 380 183 179 614 404 107 (!U0 120 Leonard v. New York Central R. 300 Leonard v. New York, &c. Telegraph Co. 272 Leonard v. Winslow 543 Lethbridge v. Phillips 27 Leuckhart v. Cooper 122 Levi V. Lynn Horse Railroad Co. 362, 357 Levi's Case 222, 203 Levy V. Bergeron 47 Levy V. Louisville R. 604 Lewis, Ex parte 122, 127 Lewis V. Great Western R. 451, 407, 480 Lewis V. Hitchcock 318 Lewis V. Jewett 240 Lewis V. London R. 662 Lewis V. Ludwick 418 Lewis V. M'Kee 636 Lewis V. Mott 219, 530 Lewis V. Sleeping Car Co. 084, 690 Lewis V. Smith 354, 445 Lewis V. Western R. 504 Libby v. lugalls 490, 493, 497, 507 Liberty Bank v. Campbell 186 Lilley v. Doubleday 101, 106 Lillis V. St. Louis R. 629 Lincoln v. Gay 91, 99, 104 Lindley v. Richmond R. 593 Lipford V. Charlotte R. 488 Little V. Boston R. 439 Little V. Boston & Maine R. 398, 423, 4.39 Little V. Dusenberry 615, 018 Little Miami R. v. Wetmore 644, 053 Little Rock R. v. Conatser 373 Little Rock R. v. Cravens 473 Little Rock R. v. Dean 629 Little Rock R. v. Glidewell 363, 490 Little Rock R. v. Harper 478 Little Rock R. v. Hunter 078 Little Rock R. v. Miles 020, 021, 052 liv TABLE OF CASES. Section Little Rock R. v. St. Louis R. 611 c Little Rock R. v. Talbot 45G, 570 Liver Alkali Co. v. Johnson 348, 354, 451 Liverpool Steam Co. v. Phenix Co. 452, 455 Liverpool Steam Co. v. Phenix Ins. Co. 359 Livingston v. Story 213 Lloyd V. Barden 33 Lloyd V. Collier 446 Lloyd V. West Bi-anch Bank 30 Lobdell V. Merchants' Bank 236 Lobenstein v. Pritchett 29, 50 Lock Co. V. Railroad 593, 597, 599, 600, 602, 696 Lockwood V. Brantley 250 Lockwood V. Ewer 227 Loeschman v. Machin 139, 142 Loew V. Austin 251 Logan V. Mathews 23, 143 Logan V. Pontchartrain R. 675 London R. v. Bartlett 493 Lonergan v. Stewart 6, 8 Long V. Mobile R. 542, 543, 552, 560 Longmore v. Great "Western R. 639 Loomis V. Stave 172, 248 Lord V. Midland R. 16, 451 Lord Camoys v. Scurr 78 Lorent v. Kentring 528 Lough V. Outerbridge 374, 380 a Loughborough v. McNevin 253, 254 Louisiana State Bank v. Gaiennie 172, 236 Louisville R. v. Bigger 442 Louisville R. v. Brownlee 456, 466 Louisville R. v. Fleming 630 Louisville R. v. Gerson .343 Louisville R. v. Gilbert 473 Louisville R. v. Gilmer 513 Louisville R. v. Hartwell 409 V. Hedger 370, 479 V. Kelley 652 V. Queen Coal Co. 377 V. Sickings 652 Louisville R, Louisville R, Louisville R, Louisville R. Louisville R Snider 641 Louisville R. v. Thompson 620, 640, 652 Louisville R. v. Trent 479 Louisville R. v. Wilson 526 Section Louisville, &c. R. v. Mahan 692 Lovejoy v. Dolan 645 Lovejoy v. Jones 142 Loveland v. Burke 504, 519 Lovett V. Brown 126 Low V. Martin 122 Lowe V. Moss 404, 489, 586 Lowell Wire Fence Co. v. Sargent 597 Lowenburg v. Jones 600, 610 Loyd V. Lynchburg Bank 178 Lubbock V. Inglis 117 Lucas V. Milwaukee R. 621, 652 Lucas V. New Bedford R. 662 Lucas V. Trumbull 18, 139, 141, 144 Lucena v. Craufurd 116 Lucketts V. Townseud 249, 254 Ludden v. Leavitt 54 Lusk V. Belote 281, 290, 299, 316 Lygo V. Newbold 621 Lyle V. Barker 217 Lyon V. IMells 402, 403, 450 Lyon V. Smith 276 Lyons v. Hill 507 M. Machu V. London R. Mackill V. Wright Macklin v. Frazier 103, 108, Macklin v. London R. Macnee v. Gorst Macomber v. Parker 175, Macrow v. Great Western R. 668, 672, Madan v. Sherard 466, 468, Magdeburg v. Uihleir Magee v. Pacific Co. 281, Magnin v. Dinsmore 456, 457, Maguire v. Middlesex R. ]Mahon v. Blake ]\Iaignan v. New Orleans R. Mairs v. Taylor Malaney v. Taft Mallory v. Tioga R. Malone v. Boston & Worcester R. 467, 468, Malone v. Robinson Maltby v. Chapman 284, Manchester R. v. Brown 451, Manfield v. I\Iaitland 484 433 122 451 184 201 681 690 60 293 471 652 497 513 224 23 362 690 139 312 480 532 TAIJLE OF CASES. Iv Section Mangalore, The 682 Mann v. Birchard 454, 478, 570, 577 Mann v. White Hivir Log Co. 354 Manning v. Hoilcnbeck 320, 327 Manning v. Shiiver 248 Manning v. Wells 288, 290, 310 Manton v. Robinson 210 Maples V. New York II. 030, 031 Maria, The 101 Marine liank v. Fiske 173, 190, 490, 600 Marine Bank v. Fulton Bank 20 Mariner v. Smith 9, 10,21,20,29,32, 36, 44 Markham v. Brown 321 Markhani v. Jaudon 172, 230, 233, 230 Marner v. Bankcs 142 Maroncy v. Old Colony R. 028 Marquette R. v. Kirkwood GOO Marschuetz v. Wright 200 Marseilles Co. v. Morgan 127 Marsh v. Blyth 440 Marsh v. Ilorne 402, 471 Marsh v. Union Pacific R. 543, 552, on Marshall v. American Express Co. 489, 499, 514 Marshall v. Matson 030 Marshall v. New York Central R. 403 Martin, The 023 Martin v. Creditors 190 Martin v. Cuthbertson 73 Martin v. Great Indian R. 451, 502 Martin v. Great Northern R. 039 Martin v. Reid 193, 199, 229 Martin v. Salem Marine Ins. Co. 440 Marvin r. Treat 28 Maryland Fire Insurance Co. v. Dal- rymple 230, 233, 248 Maslin v. Baltimore R. 582, 020 Mason v. Lickbarrow 404, 528 Mason v. Thonip-son 280, 288, 290, 290, 299, 320 Mass. Loan & Trust Co. v. Fitchburg R. 570, 585 Mass. Trust Co. v. Fitchburg R. 584 Ma-ssiter v. Cooper 022 Mateer v. Brown 288, 291, 300, 313 Mather r. American Express Co. 583 Section Mathias v. Sellers 122, 123 Matteson r. New York Central R. 094 Matthew.s v. Rutherford 190 Matthews v. Warner 104 Maury v. Coyle 44, 50, 51 Maving v. Todd 450, 451 Maxwell v. Houston 118 May V. Hanson 393, 395, 445 May V. Harvey 02 May V. Sharp 200, 201 Mayall v. Boston & Maine R. 429 Maybee v. Tregent 477 Maybin v. South Carolina R. 351, 391 Mayhcw v. Fames 470 Maynard v. Buck 101 Mayo V. Avery 253, 203 Mayo V. lioston & Maine R. 052 Mayo V. Moore 230 Mayo V. Peterson 254 M'Carthy v. Goold 177 M'Conibie v. Davies 184 M'lntyre v. Carver 122 M'Kean v. M'lvor 490 M'Lean v. Walker 109, 253, 254 M'Manus v. Crickett 147 M'Neill V. Brooks 137 M'Quecn v. Great Western R. 484 McAndrew v. Whitlock 511 Mc Arthur v. Sears 410,412,413,414, 440 McCall V. Brock 411 McCalla v. Clark 215, 253 McCarthy v. Dublin R. 03:i, 037 IMcCarthy v. Wolfe 23, 101 McCarthy v. Young 79, 111 McCarty v. New York & Erie R. 513 McCaulcy v. Davidson 9, 51, 575 McCawley v. Furness R. 451, 050 McClary v. Sioux City 049 iSIcClenaghan v. Brock 043 McCluer v. Manch., &c. R. 301, 593 McClure v. Phila. R. 030, 033, 058 McCombie v. Davies 184 McConihe v. New York R. 99, 111 McCorniick v. Hudson River R. 008, 009 McCormick v. Pennsylvania Central R. 079 McCotter v. Hooker 578 McCoy V. Hock 122 Ivi TABLE OF CASES. Section McCoy V. K. & D. M. R. 442 McCranie v. Wood 418 McCuUoch V. McDonald 497 McCulloin V. Porter 101, 103 McCuUuiigh V. Hellweg 553 McDauiels v. Flower Brook Manuf. Co. 21G McDaniels v. Robinson 23, 280, 281, 284, 290, 291, 296 McDonald v. Bennett 122 McDonald v. Chicago R. 639 McDonald v. Edgerton 298 McDonald v. Snelling 147 McDonald v. Western R. 609 McDonougli V. Metropolitan R. 621 McDuffie V. Portland 372, 374, 380 McEacheran v. Michigan R. 603 McElroy v. Nashua & Lowell R. 640, 645 McElroy v. Railroad 629 McEntee v. N. J. Steamboat Co. 495 McEvers v. Steamboat Sangamon 135, 155 McEwen v. Jeffersonville R. 493 McGee v. Bast 34 McGill V. Monette 108, 154 McGill V. Rowand 373, 556, 668, 671, 672 McGinn v. Butler 103, 117 McHenry v. Railroad Co. 410, 582 McHugh V. Schlosser 319 McKay v. Hamblin 6, 35 McKee v. Owen 680 McKenney v. Haines 7 McKibbin v. Peck 530 McKinlay v. Chicago R. 644 McKinlay v. Morrish 446 McKinney v. Neil 645, 648 McLain v. Huffman 55 McLauchlin v. Lomas 141 McLean v. Burbank 617 McLean v. Fleming 475, 477, 548 McMahon v. Field 101, 106 McMahon v. Sloan 56, 73, 81 McManus v. Crickett 147 McManus v. Lancashire R. 450 McMasters v. Penn 448, 519 McMillan v. Michigan R. 512 McMillan v. Michigan Southern R. 597 Section McNabb v. Lockhart 50 McNeil V. Tenth Nat. Bank 233, 234 McPadden v. N. Y. Cent. R. 640, 652, 653 McQueen's Appeal 240, 245 Mead v. South- Western R. 567 Means v. Bank of Randall 179, 264 Mears v. London 154 Mechanics' Bank v. Barnett 236 Medawar v. Grand Hotel Co. 280, 297, 304, 312 Medfield v. Boston, &c. K. 455 Meesel v. Lynn R. 652 Meier v. Penn. R. 641, 653 Memphis R. v. Chastine 632 Memphis R. v. HoUoway 457, 606 Menetone v. Athawes 96, 111, 114 Mercantile Mut. Ins. Co. v. Chase 351 Merchants Bank v. Demere 178 Merchants Bank v. Guilmartin 36, 43 Merchants Bank v. Hibbard 173 Merchants Bank v. Livingston 182, 234 Merchants' Bank v. Thompson 240 Merchants Co. v. Furthmann 469 Merchants Co. v. Insurance Co. 374 Merchants' Despatch Trans. Co. v. Bolles 398, 423, 604, 609 Merchants' Nat. Bank v. Trenholm 184 Merchants' Press Co. v. Insurance Co. 611c Merchants' Shipping Co. v. Armitage 533 Merchants' Trans. Co. v. Leysor 474 IVIerchants' Trans. Co. v. Story 101 Meriau v. Funck 536 Merriam v. Childs 232 ]\Ierriam v. Hartford R. 388 Merrick v. Brainerd 429 Merrick v. Gordon 597 Merrick v. Webster 402 Merrifield v. Baker 172, 176, 214, 259, 263 Merrill v. Express Co. 472, 514, 520 Merrill v. Grinnell 668, 672 Merrill v. Ithaca 112 Merrimac, The 646 Merritt v. Claghorn 288, 293 TA15LE OF CASES. Ivii Scrtlon Merritt t>. Earle 410,413 Merritt v. Old Colony R. 121, o93 Mcrshoii V. Ilobonsack 345, 400, 414 Mclwin V. Butler 352, 489, 514 Merx V. Steamship Co. 448 Messenger v. I'unu 372, 374 Metcalf V. Hess 294 Metcalfe v. London R. 695 Metzger v. Franklin Bank 58 Meux V. Great Western K. 095 Meyer v. Dresser 490 Meyer v. Peck 475 Meyersteiu v. Barber 189, 190 Miami Co. v. Port Royal R. 5i9, 584 Michaels v. New York R. 391, 410, 008 Michaels v. New York Central R. 23, 437, 439 Michigan Central R. v. Boyd 409 Michigan Central R. ?;. Carrow 3, 25, 27, 330, 343, 009, 070, 073, 074, 080 Miciiigan Central R. v. Curtis 488 Micliigan Central K. v. Hale 454, 450, 403 Michigan Central R. v. Ward 512, 513 Michigan R. v. Bivens 512 Michigan Southern R. v. Bivens 440 Michigan Southern R. v. McDonough 370, 479, 485 Michigan Southern R. v. Shurtz 390, 391 Middlesex Bank v. Minot 230 Middleton v. Fowler 352, 672 Midland II. v. Bromley 23, 439, 092 Miles V. Cattle 64, 399, 079 Miles r. James 395 Milfordv. Wesley 310,312 Millard v. Missouri R. 094 Millcreek Township u. Brighton Stock Yards Co. 28 Miller v. Adsit 64 Miller w. Marston 122 Miller v. Peeples 285, 298, 313 Miller V. Pcnilleton 445 Miller y. Steam Navigation Co. 411 Millikin v. Dchon 167, 229 jMillon V. Salisbury 134, 137 Mills I'. Graham 27 Mills V. Michigan Central R. 009 Section Mills V. Shirley 329 Mills V. Stewart 203 Milne v. Douglass 592 Milwaukee R. v. Smith 588 Milwaukee & St. Paul R. v. Arms 004 Minder v. Pacific R. 074 Miner v. Norwich R. 637 Minna, The 115, 164 Minneapolis R. v, Betcher 245 Minor v. Staples 285, 297 Minter v. Pacific R. 472, 687 Minturn v. Warren Insurance Co. 531 Mississippi R. v. Kennedy 008 Missouri Co., lie 452 Missouri Pacific R. v. Beeson 407 Missouri Pacific R. v. McFadden 190, 477 Missouri R. v. Cornwall 455 Missouri R. v. Nevill 419 Mitchell V. Bass 243 Mitchell V. Chicago R. 652, 661 Mitchell V. Georgia R. 479, 486, 582 Mitchell V. Lancashii-e li. 451, 513, 520 Mitchell V. London R. 486 Mitchell V. Roberts 253, 264 Mitchell V. Woods 304, 312 Mobile, &c. R. v. Prewitt 496, 513 Mobile R. v. Copeland 698 Mobile R. v. Jarey 440 Mobile R. v. Williams 670 Moneypenny v. Ilartland 104 Monteith v. Kirkpatrick 610 Montgomery v. Evans 41, 66 Montgomery Co. v. Jlontgomery R. 154 Montgomery R. v. Kolb 386, 388 Montgomery R. v. Mooie 439, 592, 597 Mooers v. Larry 138 Moore v. American Trans. Co. 402 Moore v. Citi7X'ns' Bank 181 Moore v. Fitchburg R. 644 Moore v. Metropolitan R. 644, 658 Moore v. Michigan R. 411 Moore v. Sanborne 147 Moore v. Sheridiue 570 Moore v. State 4 Iviii TABLE OF CASES. Section Moors V. Kidder 184 Moors V. Washburn 178 Moors V. Wyman 201, 202 Moran v. Portland Steam Packet Co. 579, 695 Morehead v. Brown 101, 103 Mores v. Conham 211, 218 Moreton v. Hardern 148 Morewood v. PoUok 410, 446 Morgan v. Congdon 122 Morgan v. Dibble 51 1 Morgan v. Dod 167, 169 Morgan v. North American Insur- ance Co. 530 Morgan v. Ravey 288, 290, 304, 310 Morley v. Eastern Express Co. 578, 581 Morris & Co. v. Central R. 108 Morris Canal Co. v. Lewis 172, 208, 238 Morris R. v. Railroad Co. 593 Morrison v. Davis 410, 437, 446 Morrison v. Phillips Construction Co. 466, 467, 480 Morse v. Androscoggin R. 115 Morse v. Brainerd 602 Morse v. Conn. River R. 579 Morse v. Crawford 157 Morse v. Slue 338, 348, 355, 449, 573 Mors Le Blanch v. Wilson 545 Mortimore v. Ragsdale 117, 118 Morton v. Gloster 92 Moses V. Boston & Maine R. 390, 391, 513 Moss V. Bettis 347, 354 Mote V. Chicago, &c. R. 692, 695 Mott V. Pettit 4, 28, 57, 428 Moulton V. Phillips 101 Mowers v. Fethers 280, 293, 296, 303, 312, 313, 326 Movrry v. Wood 248 Muddle V. Stride 439, 478 Mudgett V. Bay State Steamboat Co. 680 Muehlhausen v. St. Louis R. 620 Mullen V. Morris 206, 239 Mulligan v. Illinois Central R. 466, 598, 603 Mulliner v. Florence 280, 296, 326, 327 Section Munn V. Baker 462, 475 Munn V. Illinois 375 Munson v. Porter 123 Munster v. South-Eastern R. 379, 397, 685 Murch V. Concord R. 352, 639 Murchison v. Sergent 304, 312 Murdock v. Boston & Albany R. 635, 664 Murdock v. Columbus Ins. Co. 167 Murphy v. Staton 439 Murphy v. Union R. 643, 658 Murray v. Clark 313 Murray v. Clarke 285, 295, 297 Murray v. Warner 560 Murrell v. Dixey 582 Muschamp v. Lancaster R. 348, 593, 596, 602 Myers v. Cottrill 284, 303, 313 Myers v. Walker 101 Mylton V. Midland R. 596 Mynard v. Syracuse R. 442, 446, 456, 479 Myrick v. Michigan R. 520, 600 Mytton V. Cock 17 Mytton V. Midland R. 696 N. Najac V. Boston & Lowell R. 600, 696 Napier v. Central Georgia Bank 245 Nash V. Mosher 107, 126, 142 Nashville R. v. David 400, 438 Nashville R. v. Estes 418, 428 Nashville R. v. Messino 621, 645, 657 Nashville R. v. Sprayberry 615 Nat. Bank v. Chicago R. 394 Nat. Bank v. Missouri R. 190 Nathan v. Shivers 550 National Bank v. Baker 248 National Bank v. Graham 30, 35, 43, 44, 101 National Line S. S. Co. v. Smart 692 Neal V. Wilmington R. 513, 516 Nealand v. Boston & Maine R. 692 Needles v. Howard 284, 296, 313 Negus V. Simpson 157, 159 Neil V. Rogers Co. 246 Neish V. Graham 848 TABLE OF CASES. lix Nellis V. New York R. Nelson v. Atlantic R. Nelson v. Brown Nelson v. Iverson Nelson v. Macintosh Nelson v. Stephenson Section 6:]0 652, 0(52 3, 60 28 530, 533 Nelson V. Woodruff 410, 459, 477 Nettles V. Railroad Co. 440 Nettles V. South Carolina R. 582 Nevan v. Roup 123 Nevin v. Pullman Palace Car Co. 353, 622 Nevins v. Bay State Steamboat Co. 408, 008, 090, 692 New Brunswick Steamboat Co. v. Tiers 413 New England Express Co. v. Maine Central R. 372, 380 New England Trust Co. v. Belting Co. 242, 243 New Haven Co. v. Campbell 640 New Jersey R. v. Kennard 052 New Jersey R. v. Pennsylvania R. 301, 398, 427, 474 New Jersey Steam Nav. Co. v. Mer- chants' Bank 351, 372, 383, 406, 453, 403, 656, 603, 608 New London Bank v. Lee 243 New Orleans H. v. Burke 643 New Orleans R. v. Faler 456 New Orleans R. v. Hurst 660 New Orleans R. v. Jope 644 New Stadt v. Adams 376 N. Y. Cent. R. v. Fraloff 670, 671, 672, 674, 691 N. Y. Cent. R. v. Standard Oil Co. 630 New York Nat. Bank v. Ocean Nat. Bank 30 New York Nav. Co. v. Young 536 New York R. v. Estill 683 New York R. v. Schuyler 477 New York, &c. Teleg. Co. v. Dryburg 272 Newall V. Royal Shipping Co. 432, 446, 448 Newbold v. "Wright 184 Newcomb v. Bost. & Lowell R. 493 Newell V. Smith 468, 477, 582, 001 Newhall v. Central Pacific R. 499 Section Newhall v. Paige 3, 9, 29, 90 Newman v. Bank 235 Newport Bridge Co. v. Douglass 230, 235, 241 Newson v. Axon 297, 300, 304 Newson v. Davis 245 Newton v. Fay 194, 210 NichoUs V. Roland , 136 Nichols V. Chicago R. 601 Nichols V. Holliday 329 Nichols V. Smith 391 Nicholson v. Chapman 28, 101, 113 Nicholson v. Willan 450, 401 Nicolls V. Bastard 80, 154, 571 Nisbet V. Macon Bank 182, 195 Nitro-Glycerine Case 471 Noble V. Milliken 284, 312 Noland v. Clark 200 Noles V. Marable 217 Norcross v. Norcross 281, 288, 297 Nordemeyer v. Loescher 643 Norfolk R. V. Harman 458 Norfolk R. V. Irvine 674 Norman v. Binuington 452 North V. Transportation Co. 611 North Penn. R. v. Bank 492 Northern R. v. Fitchburg R. 351, 391 Northern R. v. Page 627, 630 Northrop v. Syracuse R. 613 North-Western Bank v. Poynter 201, 202 Northwestern Fuel Co. v. Burlington R. 383 Norton v. Baxter 230, 263 Norway Plains Co. v. Boston & Maine R. 101, 103, 513, 516 Norwich Trans. Co. v. Flint 643 Notara v. Henderson 404 Noyes v. Rutland R. 593, 601 Nudd V. Montanye 82 Nugent V. Smith 333, 348, 355, 357, 370, 410, 436, 438, 439, 442 Nunn V. Georgia R. 661 Nutting V. Conn. River R. 697 0. O'Bannon v. Southern Express Co. 386 O'Brien v. Boston & Wore. R. 658 Ix TABLE OF CASES. O'Brien v. Bound O'Brien v. Gilclirist O'Brien v. N. Y. Cent. R. O'Brien v. Vaill Section 148 475 658 285 O'Bryan v. Kinney 4G6, 468 Obey, Tlie 646 Ocean S. S. Co. v. McAlpin 578 Odell V. Boston & Maine 11. 490 Ogden V. Lathrop 230, 234 Ogle V. Atkinson 60 Ohio & Mississippi R. v. Dickerson 621 Ohio & Mississippi R. v. Muhling 656 Ohio iS; Mississippi R. v. Yohe 428, 498 Ohio R. V. Nickless 656 Ohrloff V. Briscall 446, 452, 498 Oil Creek H. v. Clark 630 Olson V. Crossman 295, 304, 312 O'Neil V. N. Y. Cent. R. 608 O'Neill V. Keokuk 358 O'Neill V. Whigham 244, 245 Oppenheim v. White Lion Hotel Co. 284, 304, 305, 311 Oppenheiiner v. U. S. Ex. Co. 471, 472 Orange Bank v. Brown 558, 559 Orange County Bank v. Brown 423, 669 Orchard v. Rackstraw 326 Oregon Co. v. Hilmers 234 Oriflamme, The 642 Orndoff v. Adams Ex. Co. 471 O'Rourke v. Chicago R. 392 Orser v. Storms 80 Ortt V. Minneapolis R. 474, 600 Ostrander V. Brown 491, 511 Oswego Bank v. Doyle 117 Ouderkirk v. Central Bank 204 Ouimit V. Henshaw 668, 671, 692 Overland Mail Co. v. Carroll 458 Overlook v. Hills 206, 238 Overstreet v. Nunn 236, 260 Owen V. Louisville R. 472 Oxlade v. North-E astern R. 345, 378, 665 Oxley V. St. Louis R. 479 P. Section Pacific Co. V. Wallace 101 Pacific Express Co. v. Shearer 490 Packard v. Earle 514 Packard v. Getman 386, 560 Packard v. Northcraft 302 Packard v. Taylor 431, 699 Packet Co. v. Clough 639, 657, 661 Page V. Munro 488, 582 Page V. N. York Cent. R. 648 Paige V. Smith 363 Paint, The 112 Palfrey v. Portland R. 654 Palmer, In re 380 Palmer v. Grand Junction R. 462 Palmer v. London & South- Western R. 485 Palmer v. Railroad 630, 636, 664 Palmtag v. Doutrick 202 Pandorf v. Hamilton 446 Paragon, The 140 Pardee v. Drew 453, 668 Pardington v. South Wales R. 479 Park V. Preston 469 Parker v. Elagg 411 Parker v. Great Western R. 3-52 Parker ■;;. James 438 Parker v. Lombard 117, 499 Parker v. Marquis 90, 91, 107 Parker v. Metropolitan R. 637 Parker v. Milwaukee R. 513 Parker v. South-Eastern R. 692 Parker v. Tiffany 120 Parkhouse v. Forster 276, 278 Parkman v. Getman 394 Parks V. Hall 123, 210 Parmelee v. Fischer 582, 668 Parmelee v. Lowitz 350, 352, 676 Parmelee v. McNulty 352 Parrott v. Dearborn 45 Parshall v. Eggert 167, 193, 196, 199 Parsons v. Chicago R. 611 e Parsons v. Gingell 122 Parsons v. Hardy 410, 488, 489, 528 Parsons v. Overmire 191, 198 Parsons v. Winchell 149 Partee v. Bedford 169 Passenger R. v. Young 644, 658 Patscheider v. Great Western R. 692 Patten v. Baggs 106, 117, 119 TABLE OF CASES. Ixi Section Patten v. Johnson 692 Patterson v. Mclvcr 41 Pattison v. Syracuse National Bank 2!), ;](), 51, !»8 Patton r. Magrath 501 Paulitsch V. New York Central R. Pauly V. State Loan Co. 21G Payne v. Chicago R. G47 Paynter v. James 548, 540, 554 Pearson v. Dawson 123 Pearson v. Duane G23, 625, 043 Pease v. Delaware R. 658 Peck V. Neil 640 Peck V. New York Central R. 624 Peck V. Weeks 488, 575 Peebles v. Farrar 118 Peek V. North Staffordshire R, 20, 450, 451, 461, 484 Peet V. Chicago R. 403, 582 Peik V. Chicago R. 541 Peisch V. Ware 101, 112 Peixotti V. M'Laughlin 672 Pelton V. Rensselaer, &c. R. 613 Penibcrton Co. v. New York Central R. 456, 480 Pender v. Robbins 482 Pendleton v. Kinsley 644, 652 Peniston v. Chicago 642 Penn v. Buffalo & Erie R. 479 Penn. Co. v. Georgia R. 542 Pennewill v. Cullen 06, 101, 336, 348, 413 Pennington v. Philadelphia R. 628 Pennsylvania Co. v. Hine 620 Pennsylvania Co. v. Holderman 566 Pennsylvania Co. v. Miller 668, 674, 686, 602 Pennsylvania Co. v. Roy 353, 614 Penn.sylvania R. v. Butler 656 Pennsylvania R. v. Connell 615 Pennsylvania R. v. Fries 411, 434 Pennsylvania R. v. Henderson 656 Pennsylvania R. v. Kilgore 651 Penn.sylvania R. v. Knight 605 Pennsylvania R. v. Oil Works 542 Pennsylvania R. v. Spicker 628 Pennsylvania R. v. Zebe 662 Penny v. Porter 577 Penobscot Boom Co. v. Baker 103 Spctlon People V. Babcock 383 People V. Boston, &c. R. 375 People V. Chicago, &c. R. 378, 383 People V. Jones 276, 277 People V. New York Central R. 383 People V. New York R. 383, 556 People's Bank v. Clayton 181 People's Rank v. Etling 104 People's Bank v. Gayley 195 Peoria Bank v. Northern R. 492 Percy v. Millaudon 43 Perkins v. Boardman 327 Perkins v. Chicago R. 621 Perkins v. Portland R. 503, 507, 601 Perley v. N. Y. Central R. 687 Perry v. Central R. 639, 652 Perry v. Craig 250 Perry v. Thompson 467, 468 Peters v. Rylands 363, 618 Peters v. Scioto R. 538 Petersen v. Case 611 Peterson v. Chicago R. 696 Petitt V. First National Bank 189, 100 Petrie v. Clark 183 Petrie v. Pennsylvania R. 6.35 Petrocochino v. Bott 511 Pettibone v. Griswold 257 Pettigrew v. Barnum 284 Petty V. Overall 204 Pharr v. Collins 543 Phelps V. Bostwick 55, 120 Phelps V. Hill 404 Phelps V. Illinois Central R. 362, 377, 428 Phelps V. London R. 669 Phelps V. People 3, 4, 17, 28, 34, 94, 107 Phifer v. Carolina R. 604 Philadelphia & Reading R. v. Derby 652 Philadelphia R. v. Derby 147, 647, 656 Philadelphia R. v. Harper 418 Philadelphia R. v. Hoeflich 628 Pliiladelphia R. v. Rice 636 Phileo V. Sanford 431 Phillips V. Bigham 404, 431, 438 Phillips V. Clarke 446, 452 Phillips V. Earle 389, 308, 423 Ixii TABLE OF CASES. Phillips V. Edwards Phillips V. liodie Phillips V. Thompson Pickering v. Barclay Pickett V. Downer Section 4G2, 475 548 187, 242 446 506 Pickford v. Grand Junction R. 37;l, 375, 379, 382, 383, 556 Pier V. Finch 629, 630 Pierce v. Milwaukee R. 343 Pierce v. Winsor 397, 424 Pigot V. Cubley 229, 230, 253, 263 Pike V. Chicago R. 613 Pindell v. Grooms 177 Pinkerton v. Railroad 172, 194, 199 Pinkerton v. Woodward 276, 278, 281, 283, 288, 290, 292, 295, 300, 310 Pinney v. Wells 548 Piper V. Manny 297, 302 Pitlock V. Wells 348 Pittsburg R. v. Andrews 652 Pittsburgh R. v. Hannon 360 Pittsburgh R.v. Hazen 488 Pittsburgh R. v. Hinds 643, 645 Pittsburgh R. v. HoUowell 377, 383, 429 Pittsburgh R. v. McClurg 652 Pittsburgh R. v. Morton 378, 556 Pittsburgh R. v. Nuzum 649, 651 Pittsburgh R. v. Pillow 643, 653 Pittsburgh R. v. Williams 640 Plaisted v. Boston Steam Navigation Co. 414 Piatt V. Hibbard 101, 351, 517 Plott V. Chicago R. 660 Pollard V. Vinton 394, 464, 475, 476, 477 Pollock V. Landis 280, 329 Pomeroy v. Donaldson 354, 445 Pomeroy v. Smith 217, 221 Pontifex v. Midland R. 560 Poole V, Symonds 54 Porcher v. North Eastern R. 381, 418, 434 Portalis v. Tetley 184 Porter v. Hildebrand 668 Porter v. Rose 552 Porter v. Southern Express Co. 457 Porter v. Steamboat New England 660 Section Porterfield v. Humphreys 354, 442 Portland Bank v. Stubbs 475, 527 Post V. Tradesmen's Bank 187, 240, 254 Pothonier v. Dawson 327 Potter V. Lansing 570, 571 Potter V. SuHolk Ins. Co. 446 Potter V. The Majestic 690 Potter V. Thompson 172, 229, 230, 238, 253 Potts V. New York R. 543 Poucher v. New York Central R. 656 Poulton V. South-Western R. 147 Powder Co. v. Burkhardt 6, 99 Powell V. Henry 236 Powell V. Mills 352, 354, 410, 416 Powell V. Myers ' 490, 692 Powell V. Pennsylvania R. 443, 454, 456 Powell V. Pittsburg 629 Powell V. Robinson 118 Powers V. Davenport 403, 431 Powers V. Mitchell 101, 111 Powers V. Sixty Tons of Marble 127 Powhatan Co. v. Appomattox R. 607, 609 Pozzi V. Shipton 559, 575 Prall V. Tilt 234 Pratt V. Ogdensburg R. 422, 442, 479, 592 Pratt V. Railway Co. 608 Preston v. Prather 16, 21, 29, 37, 43, 50, 98 Price V. Hartshorn 417, 530 Price V. Oswego 490 Price V. Powell 512, 565, 570 Priestly v. Fernie 573 Prince v. Alabama Fair 90, 130 Pritchett v. Cook 6 Proctor V. Eastern R. 351 Proctor V. Nicholson 326 Proctor V. Whitcomb 218, 225 Profilet V. Hall 284, 304 Propeller Niagara v. Cordes 402, 404 Protection Ins. Co. v. Hall 116 Providence Thread Co. v. Aldrich 179, 188 Puffer Man. Co. v. Baker 3 Pulcifer v. Page 99 Pullman Car v. Martin 684 TABLE OF CASES, h Pullman Pull man PuUiiiau Pullman Pullman Purvis V, Putnam Putnam Putnam Section Car Co. V. Gavin C84 Palace Car v. Gavin 353 I'alace Car Co. v. Heed 628, 031, 064 Palace Car Co. v. Smith 277, 313, 353, 628, 680 Palace Co. v. Martin 353 . Coleman 302, 304, 310, 312 V. Broadway li. 023, 624, 643 V. Wood 440 V. Wyley 7 Q. 147 Quarman r. Burnett Queen i'. Kymer 277, 279, 284, 313, 318, 319 Quimby v. Boston & Maine R. 656 Quimby v. Vanderbilt 697, 616, 627, 650 R. Railroad v. Kilgore 651 Railroad v. Neel 388 Railroad Co. v. Androscoggin Mills 593, 604 Railroad Co. v. Aspell 652, 662 Railroad Co. v. Bank 178 Railroad Co. v. Barron 617, 654 Railroad Co. v. Berry 507 Railroad Co. v. Campbell 615, 696 Railroad Co. v. Fraloff 397, 423 Railroad Co. v. Fuller 637 Railroad Co. v. Harris 616 Railroad Co. v. Lockwood 16, 455, 456, 457, 473, 479, 656 Railroad Co. v. Manuf. Co. 466, 468, 513, 597, 598, 604, 609 Railroad Co. v. O'Donnell 428 Railroad Co. v. Pratt 305, 422, 442, 479, 592, 593, 597, 600 Railroad Co. v. Reeves 23, 410, 437, 439, 459 Railroad Co. v. Richmond 637 Railroad Co. v. Rockvpood 454 Railroad Co. v. Valleley 043, 658 Railway Co. v. McCarthy 593 Railway Co. v. Neel 477 Section Railway Co. v. Stevens 657 Railway Co. v. Whitton 654 Raisler v. Oliver 270, 271 Ranifley v. Leland 312 Ramsden i\ Boston & Albany R. 663 Rand v. Merchants' Despatch Co. 456 Rand v. State Nat. Bank 62 liandleson v. Murray 121 Rankin v. Craft 26, 55 Rankin v. McCullough 254 Rankin v. Memphis, &c. Packet Co. 499, 550 Raphael v. Bank of England 181 Raphael v. Pickford 403, 575 Rapp V. Palmer 550 Ratcliff V. Davis 250 Rathbone v. N. Y. Central R. 471 Rathbun v. Steamboat Co. 507, 508 Rawson, In re 167, 168, 193, 196, 199, 201, 202 Rawson v. Holland 51 '7, 609 Rawson v. Penn 4(i7, 690 Ray V. Tubbs 94, 137, 139 Raynor u. Chiles 115 Rea V. Forrest 242 Read v. Amidon 280, 304, 310 Read v. Great I'lastern R. 654 Read v. Spaulding 437 Readhead v. Midland R. 402, 640, 652, 653 Reading v. Menham 152, 155 Reamer v. Davis 117, 121 Reaves v. Waterman 414 Redmond v. Liverpool Steamboat Co. 511 Redpath v. Yaughan 413 Reed V. Riclianlson 519 Reed v. U. S. Express Co. 456 Reeves v. Capper 201, 202 Reeves v. Plough 206, 236, 261 Reichenbach v. McKeau 221 Reilly v. Rand 130 Reinstein v. Watts 106 Reizenstein v. Marquhardt 125 Relf V. Rapp 398, 423 Renneker v. South Carolina R. 662 Reno V. Hogan 454, 456 Rex V. Ivens 318 Reynolds v. Cridge 250 Rhone v. Lewis 183 Ixiv TABLE OF CASES. Section Rice V. Benedict 206, 208, 236, 239 Rice V. Boston & Worcester R. 513 Rice V. Hart 513, 009 Rice V. Kansas Pacific R . 454, 457 Rice V. Nixon 8 Rich V. Kneeland 354, 388 Rich V. Lambert 448 Richards v. Davis 208, 238, 244 Richards v. London R. 683, 692 Richards v. Roe 477 Richards v. Westcott 348, 350, 423, 668 Richardson v. Goddard 489, 511 Richardson v. Great Eastern R. 641 Richardson v. Ins. Co. 208, 244 Richardson v. Mann 235 Richardson v. North-Eastern R. 444 Richardson v. Rich 538, 543, 552, 500 Richardson v. Rowntree 627, 689 Richmond v. Smith 288, 290, 302 Richmond R. v. Benson 495, 585 Richmond R. v. White 515 Riley v. Home 337, 372, 375, 377, 381, 398, 406, 439, 461 Rindge v. Colerain 154 Ringgold V. Haven 581, 582 Rintoul V. New York Central R. 458 Ripley v. New Jersey R. 628, 630 Ritchie v. Atkinson 530, 534 Rixford v. Smith 444 Robert v. Noyes 60, 118 Roberts v. Chittenden 439, 578 Roberts v. Graham 664 Roberts v. Thompson 206 Roberts v. Wyatt 150, 201 Roberts v. Yarboro 118, 120, 125 Robertson v. Kennedy 348, 350, 352 Robertson v. New York R. 621, 657 Robins v. Gray 326 Robinson v. Baker 544 Robinson v. Dunmore 337, 395, 399, 682 Robinson v. Hurley 244, 248 Robinson v. Knight 533 Robinson v. Larrabee 123 Robinson v. Memphis R. 477, 494 Robinson v. ]\Ierchants' Desp. Co. 467, 582 Robinson v. Rockland R. 658 Section Robinson v. Threadgill 40 Robson V. North-Eastern R. 662 Rockwell V. Proctor 290, 297, 300 Rodgers v. Grothe 123 Rodocanachi v. Elliott 446 Rogers v. Batchelor 186 Rogers v. Lambert 118 Rogers v. Murray 404 Rogers v. Stophel 96, 100, 101 Rogers v. Weir 118, 119, 123, 125 Rogers v. Wheeler 008 Rohl V. Parr 446 Rohrle v. Stidger 169, 236, 241, 248 Rome R. v. Sullivan 397, 506, 512, 598 Rommel v. Schambacher 319, 323 Rooth V. North-Eastern R. 451 Rooth V. Wilson 3:3, 30, 40, 54, 74 Roots V. Mason Co. 250 Rose V. Des Moines Valley R. 657 Rosenfeld v. Peoria R. 457, 471, 480 Rosenplaenter v. Roessle 312 Roskell V. Waterhouse 517 Ross V. Clark 81, 82, 1.j7 Ross V. Hill 51 Ross V. Mellin 281 Ross V. Missouri R. 686 Ross V. Troy & Boston R. 422 Roth V. Buffalo R. 092 Roulston V. McClelland 55, 50, 63 Rouser v. North R. 632 Rowland v. Jones 137, 144 Rowland v. New York R. 526 Rowland v. Plummer 179 Rowley v. Bigelow 476 Rowley v. Rice 167 Rozet V. McClellan 244 Rubenstein v. Cruikshanks 304 Rucker v. Missouri Pacific R. 620, 621 Rumsey v. North-Eastern R. 088, 089, 691 Runyan v. Caldwell 23 Rushforth v. Hadfield 519, 542 Russell V. Fagan 296 Russell V. Hester 206 Russell V. Koehler 101, 103, 104, 125 Russell V. Livingston 496 Russell V. Niemann 418 Russian Steam Nav. Co. v. Silva 475 TABLE OF CASES. Ixv Rust V. Ilausett Ryder v. Buiiini^ton R. Ryder v. Wombsvell Ryuiau v. Gerlacli Section 2(33 4'J7 50 181 Safe Deposit Co. v. Pollock 23, 30, m, ini, 103 Sager v. Porlsinouth R. 451, 450 Saint V. Siiiitli 320 Sainius V. Stewart 345 Sauipayo r. Salter 629 Sample Co. v. Detwiler 200 Samuel v. Cheney 4U0 Samuels v. McDonald 34 Sandeman v. Scurr 350, 573 Sanders v. Davis 220 Sanders v. Stuart 272 Sandcr.s v. Yanzeller 530 Sanders v. Young 354 Sander.son v. Lambci-ton ' 5f)8 Sanford v. Eighth Av. R. 058 Sanford v. Ilousatonic R. 504, 505, 509 Sanford v. Railroad Co. 380 Sankey Brook Coal Co., In re 177, 179 Sanquer v. London R. 490 Sargent v. Boston & Lowell R. 380 Sargent v. Gile 142 Sargent v. Morris 570 Sasseen v. Clark 284, 285, 290, 297, 311 Satterlee v. Groat 345, 340, 357 Savannah R. v. Bonaud 049 Savannah R. v. Mcintosh GOG, 090 Sawyer v. Corse 270 Sawyer v. Dulany 044 Sawyer v. Hannibal R. 052 Sayre v. Benevolent A.ssociation 375 Sayward v. Stevens 433, 475, 528, 529, 530, 550 Scaife v. Farrant 345, 350, 452 Schermer v. Neurath 23, 41 Schmidt v. Blood 101 Schmidt v. Chicago R. 390, 402 Schmidt v. Webb 123 Schneider v. Evans 375, 543, 592, 597, 010 Section School District v. Boston, &c. R. 658 Schopman v. Boston & Worcester R. OlS Schroyer V. Lynch 270,271 Schwerin v. McKie m, 101 Schwinger v. Raymond 580 Scott V. Allegiieny R. 434 Scott V. Boston, &c. Steamship Co. 582 Scott V. Crews 201, 205 Scott V. Erie K. 687 Scott V. London Dock Co. 478 Scott V. Nat. Bank of Chester Valley 35, 43, 50 Scranton v. Baxter 72, 70, 78 Sea Gull, The 040 Searight v. Bank 243 Scarle v. Laverick 35, 102 Sears v. Eastern R. 627, 648, 649, 650 Sears v. "Wills 545 Sears v. Wingate 394, 404, 475, 4', Second Nat. Bank v. Ocean Nat. Bank 29, 98 Second Nat. Bank v. Sproat 207 Selby V. Wilmington R. 442 Self V. Dunn 354 Selway v. Ilolloway 386 Semple Man. Co. v. Detwiler 245, 240 Setzar v. Butler 139 Sevier v. Vicksburg R. 601 Sewall V. Allen 307, 087 Sewall V. Boston Water Power Co. 181 Sexton V. Graham 8 Seybolt v. New York R. 656 Seymour v. Cook 294, 298 Shackleford v. Wilcox 433 Sharp V. Grey (54 1 Sharpc v. National Bank 229, 2.']0 Shaw V. Berry 288, 294 Shaw V. Gardner 475, 478 Shaw V. Kalor 54, 115 Shaw V. Merchants' Bank I'.K) Shaw r. Northern R. 678 Shaw V. Railroad Co. 475 Shaw V. Spencer 181, 183, 234 Shaw V. Wilshirc 168, 190, 202 Shaw V. York U. 459 Ixvi TABLE OF CASES. Section SLedd V. Troy & Boston R. 629 Sheffield v. London Bank 181 Sheldon v. Robinson 342, 357, 369 Sheldon v. Southern Express Co. 261 Shelton v. French 185, 218 Shenk v. I'hil. Steam Propeller Co. 490 Shepard v. De Bernales 534, 536 Shepherd v. Bristol & Exeter R. 513 Shepherd v. Bristol R. 513, 516 Shepherd v. Harrison 563, 570 Shepherd v. Naylor 477 Sheridan v. New Quay Co. 501 Sherley v. Billings 644 Sherman v. Chicago R. 633 Sherman v. Hudson River R. 499, 506, 582, 594, 597 Shields v. Davis 534, 564 Shiells V. Blackburne 36, 41, 46 Shiff V. New York Central R. 469, 603 Shillibeer v. Glyn 40 Ship Howard v. Wissman 416 Shipper v. Pennsylvania R. 375 Shoecraft v. Bailey 281, 283, 288, 295 Shoemaker v. Kingsbury 363, 618 Shrewsbury Institution's Appeal 178, 263 Shriver v. Sioux City R. 397, 426, 455, 578 Shultz V. Wall 304 Sibley v. Aldrich 288, 290, 294, 295 Sidaways v. Todd 101, 103 Siedenbach v. Riley 189 Silver v. Hale 488 Simmons v. Law 475 Simmons v. New Bedford Steamboat Co. 640, 645, 647 Simon v. Miller 284, 312 Simons v. Great "Western R. 462, 463, 468 Simpson v. Wrenn 82 Sims V. Bond 568 Simson v. London Omnibus Co. 640, 653 Sinclair u. Bowles 111 ' Siner v. Great Western R. 662 Singer Co. v. London R. 127 Singer Co. v. Miller 326, 329 Singer Manuf. Co. v. Clark 142, 181 Section Singleton v. Hilliard 411 Siordet v. Hall 354, 431 Siter V. Morrs 116 Skelley v. Kahn 40, 50 Skiff V. Stoddard 233 Skinner v. Upshaw 542 Slater v. South Carolina R. 410 Slaughter v. Green 8 Sleade v. Payne 489 Sleat V. Fagg 561 Slevin v. Morrow 206 Slocum V. Fairchild 454 Slouian V. Great Western R. 687 Small V. Robinson 114, 122, 181 Smiley v. Allen 61, 82 Smith V. Am. Express Co. 457 Smith V. Atkins 176 Smith V. Bailey 149 Smith V. Beattie 168, 169 Smith V. Boston & Maine R. 672, 673, 687 Smith V. Bouker 145 Smith V. Chicago R. 637 Smith V. Cook 96, 101, 103 Smith V. Dearlove 122 Smith V. Findley 539 Smith V. First Nat. Bank 23, 35, 43, 44, 50 Smith V. Foran 523, 524, 607 Smith V. Frost 101 Smith V. Great Eastern R. 639 Smith V. Griffith 582 Smith V. Home 461 Smith V. Keys 329 Smith V. Library Board 51, 77 Smith V. ]\Iardeu 122 Smith V. Meegan 35, 101, 104, 111 Smith V. Michigan R. 443 Smith V. Nashua R. 499, 516 Smith V. New Haven R. 370, 442 Smith V. New York Central R. 606 Smith V. Read 146, 316 Smith V. Savin 181, 249, 254 Smith V. Scott 277, 446 Smith V. Seward 354, 508, 558, 559 Smith V. Shepherd 413 Smith V. St. Paul R. 621 Smith V. Strout 244, 246 Smith V. Weguelin 166, 167 Smith V. Western R. 437 TABLE OF CASES. b XVll Section Smith V. Wliitman 438, 582 Smith V. Wright 43:] Smithurst v. Kdmuiuls 104, 172, 176 Smurtliwaite r. Wilkiiis 636 Smyrl v. Niolon 413 Sm-ad V. Watkiiis 320 Sneesby v. Lancasliire H. 399, 443 Siieider v. Geiss 302 Snider v. Adams Ex. 454, 450, 400 Snow V. Fitch burg K. 639 Somes V. British Empire Shipping Co. 250 Somes V. Shipping Co. 128 Soule V. Union Bank 172, 207 Soule V. White 201 South Alabama K. v. Heinlein 457, 479 South Alabama R. v. Wood 660, 578 South Carolina R. v. Nix 654, 658 South Sea Co. v. Duncomb 246 South-Western R. v. Paulk 652 Southcote's Case 449 Southern Ex. Co. v. Caperton 457 Southern Express Co. v. Crook 471 Southern Ex. Co. v. Dickson 490, 493 Southern Ex. Co. v. Everett 423 Southern Express Co. v. Hess 606 Southern Ex. Co. v. Ilunnicutt 457 Southern Ex. Co. v. Kaufman 397, 497 Southern Ex. Co. v. McVeigh 351 Southern Ex. Co. v. Newby 351, 466, 467 Southern Ex. Co. v. Van Meter 490 Southern II. v. Kendrick 651, 660 Southern Steamship Co. v. Sparks 128 Southgate, The 446 Southwestern R. v. Singleton 658 Southwestern R. v. Thornton 593, 594 Southwood V. Myers 270 Spade V. Hudson River R. 390, 677 Spangler v. Eicholtz 100, 101 Spence t;. Norfolk R. 565 Spencer v. Chodwick 428 Spencer v. Daggett 354 Spencer v. Lovejoy 628 Spencer v. Morgan 120 Spencer v. Sloan 178 Section Spencer's Case 310 Spice V. Bacon 312 Spinnetti v. Atlas S. S. Co. 446 Spofford V. Harlow 652 Spooner v. Brooklyn City 652 Spooner v. Manchester 140 Spooner v. Mattoon 35, 41 Sprague v. Smith 616, 617 Spring V. Hager 304 Spring V. Haskell 482, 582 Sproul V. Hemingway 354, 359 Spurr V. Wellman 580 Scjuier v. Squier 258, 259 Squire v. New York Central R. 454, 457, 470, 479 Squire v. Western Union Teleg. Co. 272 St. John V. Van Santvoord 519 St. Joseph R. V. Wheeler 621 St. Losky V. Davidson 204, 209, 225 St. Louis R. V. Cleary 403 St. Louis R. V. Hendricks 658 St. Louis R. V. Earned 492 St. Louis R. V. Leigh 634 St. Louis R. V. Montgomery 390 St. Louis R. V. Neel 592 St. Louis R. V. Valirius 641 St. Louis R. V. Weakly 463 St. Louis & Alton R. v. South 630 St. Paul V. Minneapolis R. 301, 591 Stacy V. Ice Co. 137 Standish v. Narragansett Steamship Co. 603 Stannard v. Prince 351 Stanton v. Bell 35, 38 Stanton v. Richardson 402 Starrett v. Barber 215 State V. Adams 172 State V. Bryant 68 State V. Campbell 630, 058 State V. Chovin 030 State V. Fitzpatrick 28, 58 State V. Goold 027, 030 State V. Grand Trunk R. 651, 654 State V. Matthews 270 State V. Overton 629 State V. Philadelphia R. 488, 649 State V. Ross 058 State V. State Line Steamship Co. 402 Ixviii TABLE OF CASES. Section State V. Steele 320, 321 State V. Thompson 6o0 Staub V. Kcndrick GG8 Steamboat Co. v. Atkins 54 Steamboat Crystal Palace r. Vander- pool G80, G84 Steamboat Farmer v. Macrow 523, 571 Steamboat Lynx v. King 404 Steamboat New World v. King 16, 341,020, 627, 647, 652, G56 Steamboat Sultana v. Chapman 446, 448, 474 Steamboat Virginia v. Kraft 543 Stearns v. Marsh 172, 178, 227, 229, 254, 260 Stebbins v. Brown 311 Steele v. Marsicano 117 Steele v. McTyer 346, 354, 412 Steers v. Liverpool Steamship Co. 690 Stager v. Bush 208 Steinman v. Wilkins 122 Steinweg v. Erie R. 486 Stephen v. Smith 658 Stephens v. Hartley 260 Stephens v. London R. 429 Stephenson v. Hart 490, 512, 565 Stephenson v. Price 107, 117, 120, 126 Stevens v. Bell 198, 251 Stevens v. Boston & Maine R. 108 Stevens v. Boston & Worcester R. 543, 544 Stevens v. Briggs 99 Stevens v. Hurlbut Bank 229, 230 Stevens v. Sayward 530, 560 Steves ■;;. Oswego R. 652 Stewart v. Davis 73, 82, 92, 139, 143, 178, 243 Stewart v. Despatch Co. 459 Stewart v. Frazier 40, 51, 55 Stewart v. Head 303, 313 Stewart v. London R. 462, 672, 689 Stewart v. London & North- Western R. 691 Stewart v. IMerchants' Trans. Co. 520 Stewart v. Parsons 312 Stewart v. Stone 6 Stewart v. Terre Haute R. 591 Section Stief V. Hart 221 Stiles V. Davis 428, 498 Stimson v. Conn. River R. 668 Stimson v. Jackson 392, 397, 422, 497 Stockdale v. Daiilop 565 Stockton V. Frey 640, 644, 652 Stokes V. Frazier 229, 230, 241 Stokes V. Saltonstall 640, 644, 645, 652, 653 StoUard v. Great Western R. 489 Stone V. Brown 172, 182 Stone V. Knowlton 577 Stone V. Rice 519 Storer v. Gowen 16 Storey v. Ashton 147 Storr V. Crowley 506 Straus V. Kansas City 662 Strauss v. County Hotel 280, 285, 302 Streeter v. Chicago R. 485 Strickland v. Turner 174 Strohn v. Detroit R. 466, 467, 649 Strong V. Nat. Banking Assoc. 172, 230, 254 Strong V. Wooster 241, 243 Strouss V. Wabash R. 686, 687, 692 Stuart V. Bigler 205, 247, 252 Stuart V. Crawley 442, 444 Stump V. Hutchinson 577 Sturgeon v. St. Louis R. 442, 479, 488 Sturm V. Boker 3, 6 Suarez v. The Washington 368, 385 Sullivan v. Park 550 Sullivan v. Philadelphia R. 645 Sullivan v. Scripture 149 Sullivan v. Thompson 514 Sultana v. Chapman 511 Sumner ■!;. Charlotte R. 404 Sumner v. Hamlet 189, 192 Sun Fire Office Co. v. Wright 116 Sunbolf V. Alford 326, 693 Sutro V. Fargo 23, 478 Sutton V. Buck 54, 115 Sutton V. Kettell 475 Swain v. Shepherd 565 Swan V. Manchester R. 630, 658 Swann v. Brown 103 Swarthout v. N. Jersey Steamboat Co. 640, 647 Swasey v. North Carolina R. 176 Sweet V. Barney 351, 493 TAIJLE OF CASES. Ixix Section Swetland v. Boston & Albany R. 410, 41G, 431,437 Swett V. Black 537 Swift V. Fletcher 248 Swift V. jMoseley 142 Swift V. Steamship Co. 592 Swift V. Tyson 178 Swindler v. Hilliard 23, 454, 450, 478 Swire t>. Leach 217, 221, 223 Taft V. Bowker 197, 199 Taintor r. Prendergast 508 Taliaferro v. Baltimore Bank 182 Talley v. Great Western R. 400, 083 Tahnage v. New York Bank 253 Talty V. Freedman's Savings Co. 172, 193, 219, 231, 254 Tamvaco v. Simpson 648 Tancil v. Seatoii 23, 33 Tanner v. Oil Creek R. 515 Tarbell v. Central R. 622 Tarbell v. Shipping Co. 511, 520 Tarbox v. Eastern Steamboat Co. 439, 459, 477 Tardos v. Chicago R. 610, 611 Tate V. Meek 552 Tattan v. Great Western R. 558, 559, 500, 575 Tattersall v. Nat. Steamship Co. 440 Taylor v. Chester 180 Taylor v. Downey 310 Taylor v. Grand Trunk R. 040, 041 Taylor v. Great Northern R. 488 Taylor v. Little Rock R. 004 Taylor v. Liverpool Steam Co. 446, 452 Taylor v. Monnot 284 Taylor v. Plumer 33 Taylor v. Secrist 103 Taylor v. Turner 173, 189, 220, 258 Taylor v. AVells 308 Tebbutt V. Bristol R. 644 Ten Broeck v. Wells 323 Terre Haute R. v. Vanatta 632 Teutonia Nat. Bank v. Loeb 254 Texas Banking Co. v. Turnley 172, 178, 181 Texas R. v. Bond 658 Section Texas R. v. Commission 611 o, 611 b, 611 c Texas R. v. Nicholson 373, 381, 383, 582 Texas R. v. Scott 020 Thayer v. Burchard 377 Thayer v. D wight 201 Thayer v. Hutchinson 28, 54 Thayer v. Putnam 237 Thetis, The 101 Thickstun v. Howard 294 Third Nat. Bank v. Boyd 30, 178, 204, 205, 209, 256 Thomas v. Boston & Providence R. 352, 353, 400, 513, 516 Thomas v. Cummi.skey 100, 110 Thomas v. Day 121, 504 Thomas v. Rhynuiey R. 617 Thomas v. Ship Morning Glory 478 Thomas v. Snyder 530 Thompson v. Dolliver 107, 189, 193 Thompson v. Fargo 493, 500 Thompson v. Harlow 137 Thompson v. Lacy 270 Thompson v. New Orleans R. 050, 651 212, 213 527 Thompson v. Patrick Thompson v. Small Thompson v. Toland 181, 183, 234, 259, 263 Thompson v. Whitaker Iron Co. 52 Thompson v. AVhitmore 446 Thoms V. Southard 196 Thomson v. Liverpool, &c. Steam Co. 520 Thomson v. Trail 527 Thorndike v. Bath 201 Thorne v. Deas 11, 34, 71, 94, 100 Thorpe v. N. Y. Central R. 614, 623 Threfall v. Borwick 320 Thurston v. Union Pacific R. 623, 625 Tierney v. New York Central R. 381, 404, 431, 459 Tindall v. Taylor 476, 527 Tirrell i'. Gage 530 Titsworth v. Winnegar 101 Todd V. Figley 84 Todd V. Old Colony R. 627, 652, 650 Toledo R. V. Baddeley 651 Toledo R. V. Beggs 620, 052 Ixx TABLE OF CASES. Section Toledo R. V. Merrimau 621 Toledo R. V. Roberts 575, 577, 582 Toledo R. V. Thompson 442 Toledo, &c. R. v. Hammond 008, 692 Tompkins v. R. 617 Tompkins v. Saltmarsh 17, 35, 50 Tons of Coal, In re 376, 379 Tooker v. Gormer 507 Tower v. Storage Co, 116 Tower v. Utica R. 680, 682 Towne v. "Wiley 27 Townsend v. New York Central R 631, 658, 064 Towson V. Havre de Grace Bank 284, 290, 296, 299 Tracy v. Palace Car Co 353 Tracy v. Wood 36, 40 Transportation Co. v. Downer 23, 446, 478 Transportation Line v. Hope 354 Trask v. Duvall 537 Travis v. Thompson 543, 610 Treadwell v. Davis 203, 217 Treadwin v. Great Eastern R. 484 Trefftz V. Canelli 20, 51, 58 Treiber v. Burrows 284 Trent Co., In re 112 Trent. Nav. Co. v. "Wood 338, 355, 410, 413 Treultet v. Barandon 181 Trotter v. McCall 139 Trowbridge v. Chapin 385 Trowbridge v. Schriever 51 Trowell v. Youmans 560 Tucker v. Cracklin 577 Tucker v. Taylor 123, 124 Tucker v. "Wilson 227 Tuckerman v. Brown 359 Tuckerman, &c. Trans. Co. v. Stephens 348 Tuller V. Talbot 644 Tully V. Terry 533 Tunnel v. Pettijohn 349 TurnbuU v. Citizens' Bank 578 Turner v. Huff 519 Turner v. North Beach R. 624 Turney v. Wilson 446 Turrill v. Crawley 326 Tuttle V. Robinson 199 Section Tyly V. Morrice 423 Tyrrell v. Eastern R. 645 U. Ultzen V. Nicols 45, 103 Union Bank v. Laird 187, 242 Union Bank v. Roberts 242, 254, 260 Union Bank v. Slocomb 263 Union Cattle Co. v. Trust Co. 238 Union Co. v. Mallory 101 Union Express Co. v. Graham 23, 426, 427, 454, 478 Union Freight Co. v. Winkley 535 Union Nat. Bank v. Roberts 230, 242 Union Pacific R. v. Goodridge 374 Union Pacific R. v. Moyer 469 Union Pacific R. v. Nichols 620, 652 Union Steamboat Co. v. Knapp 506, 511 Union Stock Yard Co. v. Mallory 117 Union Trust Co. v. Rigdon 237 Union Water Co. v. Pluming Co. 593 United Co. v. Cleveland 137 United States v. Hooe 178 United States v. New Orleans 246 United States v. Pacific Ex. Co. 578 United States v. Shea 160 United States Express Co. v. Back- man 351, 457 United States Express Co. v. Haines 603 United States Express Co. v. Harris 457 United States Express Co. v. Keefer 507, 565 United States Express Co. v. Meinto 217 United States Express Co. v. Root 583 United States Teleg. Co. v. Gilder- sleeve 272 Upham V. Barbour 210 Upshare v. Aidee 672 Vail V. Pacific R. 410, 431, 437, 439 Valette v. Mason 236 "Valieri v. Boyland 485 TABLE OF CASES. Ixxi Section Van Blarcom v. Broadway Bank 218, 2-JO, 241, 254,257, 202 Van Buskirk v. Huberts 010, 027, <>5U Van Gilder v. Chicago R 078, 0U2 Van Horn v. Kennit 008, 072, 080, 692 Van Santvoord v. St. John 590 Van Toll v. South-Eastern H. 692 Van Winkle v. Crowell t)2 Van Winkle v. Soutli Carolina K. 4;>9 Vance v. Throckmorton 280, 293, 302, 316 Vanderbilt v. Richmond Turnpike Co. 147 Vanderzee v. Willis 227 Vankirk v. rennsylvania R. 033 Varble v. Bigley 330, 337, 349, 354 Vaughan v. Menlove 72 Vaughan v. Providence R. 610 Vaughan v. Webster 23, 159 Vedder v. Fellows 630 Velasquez, The 646 Vermilye v. Adams Express Co. 181 Vermont, &c. R. v. Fitchburg R. 301 Vernard v. Hudson 433 Verner v. Sweitzer 345, 350, 352, 467, 408, 690 Vest V. Green 240, 241 Vicksburg R. v. Howe 661 Vigo Society v. Brumfiel 130 Vinal V. Spofford 122, 123 Vincent v. Cornell 142 Vincent v. Rather 101, 102, 103 Vinton v. Middlesex R. 643, 658 Violett V. Stettinius 528 Vitrified Pipes, la re 540, 552 Vose V. Morton 474, 475 W. W. & A. R. V. Kelly Wabash R. v. Illinois Waddle v. Owen Wade V. Lumber Co. Wade V. Thayer Wadsworth v. Alcott 665 541, 611 a 219 614 323 3 Wadsworth v. Thompson 229, 263 Wakefield v. South Boston R. 633 WaktMnan v. Gowdy 206, 207 Waland v. Elkins 364, 590, 644, 652 Walcott V. Keith Walker v. Jackson Walker v. Staples Walker v. Taylor Section 201 423 202 181 Walker v. Transportation Co. 482, 646 Walker v. York & North Midland R. 451, 461, 402 Wall V. Cameron 582 Wallace v. Canaday 104 Waller V. Parker 101 Walling V. Potter 276, 277, 280 Walsh V. Chicago R. 623 Walsh V. Porterfield 304 Walston V. Myers 573 Ward V. Atlantic Teleg. Co. 272 Ward V. New York Central R. 488, 582 Ward V. Ward 252 Warden v. Greer 416, 479 Ware, In re 159 Ware v. Gay 653 Ware v. Russell 264 Waring v. Gaskill 247 Warner v. Dunnavan 120 Warner v. Martin 184 Warner v. Western Trans. Co. 423 Warren v. Fitchburg R. 639 Washburn v. Jones 290 Washburn v. Pond 229, 230 Waterman v. Brown 250 Waterman v. Gibson 26 Water Power Co. v. Brown 238 Waters v. Merchants' Ins. Co. 430 Waters v. Monarch A.ssurance Co. 116 Watkins v. Roberts 74, 77, 82, 135 Watson V. Cross 299, 318, 326 Watson V. Memphis R. 601 Watts V. Boston & Lowell R. 390 Waugh V. Dcnham 544 Way y. Davidson 201, 202, 224 Wayland v. Mosely 475 Wear v. Gieason 286 Webb V. Page 679 Webster v. Fitchburg R. 621 Weed V. Barney 607 Weed V. Railway Co. 593 Weed V. Saratoga R. 677, 002 Weeks v. Goode 123, 125 Ixxii TABLE OF CASES. Section Weeks v. New York Central R. (343, C69, G82, G80 Weeks's Case 222 Weguelin v. Collier 530 Wehmann v. Minneapolis R. 592 Weir Plow Co. v. Porter 3, 6 Weisenger v. Taylor 288, 290, 302, 301 Welch V. Mandeville 172 Welch V. Pullman Car Co. 680 Welfare v. Brighton R. 630 Welfare v. London 653 Weller v. London R. 661 Welles V. Thornton 118 Wells V. Am. Express Co. 358, 501, 507 Wells V. Maine S. S. Co. 428, 498 Wells V. New York Central R. 656 Wells V. Steam Nav. Co. 354, 454 Wells V. Thomas 610 Wells V. Wells 204, 206 Wells V. Wilmington R. 386 Welsh V. Pittsburg R. 442, 479 Wentworth v. Day 28, 101, 113, 122 Wentworth v. McDuffie 18, 135, 137, 139, 140 Wentz V. Erie R. 633 Wernwag v. Philadelphia R. 497 Wertheimer v. Penn. R. 456, 576 West V. Carolina Life Ins. Co. 172, 246 West V. London 374 West V. Murph 55 West V. Steamboat Berlin 431, 446, 477 West V. Thomas 323 West Chester R. v. Miles 624 Westcott V. Fargo 457, 579 Western Marine & Fire Ins. Co., In re 28 Western R. v. Harwell 463 Western R. v. Little 520 Western Transp. Co. v. Barber 494 Western Union Co. v. Broesche 272 Western Union Co. v. Dubois 266 a, 272 Western Union Teleg. Co. v. Carew 272 Western Union Teleg. Co. v. Ward 272 Section Weston V. Grand Trunk R. 582 Westphal v. Ludlow 206 Weymouth v. Gile 109 Whaite v. Lancashire R. 484 Wheeler v. Newbould 206, 230, 230, 238 Wheeler v. Oceanic Co. 691 Wheelock v. Boston & Albany R. 639, 652 Wheelock v. Wheelright 139 Whelan v. Kinsley 250 Whelden v. Chappel 92, 139, 140 Whitaker v. Sumner 201, 203, 218 White V. Bascom 96, 101, 115, 154, 336, 524, 568 White V. Boulton 612 White V. Colorado Central R. 23, 101, 103 White V. Colorado R. 613 White V. Fitchburg R. 618 White V. Great Western R. 576 White V. GrifGn 154 White V. Humphery 90, 97, 98, 103, 516 White V. Madison 116 White V. McDonough 643, 644 White V. Norfolk Co. 618 White V. Phelps 172, 236 White V. Piatt 197, 201, 202, 224 White V. Rahway 230 White V. The Mary Ann 354 White V. Transportation Co. 480 White V. Van Kirk 475 White V. Vann 543 White V. Winnisimmet Co. 354, 395, 446, 503 White Mountains R. v. Bay State Iron Co. 17, 172, 250 Whitehead v. Greetham 40 Whitehead v. St. Louis R. 652 Whitehead v. Vanderbilt 66, 74, 94 Whitemore v. Haroldson 313 Whitesides v. Thurlkill 446 Whitfield V. Despencer 270 Whitin V. Paul 207 Whiting V. Eichelberger 167 Whitlock V. Heard 107, 114, 122, 126 Whitlock V. Stewart 255 Whitmore v. Steamboat Caroline 367, 669 TAI5LE OF CASES. IXXIU Section Whitney v. Brattlcboro Bank 35, 36, 44 Whitney v. Lee 10, 40, 50, 51, 102 Whitney v. Peay 218 Whitney v. Pullman Car Co. 683 Whitney v. Tibbits 189 Whitney Anns Co. v. Barlow 693 Whitteker v. Charleston Gas Co. 207 Whitten v. Wright 200, 2.J6 Whitwell V. Brigham 246 Whitworth v. Erie K. 591, 604 Wibert v. Erie R. 377 Wibert v. New York R. 488 Wichita Savings Bank v. Atchison R. 466, 475, 477 Wiggin V. Boston & Albany R. 398, 426 Wiggins V. Hathaway 270, 271 Wiggins V. Tumlin 6 Wilby V. West Cornwall R. 593 Wilcox V. Chicago R. 491 Wilco.ic V. Fairhaven Bank 178, 241, 243, 256 Wilcox V. Hogan 78 Wilcox V. Parraelee 348 Wilde V. Merchants' Despatch Trans- portation Co. 469 Wilde V. Transportation Co. 475 Wilder v. St. Johnsbury R. 373 Wiley V. First Nat. Bank 30 Wilkie V. Day 109 Wilkins r. Earle 313 Wilkinson v. Coverdale 34 Wilkinson v. Verity 56, 81 Willard v. Reinhart 278, 281 Willetts V. Hatch 209 William, The 36 Williams v. African Steamship Co. 487 Williams v. Baltimore R. 575 Williams v. Branson 446 Williams v. Grant 355, 412, 446 Williams v. Great Western R. 451 Williams v. Jones 09 Williams v. Porter 120 Williams v. Schooner St. Stephens 244 Williams v. Trust Co. 248 Williams v. Vanderbilt 616, 650 William.son v. Culpepper 169 Williamson v. McClure 244 Section Willner v. Morrel 119 Willock V. Railroad 409 Willoughby v. Horridge 354, 395, 445, 50.1 Wilson V. Anderton 60, 118 Wihson V. Brett 10, 74 Wilson V. California R. 585 Wilson V. Dickson 482 Wil.son t;. Grand Trunk R. 675, 092 Wilson V. Guyton 113, 122 Wilson V. Hamilton 354, 399, 443 Wilson V. Harry 404, 587, 592 Wilson V. Jones 116 Wil.son V. Knott 111 Wilson V. Little 108, 169, 172, 194, 229, 234, 248 Wilson V. London Steam Navigation Co. 511 Wilson V. Martin 122 Wilson V. Southern Pacific R. 23, 101, 103 Wilton V. Atlantic Steam Navigation Co. 689 Wilton V. Middlesex R. 657 Wiltshire Iron Co. v. Great Western R. 543 Windle v. Jordan 153 Wing V. New York R. 431 Winktield v. Packington 376 Winkley v. Foye 56 Winslow, The 121 Winslow V. Vermont R. 490, 513 Winter v. Pacific R. 429 Wintermute v. Clark 270 Winthrop Bank v. Jackson 201 Wintringham v. Hayes 23 Wise V. Great Western R. 451, 520 Wiser v. Chesley 23, 280, 300, 310 Wiswall V. Hall 108 Witbeck v. Holland 499, 514, 578 Withers v. Sandlin 202 Witowski V. Brennan 3, 4, 28, 34, 94, 101 Witzler v. Collins 578 Wolf V. American Express Co. 431, 437, 441 Wolf I'. Summers 693 Womack v. Western Union Telcg. Co. 272 Wood V. Erie R. 564 Ixxiv TABLE OF CASES. Wood V. Matthews Wood V. McClure Wood V. INIilwaukee R. Wood V. Morgan Section 1G9 72, 74 009 244 Woodard v. Eastern Counties R. 628, 630 Woodgate v. Great Western R. 451 Woodger v. Great Western R. 583 Woodman v. Chesley 167 Woodman v. Hubbard 92 Woodman v. Nottingham 154 Woodruff V. United States 272 Woodruff Co. V. Diehl 353, 684 Woodruff Co. V. Sherrard 467 Woods V. Devins 668 Woodward v. Booth 577 Woodward v. Cutter 147 Woodward v. Exposition Co. 192 Woodward v. Exposition R. 172, 243 Woodward v. Painter 90, 103 Woodworth v. Morse 291, 312 WooUey v. Louisville Banking Co. 178, 187, 257 Wooster v. Tarr 635, 536 Word V. Morgan 206 Wordsworth v. Willan 645 Worsdell, Li re 499 Worthington v. Tormey 172, 229, 234 Wright V. Caldwell 580, 678 Wright V. Melville 161 Wright V. Midland R. 617, 639, 640 Wright V. Paine 26, 51 Wright V. Snell 542, 565 Wright V. Wilcox 147, 148 Section Wyckoff V. Anthony 253 Wyckoff V. Queens County Ferry 354 Wyeth V. Market Bank 178 Wyld V. Pickford 450, 454, 484, 579 Wylie V. Northampton Bank 23, 30, 44, 50 Wynen v. Schappert 272 Yale V. Oliver 101 Yeatman v. Savings Institution 222 Yeomans v. Contra Steam Navigation Co. 620 York V. Grenaugh 296 Yorks Co. V. Central Railway 309, 454, 456 Young V. Kimball 122 Young V. Lambert 190 Young V. Leary 130, 155 Young V. Miles 8 Young V. Moeller 536 Young V. Smith 489, 511 Young V. Western Union Telegraph Co. 272 Yznaga v. Steamboat Richmond 669 Zell V. Dunkle 102, 105 Zenobia, The 636, 650 Zimmer v. N. Y. Central R. 457, 470 Zinn V. New Jersey Steamboat Co. 513, 585 Zouch V. Chesapeake R. 457 THE LAW OF BAILMENTS. PART I. BAILMENTS IN GENERAL. § 1. Nature of Bailment ; its Special or Temporary Character. — Bailment, as a branch of our law, relates exclusively to personal property. As the word itself, which is of French origin, literally imports, a delivery, or the placing of some- thing in another person's hands with its corresponding ac- ceptance, plays a leading part in the transaction which is denominated "bailment." Nor can such delivery be by way of intentionally clothing the recipient with the full rights of ownership in the thing, with the right of property or the final element of what we call a perfect title, since the trans- fer is only for some temporary purpose. That purpose may consist with a temporary enjoyment of the thing by the recipient, — where, for instance, I borrow or hire a wagon; or it may not, — as if my engagement should be to store, transport, or repair a wagon ; but in either case this tem- porary holder of the chattel has possession and the right of possession, without a full right of property, or with only, as it is sometimes said, a special property in the thing. We have seen that in a gift or sale of personalty the owner- ship is transferred : ^ in the one case without consideration, in the other with consideration. In a bailment, however, whether with or without consideration, rightful possession is 1 See 2 Schouler Pers. Prop., Parts V., VI. 1 1 §2 THE LAW OF BAILMENTS. [part I. found severed from the ownership ; and no full title vests in the holder of the thing. § 2. Bailment defined. — Among the numerous definitions, more or less comprehensive, of the word "bailment," to be found in our earlier books, this, perhaps, is the most fitting : A delivery of some chattel by one party to another, to be held according to the special purpose of the delivery, and to be returned or delivered over when that special purpose is accomplished. 1 1 Bouv. Diet. Bailment, eitingProf. Joel Parker. The earlier authorities are not quite harmonious, either as to the definition of the term or the com- prehensiveness of the subject. Mr. Justice Story says: "A bailment is a delivery of a thing in trust for some special object or purpose, and upon a contract, express or implied, to con- form to the object or purpose of the trust." Story Bailm. § 2. In this the learned author closely follows Black- stone, to whose language, however, he takes exception, as making use of one or two ambiguous expressions. lb. ; 2 Black. Com. 395, 45L Sir William Jones, on the other hand, has defined bailment as a delivery of goods "on a condition," or (as he elsewhere says), "in trust on a contract," that they shall be eventually restored or redelivered. Jones Bailm. 1, 117. Chancellor Kent, with his customary elegance and precision, expresses this same idea of a contemplated redeliv- ery or restoration, to narrow the defi- nition: "Bailment is a delivery of goods in trust, upon a contract ex- pressed or implied, that the trust shall be duly executed, and the goods restored by the bailee, as soon as the purpose of the bailment shall be answered." 2 Kent Com. 558. This difference of opinion between two contemporaneous American au- thors of pre-eminent merit provoked a controversy, which was carried on 2 in the foot-notes of their respective works without apparently touching the vital point at issue. Judge Story was criticised for applying the term " bailment " to consignments made to a factor, and generally "to cases in which," observes the Chancellor, "no return or delivery or redelivery to the owner or his agent is contemplated." 2 Kent Com. 558 n. To this Judge Story replies with spirit, citing not only the expressions of Lord Holt in Coggs V. Bernard (2 Ld. Raym. 917, 918), and some of the early digests, but Sir William Jones himself (Jones Bailm. 98), in support of his position, that the consignment to a factor con- stituted a case of bailment ; though to Kent's more sweeping objection (which was strong, even omitting the illustra- tion of the factor) he did not pointedly respond. Story Bailm. § 2 and n. The term " restoration " or "rede- livery" of a thing bailed seems to contemplate the delivering party, or his agent, as the final recipient of what was bailed. And while the loose expressions of Sir William Jones do not positively require this narrow sense, Chancellor Kent's care- ful definition hardly admits of a dif- ferent one. And yet this must narrow the subject too far ; for, dropping Judge Story's illustration, there is undeniably the case of a carrier or mandatary who commonly takes the chattel, charged with the duty of de- TAUT I.] BAILMENTS IN GENERAL. § 2 This definition conforms closely to the term from which it is derived ; for here as elsewhere our early ancestors laid great stress upon certain visible formalities attending a trans- fer. But the subject takes a wider scope at the present day ; for it is obvious that one may be a bailee, in many instances, where no actual delivery takes place ; as when an owner sells and then continues in possession for some temporary purpose, not to add cases of finding, seizure, or attachment. Some have held that a bailment may be said to exist when- ever the possession of a chattel is lawfully severed from its ownership or from any right derived from and representing ownership.^ This definition, however, is too broad to serve as the basis of a treatise like the present ; ^ though unques- tionably the bailment principle of responsibility is at the root of property management by executors, administrators, trustees, agents, and the like. Confining our subject within its proper limits, we shall essay a definition of our own, and it is this : That bailment consists in the rightful holding of a chattel by some party, under an obligation to return or deliver it over (or in certain instances hold as full owner ^) after some special purpose is accomplished. For a contract is not here indispensable, providing one holds the property and the law casts upon the holder an obligation of this kind. To the first delivery, or taking fully, succeeds a certain per- livering it over to some specified third In Stephen's Commentaries (the person, — perhaps to a new owner, modernized Blackstone for English Kent himself treats of such cases students),"bailment" is defined, con- under the head of bailments, as he formably to modern authorities, and should have done. But to a certain with substantial accuracy, as " the extent liis criticism of Judge Story's delivery of goods for some puqiose, definition should be thought just ; for upon a contract, express or iini)lied, to make "bailment" synonymous that, after the purpose has been ful- with any delivery of personal prop- filled, they shall be redelivered to the erty on special trust would be leading bailor, or otherwise dealt with ac- into an unfenced field. Executors or cording to his directions, or (as the administrators, and those like trustees case may be) kept till he reclaims or agents who manage property with them." Steph. Com. bk. 2, pt. 2, c. the right to invest and re-invest, are 5, p. 80. But cf. ib. bk. 2, pt. 2, c. 1. not in the strict sense bailees, though ^ See Holmes Com. Law, 105. the bailment principle as to care and ^ ggg note 1, snpra; Sclioul. Exrs. diligence applies so far as may be. & Admrs., § 314. ^ See § 3. 3 § 3 THE LAW OF BAILMENTS. [PART I. formance by the recipient which that delivery or taking con- templated ; and, this performance concluded, the thing is properly delivered again by the recipient, in general, though whether to him who first delivered or to some third party must depend upon the particular circumstances of the trans- action. This third party is not always personally specified at the outset, — as, for instance, where goods are bailed to a factor to sell, or to a warehouseman to deliver on order. The party first delivering the thing is the bailor ; the recipi- ent and conspicuous personage upon whom rests the duty of a final return or delivery over, is the bailee. In bailment law we seek to enforce rights and duties which grow out of a temporary relation towards specific personal property. There may exist our bailment relation, with or without a contract and the mutual understanding of parties ; culpable injury to the thing, moreover, may or may not be viewed as a tort ; but the rights and duties of this relation must be deduced from the circumstances, and neither the law of contracts apart nor the law of torts fully gauges the subject. S 3. Who may be Bailors and Bailees ; Constructive Bailees, etc. — Such is bailment : a division of the law whose main artery ramifies into the closest transactions of our daily life. Trustees, agents, factors, warehousemen, commission mer- chants, — all have duties and responsibilities in the handling of personal property, founded in its doctrines. The custody and management of estates involve the bailment principle. One can hardly take another's chattel, short of buying it, receiving it as a gift, or otherwise procuring the full owner- ship thereto, without making himself to some extent and in a certain sense, a bailee, except that an agent is in legal strictness a substituted j)erson. Where goods are sold and delivered under some such condition precedent as payment of the purchase-money, the buyer does not acquire at once the property in the goods, but, instead, holds them until they are paid for as a bailee.^ And, on the other hand, the seller 1 2 Schoul. Pers. Prop. § 276 et bk. 2, c. 3 ; Bishop v. Shillito, 2 B. seq. ; 2 Kent Com. 497 ; Benj. Sales, & Aid. 329 n. ; King v. Bates, 57 4 PART I.] BAILMENTS IX GENERAL. § 3 of goods who, for any cause, kee[)s them in his actual cus- tody, after the property has passed out of him to a buyer, becomes in effect the buyer's bailee, and is held resi)onsible accordingly ; as, for instance, where he undertakes to store them, subject to the buyer's order, or to send them to some particular address.^ Moreover, the delivery of personal property may be under some contract which creates a bail- ment for the time being, although permitting the bailee, at his option, to turn the transaction afterward into a sale ; as where a horse is taken on trial. ^ Where one receives chat- tels for a specified time, agreeing to pay for their use and to purchase when the time expires, the transaction begins as a bailment.^ Other close distinctions between sale and bail- ment might be suggested. Indeed, one may render himself liable as a constructive bailee under some judicial seizure, or through compulsion, or because of having embezzled or intermeddled with another's chattels, — a clear principle of law, by virtue of which some text-writers have felt justified in treating of captors, revenue officers, prize-agents, court officials, and salvors as special or quasi bailees for hire.* And while no one is to be pronounced a responsible bailee through the thrusting of things upon him utterly without his knowledge and acceptance, — as if one should stealthily put his parcel into my team while I was looking away, — the simple fact of knowingly holding pos- N. H. 446 ; Dunlap v. Gleason, 10 125 Penn. St. GOO ; Puffer Man. Co. Mich. 158; Harrington v. King, 121 v. Baker, 104 N. C. 148; 98 N. C..311. Mass. 209 ; La Borde v. Ingrahara, See also Sturm v. Boker, 150 U. S. 1 Nott & M. 410. 312 ; 103 Penn. St. 70. 1 See Kohlerr. Hayes, 41 Cal.455; ^ Nelson v. Brown, 44 Iowa, 455 2 Schoul. Pers. Prop. § 400 ; Duncan Hunt v. Wyman, 100 Mass. 199 V. Stone, 45 Vt. 118 ; 'Wadswortli v. [1892] 1 Q. B. 422 ; 7 111. App. 395 Alcott, 6 N. Y. 04. A conditional Weir Plow Co. v. Porter, 82 Mo. 23. sale on credit, which reserves no ^ Dando v. Foulds, 105 Penn. St. ownership in the seller pending pay- 94 ; 114 Penn. St. 003 ; 101 Cal. 37. ment, is no bailment. Brun.s. Co. v. * Story Bailm.§§ 130,013-024. See Hoover, 95 Ponn. St. 508. But liire Leavj ". Kin.sella, 39 Conn. 50 ; Hob- of personal property under agreement son v. Woolfolk, 23 La. Ann. 384; that a bill of sale will be executed on Newhall i". Paige, 10 Gray,3G() ; Cross full payment con.stitutes meanwhile a v. Brown, 41 N. H. 283 ; Witowski v. bailment only. Ditman v. Cottrell, Brennan, 41 N. Y. Super. 284. 5 § 6 THE LAW OF 15 AILMENTS. [PART I. session of property which belongs to another will oblige the possessor, no matter how he came by it, to apply a certain care and diligence, and stand to a certain bailment accounta- bility. Plainly, then, one may become a bailee pro tanto without private agreement, but under the imposition of a sound public policy, which regards the security of property rights; by one's chance finding, through force of circum- stance, in the course or without the course of official duty, as a thief or other wrongdoer, by actual or by constructive acceptance. And of all bailees in this sense, the wrongful possessor is in the law's eye the most strictly answerable,^ for his responsibility is absolute. § 4. The Same Subject; Public Officers, etc. — The State is not readily assumed to have undertaken towards the property of its citizens the duties of bailee ; nor will the merely temporary possession of private goods incidental to enforcing its inspection and revenue laws warrant such an inference.^ But a public officer may be held to account as bailee for articles coming into his possession, even though it was not his legal duty to receive them.^ Sheriffs, clerks of courts, and many other public functionaries incur various bailment obligations in the line of official duty.* § 5. The Same Subject; Creditor by way of Pledge. — Any creditor, we may add, may take security for his debt, by way of pledge ; and, when such security is in his own pos- session, while he is not its complete owner, his posture is essentially that of a bailee with reference thereto.^ 8 6. But Delivery back or over is intended ; Mutuum no Bailment. — But now observe the. limitations imposed by the definition with which we set out. In every simple bail- ment, a final return or delivery over of the thing bailed is legally contemplated, — of the thing repaired, it may be, or otherwise modified in condition, as circumstances require, or 1 See Phelps v. People, 72 N. Y. * See Witow-ski v. Brennan, 41 334 ; Michigan Central R. v. Carrow, N. Y. Super. 284 ; Cross v. Brown, 73 111. 348. 41 N. H. 283 ; Mott v. Pettit, 1 N. J. L. 2 Moore v. State,. 47 Md. 4G7. 298 ; Story Bailm. § 130. 3 Phelps V. People, 72 N. Y. 334. ^ See Pledge, post. 6 PART I.] BAILMENTS IN GENERAL. § G even witli a new commercial product as the result of the transaction,^ and yet of the thing with its identity un- chaiif^ed. The chattel must here continue one and the same identifiable chattel, while the special purpose of the holding or delivery is being accomplished. Hence, if the terms of the undertaking contemplated returning money instead, or any equivalent, the transaction would constitute, not a bail- ment, but a sale. For, as to equivalents, we should here note, the civil and common jurisprudence are at variance : the Roman law specifying one class as mutuum where it rests, absolutely, or as a matter of option, upon the bailee to deliver again, not the specific thing furnished him, but another of the same nature ; whereas the recognized doctrine of England and the United States is, that the instant the property in the identical thing so delivered passes com- pletely over to the new possessor, a sale takes effect ; or, in other words, the recipient's fixed obligation to render an equivalent is simply that of an owner having a further duty to perform. 2 The usual test of this distinction, so often perplexing, between our common-law bailment and sale, is the agreement of the parties, whether or no for a transfer, simultaneous Avith delivery, of the original owner's property in the thing. ^ But a bailuient may be made on the mutual understanding that the subsequent performance of a certain act by the bailee or his exercise of an option hereafter shall at once vest full title in him, and turn the transaction into a 1 As when milk is bailed to a dairy- the value thereof, the option is held man to be returned as cheese and inconsistent with a bailment relation, butter. Stewart v. Stone, 127 N. Y. Austin v. Seligman, 21 Blatch. 506. 500. But cf. Weir Plow Co. v. Porter, 82 2StoryBailm.§§371,415; 2Schoul. Mo. 23; Caldwell «. Hall, 60 Miss. Pers. Prop. §§ 38, 39 ; Chase v. Wash- 330. burn; 1 Ohio St. 244 ; Lonergan v. ^ Dunham v. Lee, 24 Vt. 432 ; Kent Stewart, 55 111. 45 ; McKay v. Ham- v. Buck, 45 Vt. 18 ; Furlow v. Gillian, blin, 40 Miss. 472 ; Foster v. Petti- 19 Tex. 250 ; Heniy v. Patterson, 57 bone, 7 N. Y. 433; Brown v. Hitch- Penn. St. 346; Prichett v. Cook, 62 cock, 28 Vt. 452. Thus, where one Penn. St. 193; 7 N. E. (Ind.) 311 ; receives a jeweller's sweepings for re- Powder Co. v. Burkhardt, 97 U. S. fining, having the option to return 110. The issue of sale or bailment the refined product or to account for may be left to the jury. 141 N. Y. 589. 7 §7 THE LAW OF BAILMENTS. [rAKT I. sale, the title remaining meanwhile in the seller. ^ And goods may be consigned in bailment to be sold upon oppor- tunity for mutual profit. ^ § 7. Bailment and Sale further distinguished. — The borrower or hirer of money at our law comes within reach of this gen- eral principle. Binding himself to return, not the identical money received, but any money to that amount, he makes himself, not a bailee, but the purchaser, so to speak, of that money, to do with it as he will ; or, we may better say, the debtor of the party from whom he received it. As a bor- rower, he has a like amount to pay back ; as hirer, the amount with interest. And yet one might buy a flock of sheep, shares of stock, or any other kind of chattel, with corresponding variations of contract, obliging himself to return, not money recompense, but equivalent things of the same sort.^ The distinction between a general deposit of 1 Supra, § 3 ; Nelson v. Brown, 44 Iowa, 455 ; 10 Daly, 214 ; Caldwell v. YL&W, supra; 111 Fenn. St. 589; 63 Wis. 331 ; Wiggins v. Tumlin, 96 Ga. 753. 2 Sturm 17. Boker, 150 U. S. 312 ; 59 Fed. 49. 3 See Bellows v. Denison, 9 N. H. 293 ; Putnam v. Wyley, 8 .Johns. 432 ; McKenney v. Haines, 63 Me. 74 ; Fos- dick V. Greene, 27 Ohio St. 484. Certain kinds of incorporeal chat- tels, like stocks or bonds, which have a fluctuating market value, must in this respect occasion per])lexity over the miituum transaction ; for the re- turn of an equal number of bonds or shares of a certain kind may be by no means tlie return of an equivalent in value. But as such transactions have usually the color of .speculation, the parties are assumed to have risked the consequences. McKenney v. Haines, 63 Me. 74 ; Fosdick v. Greene, 27 Ohio St. 484. In this last case, where the facts were quite unique, the court went so far as to uphold such a re- turn of stock, notwithstanding the corporation originally issuing had ceased to exist, its old stock had been wiped out, and all its rights and fran- chises had been transferred to a new company. Peculiar questions may arise in regard to such incorporeal chattels, where for the reorganization of an embarrassed company the hold- ers of bonds or stock give them to some committee for enforcement of rights or the issue of other certifi- cates instead. The usual legal effect of such transactions, consonant to the contract, must be to make such cus- todians holders in trust and essentially bailees and not buyers. See Coquard V. Wernse, 100 Mo. 137. Gaiv;s gives a succinct exposition of the Roman mutuum. "This chiefly relates," he says, "to things which are estimated by weight, number, or measure, such as money, wine, oil, corn, bronze, silver, gold. We trans- fer our property in these, on condi- tion that the receiver shall transfer back to us at a future time, not the same things, but other things of the same nature ; wherefore this contract PART I.] BAILMENTS IN GENERAL. § 8 money at a bank and the special deposit of a box of valu- ables for safe keeping- illustrates the point further. 8 8. The Same Subject; Grain Elevators. — An apparent exception to our doctrine of mutuum is sometimes stated in the case of grain stored in an elevator or warehouse, and mixed with the grain of the party who takes it in store. And several late cases hold that where one receives a cus- tomer's grain and stores it in a common bin with a like quality of his own, and if need be, of other depositors be- sides, his agreement being to return grain of a like quality on demand, the transaction is a bailment and not a sale.^ The effort here and in all cases of confusion of goods is to do justice between the parties to a convenient business custom, and uphold their rational intention. To hold the owners of such an admixture owners in common of the mass, contribu- tors and receiver included, would seem a fair conclusion ; supposing the receiver not to have mixed wrongfully, nor to have so confused grain of different qualities that the mass cannot be divided again.^ But, at all events, to pass the whole dominion and title over to the receiver as though the case were one of mutuum, or sale, would often violate the intent of such transactions, and tend to break up a useful business ; for this would result on the one hand in exposing the total mass to seizure by the receiver's creditors, and on the other in making him solely liable for its destruction by accidental fire. This question is one of great difficulty, and the law of is called mututim, because thereby to all demands. Local statute some- me?ailnient, a word brought over by the Norman invad- ers of l-highind, appears to have served its lirst turn as a term of pleading tantamount to " delivery." ^ Its elevation to the title-word of an important sul)ject can hardly have antedated the eighteenth century, though some meagre state- ments compiled from the Year-Books are to be found under this heading in Brooke and Rolle ; ^ while Sir Edward Coke, in his First Institutes, published in 1628, takes occasion, while discussing socage, to state a few points, and these not quite accurately, as to the bailee's liability.* Lord Holt, in the celebrated case of Coc/gs v. Bernard, which was decided at "Westminster Hall, during the second year of Queen Anne (1703), expounded for the first time, with an attempt at method, the English law of Bailments, and this with an energy of expression which has left an abiding influence.^ If any case deserves to be styled a leading one it is this ; for Bailments as a recognized topic of our common law here historically began. Yet the only point therein adjudicated was, that one who specially undertakes to carry safely and securely, though it be without hope of reward, must respond for the damage done through non-fulfilment of the special undertaking ; or, better perhaps, that any gratuitous bailee is responsible for gross negligence. And, taking this oppor- tunity to lay the first course of an English jurisprudence of bailments, his lordship found later materials so scarce that 1 Story Bailm. § 2 n. and cases ^ 2 Reeves Hist. Eng. Law, ed. cited; Clark v. Gaylord, 24 Conn. 1814, p. 383; 6 Am. Law Rev. 42. 484 ; McCauley v. Davidson, 10 Minn. ^ g^e Bro. Abr. (a.d. 157()); Rolle 418; First Nat. Bank r. Ocean Nat. Abr. (a.d. 1668), tit. " Bailement." Bank, 60 N.Y. 278 ; Mariner v. Smith, < Coke First Inst. 80 a, 89 b. 5 Hei.sk. 203 ; Newhall v. Paige, 10 ^ Coggs v. Bernard, 2 Ld. Raym. Gray, 368. 909 ; 1 Smith Ld. Cas. 283. 11 § 11 THE LAW OF BAILMENTS. [PART I. he had to draw heavily upon that hric-d-hrac importer of imperial remains, the ancient Bracton ; and he felt so little satisfied with his own Latin classification as to express a doubt whether lie had settled or unsettled the law in point. ^ § 11. The Same Subject; Sir 'Williain Jones; Judge Story. — Some three-quarters of a century later appeared Sir Will- iam Jones's famous Essay on Bailments : ^ the work of a travelling scholar, whose philanthropic zeal, purity of char- acter, and wondrous erudition insured him an applauding public. Laymen are not discriminating critics of a purely professional work ; and even with English practitioners it availed much that a dry subject was here expounded by a fellow-countryman in a flowing, picturesque style, and graced with learned allusions to strange codes which he, and not they, had studied. This Essay was put forth at a time when court precedents were still few ; and the linguist of twenty-eight languages may be said to have planned for Lord Holt's foundation a striking building, somewhat of the Byzantine pattern. Not strangely, however, the influence upon our coarse-grained jurisprudence of one who made Oriental literature his life-work, dipping into the common law only by way of diversion, waned rapidly after his stimu- lating personality was lost. Later and sounder jurists, praising his elegance of style, have come to criticise many of his statements as loose, and sometimes contradictory ; ^ yet the little book, which was the first and only fruit of a pro- jected series of tracts on comparative jurisprudence, served, in this respect at least, a consistent and truly useful purpose. To Sir William Jones succeeded a far more trustworthy guide for English and American law-students, — Mr. Justice 1 "I have said thus much in this C. J., in Coggs v. Bernard, 2 Ld. case because it is of great conse- Raym. 909, 920 (a.d. 1703). quence that the law should be settled ^ jones Bailm. (1781). in this point; but I don't know ^ gee, e.g., Kent, in Thorne v. whether I may have settled it, or Deas, 4 Johns. 100, and 2 Kent Com. may not rather have unsettled it. 566, 574 ; Story Bailm. Preface. But But however that may happen, I cf. Parker, C. J., in Foster v. Essex have stirred these points, which wiser Bank, 17 Mass. 499. heads in time may settle." Holt, 12 PART I.] BAILMENTS IX GENERAL. § 12 Story, — Avliose coniprcliensive and scholarly, yet practical treatise on Bailments received the freshest labors of a man who stood, while a youth, among the foremost in this coun- try, both to teach and apply the doctrines of jurisprudence. Nearly half a century ^ has elapsed since the volume, then of modest size, made its appearance ; it is still cited abroad with respect ; and no text-book in the language lias as yet sup- planted or even erowdrd it. § 12. The Same Subject; Final Comments. — Time makes rapid rubbish, however, of all law-books; and of the most useful which aim, in this day, to teach, the best, perhaps, to be said is, that they index well the learning down to date, and give an ini[)ulse to better methods. The influence of these three great men in succession. Lord Holt, Sir William Jones, and Story, upon one department of law, is quite re- markable, and must be largely accounted for by the slow accumulation of precedents while they lived. So rapidly has bailment law grown and expanded since the last of these flourished, that no fourth man can hope to keep any such mortmain on posterity. Variety, not to say confusion, attends our latest decisions. Two social contrivances alone, both of modern date, largely work out such a result : one, the deliv- ery, more especially as collateral security, of incorporeal kinds of personalty ; the other, the appliance of steam to tran.spor- tation. The bailment luminaries of other days are vanish- ing light-houses ; nor can any book hereafter keep up with the courts on such topics as Pledge, Innkeepers, and Com- mon Carriers, unless re-written once, at least, in twenty years. In one respect, all three of these teachers were at fault ; they based their common-law exposition too much upon the Rom.an system, or, rather, upon such fragments as had washed ashore from the wreck. Lord Holt set the example of a nomenclature and classilication which Sir William Jones could not but delight in ; and their example Story followed, impressed by authority, but not without a mental perception 1 WriUeu in 1880. 13 § 13 THE LAW OF BAILMENTS. [PART I. of something better. But the exotic that all of these aided to transphint and keep alive, never could flourish in Saxon soil. Tlie two later jurists, too, — admirers, and in a measure paraphrasts of Pothier, — joined him in perpetuating those logical wrestlings of Caius and Titius which European juris- prudence had come to possess as residuary legatee of the Pandects. How could such a plan of treatment serve well our law, when borrowed from an imperial code which draws the faintest line between things real and personal, knows nothing of the feudal land system, and never made a clear grouping under the theory of bailment at all ? ^ § 13. Bailment Classification as formerly made. — Bailment classification has usually followed, then, the divisions set forth by Lord Holt, and modified by Sir William Jones ;2 Blackstone, in his common-sense Commentaries, touching the subject too lightly to create an impression. ^ These divisions, together with their Roman titles and definitions, may thus be stated : I. Depositum, a Deposit, which is a naked bailment of personal property to be kept for the bailor without recom- pense, and to be delivered again according to the special pur- pose of the bailment. II. Mandatum, a Mandate, or the bailment of personal property as to which the bailee under- takes without recompense to do something. III. Commoda- TUM, a Loan for Use, or the bailment of personal property to be borrowed or used by the bailee for a time without reward ; but in our law, of course, to be restored m specie. IV. Pignus, a Pledge or Pawn, or the bailment of personal property to a creditor as security for some debt or engagement. V. LocA- Tio-CoNDUCTio, a Hiring, which is always for some reward. This last bailment, according to Story, admits of four sub- divisions : (1) Locatio rei, or the hiring of a thing for use ; (2) Locatio operis faciendi, or the hiring of work and labor upon a thing ; (3) Locatio custodice, or the hiring of care and services to be performed or bestowed on the thing delivered ; 1 See passim, Hadley's Introduc- 2 Ld. Eaym. 909 ; Jones Bailm. 35; lion to Roman Law, lee. IX. Story Bailm. § 8 ; 2 Kent Com. 558. 2 Holt, C. J., in Coggs v. Bernard, s 2 Bl. Com. 451. 14 PART I.] BAILMENTS IN GENERAL. § 14 (4) Locatio operis mercium vehendarum^ or the hiring of the carriage of goods from one phice to another.^ § 14. Bailment Classification preferable according to Recom- pense. — Now the mutual rights and liabilities of bailor and bailee, at our law, turn essentially, we shall find, upon the contemplation of recompense or no recompense. The funda- mental idea of our whole subject is that one whose pains are to go wholly unrewarded ought to be the most lightly bound ; a maxim which, however distasteful to the strict moralist, is thoroughly consonant with the teachings of the common law. And since no nice gradation by the amount of recompense is here attempted, bailments at common law may well be grouped under these three heads, as Judge Story himself has admitted : 2 (1) Those for the sole benefit of the party on the bailor's side, or, at least, without benefit to the bailee ;^ (2) Those for the sole benefit of the party on the bailee's side ; (3) Those for the benefit of both parties. In the first two instances, the benefit designed is unilateral ; in the third, bi-lateral or reciprocal. And we are to bear in mind that it is not the actual issue of the undertaking, but its intent, by which recompense is to be tested. Under such a classifica- tion the foregoing titles fall readily into place ; and the parade of Roman names imposes less readily upon the reader who reflects that there is much the same variety of transac- tions capable of performance, whether one is to get his re- ward or serve gratuitously. Once more, however, exceptional rules and an exceptional responsibility confront us, when we come to regard Innkeepers and Common Carriers : not that they are more or less than bailees, as to the method of per- formance, but because public policy sees fit to clothe those ^ Story Bailm.§§ 4-8 ; Jones Bailm. and makes four subclivisions, so as to 36, 117. Sir William Junes makes set locatio custodiiv apart, but three divisions of Locatio, defin- Mr. Stephen has well observed ing locatio operis faciemli as the per- that this Roman division does not formance or bestowal of work and entirely accommodate itself to the labor, or care and pains, upon the practical distinctions of our business thing delivered. Rut Story limiUs the life. Steph. Com. bk. 2, pt. 2, c. 5, sense of this locatio as in the text, p. 81, n. ^ story Bailm. § 3. 15 §1^ THE LAAV OF BAILMENTS. [part I. who regularly pursue those vocations with a bailment respon- sibility for personal property confided to them, unusually great, and in fact approximating insurance. Tliese, with Postmastei's, our public messengers, who also have a peculiar measure of responsibility, are conveniently treated under this additional head : (4) Exceptional Bailments. Our complete chart of bailments stands, then, like this : — I, Bailments for THE Bailor's sole Benefit; or with- out Benefit to THE Bailee. ' Including among the special purposes of such bailments more particularly : — (a) The gratuitous taking of a thing on deposit ; (6) the gratuitous performance of work upon a thing ; (c) the gratuitous carriage of a thing from place to place. Or, under the old method of classifi- cation : — (a) Depositum. (b, c) Mandatum, II. Bailments for THE Bailee's sole Benefit. (d) The lending of a thing ; (d) Commodatum. i.e., practically for its tem- porary enjoyment by the borrower. All of the foregoing are sometimes styled gratuitous bail- ments. in. Ordinary Bail ments foe Mutual Benefit. ' (a) The taking of a thing on deposit for reward ; (&) the performance of work upon a thing for reward ; (c) the carriage of a thing from place to place on re- ward ; (fZ) the hiring of a thing, i.e., for temporary en- joyment; also, (e) the pledge (e) Pignus. or pawn of a thing. (a) Locatio custodice. (b) Locatio operisfa- ciendi. (c) Locatio operis nier- cium vehendarum. (d) Locatio rei. IV. Exceptional Bailments. 16 (a) (ft) (c) Postmasters. Innkeepers. Common Caekiees. (a, c) A branch of Locatio operis mer- cium vehendarum. (b) A branch of Lo- catio custodice. I'AUT I.] BAILMENTS IN GENERAL. § 15 In all of the classes here enumerated, the bailment is seen to arise in re; and so as to involve delivery of a chattel for the accomplishment of some purpose towards it, to be fol- lowed by its final delivery back or over, when that purpose lias been accomplished. Thus the " hiring " spoken of ex- tends not to the hire of general work and service, but only to the hire for use or the hire of service, to be bestowed upon the specific thing. Our depositum, again, is not such a deposit as one makes over a bank counter, for that is taken to be accounted for as a debt ; nor, as former writers have technically used the word, does it designate even a deposit to be returned with identity undisturbed, unless, indeed, the trust were undertaken gratuitously ; though practically a warehouseman is a depositary who expects pay for his service. 3Iandatum, in the Roman law, has an agency sense far transcending the bailment mandatum of our English authors. In Pignus^ tlie gist of the transaction consists in the transferred possession of a thing by way of security. To these several matters we shall recur in place in later pages. § 15. Standard of Care and Diligence, etc., in Bailments. — What care and diligence towards the property in liis charge is exacted of a particular bailee, or wliat the standard of re- sponsibility, is the most momentous of all inquiries in bail- ments. The elementary principle is that, independently of some special contract by which the parties have regulated the matter for themselves consistently with public policy, or of some act of legislation, a bailee's care and diligence must be according to the recompense intended. We mark off our standard of measurement, slight^ ordinary^ great (or more than ordinary), to meet the case ; and so inversely for negli- gence, gross (or more than ordinary), ordinary, and slight, — if indeed one may say that negligence, in a logical sense, is ever permissible. Here, then, is the standard : — 17 §15 THE LAW OF BAILMENTS. [part I. I. In bailments for the bailor's sole benefit. II. In bailments for mu- tual benefit. III. In bailments for the bailee's sole benefit. IV. In exceptional bail- ments (Postmasters, Innkeepers, Common Carriers) . The measure of care and And the measure of neg- dilijjence exacted of the ligence for which he bailee is : — becomes answerable is : — = Slight. = Ordinary. = Gross (or more than ordinary). = Ordinary. Great (or more = Slight, than ordinary). An Exceptional Responsibility. (Approximating insurance in the two latter in- stances.) To illustrate this principle of bailment responsibility, let us take a pair of scales, having an index finger at the pivot, and two separate dishes with equal weights to stand for the respective interests of bailor and bailee. On a balance of interests, the index finger points upward, — " ordinary dili- gence ; viz., that which persons of the same class, of average prudence, are wont to bestow upon their own property under like conditions." But a special weight in either dish dis- turbing the balance, this index finger is thrown out ; and public policy of course disarranges the scales as might the pressure of a human hand. This homely illustration and the table preceding it may furnish the needful epitome of bailment responsibilitj^ The common law, indeed, takes a common-sense standard of com- parison, such as common-sense men know how to regulate their conduct by, and a common-sense jury to compel justice. Leaving purely moral duties to the forum of conscience, it makes consideration the leaven of contract obligation, and feather-edges bailment responsibility on either side of the quid pro quo. " Human experience," it says, " justifies the common expectation that the party who works for reward will take more heed than he who does not, and that he who reaps all the benefits of the transaction will be heedful to the utmost." 18 PART I.] BAILMENTS IN GENERAL. § 16 It has not escaped comment tliat an adjustment of rights and duties like this is inexact, nor that the standard of dili- gence might be more delicately graduated. Our unit, too, is " ordinary ; " and yet ordinary diligence must differ with the nature and value of a particular thing, the peculiar risks to which it may be exposed, and the like. True, and yet the unit is such as men can apply to a particular state of facts ; and no other standard has ever superseded the present in our practice. Rainbow colors blend imperceptibly, and yet the generality of people distinguish them. It is usual for a jury to test all the facts and circumstances by this relative standard and determine accordingly ; and our common law is in general the embodiment of common reason. § IG. The Same Subject ; Other Tests attempted. — Gross, ordinary, or slight negligence has a harsh sound ; and from the Roman law modern scholarship extracts the following classification : (1) Fraud, or rather dolo proxima ; (2) Neg- ligence in abstracto, or the omission of that amount of dili- gence which an average householder ordinarily bestows upon his private affairs ; (3) Negligence in concrete, or the omis- sion of that amount which the particular person habitually bestows on his private affairs.^ Here, however, is no antith- esis, no convenient unit of comparison. Another method, perhaps more purely Roman, would be to contrast the negli- gence in concreto with the want of that extraordinary care which a vigilant man of business bestows ; this latter serving as the standard of slight, opposed to gross, negligence.^ But to this test are greater objections. Story, on the contrary, contends that the three-fold division of our common law con- forms perfectly to that laid down by the civilians, who, he 1 Amos Jurisp. 203. mortgagee, the vendor, the conduc- 2 Pcste Gaius, .394. Mr. Po.ste tor, the locator, and others. The points out (ib. ;394-307) what, if principle appears to be, he adds, irue, might well discourage further that when a contract was for the in- attempts to harmonize the Koman terest of both parties, although their and English systems of bailment, interests were rather adverse than He says that by the Roman law ex- identical, each was responsible for traordinary care was required of the the least negligence. gratuitous borrower for use : of the 19 §16 THE LAW OF BAILMENTS. [part I. says, reco^^nized three degrees of diligence, — exactissima dili- gentia, dili(/e)itia, and levissima diUgentia; also three degrees of fault or neglect, — lata culpa, levis culpa., and levissima culpa.^ In generalizing "well, within the permitted limits of public polices the mutual expectations of parties who enter into a bailment relation without distinctly expressing their own terms consists, perhaps, all the substantial advantage of such tests ; and they who dislike the common-law standard of diligence and negligence fall, when most consistent, into a general contempt of all standards, so as to make each case a special issue of intent.^ Yet the advantage of the common-law standard for cases where the parties have not made their original intent explicit is obvious ; and it is enough to add that our courts have never relinquished it.^ 1 Story Bailm. § 18. Spd qu. 2 "Negligence iu fact," observes Mr. Amos, "is always the absence of that amount of alacrity or adver- tence of mind which a person's legal duty in the special circumstances de- mands." Amos Jurisp. 203. Yet the question will recur, what legal duty did those special circumstances de- mand ; and common-law authority conducts us back to the common-law standard for a reply. Mr. Bigelow also observes that the modern tendency is to break away from such divisions, and to accept vfhat he calls "the true doctrine of the Eoman law" as to bailments, as well as to other subjects covered by the title "Negligence :" i.e., to make the criterion, whether the party con- ducted himself in the particular sit- uation as a man of prudence or carefulness or skill of the same busi- ness would have conducted himself, or as prudent or careful or skilful men of the same business generally conduct themselves in the like situa- tion. Bigelow Torts, 200. We must respectfully dissent from the views of this careful writer. In the first place, the courts show little sign of breaking 20 away from the classification of slight, ordinary, and great, where bailments are concerned. See § 35, post. Nor is it, as in general cases of negligence, a question here of mere conduct, but of conduct exercised towards some specific property, and moreover of conduct in a transaction which in- volves always the element of recom- pense, of advantage, mutual or on one side only. We distinguish the law of gift and sale upon this ele- ment of recompense ; and in the obligations of bailment law a like distinction is found. Such a crite- rion as the foregoing is not specific enough to guide a jury ; bailments occur in social as well as business re- lations ; and though after all we mean to inquire whether the care that was needful under the circumstances was bestowed, there is always a relative degree of difference implied as be- tween recompensed and non-recom- pensed bailees under corresponding circumstances. 3 See Story Bailm. §§ 11-18. A forcible criticism of our three-fold test is presented by Mr. Justice Cur- tis in Steamboat New World v. King, 16 How. (U. S.) 474. Yet current PART I.] BAILMENTS IN GENERAL. §10 There is noticeable, however, a decided preference, among tlie more exact of our modern jurists, for fitting to " diligence," instead of its correlative, ''negligence," the adjective of com- parison. A pithy remark of Baron Rolfe's, which has long decisions apply that test constantly. And the better sentiment of the courts favors retaining it, at all events, until something better can be found to supply its place. Lord Chelms- ford, in Giblin v. McMullen, L. II. 2 P. C. 33C (1800), said recently: "Of course, if intended as a definition, the expression 'gro.ss negligence ' wholly fails of its object. But as there is a practical difference between the de- grees of negligence for which different classes of bailees are responsible, the term may be usefully retained as descriptive of that difference, more especially as it has been so long in familiar use, and has been sanctioned by such high authority as Lord Holt and Sir William Jones." And see Cashill V. Wright, G E. & B. 891 ; Beal V. South Devon R., 5 H. & N. 875, 881 ; o II. & C. 3;j7, 341, per Cromp- ton, J. Among the latest American opin- ions on tliis point, that in First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278, will be found .strong and discrimi- nating. And see Griffith v. Zipper- wick, 28 Ohio St. 388; Whitney v. Lee, 8 Met. 01. But the language of Mr. Justice Curtis is best offset by that of a suc- cessor on the same supreme bench of tlie United States, — Mr. Justice Bradley, — who has thus happily generalized the results of modern investigation in the courts of England and America, as to the standard of slight, ordinary, and great: "The defendants endeavor to make a dis- tinction between gross and ordinary negligence, and insist that the judge ought to have charged that the con- tract was at least effective for excus- ing the latter. We have already adverted to the tendency of judicial opinion, adverse to the distinction between gross and ordinary negli- gence. Strictly speaking, these ex- pressions 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 in- attention, 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 ordi- nary 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 demands ; and hence it is more strictly accurate, perhaps, to call it simply 'negligence.' And this seems to be the tendency of modern authorities. If they mean more than this, and seek to abolish the distinction of degrees of care, skill, and diligence required in the performance of vari- ous duties and the fulfilment of various contracts, we think they go too far ; since the requirement of dif- ferent 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 undertook to abol- ish 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.' Toullier, in his commen- 21 § 17 THE LAW OF BAILMENTS. [PART I. circulated in the courts,^ to wit, that gross negligence is the same thing as negligence, with the addition of a vituperative epithet, has helped greatly to this result. ^ " Diligence " has certainly the advantage of being an affirmative word, whereas one uses " negligence " relatively by way of denying to the transaction the requisite degree of diligence or care. This verbal choice will be duly heeded in these pages, notwith- standing many eminent authorities still use the terms inter- changeably, and the practical difficulty comes perhaps "as directly " (to borrow the suggestion of one of our State judges) "from the nature and extent of the duty in the particular case as from the phrase by which a breach of the duty is expressed."^ § 17. Honesty and Good Faith required of Bailees; Criminal Accountability. — Besides a certain degree of care and dili- gence suitable to the trust imposed, our law requires of every bailee the practice of honesty and good faith. A bailee should not sell, pledge, or otherwise deal with the thing as though he were full owner ; and, as a rule, he cannot, by such mis- conduct, divest the general owner's title or debar him from recovering the property ; though in many cases a bailee may innocently assign his own temporary interest, if for value, while under some circumstances the equity of a bond fide transferee for value without notice of infirmity of title, is tary on the code, regards this as a How. 474 ; Storer v. Gowen, 18 Me. happy thought, and a return to the 177 ; Mariner v. Smith, 5 Heisk. 203. law of nature. But such an iron rule The point thus made is, that negli- is too regardless of the foundation gence is essentially culpable. To principles of human duty, and must quote Willes, J., in Lord v. Midland often operate with great severity and R., L. R. 2 C. P. 344: "Any negli- injustice." Railroad Co. v. Lock- gence is gross in one who undertakes wood, 17 Wall. 382. And see Pres- a duty and fails to perform it." A ton V. Prather, 137 U. S. 604. like criticism is suggested in Pothier. 1 Rolfe, B., in Wilson v. Brett, 11 See Jones Bailm. 30 ; Story Bailm. M. & W. 113 (1843). § 17; L Pothier Obi. 458 (Orleans 2 See Hinton v. Dibbin, 2 Q. B. ed.). 646; Austin v. Manchester R., 10 ^ Allen, J., in First Nat. Bank v. C. B. 454 ; Grill v. Iron Screw Collier Ocean Nat. Bank, 60 N. Y. 278, 295. Co., L. R. 1 C. P. 612 ; Briggs v. Tay- In Part II. the phrase " gross negli- lor, 28 Vt. 180, per Redfield, C. J.; gence " will be further considered. Steamboat New World v. King, 16 22 PAllT I.] BAILMENTS IX GENERAL. § 18 found to avail against the defrauded bailor.^ The continen- tal, like our own jurisprudence and tliat of every enliglitened country, permits not even the bailee for the bailor's exclusive benefit to j)ursue his trust dislionestly ; and gross negligence itself, or the failure to bestow slight diligence, though desig- nated sometimes dolo proxima, is but the next thing to fraud, and less censurable. ^ In every contract relation, fraud viti- ates, and the injured party who is blameless may seek redress. Modern legislation seeks to fasten criminal accountability upon various classes of persons who, by the common law, could not be punished for what was styled a mere breach of trust ; and, in some parts of this country, a bailee, converting to his own use the property committed to his keeping, may now be indicted for larceny.^ § 18. Tortious Possessor liable absolutely. — How far the rights and remedies of bailment parties are affected by the fraud and misconduct of either will incidentally appear here- after. But let us observe here that in those quasi bailments which grow out of a tortious possession, the bailee must account absolutely for what he holds without color of right ; and this by the operation of public policy, for a con- tract relation is wanting. Thus, should one steal my boat, and then, concluding to pull it back, be overtaken by irre- sistible flood or tempest, the circumstance of a loss by wreck is of no avail, for the law pronounces him an insurer. Where, too, a vessel makes a tortious capture such as the law of bel- ligerents fails to justify, the captor is held strictly account- able for any loss or damage sustained by the captured vessel, ^ As to the equity of a bonQ fide included the extreme culpa ; but it transferee see more especially Pledge, is not clear that this dolus means the Part IV. c. 4. And in general see same as our word "fraud." Such post, §§ 39, 52, 73, 107. disputation is more learned than 2 Story Bailm. §§ 10-22, forcibly edifying. Cf. Jones Bailm. 8, 10, combats the notion favored appa- 40; Poste Gaius, § 207 ; Mytton v. rently by Sir William Jones and Cock, 2 Stra. 1090 ; Tompkins v. others, that gross negligence is tan- Saltmarsh, 14 S. & R. 275 ; post, tamount to fraud. Civilian com- Part II. mentators speak of dolus in many ^ \^ jq case of a bailee for hired passages as though its sense thus service. Hutchinson v. Common- 23 § 20 THE LAW OF BAILMENTS. [PART I. however accidentally caused, despite his prudent exertions.^ A like principle is seen swelling the risks of the borrower or hirer, who, by departure from the terms of his trust, com- mits a breach of trust ; of bailees who misappropriate ; ^ and, perhaps to some extent, of carriers who inexcusably deviate from the prescribed route. ^ Two theories may be said to concur in producing this result : first, that any guilty invader of another's property rights should make full restitution ; second, that where mischief happens while one departs from the line of duty, whether wilfully or only negligently, he ought to make the innocent sufferer whole. § 19. Agents or Servants in a Bailment. — The bailment re- lation admits of the employment, on both sides, of agents or servants. To all such should be applied the general doctrines of agency ; the bailor or bailee, under due circumstances, be- ing chargeable accordingly as principal. In general, a bailee is answerable for the acts of those he employs under him in furtherance of the bailment purpose, so far as those acts are committed within the real or apparent scope of such a party's employment ; not, however, for acts tortious and lying wholly outside of such scope, since here we find either that the agent transcended his authority, or that the act was so positively wrongful that legal authority to commit it cannot have been conferred.* There is this difference, in the eye of the law, between an agent and a bailee, that the one is a substitute for some per- son, while the other is a distinct individual, Avith his own separate interest in the thing, § 20. Effect of Special Contract. — Exceptions to the gen- eral doctrine of bailment, or modifications and explanations of what, after all, is but the presumed and primary relation wealth, 82 Penn. St. 472; Phelps v. worth v. McDiiffie, 43 N. H. 402; People, 72 N. Y. 334. Kennedy v. Ashcroft, 4 Bush. 530. 1 Story Bailm. § 614 ; The Betsey, ^ Post, Common Carriers. 1 Rob. Adm. 93, 96. * Foster v. Essex Bank, 17 Mass. 2 Fisher v. Kyle, 27 Mich. 454 ; 479; Schoul. Dom. Rel. 3d ed. § 489 ; Lucas V. Trumbull, 15 Gray, 306; Story Agency, § 261. But as to the ex- CuUen V. Lord, 39 Iowa, 302 ; Went- ceptional bailments see Parts V., VI. 24 PART I.] BAILMENTS IN GENERAL. § 20 of bailor and bailee, may be created by the special contract of the parties themselves, who are at liberty to fix the time and mode of accomplishing the bailment purpose, and even to regulate the res[)onsibilities of the relation ; but with this general restriction, that the terms which public policy and legislation impose are not thus to be overleaped.^ Thus, admitting that what we call public policy swerves about from one epoch to another, fundamental morality forbids that a bailee should stipulate for immunity against his own wilful misconduct,^ and American courts have denied, even to bailees without recompense, the privilege of being as neg- ligent as they please ; ^ while as to innkeepers and common carriers, our law always bore hard upon them until recently, and even now only a moderate relaxation of the legal bur- dens is, in America at least, permitted.* Nor (though we shall find some curious discord of authorities on the point) ought one to be able to contract so as to become utterly un- accountable for the acts of his own agents or servants ; for, were the privilege granted, corporations might go scot free, and bailees in general find too easy opportunities for fraudu- lent collusion.^ If the bailee may by special agreement nar- row his risks, so may he in like manner enlarge them ; but it would be violating good sense to construe dubious expres- sions in a contract so utterly to the bailee's disadvantage, where no moving consideration appears for assuming the special hazards.^ Special contracts in a bailment transac- tion need not be reduced to wanting ; for the gist of the exception is the mutual and fair intent of the parties to con- form to it.'^ 1 Story Bailm. §§ 31-36. To the « lb. ; Peek v. North Stafford- same purport is the civil law. lb. ; shire R., 10 H. L. 473, per Black- Jones Bailm. 48; Dig. 50, 17, 23; burn, J. Dig. 17, 1, 39. 6 See Trefftz i-, Canelli, L. R. 4 2 Story Bailm. § 32 ; Doct. & S. 2. P. C. 277 ; Belden v. Perkins, 78 111. c. 38 ; Jones Bailm. 11, 48. 449 ; Story Bailm. § 33. 8 Lancaster Co. Bank v. Smith, 62 ^ Conway Bank v. Am. Express Penn. St. 47. See Archer v. Walker, Co. , 8 Allen, 510. This subject will 38 Ind. 472. be considered in detail hereafter. * See Innkeepers and Common Carriers, post, 25 § 22 THE LAW OF BAILMENTS. [PART I. S 21. other Cardinal Maxims stated; Bailment and Contract for Bailment; Compound Bailments. — We may here lay down a few cardinal maxims in the law of bailments whose appli- cation will appear in detail hereafter. (1) Bailment arises only upon the corporeal possession of the thing by the tem- porary holder or his agent ; though there may, or may not be, a contract for some bailment. Thus, if I agree to take goods to-morrow on storage, there is a contract for a bailment, but no bailment arises until I take the goods.^ (2) Com- pound bailments may exist, involving the mingled under- takings of custody, carriage, or work upon a thing ; or again, so that one part of the service is upon recompense and another gratuitous ; and a bailee's liability may shift accordingly.^ § 22. The Same Subject ; -whether Bailor is Owner ; Title of Bailee. — (3) A bailment need not be by the full owner of a thing ; for privity between bailor and bailee suffices, and if the bailor has a special property in the thing, he may bail it for various purposes. A bailee has only to under- take and pursue his undertaking in good faith towards the person from whom he received the thing, and of course honestly in the first instance. But while he should not voluntarily dispute his bailor's title, he is bound at his peril to regard paramount claims of ownership brought to his attention while he has possession.^ (4) Furthermore, the bailee's possession constitutes a suf- ficient title to enable him to maintain remedies against all others who invade his rights, yielding only to a superior title, and to such interest of his bailor as may consist with their mutual undertaking. Even a mere finder or other naked bailee without reward may maintain his possession against all strangers who would deprive him thereof.* 1 See post, §§ 34, 94, 102. Prather, 137 U. S. 604, a gratuitous 2 In Mariner v. Smith, 5 Heisk. bailment became changed by mutual 203, gold was bailed without reward, agreement into a bailment for hire, to be sold if the market premium rose ^ gee post, § 33. to a certain height, otherwise only to * Fast, §§ 64, 80, 109. be kept in custody. In Preston v. 26 PART T.] BAILMENTS IN GENERAL. § 23 S 23. Burden of Proof in Suits against the Bailee. — Before we pass to the exteiuled cousidenitiou of the several chisses of bailments, this important and perplexing inquiry deserves final attention. Upon whom should rest the burden of proof when a bailee is sued for culpable loss or injury? In litigation of this sort, particularly under the law of common carriers, each party to the bailment is so eager for the advantage of putting his opponent to the proof, that he attempts to generalize upon what the breath of circumstances might alter. Notliing more readily shifts about in different stages of pleadings and evidence than this quicksilver which we denominate the burden of proof. If, then, out of the abundant maxims laid down, it seems bard to compose a clear summary, this is because the maxims depend so much upon special facts, and the actual situation of a case. English courts, and those of several of our leading States, appear to reason generally that, wherever negligence is the foundation of a suit, the plaintiff must prove his case affirm- atively throughout ; and they deduce the corollary, that a bailee sued because of his negligence or inadequate diligence as to the thing bailed need not disprove, but, rather, may leave the bailor to prove him negligent if he can. Hence their inference, chiefly available in ordinary bailments for hire, that a bailee's breach of duty is not to be for assump- tion, but positive proof; and that merely to prove loss or injury, that the bailor's goods are not on hand in a suitable condition, or not on hand at all, at the time when the bailee was to turn them over, does not of itself establish the bailee's negligence and default. ^ 1 See Story Bailm. §410 and notes; Brown v. .Johnson, 29 Tex. 40. See Finucane v. Small, 1 Esp. 315 ; Gil- a valuable review of this subject by bart V. Dale, 6 A. & E. 643 ; Midland Judge Edmund H. Bennett, in 5 Am. R. V. Bromley, 17 C. B. 372 ; Butt v. Law Rev. (Jan. 1871), p. 205. Ma- Great Western R., 11 C. B. 140; laney v. Taft, GO Vt. 571, is to the Lamb v. Western R., 7 Allen, 98; same effect (a hired horse). Smith V. First Nat. Bank, 90 Mass. Judge Story inclines to the view 605 ; Runyan v. Caldwell, 7 Humph, that, with all but the exceptional 134 ; Cross v. Brown, 41 N. H. 283 ; classes of bailment (though why the 27 § 23 THE LAW OF BAILMENTS. [PART I. Now, granting that all mankind are presumed to have done tlieir duty, and that, in the majority of instances, actions of tort whose gist is negligence put the onus pro- handi heavily upon a plaintiff who comes into court alleging an injury to himself through the wrongful act of another, the peculiar situation of a thing bailed, as between bailor and bailee, is an impressive feature of our present case, which must not be kept out of the reckoning. To allege that one has carelessly run down a child, or broken another man's wagon, or endangered a person's life by malpractice, requires a primd facie case to be made out by the plaintiff, who has his proof at command. But on the other hand, where one receives possession of a chattel in a certain con- dition, and fails at the proper time to redeliver it at all, or redelivers it with marks of injury such as only culpable carelessness would probably have caused, it is the bailee who should open his mouth and make an explanation to relieve himself. Unless the bailor accompanied his prop- erty or had a certain oversight, — as where the owner of a hired horse rides with the hirer, or an innkeeper's guest puts his own watch under his pillow, or a drover goes in the train with his cattle, — the facts attending loss or injury must be peculiarly within the bailee's own knowl- edge. Here, too, the action sounds in contract quite as much as tort, for negligence. And thus do we find it quite reasonably asserted, as the rule of many States, that where property placed in a bailee's hands in good condition is returned by him badly damaged, or not returned at all, the burden of exculpation is upon himself ; more especially if the loss could not ordinarily have occurred without such rule should there be peculiar is not cases, from one party to the other, obvious), the burden of proving Story Bailm. §§ 278, 410. He con- negligence is on the bailor, and cedes, further, that where the bailor that proof merely of loss is not demands a thing loaned, and the enough to put a bailee on his defence, bailee makes a general refusal with- Yet this distinguished writer admits out offering any special excuse, the that there are many discrepancies in bailor may, primd, facie, recover, the authorities, and that the burden Story Bailm. §§ 213, 278 ; Beardslee of proof may shift, in complicated v. Richardson, 11 "Wend. 25. 28 PART I.] BAILMENTS IN GENERAL. §23 uegligence.^ And it must fiiirly be conceded that sliglit evidence may sliilt the burden of proof, and that proof 1 Collins V. Bennett, 40 N. Y. 490; Brown v. Waterman, 10 Cush. 117; Boies V. Hartford K., 37 Conn. 272 ; McDaniels v. Robinson, 20 Vt. 310; Logan i\ Mathews, Penn. St. 417; FuiikhiHiser v. Wagner, 02 111. 59; GoodfoUow V. Meegan, 32 Mo. 280; Vauglian v. Webster, 5 Ilarring. 250 ; Bennett v. O'Brien, 37 111. 250; Cass V. Boston & Lowell R., 14 Allen, 448; Safe Deposit Co. v. Pollock, 85 Penn. St. 391 ; Haas v. Taylor, 80 Ala. 459. Such, too, is the rule expressly con- firmed in Louisiana. Ford v. Simmons, 13 La. Ann. 397 ; notwithstanding the Code as referred to in Story Bailm. § 411. Pothier upholds the same view. Pothier Contrat de Louage, n. 199, 200; Story Bailm. § 411. And it is the rule of the civil law. lb. ; Story Bailm. § 278. The convincing statement of Peck- ham, J., in Collins v. Bennett, supra, approves this rule, in the case of a hired horse returned foundered to the bailor. As to depositaries for hire. Park, J., alludes to the conflicting state of the authorities in Boies v. Hartford R., supra. Wiser v. Chesley, 53 Mo. 547, api)lies the rule to the case of an innkeeper. And this is doubtless the doctrine as to common carriers. Story Bailm. § 529 ; Forward v. Pit- tard, 1 T. R. 27 ; Michaels v. N. Y. Central R., 30 N. Y. 504, and many other cases cited under that head. Admitting the danger of wide generalizations on this subject, and granting the force of special circum- stances in each case, we may per- haps fairly reach these conclusions : (1) That the bailor who charges his bailee with lo.sing or injuring the thing bailed to him, must make out his prirn^ facie case ; that is, he nuist show the creation of the particular bailment in fact, and the delivery on his own part of the specified thing in due condition, with corresponding acceptance by the bailee ; also, the bailee's default of final delivery over, or else the final delivery of the thing in unsuitable condition, as the case may be. And whatever might ob- struct a primH facie showing to this point, and justify an inference that the thing was injured by himself or his agents, or by his or their partici- pati(m in the mischief, or that its inherent qualities would naturally have developed the mischief, — all this the plaintiff must overcome to make out his case. (2) The primcl facie case being thus made out as claimed, showing (a) that the prop- erty bailed for a certain purpose was not delivered back or over at all by the bailee as contemplated, or (6) that when delivered over it was found so damaged that probably the bailee or his agent caused the injury, the in- ference is deducible that the bailee is to blame and must answer. And now it rests upon the detendant bailee to explain the loss and exoner- ate himself ; which he may do by showing (rt) that the loss or damage was due to some special cause which ought specially to excuse him ; or (b), more generally, that he, the bailee, was not culpably negligent. See cases supra. (3) But if the bailee, under such circumstances, shows some cause of loss or damage to the thing, such as ought legally to excuse him, he need not go further and prove affirmatively that no neg- ligence on his part operated in pro- ducing that cau.se; but may rest upon a showing which, on the face of it, leaves liim sulliciently exonerated. The burden now shifts back to the plaintiff bailor, who is to overcome, if he can, the bailee's primCl facie 29 §23 THE LAW OF BAILMENTS. [part I. of the nature of an injury may of itself afford primd facie proof of negligence sufficient to require counteract- ing evidence.^ Where the legal responsibilities of the bailment have been qualified at the outset by a valid contract, the bailor who would make out his case of loss or damage ought to allege and stand upon the special undertaking. And if the bailee shows in defence that the loss or damage was due to some cause lawfully excepted by the contract — as where a carrier's contract expressly exempts him from bearing the risk of losses by accidental fire — he makes out his primd facie exculpation, so that, unless his own proof of such loss or damage incidentally established such cause as the con- tract fails to excuse, the onus is upon the plaintiff to shake his exculpation. 2 All bailees, with or without a special contract, are primd facie excused, when they show loss or injury by act of God or of public enemies ; and ordinary exoneration. See Kailroad Co. v. Reeves, 10 Wall. 176. (4) If the bailee has shown in defence some cause of loss or damage, such as robbery, burglary, or theft, which might or might not excuse him, the jury must well weigh all the circum- stances ijresented. 2 Kent Com. 580, 581 ; Stoiy Bailm. § 338 ; Tancil v. Seaton, 28 Gratt. 601; 45 N. Y. Super. 245. But robbery, burglarj', or theft does not per se establish culpable negligence. Wylie v. Northampton Bank, 119 U. S. 361 ; Schermer v. Neurath, 54- Md. 191; Claflin v. Meyer, 75 N. Y. 260. (5) Under most other circumstances the main burden of proving remissness of duty on the bailee's part will devolve upon the bailor or owner ; and if, on de- mand of the property or the presenta- tion of his claim for damages before he brings suit, the bailee offered any explanation of the loss or injury, this he should introduce as part of his prima facie case. McCarthy v. 30 Wolfe, 40 Mo. 520. Where upon the issue of culpable carelessness two in- ferences equally reasonable might be drawn from the evidence, the verdict of a jury will not be disturbed. Carrington v. Ficklin, 32 Gratt. 670. But a bailor makes a primd, facie case when he shows such loss or damage to the thing as does not ordinarily happen where the care which the law requires in the par- ticular kind of bailment is exercised. 14 Mo. App. 431. See post, § 205, as to pledge. 1 See Wintringham v. Hayes, 144 N. Y. 1. 2 See Part VI., c. 8, post; Sutro v. Fargo, 41 N. Y. Super. 231 ; Cochran V. Dinsmore, 49 N. Y. 249; Farnham V. Camden & Amboy R., 55 Penn. St. 53 ; Transportation Co. v. Downer, 11 Wall. 129; Gray v. Bates, 99 Mass. 263. Contra, Union Express Co. v. Graham, 26 Ohio St. 595 ; Swindler V. Hilliard, 2 Rich. 286 ; § 478. PART I.] BAILMENTS IN GENERAL. § 23 bailees in a variety of lesser instances, such as fire, loss by mobs, or robbery.^ Conunou Carriers and Innkeepers, as we shall see hereafter, have to bear, apart from special contracts and our later legislation, a variety of risks such as would in uo sense impute to them positive negligence or misconduct. 1 See Wilson v. Southern Pacific Local statutes sometimes affect R., 62 Cal. 104, as to loss by lire ; this rule as to burden of proof. Case also White v. Colorado Central K., cited, 1)3 Ga. 503. 3 McCr. C. 559. 31 § 25 THE LAW OF BAILMENTS. [PART II. PART II. BAILMENTS FOE, THE BAILOR'S SOLE BENEFIT; OR WITHOUT BENEFIT TO THE BAILEE. GRATUITOUS SERVICE ABOUT A CHATTEL. § 24. Classification of this Chapter. — In treating of the present class of bailments we are to consider : I. Matters preliminary, including delivery in bailment. II. Accomplishment of the bailment purpose. III. Termi- nation of the bailment. § 25. Matters Preliminary ; Nature of Undertaking. — I. Matters preliminary, including delivery in bailment. Mani- festly no arbitrary rule of division among the common pur- suits of life could do justice to the present topic ; for work- men, artisans, agistors, warehousemen, wharfingers, factors, even innkeepers or carriers, whatever compensation it may be their usual custom to receive, are bailees for the bailor's sole benefit in each individual case where the service is gratuitously undertaken. Among bailments for the bailor's sole benefit are, of course, to be reckoned those whose object is the benefit of any third person on his side ; as, for instance, where something is to be transported free, not so much for the consignor's, as the consignee's advantage, or for that of whomsoever it may concern. ^ Indeed we should prefer to style the present bailment as simj)ly that without benefit to the bailee, since the party to be benefited may not always be apparent. And, as in all other topics of bailment law, bene- 1 Story Bailm. § 41 ; Fay v. Steamer New World, 1 Cal. 348 ; Michigan Central K. v. Carrow, 73 111. 348. 32 PAUT II.] BAILMENTS FOU THE IJAILOll'S BENEFIT. § 20 fit, recompense, or advantai^e is viewed with reference not to the actual result, but to the purpose of the undertaking. The purpose of the gratuitous bailment is multiform ; ad- mitting, indeed, of much the same variety as the bailment for mutual benefit ; pledge, a peculiar transaction, which neces- sarily involves the idea of a mutual recompense, constituting the only clear exception. To be more explicit, one may gratuitously (as he might likewise upon hire) take another's chattel : (1) to keep it in custody ; or (2) to perform some work upon it ; or (3) to carry it from one place to aiu)tlier. Under one or another of these three sub-classes do such bailments commonly range ; custody of a thing being a passive sort of relation as compared with the other two. A close analysis will show that in numerous instances bail- ments are so compounded of two or more of these three elements, that the discussion of diligent performance might arise separately upon custody, jjerformance of work and carriage ; as if a friend of mine, who is a watchmaker, should, without an intended recompense, receive my watch in the country, carry it to his store in the city, there repair it, and then keep it in custody awaiting my convenience to call for it.^ § 26. Division of Depositum and Mandatum inapt. — l>ut Sir William Jones, following Lord Holt, and Judge Story, the successor of both, have preferred discussing bailments for the bailor's sole benefit under two distinct titles taken somewhat at hap-hazard from the Roman law.^ They give us Deposi- tum, a Deposit, and Mandatum, a Mandate ; of which the for- mer aims to take in all bailments for gratuitous custody, while the latter comprehends both those for gratuitously working upon, and those for gratuitously carrying a thing, or in a word the residue. Depositum, a Deposit, the}' define as the bailment of a chattel or chattels to be kept by the bailee •without reward, and delivered according to the special pur- pose of the bailment ; the person w'ho makes the deposit 1 S^ipra, §21. Bailra. 22, 36, 117; Holt, C. J., in 2 Story Bailiu. §§ 41, 137 ; Jones Coggs v. Bernard, 2 Ld. Kaym. 909. 3 33 5 26 THE LAW OF BAILMENTS. [PAET II. being the depositor, and he who receives, the dejjositarr/.^ Man DATUM, a Mandate, is declared to be the bailment of a chattel or chattels in regard to which the bailee engages to do some act without reward ; the bailor being here the mandator, and the bailee the majidatary.^ 1 Story Bailm. § 41 ; Jones Bailm. 36, 117 ; Pothier Traits cle Depot, n. 1. 2 Story Bailm. § l.'J7 ; 2 Kent Com. 568 ; Jones Bailm. 52, 117. Such a method of treatment appears open to grave objections. (1) Here is a transplanting of foreign terms which do not bring their full foreign flavor. For, as to Depositum, the civil law made material distinction in respect of remedies between voluntary de- posits, — or such as were made upon ample opportunity for deliberation and mutual consent, — and miserahile depositiim, — or that which occurred through fire, shipwreck, or other ca- lamity, where one in distress had to confide his property to whomsoever was about ; which is a distinction of no consequence in our law. Story Bailm. § 44 ; Jones Bailm. 48 ; Col- quhoun Eom. Civ. Law, § 2068; Po- thier Traits de Depot, n. 75. Again, Roman deposits were divided into simple deposits and sequestrations ; the former designating the common placing in custody, and the latter a delivery in custody to some stake- holder, whether as between man and man, or judicial ; a division not with- out its uses, yet not practically recog- nized in the common law. Story Bailm. § 45 ; Colquhoun Rom. Civ. Law, § 2069 ; Pothier Traits de D^pot, n. 1. Furthermore, the civil- ians made much of distinguishing between depositum and mntunm ; whereas, as already shown, we have no such bailment as miitnum at all. Story Bailm. § 47 ; Jones Bailm. 64 ; Supra, § 6 ; Poste Gains, § 300. Still more of an exotic is Mandatum, a word cautiously employed by Lord 34 Holt (Coggs V. Bernard, 2 Ld. Raym. 909), and deemed appropriate by Sir William Jones only in a limited sen.se. Jones Bailm. 53. The Roman man- date, in fact, — a term apparently derived from the fiction of giving one's right hand as symbolical of delivering to another authority to act, — meant in the vernacular simply to constitute a gratuitous agency. A wide-sweeping class of trusts was this ; not confined to personalty, nor to things specific as distinguishable from property in the mass, nor neces- sarily occupied with property at all. An unpaid carrier was, for the time being, a mandatary ; but so, too, was an unpaid oral messenger, or a naked attorney. A mandate might be gen- eral or specific, conditional or uncon- ditional, express or presumable, given before or given during the progress of an affair. Colquhoun Rom. Civ. Law, §§ 1736-1739; Story Bailm. §§ 137-139. Even in that aspect which has so commended the term to our bailment jurists, — namely, the gratuitous nature of the service to be rendered, — mandate is not a wholly appropriate word ; for, though nomi- nally a gratuitous undertaking, the civil mandate still permitted of the honorarium, whose collection, as some assert, could, under a certain procedure, be enforced. Colquhoun, § 1731 ; Poste Ga-ius, III. § 162. The Louisiana Code distinctly provides that a mandate need not be gratui- tous. Waterman v. Gibson, 5 La. Ann. 672 ; Lea, J., in Lafourche Nav. Co. V. Collins, 12 La. Ann. 119. One who had a mandate forced in a meas- ure upon him, seems to have been PAP.T ir.] BAILMENTS FOR THE BAILOR'S BENEFIT. § On the wliole, the employment of these technical terms appears disadvantageous. ^Vnd the clearest opinions on the gratuitous bailee's responsibility are those which, discard- ing catch-words so ai)t to trip the unwary when used for title-headings, proceed upon a sound apprehension of the principle underlying the various modes of bailment accom- plishment. § 27. Fundamental Rules applied •where Bailment is founded in Contract. — Bailments for the bailor's sole benefit are commonly founded in contract and an express undertaking, though the relation may be constituted more generally by any held, in Roman jurisprudence, less strictly accountabk- tlian an ordinary mandatary. Cohiuhoun, § 1742. Other foreign peculiarities wliicli still adhere to drposituia and mnndatxim will further appear presently. (2) The division of Depositmn and Mandatinn is not, we apprehend, a logical one ; for the latter appears the generic term, and the former specific. To reason, like Sir William Jones, that mandate lies simply in feasance, and deposit in custody, is inaccurate, as Judge Story illustrates by the bailment of a living animal which must not only be kept, but fed and exerci.sed ; and, according to the latter writer, the distinction lies be- tween the principal and accessorial object of the trust ; which again may be thought refining to no great pur- pose. Story Bailm. § 140 ; Jones Bailm. 53. Lord Holt and Sir Will- iam .Jones took care to put all gratui- tous undertakings, whether to do work upon or to carry things, under the head of mandate, so long as they were not to be styled deposits. Coggs V. Bernard, 2 Ld. Raym. 909, 913 ; Jones Bailm. 117. But to the com- pound elements possible in various bailments, we have elsewhere alluded (Supra, § 21 ; Jlariner v. Smith, 5 Heisk. 203) ; and, wliether deposit or mandate, or both together, the gen- eral rule of gratuitous responsibility remains the same. (3) Both Mandate and Deposit are words whose popular, nay legal, English sense, may import something quite unlike a bailment. We speak of " Mandate" as a judicial precept. Bouv. Diet. "Mandate;" Junes Bailm. .53. And that which our bail- ment jurists have styled " Deposit," mercantile men commonly call "Special Deposit;" nor even thus woukl the bailment term fit, unless tlie special deposit was gratuitous. Our familiar deposit with a banker is in no sense a bailment, but the creation of a debt with the expecta- tion that the ci-editor shall draw for his equivalent. Bouv. Diet. " De- posit ; " Story Bailm. §§ 84, 88; Fos- ter V. Essex Bank, 17 Mass. 479 ; Brahm v. Adkins, 77 111. 263 ; Rankin V. Craft, 1 Heisk. 711 ; Howard v. Roeben, 33 Cal. 399; Miller, J., in Marine Bank v. Fulton Bank, 2 Wall. 252 ; Wright v. Paine, 02 Ala. 340. The ordinary bank deposit or gen- eral deposit is sometimes styled in our books an " irregular deposit," — a term which to those not familiar with Pothier and continental modes of classification might appear a mis- nomer. Story Bailm. § 84, citing Pothier Traits de D6pOt, n. 82, 83. 35 § 28 THE LAW OF BAILMENTS. [PART 11. possession not wrongfully acquired. Here the familiar rules apply as to the parties capable of contracting ; for infants, lunatics, and to some extent married women, are placed under peculiar disabilities ; while fraud, palpable error, and undue constraint of will, operate towards vitiating the undertaking.^ But an infant, or other bailee placed under a legal disability, who might not be liable for a careless loss or misuse, must nevertheless restore where he may, and not use his privilege to misappropriate. 2 Even infants might be held answerable out of their estate for unlawful conversion, on the ground that it is the contract and not the tort of such persons that the law relieves.^ An adult bailee from an infant without reward will be bound on his side, while the infant's choice, on reaching discretion, sanctions the full operation.* Such bail- ments should not, of course, contravene the rule of sound morals or public policy. And, in fine, as mutual assent is always needful, whether evinced by words or acts, no one becomes responsible, even as a gratuitous bailee, where goods are surreptitiously put in his carriage or thrust upon his per- son, wholly without his knowledge and assent ; ^ though if, npon ascertainment of this fact, he went on with the trust, this might bind him. § 28. Bailments not strictly upon Contract; Finding; At- taching; Stakeholding, etc. — But a bailment of the present class might be constituted where the undertaking was not strictly upon contract, or where circumstances, at least, ren- dered a mutual assent impossible. The necessary deposit of the civilians, made under sudden pressure of overwhelming calamity, has been alluded to ; and we may assume that a similar trust might be created at the common law without 1 Story Bailm. §§ 50, 162 ; 2 Kent « La. Code (1825), art, 2906. Com. 450. See Schoul. Dom. Rel. 5 gtory Bailm. §§ 59, 60, 156, 157 ; §§ 54, 400, 410, and general works on Lethbridge v. Phillips, 2 Stark. 544 ; Contracts. Micliigan Central R. v. Carrow, 73 2 Mills V. Graham, 4 B. & P. 140. 111. 348 ; Fay v. Steamer New World, 3 Towne v. Wiley, 23 Vt. 355 ; 1 Cal. 348 ; Green v. Birchard, 27 Ind. Story Bailm. § 50 ; Schoul. Dom. 483 ; Foster v. Essex Bank, 17 Mass. Rel. §§ 423, 424. 479. 36 PART TI.] BAILMENTS FOR THE BAILOR'S BENEFIT. § 28 very strict showing of a mutual understanding. ^ Intermed- dling with or converting another's property, too, would render one liable to a greater or less degree, and in an extreme case bind him very strictly. ^ And the case of a finder of things may well be referred to this same head of non-contract ; for the mere fact of coming into voluntary possession of another's property and accepting tliat function will oblige one, if acting gratuitously, to use it with the care of a bailee for the bailor's sole beneiit ; or, if acting with promise of reward, to use it like a hired bailee. Finders of things upon land, unlike salvors by water, can claim no legal recompense, but only the reimbursement of reasonable expenses, unless a reward had been promised.^ Among bailees or qtias i-hnilaes, whose undertakings are not strictly upon contract, may likewise be reckoned officers of the law who seize or attach goods ; though whether such bailment be, generally speaking, one without recompense to the bailee, may well be questioned.^ Under the attach- ment process which prevails in many parts of the United States, in New England, for instance, this attaching officer 1 Supra, § 2G. Story Bailm, § 100 ; Nelson v. Mac- 2 In Story Bailra, §§ 189, 190, intosh, 1 Stark. 237 ; Drake v. comment is made upon a class of con- Shorter, 4 Esp. 165 ; Burke v. Trevitt, tracts, under the Roman law, which 1 Mason, 96 ; Goodenow v. Snyder, 3 comprised cases where a party spon- Iowa, 599. See supra, § 18. taneously, and without the owner's » 2 Kent Com. 356, 357 ; Nicliolson knowledge or assent, intermeddled v. Chapman, 2 H. Bl. 254 ; Went- with his property, to do work upon worth v. Day, 3 Met. 352 ; Marvin v. it, carry it, etc. Such an officious Treat, 37 Conn. 96 ; Story Bailm. party was styled negotiorum gcstor ; §§ 121 a, 621 a; Millcrcek Township and whether his responsibility was v. Brighton Stock Yards Co., 27 Ohio that of a bailee for recompense, or St. 435. one without recompense, depended * Burke v. Trevitt, 1 Mason, 96 ; upon the nature and circumstances Cross v. Brown, 41 N. H. 283 ; State of the undertaking. Pothier Contrat v. Fitzpatrick, 64 Mo. 185 ; Story de Mandat, n. 167-228. The Louisi- Bailm. § 124 ; Harrington v. King, ana Code makes similar allusion to 121 Mass. 269; Thayer v. Ilutchin- the negotiorum gcstor. Bayon v. son, 13 Vt. 504. The New York rule Prevot, 4 Mart. 58. And though the regards the bailment as, in effect, one common law distinctly mentions no for hire. Witowski v. Hrennan, 41 such personage, an analogous prin- N. Y. Super. 284 ; Phelps v. People, ciple is in certain instances applied. 72 N. Y, 334. 37 § 29 THE LAW OF BAILMENTS. [PART II. bails the chattels to some third person, as keeper, who thus becomes the quasi-hdilee for all parties in interest.^ Whether, in sequestration or stakeholding, the recipient of the thing in litigation or dispute should be treated as a bailee of the present class will depend, of course, upon his under- taking for a recompense or not ; but the undertaking itself to keep and deliver over specific property to the rightful party would make him virtually a bailee. ^ Similar considerations apply to the payment of money into court pending contro- versy, which ought, according to the safer practice, to be held by the clerk as a specific, and not a general deposit.^ S 29. Test of Recompense or No Recompense. — It must often be a delicate task to determine whether or no a certain bailment was for the bailor's sole benefit, so prone are bailees who have made no express agreement in advance, to assert their rights according to the issue of the undertaking ; charg- ing for services, perhaps, if it turn out well, but if the reverse, then claiming the advantage of the lowest grade of responsi- bility. Evidence must determine in such a controversy, and a jury should weigh it well.* If the bailee received the thing in the usual course of his business, and business usage or his known method of dealing with other customers gave him the right to demand compensation, then the trust, though ac- cepted without express reference to a charge for services, is not to be taken as gratuitous.^ And here the bailee's silent determination to charge nothing would be of no avail for reducing the grade of his liability, inasmuch as he ought to have made such determination known to his bailor.^ But attendant circumstances should be allowed their weight ; 1 Story Bailm. § 130, and cases * Pattison v. Syracuse Nat. Bank, cited. 4Thomp. & C. (N. Y.) 96; Loben- 2 Bouv. Diet. "Sequestration," stein ?>. Pritchett, 8 Kan. 213; Mariner " Stakeholder ; " Story Bailm. §§ 45, v. Smith, 5 Heisk. 203 ; Story Bailm. 103, 124 ; Gaius, III. § 207. ' § 56 ; Kinchelo v. Priest, 89 Mo. 240. 8 See Mott v. Pettit, 1 N. J. L. ^ Pattison v. Syracuse Nat. Bank, 298 ; Western Marine & Fire Ins. srtpra ; Kirtland v. Montgomery, 1 Co., in re, 38 111. 289 ; Redf. Carriers, Swan, 452. § 634. Contra, Aurentz v. Porter, ^ Second Nat. Bank v. Ocean Nat. 56 Penn. St. 115. Bank, 11 BlatcM. 362. 38 PAllT II.] BAILMENTS FOR THE BAILOR'S BENEFIT. § 30 and where one undertakes for a near relative or personal friend, or out of mere eliarity or favor, and more especially if accomplishing the trust puts liim to little outlay of time, trouble, and skill, and the bailment lies outside his re- munerated held of labor, we may well presume the under- taking to have been gratuitous.^ In short, where the undertaking is in the line of one's usual business it may be presumed a bailment upon recompense ; otherwise, a bail- ment without recompense ; but in any case recompense or non-recompense as the criterion of liability is a question of fact. And cases may arise where a bailment originally gratuitous changes to a bailment for hire.^ § 30. Servants or Agents in such Bailments ; Bank Officers, etc. — So, too, in the case of one's servant or agent, it may be a matter of doubt whether a thing gratuitously accepted was accepted by the party in a representative capacity, or so as to bind him personally. The main principle involved has been discussed in various modern cases w^ith peculiar refer- ence to the dangerous practice, pursued by banks organized for a general deposit business, of taking into their safes the valuables of favored individuals for their mere accommoda- tion ; these valuables being commonly contained in a box or sealed package. Here, again, we have an issue mainly of fact upon all the evidence submitted.^ The voluntary act of a bank's executive officer in receiving one's personal property on special deposit would not, as sound authorities hold, make the bank per se liable ; and still less would that of some sub- ordinate ; but if such deposit was known to the bank direct- 1 Dart V. Lowe, 5 Ind. 131. See hall v. Taige, 10 Gray, 308 ; Story Lafourche Nav. Co. v. Collins, 12 La. Bailm. § 153 ; post, § 98. Ann. 119. The reader is reminded 2 As where bonds originally left that a contemplated benefit to the for gratuitous custody are afterwards bailee, contingent, indirect, and un- by mutual consent made a standing certain, will, like a money recom- security for arlvances of money by pensp, render the bailment one for the bailee. Preston v. Prathcr, 137 hire and not gratuitous. A bailment U. S. 604. of the cla.ss at present described ^ I'attison v. Syracuse Nat. Bank, should be wholly without intended 4 Thomp. & C. 96. recompense to the bailee. See New- 39 §30 THE LAW OF BAILMENTS. [part ir. ors or management, and they acquiesced in the arrangement, and the more so if they expressly sanctioned it, this would constitute a bailment to the bank, and not to the bank officer himself.^ Yet possibly the corporation might here throw the responsibility upon its managers by showing that the prac- tice which the directors sanctioned was ultra vires, and such as could not bind the bank ; ^ though later opinion refuses to admit such a plea.^ On the whole, we may confidently assert that the reception of special deposits by a bank of general deposit is so far out of its regular course of doing business, that no cashier or other executive officer can bind the cor- poration to such a bailment without at least the general or special permission of the directors.* Bank robberies, involv- 1 First Nat. Bank v. Graham, 79 Penn. St. 100. 2 It has been suggested that the national banks incorporated under act of Congress, June .3, 1864 (U. S. Rev. Stats. 1878, §§ 513;3-51-5(J), have no authority to take special deposits gratuitously. Third Nat. Bank v. Boyd, 44 Md. 47, 61, per Bartol, C. J. ; Wiley v. First Nat. Bank, 47 Vt. 540 ; Fir.st Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278. But cf. Woodward, J., in First Nat. Bank v. Graham, 79 Penn. St. 100. The Su- preme Court of the United States holds a national bank liable in such cases. National Bank v. Graham, 100 U. S. 699 ; Wylie v. Northampton Bank, 119 U. S. 301. 3 National Bank v. Graham, 100 U. S. 699. * See Allen, J., in First Nat. Bank 17. Ocean Nat. Bank, 60 N. Y. 278 ; Giblin v. McMullen, L. R. 2 P. C. 327. Our latest decisions appear at variance concerning the extent of authority requisite for proof, in order to bind a bank for the act of its cashier or teller, vt'ho has received a special deposit gratuitously. In Foster v. Essex Bank, 17 Mass. 479 40 (1821), a masterly opinion was pro- nounced by Parker, C. J., from which the following is an extract: "Not- withstanding the act of incorporation gives no particular authority or power to receive special deposits ; and al- though the verdict finds that there was no regulation or by-law relative to such deposits, or any account of them required to be kept and laid before the directors or the company, or any practice of examining them ; yet as it is found that the bank, from the time of its incorporation, has received money and other valuable things in this way ; and as the prac- tice was known to the directors, and we think must be presumed to have been known to the company, as far as a corporation can be af- fected with knowledge ; and as the building and vaults of the company were allowed to be used for this pur- pose, and their officers employed in receiving into custody the things deposited ; the corporation must be considered the depositary, and not the cashier or other officer through whose particular agency commodities may have been received into the bank." This view of the law finds casual support from Lord Chelms- PART 11.] BAILMENTS FOIl THE I'.AILUU'S BENEFIT. § 30 ing the disappearance of private funds in large amounts from the corporation vaults, have of late years become so frequent in this country as to expose the mutual disadvantage of this ford, in a recent case, Giblin v. McMuUou, L. U. 2 P. C. 317 (18(JU), though its decision did not really turn upon that point. Still more recently was that opinion warmly commended, and its doctrine applied, in a Pennsylvania case. First Nat. Bank v. Graham, 79 Penn. St. lOU ( 1875). And here the court expressly declared that the rule laid down in Foster v. Essex Bank, with reference to the old State banks, applied like- wise to the national banks created under act of Congress of 1804. " If the deposit," says Woodward, J., " was known to the directors and they acquiesced in its retention, a contract relr.ti.m was created by ■which the defendants should be held bound." See also 85 Penn. St. 91. But in New York, First Nat. Bank V. Ocean Nat. Bank, CO N. Y. 278, likewise decided in 1875, bears against the right of these national banks to become special depositaries. Allen, J., here u.ses the following language in the course of an able and extended discussion of the precedents: "A corporation can only act by agents ; and it follows that it cannot be sub- jected to the responsibilities and lia- bilities of a bailee except by the acts and contracts of its agents duly au- thorized, or by agents acting within the scope of their general powers and apparent authority under circum- stances which would estop the cor- poration from denying that their real was not co-extensive with their ap- parent authority, or thnt is evidently of this opinion, demand. 2 Kent Com. 508 n. And in Miller 2 i>nste Gaius, III., § 207; Colqu- V. Adsit, Wend. 3.35, the receiptor houn Rom. Civ. Law, § 2008. of goods taken on excculiim was in ^ 2 Kent Com. 585 ; Story Bailm. New York allowed to bring replevin § 94 ; Harrington v. King, 121 Mass. against a mere wrong-doer. See 269. Bangs r. Beacham, 68 Me. 425, to the 69 § 56 THE LAW OF BAILMENTS. [PART II. a reasonable opportunity of getting the thing back;i ^j^^j U[)on the bailor, under corresponding circumstances, that of making a demand, unless, because of his bailee's misappro- priation, or for other good reason, such a formality would be nugatory. 2 But where something precise was to be accom- plished, such as carrying the thing to a particular place, or performing a certain work upon it, the bailee cannot divest himself of his trust at pleasure, but, unless released by the bailor, must go on and perform his self-imposed task with at least good faith and slight diligence ; and so is it in bail- ments for custody for a fixed period; since otherwise, the bailee becomes liable in damages as for breach of a contract. Mutual consent, however, may interrupt so as to terminate the bailment at any time, for such is the general rule of con- tracts. And thus might some new arrangement be substi- tuted; as where parties to a special deposit of money agree afterwards that the depositary shall pay interest upon it, the effect of which is to turn the special deposit into a general one.^ § 56. The Same Subject. — The gratuitous bailee's transfer of the thing committed to his care, as though clothed with the jus disponendi, is so wanton a violation of duty as to justify the bailor in treating the bailment as virtually ended, and bringing trover for repossession.* But the bailor might elect to sue upon the bailee's breach instead of pursuing the thing itself; and the bailee's wrongful act will not, of itself, sever the bailment relation to the bailor's detriment. Thus, where a depositary wrongfully sells the deposit, and the depositor, ignorant of his misconduct, does not demand the property for more than six years, the statute of limitations 1 Roulston V. McClelland, 2 E. D. 3 Howard v. Roeben, 33 Cal. 399 ; Smith (N. Y.), 60. Rankin v. Craft, 1 Heisk. 711 ; Cicalla 2 West V. Murph, 3 Hill (S. C), v. Rossi, 10 Heisk. 67 ; Chiles v. Gar- 284 ; Phelps v. Bostwick, 22 Barb. rison, 32 Mo. 475. 214 ; Montgomery v. Evans, 8 Ga. * King v. Bates, 57 N. H. 446 ; 178 ; McLain v. Huffman, 30 Ark. Wilkinson v. Verity, L. R. 6 C. P. 428; Stewart v. Erazier, 5 Ala. 114; 206; Cooper v. Willomatt, 1 C. B. Jackman v. Partridge, 21 Vt. 558. 672 ; Crump v. Mitchell, 34 Miss, 449. 70 PATIT ir.] BAILMENTS FOR THE BAILOR'S BENEFIT. § 57 will not begin to run against the bailor's right of action until such demand.^ The bailor's demand, putting a decisive end to the Ijail- ment whose limits were not definitely prearranged, obliges the bailee to give up the thing, or else account for it. And in bailments of the present class the bailor's right extends even to the countermand of an order to give the thing to a third party; though, where the bailee has already entered into privity with such third party, the case will be different; nor is the bailee's indemnity to be disregarded.^ Notice, on the other hand, to the bailor, which is the bailee's method of putting an end to his indefinite engagement, is so far effectual, that after it is rightfully given, and the bailor has been allowed opportunity to remove the goods, the bailee may i)ut them off his premises;^ though, of course, no notice should be given inconsistent with the suitable performance of one's undertaking.* § 57. Redelivery or Delivery over ; in what Condition. — Redelivery, or a delivery over of the thing according to the bailment undertaking, marks the final termination of this bailment. The identical chattel should l)e delivered up by the bailee in its then existing condition; if bettered, this affords no gain to himself, but, at most, the reimbursement of his outlay; if made worse, it avails nothing unless due to his fraud or gross negligence ; if utterly lost or spoiled, he is responsible in damages so far as his bad faith or what the law terms the failure to exercise slight diligence caused the mischief.^ All profit and increase derived from the 1 Wilkinson v. Verity, L. R. 6 C. * If the owner neglects to take the P. 206. Cf. Crump v. Mitchell, 34 thing away after due notice and op- Miss. 449. And see McMahon v. portunity, the gratuitous bailee may Sloan, 12 Penn. St. 229. place it on storage at the bailor's 2 Beavdslee v. Richardson, 11 charge, subject to the risk of being Wend. 25 ; Derrick v. Baker, 9 Port, sold by the storekeeper for his own 362 ; Winkley v. Foye, 33 N. H. 171 ; charges. But the bailee cannot sell Story Bailm. § 104 ; Lees v. Dwight, the property. Dale v. Brinckerhoff, 10 La. Ann. 711. 7 Daly (N. Y.), 45. 3 Uoulston V. McClelland, 2 E. D. ^ gtory Bailm. §§ 97, 194 ; Jones Smith (N. Y.), 60. Bailm. 30, 40, 120 ; Coggs v. Ber- 71 § 58 THE LAW OF BAILMENTS. [PART II. thing, such as the offspring of an animal, or the hire-money received from a machine, ought likewise to be delivered up or accounted for.^ § 58. Redelivery or Delivery over ; to •whom ; Stakeholder, etc. ; Misdelivery. — The person to whom delivery ought to be made is ascertainable by reference to the terms and true import of the bailment. Delivery is, under our present liead, most commonly a redelivery; but it might be, as the contract or circumstances required, to some third person such as the bailor's transferee.^ A stakeholder, or the bailee, such as a clerk holding money paid into court, or a sheriff with attached goods, who holds under a sort of sequestration, must needs assume a certain responsibility for ascertaining to whom he should ultimately make delivery.^ And in various other instances discretion must be exercised by the bailee as to the party entitled to receive the thing from him; as where the bailee takes a deposit to be paid over after he has ascertained a certain fact; but the courts are indisposed to extend, by inference, the perils of an unprofitable trust.* A grossly careless or wanton misdelivery is inexcusable, and renders the gratuitous bailee suable for conversion.^ But misdelivery, cunningly induced by strangers or through the bailor's own fault, is excusable where the bailee exercised due prudence.^ nard, 2 Ld. Raym. 909 ; 2 Kent Com. ■r. Fitzpatrick, s?«pra. And see Story 667 ; Pothier de Mandat, n. 58, 59 ; Bailm. §§ 128, 132 ; Blake v. Kimball, supra, § 35. 106 Mass. 215. A mere receiptor 1 Story Bailm. §§ 99, 194 ; 2 Kent has simply to account to the attach- Com. 567. ing officer. Bangs v. Beacham, 68 2 Story Bailm. § 103. Me. 425. 3 See Mott v. Pettit, Ooxe, 298; * See Trefftz v. Canelli, L. R. 4 State V. Fitzpatrick, 64 Mo. 185. P. C. 277 ; Lafarge v. Morgan, 11 The defendant, in case of the dis- Mart. 462 ; Carle v. Bearce, 33 Me. solution of an attachment, appears 337 ; Chase v. Gates, ib. 363. prima facie the true owner, to be ^ Hubbellu. Blandy, 87 Mich. 209. thus regarded by the attaching offi- ^ Metzger v. Franklin Bank, 119 cer. But the officer must take no- Ind. 359 ; so where the bailor's agent tice of any rights meantime made misled him. Brant v. McMahon, 56 known to him of the defendant's ven- Mich. 498. dee, and surrender accordingly. State 72 PART II.] BAILMENTS YOU THE BAILOR'S BENEFIT. § 60 § 59. The Same Subject ; Bailor'3 Asent, Successor, etc. — Bailment by a servant, as sncli, is bailment for liis master; and redelivery, or delivery over, may be either to a master or to his servant, on the usual principle. But it behooves the bailee not only to regard such revocation of an agency as ma}' have been brought to his attention, but to scrutinize the authority of one who offers himself for the first time as agent at this stage. ^ Delivery over to one fully authorizx'd will discharge the bailee, even though the latter was not aware that such authority had been conferred.^ In like manner, where one has bailed in a representative capacity, such as an executor or administrator, or a guardian, or a trustee, the bailee should not redeliver regardless of that circumstance ; and in case a successor in the trust has been appointed, redeliver}- should be to him, or, where the trust has expired, as in the instance of a minor ward attain- ing majority, to the party sui juris lawfully entitled.^ If, on the other hand, redelivery or delivery over was under- taken with reference to one at the time alive and sui juris, his subsequent death or legal incapacity pending accomplish- ment of the bailment purpose would, on general principles, compel the bailee to deal with the personal representative instead.* § GO. Delivery over •vyhere Adverse Claims of Title are made. — But the bailee's situation at the termination of his trust obliges him not unfrequently to go outside his undertaking and choose whether to redeliver by his bailor's title, or by that of some stranger who sets up an adverse claim to the thing. A bailee cannot, in general, dispute his bailor's title, nor set up a third party's rights without authority, nor refuse to perform in accordance with his undertaking; and yet the rightful owner cannot thus be wholly excluded, else every thief might find a safe treasure-house wherever he 1 Bac. Abr. Bailment, D.; Story 'Story Bailm. § 100; Bothier Bailin. § 106. Trait6 de D6p6t, n. 50. 2 See Chattahoochee Nat. Bank «. * Story Bailm. §§ 100, 211. But Schley, 68 Ga. 369. see § 61. 73 ^ 60 THE LAW OF BAILMENTS. [PAKT 11. could persuade an unsuspecting person to become his bailee. In point of fact our bailee must respond to the legal claims of the true owner whenever asserted in season ; for, though his actual redelivery or delivery over in accordance with the undertaking in good faith, and without adverse notice, will doubtless clear him,i he acts at his peril, if he disregards notice of a claim and of the claimant's intention to enforce it, before parting with possession. ^ But the bailee is not powerless ; since he may refuse delivery and call in the bailor to defend the claimant's suit, or, what is more convenient, interplead bailor and claimant, and leave a court of equity to determine the true title on ample investigation. ^ The Louisiana Code declares a depositary bound, in the absence of judicial procedure, to hold the deposit subject to the depositor's order.^ But as a rule, delivery in fact to the rip-htful party will exonerate every bond fide bailee who holds under a wrongful delivery of possession; and wherever the bailee can show that by legal proceedings, of which his bailor had due notice, or to which he was properly made a party, the surrender to another was compelled, the bailor cannot hold him responsible.^ While, too, a bailee may not dispute his bailor's title, he may show that some third person to whom the bailor transferred such title, has given notice of his right, and that to him the bailee must account.^ A gratuitous bailee cannot defend an action for reposses- sion brought by the bailor's vendee, by pleading that the bill of sale under which the plaintiff claims is fraudulent. For a sale which creditors might set aside as fraudulent will 1 Nelson v. Iverson, 17 Ala. 216 ; * Britton v. Aymar,23La. Ann. 63; 34 La. Ann. 1133. See Brown v. Story Bailm. § 102. Thayer, 12 Gray, 1 ; Dewey v. Field, & Ogle v. Atkinson, 5 Taunt. 759 ; 4 Met. 383 ; Dodge v. Meyer, 61 Cal. Story Bailm. § 102 ; Wilson v. Ander- 405. ton, 1 B. & Ad. 450 ; Clieesraan v. 2 See Wilson v. Anderton, 1 B. & Exall, 6 Ex. 341 ; Bates v. Stanton, 1 Ad. 450, per Lord Tenterden. Duer, 79 ; Cook v. Holt, 48 N. Y. 3 lb. ; Cook V. Holt, 48 N. Y. 275 ; 275 ; Fisher v. Bartlett, 8 Me. 122 ; 2 2 Kent Com. 568 and n. ; Story Bailm. Kent Com. 566-568 ; Magdeburg v. §§ 110-112 ; 2 Story Eq. Jur. §§ 801, Uihlein, 53 Wis. 165. 806, 823. 6 Roberts v. Noyes, 76 Me. 590. 74 PART II.] BAILMENTS FOR THE BAILOR'S BENEFIT. § Gl meantime bind the parties in immediate interest;^ and a bailee should set up no technical plea in derogation of his undertaking.^ § 61. Effect of Death upon the Bailment. — The death of a bailee without reward, if not actually terminating the bail- ment, gives the bailor the right at all events to put an im- mediate end to it, and reclaim his property. Nothing but the bailee's possible lien for reimbursement or jus tertii can obstruct him. Hence, a third person coming into possession of the thing bailed among the dead man's effects, though he be a coroner, cannot resist the bailor's demand by setting up the title of the deceased bailee's personal representatives.^ In general, the death of a mandatary or agent, being founded in personal confidence, will dissolve the relation; but, accord- ing to Judge Story, who follows the rational maxim of the civil law, a partial execution might oblige his representa- tives to complete it; which is commonly done where the bailee withholds his countermand, and the trust requires no great exercise of skill.* The death of the mandator, or principal, on the other hand, operates at once a revocation of autliority; which the common law vigorously insists upon, whether the gratuitous mandatary or agent knows of the circumstance or not.^ But bailment undertakings stand not on the strict footing of agency; and were the question to arise Avith reference to a duly diligent accomplishment by some bailee without reward who had not learned of his bailor's death, we apprehend he would not be severely dealt with ; for our modern inclination is to that civil policy which upheld all the acts performed in good faith by an agent after his principal's death, while as yet he was not aware of the fact. 6 1 Hendricks v. Mount, 5 N. J. L. 643, 644 ; Story Accency, §§ 4G5, 488- 738; Brown v. Thayer, 12 Gray, L 494; Tothier de Mandat, n. 101. And see Bangs v. Beacham, G8 Me. » 2 Kent Com. 640 ; Story Bailm. 425. § 205 ; Story Agency, §§ 488-490. "^ Supra, % 22 \ Magdeburg v. Uili- ^ jn.st, 3, 27, 10; 2 Kent Com. lein, o3 Wis. 165. 646 ; Story Agency, §§ 488, 497 ; 8 Smiley v. Allen, 13 Allen, 405. Potbier Contrat de Mandat, n. 101. * Story Bailm. § 202 ; 2 Kent Com. 75 § 62 THE LAW OF BAILMENTS. [PART II. § 62. Where the Bailment is Joint or Common. — The law of agency, likewise, treats a joint authority to two persons as terminated by the death of either. ^ In the case of joint bailees, each is commonly responsible for the whole under- taking.2 Again, a strictly joint bailment by two or more calls properly for redelivery on their joint order, or to all and not one of the joint bailors.^ But the common law treats the chattel joint and common ownership with studious indiif erence ; for it is a relation of much inconvenience, especially if the thing admits, of its nature, no partition.* Where delivery was made by one joint owner without the privity of the others, the bailee is justified, it would appear, in dealing with him alone. ^ So, too, it is said that there may be a joint deposit under a contract which expressly provides for a several delivery to each person of his share ; under which bailment each owner could demand and sue for his own share separately.^ A modern English case goes so far as to uphold the plea of the depositary of a specific thing that he has restored to one of the co-owners, wherever he is sued at law in the name of all the co-owners for delivering without their joint order; and this on the technical ground that one of these co-owners, by procuring redelivery to him- self, has become disabled from suing. ^ Where, again, the bailee himself is joint owner in that which was bailed him, he must accomplish the undertaking by the usual rules; and yet, it is said, if the thing be indivisible, and any co- owner dispossess him, such bailee cannot get it back.^ But where the personal property of joint and common owners may, like corn or wine, be fairly divided among them, the disposi- tion increases to deal more justly by the dispossessed parties.^ 1 2 Kent Com. 645, 646. 5 May v. Harvey, 13 East, 197 ; 2 Story Bailm. §§ 114, 195. Story Bailm. § 114. See Van Winkle 8 Story Bailm. §§ 116, 195 ; 2 Kent v. Crowell, 146 U. S. 42. Com. 567 ; Brandon v. Scott, 7 El. & 6 gtory Bailm. § 114. Bl. 234, per Campbell, C. J. ; Jones " Brandon v. Scott, 7 El. & Bl. 234. Bailm. 52 ; Rand v. State Nat. Bank, 8 story Bailm. § 114 ; HoUiday v. 77 N. C. 152. Camsell, 1 T. R. 658. 4 See 1 Schoul. Pers. Prop. §§ 154- » 1 Schoul. Pers. Prop. §§ 165-167. 167. In a recent case, an officer sued 76 PART II.] BAILMENTS FOR THE BAILOR'S BENEFIT. § G4 § 63. Place of Delivery back or over. — The place where the bailee should redeliver or deliver over, the apparent understanding of the parties, their situation and circum- stances, and the character of the thing, must mainly deter- mine. One could hardly undertake to carry the bailor's chattel to a third person without assuming as the place of final delivery a locality remote from that where the bailee acce[)ted delivery ; and under certain circumstances, as for a redelivery after working on the thing, the bailor's premises might be often the most suitable. But every bailee without reward ought to be given the least possible trouble consist- ently with his actual undertaking; and hence for a mere deposit the place of deposit is presumably the place of final surrender. But wherever the place of redelivery or delivery over was prearranged by mutual contract, that contract shall be decisive of the matter. ^ § 64. Duty of rendering an Account. — Among the duties of a mandatary enumerated by the civilians is that of render- ing an account.^ Under our system, also, agents who have extensive affairs committed to them, and moreover trustees and other fiduciary officers, are expected to render formal accounts of their transactions, which accounts come often under judicial supervision, and become matters of public record. All this, however, has chiefly to do with property management far more extensive and complicated than is fairly incident to pure bailment undertakings. Account, under the present head, could scarcely be more than the bailee's report of what he had done, with a statement of parties in damages, for refusing to as an excuse, tliat the defendant in surrender to him property which he the attachment suit had no title to had taken by attachment against one tlie property. Clark v. Gaylord, 24 of them, and then delivered to both Conn. 484. upon tlieir written receipt to rede- i Story Bailm. §§ 117, 118 ; Pothier liver the same on demand. It was Trait6 de D^pot, n. 5(); Uoulston v. held: (1.) That the officer's bailment McClelland, 2 E. D. Smith, GO. to the defendants was a sufficient con- - Ilarter v. Blanchard, 04 Barb. sideration for their express promise to 617; Devalcourt v. Dillon, 12 La. redeliver it. (2.) That, having given Ann. G72 ; Story Bailm. §§ 121,154, such receipt, they could not set up, 197, 198. 77 § 64 THE LAW OF BAILMENTS. [PART IT. expenses, if any were incurred. Whether such account is requisite at all should depend upon the complexity and magnitude of the particular undertaking and the plain understanding of the parties; and the final redelivery or delivery over of the thing in suitable condition and after a suitable manner ought usually to suffice wherever a bailee has performed a simple undertaking without reward.^ But assuredly, if the thing be not forthcoming when the bail- ment is terminated, or if it be produced in a damaged state, the bailee ought upon request to give a satisfactory account therefor, or else stand answerable civilly, and perhaps as a criminal besides. ^ And any depreciation of the thing occur- ring after his default, the bailee, it would appear, is bound to make good.^ It follows from the course of our investigation that the bailee of chattels who has fully and in good faith accounted to his bailor, cannot be held responsible by third persons of whose adverse claims he was not previously notified.* 1 But see Story Bailm. §§ 191-193; 3 See B^rard v. Boagni, 30 La. Pothier Contratde Mandat, n. 61-66. Ann. 1125. 2 Graves v. Ticknor, 6 N. H. 537. * Dickson v. Chaffe, 34 La. Ann. 1133 ; supra, § 60. 78 PART III.] BAILMENTS FOR THE BAILEE'S BENEFIT. § GQ PART III. BAILMENTS FOR THE BAILEE'S SOLE BEXEFIT. GRATUITOUS LOAN FOR USE. § 65. Introductory; Loan for Use defined. — This next class of bailments resembles the preceding in its one-sicledness of recompense; whence some have reckoned both under the single denomination of gratuitous bailments.^ Familiar as this transaction must be in daily life, very few English or American decisions are found, and our guide must be com- mon sense and the analogies available. If honor does not hold the borrower to his duty, delicac}^ restrains the lender from pursuing his legal remedies. The meagre precedents wliich are to be drawn from our reports serve mainly to illustrate general principles, save as to the degree of care and diligence required, in which single aspect this bailment differs from all others. The sole benefit now shifts from bailor to bailee, who remains as hitherto the conspicuous figure of the two, but bears what might be styled an open pack from which to help himself, instead of a closed one. To all practical intent, every bailment for the bailee's sole benefit is a loan for use ; and accordingly we may define the bailment as one for the temporary beneficial use, Colquhoun Kom. Civ. Law, § 1 Q. B. 422. So, too, under the code, 20G7 ; Story Bailm. § 257 ; Pothier 73 Ga. 472. Pret k Usage, n. 20-27, 76. 77. 3 Story Bailm. §§ 257, 777. ^ Clapp v. Nelson, 12 Tex. 370 ; * Supra, § 70. Green v. Hollingswortb, 6 Dana, 173, 91 § 82 THE LAW OF BAH.MENTS. [PART III. If there be uncertainty as to whether the bailment period has actually expired, the lender who seeks to resume the use of the thing ought to make a demand before suing the bor- rower to recover possession. But the disposition of the courts is to favor the former party; and wherever no such uncertainty exists, or the demand would be an empty form, our law will readily dispense with such preliminaries.^ The attempt of a borrower to exercise full ownership over the thing without his lender's permission is a gross breach of faith; and, save so far as the doctrine of a countervailing equity might protect bo)id fide transferees for value, the bor- rower's wrongful transfer cannot hinder the lender or rightful owner from pursuing the thing as his own and suing, as in tort, for its repossession. ^ The bailee's wrongful transfer should of itself put an end to the bailment; but this, accord- ing to the better opinion, for his bailor's advantage rather than his own.^ § 82. BorroAver's Duty to deliver back or over. — A bor- rower whose time of enjoyment has expired can expect little or no indulgence. His duty becomes fixed to surrender possession, to deliver the thing over immediately to the bailor or his order. Redelivery may be, like the original delivery, through the medium of agents on either side duly empowered.* In giving up the thing, the bailee should likewise surrender its increments ; and it is only so far as the chattel may have been lost or impaired without imputing either fraud or slight negligence to him that his obligation is lightened.^ Should he be in positive default as to return- ing the thing at the proper time, he becomes absolutely accountable for any loss or harm to the thing which may 1 Clapp V. Nelson, 12 Tex. 370; ^ jb. And see Wilkinson v. Verity, Ross V. Clark, 27 Mo. 549 ; post, as L. R. 6 C. P. 206. to Hired Use, Part IV. c. 3. * Story Bailm. § 262 ; supra, §§ 19, 2 Cooper V. Willomatt, 1 C. B. 59. See Esmay v. Fanning, 9 Barb. 672 ; Hurd v. West, 7 Cow. 752 ; Es- 176; Green r. Hollingsworth,5 Dana, may v. Fanning, 9 Barb. 176; Mc- 173; Rossi;. Clark, 27 Mo. 549. Mahon v. Sloan, 12 Penn. St. 229; 5 story Bailm. §§ 257, 260; Poth- Crump V. Mitchell, 34 Miss. 449. ier Pret a Usage, n. 73, 74. 92 PART III.] BAILMENTS FOR THE BAILEE'S BENEFIT. § 83 ensue, even if accidentally; though it would be otherwise if the bailor refused to accept redelivery, for then the lender would be in default; and possibly other cases might arise where the honest borrower would not be so harshly dealt with.^ The proper place for delivering back the thing is to be ascertained from the special circumstances of the bail- ment; but in a doubtful issue we may assume that the party conferring the favor was not expected to be at the personal pains of seeking out his beneficiary.^ The final delivery will most naturally be to the lender himself, unless he has ordered otherwise;^ but the borrower is not to exercise his own option, nor to set up an adverse title in himself or others ; though if a rightful owner should put him at legal jeopardy, or he should be forcibly dispos- sessed, this is another matter.* On the lender's death the borrower becomes commonly bound to restore the chattel to the lender's executor or administrator.^ But on the bor- rower's death the bailment, if not thereby legally dissolved, may usually be cut short by the bailor, whose demand for his property cannot be successfully resisted by a party in temporary custody on any plea that the borrower's personal representatives should have it.^ § 83. Whether Borrowrer may detain for Expenses. — A bor- rower has no right, except it be under a special contract, to detain the chattel for any general demand he may hold against his lender ; " nor for the ordinary expenses he may 1 Story Bailm. §§ 257, 259 ; Jones Gaither, 72 N. C. 234, as to whether Bailin. 68, 70 ; Stewart v. Davis, 31 the borrower may set up title iu the Ark. 516 ; La. Code, art. 2870 ; 2 lender's assignee in bankruptcy. Kent Com. 574 ; Pothier Pret k * Riddle v. Bond, 34 L. J. Q. B. Usage, n. 60 ; Cases of Hire, post. 137, per Blackburn, J. ; The Idaho, 2 Story Bailm. § 261 ; Pothier Pret 93 U. S. 575, per Mr. Justice Strong ; k Usage, n. 36, 30. Esmay v. Fan- Story Bailm. § 206 ; Watkins v. Rob- ning, 9 Barb. 176, favors regarding erts, 28 Ind. 167. the lender's residence as the place of ^ Story Bailm. § 265 ; sripra, § 59. redelivery ; and so did the Roman ^ Smiley v. Allen, 13 Allen, 465. law. Here the custodian was a coroner. 8 Story Bailm. § 205 ; Simpson v. ' 2 Kent Com. 574 ; Pothior Pret Wrenn, 50 111. 22*2 ; Nudd v. Mon- k Usage, n. 44; Story Bailm. § 264. tanye, 38 Wis. 511. See Lain v. 93 § 8i THE LAW OF BAILMENTS. [PART III. have incurred about the thing, since these should be borne by the borrower himself. But for some such extraordinary expense as permanently benefits the chattel and was found needful for its preservation, the borrower may charge his lender ; to which extent it would appear that his lien thereon is good for his reimbursement ; unless, perhaps, he was remiss in procuring his lender's sanction to the expenditure.^ § 84. Intervention of Lender does not release Borrower from Liability. — Should injury happen to the chattel while in the borrower's hands, the lender's intervention to remedy the mischief does not release the borrower from liability for causing it through his own negligence or misconduct.^ 1 2 Kent Com. 576 ; Story Bailm. 2 Bayliss v. Fisher, 7 Bing. 153 ; §§ 273, 274 ; siq^ra, § 78. Todd v. Figley, 7 Watts, 542 ; Story Bailni. § 269. 94 CHAP. I.] BAILMENTS FOR MUTUAL BENEFIT. § 85 PART IV. ORDINAKY BAILMENTS FOR MUTUAL BENEFIT. \ CHAPTER I. BAILMENTS FOR HIRE IN GENERAL. § 85. Bailments Gratuitous and for Hire compared. — In passing from gratuiloiis bailments to those intending a mutual benefit, from the one-sided undertaking to that which puts the rights of the parties in balance, we are at once impressed by the similitude borne by these two classes, with regard to the varied purposes which the bailment may seek to accomplish. This similitude jurists have somewhat obscured by a promiscuous use of Latin epithets, but it is traceable notwithstanding. Our chattel for mutual benefit is delivered as before. And this delivery may be, to speak roundly, (1) for its deposit, or (2) for the performance of some work upon it, or (3) for its carriage — in all of which three instances the bailee has the main undertaking to per- form. Or it may be (4) for beneficial use, where the bailee is to derive some temporary enjoyment. In only one marked instance (5) that of pledge, or delivery in security for some debt or engagement, does the bailment for mutual benefit present an essentially new class of transactions ; and this is only accumulative. As under our former heading, it will appear that a mutual-benefit bailee who assumes a burden (that is to say, one who does not take for beneficial use) has a duty to perform in which the elements of custodian, workman, and carrier, might, according to the mutual under- standing of parties, be blended in various ways. For, after 95 § 86 THE LAW OP BAILMENTS. [PART IV. all, the difference of legal principle arises only from the introduction of a make-weight, namely, recompense, or the quid pro quo for doing as before. § 86. Hiring and Letting; the Roman Locatio-Conductio. — Leaving the transaction of taking in security to stand for treat- ment upon its own peculiar merits, to bailments for mutual benefit otherwise created, we are wont to apply, for want of more precise English words, the terms " Hii'ing " and " Let- ting. " But that these terms are thus used in their full popular or legal sense, is not to be pretended. For, as to hiring^ we must put out of mind, first, the general engagement of one's personal services for reward, since bailment oj^erates purely in rem; and next, the hire for use of real estate, inasmuch as personal property or the chattel is our only appropriate subject-matter. This leaves us with two distinct applica- tions of the word: the one, to denote the procuring of labor and service about a chattel for a recompense, in which the bailor is hirer, and the bailee takes the recompense; the other, the procuring for recompense of the beneficial use of a chattel, where it is the bailee who hires while recompense falls to the bailor. And so correspondingly with letting ; a word so uncouth, however, in the present connection, that we shall dispense with it as much as possible. The bailment for hire, then, may be defined as one in which recompense is to be given either for services about a chattel, or for its temporary use.^ The Roman law (in which, however, one discovers no comprehensive theory of bailments) used the compound locatio-eonductio in the present connection, though not with- out some confusion of meaning.''^ Locatio-eonductio withheld a transfer of the owner's property right while it gave posses- sion ; the term importing a price or recompense. It might 1 See Bouv. Diet. "Hire," "Let" ; connection. 4 Gibbon Rome, c. 44. Story Bailm. § 308 ; 2 Kent Com. And Judge Story lialf inclines to fol- 585. low him. Story Bailm. § 369. But - Gibbon, in his famous chapter the other English meanings of this upon Justinian's Code, tries natural- word might be thought to make its izing the word "location" in this present use somewhat objectionable. 96 CHAP. I.] BAILMENTS FOR MUTUAL BENEFIT. § 87 arise de re utenda, for the use of a thing ; otherwise for hibor and service. The locator was the party who put the thing out, and the conductor the party undertaking performance ; although, as some commentators show, a party undertaking to perform labor and services was sometimes styled, from liis special standpoint, locator ojyerarum, as well as conductor operis} From the French civilians we get a wider range of terms — locateur, loueur, or bailleur, denoting the one who puts the thing out, and condueteur^ preneur, locataire, the corresponding party who i)erforms upon it.^ § 87. Classification of Ordinary Bailments for Hire. — In the next two chapters the ordinary bailment for hire will receive treatment so as to show separately (following the order pur- sued in gratuitous bailments), first, the hire of services about a chattel ; second, the hired use of a chattel. And under the first head we shall incidentally distinguish these kinds : the service of custody of the thing, the service of bestowing work upon it, and the service of carrying it from one place to another ; not for the sake, however, of making blunt dissec- tion of a bailment purpose which often runs into combination. But extraoi-dinary or exceptional bailments, notably Inn- keepers and Common Carriers, we reserve for later and distinct treatment. The civil law of locatio- conduct io laid stress, apparently, upon the subdivisions above noted: for there was locatio custo- dice, or the hire of the thing's custody ; locatio operis faciendi, or the hire of work and labor upon the thing ; and locatio operis mercinm vehendarum, or the hire of its carriage.^ There was also locatio rei, or the hiring for temporary use.* ' Cohjuhoun Koin. Civ. Law, § coined for modern convenience, and 1008 ; Jones Baiha. 30, 90 ; Story the Konian hire of custody was si- Bailm. § 309. Icntly included under locatio operis 2 Pothier Contrat de Louage, facimdi. See Colquhoun Kom. Civ. n. 1. Law, § 1008; Story Baihn. supra; 3 Story Bailm. §§ 8, 370, 422, 442. 2 Kent Com. 580. Except to lejral And see supra, §§ 13, 14 ; Jones antiquarians, however, this tecimical Bailm. 30, 8t), 90, 103, 117 ; Coggs difference is of little consequence. V. Bernard, 2 Ld. Baym. 909. Pos- * Story Bailm. § 383. sibly locatio cnstodiie is only a term 7 97 § 90 THE LAAY OF BAILMENTS. [PAET lY. § 88. Essentials of Bailment Contract for Hire. — To all bailment contracts for hire, these three tilings are found essential : (1) a chattel or chattels as the subject-matter ; (2) a recompense ; (3) mutual assent to accomplishing a specific bailment purpose towards such chattel or chattels for such recompense. S 89. Essential of Chattel as Subject-matter. — 1. That there should be a chattel or chattels as the subject-matter is im- plied in every bailment from its definition. Real estate is therefore excluded ; but any kind of personal property, cor- poreal or incorporeal, may furnish a subject-matter, whether in the tangible thing itself, or, as to things incorporeal, in some muniment of title which is capable of delivery .^ But that which has not yet come into existence as property, or which exists as such no longer, cannot be the subject-matter of a present undertaking for hire.^ § 90. Essential of Recompense. — 2. As to a recompense, prethim, or price, is the Roman term, which we employ with quite an extensive meaning in our law of sales.^ This recompense need not be definitely fixed, provided it be ascer- tainable from the contract ; and it may have been tacitly implied as well as expressly agreed to. In the absence of more positive proof, we may regard compensation in a par- ticular bailment to be such as, consistently with local and business usage and the general situation and circumstances of the parties, would be just and reasonable. If left to some third party to fix, the essential is supplied on his bond fide performance of the trust.* Bailment recompense is com- monly in money ; but not indispensably so, as some other kind of property would suffice, some service, some contem- 1 Story Bailm. § 373. § 1668 ; Benj. Sales, bk. 1, pt. 1, c. 2 Story Bailm. §§ 372, 373 ; Coggs 1 ; 2 Schoul. Pers. Prop. § 211 ; Story t). Bernard, 2 Ld. Raym. 909 ; Pothier Bailm. §§ 374-376; 2 Kent Com. Contrat de Louage, n. 7 ; 2 Schoul. 585, 586. Pers. Prop. §§ 207-210 ; Benj. Sales, * 2 Schoul. Pers. Prop. §§ 211-217 ; bk. 1, pt. 1, c. 4; 2 Kent Com. 585, Benj. Sales, bk. 1, pt. 1, c. 5 ; Story 686. Bailm. §§ 374-376 ; Pothier Contrat 3 Colquhoun Rom. Civ. Law, de Louage, n. 37. 08 CHAP. I.] BAILMENTS FOR MUTUAL BENEFIT. § 91 plated advantage ; ^ any reciprocal benefit,- and even a bene- fit contingent and indirect, such as tlie opportunity of getting more business, may, it is held, take a Ijailincnt out of tlie gratuitous class.^ But tlie idea of reconi[)cnse includes, of course, the giving in return of sometliing valuable; and an undertaking essentially gratuitous by mutual intendment is not to be construed into an undertaking for liire, merely because of some trivial advantage the bailee might incident- ally derive.* § 91. Essential of Mutual Assent to a Specific Accomplish- ment. — 3. iNIutual assent to accomplisliing a specific bail- ment purpose towards the specific chattel or chattels for the specific recompense is our third essential ; the accomplish- ment requiring, of course, that deliver}' precede, and delivery back or over follow. This nuitual assent must relate to the particular subject-matter whose continuous identity our law of bailments so carefully preserves ; likewise to the particu- lar compensation.^ For if I promise to hire a certain horse, the bailor's assent must not attach to a different horse, else there would be no mutual understanding, but rather a mis- understanding. So, too, if the bailee offered one recompense while the bailor assented to another, the essential mutuality would be wanting. Error going to the essentials invalidates the contract ; and fraud or force on either side renders it voidable by the aggrieved party .^ The mutual assent thus reached, positive words and acts may evince ; so, too, is it inferable from the conduct of the bailment parties at the time of the transaction, and various surrounding circumstances. But, reduced to its simplest elements, there would appear an offer to hire accompanied 1 \Vhite r. Humphcrj^ 11 Q. B. 43 ; * See Carpenter v. Branch, 13 Vt. Parker v. ^Nlaniuis, 04 Mo. 38 ; Cham- IGl. berlin v. Coljb, 32 Iowa, 101 ; Fran- ^ 2 Schonl. Pers. Prop. § 205 ; cis V. Shrader, 07 111. 272. Story Baihn. § 378. 2 Prince v. Alabama Fair, 100 « Story Bailin. § 381 ; 2 Rohoul. Ala. 340. Pers. Prop. §§ 205, 218 ; Bciij. Sales, 8 Newliall V. Paige, 10 Gray, 308 ; bk. 1, pt. 1, c. 3, § 1 ; Parker v. Mar- ■Woochvard v. Painter, 150 Penn. St. quis, 04 Mo. 38. 91 ; Bunnell v. Stern, 122 N. Y. 539. 99 § 92 THE LAW OF BAILMENTS. [PART IV. by the acceptance thereof ; which offer and acceptance once closing together, the contract for hire would stand complete. If the offer of one party is varied in its acceptance by the other party, and the latter's proposition is not accepted before he withdraws it, he is not bound thereby.^ Bailment and the delivery for the agreed purpose might or might not be con- temporaneous with such contract.^ And the bailment rela- tion comprehends no terms beyond the scope of what was mutually agreed upon.^ § 92. The Same Subject ; Competent Parties ; a La-w^ful Pur- pose. — A contract of hire should, like any other contract, be entered into by competent parties ; and as to parties under legal disability, such as infants, the usual rules appl3^* The contract must not be such that accomplishing the bailment purpose would involve the execution of an unlawful purpose, or contravene good morals and public policy. Thus, the agreement to bail on hire a revolver for committing murder, or tools for burglary, or furniture for purposes of prostitution, is illegal and void. Equally void are bailment contracts to aid a public enemy, and, where revenue laws are in force, for hiring a smuggling vessel.^ Public policy and the legislation which reinforces it may change with public opinion, but the vital principle remains. And here we may observe that Sunday laws and their enforcement occupy our courts with reference to bailment contracts more than all the other instances of illegality put together ; and this chiefly with reference to horse-driving on that day.^ These laws, which are to be found in the statute books of England, and 1 Lincoln v. Gay, 164 Mass. 537. for breach of his contract. Dilk v. 2 2Schoul. Pers. Prop. §§2]8-22L Keighley, 2 Esp. 480; Jennings v. Bailment to a corporation may be Rundall, 8 T. R. 335. But for his evidenced by a resolution of the di- torts it is otherwise. Homer v. rectors, and some instrument made Thwing, 3 Pick. 492. in pursuance thereof. 171 Penn. St. ^ Story Bailm. §379; Pothier 243. Contrat de Louage, n. 26 ; 2 Schoul. 3 102 Cal. 666. Pers. Prop. §§ 617-625 ; Benj. Sales, * Story Bailm. § 480 ; Pothier Con- bk. 3, c. 3, § 1. trat de Louage, n. 42. Thus an in- ^ gee 2 Schoul. Pers. Prop. §§ 617- fant cannot be compelled in damages 626 ; as to Hired Use, post, c. 3. 100 CHAP. I.] BAILMENTS FOR MUTUAL BENEFIT. § 94 most, if not all, of the United States, prohibit, in terms more or less sweeping, all travelling on the Lord's day, except on occasion of necessity and charity, and moreover the transac- tion of secular business.^ The modern rule, which runs a hair-line for such cases, and likewise for other bailment con- tracts tainted with illegality, upon which bailor or bailee seeks a remedy, is as follows: if the party who sues can show a complete cause of action without proof of his own illegal act, he may recover, even though such illegality may incidentally appear in testimony; but wherever illegality must be proven by him as part of his cause of action, he cannot recover.^ § 93. Contract for Hire compared vyith Contract of Sale. — The bailment contract for hire is thus seen to resemble in essentials the contract of sale (from whose analogies must in truth be derived most of the guiding maxims at the present imperfect stage of our bailment law), with only the radical difference that tliere a full transfer of one's property in a thing is contemplated, but here only possession w^ith at most temporary rights. In the one instance we watch to discover the passage over of a full title ; in the other, of a mere corpo- real deliver}^ to be followed by delivery back or over. § 94. Contract for Hire distinguished from Bailment. — But our contract for a mutual-benefit bailment may live before the bailment; since, any contract of hire once completed, the parties acquire mutual rights and duties which are enforce- able, and for w^hat is called non-feasance, or the failure of either to fulfil his part, the injured one may compel redress.^ And this non-feasance may consist in the failure of the one to make or of the other to accept the promised bailment delivery. Herein differs the bailment for mutual benefit radically from the gratuitous sort hitherto discussed.* 1 lb. Woodman v. Hubbard. 5 Fost. 67 ; 2 Caqjentcr, J., in Frost i\ IMumb, Morton v. Gloster, 40 Me. 520. 40 Conn. 111. See Stewart v. Davis, 8 gge Thome v. Deas, 4 Jolins. 84 ; 31 Ark. 518 ; Hall v. Corcoran, 107 Elsee v. Gatward, 5 T. K. 14;3 ; Story Mass. 251 ; Fisher v. Kyle, 27 Mich. Baihn. §§ 384, 43G ; 2 Kent Com. 454 ; Gregg v. Wymau, 4 Cush. 322 ; 570. Wheldeu v. Chappel, 8 R. I. 230; * lb.; siq)ra, §§ 21,34, 71. 101 § 94 THE LAW OF BAILMENTS. [PART IV. Yet, this contract of hire being but the contract for a bailment, the baihnent itself arises, as of course, only upon delivery and acceptance, with intent of delivering back or over; and to the performance, well or ill, of the undertak- ing, possession by the bailee is indispensable.^ Nor should it be thought that bailments for mutual benefit necessitate a contract and mutual terms. For, as in gratuitous undertak- ings, there may exist what we call a quasi bailment, or bail- ment not strictly upon contract; namely, one whose conditions are satisfied with the voluntary acceptance of possession by one who expects some reward for his service ; as, for instance, the lawful captors of a vessel, salvors, and (under exceptional circumstances, where a reward was offered) finders on land ; and further, where their employment in rem goes not un- recompensed, sheriffs, clerks, and other officers of the law. All of these, because of a mutually beneficial possession in fact, are, regardless of an owner's permission, treated, for convenience, as hired bailees.^ And as to tortious possession, the obligation is not lower than that of a bailment for mutual benefit, and may be much higher.^ 1 The use of the Latin term locatio- Cross v. Brown, 41 N. H. 283 ; sripra, conductio, or putting out and bring- § 28. ing again, seems to convey this sense ^ ggg Homer v. Thwing, 3 Pick, of delivery, and delivery back or 492 ; Ray v. Tubbs, 50 Vt. 688 ; over. Frost v. Plumb, 40 Conn. Ill ; Hall 2 Story Bailm. §§ 130, 613-624 ; v. Corcoran, 107 Mass. 251 ; supra, Witowski V. Brennan, 41 N. Y. Super. § 18. 284 ; Phelps v. People, 72 N. Y. 334 ; 102 CHAP. II.] HIRED SERVICES ABOUT A CHATTEL. § 96 CHAPTER II. HIRED SERVICES ABOUT A CHATTEL. § 95. Classification of the Present Chapter. — The leading divisions ol' tlie present chapter are these : I. Matters pre- liminary, including delivery in bailment. II. Accomplish- ment of the bailment purpose. III. Termination of the bailment. These correspond to the divisions hitherto em- ploj'ed in treating of bailments without recompense.^ § 96. Matters Preliminary ; Vocations for Hire. — I. Matters preliminary, including delivery in bailment. There are nu- merous business vocations whose pursuit involves the bail- ment exercise of one or more of these three chief kinds of hired service: viz., (1) hired custody of a thing, (2) hired work upon a thing, and (3) hired carriage of a thing. Among hired custodians are, safe-depositaries, or those who, for reward, take money and valuables into secure places on special deposit ; ^ warehousemen, a designation more generic, but familiarly applied to such as, for reward, keep goods and merchandise on storage ; ^ wharfingers, who, for reward, un- dertake the charge of goods and merchandise on wharves ; * and agistors, so called, who, for reward, take care of domestic animals,^ — an occupation which embraces those who stable horses for their customers.^ Those regularl}^ employed in doing hired work upon chattels are styled workmen, me- 1 Supra, § 25. 521 ; Schwerin v. McKie, 51 N. Y. 2 See Safe-Deposit Co. v. Pollock, 180. 85 Penn. St. 391 ; supra, § 30. •» Bouv. Diet. ; Story Bailra. 8 Bouv. Diet. ; Story Bailm. § 444. §§ 451, 452 ; Rogers v. Stophel, 32 Under the United States laws, ware- Penn. St. Ill; The Francesca, 9 houses are kept for dutiable goods, Ben. 34. subject to the legislation of Congress. * Bouv. Diet. ; Story Bailm. § 443 ; Corklc V. Maxwell, 3 Blatchf. 413 ; Smith v. Cook, 1 Q. B. D. 79. Cartwright v. Wilmerding, 24 N. Y. ^ i\) And see 2 Kent Com. 591. 103 § 98 THE LAW OF BAILMENTS. [PAET IV. chanics, artificers, artisans ; terms which may here be not inappropriately used as designating a wide range of second- ary manual pursuits, upon a thing of unchanged identity, from cobbling a shoe to rigging out a vessel.^ The hired carriage of chattels is a pursuit of such vast responsibility that public policy has taken the bailment under its own wing, as we shall show hereafter ; but a distinction lies between Private Carriers and Public or Common Carriers. Private Carriers, or such as fall without the restraints of pub- lic policy, can seldom be found as a class in modern times ; but we usually designate as such a party who, not making hired transportation his calling, undertakes to transport, for reward, on some special occasion .^ But Public or Common Carriers, as well as those who become virtual custodians from exercising the pursuit of Innkeeper, are clothed with excep- tional responsibilities.^ § 97. Vocation is of Secondary Consequence. — But, save as to the exceptional bailments, the vocation is here of only secondary legal consequence ; and for hii-ed as well as gra- tuitous service, notwithstanding the important bearings of business usage, each bailment stands on its independent merits, and one's promise and acceptance is to be discussed with primary reference to the particular undertaking and particular circumstances. Some, again, whose pursuits have been enumerated, warehousemen and wharfingers, for instance, may appear in one aspect as custodians, and in another as workmen, or even carriers of the thing delivered."* § 98. Whether Bailment is for Hire or Gratuitous ; Change from One Class to the Other. — The three essentials of the bailment contract for hire have already been considered.^ But as to one of these, recompense, the circumstances must, in a doubtful case, resolve whether a reward was mutually 1 Story Bailm. § 422 ; 2 Kent Cullen, 5 Harr. 238. See Common Com. 588 ; Menetoue v. Athawes, Carriers, post, § 323. 3 Burr. 1592. 3 See Part V., 2)ost. 2 Story Bailm. §§ 457-459 ; White * Story Bailm. §§ 446, 449 ; White V. Bascom, 28 Vt. 268 ; Pennewill v. v. Humphery, 11 Q. B. 43. 5 Siqjra, § 88. 104 CHAP. II.] niUEI) SERVICES ABOUT A CHATTEL. § 09 iuteiidud or not; whether, in otlier words, the baihnent is for hired or eompensated serviee with its greater responsibilities, or for gratuitous service with its less.^ Here the bailee's usual course of dealing, his line of business, is an important, and often a decisive, circumstance.^ Recompense or no recompense refers, too, we must remember, not to the result of the undertaking, but to mutual expectation at the outset. And between recompense and non-recompense bailments, the line of demarcation is often very narrow ; ^ as where, on the one hand, I bail my horse, to be broken, by the bailee, to ser- vice, and, on the other hand, lend it to the bailee for free rides ;"* or where the custom of trade makes that a part of the consideration which otherwise might be thought a special gratuitous undertaking.^ So, too, that which began as a gratuitous bailment may change into a bailment for mutual benefit;^ and vice versd ; the question being one of fact. § 99. Doctrine of Accession ; Repairs by Workman, etc. — Where materials are to be employed in repairing a thing, the law of accession comes into view, whose presumption is that, notwithstanding one's added materials be worth more than the other's principal thing, a bailment was mutually intended, whereby the owner of the thing left for repair remains such while the work is being completed, and afterwards." So, if raw materials be delivered by the owner, to be worked up into a new chattel and returned, there is presumably no change of title ; though, were the chattel to be manufactured by the workman himself, out of his own principal materials, 1 We have seen that bailment rec- 161 ; Francis v. Shradcr, 07 111. 272 ; ompense need not be in nioncj' ; and Carpenter v. Branch, i:> Vt. 161. that even an indirect advantage may * Francis v. Shrader, 67 III. 272. often suffice. § 90. And see White v. Humphery, 11 Q. 2 I'attison v. Syracuse Nat. Bank, B. 48. 4 Thomp. & C. 96; Second Nat. ^ Gaff v. O'Neil, 2 Cin. (Ohio) Bank v. Ocean Nat. Bank, 11 Blatchf. 240. 362 ; Dart v. Lowe, 5 Ind. i;31 ; Kirt- « rroston v. Prathcr, 137 U. S. land V. Montgomery, 1 Swan, 452 ; 604 ; § 29. § 29, supra. ^ See 2 Schoul. Pers. Prop. §§ 27- 8 Chamberlin v. Cobb, 32 Iowa, 39 ; 2 Kent Com. 300-304. 105 § 101 THE LAW OF BAILMENTS. [PART IV. he would appear to be no bailee, but the owner, bound to an executory contract of sale.^ If, once more, an owner left his materials to be worked up, or something to be repaired, on the mutual understanding that the workman might return, not the identical thing, nor the materials in their new shape, but something similar, there would be created a mutuum, or sale by the owner, and no bailment.^ §100. Delivery and Acceptance considered. — Until deliv- ery of the chattel there is no bailment, but at the most the right to a bailment under some bailment contract ; either party to which contract, if for hired service about a chattel, may, for a breach, compel spe9ific performance, or sue in damages ; ^ but, upon the concurrence of delivery and accept- ance, the parties assume the full relation whose rights and obligations we shall proceed to discuss. Delivery and accept- ance may be through the medium of agents ; and both parties, or either, may act in a personal or representative capacity, according to the circumstances. There may be constructive instead of actual delivery, or a receipt in the character of bailee; as where one continues the hired custodian of that which he has first sold, or, like a salvor or officer of justice entitled to reward, comes into possession by a justifiable taking, rather than acceptance.^ There may be either act- ual or constructive acceptance ; but, without something that shows the knowledge and intent to become a bailee, no bailment can be inferred.^ On all of these points we have touched before.^ § 101. Accomplishment of the Bailment Purpose ; Standard of Care and Diligence. — II. Accomplishment of the bailment 1 lb. ; Gregory v. Stryker, 2 3 See Elsee v. Gatward, 5 T. R. Denio, 628 ; McConihe v. New York 143 ; Thorne v. Deas, 4 Jolius. 84. E,., 20 N. Y. 495 ; Stevens v. Briggs, * Supra, §§ 4, 93. 5 Pick. 77 ; Pulcifer v. Page, 32 Me. 5 Rogers v. Stophel, 32 Penn. St. 404 ; Arnott V. Kansas Pacific R., 19 111; Spangler v. Eicholtz, 25 111. Kan. 95 ; Lincoln v. Gay, 164 Mass. 297 ; Cox v. Reynolds, 7 Ind. 257. 637. And see Feltman v. Gulf Brewery, 2 2 Schoul. Pers. Prop. § 38 ; 42 How. N. Y. Pr. 488. supra, § 6 ; Powder Co. v. Burkhardt, ^ jSupra, §§ 21, 34, 94. 97 U. S. 110. 106 CHAP. II.] HIRED SERVICES ABOUT A CHATTEL. § 101 purpose. Let us now consider the lec^al obligations of a hired bailee. He ought, in good faith, to perform the intended ser- vice about the chattel, in the exercise throughout of the req- uisite degree of care and diligence, whether it relate to mere custody, or work of a more active sort. The requisite degree which our law prescribes is styled "ordinary " ; and ordinary or the average care and diligence is such as prudent persons of the same class are wont to exercise towards such property or in the management of their own property under like cir- cumstances. It follows that, for loss or injury of the thing, caused by the hired bailee's ordinary negligence, or failure to bestow this ordinary or average care and diligence, he must respond.' Such is the criterion in the absence of special modifying stipulations. 1 2 Kent Com. 588, 591 ; svpra, §15. Ordinary diligence is exacted from warehousemen. Cailiff v. Dan vers, Peake, 114; Batut v. Hartley, L. R. 7 Q. B. 594 ; Titsworth v. Winnegar, 51 Barb. 148 ; Vincent v. Rather, 31 Tex. 77 ; Morehead v. Brown, 6 Jones, L. 3C7 ; Moulton v. Phillips, 10 R. I. 218 ; Jones v. Hatchett, 14 Ala. 743 ; Myers v. Walker, 31 111. 353 ; White v. Colorado Central R., 3 McCr. 559 ; Story Bailni. § 444 ; Schwerin v. McKie, 51 N. Y. 180 (a case of warehousing under United States laws) ; Jones v. Morgan, 90 N. Y. 4. Government may incur such a bailment liability. Brabant V. King [1895], App. Cas. 632. From safe-depositaries. Safe-De- posit Co. V. Pollock, 85 Penn. St. 391 ; National Bank v. Graham, 100 U. S. 694, 704. From wharfingers. Sidaways v. Todd, 2 Stark. 400 ; Foote v. Storrs, 2 Barb. 32(5 ; Rogers v. Stophel, 32 Penn. St. Ill; Cox v. O'Riley, 4 Ind. 308 ; Story Baihn. § 451 ; The Francesca, 9 Ben. 34 ; 104 Cal. 690. From agistors of cattle and stable keepers. Story Bailm. § 443 ; Smith V. Cook, 1 Q. B. D. 79 ; 70 Mich. 205 ; Maynard v. Buck, 100 Mass. 40 ; Halty V. Markel, 44 111. 225 ; East- man V. Patterson, 38 Vt. 146 ; Mc- Carthy V. Wolfe, 40 Mo. 520; Mc- Mahon v. Field, 7 Q. B. 1). 591; Union Co. v. Mallory, 157 111. 554. And if a customer's horse is taken sick, the custodian should see that reasonable treatment is applied or else give prompt notice of the sick- ness to the owner. 49 N. J. I^. 682. From forwarders and private car- riers for hire. 2 Kent Com. 591 ; Story Bailm. § 444 ; Common Car- riers, post ; White v. Bascom, 28 Vt. 268 ; Peunewill v. CuUen, 5 Harr. 238. And from workmen upon cliattels, generally. Clarke v. Earnsliaw, 1 Gow. 30 ; Baird v. Daley, 57 N. Y 236 ; Spangler v. Eicholtz, 25 111 297 ; Russell v. Koehlcr, 66 111. 459 Hillyard v. Crabtree, 11 Tex. 264 Halyard v. Dechelman, 29 Mo. 459 ; Smith V. Meegan, 22 Mo. 150; 2 Kent Com. 588 ; Story Bailm. § 429 ; Kelton V. Taylor, 11 Lea, 264. As where a saw-mill owner takes logs 107 §101 THE LAW OF BAILMENTS. [part IV. If, therefore, in the course of his honest exercise of average diligence, while performing the bailment service, the chattel perish from some internal defect, or through the operation of natural causes, or, generally, because of inevitable accident, the bailee will stand acquitted of blame.^ So, too, if it be destroyed or captured by a public enemy ^ or by mobs and rioters.^ But the intervention of irresistible force, whether of human or divine agency, excuses no hired bailee, whose wrongful connivance or culpable exposure, or breach of con- tract, or remissness of duty in any respect, whether for pre- venting the calamity, or lessening its injurious effects, proves to have proximately occasioned the mischief.* Loss by fire, burglary, robbery, and theft give rise to similar considerations, though less likely to afford a positive excuse ; and the bailee's good faith and due diligence have especial reference to pre- to be made into boards. Gleason v. Beers, 59 Vt. 581. The same standard of ordinary care is applied to quasi bailees not acting wrongfully. As for instance, to captors and prize-agents. Story Bailm. §§ 614, 615 ; The Maria, 4 Rob. Adm. .348 ; The Anne, 3 Wheat. 435 ; The George, 1 Mas. 24 ; Burke V. Trevitt, 1 Mas. 96. To one who holds the property in a replevin suit under a bond. Bobo v. Patton, 6 Heisk. 172. To sheriffs, receivers, and judicial officers in general, whose duty towards the thing is for recom- pense. Blake v. Kimball, 106 Mass. 115 ; Cross v. Brown, 41 N. H. 283 ; Story Bailm. §§ 620, 621 ; Witowski V. Brennan, 41 N. Y. Super. 284 ; Aurentz v. Porter, 56 Penn. St. 115; Burke v. Trevitt, 1 Mas. 96. So to finders, when stimulated by the offer of a reward, and to salvors. Nicholson v. Chapman, 2 H. Bl. 254 ; Cargo ex Schiller, 2 P. D. 145 ; Wentworth v. Day, 3 Met. 352; Cummings v. Gann, 52 Penn. St. 484. And see 2 Schoul. Pers. Prop. §§ 14, 15 ; Story Bailm. §§ 621-624 ; 108 Brightly Dig. Salvage, VII. ; The Thetis, L. R. 2 Ad. & Ec. 365; Peisch V. Ware, 4 Cranch, 347 ; Dows V. Nat. Exch. Bank, 1 Otto, 618. So to bailees who occupy that relation of custody in cases of incom- plete sale transactions. Cloyd v. Steiger, 139 111. 41. 1 Norway Plains Co. v. Boston & Maine R., 1 Gray, 263; Cowles v. Pointer, 26 Miss. 253 ; McCuUom v. Porter, 17 La. Ann. 89; Francis v. Dubuque R., 25 Iowa, 60 ; Waller V. Parker, 5 Coldw. 476 ; Story Bailm. § 437. 2 Abraham v. Nunn, 42 Ala. 51 ; Smith V. Frost, 51 Ga. 336; Waller V. Parker, 5 Coldw. 476 ; Yale v. Oliver, 21 La. Ann. 454. 3 Pacific Co. 1). Wallace, 60 Ark. 100. * Leek V. Maestaer, 1 Camp. 138 ; Smith V. Meegan, 22 Mo. 150; Jones V. Greenwood, 20 La. Ann. 297 ; Mc- IMahon v. Field, 7 Q. B. D. 591 ; Merchants' Trans. Co. v. Story, 50 Md. 4 ; Lilley v. Doubleday, 7 Q. B. D. 510 ; White v. Colorado Central R., 3 McCr. 559 ; Wilson v. Southern Pacific R., 62Cal. 104. CHAP. II.] HIRED SERVICES ABOUT A CHATTEL. § 102 cautionary measures, repelling force, and seeking to make the loss from any such cause as light as possible.^ Ordinar}' diligence is a question of fact, in every case, to be determined upon all the circumstances. For such injury as resulted directly from the bailee's negligence, the bailee must respond, notwithstanding an accident afterwards occurs whicli must, in any event, have ruined the thing ;^ while, on the other hand, his act of carelessness, which in no wise occasioned the disaster, does not make him answerable.^ In short, the doctrine of proximate and remote cause here applies ; with, however, m\ich favor to any bailee who can establish, on his behalf, that the loss or injury occurred under circumstances which naturally impute no blame to the man of average care and diligence ; and subject, of course, to the general maxim, that the party who charges culpable negligence has upon the whole the burden of proof.'* § 102. Elements -which qualify one's Liability in such Cases. — The line of the hired bailee's duty bends, somewhat, to the stress of local custom, the nature and qualities of the thing itself, and the peculiar bailment methods sanctioned by pru- dent men of his class towards such property from time to time ; for all this bears upon the mutual intent which bail- ment law would compass. Safe-depositaries must use secure locks, and set a watch, where, in the case of cattle-keepei-s, it would be unnecessar}'^ ; and for warehousing inflammable sub- stances, extra precautions must be taken by the warehouse- man.^ In the place, as well as the method of storage, ordinary 1 Story Bailin. § 444 ; Piatt v. where damage is occasioned by some Hibbard, 7 Cow. 407 ; Schmidt v. extraordinary and unforeseen acci- Blood, 9 Wend. 2G8 ; Chenowith v. dent. Jones v. Gilmore, 91 Pcnn. Dickinson, 8 B. Monr. 156 ; 46 N. Y. St. 310 ; The Francosca, 9 Ben. 34. Super. 245 ; Claflin v. Meyer, 75 N. And see/)os^ Part VI. c. 4. Y. 2G0. . * Supra, § 23, for rule with its 2 Powers V. Mitchell, 3 Hill, 545 ; qualifications ; Claflin v. Meyer, 75 Francis v. Castleman 4 Bibb, 282 ; N. Y. 260 ; 62 Cal. 164 ; 143 Mass. Claflin V. Meyer, 43 N. Y. Super. 1 ; 453. Story B:iilm. § 450 a. '" See Vincent v. TJather, 31 Tex. 3 Gibson r. Hatchett, 24 Ala. 201. 77; Hamilton v. Elstner, 24 La. Courts arc indisposed to treat mere Ann. 465. detention as the proximate cause 109 § 103 THE LAW OF BAILMENTS. [PART IV. care should be taken according to the circumstances.^ Ordi- nary care may or may not require in one's business the em- ployment of a night watchman.^ But one who intrusts his chattels to another, knowing plainl}'^ how and where the bailee will keep them, is charge- able accordingly, and not by a theoretical standard ; though this is an exception to be cautiously stated. Thus, where storage was in a certain building, of whose fitness the bailor was enabled to judge for himself, it was held that the bailee's liability could not be extended because of some defect of con- struction imputable to the builder and unknown to the bailee.^ So where loss occurred from exposure in a place which the bailor had sanctioned from a long course of dealing, the bailee's ordinary care was measured accordingly.'* § 103. Ordinary Care and Diligence illustrated. — To cite a few general examples in point, most of which relate to hired custody ; since cases of hired work uj)on a thing are seldom discussed under the head of bailments, while hired carriage usually relates to the vocation of common carrier. One warehouseman was held responsible for the bad storage of cotton, who, receiving it in torn and rotten bales, left it on an open lot of ground, so exposed that the under bales sank into the mud,^ and another, for insufficiently protecting against thieves, whose premises were so negligently secured and watched that some fift}^ barrels of salt a week were rolled out and carried off by depredators, until some two hun- dred and fifty were missing.^ An agistor has been found wanting in ordinary diligence who turns a colt into a field accessible to a bull, though unaware of the bull's vicious dis- position ; ' or where he leaves gates carelessly open, or impru- 1 Moulton V. Phillips, 10 R. I. 218 ; 122. And see Shaw, C. J., in Whit- Brown V. Hitchcock, 28 Vt. 452 ; ney v. Lee, 8 Met. 91 ; Knowles v. Chenowith v. Dickinson, 8 B. Monr. Atlantic R., 38 Me. 55. 156 ; Cowles v. Pointer, 26 Miss. ^ Kelton v. Taylor, 11 Lea, 264. 253 ; Hatchett v. Gibson, 13 Ala. ^ Morehead v. Brown, 6 Jones L. 587 ; Jones v. Hatchett, 14 Ala. 743. 367. 2 Zell V. Dunkle, 156 Penn. St. e Chenowith v. Dickinson, 8 B. 358. Monr. 156. 8 Searle v. Laverick, L. R. 9 Q. B. ' Smith v. Cook, 1 Q. B. D. 79. 110 CHAP. II.] HIKED SEIl VICES ABOUT A CHATTEL. § 103 dently suffers the stable, at night, to be entered b}' strangers.^ The loss of his customer's watch has been visited upon a watchmaker hired to repair it, who failed to secure it at night against the light-fingered of his own household, while secret- ing his own stock in trade very carefully .^ And a jury has been permitted to find a safe-deposit company negligent, under the rule, for failing to keep adequate guard over a safe rented by one of its depositors, from which valuable bonds were missing.^ Where the bailed goods are injured by rats or other vermin, the question is, wdiether the bailee was ordinarily prudent, under all the circumstances, in trying to protect the property against such ravage.* As to losses by accidental fire, such a bailee would commonly stand exonerated;^ though he might be held, where the evidence showed that he was remiss, either in causing the fire,^ or suffering it to reach the bailed goods; as if, for instance, he ought to have stored them in a fire-proof room, and failed to do so ; "' or where he exposed them near some explosive substance.^ In several recent instances a bailment is deemed to have arisen from the circumstance, that there was an implied invf- tation to the patron of a store, a restaurant, a barber's shop, or some similar establishment to use its facilities for hanging up or bestowing his outer wearing apparel with contents, of which he incidentally divested himself in the course of his 1 Story Bailm. § 413; Swann v. Dubuque E., 25 Iowa, 60; ]\IcCul- Brnwn, fi Jones L. 150. lorn v. Porter, 17 La. Ann. 89; 2 Clarke v. Earnshaw, 1 Gow, 30. Francis v. Castleman, 4 Bil)b, 282 ; And see Halyard v. Dechelman, 29 Russell v. Koehler, GG 111. 459. As Mo. 459. to U. S. bonded warehouses, see 8 Safe-Deposit Co. v. Pollock, 85 Macklin v. Frazier, 9 Bush, 3. Penn. St. .391. o Wilson v. Southern Pacific R., * Cailiff V. Danvers, Peake, 114 ; G2 Cal. 1G4, where the careless use of White V. Ilumphery, 11 Q. B. 43 ; kerosene caused the fire. Story Bailin. §§ 408, 444 ; Taylor v. ^ Ilatchett v. Gibson, 13 Ala. 587 ; Secri.st, 2 Disney (Ohio), 299. And Vincent v. Rather, 31 Tex. 77. And see Penob.scot Boom Co. v. Baker, 16 see McGinn v. Butler, 31 Iowa, 160. Me. 2.33. 8 White v. Colorado Central R., 6 See Sidaways v. Todd, 2 Stark. 3 McCr. 559. Here the bailor's 400 ; Norway Plains Co. v. Boston & goods were stored in a wooden build- Maine I\., 1 Gray, 263; Francis v. ing, with a lot of gunpowder near the 111 § 104 THE LAW OF BAILMENTS. [PART IV. patronage.^ Such a rule of implied invitation must not be unreasonably extended.^ But where it fairly applies, the bail- ment is one of the present class, as an incident of the business and a customary inducement to business.^ § 101. Element of Skill considered; Hired "Work upon a Thing. — Ascending from hired custody to hired service of the more active sort, we find that combined knowledge and dex- terity in a particular practice, which is denominated skill, more nearly indispensable. Even from custodians, it is true, may be exacted, in many instances, a certain skill or expert- ness, which owners are not likely to disregard, as in the instances of those who winter horses or store perishable fruits or explosives.* But it is more clearly in the hire of work upon a chattel that the consideration of skill avails ; and here, though our standard of ordinary diligence still applies, it is more likely to vary, and the compensation as well, according to the delicacy and difficulty of the work, and the workman's training, habits, experience, and reputation for the particular kind of undertakings. For careless custody, he must respond,^ of course ; but the main undertaking rises in plane until, in the case of some famous sculptor or painter, such a degree of ability to do the service may be engaged and paid for, that, if we averaged mankind in the mass, instead of by classes or professions, the skill should be pronounced not ordinary, but extraordinary. Such extreme cases, however, are, under the strict law of bailment, seldom found; and the skill to be contemplated, like diligence in general, primarily refers to particular occupations, to men of average prudence in the particular class or calling. By ordinary skill as Avell as door, so that the firemen were afraid * See, too, as to " floating ware- to enter the building. houses," Hamilton v. Elstner, 24 La. 1 Ultzen V. Nicols [1894], 1 Q. B. Ann. 455. 92; §145; Dilberto i;. Harris, 95 Ga. ^ gee, e.g., Leek v. Maestaer, 1 571 ; Woodward u. Painter, 150 Penn. Camp. 1-38; Clarke u. Earnshaw, 1 St. 91 ; Bunnell v. Stern, 122 N. Y. Gow, 30 ; Wallace v. Canaday, 4 539; Donlin v. McQuade, 61 Mich. Sneed, 364 (the case of a public 275. miller) ; Russell v. Koehler, m 111. 2 96 N. Y. Supr. 129. 459; Halyard v. Dechelman, 29 Mo. 8 150 Penn. St. 91 ; 122 N. Y. 539. 459. 112 CHAP. TT.] TITRED SERVICES ABOUT A CHATTEL. § 103 diligence, we here denote that skill or diligence which pru- dent local workmen, of the same class, are wont to bestow upon similar undertakings. Pursuits themselves imply, in the universal sense, a difference of skill ; for one piece of wood may be bailed for a collier to reduce to chai'coal, and another for some artist to carve into an image of beauty. And as we rise from artisan to artist, the choice, the class itself, narrows, until the bailment employment is from a set of men so narrow that the choice is governed by individual or group, rather than by class considerations at all. The agreed compensation, large or small, is, in this respect, an important fact for evidence.^ Through the whole gamut of hired occupation we shall find these rules claiming recognition : 1. That ordinary and reasonable skill in the vocation he assumes is expected from every one assuming to be a bailee in that vocation. 2. That, for failure to exercise such ordinary and reasonable skill, he will be decreed at default as for want of ordinary diligence.^ § 105. The Same Subject. — Yet the conduct of all bail- ment parties may not quite consist with such an undertaking, so that the rules and presumptions are pushed aside. One's contributory negligence debars him from holding another responsible where loss occurs. Thus, should the bailor super- sede plainly the bailee's discretion, and insist that his own poor plan be followed, he must bear the consequences.^ Nor does skill in one's own vocation import skill in another man's ; and the sick man Avho takes his potion from a horse-doctor has only his own folly to blame if he is made worse.* Nor, again, 1 See Story Brxilm. §§ 429-133. penny v. Ilartland, 2 C. & P. 378 ; 2 2 Kent Cora. 588; Story Bailtn. Duncan v. Blumlell, 3 Stark. (5; § 431 ; Pothier Contrat de Louage, Gamber v. Wolaver, 1 W. & S. 00 ; n. 425-428; Lincoln v. Gay, 1G4 Kuchn u. Wilson, 13 Wis. 104; Hill- Mass. 537, where the question was yard v. Crabtrce, 11 Tex. 204 ; Fran- whcther a dres.smakcr used such skill cis v. Shr.ider, 07 111. 272 ; Smith v. in making cloth into a dress wrong Meegan, 22 Mo. 1")0. side out. Two civil-laAV maxims are : 8 puncan v. Blundcll, 3 Stark. G, Spondrt peritiam artis : imppritiacnl- per Bayley, J. poB adnumeratur. lb. AndseeCoggs * Story Bailm. §§43.3-43"); Jones V. Bernard, 2 Ld. Raym. 909 ; Money- Bailm. 99, 100. 8 113 § 106 THE LAW OF BAILIMENTS. [PART IV. as it would appear, can a bailor so utterly disregard his per- sonal knowledge of the bailee's habits, character, and means of performance, as to hold him for unskilfully doing a deli- cate piece of work which he did as well as might fairly have been expected, and without falsely pretending that he could do better.^ And circumstances might sometimes show that one was employed, not to do as well as the average of his class, but for individual qualities, to be tested by the skill which, as an individual, he was wont to exercise upon such work .2 For, keeping within the bounds of public policy, our general aim is to ascertain what the parties mutually expected or had a right to expect in the particular case. § 106. Special Contract Terms and Usage should be con- sidered. — With a view of getting still closer to the mutual intent of the transaction, we must regard all special and per- missible stipulations entered into by the parties to the bail- ment. The usages and customs of carrying on a business at the time and place in question have, if reasonable, a qualify- ing effect upon one's duty.^ But special contract overrides a custom.* Whatever lawful terms may have been introduced by their contract, for the purpose of qualifpng the method or risk of performance, should be given full force, whether expressly set forth or only implied ; ^ a rule similar to what we have elsewhere considered, which may tend to increase or decrease the liability. A warehouseman's receipt, brought to his customer's knowledge, would go far towards explain- ing the true nature and extent of his undertaking ; ^ and, in general, the bailor's special directions, or the bailee's explicit announcement of his modes of doing such business, or pub- lished proposals, advertisements, and letters of either party 1 lb. * Cottrell v. Branin, Ky. (1895). 2 Supra, § .36. s gtory Bailm. § 440 ; Pothier Con- 3 157 111. 554 ; 45 Minn. 85. Where trat de Louage, n. 43.3 ; supra, § 20 ; good.s were de.stroyed by an incendi- Thomas v. Cummiskey, 108 Penn. ary fire, while no night watchman was St. 354. kept on the premises, custom as to ^ gee Hatchett v. Gibson, 13 Ala. employing night watchmen may be 587 ; Patten v. Baggs, 43 Ga. 167. material. Zell v. Dunkle, 156 Penn. St. 353. 114 CHAP. II.] HIRED SERVICES ABOUT A CHATTEL. § 1^7 might, if known and acted upon, control interpretation as much as any written and signed indenture. But to this, public policy sets limits. The bailee's breach of contract as to the place or manner of performance, so as to increase the exposure of the [)roperty to danger, enlarges his own risk under the doctrine of i)r(jxi- mate and remote cause. Thus an ajjistor who undei'takes to stable a horse and then turns liim out into the yard, may be held liable if the animal catches cold.^ And a warehouseman who contracts to store goods at a particular place and then stores them somewhere else without his customer's knowledge, whereby the benefit of insurance is lost, is held answerable if the goods are destroyed by ilre.^ On the other hand, if di- rected by his bailor to perform without regard to the weather, the bailee may assume that the bailor takes the risk of such exposure, and act accordingl3\2 Wherever the bailee under- takes to assume such additional risk as that of fire or acci- dent, he is bound by his contract.* But the scope of no such special contract should be unreasonably construed.^ § 107. Honesty and Good Faith requisite. — Not onl}' must fraud be absent from the bailment contract itself, but the bailment accomplishment should be attended with reciprocal good faith. An honest bailee for hired service will not attempt to sell or appropriate what he holds in bailment, nor falsely pretend to skill or opportunity whicli he does not possess ; ^ and, as a rule, no unauthorized sale by the bailee will alter the bailor's general propert)% so as to divest him ^ McMahon v. Field, 7 Q. B. D. such contract if the bailee reads and 591. makes no objection. Reinstein v. 2 Lilley v. Doiibleday, 7 Q. B. D. Watts, 84 Me. 139. 510. But of. Bradley v. Canning- & 84 Iowa, 2:}o. ham, 61 Conn. 485, which distin- ^ Story Bailm. § 440 ; Davis v. guishes in a peculiar case, as though Bigler, O'J Penn. St. 242 ; Calhoun v. the bailor should have notified as to Thompson, 5(5 Ala. 106 ; 61 Cal. 405 ; the insurance. Wliillock v. Heard, 13 Ala. 776; 3 Brandon v. Gulf City Man. Co., Stephenson v. Price, 30 Tex. 715. 51 Tex. 121. As to special agree- But as to rightfully assigning one's ment to insure, see § 116. mere interest as bailee, see Nash v. * Tiie bailor's invoice of the goods Mo.sher, 19 Wend. 431 ; Bailey v. which states such risks may evince Colby, 34 N. H. 29. 115 § 108 THE LAW OF BAILMENTS. [PAET IV. of the right to sue for its recovery the bailee, the purchaser, or any one chiiming under the transfer.^ On the other hand, if the bailor has fiaudulently duped his bailee into the under- taking, the latter may, it is held, after discovering the fraud practised upon him, go on and perform the work, deferring indemnity to the termination of his service.^ §108. Rule of Agency applied. — Our present bailment calls for frequent application of the rules of agency. Thus, the safe-deposit and warehouse business is often transacted by chartered companies ; wharves, too, in this country are chiefly erected by municipalities or private corporations, empowered under some government franchise ; ^ and the legislature, in such cases, exercises much supervision as to tolls, charges, and the like.'* Individual workmen, too, and unchartered associates, who are masters of their craft, con- stantly employ sub-agents and inferiors ; and indeed sculp- tors and other artists, of whom jurists were wont to assert that the genius, talent, and skill of the individual are so specially engaged that he cannot put another in his stead, will fashion the model or sketch the pattern, and then set men of meaner abilities to do the detail work.^ In general, a hired bailee must respond for the negligent and unskilful work of his own servants or sub-agents about the thing just as though his own want of ordinary diligence and skill, not theirs, had caused the damage ; for their privity is with him and not the bailor ; and so, too, it is to him, and not the bailor, that they should respond for their careless- ness.^ But where, with the knowledge and privity of his 1 See Calhoun v. Thompson, 56 Commonwealth v. Alger, 7 Cush. 53 ; Ala. 166, which allows trover to be Jeffersonville r?. Louisville Ferry Co., brought. Cf. supra, § 17 ; 53 Minn. 27 Ind. 100 ; Morris, &c. Co. v. Cen- 27. tral K., 16 N. J. Eq. 419 ; 9 Ben. 34, 2 Parker v. Marquis, 64 Mo. 38 ; 507. supra, § 17. And see as to criminal * j^, accountability, Hutchinson v. Com- ^ See Story Bailm. § 428 ; Pothier monwealth, 82 Penn. St. 472 ; Phelps Contrat de Louage, n. 420, 421. V. People, 72 N. Y. 334. e Blake v. Kimball, 106 Mass. 115 ; 3 U. S. Dig. 1st series, "Wharves, Schoul. Dom. Rel. § 489 ; Stevens v. 1-19; Wiswall V. Hall, 3 Paige, 313 ; Boston & Maine R., 1 Gray, 277; 116 CHAP. II.] IiniED SERVICES ABOUT A CHATTEL. § 111 bailor, the hired bailee emploj's another to aid in the work, by whose want of ordinary diligence and skill the thing is injured, the bailor may sue such party.^ The hired bailee must have used ordinary diligence in the choice and con- tinuous employment of any subordinate who commits theft or other wanton offence wholly outside the obvious scope of his suVagent, since otherwise he is himself responsible therefor; and, of course, he should be personally innocent of the offence.^ But an agency has its limits : thus, a ser- vant employed during fixed hours in the day, or for certain days, is not, without the bailee's consent, his servant at night, or on other casual occasions, when unemployed.'^ § 109. Liability of Bailee to Third Persons. — A bailee may be liable to third persons for injuries occasioned by the property in his temporary possession. Thus, an agistor has been held suable for the trespasses committed by cattle in his charge.^ § 110. Right of Hired Bailee to Undisturbed Possession. — The hired bailee has rights as well as duties. First, as against his bailor and all having no paramount title, he has the right to an undisturbed possession of the chattel, pending the proper accomplishment of the bailment pur- pose.^ § 111. Right of Compensation considered. — Next, the bailee has also the right to demand suitable compensation; which may either have been fixed in advance, or left, as something just and reasonable, for later computation. Custom, a special understanding, or the spirit of the engagement may establish this compensation, as something to be rendered at the outset, or by periodical instalments, or when the work is fully com- Macklin v. Frazier, 9 Bush, 3. The ' Aldrich v. Boston & Worces- bailee may sue his sub-bailee for ter R., 100 Mass. 31, where servants negligent performance causing hira of a warehouseman came on the prem- damage. McGill v. Monettc, 37 Ala. i.ses at night while the warehouse 49. was burning, as individuals or citi- 1 Baird v. Daly, 57 N. Y. 23G. zens. 2 Clarke v. Earnshaw, 1 (iow, 30. * Weymouth v. Gile, 72 Me. 446. This subject is chiefly discussed by ^ See § 115. the courts in analogous cases. 117 § 111 THE LAW OP BAILMENTS. [PART IV. pleted ; but, in most bailment undertakings, the third is the presumable arrangement. Compensation may be awarded differently, according as the service upon the chattel has been : (1) left incomplete ; (2) or bestowed differently from what was mutually intended; (3) or completely bestowed in accordance with the mutual in- tention. The doctrine for the two former cases is not readily reduced to rule ; but the two inquiries of chief pertinence ap- pear to be, whether blame attaches, in fact, to either party, and how far a mutual understanding may have regulated the partic- ular case. Let us, however, glance at the three cases separately. 1. Where the bailee's service has been left incomplete. According to Pothier, should the thing accidentally perish, without default of the workman, res peril domino ; and the owner not only loses his chattel, but must compensate the workman for what he has done, and, besides (provided this were intended as a special item), the materials furnished.^ This is the rule of universal law, and a hard one, indeed, for the bailor.2 But local usage or special contract might create exceptions ; for were it mutually understood that the work- man should perform by the job for some stipulated price, pay- able only upon completion of the service, the civil law and our own would, in case of a calamity for which neither party was to blame, make the thing perish to the master and the service to the workman ; unless, indeed, the calamity occurred after the job was actually finished.^ In point of fact, as Judge Story has remarked, the modern Code of France, to which that of Louisiana in this respect conforms, shows a disposition to thus apportion the loss, so that neither work-^ man nor employer can recover one against the other, wher- ever both were blameless and the loss accidental.^ We may 1 Pothier Contrat de Louage, n. 3 Story Bailm. § 426 a, b ; 2 Kent 433 ; Story Bailm. § 426. Com. 591 n. ; Appleby v. Myers, L. 2 Story Bailm. §§ 426, 426 a; 2 R. 2 C. P. 651 ; Brumby v. Smith, 3 Kent Com. 591 ; Menetone v. Atha- Ala. 123. wes, 2 Burr. 1592; Gillett v. Maw- * Civil Code of Louisiana, art. 2731 ; man, 1 Taunt. 137 ; Wilson v. Knott, Civil Code of France, 1788-1790 ; 2 3 Humph. 473. Kent Com. 591 ; Story Bailm. § 427. 118 CHAP. II.] illREU SEU VICES ABOUT A CUATTEL. §111 not inconsistently add, that, if the workman had agreed to furnish all or the principal materials himself, he would have to lose both work and materials ; his position not being that of bailee at all.' Where, however, tlie bailor was at fanlt in occasioning the loss, he must not only render the bailee full compensation, but bear the loss on his own part; and he might have to respond further in punitive damages, if, for instance, he lianded over a dangerous article, to have service performed upon it, concealing its hurtful qualities, and so accomplishing mischief.^ But if the bailee were at fault, as in performing his service with less than ordinary care and diligence, whereby the loss occurred, then he sliould respond for loss of the thing, and forfeit, possibly, his claim to com[)ensation, or, at all events, put Ins bailor where he would have been with the whole service properly performed.^ The foregoing considerations generally appear applicable to losses by abstrac- tion of the thing, as well as losses by its destruction.* Where the hired bailee has simply left the service unfin- ished, he ought, if in default, to expect no compensation for his work ; ^ or, at most, nothing — provided the default was not wilful, and he worked by the day, instead of by the piece — beyond such compensation, pro ratd, as might remain after deducting all damage so occasioned the employer.^ Wherever, indeed, the default imputes no real misconduct to the bailee, and the bailor has, on the whole, received a sub- stantial benefit from the service, our courts incline to allow the former his full compensation, less the special damage to which the latter may be put in getting his work finished else- where ; " not, however, unless the express or implied terms of 1 Appleby v. Myers, L. R. 2 C. P. * See Jones v. Greenwood, 20 La. 651 ; McConihe v. New York 11., 20 Ann. 297. N. Y. 495; supra, § 99. ^ Story Bailm. § 441 ; Sinclair v. 2 See Blakeinore v. Bristol R., 8 Bowles, 9 B. & C. 92; Faxon v. E. & B. 1035, per Coleridge, .J. ; xMansfield, 2 Mass. 147. McCarthy v. Young, 6 II. & N. 329. « j^. 3 Smith V. Meegan, 22 Mo. 150; '' Hillyard v. Crabtree, 11 Tex. Powers V. Mitchell, 3 Hill, 545. 204 ; 2 Smith Lead. Cas. 4:3, 45. 119 § 112 THE LAW OP BAILMENTS. [PAET IV. the eneaofement will bear such constructioii.^ If the service be left incomplete, because of wrongful interference or some default of duty on the bailor's part, the bailee may, in general, demand full indemnity under the engagement.^ § 112. The Same Subject. — 2. Where the service upon the chattel has been bestowed differently from what was mutually intended, there might or might not be a right of compensation according to the circumstances. If the fault could well be laid at the bailor's door, the bailee ought to ha\G his quantum meruit ; and for an employer's negligence or misconduct the workman has his own claim for damages.^ But the bailee's deviation from his engagement deprives him of compensation, besides exposing him to a suit for damages, provided such deviation works a real injury to the bailor ; but if the bailment prove, notwithstanding, beneficial, on the whole, to the bailor, compensation, less the special damage, would be recoverable ; * and for deviation, only as to the time of accomplishment, in which respect the best work- man may be at fault, compensation less the damage caused by delay .'^ Reasonable delay, except where a fixed time is stipulated as an essential element in the original undertaking, is always leniently regarded ; and even unreasonable delay may have been waived by the bailor.^ The use of better mate- rials than were called for, or the bestowal of better work, affords the bailee no ground for claiming extra remuneration, unless, of course, the bailor had plainly assented to the devia- tion by way of mutually changing the original engagement.'' For breach of hired service, as under the general law of contracts, the fundamental principle is, to award the injured 1 Story Bailm. § 441 a ; Ellis v. Smith Lead. Cas. 32, 42 ; Hillyard v. Hamlen, 3 Taiint. 52 ; Jennings v. Crabtree, 11 Tex. 264. Camp, 13 Johns. 95; Appleby v. s gtory Bailm. §§ 428, 441 5 ; Trent Myers, L. R. 2 C. P. 651, 656. Co. in re, L. R. 4 Ch. 112 ; Merrill 2 Story Bailm. § 441. v. Ithaca R., 16 Wend. 586. 3 2 Smith Lead. Cas. 43 ; Black- ^ Especially if no proof of special burn, J., in Appleby v. Myers, L. R. damage appears. 61 Hun (N. Y.), 2 C. P. 651, 659; Story Bailm. 626. § 441 h. ' Story Bailm. § 441 c; Dermott * Basten v. Butler, 7 East, 479 ; 2 v. Jones, 2 Wall. 1. 120 CIIAl*. II.] HIKED SERVICES ABOUT A CHATTEL. §114 party such amount, by way of damages, as will make him whole under the en Hadley v. Musselman, 104 lud. common-law lease of real estate im- 459, and cases cited. ports a covenant, on the lessor's part, 157 i^ 152 THE LAW OF BAILMENTS. [PART IV. tortious disturbance or dispossession by the stranger, the hirer must have recourse to his remedy against the wrong-doer.^ § 152. How Expenses shall be borne. — With respect to ex- penses about the hired thing, civilians Lay it down that the letter is bound to keep the thing in order and repair suitable for the bailment purpose.^ But the Roman locatio-conductio, we should remember, applied to real and personal property in an indiscriminate manner which the common law does not justify.^ Extraordinary expense, too, such as the hirer might unexpectedly be compelled to incur, — as in the case of a horse taken sick on the journey, — should, as the civilians opine, be borne by the letter ; though not, perhaps, if the hirer neglected notifying him when he might have done so.* On all such points the common-law doctrine must as yet be left to con- jecture ; ^ though the rational expectation of the parties, as evinced by their own words and conduct, usage, and other circumstances, will largely determine each case ; considera- tions to which the civilians were not blind.^ To an issue of this kind, the rate and nature of the recompense intended is quite material, especially as to the incidental and foreseen ex- penses of the undertaking.'' Without an undertaking shown by express contract or usage, the hirer is not, perhaps, bound to keep the thing in repair, and yet he must pay his agreed recompense.*^ But the unforeseen and extraordinary expense, as to which mutual understanding probably never closed, the law may well favor placing upon the letter, if his reversionary for quiet enjoyment. Taylor Land. * Pothier Contrat de Louage, n. & Ten. § 308 ; 1 Schoul. Pers. Prop. 129, 131 ; Ersk. Inst. B. 3, tit. 1, § 30. § 23. 1 lb. 5 Story Bailm. §§ 388, 389, 392 ; 2 Pothier Contrat de Louage, n. 2 Kent Com. 586. 129, 130. 6 See Pothier Contrat de Louage, 3 Under our Anglo-Saxon system n. 107, 132 ; Story Bailm. § 388 ; a lessee must presumably pay his Central Trust Co. v. Wabash R., 50 rent, even though the building be Fed. 857 ; 39 Hun, 617. burned to the ground ; nor need the '' Handford v. Palmer, 2 B. & B. lessor keep the premises in repair 359 ; Story Bailm. §§ 256, 393 ; unless he expressly covenants so to supra, § 78. do. Taylor Land. & Ten. §§ 327-331 ; » 39 Hun, 617. 1 Schoul. Pers. Prop. §§ 31-33. 158 CHAP. III.] HIRED USE OF A CHATTEL. § 153 interest will be the more valuable for it, and the hirer was not at fault ; but otherwise if the hirer was remiss,^ or gains all the substantial benefit by the outlay. If the letter was remiss, as where a stable-keeper lets a horse, knowing the animal to be sick and unfit for the purpose required, the hirer may well sue in damages, or recoup his needful outlay against the recompense.^ But the pressure for immediate outlay should be strong, and opportunity be wanting for pre- vious consultation with his bailor, to justify such bailee in expending largely without in some way securing permission. S 153. Letter responsible for Letting injuriously. — A letter for use is not only bound to exercise good faith, but he may be punished in damages, whenever he selects for the hirer a chattel which he knows is unsuitable and dangerous for the bailment purpose. Thus, a livery-stable keeper so far war- rants his horses and carriages that, if the hirer, who trusted him and his superior knowledge, suffer because the thing hired prove otherwise, he must be indemnified ; ^ nor matters it, if the hirer was not at fault, that the bad horse or carriage only contributed to the injury, or that the letter meant to deliver something else.* As sometimes expressed, the letter promises by implication that his horse is kind and suitable for the pur- pose, and not vicious.^ But the ground of liability appears to be not so strictly a warranty as that the hirer must trust to the letter's private knowledge of the thing's intrinsic qualities; for, where the injury to the hirer is caused by some hidden defect in the chattel, which careful examination could not have disclosed, the letter is excused.^ It may often be worth while to ascertain, in such connection, whether parties sustain the mutual relation of bailor and bailee, or of master and 1 Jones V. Morgan, 90 N. Y. 4. * Home v. Meakin, supra. Es- 2 See Harrington v. Snyder, 3 pecially is this true where the letter Barb. 380 ; 2 Kent Com. 586 ; Read- made no reasonable effort, after find- ing V. Menham, 1 Moo. & R. 234 ; ing out his mistake, to correct it. Story Bailm. § 392. lb. 8 Jones V. Page, 15 L. T. n. s. 619, ^ Windle v. Jordan, 75 Me. 149. Ex. ; Fowler v. Lock, L. R. 7 C. P. « Hadley v. Cross, 34 Vt. 586. 272 ; Home v. Meakin, 115 Mass. 326 ; Hadley v. Cross, 34 Vt. 586. 159 § 154 THE LAW OF BAILMENTS. [PAKT IV. servant, since in the latter case one is less strictly held for occasioning bodily injury than in the former.^ The law of continental Europe appears to hold the letter even more strictly answerable than does our system, as to a disclosure of faults in the thing he lets to hire ; ^ for it regards the warranty obligation on his part so great as in many instances to forfeit the recompense, because of some unknown defect in the thing for whose existence the hirer could not have sued hira specially to recover damages.^ Doubtless, a hirer who would, in his action, recover damages for his letter's negli- gence ought not to appear wanting in ordinary diligence to avert the injury complained of. § 154. Right of Action and Damages as against the Public. — As against the public, a hirer's right of action is more exten- sive than a borrower's ; and his special property in the thing, founded in valuable consideration, enables him to sue all third parties in his own name for damages suffered in respect of the thing while in his rightful possession, whether it be in tort or for breach of some privity with him.'* It is no ex- cuse to the tortious invader of a hirer's rights that the letter has not interposed, nor the hirer made good the damage.^ And, if the hirer has done nothing so inconsistent with the undertaking as to justify his letter in treating the bailment as at once ended, and the bailment is not precarious, the letter cannot, as it appears, interpose to sue the stranger himself.^ At all events, the hirer is, under these circumstances, the proper party to sue in trover or replevin, while case would 1 See Fowler v. Lock, L. R. 7 C. Ala. 49 ; Hopper v. Miller, 76 N. C. P. 272. 402 ; Montgomery Co. v. Montgomery 2 Pothier Contrat de Louage, n. R., 86 Ala. 372. 110-115, 122, 124 ; Story Bailm. ^ Brewster v. Warner, 136 Mass. §§ 390, 391. 57. Here injury was done to a hired 8 lb. ; Dig. 19, 2, 19. team, and the hirer had not yet paid 4 Nicolls V. Bastard, 2 C. M. & R. for the repair. 669 ; Story Bailm. § 394 ; Woodman ^ Upham, J., in Drake v. Reding- V. Nottingham, 49 N. H. 387 ; Rindge ton, 9 N. H. 246 ; Mears v. London, V. Colerain, 11 Gray, 158; White v. &c. R., 11 C. B. n. s. 850, 854; Bascom, 28 Vt. 268 ; Bliss v. Schaub, Clarke v. Poozer, 2 M'MuU. 434. 48 Barb. 339 ; McGill v. Monette, 37 160 CHAP. III.] HIRED USE OF A CHATTEL. § 155 be the letter's technical remedy under the old practice, as for an injury to the reversion.^ But, if the hirer recover full damages, he should satisfy his bailor from the fund. Where the peculiar situation is such as might expose a defendant to the risk of double recovery to a large amount, or hazard unduly the owner's share of a fund placed under his bailee's sole control, the hirer's own right of recovery is some- times restricted to his own interest, or the court will compel him to give security in respect of his bailor's share ; ^ nor has the bailor in such case been denied the privilege of suing apart for what may be called the permanent injury to the thing.2 Wherever the bailment has ended, or (as under a term precarious) the bailor has an immediate right to ter- minate it, and resume possession, he may sue a stranger by virtue of such termination.* A full and rightful recovery of damages by either hirer or letter commonly bars the other party's action against the stranger ; ^ and where bailor and bailee are in accord as to which shall sue, the injuring party cannot complain.^ § 155. Special Contract may affect the Hire ; Insurance, etc. — By special contract, not only may the use of the thing be restrained as to time or method of enjoyment, but the bailor may gain security against stated perils, or, indeed, against all accidental damage whatsoever.' For public policy does not forbid such an assumption of risks by the bailee. But l^See Howard v. Farr, 18 N. H. ^ gtory Bailm. § 394. 457 ; White v. Griffin, 4 Jones (N. ^ Brewster v. Warner, 136 Mass. C), 1.39. 57 ; Dumas v. Hampton, 58 N. H. 2 Mears v. London, &c. R., 11 C. 134. B. N. s. 850 ; Eldridge v. Adams, 54 '^ See Collins v. Bennett, 46 N. Y. Barb. 417. For a corresponding rule 490 ; Austin v. Miller, 74 N. C. 274. in admiralty practice, see The Minna, In Harvey v. Murray, 136 Mass. 377, L. R. 2 Ad. & Ec. 97. one who hired a piano, agreeing to * Mears v. London, &c. R., snpra. return it "in as good order as when * Hurd V. West, 7 Cow. 7o2 ; received, customary wear and tear Drake v. Redington, 9 N. H. 243 ; excepted," was held liable (by a Howard v. Farr, 18 N. H. 457 ; harshly literal interpretation of the Clarke v. Poozer, 2 M'MuU. 434 ; contract) for an injury caused when Felton V. Hales, 67 N. C. 107. And the house was blown down. And see supra, §§ 80, 115. see Chicago R. v. Pullman Car Co., 11 IGl § 156 THE LAW OF BAILMENTS. [PART IV. as no hirer for use is presumed to intend undertaking the risks of a special insurer, every contract which tends thus to enhirge the scope of his legal responsibility ought to be con- strued, if possible, in his favor.^ Nor should a dubious en- gagement be held to narrow the natural use of the thing; and where, for instance, the letter of a carriage which holds two seats claims that the hirer promised only one should be occupied, he should make strict proof of such promise.^ Any special stipulation, in short, which does not militate against sound policy and good morals may be made by the bailment parties ; and this, as in other bailments, whether it lessens or enhances the usual risks of the bailee ; but it must be estab- lished by proof. Where a third party insures or guarantees a return of the thing, such insurance or guaranty is limited by its own terms.^ § 156. Bailment how terminated. — III. Termination of the bailment. The bailment for hired use, like that of gratuitous loan, may terminate in a variety of ways : by accomplishment of the bailment purpose or expiration of the period of hire ; by the thing's entire loss or destruction ; by rescission of the contract, whether by mutual consent or because of misuse or other gross violation of duty by the one party, of which the other rightfully avails himself ; and by operation of law, as where the hirer becomes full owner of the thing. Whatever the method of termination, the bailment parties are not ab- solved from their past obligations, but must make adjustment upon the usual contract principles.* Whether the death of either party will operate a dissolu- which expressly stipulated for in- 2 Harrington v. Snyder, 3 Barb. demnity against all damage occa- 380. And see supra, § 106. sioned by "accident or casualty"; ^ g^e guarantor for safe return re- 63 Hun, 632. leased from liability, where the term 1 Reading v. Menham, 1 Moo. & of hire was extended without his R. 234 ; Field v. Brackett, 56 Me. concurrence. Gushing v. Cable, 54 121 ; Ames v. Belden, 17 Barb. 513 ; Minn. 6. Hyland v. Paul, 33 Barb. 241 ; Young * Story Bailm. §§418-420 ; Pothier V. Leary, 135 N. Y. 569 ; Con well v. Contrat de Louage, n. 308-310 ; Civil Smith, 8 Ind. 530; McEvers v. Code of Louisiana (1825), art. 2698- Steamboat Sangamon, 22 Mo. 187. 2700. 162 CHAP. III.] HIRED USE OF A CHATTEL. § 159 tion of the bailment is not definitely settled ; but such seems not to be the general result where the party deceased had hired for other than a strictly personal use. The Roman and French law properly treats hired use for a fixed term as con- tinuing, by means of personal representatives, beyond the death of bailor or bailee ; but with less reason regards, as it appears, the death of one party, apart from the act of his representative or the other party, a sufficient dissolution of the relation, wherever the hired use was only for a term pre- carious.^ Resort may be had to the mutual understanding of the parties, if this be sufficiently explicit, for resolving the doubt in each particular instance. § 157. The Same Subject ; how Hirer or Letter is put in De- fault. — If it be uncertain whether a bailment for hired use had terminated or no, the bailor should, before regarding his bailee as in default, make a demand or notify him to return the thing. But no demand or notice is needful as the preliminary of bringing his suit where the bailment was dis- tinctly fixed for a certain time, and the period has lapsed without the grant of further extension ; ^ nor where the thing has been converted wrongfully or destroyed.^ On the other hand, the bailee has the corresponding duty of tendering the thing back and offering whatever recompense may be just. "Where no duration of the term was agreed upon, the bailment may be terminated at the will of either party.'* § 158. Hirer's Duty to restore and make Recompense. — Upon termination of the present bailment, the hirer has two general duties to perform : (1) to deliver the thing back or over, which is most commonly to restore it to his letter ; (2) to make final recompense for its use, if not made in advance. § 159. Duty to restore or deliver over considered. — 1. The thing should be restored in as good plight as it was when received, except for that deterioration which ensues, in the 1 Dig. 19, 2, 4 ; Pothier Coiitrat Simpson, 99 Mass. 388 ; Benje v. de Lonase, n. 317 ; Story Bailm. Creagh, 21 Ala. 151. §§419, 420. 3 Morse v. Crawford, 17 Vt. 499. 2 Morse v. Crawford, 17 Vt. 499; * Learned Co. v. Fowler, Ala. Koss V. Clark, 27 Mo. 549 ; Negus v. (1896). 163 § 159 THE LAW OF BAILMENTS. [PART IV. course of using, from ordinary wear and tear, and for any injury or loss which may have occurred without culpable negligence or misconduct on the hirer's part. And the de- livery should be promptly made, to the letter personally, or to his agent duly empowered, his personal representative, or transferee, according to the circumstances. The hirer should volunteer no claim of title adverse to his letter on behalf of himself or another, nor hire under a title which he knows to be infirm and then set up the infirmity against his bailor afterwards ; ^ though, like any other bailee, he may justifiably protect himself against claims of ownership, preferred by third persons, which have been so brought to his notice while he holds custody, that he cannot, without peril, ignore them.^ The actual accomplishment of the bailment purpose, usage, or the parties' express contract, may determine when the hirer is bound to redeliver; otherwise redelivery should promptly follow the letter's rightful demand.^ Failing to return the thing hired amounts, unless satisfactory excuse be given, to conversion on the bailee's part so as to justify the recovery by action of damages for the detention, besides the compensation due.* But the letter for a fixed term might, if his hirer failed to redeliver at the appointed term, elect to treat the bailment as still continuing or renewed at the same rate of hire ; ^ and the inaction of the parties might readily be construed into an ao^reement to this effect. An owner's dominion ought to be so greatly respected by a mere usufruct, that the hirer, who accepts with permission to sell and credit the proceeds on a debt which the bailor 1 Supra, § 118 ; Davies ex parte, ^ Cobb v. Wallace, 5 Cold. 539. 19 Ch. D. 86. 4 Ware, in re, 5 Ch. D. 866 ; 2 The demand of one to whom the Vaughan v. Webster, 5 Harring. 256 ; bailor has mortgaged the chattel Benje v. Creagh, 21 Ala. 151 ; Story since delivery, and who is entitled to Bailm. § 414. And see, as to the its possession, may justify the hirer measure of damages for failing to in refusing redelivery to his letter, restore, Negus v. Simpson, 99 Mass. European Royal Mail Co. v. Royal 388. Mail Steam Packet Co., 10 C. B. n. ^ Benje v. Creagh, 21 Ala. 151. s. 860. And see Erwin v. Arthur, 61 Mo. 386 ; supra, § 118. 164 CHAP. III.] HIRED USE OF A CHATTEL. § IGO owed him, must deliver to the letter's transferee, and forego his own privilege, if the bailor finds a purchaser before him, and himself sells the thing to a stranger.^ § IGO. Duty of Final Recompense considered. — 2. Recom- pense for the use of the thing, which is commonly, but not of necessity, in money, ought to be duly rendered in accord- ance with the hirer's undertaking ; and this, doubtless, may have involved payment in advance, though recompense when the bailment ends is more common ; or again it may be by periodical payments. Definite agreement may have fixed a definite compensation ; otherwise, that is due which reason and usage prescribe. The civil law distinguishes in like manner between tacit and express compensation ; ^ and, in the Roman jurisprudence, circumstances under which the hirer had, without fault, become deprived of his beneficial use of the thing for the whole or a substantial portion of his term, might be alleged ; so that, according as justice required, the letter would be allowed a proportionate part, or the whole, or none whatever.^ Questions of this sort are yet novel to our courts ; but the beautiful and consistent doctrine of appor- tionment found always in Anglo-Saxon law a sterile soil, and with us where one contracts to do an entire thing for a speci- fied recompense, there can be, strictly speaking, no apportion- ment thereof, short of express contract stipulation. Yet, if one hire for no particular term, or with only a tacit under- standing as to the recompense, the rule of apportionment might fairly apply ; for, independently of modern legislation, which has wrought much change, courts are found disposed to relax of late, out of respect to the declared or presumed intention of the bailment parties themselves ; and mutual intention ought, of course, to be conclusive of the right of recompense under any emergency.* 1 Erwin v. Arthur, 61 Mo. 38G. * See 3 Kent Com. 470, 471 and 2 Pothier Contrat de Louage, n. n. ; Story Bailm. §§ 417 a, 418 a. 125-128, 134, 141, 144 ; Story Bailm. Where one hires for a specific §§ 391 b, 410, 417 ; Colquhoun Rom. term at a periodical rate of recom- Civ. Law, § 1074. pense, there is no reduction allow- * lb. able for loss of beneficial use while 165 § 161 THE LAW OF BAILMENTS. [PART IV. § 161. The Same Subject. — Agreeably to the rule which permits of the mutual rescission of contracts, a hirer who returns the thing before his term has expired, need not j)ay hire-money beyond the time the owner lets it anew or sells it.i And any sum which the letter may receive by selling the thing after the hirer has returned it carelessly injured is a fair offset to the letter's claim of damages against him as for a total loss.^ A hirer at fault may doubtless have to make good the damage occasioned by his remissness, in addi- tion to giving the promised recompense.^ Yet our law is commonly satisfied with making the injured party whole under his contract ; and on a familiar principle, applied in other relations of life, he who pays as for a total loss or de- struction of the thing ought to be subrogated to the rights of the former owner.* repairs are being made. This rule ^ Wright v. Melville, 3 C. & P. has been applied in the lease of 542. premises, 1 Schoul. Pers. Prop. § .31 ; 2 Austin v. Miller, 74 N. C. 274. also in shipping contracts. United ^ Bigbee v. Coombs, 64 Mo. 529. States V. Shea, 152 U. S. 178. * Story Bailm. § 414. 166 CHAP. IV.] PLEDGE OR PAWN. § 163 CHAPTER IV. PLEDGE OR PAWN. § 162. Nature of Pledge or Pawn as a Bailment. — By pledge or pawn is denoted the bailment of a chattel, as security for some debt or engagement.^ Transactions like these belong to the mutual-benefit class under consideration ; the benefit to the pledgor or pawnor being represented by that debt or engagement, which he is bound to make good, and the benefit to the pledgee or pawnee consisting in the additional means thus afforded him of obtaining the desired satisfaction or ful- filment thereof. § 163. Historical Development of the Transaction. — The common law of pledge or pawn has grown apace with the development of personal property as a species of wealth, every newly created class of such property giving the subject a fresh expansion. Money, for obvious reasons, must always have been an inappropriate, though not positively unfit, subject- matter of pawn, being the end, rather than the means, of security ; and, as for ships and vessels, our maritime law derived names and its hypothecary system from the codes and usage of those Mediterranean powers with whom England carried on her infant commerce.^ If a nobleman had been forced, in the extremity of war, to leave his family plate and jewels with the lender upon usury, in order to get the means of equipping his followers, he scored his account, when he could, upon his creditor's flesh. Borrowers and lenders alter- nated in hatred and fear of one another, as our pawn business anciently went on ; and, socially, they were strangers, the capitalist being the inferior in caste. But most Anglo-Saxon 1 Bouv. Diet. " Pledge," " Pawn;" » See 1 Schoul. Pers. Prop. §§ 304, Story Bailm. §§ 7, 28G ; 2 Kent Com. 442; 1 Pars. Shipping, c. 1; Abb. 577 ; 2 Bl. Com. 451, 452. Shipping, preface. 167 § 164 THE LAW OF BAILMENTS. [PART IV. transactions of this kind, upon personal chattel security, three centuries ago, were petty ; and, managed as they were, under- hand and at opj)ressive rates, we should have found the lenders small capitalists, usually of Jewish extraction, and their customers needy wretches, at the last pinch, who shrank from disclosing their names. For individuals of wealth who aspired to rank might invest on bond and mortgage security, or, in England, take attendant terms,^ as their titled debtors enabled them to do, and purchase lands ; and though ready to buy things personal, according to their needs, such capital- ists so shunned putting out their money on such security that, as a rule, borrowers on pledge had to visit the pawn- broker's shop. But ere this day, loans on the security of chattels personal have become of constant and open occurrence in our com- munity, largely engaging the attention of bankers and in- vestors. And the social rise of this transaction is curiously indicated by the changing use of English terms to denote it. The terms "pawn" and "pledge" in our language appear interchangeable, and law-writers so employ them.^ But " pawn," which is the more characteristic of the particular transaction, and was almost always applied in the humbler^ days of this bailment, keeps its unpleasant savor; for the modern disposition has been to use, in its stead, " pledge," a term admitting of various senses, some of them truly Norman, where the transaction may be detached from the three golden balls. § 164. " Collateral Security " in this Connection. — And, once more, commercial paper and personalty of other incor- poreal kinds are now found so highly convenient for pledge, that brokers and bankers have put us lately to using still another term, that of " collateral security," or " collaterals." We may find this third expression used in some of the late reports, in an uncertain way, as though courts were bewildered in distinguishing between the pledge and chattel mortgage, or 1 1 Schoul. Pers. Prop. § 43. 2 See 2 Bl. Com. 157 ; 3 ib. 274, 280. 168 CHAP. IV.] PLEDGE OR PAWN. § 164 wished to use some convenient term which did not commit them to a distinction.^ From some judicial expressions, one might infer that a transfer, by way of collateral security, was thought something altogether distinct from a pledge ; ^ but the better view is that " collateral security " embraces, in the broadest sense, both pledge and chattel-mortgage transac- tions, while more appropriately applied to the former class, and in the stricter phrase to pledges of incorporeal personalty alone. " Collateral security " is certainly the most patrician of expressions applied to the present bailment, though its legal significance is not precise. As a chancery phrase " col- lateral security " came long ago in other connections to de- note some security given in addition to the principal security. Where one borrows money on mortgage and also deposits bonds, there may arise a strict loan on collateral security. But the colloquial use of these words is not so exact.^ Giving one's simple promissory note for the loan, and bonds, stock, etc., for the security, might seem a proper instance under the same head ; and hence, perhaps, the true origin of this mer- cantile use of the phrase. But no such rigid construction is practically enforced even from the bench ; for as our " col- lateral security " is literally something added to the " principal security," it may be doubted whether one's own note alone can fairly be termed a "• principal security " of the debt ; though certainly it ought to be, if the note itself were indorsed. And now that pledge may be made of great things as well as small, of mercantile as well as household articles, the capi- talist who advances money on staple merchandise, bonds, or commercial paper refuses blood brotherhood with the primi- tive lender upon garments, furniture, and personal orna- ments ; and while the pawnbroker still plies, under license, the individual trade with misery and humble station, a cor- 1 Fraker v. Reeve, 36 Wis. 85; burg Ins. Co. v. Smith, 11 Penn. St. Smithurst v. Edinuruls, 14 N. J. Eq. 120. 408; First Nat. Bank v. Kelly, 57 » See 16 Ch. D. 211, 217 ; 11 Pcnn. N. Y. 34. St. 120. See "collateral .security," 2 See Coulter, J., in Chambers- used in the sense of a mortgage in Matthews v. Warner, 145 U. S. 475. 169 § 167 THE LAW OF BAILMENTS [PART IV. poration, organized for a wider reach of the same business, nominally sinks the pawn, and is styled a " Collateral Loan Company," or " Merchandise Security Bank." § 165. Use of Words " Pledgor " and " Pledgee." — To all of these bailees, alike in their general pursuit, and to private parties who may, in special cases, take chattel security for accommodation, we shall apply in this chapter the convenient term " pledgee ; " the corresponding party being styled the " pledgor." § 166. Roman "Pignus" and "Hypotheca" compared. — Our English pawn or pledge corresponds with the Roman jur/mis, a word whose origin civilians have thought significant of the manual delivery which necessarily accompanied the transac- tion ; for if possession remained with the debtor, although by naked agreement the property was placed in security, the civil law styled it h^potheca.^ Some, however, have said that the difference between j^i^nus and hypotheca was one of sound only .2 Like our pledge, the Roman pignus appears to have been confined to personal property or movables.^ Our commercial law speaks of " hypothecating " ships and vessels, rather than " pledging " or " mortgaging " them ; and this (naturalizing civil rules and civil terms together) because a bottomry bond makes the ship's keel or bottom a creditor's security, without requiring a bailment transfer and retransfer of visible and tangible possession, which would be trouble- some, even if practicable, in such a case.^ § 167. Pledge distinguished from Chattel Mortgage. — Pledge is to be distinguished from the chattel mortgage, which it much resembles. Every chattel mortgage, like a mortgage of real estate, carries over to the party whose security is 1 2 Kent Com. 577, 578 ; Dig. 50, See Coggs v. Bernard, 2 Ld. Raym. 16, 238; lust. 4, 6, 7 ; Story Bailm. 909, 913; 2 Bl. Com. 157. § 286. 4 1 Pars. Shipping, 132, 133 ; The 2 See Dig. 20, 1,5,1; Story Bailm. Grapeshot, 9 Wall. 129; 1 Schoul. § 286. Pers. Prop. § 442. And see Smith v. 3 lb. Lord Holt likened our pawn Weguelin, L. R. 8 Eq. 198 ; Latham or pledge to the Latin vadium; an v. Bank of India, L. R. 17 Eq. 205. inaccuracy not strange for his day. 170 CHAP. IV.] PLEDGE OR PAWN. § 167 intended, a transfer of legal title to the property, with a proviso by way of defeating it; and the mortgagee becomes, technically speaking, the owner of the thing, subject to a condition of title divestment upon the mortgagor's faithful and complete performance of the main undertaking whose security was intended.^ But, under a pledge, the secured party is a mere bailee of the thing, while the main under- taking ripens. Nor is actual possession of the property placed in security so essential to a mortgagee, who stands upon a transferred title, as it is to a pledgee, whose strength consists in possessory rights.^ This theoretical distinction, however, is not well kept up in modern practice ; for equity subjects all mortgages to foreclosure and a possible right of redemption, so that, pending full performance by one party, the other has hardly a more available jus disponendi than any pledgee. Moreover, our local legislation tends constantly to assimilate the two transactions.^ In fine, it has already come to this, that a chattel mortgage, where the mortgagee is out of possession, and relies upon a written instrument for en- forcing his rights whenever needful, is much the same as the Roman hypotheca ; while, on the other hand, the posture of a chattel mortgagee who holds possession of the thing before a breach of condition, is not unlike that of a pledgee or custodian for mutual benefit.* Every transaction by which the possession of personal prop- ^ Atwater v. Mower, 10 Vt. 75 ; in the pledgor ; the pledgee has only Brown v. Beraent, 8 Johns. 96, per a lien, and possession is essential. Kent, C. J. ; 1 Schoul. Pers. Prop. Per curiam, in 5 Pick. 59. And see §§ 415, 416; Story Bailin. § 287; Thompson v. Dolliver, 132 Mass. 103 ; Kimball v. Hildrcth, 8 Allen, 168 ; Lenz v. Harrison, 148 111. 598. Leach v. Kimball, 34 N. H., per Bell, 2 Coty v. Barnes, 20 Vt. 78 ; Wood- J. ; U. S. Dig. 1st Series, Bailment, man v. Chesley, 39 Me. 45. 165 ; Parshall v. Eggart, 52 Barb. » Rowley v. Rice, 10 Met. 7 ; Story 367. By a mortgage, the granted Bailm. § 288 n. ; Rawson, in re, 2 property passes to the grantee sub- Lowell, 519 ; Gay v. Moss, 34 Cal. ject to be revested in the grantor by 125. the performance of the condition. By * See Story Bailm. § 287; Brown a pledge, the pledgee acquires a spe- v. Bement, 8 Johns. 9(3 ; 1 Schoul. cial property only in the article Pers. Prop. §§ 415, 410. pledged, the general title remaining 171 § 167 THE LAW OF BAILMENTS. [PART IV. erty is transferred as security only, is presumably a pledge. Possession of the thing pledged is so needful to the pledgee, that any written instrument turning out personal property as " security " for a debt, but whose terms contemplate leav- ing the original owner still in possession as such, will be presumed to evince a mortgage rather than a pledge transac- tion.i But it is the settled law of some States that a bill of sale intended for security shall operate as a pledge rather than a mortgage, notwithstanding the pledgor keeps posses- sion as the pledgee's agent.^ Again, a document which states that certain goods are deposited to secure the repayment of money lent, and contains a clause giving, in default of pay- ment, the power of sale, is held to import a pledge, not a mortgage.^ And, where a mortgagor of chattels makes a new contract, promising to deliver the mortgaged chattels with other goods to the mortgagee as security for the original debt, and delivers accordingly, the mortgagee will become a pledgee under the new contract.* A receipted bill of parcels for car- riages, which on its face purports to be "for security for indorsed notes and cash," is held to be a pledge and not a mortgage.^ So is a chattel given as security, even though transferred by an absolute bill of sale or by a contract stipu- lating that the pledge shall be irredeemable.^ And there are cases which present a peculiar contract between the parties by way of security, whose special stipulations must govern the conduct of the parties, though their essential relation be that of pledgor and pledgee.''' Generally speaking, there can 1 Coty V. Barnes, 20 Vt. 78 ; Wood- that one purchased the legal title, man v. Chesley, 39 Me. 45 ; Whiting assuming a security, he is not a V. Eichelberger, 16 Iowa, 422. mere pledgee. Foster v. Magill, 119 ^ Rawson, in re, 2 Lowell, 519. 111. 75. See 2^ost, as to delivery, in this chap- ^ Thompson v. Dolliver, 132 Mass. ter. 103. 8 Attenborough v. Commissioners, ^ Morgan v. Dod, 3 Col. 551. 33 E. L. & Eq. 413. ^ Milliken v. Dehon, 27 N. Y. 364 ; * Rowley v. Rice, 10 Met. 7. And Murdock v. Columbus Ins. Co., 59 see Hudson v. Wilkinson, 45 Tex. Miss. 152. And see British Colum- 445 ; Doak v. Bank of State, 6 Ire. bia Bank v. Marshall, 8 Sawyer (U. 309. Where the transaction shows S.), 229. 172 CHAP. IV.] PLEDGE OR PAWN. § I'jS be no pledge without such delivery that the pledgee has pos- session and actual control of the thing. ^ § 168. The Same Subject. — A leading principle to be here deduced is, that an actual or constructive change of posses- sion, where chattels are given in security, better comports with the character of pledge than of chattel mortgage. And, apart from the question of changing possession, if the trans- action for security imports the mere giving in security, with no immediate change of title, it will be presumed a pledge rather than a mortgage ; while, on the contrary, if it assumes to transfer the legal title at once by intendment to the cred- itor or obligee, accompanied perhaps with terms of defeasance, and 3^et so that the title shall become absolute in him through the other's mere non-performance of his condition, then there is a mortgage instead of a pledge.^ These are the two decisive tests, so far as tests to meet the case remain in English law at all. They seem, on the whole, to indicate a judicial prefer- ence for pledge over the chattel mortgage ; for here the actual transaction, if an honest one, is better upheld and the mutual rights are better guarded. In securit}'- transfers of certain in- corporeal chattels, like stock, whose mode of delivery is pecul- iar, the border line Mali often be found exceedingly delicate.^ Intent of the parties, however, must govern in all such trans- actions. Fortunateljs however, it is chiefly on the lesser attributes of such transactions — compliance, for instance, with statute formalities of registration or the stamp acts * — that these distinctions of pledge and chattel mortgage are thus far pressed in the courts ; and the modern English law of collateral security proceeds mainly upon the broader de- marcation which separates, according to the intendment of 148 La. Ann. 488; §§188-199, gages, 4361, 4362 ; British Columbia post. Bank v. Marshall, 8 Sawyer, 229. 2 Atwater v. Mower, 10 Vt. 75 ; » See Wilson v. Little, 2 Comst. Smith V. Beattie, 31 N. Y. 542 ; Leach 443 ; Brewster v. Hartley, 37 Cal. V. Kimball, 34 N. H. 568 ; Shaw v. 15. Wilshire, 05 Me. 485 ; 1 Schoul. Pers. ''See, e.g., Rawson, in re, 2 Prop. § 416 ; Brewster v. Hartley, 37 Lowell, 519 ; Attenborough v. Corn- eal. 15 ; Acker v. Bender, 33 Ala. misaioners, .33 E. L. & Eq. 413 ; 17 230; U. S. Dig. 1st Series, Mort- Q. B. D. G90 ; 84 Mich. .364. 173 § 169 THE LAW OF BAILMENTS. [PAET IV. the contract for chattel security, secured parties in possession and secured parties out of possession. Should any collateral creditor who had honestly omitted taking possession of the thing appear justified, under some contract of dubious import, in making such omission, we presume the security transaction would be construed a chattel mortgage rather than a pledge, so as to save his rights against the public unimpaired. But, as we shall presently see, it is very important to a pledgee to keep and retain possession, in order that his equity may re- main superior to that of others than the pledgor himself, for affecting the personalty in question. As more particularly between the parties themselves, a difference of procedure for enforcing the security on default of the debtor or obligee ; and meanwhile a difference of personal responsibility as con- cerns the thing itself, because custody is transferred in the one case and not in the other, — these remain the funda- mental points of separation between these two great classes of chattel security transaction ; classes for which the Roman pignus and Jiypotheca appear better-fitting epithets on the whole than the English " pledge " and " chattel mortgage." ^ § 169. Transfer apparently Absolute shown to be intended for Security. — We may add that in determining between an out-and-out transfer of personal property, and its transfer for security, courts leave the intention of the parties very freely open to interpretation, notwithstanding the writings which may have passed, and their literal expression. Receiving 1 See Posts Gaius, III. 90, 91, tween mortgages of real estate and 303. It is, however, to be observed mortgages of personal property, that our courts of law look at no though more, perhaps, for the past other owner than the mortgagee than the future : that those of the under a chattel mortgage whose con- former kind follow the equity rule dition has not been performed, un- regardless of form, so as to confer no less the local statute has otherwise legal title at once upon the mort- prescribed ; while courts of equity gagor, but to serve rather as mere have done little here to mould the security until breach of condition ; law to their own theory, as compared whereas those of the latter kind pass with their constant interposition the legal title at once to the mort- where real-estate mortgages are con- gagee, subject to defeasance, agree- cerned. And hence this practical ably to the legal rule. See Jones difference has widely obtained be- Chattel Mortgages, § 1. 171 CHAP. IV.] PLEDGE OR PAWN. § 170 negotiable paper for an existing indebtedness looks like accept- ing absolutely that mode of payment; yet the parties may show that the paper was taken only as collateral security for the debt.^ And often has a bill of sale, or a transfer certificate of stock, or the written assignment of an incorporeal right, absolute on its face, been shown to be intended only for a pledge or chattel mortgage, by some other writings, or even by the mere conduct of the parties and parol evidence.^ Transactions thus construed will be treated accordingly ; nor should one conclude that parties meant a conditional sale, where the facts tended rather to establish the creation of security.-^ For while real-estate transfers require documents in writing and do not admit of parol proof, it is the reverse with transfers of personal property. Whether one is a purchaser or pledgee depends upon the true intent of the transaction. Thus, where one gives per- sonal property to his creditor to sell and apply to the pay- ment of a debt already due, the creditor is not a purchaser but a pledgee.* And the word " guaranty " may be used in such transactions in the sense of security or lien.^ Whether a transaction was a pledge, or a sale with option to repurchase, depends upon its true intent.*" § 170. Classification of the Present Chapter. — We proceed to discuss the law of pledge under the following general heads: I. The pledge contract. II. Delivery in pledge. III. Bailment in pledge pending full accomplishment of the 1 Comstock V. Smith, 23 Me. 202 ; ^ Williamson v. Culpepper, 16 Ala. M'Lean v. Walker, 10 Johns. 471 ; 211. And see, as to chattel mort- Partee I?. Bedford, 51 Miss. 84; Wood gages, 1 Schoul. Pers. Prop. §§414, V. Matthews, 73 Mo. 477. 442 ; U. S. Dig. 1st Scries, Mortgages, 2 Caswell V. Keith, 12 Gray, 351 ; 4370, 4390. But local statutes which Smith V. Beattie, 31 N. Y. 542 ; Ful- reduce the scope of parol evidence to ler V. Parrish, 3 Mich. 211 ; Camp- establish a pledge are found. 32 La. bell V. Parker, 9 Bosw. 322 ; Houser Ann. 680. V. Kemp, 3 Penn. St. 208 ; Hudson * Harris v. Lombard, CO Miss. 29. V. Wilkinson, 45 Tex. 445 ; Wilson 6 Wilkie v. Day, 141 Mass. 68, V. Little, 2 Comst. 443 ; Morgan v. where a peculiar transaction was con- Dod, 3 Col. 661 ; Rohrle v. Stidzer, sidered as in the nature of a pledge 60 Cal. 207 ; 1 Schoul. Pers. Prop, to secure a lessor. § 417, and cases cited ; 38 Neb. 39. « 47 Miuu. 417. 175 § 172 THE LAW OF BAILMENTS. [PART IV. secured undertaking. IV. Bailment in pledge on the pledg- or's default, or upon fulfilment of the secured undertaking. § 171. The Pledge Contract, and its Essentials. — I. The pledge contract. To the pledge contract are these three es- sentials : (1) A subject-matter ; (2) A debt or engagement ; (3) Mutual assent that this subject-matter shall be handed over to secure payment or fulfilment of this debt or engage- ment. Let us examine these essentials in detail. §172. First Essential ; Subject-matter of Pledge. — 1. As tO the subject-matter. In pledge, as in all other bailments, our transaction is necessarily confined to personal property. And of personal property, except for the peculiar rules of maritime law which are applicable to shipping, all kinds which are visible and tangible may be pledged ; and, besides, the various incorporeal species, so far, at least, as concerns those which are evinced by instruments in writing, whereby a transfer of possession may take place. ^ In the earlier days of our law, only corporeal kinds, and those a few of the simple sort, were put in pawn ; and in the leading case of Coggs v. Bernard^ Lord Holt is found laying down the law with particular refer- ence to jewels, wearing-apparel, and domestic animals.^ No such brief list would now avail ; for courts of this day con- stantly recognize the interchange in pledge, not only of mer- chandise and household goods of every modern description,^ but also of incorporeal chattels. A pledge may be made of rails laid for a temporary purpose upon another's land, as well as of the railway rolling stock, since they are all personal property.* Among our incorporeal chattels may be mentioned, bills and notes ; ^ other negotiable and quasi negotiable instru- 1 2 Kent Com. 577 ; Story Bailm. « Woodward v. Exposition R., 39 § 290 ; cases infra. And see Kemp La. Ann. 566. V. Westbrook, 1 Ves. Sen. 278. ^ Garlick v. James, 12 Johns. 146 ; 2 Coggs V. Bernard, 2 Ld. Raym. Appleton v. Donaldson, 3 Penn. St. 909, 917. 381 ; White v. Phelps, 14 Minn. 27 ; 3 Stearns v. Marsh, 4 Denio, 227 ; Louisiana State Bank v. Gaiennie, Houser v. Kemp, 3 Penn. St. 208 ; 21 La. Ann. 555. Smithurst v. Edmunds, 14 N. J. Eq. 408. 176 CHAP. IV.] PLEDGE Oil PAWN. ments, like coupon bonds and government securities ; ^ muni- cipal claim vouchers ; ^ shares of stock, and scrip certiiicates ; ^ a stock-margin ; * title deeds ; ^ a savings-bank deposit ; ^ a judgment;'^ a bond with warrant to confess judgment, to- gether with the judgment thereon ; ^ bonds secured by a mortgage on personal property and corporate franchises ; ^ and chattel mortgages of every description.^*' Even a lease may thus be taken," for leases are but chattels real ; or a mortgage of real estate, which before foreclosure is now to be ranked with personjil property; ^^ or unlocated land certifi- cates.^'^ A life-insurance policy may be taken in pledge for security, by mutual consent ; which transaction, however, is to be distinguished from that of insuring the debtor's life for the protection of the creditor, at the latter's sole instance.^* And so is it with fire or marine insurance policies.^^ That which is incapable of delivery cannot, logically speak- 1 Donald v. Suckling, L. R. 1 Q. B. 585 ; Goodwin v. Robarts, 1 App. Cas. 476 ; Strong v. Nat. Bank Assoc, 45 N. Y. 718 ; Morris Canal Co. v. Lewis, 1 Beasl. 323 ; Looniis v. Stave, 72 111. 023; 4 Mo. App. 50; 114 N. C. 608 ; Texas Banking Co. v. Turnley, 61 Tex. 365. And see 9 Mod. 278 ; 2 Atk. 303. 2 Talty V. Freedman's Savings Co., 93 U. S. 321. 8 Halliday v. Holgate, L. R. 3 Ex. 299 ; Langton v. Waite, L. R. 6 Eq. 165 ; Wilson v. Little, 2 Comst. 443 ; Worthington v. Tormey, 34 Md. 182 ; Conyngham's Appeal, 57 Penn. St. 474 ; Pinkerton v. Railroad, 42 N. H. 424; Heath v. Silvcrthorn Co., 39 Wis. 147 ; Stone v. Brown, 54 Tex. 330. * Markhara v. Jaudon, 41 N. Y. 235. 6 Kerr, in re, L. R. 8 Eq. 331 ; English V. McElroy, 62 Ga. 413. 6 Boynton v. Payrow, 67 Me. 587. ' Hanna v. Holton, 78 Penn. St. 334. And see 161 Penn. St. 469. 8 lb. ^ White Mountains R. v. Bay State Iron Co., 50 N. H. 57; Potter v. Thompson, 10 R. I. 1. 10 Fraker v. Reeve, 36 Wis. 35 ; Jerome v. McCarter, 94 U. S. 734. 11 Dewey v. Bowman, 8 Cal. 145. And see Briggs v. Jones, L. R. 10 Eq. 92. A tenant may pledge his furniture to the landlord for his rent. State V. Adams, 76 Mo. 605. 1- Campbell v. Parker, 9 Bosw. 322 ; Wells v. Wells, 53 Vt. 1 ; Jerome v. McCarter, 94 U. S. 734 ; 1 Schoul. Pers. Prop. § 44 ; 8 Cal. 145 ; 66 Cal. 480. 13 Stone V. Brown, 54 Tex. 330. 1* Bruce v. Garden, L. R. 5 Ch. 32 ; Edwards v. Martin, L. R. 1 Eq. 121 ; Soule v. Union Bank, 45 Barb. Ill ; West ??. Carolina Life Ins. Co., 31 Ark. 476; Hakes v. Myrick, 69 Iowa, 189. 1* Latham v. Chartered Bank of India, L. R. 17 Eq. 205; Merrifield V. Baker, 9 Alien, 29. 12 177 § 174 THE LAW OF BAILMENTS. [PART IV. ing, be the subject-matter of a pledge ; but since monej'- rights, not negotiable, or mere choses in action, may at least be assigned, so that delivery of the muniment or voucher shall answer the purpose of a bailment, this reservation is unimportant in modern practice.^ The modern civil law here agrees with us in substance ; and to the same purport, appar- ently, was the Roman law, notwithstanding some equivocal expressions to be found in the Digest.^ § 173. The Same Subject. — The pledge of an indorsed bill of lading of goods on transit by land or water trans- fers, under mercantile usage of the present day, the special f)roperty therein against third parties, as well as against the pledgor himself.^ And a warehouse receijDt may be given in pledge so as to carry the goods which it represents.* § 174. Pledge of Thing •which has ceased to exist. — That which does not actually exist cannot in strictness be the subject-matter of a pledge : as where a thing has ceased to exist, or has not yet come into being. Thus, to take the former case, the pledge contract of goods which prove already- burnt up is void ; and so is it with the pledge to-day of an animal that died yesterday.^ For, though par- 1 See Welch v. Mandeville, 1 311 ; Marine Bank tj. Fiske, 71 N. Y. Wheat. 236 ; 1 Schoul. Pers. Prop. 353 ; Taylor v. Turner, 87 111. 296. §§ 72-82 ; Gay v. Moss, 34 Cal. 125 ; * Cleveland v. Sboeman, 40 Ohio Talty V. Freedman's Savings Co., 93 St. 176. See post, as to delivery. U. S. 321 ; Dunn v. Meserve, 58 N. H. To the modern practice of mingling 429. One's interest in a limited part- one's wheat or grain with another's nership may be pledged. CoUins's so as still to constitute a bailment on Appeal, 107 Penn. St. 590. Or by a the part of the warehouseman, ele- suitable writing of assignment, any vator man, etc., we have already re- open account or book debt. 105 Cal. ferred. Supra, § 8. It follows that 467. Or some claim or demand. 161 a warehouseman may effectually Mass. 550. Or even, by equitable as- pledge a part to secure his own debt signment, the fractional part of a by his warehouse receipt ; and if the claim. Fairbanks v. Sargent, 117 wheat is to be made into flour it may N. Y. 320. amount rather to a pledge of the 2 1 Domat. B. 3, tit. 1, § 1, art. 23 ; flour. Merchants Bank v. Hibbard, Pothier Contrat de Nantissement, 48 Mich. 118. n. 6, with citations ; Story Bailm. ^ ^s to sales under such circum- § 290 a ; Clay v. Creditors, 9 Mart, stances, see 2 Kent Com. 468 ; 2 519. Schoul. Pers. Prop. § 207 ; Benj. * Hathaway v. Haynes, 124 Mass. Sales, bk. 1, pt. 1, c. 4. 178 CHAP. IV.] PLEDGE OR PAWN. § ITo ties miglit agree to place a heap of ashes, a carcass, or a skeleton, in security, the identity of that to which assent is given must be preserved throughout, and a new product does not answer for the perished thing whose pledge was mutually intended. Where the thing to which the minds of the parties were directed has already been partially, but not utterly, destroyed, the rule might be somewhat different ; for here, as our jurists apprehend (though the precise point has not been determined), the pledgee would have his option to decline or accept the security.^ The pledge contract of a particular life-interest in an estate is also, under our general rule, null, if that life has already expired.^ § 175. Pledge of Thing not yet in Existence. — The case of a thing not yet come into being presents some difficulty, for equity has much diluted the strength of the common-law rule in this respect. Granting the rule, it yet appears that the chattel product in futuro of that to which one holds a right in esse, like the prospective earnings of a voyage, or of some existing contract of service, the year's wool on one's sheep, the milk from one's cows, the severed crops from one's land, a reversionary right as heir, are all deemed assignable interests at this day, and capable of sale ; and, if capable of sale, they must be capable of pledge or mortgage.^ And it is still more broadly asserted that chattels in which one has a potential interest may now be transferred, though not, of course, any mere possibility coupled with neither potential nor actual interest.* Hence one might gain a transferee's 1 2 Kent Com. 4G8, 4G9 ; 2 Sclioul. ate upon an ungrown and unsevered Pers. Prop. § 207. crop, for this is real estate. Com- 2 See Strickland v. Turner, 7 Ex. stocks v. Scales, 7 Wis. 159. And 208. the rule is strictly asserted also * As to sales see Benj. Sales, bk. against the pledge of an overgrown 1, pt. 1, c. 4 ; 2 Schoul. Pers. Prop, and unsevered crop. Gittings y. Nel- §§207-209; Bellows r. Wells, 36 Vt. son, 80 111. 591. But semble the 599. And as to chattel mortgages pledge would hold good if the cred- see 1 Schoul. Pers. Prop. § 421 ; iter severed and held possession be- Holroyd v. Marshall, 10 II. L. Cas. fore other rights intervened. See 191 ; Harding r. Coburn, 12 Met. 333. also 54 Kan. 674. But a chattel mortgage cannot oper- * lb. 179 § 175 THE LAW OF BAILMENTS. [PART IV. interest, not only in the principal thing, but in certain acces- sions thereto besides. A brickmaker's stipulation that the lessees of a brickyard shall retain the bricks to be made as security for their advances to him has been construed so as to give a pledge of the bricks as fast as they were made, no creditors having attached before the bricks were all taken into the lessees' possession; and although, as it is here maintained, there cannot be a technical pledge of property not in exist- ence, or to be acquired in futuro, yet there may be a con- tract for an hypothecation thereof, so that when the property comes into existence the right of the pledgee will immedi- ately attach to it.^ More recently has additional furniture, which it was similarly agreed should be held as collateral security for the landlord's rent, been protected for the lessor as against subsequent attaching creditors of the lessee ; the understanding being that the pledge of furniture in the hotel should extend to all which the lessee might add from time to time. 2 Our reckoning in these perilous waters may, perhaps, be kept by distinguishing between future obligations, such as a pledge contract might seek to impose upon the parties con- cerned, and obligations which, to prevail as a pledge or bail- ment, ought to be in present force ; between rights which one may require the other party to recognize when oppor- tunity offers, and yet may not fully enforce to the lawful hindrance of immediate third parties in interest. If a pledge contract undertakes to put in security that which, as a sub- ject-matter, is not actually in existence, there can be no immediate bailment to the pledgee, technically speaking, for there is nothing to deliver him ; and non-existence excludes attachment by the pledgor's creditors none the less. We may, perhaps, correctly assume that the pledge contract of 1 Macomber v. Parker, 14 Pick, acquired property which equity would 497. Cf. Story Bailm. § 294 and n. protect as against subsequently at- 2 Smithurst v. Edmunds, 14 N. J. taching creditors. And s?e Ayers v. Eq. 408. The ground here taken South Australian Banking Co., L. R. was that the contract created an 3 P. C. 548. equitable mortgage upon the after- 180 CHAP. IV.] PLEDGE OR PAWN. § 177 after-acquired chattels, or chattels by accession, so far as courts sustain the arrangement, gives the pledgee a right strong as against his pledgor, but which, as against third parties, he must perfect when opportunity offers ; so that, if neither actual nor constructive delivery and acceptance follow the accession or production of the new thing, and the owner's creditors meantime attach it, the so-called pledgee fails of security against them.^ § 176. Natural lucrease as accessory to the Pledge. — The pledge of a thing carries, by intent, not only the thing itself, but the natural increase thereof, as accessor}'^ in futuro under the contract. Thus, if a flock of sheep be pledged, the young born while the bailment lasts become pledged also ; ^ and the pledge of stock or interest-bearing securities likewise attaches to the dividends or interest payments falling due, their natu- ral increment.^ For, as soon as the thing comes into exist- ence, the bailee's possession takes effect ; though here once more he should, as regards the public, make and keep his possession perfect. § 177. Things whose Pledge is forbidden, etc. — But there are some things whose pledge is usually forbidden ; as, for instance, the pensions, bounties, and pay of soldiers and sailors, a class of persons whom the law seeks to protect, as commonly improvident and out of easy range of the courts.* And yet, as to necessaries, these can be pledged or pawned at the common law ; and it is no uncommon thing for a per- son in distress to take garments to the pawnbroker which ought to be on his own back.^ Nor does the legislative exemption of stated articles from attachment or execution sale forbid their being pledged in such manner as to bind 1 See Goodenow v. Dunn, 21 Me. ' Swasey v. North Carolina R., 1 86; Jones v. Richardson, 10 Met. Hughes (U. S.), 17. See also Merri- 481 ; Helm v. Meyer, 30 La. Ann. field v. Baker, 9 Allen, 29. 943; CoUins's Appeal, 107 Penn. St. * U. S. Rev. Sts. (1878), § 4745 ; 690. M'Carthy v. Goold, 1 B. & B. 389 ; 2 Story Bailin. § 292 ; 1 Domat. 3, Flarty v. Odium, 3 T. R. 681. 1, 1, 7-10 ; Dig. 20, 1, 13 ; Smith v. ^ Story Bailm. § 293. Atkins, 18 Vt. 401 ; La Code (1825), art. 3135. 181 § 178 THE LAW OF BAILMENTS. [PART IV. the pledgor.^ The Roman policy in respect of pledging necessaries was, however, more stringent.^ But, in England and America, the law-making power imposes some special checks; as in prohibiting our national banks from loaning or discounting on the security of their own stock, unless it be needful in order to prevent loss on a debt previously con- tracted in good faith ; ^ or, again, in requiring certain formali- ties to be pursued.* And, while contract rights may now be quite generally pledged, one cannot pledge a cause of action growing out of a personal wrong.^ § 178. Second Essential ; Debt or Engagement. — 2. As to the debt or engagement. This may be primary or secondary, on the pledgor's part, absolute or conditional, for the pay- ment of money or for any other lawful performance of an engagement. The pledgor may be bound to the debt or engagement as indorser or surety for another, or as himself the maker or principal.^ So, too, may the security be taken by the pledgee for the repayment of money loaned (which is the usual case) or so as to indemnify him for becoming an indorser or surety at the pledgor's instance.^ In every case some lawful debt or engagement which is or may be owing the pledgee constitutes the foundation of the security upon which the thing is given. ^ A pre-existing debt affords accord- ing to the better opinion sufficient consideration for a pledge 1 Frost V. Shaw, 3 Ohio St. 270. lateral security. Mass. Pub. Stats. 2 Story Bailm. §293; 1 Domat, (1882), c. 105, §25; changed by 3, 1, 1, 24-27. statute, 1884. 138 Mass. 247. 3 Bank v. Lanier, 11 Wall. 369. 5 pindell v. Grooms, 18 B. Monr. And see Sankey Brook Coal Co., «i 501. re, L. R. 10 Eq. 381 ; Brewster v. ^ Story Bailm. § 300 ; Brick v. Hartley, 37 Cal. 15. " Sugar bounty " Freehold Co., 37 N. J. L. 307; statute considered in this connection. Stewart v. Davis, 18 Ind. 74 ; Wilcox 74 Fed. 412. v. Fairhaven Bank, 7 Allen, 270. * Thus, registration is required by '^ The pledgee was a surety to be the Louisiana statute. And in some indemnified, in Blackwood v. Brown, States a pledge of stock must be 34 Mich. 4 ; Gilson v. Martin, 49 Vt. accompanied, according to statute, 474. He was an indorser for the with a description of the debt in the pledgor in Third Nat. Bank v. Boyd, instrument of transfer ; the new cer- 44 Md. 47. And see Clay v. Cred- tificate issued to the pledgee express- itors, 9 Mart. 519. ing on its face that he holds as col- ^ story Bailm. § 300. 182 CHAP. IV.] PLEDGE Oil PAWN. §178 to secure its payment.^ The object may be to secure all or part of what one owes, a general or a specific indebtedness ; ^ to protect what is now outstanding from the pledgor, or so as to include future liabilities as tliey may arise in favor of the same pledgee ;^ to cover obligations for a fixed or for an indefinite period;* provided always that the transaction be not, as against third parties, a device for defrauding them. Whatever the security, the pledgee has no right to apply it as anotlier or greater security than what was mutually intended, witliout the pledgee's free assent. Thus, if B's property is given in pledge for A's note, it does not, without B's knowledge or assent, secure the renewal of A's note at maturity.^ Nor can a banker hold the property of his cus- tomer which has been specially deposited with him, so as to operate by way of pledge for transactions which the property was never intended to protect.^ One may give security for the payment of .H0,000 out of his debt of 817,000 ; and after 1 Swift V. Tyson, IG Pet. 1 ; Rail- road Co. V. Bank, 102 U. S. 14 ; 66 Vt. 541 ; Spencer v. Sloan, 108 Ind. 183, and cases cited. But some older States still adhere to the rule that such a pledge without any present valuable consideration is subject to equities between the pledgor and third parties. Ill Penn. St. 291; 60 Conn. 463; 152 Mass. 189, 199, and cases cited. There is still con- flict on the question. See 46 Kan. 536. 2 Fridley v. Bowen, 103 111. 033. 8 Berry v. Gibbons, L. R. 8 Ch. 747 ; Eichelbcrger v. Murdock, 10 Md. 373 ; Third Nat. Bank v. Boyd, 44 Md. 47 ; Badlam v. Tucker, 1 Pick. 389 ; Ilolbrook v. Baker, 5 Me. 309 ; Cross V. Brown, 17 R. I. 568 ; Moors V. Washburn, 147 Mass. 344 ("for any and all indebtedness existing or which may hereafter exist," whether prior or subsequent to giving the security). But see Divver v. Mc- Laughlin, 2 Wend. 590. * United Slates v. Ilooe, 3 Cr. 73 ; Stearns v. Marsh, 4 Denio, 227 ; Story Bailm. § 300. 5 Burnap v. Potsdam Bank, 96 N. Y. 125. Duncan v. Brennan, 83 X. Y. 487 ; Biebinger v. Continental Bank, 99 U. S. 143 ; Wyeth v. Market Bank, 1.32 Mass. 597 ; AVooUey v. Louisville Banking Co., 81 Ky. 527 ; 84 Ky. 135 ; Loyd v. Lynchburg Bank, 86 Va. 690 ; 159 Mass. 51. No equitable lien arises from the fact that, by mutual agreement, such property originally secured the banker in other dealings since settled; 99 U. S. 143. Where one deposits with bis banker something expressed to be security against overdrafts to a cer- tain extent, the banker's lien is lim- ited accordingly. Bowes, Ec, 33 Ch. D. 586. It is a matter of fact whether a pledge was intended solely for some particular debt or for general indebt- edness. Gcmmcll v. Davis, 75 Md. 546. 183 § 179 THE LAW OF BAILMENTS. [PAP.T lY. he has paid 810,000 he is entitled to a return of the security.^ On the other hand, Avhere the pledge is to secure a general balance the pledgor cannot reclaim the pledge on paying only a specific part.^ Where future advances are to be secured, the character of the property at the time of such advance may be a matter of consequence.^ But pledgor and pledgee may agree that a security shall stand for renewals as well as for the original notes secured.* § 179. Third Essential; Mutual Assent as to Particular Sub- ject-Matter, Debt, etc. — 3. As to mutual assent that the par- ticular subject-matter be handed over to secure payment or fulfilment of the particular debt or engagement, ^lutual assent, whether formally expressed in written or spoken Y/ords, or inferable from the acts and conduct of the parties, presupposes a contract which parties enter into conformably to the law of contracts. This contract should be between parties legally competent thereto ; neither disqualified, as are insane persons, and, to a certain extent, infants and married women ;^ nor, like certain kinds of corporations, placed under special statute disabilities in this respect.^ It must not be made under circumstances involving force or fraud ; for this would render it voidable by the injured party .'^ Nor, with reference to the pledgor's other creditors and third parties generally, ought such agreements to be fraudulent; else the party wronged might have the transaction set aside.^ Whether mutual assent has closed, or there is, instead of a pledge con- tract, a mere unaccepted offer to pledge, the law of contracts will determine.^ 1 Fridley v. Bowen, 103 111. G.33. N. Y. 585 ; Rowland v. Plummer, 50 2 Merchants Bank v. Demere, 92 Ala. 182 ; Sclioul. Dom. Rel. § 142. Ga. 735. 6 Bank v. Lanier, 11 Wall. 369; San- !* Texas Banking Co. v. Turnley, key Brook Coal Co., in re, L. R. 10 Eq. 61 Tex. 365. 381. But see Ayers v. South Austra- * Shrewsbury Institution's Appeal, lian Banking Co., L. R. 3 P. C. 548 ; 94 Penn. St. 309. The drawer of a Curtis v. Leavitt, 15 N. Y. 9, to the note can pledge property to secure an point that a statute prohibition may accommodation indorser and protect yet leave rights as pledgee sub modo. future holders. 41 La. Ann. 259. '^ Story Bailm. § 302. « lb. * See, as to the pledge capacity of ^ See Providence Thread Co. v. married women, Leitch v. Wells, 48 Aldrich, 12 R. I. 77. 184 CHAP. IV.] PLEDGE OR PAWN. § 181 As already intimated, no express contract is here essential, since the transfer of possession with suitable mutual intent is largely relied upon. Modern transactions show often a xcry complex pledge transaction where the contract was oral ; but delivery made the bailment complete, and aided oral proof of the mutual intention.^ §180. The Same Subject; Illegal Pledge Contracts. — Ille- gality of the pledge contract is another cause of avoidance ; rendering it, indeed, utterly null in purview of the law. But since, apart from regarding each culprit's own criminal accountability, the fact that illegality practically puts out of court the party who seeks to enforce the contract tainted with it, one's disadvantage might, to his opponent, prove a positive advantage. For instance, a creditor who supplies victuals for debauch in a brothel cannot sue to recover pay- ment;^ nor (in some States) an usurious lender ;3 nor, as a rule, one whose demand shows him to be a Sunday-law breaker.* Consequently the promise of a pledge to secure any 'such debt is null, as well as the debt itself; and so far the pledgor and debtor is the better off. But, once hav- ing executed the contract by delivery, the pledgor gives his I)ledgee the advantage ; so that, being now compelled to show, if he would get the thing back, that he gave it to secure an illegal contract in which he participated, he cannot recover it, without first paying or tendering what he owes so as to stand upon his general rights as owner ; and though the pledgee meantime may be unable to sue for the illegal debt, he can yet retain possession of the pledge, for the maxim is, in pari delicto potior est conditio possidentis.^ § 181. The Same Subject; Tvhere Pledgor is not Owner. — It is not essential to the validity of the pledge contract that the thing pledged should belong to the pledgor himself. As between the parties themselves and against the general public, 1 See, p.g.. Means v. Bank of Ran- ^ Causey r. Ycatcs, 8 Humph. 605 ; dall, 140 U. S. G20. 1 Sclioul. Pers. Prop. §§ •JC.5-L'90. 2 Taylor v. Chester, L. R. 4 Q. B. •» King v. Green, 6 Allen, 1.39. 309. '' Cases supra ; Curtis v. Leavitt, 16 N. Y. 9. And sec supra, § 92. 185 § 181 THE LAW OF BAILMENTS. [PART IV. that transaction may be upheld which some third person with better title might successfully impugn. Clearly an author- ized agent may make a pledge contract on behalf of his prin- cipal ; an officer, in the name of the corporation he represents ; and a holder, generally, under an owner's consent.^ Agency, express or implied, confers authority ; in any case it is suffi- cient that the owner consented to have the thing pledged ; and a transaction may amount constructively to a pledge, so that even the true owner cannot reclaim without discharg- ing the obligation. Nor can any pledgor assert his own wrong- ful delivery of another's property as a ground for recovering it from the pledgee without first discharging his pledge obli- gation.2 All this accords with the general law of bailments elsewhere discussed.^ But the rightful owner, if not himself at fault, as in giving his agent too great a show of authority, or pursuing his reme- dies too tardily, may overtake and recover his chattels put or promised in pledge, were the pledgee never so honest on his part. For as to corporeal chattels more particularly, the old rule avails that property cannot at the common law be pledged as against the true owner without his assent.* Money, bank- notes, and current negotiable securities not overdue stand, however, on such a peculiar footing at the common law with regard to facility of transfer that the bond fide pledgee with- out notice of infirmity can hold such a thing to the extent of his just demand as against even a rightful owner from whom the pledgor had stolen it ; ^ though, with respect to stock, the ^ Jarvis v. Rogers, 13 Mass. 105 ; not confer title on the pledgee. 107 Story Bailm. § 291. N. C. 189. 2 Story Bailm. § 291 ; Goldstein 5 2 Schoul. Pers. Prop. §§ 20, 21 ; V. Hort, 30 Cal. 372; §§ 218, 219. Raphael v. Bank of England, 17 C. 3 See supra, §§ 19, 22. B. 161 ; Goodman v. Simonds, 20 * As where a thief or the bailee How. 343 ; Fisher v. Fisher, 98 Mass. for hire pledges wrongfully. Small 303 ; 4 Mo. App. 59 ; Bealle v. V. Robinson, 69 Me. 425 ; Singer Southern Bank, 57 Ga. 274 ; Farwell Man. Co. v. Clark, 5 Ex. D. 37 ; v. Importers Bank, 90 N. Y. 483 ; Gottlieb V. Hartman, 3 Col. 53 ; 36 S. C. 136 ; 43 Neb. 680 ; 39 La. Branson v. Heckler, 22 Kan. 610. Ann. 90. Tortious possession four years does 186 CHAT. IV.] PLEDGE OR PAWN. § 181 case is not so clear.^ But, at all events, the pledgee, even on such a vantage ground, should not a^^pear to have closed his eyes to signs of his pledgor's dishonesty.^ Stock is differently treated by the custom and legislation of different States ; but by the safer rule the oifer of stock to secure one's private debt, whose certificate is simply expressed in the name of " A. B., Trustee," puts the intended pledgee on inquiry as to the character and limitations of the trust, and if he accepts the pledge without inquiry, he does so at his peril.^ Negoti- able securities may also run with like restriction.'* One is not a bond fide holder entitled to protection who has season- able notice of infirmity and disregards it, as to either stock or negotiable paper.^ Nor can overdue paper or negotiable secu- rities with suspicious erasures be safely taken in pledge ; " nor stock issued under a forged order of transfer ; " nor, as it appears, negotiable instruments which, though genuine, have never been put into circulation ; ^ nor public securities which have been paid, and instead of being cancelled, are improi> erly reissued.^ There is furthermore a distinction to be ob- 1 Cf. Sewall V. Boston Water 111 U. S. 156. And see Ryman v. Power Co., 4 Allen, 272,282; Bur- Gerlach, 15.3 Penn. St. 197. The ton's Appeal, 93 Penn. St. 214. latest English cases incline to con- 2 Sheffield v. London Bank, 13 sider that where negotiable instru- App. Cas. 333. One who has notice ments are brought by one known that the note was of an accouimoda- to be a broker for a pledge, such tioncharacter cannot hold it in pledge circumstances as bringing tliem in regardless of the restriction. Peo- block are suspicious and should put pie's Bank v. Clayton, 6G Vt. 541. one upon inquiry. Sheffield v. Lon- 8 Walker v. Taylor, 4 L. T. n. s. don Bank, 13 App. Cas. 333. And 845 ; Shaw v. Spencer, 100 Mass. see Bentwick v. Joint Stock Bank, 382. But see Thompson v. Toland, [1893] 2 Ch. 120. Cf. Smith v. Savin, 48 Cal. 99, contra. 141 N. Y. 315. * Treultet v. Barandon, 8 Taunt. ^ Vermilye v. Adams Express Co., 100 ; Story Bailm. § .323. 21 Wall. 138 ; Colson v. Arnot, 57 s As where the treasurer of a com- N. Y. 253 ; Hatcher v. Independence pany pledges stock newly issued in Bank, 79 Ga. 547. his own name for his private debt. '' lb. ; Hambleton v. Central Ohio The pledgee is here put upon incpiiry R., 44 Md. 551. as to the bona fides of the transac- ^ Francia v. Joseph, 3 Edw. Ch. tion. Farrington v. South Boston 182. R., 150 Mass. 406. This conservative ^ jjoard of Education v. Sinton, rule follows Moore v. Citizens Bank, 41 Ohio St. 504. 187 § 182 THE LAW OF BAILMENTS. [PART IV. served between the bond fide holder for value without notice of infirmity before and after maturity of tlie negotiable instru- ment which is transferred without right or title ; for after maturity, title depends upon true ownership, as in non-nego- tiable chattels.^ §182, The Same Subject. — In general, as between two innocent parties, one of whom must lose, the rule is, that he shall suffer who enabled the wrong to be committed ; a maxim not always found easy of application in the present instance, and yet often available on behalf of the bojid fide pledgee against a true owner.^ This principle we shall pres- ently pursue in connection with a pledgee's sub-pledge or overdealing with the property intrusted to his keeping. We may observe, however, a constant tendency in the later cases to favor every bond fide holder of a thing to the extent of his advances upon its security, not only where the doctrine of negotiable paper may be invoked on his behalf, but whenever it may be said that the true owner trusted the property or the indicia of title to another's hands so carelessly that, even though an agency for the pledge was not strictly conferred, the owner enabled the wrong of inducing a loan upon its security to be committed."^ 1 See this distinction pursued in N. Y. 223 ; Burton's Appeal, 93 Texas Banking Co. v. Turnley, 61 Penn. St. 214. But not where the Tex. 365, following 6 Wall. 493 ; 7 person who pledged claimed to be a Wall. 485. mere agent. Merchants Bank v. 2 Calais Steamboat Co. v. Van Livingston, supra. It does not fol- Pelt, 2 Black, 372 ; Babcock v. Law- low that stock is to be treated like son, 4 Q. B. D. 394. negotiable paper ; but it seems rather 8 Thus, in States where certificates an extension of an agent's authority of stock with a blank transfer or an by the apparent scope of the powers irrevocable power of attorney to conferred upon him, or an apparent transfer pass freely from one owner ownership. A blank assignment to another, the inclination is to re- with power of attorney signed on gard one who loans in good faith the back of the stock certificate by upon its security as superior in equity the owner, does not justify the holder to the true owner of stock, if such in pledging for his own debt. Talia- owner gave it to one who abused his ferro v. Baltimore Bank, 72 Md. 164 ; opportunities as the owner's agent or Nisbet v. Macon Bank, 4 Woods, trustee. Cherry v. Frost, 7 Lea, 1 ; C. C. 464. But cf. New York rule Merchants Bank v. Livingston, 74 contra, 74 N. Y. 223 ; Fifth Ave. 188 CHAP. IV.] PLEDGE OR PAWN. § 184 § 183. Power of Executors, Guardians, etc., to pledge. — Ex- ecutors, guardians, and other fiduciary officers are permitted so wide a range of authority in the ordinary exercise of their trusts, that one need not question their general power to pledge personal assets of the trust fund.^ But it is other- wise where the party dealing with such an officer is charge- able with notice of his breach of trust; as if, for instance, the latter should undertake to place in security, for his private advantage, chattels which manifestly belonged to the estate.* Where, however, the intended pledgee, when put upon in- quiry, receives false information, but such as might fairly lull his suspicions, and accepts the pledge accordingly, the courts incline to protect his interest as bona fide, and prudently ac- quired.3 Akin to this doctrine is that applicable to agents having large general powers for managing the principal's personal estate.* To charge a pledgee with notice of fraud in a fiduciary's title or an intended misapplication of funds, the facts shown, whether direct or indirect, should be such as to put an oidi- narily prudent person upon inquiry.^ § 184. Pledge by Factor, Broker, etc. — But as to factors. Bank v. Ferry Co., 137 N. Y. 231 ; put the pledgee upon inquiry. Gott- 06 Cal. 74, 402. See also Hakes v. berg v. Bank, 131 N. Y. 595. Myrick, 69 Iowa, 189, where a mort- ^ Shaw v. Spencer, 100 Mass. 382 ; gage and note were pledged with Thompson v. Toland, 48 Cal. 99. mortgagee's consent, though not ^ gge Field v. Schieffelin, supra; strictly as authorized ; Bowen v. Buttrick v. Holden, 13 Met. 355. In Cleary, Ky. (1896) ; Honold v. Berry v. Gibbons, L. R. 8 Ch. 747, Meyer, 36 La. Ann. 585 ; Stone v. it was held that a banker dealing Brown, 54 Tex. 330, where land with an executrix and receiving as- scrip was deposited with an agent sets in pledge, is not bound to take having complete transfers executed notice of lis pendens, while the ex- in blank. ecutrix has not been enjoined from 1 Earl Vane v. Rigden, L. R. 5 Ch. managing the property. 663 ; Berry v. Gibbons, L. R. 8 Ch. *2 Kent Com. 625-628; Davidson 747 ; Ashton v. Atlantic Bank, 3 v. Bodley, 27 La. Ann. 149. As to Allen, 217 ; Rhone w. Lewis, 13 Rich, pledge by husband, of his wife's Eq. 269 ; Field u. Schieffelin, 7 Johns, property, in excess of authority, see Ch. 150; Petrie v. Clark, 11 S. & 62 N. H. 673; Leiper's Appeal, 108 R. 377. The fact that an executor Penn. St. 377. pledges negotiable bonds standing in ^ 131 N. Y. 695. his name as "executor" does not 189 § 184 THE LAW OF BAILMENTS. [PAET IV. brokers, and commission merchants, the strict common law discountenanced their pledging, though they might sell under a bill of lading;^ and hence a factor could not pledge his principal's goods as security for his own debt, whether by indorsing and delivering the bill of lading, or by delivering the goods.2 If he did so, the principal might treat the trans- action as altogether tortious, and recover the goods from the pledgee, regardless of the latter's ignorance or honest intent ; unless, indeed, he had held out his factor as specially author- ized in the premises.^ The hardship of this rule, as Judge Story has stated, is to deny to the pledgee any right to retain the goods, even for the factor's own balance against his prin- cipal.* And yet, as to negotiable paper, unless the pledgee can be charged with notice of the fraud or the agent's want of authority, the pledge shall bind the principal, though the agent used it as collateral security for his private debt.^ The English Factors' Acts, too, mitigate the rigor of the common law by sanctioning the pledge of goods by such agents to the extent of bond fide advances upon them ; ^ not, however, to the extent of countenancing a pledge for securing some ante- cedent debt due from factor to pledgee ; nor so as to benefit an agent wrongfully retaining goods, whose authority has been revoked.'^ The tendency of legislation in this country is likewise towards enlarging the rights of the bond fide pledgee without notice of any person who has possession of merchandise, or of a bill of lading, with power to sell.^ But previous notice of 1 M'Combie v. Davies, 7 East, 5 ; s Collins v. Martin, 1 B. & P. 648; Story Agency, 113 ; Story Bailm. 2 Kent Com. 626. §§ 29G, 325, 326 ; First Nat. Bank v. « Acts 4 Geo. IV., c. 94, & 5 & 6 Nelson, 38 Ga. 394 ; "Warner v. Mar- Vict. c. 39 ; Alston, ex parte, L. R. tin, 11 How. 209 ; Holton v. Smith, 4 Ch. 168 ; Portalis v. Tetley, L. R. 7 N. H. 446 ; Newbold v. Wright, 4 5 Eq. 140. Rawle, 195 ; Bott v. McCoy, 20 Ala. ' Fuentes v. Montis, L. R. 3 C. P. 578 ; Insurance Co. v. Kiger, 13 Otto, 268 ; s. c. L. R. 4 C. P. 93 ; Macnee 355. 2 lb. V. Gorst, L. R. 4 Eq. 315. This 8 Wayne, J., in Warner v. Martin, act does not apply to pawnbrokers. 11 How. 209, 224. [1893] 1 Q. B. 62. 4 Story Bailm. §§ 325, 326. s Cartwright v. Wilmerding, 24 N. 190 CHAP. IV.] PLEDGE OR PAWN. § 184 a infirmity affects here as elsewhere, especially where the in- tended pledgee knew that the party trying to raise funds was a broker.^ Indeed, aside from legislation, and upon the prin- ciples of agency and sul>pledge considered in this chapter, the equity of the person who has bond fide advanced money and received the goods in pledge has been of late protected.^ While, we may add, the common-law prohibition of the factor's pledge is thus strict, he is permitted to deliver his principal's goods to a third person, with notice of his lien, and, as his agent, to keep possession for him ; since this amounts sim^jly to a continuance of the factor's possession, and affords the means of protecting his lien, and no more.^ An auctioneer, too, receiving from a factor, empowered to sell, a consignment of goods, may make part payment of the pro- ceeds by way of advance to the factor.* § 18-4 a. Conclusion as to Pledge by one not the O^wner. — In short, it may be said, as to pledge by one who is not in any sense owner of the thing tliat the pledge may hold good on the following prime considerations: (1) Because the pledgor had a rightful possession of the thing conjoined with a valuable interest such as that of a hired bailee with a lien for services rendered, or a bailee for hire with a valuable term of enjoyment, or a factor or broker who had made advances ; and to the extent of that valuable interest with its lien, a pledge should be good. (2) Because the pledgor was agent in possession, under a scope of authority, as held out to third persons, sufficient to justify one in advancing Y. 521 ; 67 Fed. 469 ; 165 Mass. 552 ; 78 Ky. 42, where this subject is fully Henry v. Phil. Warehouse Co., 81 discussed ; supra, § 182 ; post, § 218. Penn. St. 76. See Mercliants Nat. Where a factor advances money and Bank v. Trenholm, 12 Heisk. 520 ; takes a bill of lading in his own Cleveland v. Shoeman, 40 Ohio St. name, he becomes owner rather than 176. pledgee. Moors v. Kidder, 106 N. Y. 1 As where the pledgee knew of 32. the agency, and the agent pledged 8 2 Kent Com. 626, 627 ; Story for his individual debt. 62 Fed. 513. Bailm. § 325 ; M'Combie v. Davies, And see Goodwin v. Mass. Loan 7 East, 5. Co. ,152 Mass. 189; 42 La. Ann. 705 ; * Laussatt v. Lippincott, 6 S. & R. § 181. 386. 2 See First Nat. Bank v. Boyce, 191 § 186 THE LAW OF BAILMENTS. [PART IV. upon the pledge of the thing. (3) because, under the peculiar rules of negotiable instruments not overdue, a bond fide third person without previous notice of any in- firmity of title or intended misapplication such as should put prudent men on their guard,i jg protected to the extent of his advances by way of pledge to the holder of such property. And where a fiduciary party misappropriates thus on the pledge of securities in his possession, we should distinguish between notice that he pledges avowedly for his own debt and notice that he pledges as though on behalf of his fiduciary. (4) Because, even though the instrument were of a character not clearly negotiable, the real owner by assigning in blank and delivering the instrument and indicia of title to the pledgor had conferred so far a full authority and given such ample power, that the pledgee who was misled thereby has the supe- rior equity for his claim ; for, where of two persons equally innocent one must suffer, it should be he who enabled the mis- chief to be done. And from either one of these four causes the true owner may be retarded from recovering his own prop- erty without first making good the amount actually and bond fide loaned by the pledgee, discharging the pledge, and rely- ing for his own indemnity, if any, upon the pledgor who took advantage of his possession. § 185. Power of Life Owner, etc., to pledge. — One who has a limited title to a chattel, or a special interest therein, such as a life owner, or a lien-creditor, is allowed to pledge to the extent of his title, though not beyond it.^ And it is held that the pledge of collaterals by one who holds them from another party is not per se a conversion as against that party ; for, if he is prepared to restore them at the proper time, the original pledgor has no cause of complaint.^ § 186. Whether Corporation or Partnership may pledge. — A corporation, or a partnership firm, may make a pledge.* But 1 Observe the limitations of this 2 story Bailm. § 295 ; Hoare v. description, since special circum- Parker, 2 T. R. 376 ; Hooper v. stances may properly amount to a Ramsbottom, 4 Camp. 121. previous notice of infirmity or mis- ^ Slielton v. French, 33 Conn. 489. application, as already shown. * City Bank of Racine v. Babcock, 192 CHAP. IV.] PLEDGE OR PAWN. § 187 here the limits of corporate or partnership authority should be noted. One partner cannot, for instance, pledge the partner- ship stock-in-trade in payment of his individual debts, with- out the consent of his copartners, whether the creditor knew it to be partnership property or not ; but the pledgee's right must depend on the assent of the other partners.^ But in accounting under a bill of equity, credit may be allowed a pledgee for advances that were actually paid for partnership purposes.^ § 187. What Security the Pledge is given for. — In all cases of pledge contract, the pledge is understood to be a security for the whole, and for every part of the debt or engagement, unless it has been otherwise stipulated between the parties ; so that the payment or discharge of a part would leave it a perfect pledge for the residue of the debt or engagement. But mutual intention should control, as in the interpretation of other contracts. Hence a security taken for a specific pur- pose must be applied to that precise purpose alone, unless the parties modify the arrangement, as of course they may.^ And where a loan is made a party on one pledge, and a later distinct loan is made the same party upon another pledge, the presumption arises that each transaction was intended to stand by itself.* A number of securities may be taken for the same debt, and a pledge may go with a mortgage, or some third person's engagement ; ^ the creditor, in such case, having his election as to enforcing any or all upon de- fault, but with the right of only one possible satisfaction.^ 1 Holmes (U. S. Cir.), 180; Faulk- s phUUps v. Thompson, 2 Johns, ner v. Hill, 104 Mass. 188. But a Ch. 418 ; WooUey v. Louisville Bank- corporation cannot issue stock to a ingCo., 81 Ky. 527; Eichelberger u. corporation creditor as a pledge to Murdock, 10 INId. 3/3 ; Post v. Trades- secure its own indebtedness. Brews- men's Bank, 28 Conn. 420 ; supra, ter V. Hartley, 37 Cal. 15. § 178. 1 Liberty Bank v. Campbell, 75 Va. * Baldwin v. Bradley, 69 111. 32. 534 ; Rogers v. Batchelor, 12 Pet. ^ Union Bank v. Laird, 2 Wheat. 221. 390, per Mr. .Justice Story; Cullum 2 Liberty Bank w. Campbell, ."??(/)?•«. v. Emanuel, 1 Ala. 23; Buehanan As to pledging a limited partner's v. International Bank, 78 111. 500 ; own interest, see CoUins's Appeal, Andrews v. Scotton, 2 Bland, 629. 107 Penn. St. 590. As to part owner, « lb. see 87 Ala. G44. 13 193 § 189 THE LAW OF BAILMENTS. [PAET IV. § 188. Delivery in Pledge; Effect of Contract without De- livery. — II. Delivery in pledge. Until an actual transfer of possession has taken place, there is, to speak with preci- sion, no pledge, no bailment; but, instead, an executory- pledge contract upon sufficient consideration, which each may hold the other bound to perform. Damages for non- performance will be awarded the aggrieved party who sues as for breach of the contract; or perhaps equity would decree a specific performance. The latter remedy, how- ever, is not available on an intended pledgee's behalf, to the prejudice of rights in rem, which may have intervened, like those of attaching or execution creditors of the in- tended pledgor ; nor, as against his general creditors, where he meantime dies insolvent, or has been forced into bank- ruptcy.^ For, under a pledge contract, there is no transfer of an owner's title, as in the case of sale or mortgage, but the essence of the pledgee's preference consists in a transfer of possession, or what we term delivery .^ In general, to create a pledge, the pledgee should have the possession and actual control of the property.^ Writings may pass in a pledge contract, but the pledge transaction is commonly oral, and in fact it involves a bail- ment of the thing. § 189. What constitutes Delivery ; Actual or Constructive. — Delivery, in order to be effectual against the world, should be followed by an acceptance of possession ; and methods of de- livery and acceptance differ, according to the subject-matter and the local situation of the thing. For corporeal chattels in possession there should be usually a delivery of those chat- tels to the pledgee at once.* But constructive delivery and 1 Story Bailm. § 297 ; City Fire s Corbett v. Underwood, 83 111. Ins. Co. V. Olmsted, 33 Conn. 476 ; 824. 60 Conn. 463. And see First Nat. * Siedenbach v. Riley, 111 N, Y. Bank v. Nelson, 38 Ga. 391 ; Beeman 560 ; Thompson v. Dolliver, 132 Mass. V. Lawton, 37 Me. 543. 103 ; 79 Cal. 192 ; 37 Kan. 243 ; 41 2 Whether a certain writing N. J. Eq. 336. evinces a pledge or a mere offer A delivery in pledge need not to pledge, see Providence Thread always be contemporaneous with Co. V. Aldrich, 12 R. I. 77. the loan of money, but such de- 194 CHAP. IV.] PLEDGE OR PAWN. § 190 acceptance are now much favored in such transactions. The transfer of the bill of lading of a ship at sea, or the delivery of a warehouse key, have long been esteemed sufficient for legally transferring possession of the thing so symbolized.^ And so, in modern times, one's pledge by delivering bills of lading of goods on transit, or way bills whether inland or by water, usually suffices to make the pledgee's title good against the world.2 Warehouse receipts, and the receipts of wharf- ingers, or other hired custodians, are also, when expressed in a negotiable form, permitted, in a variety of instances, to be turned over by way of a symbolical delivery of the goods on storage which they represent.^ Even the delivery of such muniments without a formal indorsement or assignment has, in deference to mutual intent and the loose usages of busi- ness, been frequently upheld as constructively sufficient, at all events between the parties themselves.* § 190. Delivery, as to Bills of Lading, Warehouse Receipts, etc. — Advances are constantly made on the security of mer- chandise in the course of trade at the present day ; and it is quite customary of late years for the consignee of goods which are on transit to pass his bills of lading over to some bank or capitalist by way of security for the discount of his paper. Such transfers are firmly sustained by American courts as amounting to a pledge of the goods themselves for the pledgor's paper indebtedness, and, whether the transit were by land or sea, valid, on the score of a constructive delivery livery within a reasonable time will in Sumner v. Hamlet, 12 Pick. 7G ; suffice, so far at least as the imme- Whitney v. Tibbits, 17 Wis. 359 ; 2 diate parties are concerned. Ilil- Kent Com. 580. ton V. Tucker, 39 Ch. D. GG9. Cf. ^ Dows v. Nat. Exchange Bank, Franklin Bank v. Harris, 77 Md. 91 U. S. 618 ; Petitt v. First Nat. 423. Bank, 4 Bush, 334 ; First Nat. Bank Even a mortgage of chattels with- v. Kelly, 57 N. Y. 34. See § 190. out delivery is ineffectual against the ' Meyerstein v. Barber, L. R. 2 world, usually, unless recorded as C. P. 38,G61, 67G ; Cartwright r. Wil- local statutes require. 1 Schoul. nierding, 24 N. Y. 621. And see Pers. Prop. § 425. Taylor u. Turner, 87 111. 29G, as to 1 Atkinson v. Maling, 2T. R. 462 ; "railroad receipts" or way bills. Barber v. Meyerstein, L. R. 4 H. L. * Whitney v. Tibbits, 17 Wis. 359. 317 ; Story Bailm. § 297 ; Shaw, C. J., 195 § 190 THE LAW OF BAILMENTS. [PART IV. as against both the pledgee and the public.^ The exercise of further dominion over the goods by such a pledgor, without his pledgee's assent, is held to confer upon a third party only a tortious possession, such as cannot prevent the pledgee from recovering them.^ A symbolical or constructive delivery in pledge ought to be followed by acts on the pledgee's part evincing the inten- tion of pursuing his opportunities to make the corporeal transfer complete ; for a symbolized transfer stands for some- thing whose possession may be made more conclusive. But the landing of goods at a wharf, subject to a stop-order, is held no such completion of the transit as would impair the efficacy of a bill of lading as their representative.^ And, though the bill of lading at issue be only one of duplicates or triplicates, the person who first gets it while the carriage obligation re- mains unfulfilled will take rank as transferee of the goods over all who may claim under other instruments of the same set.^ Here we may observe, that while the bill of lading entitles the holder to the property described therein, the pledgee en- counters certain risks. For instance, if these bills of lading are given in duplicate or triplicate, a bond fide delivery of the goods by the carrier to the person holding the second bill may exclude the pledgee who holds the first bill for security if his claim was not earlier known.^ Nor has a bill of lading the full character of a negotiable instrument even though pass- ing by indorsement and delivery ; for its receipt or descrip- tion of goods is primd facie only, and does not warrant that 1 Dows V. Nat. Exchange Bank, * lb. And see Meyerstein v. Bar- 91 U. S. 618 ; First Nat. Bank v. ber, L. R. 2 C. P. 38, 661 ; Young v. Kelly, 57 N. Y. 34 ; Petitt v. First Lambert, L. R. 3 P. C. 142. Nat. Bank, 4 Bush, 334; Hathaway ^ giyn v. East India Dock Co., 7 V. Haynes, 124 Mass. 311 ; Brent v. App. Cas. 59 ; distinguishing Barber Miller, 81 Ala. .309; 14 CCA. 267 ; 54 v. Meyerstein, siqyra. But the car- Ark. 225 ; 76 Wis. 502. rier's own special stipulation may 2 Marine Bank v. Fiske, 71 N. Y. obviate such difficulty by giving 353. priority to the first or original bill 3 Barber v. Meyerstein, L. R. 4 over any duplicate. Nat. Bank v. H. L. 317. Missouri R., 132 Mo. 492. 196 CHAP, IV.] PLEDGE OK PAWN. § 192 the goods are in all respects what the document purports.^ Neither a carrier nor a warehouseman is to be converted into a guarantor of property and its title lor the convenience of customers who employ him, aside from his own assent ; his position differing greatly from that of the party who gives his bond or note for the payment of a definite sum of money. Yet local statutes affect the character of such instruments.^ § 191. Where Pledgee is already in Possession. — If the chattels for pledge be already in the pledgee's possession, for some other purpose, no formal change of possession is needful, since the pledge contract can operate as a constructive trans- fer.^ And, where A and B are in joint possession, the pledge to either of them is good, if both have knowledge and give assent that the property shall be held thenceforth for the pledge alone.* § 192. Delivery by Means of Agents. — Delivery may be through the medium of agents, as well as by their principals in person ; as, under the English Factors' Acts, by a factor or commission merchant; or, to speak more generally, by any party whom the pledgor has held out as having due authority to accomplish the transfer on his behalf. And, as against the principal pledgor himself, it is held sufficient that his agent has been intrusted with the primary document of trans- fer, according to the course of business, and that the pledgee acts upon faith of such document.^ Goods in a warehouse, 1 Shaw V. Merchants Bank, 101 notice. Garden Bank v. Humeston U. S. 557. Even though a local R., 67 Iowa, 526. Warehouse re- statute should make such instru- ceipts, printed and stamped by the ments " negotiable," it does not fol- wareiiouseman as negotiable, and low that all the advantages incident stating the goods to be in free ware- to advancing bond, fide on a negoti- houses, while in fact they were in able instrument must follow. See bond and subject to the government post, §464; Missouri Pacific R. v. tax, do not charge the &o?i(X^VZe holder McFadden, 154 U. S. 155, and cases with knowledge of sucli tax. First cited, where the bill of lading was Nat. Bank v. Dean, 1.37 N. Y. 110. fraudulently put into circulation. ^ story Bailm. § 297 ; supra, § 3. ■^ One who advances money on the * Brown v. Warren, 4.'1 N. H. 430 ; faith of such a document is held not Parsons v. Overmire, 22 111. 58. bound by oral variations between the ^ Cartwright v. AVilmerdiug, 24 original parties of which he had no N. Y. 521. 197 § 193 THE LAW OF BAILMENTS. [PART IV. subject to be withdrawn by one's agent at pleasure on pay- ment of the duties, are sufficiently in his possession to justify his pledge thereof, so as to bind his principal, the owner of the goods.^ Such negotiable instruments as pass on delivery to bond fide parties for value may even be pledged wrongfully, and yet so as to confer upon the honest pledgee a good security title.^ Agency, express or implied, confers authority ; and in any case it is sufficient that the owner consented to have the thing pledged. Again, as to agency on a pledgee's behalf, delivery may be to some third person for delivery over to the creditor,^ And there may be a binding acceptance by the pledgee's agent, acting for him ; for, where property has been pledged as security, it is quite immaterial whether the pledgee holds it in person or some third person holds it for him.* But instruc- tions to an agent to deliver cease to avail when the principal dies before his instructions are carried out.^ An agent of the pledgor, too, holding the thing in his tem- porary possession, such as a warehouseman, safe depositary, or hired workman, may, without any local removal of the thing, attorn over, and, as the pledgee's custodian, hold it against all the world ;^ and this, even though the agent is to do some additional work on the thing pledged, which the pledgor is expected to pay for.'^ § 193. Whether Pledgor may hold as Pledgee's Agent. — What complicates pledge delivery still further in this con- nection is the doctrine, now well incorporated in our juris- prudence, that the agent to take and keep legal possession for the pledgee may be no other than the pledgor himself.^ 1 lb. 6 Sumner v. Hamlet, 12 Pick. 76. 2 Goodwin v. Robarts, 1 App. Cas. "^ lb. 476 ; 4 Mo. App. 59 ; supra, § 182, « Martin v. Reid, 11 C. B. n. s. and cases cited. 730 ; Rawson, in re, 2 Lowell, 519 ; 8 Boynton ■?;. Payrow, 67 Me. 587. Parshall v. Eggert, 54 N. Y. 18; * Brown v. Warren, 43 N. H. 430 ; Cooper v. Ray, 47 111. 53. But see Woodward v. Exposition Co., 39 La. First Nat. Bank v. Nelson, 38 Ga, Ann. 566. 391 ; Geddes v. Bennett, 6 La. Ann. 5 Lanaux, Succession of, 46 La. 516. Ann. 1036. 198 CHAP. IV.] PLEDGE OR PAWN. § 194 But, as the law declares, a pledgor's possession on his pledgee's behalf should not be a mere device for the purpose of de- frauding his other creditors ; nor, as we may conjecture, ought the transaction to indicate that one, a pledgee by right, has simply delayed or abandoned his opportunities of accom- plishing a transfer to his own possession. And, whether the pledgor's agency for his pledgee can be set up in every instance to disconcert ho)id fide attaching creditors or pur- chasers with claims in rem, we may still question ; for to per- mit this doctrine of a pledgor's agency to operate, except as between the parties themselves, and, perhaps, the general public, is practically to dispense with delivery altogether, and nullify the fundamental rule of bailment.^ To this subject we shall presently recur when discussing the pledgee's duty of keeping the possession once given him. But here we may add that the dangerous doctrine of a pledgor's holding as pledgee's agent is checked in some of the latest cases ; which still maintain that possession by the pledgee is of the very essence of a pledge, and that where the pledgee never had possession there is, as to third persons like bond fide transferees or attaching creditors of the pledgor, no lien or security, more than under a mere contract for a pledge.^ § 194. Element of Notice to Another considered. — Where an agent of the pledgor holds the thing which is pledged by the transfer of symbol or muniment of title, some notice to this custodian may be needful, in order that he may attorn over, and so give the pledgee's claim a clear operation. So, too, is the transfer of certain kinds of property attended with pecul- iar solemnities not unlike in character. Indeed, what we may call notice to the fundholder, custodian, or indebted party is often an important element in completing the security of a pledgee.^ Stock in a chartered company, for instance, may pass, for some purposes, by a delivery of the scrip or certifi- cate ; but, in order to make a complete transfer of the shares, 1 lb. » See People's Bank v. Etting, 108 ''Casey v. Cavaroc, 90 U. S. 407 ; Penn. St. 258, as to notice that one had Thompson v. DoUiver, 132 Mass. 1U3 ; become or was to become a pledgee. 18 Hun, 187. 199 § 194 THE LAW OF BAILMENTS. [PART IV. there should be, besides, some indorsement or other writing, authorizing a transfer on the company's books, so that, upon presentation of the old scrip and authority of transfer at its office, the company may issue a new certificate or scrip in the name of the transferee. Such formalities enable the company to keep a correct register of its stockholders and to properly conduct its routine transactions. Now the new certificate or the corporate records might set forth such transferee as abso- lute owner of the stock ; and yet the transaction could be proved a pledge and enforced between the parties accordingly.^ It is more natural, however, for the new certificate to express on its face that the pledgee holds it as collateral security only; and unless this be done, and the instrument of transfer describe the debt, the pledgee will in some States be held to a shareholder's liabilities in his pledgor's stead.^ What is the legal effect, pending notice and a formal trans- fer on the books, of a mere delivery of scrip or the pledgor's certificate, with perhaps an authority of pledge transfer, would depend upon circumstances. It should operate as a pledge between the parties themselves in any event ;3 it might perhaps prevail at once against third parties where steps were promptly taken on the pledgor's behalf to com- plete the transfer formalities, and only distance or the com- pany's laches caused delay ; but where the pledgee defers such completion, and the stock is meantime attached at the company's office as the pledgor's absolute property, the at- taching creditor takes priority.* But in some States a certifi- cate of stock, with blank indorsement, assignment, or power of attorney, affords substantially the full indicia of pledge title.^ Generally speaking, there should be a delivery at least of the certificate of stock in a pledge.^ 1 Newton v. Fay, 10 Allen, 505 ; since changed by statute in 1884, Wilson V. Little, 2 Comst. 443 ; Gil- c. 229, in that State. pin V. Howell, 5 Penn. St. 41 ; Pink- 3 Blouin v. Hart, 30 La. Ann. 714. erton v. Railroad, 42 N. H. 424; * Pinkerton v. Railroad, 42 N.H. 424, Brick V. Brick, 98 U. S. 514. ^ Cherry v. Frost, 7 Lea, 1 ; supra, 2 Mass. Gen. Stats, c. 68, § 13 ; § 182 ; 31 La. Ann. 149. Newton v. Fay, 10 Allen, 505 ; a rule « 134 m 472 j Bidstrup v. Thomp- 200 CHAP. IV.] PLEDGE OR PAWN. § 196 § 195. The Same Subject. — Notice to the company is an element of corresponding importance in the delivery of some other incorporeal kinds of chattels : the assignment of an insurance policy, for instance,^ or of a savings-bank book ; for the rules of such companies usually require these formali- ties. So, too, if bills of lading are issued in duplicate or triplicate, it is a wise precaution for the pledgee to notify the carrier of his claim before the other bill is presented ; ^ and for warehouse receipts and all other documents which sym- bolize goods not yet in the pledgee's possession, notice offers a safeguard against fraud.^ The law of assignments regards in general this element of notice to the indebted party. In short, such seasonable notice to fundholder, custodian, or debtor may be of much importance in completing a delivery and retention of possession as against third parties under the circumstances of a given case ; though less so, certainly, as between the pledge parties themselves.* § 190. Other Formalities of Registry, etc. — Local statutes, too, sometimes interpose to require that, as against the public and more particularly lien-creditors of the pledgor, certain symbolical instruments of transfer, like bills of sale, which are designed to operate as pledge, shall be registered, or else that notarial formalities shall attend the transfer,^ unless at all events the pledgee gains full possession before conflicting liens attach.^ And yet it is more commonly a result of the cardinal distinction between pledge and chattel mortgage, that the latter sort require registration, while the former neither son, 45 Fed. 452 (as against an at- * Bank stock cannot be pledged taching or execution creditor). by merely delivering the certificates ^ Bruce v. Garden, L. R. 6 Ch. 32 ; to the pledgee ; there must be a Edwards v. Martin, L. K. 1 Eq. 121. transfer on the books or some writ- ^ Glyn V. East India Dock Co., 7 ten contract, at least, by which the App. Cas. 475. pledgee may assert title or compel a 8 Duplicate receipts, etc., arc some- transfer. Nisbet v. Macon Bank, 4 times cunningly procured, and the Woods, C. C. 404. pledgee who fails to give notice may ^ Hubert v. Creditors, 1 La. Ann. encounter a superior equity. I'eo- 442; Martin u. Creditors, 15 La Ann. pie's Bank v. Gayley, 92 Penn. St. 1G5. 518. « Helm v. Meyer, 30 La. Ann. 943. 201 § 197 THE LAW OF BAILMENTS. [PAET IV. require nor admit of it ; ^ nor should statute notice to the world be held indispensable as between the pledge parties themselves.2 As against third persons, too, the pledge would usually be effective, notwithstanding non-compliance with the formalities thus prescribed, provided the object of pledge came into the pledgee's actual possession before any adverse lien had attached.^ § 197. Indorsement, Assignment, etc., in Delivery. — A nego- tiable instrument should, when its pledge is intended, be delivered into the pledgee's possession, with or without in- dorsement, according to its tenor ; * though whether, as be- tween the parties, an omission to indorse would, under these circumstances, invalidate the pledge, is very doubtful ; and in fact it has been treated like the assignment of a non- negotiable chose.^ The assignment of any written contract, even if absolute in form, will be a sufficient delivery in pledge of the rights thereunder, provided such be the mutual understanding of the parties.^ The delivery of a savings- bank book as security for a debt will create a valid pledge of the book and deposit ; ''' and though, as we have intimated, formal assignment and notice to the company is desirable, yet the mere delivery of the book without a written assign- ment has been pronounced sufficient, not only as between the pledge parties themselves, but even in certain instances as against an attaching creditor of the pledgor.^ So, too, in 1 First Nat. Bank V. Kelly, 57 N. Y. must be in writing to affect third 34 ; Parshall v. Eggert, 54 N. Y. parties. 32 La. Ann. 586. 18 ; Rawson, in re, 2 Lowell, 519 ; * Fluker v. BuUard, 2 La. Ann. Thorns V. Southard, 2 Dana, 475 ; 338 ; White v. Piatt, 5 Denio, 269. 1 Schoul. Pers. Prop. §425; Shaw & SeeDunnu.Meserve, 58 N.H.429. V. Wilshire,65Me.485 ; Doak?j. Bank 6 Gay v. Moss, 34 Cal. 125. of State, 6 Ire. L. 309 ; 3 Tenn. Ch. ^ Boynton v. Payrow, 67 Me. 587 ; 13 ; First Nat. Bank v. Harkness Taft v. Bowker, 132 Mass. 277. (1896), W. Va. 8 Taft v. Bowker, 132 Mass. 277, 2 Matthews v. Rutherford, 7 La. where the bank was served in trustee Ann. 225. process. For, as the court observed, 3 Helm V. Meyer, 30 La. Ann. 943. delivery of the book with the inten- Under La. Code, art. 3158, a con- tion of giving collateral security tract of pledge of movable property amounted to an equitable assign- other than notes, bills, and stocks, ment of the deposit. 202 CHAP. IV.] PLEDGE OR PAWN. § 199 the transfer of a bill of lading the indorsement formalities are not strictly regarded.^ § 198. Miscellaneous Points in Delivery. — Under suitable circumstances, that delivery and acceptance which satisfies the law may concur where there is rather a permissive taking than any active transfer of possession ; where, for instance, a creditor, with the owner's leave, assumes the custody of chattels for his pledge security, and continues to hold them. Even as against third parties, a pledgor's want of opportunity to make as full and complete a transfer of possession as the thing admitted of, has, where he himself offers no obstruc- tion to the pledgee's claim, been construed in favor of the latter.2 But since mutual assent is essential to pledge contracts, one cannot make a general conveyance in trust for the benefit of his creditors, which shall take effect as a pledge independently of their action in the premises.^ § 199. General Conclusions as to Delivery in Pledge. — TwO leading conclusions may be drawn from the precedents which form the modern mosaic of pledge delivery. 1. That in the growing complexity of commercial and mercantile transac- tions, with so many new classes of incorporeal rights coming into the list of things personal, the disposition increases to apply to all chattel transfers the test of mutual intent on equitable considerations ; so that the English and American courts, while abating little of the common-law theory that full change of possession must attend every pledge transaction, have come to swerve very far from it in practice. 2. That, with the present laxity of construction, pledge delivery seems to comport itself differently under these three leading aspects: (rt) as between the pledge parties themselves, (^') as between the pledge parties and the pledgor's general creditors, and (c) as between pledge parties and those like a pledgor's attaching creditors or purchasers, or new parties lending on 1 Holmes v. Bailey, 92 Penn. St. ^ Parsons v. Overmire, 22 111. 58. 67. As to assignment of life insur- ' Stevens v. Bell, 6 Mass. 339. ance policies by way of pledge, see Hewins v. Baker, IGl Mass. 320. 203 § 199 THE LAW OF BAILMENTS. [PART IV. security of the thing, who acquire intervening rights in rem without notice. As between the parties themselves, their executory contract so upholds the transaction, while manual delivery continues incomplete, that the pledge security holds by construction, though accompanied by no actual change of possession.! As between the pledge parties and general creditors, such transactions can only be attacked by the latter for fraud upon them ; and if there be a bond fide pledge con- tract, ineffectual for want of delivery, the pledgee may, at any time, take full possession, and maintain his priority over them ; for here, at all events, is an executory contract in his favor.2 But, as to those acquiring intervening rights in rem^ without notice of the pledge, the pledgee who has not taken full possession generally fails to gain precedence ; though to this might sometimes be opposed the suggestion that the pledgor continues in possession as his pledgee's bond fide agent; 3 or, possibly, that the delay in completing certain formalities of delivery had occurred without fault on the pledgee's part,* or that such formalities were under the pecul- iar aspect of the case needless.^ Moreover, as we have seen, ((i) the element of notice to stakeholder, custodian, or debtor, is in many transactions a vital one ; and the pledgee's rights as concerns such a party require consideration.^ In general, we may add, the position of a pledgee is far less favorable for maintaining his cause where he is out of full personal control, and must take the offensive, than where he has such control and has only to defend. Our modern courts 1 Martin v. Reld, 11 C. B. n. s. parties with intervening rights, in 730 ; Keiser v. Topping, 72 111. 226 ; rem^ one who buys or advances does Tuttle V. Robinson, 78 111. 332. not stand on a stronger footing than 2 Parshall v. Eggert, 54 N. Y. 18. a mere attaching creditor of the See Succession of Hiligsberg, 1 La. pledgor. The cases are not yet Ann. 340 ; post^ § 202. , clear on this point. . 3 Rawson, in re, 2 Lowell, 519 ; ^ Notice we have seen, to the supra, § 193. intending pledgee, of something ad- * Pinkerton v. Railroad, 42 N. H. verse to the pledgor's right to pledge 424. or raise money, cannot prudently be 5 See Taft v. Bowker, 132 Mass. disregarded by him. § 184 a. 227. Qitcere, whether as among third 204 CHAr. IV.] PLEDGE OR PAWN. § 201 incline to balance carefully the equities of all who maintain conflicting lien rights against one another ; determining upon all the circumstances which party should have priority. Pos- session bond fide acquired and maintained on the faith of a valuable service or payment is a most decisive circumstance in such cases ; and especially needful is a delivery or pro- curing possession of the thing where the pledge transaction rests upon parol proof of words and conduct. § 200. Bailment in Pledge pending Full Performance. — III. Bailment in pledge pending full accomplishment of the secured undertaking. The situation of the pledge parties towards the thing, after the transfer of possession has been virtually completed, becomes that of bailor and bailee under a mutual-benefit bailment. What, then, are the pledgee's duties, and what his rights, while the debt is maturing, or the engagement outstanding, for which the pledge was given? § 201. Duty of Pledgee to keep Possession. — I. As to his duties. What at once impresses us as characteristic of this bailment is, that principal and collateral work along together towards one primary attainment: namely, the discharge of some debt or duty which is owed to the bailee ; so that to dis- join the two would be fatal to the pledge. Of the first impor- tance is it, then, to every pledgee to keep the bailment in force b}'- maintaining the pledge possession he has acquired. For whenever, by delivering back the thing to his pledgor, he manifests a willingness to abandon such possession, the bene- fit of his security is lost, and bailment and pledge come to an end ; ^ notwithstanding which the principal debt or obliga- tion continues as before, and to secure it there might be some later pledge contract with a new taking of possession. We are still to observe, however, that a pledgor may gain 1 Story Bailm. § 209 ; Reeves v. individual check, is an instance in Capper, 5 Bing. N. C. 136 ; Whitaker point. Citizens' Nat. Bank v. Hooper, V. Sumner, 20 Pick. .399; Day v. 47 Md. 88. And, in general, per- Swift, 48 Me. 368 ; Collins v. Buck, initting the pledgor to exercise full 63 Me. 459 ; Black v. Bogert, 65 dominion and control. Casey t>. N. Y. 601. Allowing the pledgor Cavaroc, 96 U. S. 407. to withdraw the collateral on his 205 § 202 THE LAW OF BAILMENTS. [PART IV, repossession as the pledgee's authorized bailee or agent, or wrongfully ; and in either case the pledgee's right would not be necessarily lost. Hence, the fact of redelivery or repos- session remains open to explanation ; and if the thing pledged appears to have been redelivered to the pledgor for a tempo- rary purpose only, and upon the understanding that it shall be afterwards returned, the pledgee may demand and recover it again.i Nor will the property be beyond the pledgee's reach where he lets his pledgor keep or regain possession or control purely as his agent for custody, sale, or other purpose not inconsistent with the enforcement of his own lien.^ The pledgor's wrongful repossession of the thing, whether by force or stratagem, cannot debar the pledgee's rights,^ and may, if obtained with felonious intent, be punished as lar- ceny.* And even where the chattel was redelivered, solely for substituting some other security or making a collection, or getting the goods under the bill of lading or other docu- ment, the pledgor's breach of his special trust would justify the pledgee in suing him as for converting the original security.^ § 202. The Same Subject. — But all this, the reader will perceive, establishes only the pledge continuance in such a case as between the parties themselves. Whether, under circumstances of redelivery without intending to abandon his security, the pledgee can follow the thing into the hands of some bond fide holder for value, to whom the pledgor has meantime transferred it, is quite another matter; and, in 1 Reeves v. Capper, 5 Bing. N. C. 1 Kerr (N. B.), 150. In Coleman v. 136 ; Cooper v. Ray, 47 111. 53 ; Ma- Shelton, 2 McCord, Ch. 126, equity comber v. Parker, 14 Pick. 497 ; took jurisdiction to compel the Hutton V. Arnett, 51 111. 198. pledgor, who had wrongfully dis- 2 Thayer v. Dwight, 104 Mass. possessed, to redeliver the thing to 254 ; Thorndike v. Bath, 114 Mass. the pledgee. 116 ; Rawson, in re, 2 Lowell, 519 ; * Bruley v. Rose, 57 Iowa, 651. Moors V. Wyman, 146 Mass. 60. ^ -^^y v. Davidson, 12 Gray, 465; 3 Roberts v. Wyatt, 2 Taunt. 268 ; Hays v. Riddle, 1 Sandf . 248 ; White Soule V. White, 14 Me. 436 ; Walcott v. Piatt, 5 Denio, 269 ; Castle v. V. Keith, 2 Post. 196 ; Hays v. Rid- Hickman, Cal. (1896) ; 146 Mass. 60 ; die, 1 Sandf. 248 ; Way v. David- North- Western Bank v. Poynter, son, 12 Gray, 466 ; Gibson v. Boyd, [1895] App. Cas. 56. 206 CHAP. IV.] PLEDGE OR PAWN. § 202 some instances, he manifestly cannot.^ Here reappear those distinctions lately dwelt upon, which favor the pledgee not in full possession, more especially as against his pledgor ; with whom, even were one pledge allowed to end, the executory contract for another might subsist.^ And here, too, we see the pledgee favored as against the pledgor's general creditors, where he might not have been had a single creditor at- tached.^ As against payments or advances by third persons who may have acquired rights in rem honestly and without notice, while the pledgee is intentionally and carelessly out of possession (however deceitfully induced to part with the thing), the safer opinion is that the pledge is no longer of avail.* According to Judge Story, whose summary of the common law on this point may be thought misleading, mod- ern continental Europe favors the pledgee who gives posses- sion to his pledgor less than did the Roman empire.^ Yet, whenever the pledgee's dispossession by his pledgor is under circumstances imputing to himself no fault or delay, nor a vol- untary consent, we presume that, unless the property be of that negotiable character which gives to every bond fide holder for value a clear title, the pledgee will be allowed to regain the thing, even as against intervening lien-creditors of the pledgor, who had supposed the property unincumbered.^ Here once more the element of seasonable notice confronts us. By vigilance and seasonable notice of his claim to third parties before they acquire adverse claims upon the thing, a pledgee may preserve his rights unimpaired, even though not ^ Bodenhammer v. Newsom, 5 Shaw v. Wilshire, 65 Me. 485 ; srtpra, Jones L. 107 ; Way v. Davidson, 12 § 201. But see Reeves v. Capper, 5 Gray, 465, 467. Bing. N. C. 136. Pledgee's repos- 2 See White v. Piatt, 5 Denio, 269 ; session with lien is superior to that Way t'. Davidson, 12 Gray, 465. of a chattel mortgagee to whom 8 Moors V. Wyman, 146 Mass. pledgor mortgaged it while permis- 60 ; North-Western Bank v. Poynter, sively in temporary possession for [1895] App. Cas. 56. a special purpose. Clare v. Agerter, ♦ Babcock V. Lawson, 5 Q. B. D. 47 Kan. 604. 284 ; Walker v. Staples, 5 Allen, 34 Kimball v. Hildreth, 8 Allen, 167 Beeman v. Lawton, 37 Me. 543 6 Story Bailm. § 299. 6 lb. 207 § 203 THE LAW OF BAILMENTS. [PART IV. retaining strict peraonal possession thereof ; ^ for thus is the third party deprived of that bond fide character which gives him a priority, as one misled to his detriment without fault and innocently. If the third party receives notice too late for his own priority to be lost, he ought at least to regard the pledgee's claim fairly. ^ Wherever, too, a debtor, whose debt has been pledged with his own knowledge and notice, settles with the pledgor regardless of the pledgee, his settlement will not avail against the latter.^ § 203. The Same Subject. — Where the pledgee redelivers the thing to the pledgor for some temporary purpose, and on its accomplishment receives possession again, the pledge will prevail once more over liens on the thing afterwards acquired by third persons ; for, even were the old pledge no more, a new and valid one would thus be completely constituted.^ By wantonly or negligently abandoning possession to some third person, the pledgee loses his security upon the thing ; as, for instance, where he thus permits it to be attached in the suit of another creditor of the bailor,^ or willingly subor- dinates his own lien to another's.^ But, as it seems, a pledgee's simple promise to subordinate or abandon the pledge, before the third person has taken advantage of it, ought not to amount to a waiver of the pledge.'^ Any pledgee who voluntarily surrenders the thing to another creditor, taking the latter's guaranty in place of the pledge, loses the pledge security for himself ; but, if the intent were that the new creditor should hold the thing as security for 1 Palmtag v. Doutrick, 59 Ca,l. * Cooper v. Ray, 47 111. 53 ; 47 154 ; Carriagton v. Ward, 71 N. Y. Kan. 604. 360. 5 Whitaker v. Sumner, 20 Pick. 2 See Hazard v. Fiske, 83 N. Y. 399 ; Story Bailm. § 299. 287, where the third party might, if ^ Mills v. Stewart, 5 Humph. 308 ; he chose, have protected both the Treadwell v. Davis, 34 Cal. 601. defrauded pledgee and himself from " Whether his attachment to en- property of the pledgor which he force amounts to a waiver, see post, held when the notice reached him. §§ 246, 247. The pledge is not 8 Withers v. Sandlin, 36 Fla. 419. waived as to parties having notice And see §§ 194, 195; 72 Md. 441. where pledgee attaches the property 208 CHAr. IV.] PLEDGE OR PAWN. § 204 both debts, and the pledgor assented to this arrangement, the tripartite agreement would take effect.^ It is, of course, no abandonment of a pledgee's possession that he makes some one his bailee or agent for the care and custody of the pledge.^ Nor is a constructive waiver or abandonment of the pledge to be favored where it was only nominal for some special purpose and not real ; ^ or where the non-assertion of lien was merely formal while a right was asserted. * A pledgee who has been fraudulently induced to release the property pledged and to receive bills of exchange instead, does not, by suing on the bills, waive his right to reclaim the pledged property upon ascertaining the fraud ; and he may reassert his claim against the pledgor and any one else who was privy to the fraud. ^ § 204. Measure of Care and Diligence as Bailee. — We next inquire what degree of diligence towards the thing pledged our law exacts. The rule is essentially that which applies to the other bailments for mutual benefit already examined : namely, by reason of delivery and acceptance and a transfer of the thing to his keeping, the pledgee becomes bound to exercise ordinary care and diligence towards it, and, to a cor- responding extent, is answerable for negligence. This is the rule of continental Europe, as well as of England and Amer- ica; modern civilians and common-law jurists placing the same limits to the pledgee's liability.*^ Ordinary diligence is to prevent a fraudulent disposition ^ Easton v. Hodges, 18 Fed. Rep. by the pledgor. 59 Fed. 2 19. G77. 1 Treadwi'U v. Davis, 84 Cal. GOl. '^ 2 Kent Com. 578 ; Story Bailm, 2Inger.sollv.VanBolvkelin,7Cow. 332; Jones Bailm. 23, 75; Dig. 13, 670 ; Jones v. Baldwin, 12 Pick. 310 ; 0, 5, 2 ; ib. 13, 7, 14 ; Bracton, 99 b ; Story Bailm. § 324. Where, for in- 1 BcllComm. 453 ; PothierContratde stance, he sends a bill of lading to Nanti.ssemcnt, n. 32-34 ; 2Ld. Kaym. a factor with suitable directions. 910, 917 ; Commercial Bank of New 42 La. Ann. 090. As to the agent for Orleans v. Martin, 1 La. Ann. 344; the pledgee being the pledgor himself, Third Nat. Bank v. Boyd, 41 :\ld. 47 ; see sitpra, § 193. Erie Bank v. Smith, 3 Brew.st. (Pa.) 8 Cooleyt?. Minnesota II., 53 Minn. 9; Girard Fire Ins. Co, u. Marr, 327. See further as to waiver, 73 40 Penn. St. 504 ; Scott v. Crews, Tex. 012. 2 S. C. n. s. 522 ; Petty v. Overall, * Gunsel v. McDonnell, 07 Iowa, 42 Ala. 145 ; Wells v. Wells, 53 Vt. 521. 1 ; St. Losky i'. Davidson, Cal. 643. 14 200 § 204 THE LAW OF BAILlVrENTS. [PART IV. a relative term here as elsewhere, and signifies that diligence which persons of common prudence usually bestow towards such property or upon their own property at the time and place in question and under like circumstances ; or, if the pledge be to bankers or others whose vocation implies skill or unusual facilities, such diligence as those commonly prudent of that class are wont to observe in such affairs.^ It follows that, if the pledge be lost by casualty or una- voidable accident, or be taken or destroyed by superior force, or if it perish from some intrinsic defect or weakness, and no act was done or omitted by the pledgee in the premises which can be construed into culpable negligence or miscon- duct contributing to the loss, the pledgee cannot be held answerable.^ Nor is a pawnbroker liable for pawned articles stolen from his shop by burglars if he exercised ordinary diligence.^ But on the other hand a bank, failing in ordinary care toward pledged negotiable bonds and paper, for guarding against the special danger of burglary or embezzlement, must be held liable for loss.* It was observed, in an old case, " If a man bails me goods to keep, and I put them among my own, I shall not be charged if they be stolen." ^ But this is no true criterion of a bailee's responsibility.^ Again, Sir William Jones argues that a distinction should be drawn between the taking of the pledge by robbery, and stealing or taking it by stealth, so as to presume against the pledgee in the latter, but not in the former case.'^ The sounder views of Judge Story and Chan- cellor Kent on this point, which give tone to the latest decisions, are that theft establishes of itself neither respon- sibility nor irresponsibility in the bailee ; and that the true 1 lb. amination of such securities, but 2 Scott V. Crews, 2 S. C. n. s. putting them promiscuously into a 522 ; Erie Bank v. Smith, 3 Brewst. safe, was an element of carelessness. (Pa.) 9, 5 Year Book, 29 Lib. Assis. 28 ; 3 Abbett V. Frederick, 56 How. Bro. Abr. Bailment, pi. 7. (N. Y.) Pr. 68. 6 See Erie Bank v. Smith, 3 * Ouderkirk v. Central Bank, 119 Brewst. 9 ; supra, § 36. N. Y. 263. Here keeping no record '' Jones Bailm. 75, 119. or account nor making frequent ex- 210 CHAP. IV.] PLEDGE OR PAWN. § 206 question in any case is whether, in view of all the circum- stances, there was, apart from a pledgee's wrongful conduct, ordinary negligence, or, in other words, the failure in fact on his part, to exercise ordinary diligence.^ § 205. The Same Subject. — The uncertainty of our modern authorities as to tlie presumption of negligence on a bailee's part is elsewhere alluded to.^ But it certainly appears rea- sonable to so far presume against the pledgee, in case he fails to return the thing when he ought, or returns it badly in- jured, as to require at least an explanation of how the loss or injury occurred ; which explanation once satisfactorily given, and the evidence failing to show a want of ordinary care on his part, he cannot be charged ; ^ while, on the other hand, if he gives no satisfactory explanation he should be held liable, unless the injury appears due to some other cause.* The nature of the suit and the stage of proceedings might affect the burden of proof; but it should be borne in mind that whether ordinary diligence was exercised is mainly a ques- tion of fact for a jury upon all the proof, and that the want of such diligence may appear in acts of omission as well as commission.^ § 206. Rule applied ■where more than Custody is expected ; Collection, etc. — The pledgee's bailment service is most naturally that of custodian only; but under certain circum- stances more than a mere custody is expected ; and the true intendment of the transaction should prevail. Thus, when promissory notes or other negotiable instruments are taken as collateral, which must mature before the principal obligation, it should be presumed that the pledgee was expected to take heed 1 Story Bailm. §§ 334-338; 1 Co. » lb. ; Story Bailm. § 338; 2 Kent Inst. 89 a, which is criticised, ib., Cora. 580, 581. As to the civil-law and in Jones Bailm. 75 ; 2 Kent rule, see Pothier Contrat de Nantisse- Com. 580, 581 ; Third Nat. Bank v. ment, n. 31. Boyd, 44 Md. 47 ; Scott v. Crews, * Stuart v. Bigler, 98 Penn.^ St. 2 S. C. N. 8. 522 ; Erie Bank v. 80. Burden to exculpate applied in Smith, 3 Brewst. 9 ; Petty v. Over- 119 N. Y. 2G3. all, 42 Ala. 145 ; Dearborn v. Union ^ See Third Nat. Bank v. Boyd, Nat. Bank, 61 Me. 369. Erie Bank v. Smith, and Scott v. 2 Supra, § 23. Crews, supra; Story Bailm. § 342. 211 § 206 THE LAW OF BAILMENTS. [PAET IV. to preserve the value of what he held in possession. Hence the rule, sometimes too broadly asserted, that the pledgee of negotiable paper has no right, unless specially empowered, to keep the pledge ready for sale on default, but must collect it, and apply the proceeds to the principal debt.^ The true idea to be conveyed is, that the parties must be presumed to have contracted for applying the collateral in the manner which best consists with the rights of both. Perhaps the pledgee in a doubtful case might notify his pledgor, and give the latter an opportunity of collecting the security in his stead ; but here he would have the disadvantage of part- ing with his own possession. Hence we say that, by virtue of a transferred possession, by way of pledge, negotiable securities soon to mature must, as a rule, be formally pre- sented by the pledgee for collection with ordinary diligence, to be made available in cash. Should, then, the pledgee suffer indorsed paper given him as security to lie idly in his hands, so that through the want of a legal demand with presentment and due notice the indorser is discharged, any loss ensuing therefrom must be borne by himself ; ^ so, for similar reasons, his supine negligence in prosecuting an overdue note which he took for security will expose him to hazardous conse- quences,^ or his failure to follow up the parties primarily liable on the negotiable security.* But wherever the pledgee is thus bound to take active measures upon his security, ordinary diligence and skill continue the full measure of his responsibility ; ^ and to demand more would require an express 1 Wheeler v. Newbould, 16 N. Y. ^ Wakeman v. Gowdy, 10 Bosw. 392 ; Overlook v. Hills, 8 Me. 383 ; 208 ; Word v. Morgan, 5 Sneed, 79 ; Slevin v. Morrow, 4 Ind. 425 ; May Mullen v. Morris, 2 Penn. St. 85 ; Rice V. Sharp, 49 Ala. 140 ; Reeves v. v. Benedict, 19 Mich. 132 ; Hanna v. Plough, 41 Ind. 204 ; Foote v. Brown, Holton, 78 Penn. St. 334 ; Noland v. 2 McLean, 369 ; Goodall v. Richard- Clark, 10 B. Monr. 239. son, 14 N. H. 567. The maker of * Lamberton v. Windom, 18 Minn, such note should not disregard a 506 ; Douglass v. Mundine, 57 Tex. pledgee in paying it. 72 Md. 441. 344 ; Betterton v. Roope, 3 Lea, 215 ; 2 Whitten v. Wright, 34 Mich. 92 ; Barrow v. Rhinelander, 3 Johns. Ch. Russell V. Hester, 10 Ala. 535 ; 34 614 ; Sample Co. Detwiler, 30 Kan. W. Va. 721 ; 50 Fed. 798 ; Kennedy 386. V. Rosier, 71 Iowa, 671. ^ Roberts v. Thompson, 14 Ohio 212 CHAP. IV.] PLEDGE OR PAWN. § 207 contract, on his part, to be more strictly bounden.^ The duty thus exacted can hardly be presumed to extend beyond a pru- dent attempt to collect by presentment and dunning, short of the personal risk and expense of a suit. The pledgee does nqt, by here suing upon the collateral note in his own name, become the surety of his pledgor.^ Should the principal debt be meanwhile paid him, or the secured engagement fulfilled, the pledgee ought rather to return such securities than continue to hold and attempt col- lecting them ; ^ since no pledgee can be forced to accept such security in part payment of the principal undertaking.* § 207. The Same Subject. — There are other instances in which more than a mere custody may be naturally inferred from the circumstances of the bailment. Thus, if an overdue claim or indebtedness is taken in security, we may presume that the pledgee was to attempt its collection, or at least to co-operate actively with the pledgor in thus realizing upon the pledge.^ The measure of responsibility here, however, is ordinary diligence, as before. For it is not to be presumed that the pledgee undertook to litigate at his own cost claims taken in security, but rather to press them diligently, and in case of failure confer further with the pledgor.^ Upon the same principle a creditor secured by a life-insur- ance policy has been required, in pursuance of the undertak- ing, to keep up carefully the premiums and save the security from lapsing ; " and in various instances must the pledgee use St. 1 ; Reeves v. Plough, 41 Ind. 204 ; 2 Cardin v. Jones, 23 Ga. 175. Noland v. Clark, 10 B. Monr. 239 ; » Overlock v. Hills, 8 Me. 383. Wells V. Wells, 53 Vt. 1. * Reeves v. Plough, 41 Ind. 204 ; 1 Lee V. Baldwin, 10 Ga. 208 ; Burrows v. Bangs, 34 Mich. 304. Roberts r. Thompson, 14 Ohio St. 1 ; ^ Wakeman v. Gowdy and other Drake v. White, 117 Mass. 10; Mar- cases, supra; Whitteker v. Charles- schuetz V. Wright, 50 Wis. 175; 41 ton Gas Co., 16 W. Va. 717 (where Minn. 40. city scrip was pledged). Wiiere the amount of the note ^ See Culver v. Wilkinson, 145 is lost, not through the pledgee's U. S. 205. failure to present and protest, but ^ Souls v. Union Bank, 45 Barb, because the maker was already in- 111. solvent, the pledgee is not chargeable. Westphal v. Ludlow, 2 McCr. 505. 213 § 208 THE LAW OF BAILMENTS. [PART IV. ordinary care in collecting coupons or interest instalments accruing on pledged securities,^ or attending to the breed of pledged animals. Corporeal property, too, might be received in pledge for manufacture and a sale on the pledge account.^ § 208. The Same Subject. — So strongly does the law defer to the mutual intent of the pledge parties, that an obligation on the pledgee's part to collect, sue, or do more than keep custody of the securities is, when enforced, more frequently because they evidently so intended, than as a matter to rest upon mere presumption ; except, perhaps, in transactions where the short paper of third parties is given in pledge, and a due presentment on maturity is both a needful and in- expensive, not to add customary, formality.^ It is less strenu- ously asserted where, in the case of overdue paper, claims, and demands, generally, it was plain that the only worth of the security, when taken, consisted in using favorable oppor- tunities for reducing the thing to cash. The pledgee of stock is not to watch the market fluctuations and sell on good opportunity, but the pledgor should at least notify him when he deems it prudent to sell.* Receiving in pledge long paper or other negotiable collaterals which are not to mature until considerably later than the principal debt or engage- ment, justifies the presumption that the pledgee was not to wait and collect, but might sell them like any other pledge, should the pledgor be in default.^ And even where bound to collect the security at all, the pledgee's responsibility, we must bear in mind, is limited to the actual loss to which his negligence may have contributed.^ He would apparently be 1 Wliitin V. Paul, 13 R. I. 40. ^ Morris Canal Co. v. Lewis, 1 2 Second Nat. Bank v. Sproat, 55 Beasl. 323 ; Fraker v. Reeve, 36 Minn. 14. As to taking a real estate "Wis. 85 ; Richards v. Davis, 5 Penn. mortgage note in security, see 53 L. J. 471. In various instances it Vt. 1. will appear that the pledgor, in order 8 See Goodall v. Richardson, 14 to charge the pledgee with negligence N. H. 567 ; Rice v. Benedict, 19 in realizing on the security, ought at Mich. 132 ; § 206. least to quicken him by notice, and * Richardson v. Ins. Co. , 27 Gratt. not be himself inert. 749. See further as to remedies on 6 gee Steger v. Bush, Sm. & M. default, 2'>ost. Ch. 172 ; Barrow v. Rhinelander, 3 214 CHAP. IV.] PLEDGE OR PAWN. § 210 justified under any circumstances in returning the collaterals seasonably to the debtor and getting altogether rid of the burden of attempting to realize upon them ; forfeiting thereby a pledge of little or no advantage to him. § 209. Pledgee's Employment of Agents ; Pledgor's Agency. — In employing his own agents about the pledge, the pledgee, like a hired custodian or workman, is ordinarily bound to the pledgor for their negligence as for his own ; though not for their torts, as it would appear, unless his own negligence or wrong contributed to the loss.^ But it is held that a pledgee who employs a lawyer for his professional skill to pursue securities in the courts is not responsible for the hitter's neglect or misconduct, if he chose him with reasonable care.'*^ Where liable to the pledgor for the negligence of his own agents, the pledgee may treat the agent as liable to himself ; but he is not answerable for the negligence of those whose agency is derived from the pledgor. These doctrines apply in the case of a corporate pledgor or pledgee, as well as to individuals who choose to become principals in such bailment transactions.^ Where the pledgee has not taken full possession, but gives the pledgor access, it is the pledgor's duty to exercise ordinary care and diligence against loss on his own part, or else, as in other instances of a mixed custody, he cannot hold the jjledgee liable for a loss.* § 210, Good Faith must be exercised. — Every pledgee is bound to exercise good faith, as well as due diligence, with reference to the chattel in his keeping. He should not Johns. Ch. 614 ; Grove v. Roberts, 6 Union Nat. Bank, 61 Me. 369. La. Ann. 210; Barkwell «. Swan, 69 Where directors of a bank care- Miss. 901. lessly leave the entire management 1 Suprd, § 108 ; St. Losky v. to the president without supervision, Davidson, 6 Cal. 64.3 ; Androscoggin the bank may be charged if the li. V. Auburn Bank, 48 Me. 335. president abstracts securities which 2 Commercial Bank v. Martin, 1 were left to secure a note given to La. Ann. 344. the bank. Cutting v. Marlor, 78 8 See Andro.scoggin R. v. Auburn N. Y. 454. Bank, 48 Me. 335 ; Third Nat. Bank * Willetts v. Hatch, 132 N. Y. 41. V. Boyd, 44 Md. 47 ; Dearborn v. 215 § 211 THE LAW OF BAILMENTS. [PART IV. transfer it as the full owner thereof, nor misappropriate, nor put it to a different use from that mutually intended, nor refuse to deliver up the pledge without good excuse upon the pledgor's fulfilment, or offer to fulfil, all that the principal engagement bound him to ; and if the pledgee so misconducts, he will be held strictly answerable for the safety of the pledge as a tortious possessor.^ Nor should a pledgee as against his pledgor volunteer the title of a third person to the thing.^ Neither income or produce, nor the capital of the thing pledged, can be rightfully diverted to other uses than the secured undertaking contemplated.^ § 211. Pledgee's Rights; Right to use the Pledge considered. — II. As to the pledgee's rights. An important right to be considered is that of using the thing pledged. Judge Story, relying largely upon ancient decisions, has summed up our law in these five propositions : 1. If the pawn is of such a nature that its due preservation requires some use, such use is not only justifiable, but indispensable to the faithful dis- charge of the pawnee's duty. 2. If the pawn would be worse for the use, as the wearing of clothes which are depos- ited, its use is prohibited to the pawnee. 3. If the pawn is such that its keeping is a charge to the pawnee, the pawnee may use it, by way of recompense (as they say) for the keep- ing. 4. If the use will be beneficial to the pawn, or it is indifferent, there it seems that the pawnee may use it ; as, if the pawn is of a setting dog, it may well be presumed that the owner would consent to the dog's being used in partridge 1 Coggs V. Bernard, 2 Ld. Raym. Wyckoff, 49 N. J. L. 48. Nor to re- 909, 916, 917 ; Parks v. Hall, 2 Pick. place fraudulent by genuine stock. 206 ; Story Bailm. § 341 ; supra, Jeanes's Appeal, 116 Penn. St. 573. § 17 ; Lawrence v. Maxwell, 53 N. Y. Purchase of pledge at an execution 19. But as to the pledgee's right to sale sustained in pledgee's favor as sub-pledge, see post. no breach of trust, in Clark v. Hol- 249 N. Y. Super. 226; supra, land, 72 Iowa, 34. But it is wrongful § 218. for the pledgee to surrender the se- 3 It is not a wrongful conversion curity to the party liable thereon with- to surrender one pledged corporate out any authority from the pledgor, security for another which was sub- Upham v. Barbour, Minn. (1896) ; stituted by the company under some Manton v. Robinson, R. I. (1896). lawful reorganization. Donnell v. 216 CHAP. IV.] PLEDGE OK PAWN. § 211 shooting, and thus confirmed in the habits which make him valuable. 5. If the use will be without any injury, and yet the pawn will thereby be exposed to extraordinary perils, the use is by implication interdicted. These principles he con- siders are founded in the presumed intent of the parties ; and, by way of illustration, he allows that a pawned cow may be milked, a pawned horse ridden, and pawned books read ; but he does not agree with Sir William Jones, that pawned jewels may be worn.^ Notwithstanding our few early cases on this subject may support distinctions like these, we apprehend they becloud the true principle of the present bailment: namely, that a pledgee neither has the right to derive personal profit from the pledge, nor is under obligation to incur personal charge about it ; but that, on a final reckoning, the profit or beneficial use goes really to the credit of the pledgor, and the pledgee's personal charges, suitably incurred in course of the bailment, to his own credit. And although, in a very old case, it was ruled that the pawnee might, for his own use, work a pawned horse, or milk a pawned cow,^ this was probably on the sup- position that the use neither more nor less than compensated for the care of the animal. A pledgee's free use beyond this can only be justified on the ground that in trivial matters one need not try to be too precise. For what court would hold that milk or work from a whole herd was the pawnee's profit, apart from the debt for which the animals were pawned; or that the offspring of the herd was his special gain? The Roman and the French law put the principle justly in permitting pledged cows to be milked and pledged horses to be worked (which, indeed, is essential to the health of such creatures), while requiring the pledgee to account for the value thereof, and of the offspring besides, with a riffht to deduct the reasonable charges of their nourishment.^ 1 Stiiry Bailm. §§ 329, 330 ; Co.css express himself very clearly. Jones V. P.ernanl, 2 Ld. Kaym, 900, 917 ; Bailm. 81. Mores v. Conham, Owen, 123. Upon 2 ^jores v. Conham, Owen, 123. the right to wear pawned jewels, ' Jones Bailm. 82 ; Pothier Con- however, Sir William Joues does not trat de Nantisseuient, n. 35. 217 § 212 THE LAW OF BAILMENTS. [PART IV. Nor can we well assent to the ancient common-law distinc- tion between things worse and things not worse for the use ; for might not a pledgee's use of certain pledged books be more injurious than his use of certain pledged articles of clothing or jewels? But another consideration carries some weight : namely, that it is humiliating and otherwise properly- distasteful to a cleanly owner to have his private garments and ornaments worn promiscuously on other persons, whether actual injury thereby results or not. § 212. Pledgee should account for Profitable Use. — Our pledge transaction has become too important to turn on petty instances. Giving full rein to the presumed intention of parties, we may say that mutual intention is variable like custom itself. And the only rational doctrine as to use of the pledge appears to be this : that the profits of the bailment be- long to the pledgor, while the expenses swell his indebtedness to the pledgee, on their mutual reckoning; that the pledgee has no right to a personal use, without permission, beyond what is incidental to the exercise of ordinary care in pre- serving the thing ; but that this incidental use and the charge of keeping may, in trifling instances, be taken as intended for a mutual offset. It follows that if the pledge consist in good stock, or other valuable securities, yielding dividends and profits, the pledgee cannot avail himself of the dividends or profits, save as in discharge 'pro tanto of the secured debt or engagement, and (if such there be) of accruing interest.^ And although, as a rule, the pledgee, in the absence of special agreement, is not bound to put the pledge out for hire, yet where he does so, the net profit he makes, as well as general natural products, increase, increment, and offspring of the pledge, will go, less the proper expenses incurred, and per- haps a fair remuneration for the special service, to the pledgor's account in discharge of the secured indebtedness.^ 1 2 Kent Com. 578, 579 ; Pothier 53 N. Y. 19 ; Thompson v. Patrick, Contrat de Xantissement, n. 35 ; 4 Watts, 414. Story Bailm. § 331 ; Androscoggin R. 2 Geron v. Geron, 15 Ala. 562 ; V. Auburn Bank, 48 Me. 335 ; 8 Mo. Houton v. Holliday, 2 Murph. Ill ; App. 118. See Lawrence V. Maxwell, Story Bailm. §343; Huusaker v. 218 CHAP. IV.] PLEDGE OR PAWN. § 215 § 213. Antichresis; or keeping down Interest by Profits. — So profitable, indeed, might be the ui?e of a pledge, that the Roman law recognized a peculiar transaction, known as Anti- chresis (to which the unpopular "Welsh mortgage" of our law largely corresponded), whereby a creditor was empow- ered to take his debtor's property, real or personal, into his own control, and use the profits thereof, by way of keeping down interest. It is probably more because of its oppres- siveness to the debtor than any inconvenience which the creditor himself might suffer, that we find so little trace of this transaction in modern jurisprudence.^ § 214. Right to hold Pledge and Increments for Security. — A pledgee who uses the pledge so as to damage it is liable for any failure to exercise ordinary diligence ; but not to the extent of forfeiting his pledge security .^ And he may hold the profits and income of the pledge, together with its prod- ucts and natural increase, as accessory to the original security and for the same purpose.^ But in the absence of any agree- ment to the contrary, all property pledged as security for a debt reverts to the original owner when the pledge is extinguished.* § 215. Rule as to incurring Charges, etc. — Necessary and proper expenses incurred by a pledgee about the thing pledged must, therefore, be reimbursed by the pledgor ; and this includes the reasonable charges incurred for its keep and preservation, for protecting the title, or for making the security available on maturity.^ Assessments rightfully paid upon pledged stock are a proper charge for adjustment with the pledgor.** For all such expenses the pledge becomes security; including, as it would appear, even those which Sturgis, 29 Cal. 142 ; Gilson v. Mar- * See Merrifield v. Baker, 9 Allen, tin, 49 Vt. 474. 29, where this rule is applied so as 1 Story Bailm. § 344 ; Livingston to render the pledgee accountable V. Story, 11 Pet. 351. for return premiums received on an 2 Thompson v. Patrick, 4 Watts, insurance policy. 414. 6 starrett v. Barber, 20 Me. 457 ; 3 Story Bailm. § 292. Hurst v. Coley, 22 Fed. R. 183. 6 McCalla v. Clark, 55 Ga. 53. 219 § 216 THE LAW OF BAILMENTS. [PART IV. are extraordinary, if needful and proper under the peculiar circumstances ; ^ but expenses and charges excessive in amount, or incurred out of the line of the pledgee's duty, are, unless the pledgor authorized them, chargeable neither against the latter personally nor upon the pledge.^ As to charges for the pledgee's own services, this is a matter of delicacy, and must depend largely upon mutual intent and the peculiar circumstances of each case. A pledgee's per- sonal use of the thing, incidentally to its custody, should here be taken into account against him, nor ought compen- sation for ordinary performance to be readily allowed, in the absence of usage or some suitable stipulation in advance. The allowance of interest on the principal debt fulfils in many pledge transactions the object of such compensation ; but interest or special compensation, wherever properly allow- able to a pledgee, will be covered by the security ; ^ and, where benefit accrues to the pledgor from the pledgee's special exertion, a special remuneration might not unreason- ably be claimed. § 216. Whether Pledgee of Stock can vote. — The pledgee of stock has, apparently, no right to vote upon it as owner ;^ and, at all events, he ought not, where, under the mode of acquiring transfer, he has escaped the liabilities of a stock- holder.^ But the fact that the pledgee so votes does not amount to conversion of the pledge ; ^ and the pledgor by way of proxy may confer the right upon him.'^ One duly registered as the " pledgee " of stock has not a stockholder's liability.^ 1 2 Kent Com. 579 ; Pothier Con- ^ See Newton v. Fay, 10 Allen, trat de Nantissement, n. 61. This 505. is the rule of the French and Louisi- ^ Heath v. Silverthorn Co., 39 ana Codes. lb. Wis. 147. But pledgor may have 2 See Story Bailm. §§ 306 a, 343. pledgee restrained from voting. 26 As to costs in such suit, see Blake Hun, 453. V. Buchanan, 22 Vt. 548. ^ See Dulin v. Pacific Co., 103 Cal. 3 Story Bailm. § 306. 357. * McDaniels v. Flower Brook ^ pauly v. State Loan Co., 58 Fed. Manuf. Co., 22 Vt. 274; 26 Hun 666; 7 C. C. A. 422. (N. Y.), 453. 220 CHAP. IV.] TLEDGE OR PAWN. § 218 § 217. Pledgee's Right to Undisturbed Possession, etc. — The pledgee has the right to an uiulisturbed possession of the thing pledged to him during the full accomplishment of the bailment purpose ; and hence may sue, not only the pledgor, but all third persons who wrongfully invade this riglit.^ He may seek to recover the chattel in replevin, or sue in dam- ages as for its tortious dispossession.^ This accords with our general law of bailments.-^ None can obstruct his prompt pursuit and recovery, under such circumstances, save the party who can show a better title ; and any interest derived in the thing through the wrong-doer, however honestly ac- quired by some third person, and handsomely paid for, must, except as to negotiable securities, yield to the pledgee's right of precedence.* The measure of damages in his suit against third persons for dispossession is the full value of the pledge, and not merely his own interest as pledgee,^ but as against a pledgor (if he be the aggressor) and those in privity with him, only his special interest as pledgee.^ § 217 a. Subordination of Pledge Lien. — The right of pledgee to the pledge is subordinate to the special lien of a bailee whom he employs upon it ; as where under his direction some one is hired to transport and store for him the goods pledged.'^ § 218. Right of Pledgee to assign; Effect of Sub-pledge, etc. — As distinguished from bailees with merely a lien, our law allows one in possession of a pledge an extensive right of 1 Gibson v. Boyd, 1 Kerr (N. B.), v. O'Connor, 100 Mass. 515 ; United 150; Story Baihn. § 303; 2 Kent States Express Co. u. Meinto, 72 111. Com. 585 ; Ayers v. South Australian 293. If a slieriff may take the prop- Banking Co., L. R. 3 P. C. 548; erty out of the hands of the pledgee, Lyle V. Barker, 5 Binn. 457 ; Tread- his sale on execution is subject to •well V. Davis, 34 Cal. 601. As to the pledgee's claim. ^221, post. disposition by the pledgor, and its ^ gwire v. Leach, 18 C. B. n. s. consequences, see snpra, § 201. 479 ; Adams v. O'Connor, 100 Mass. 2 lb. Whether the pledgee may 515; Pomeroy v. Smith, 17 Pick. 85; enjoin the seizure by another crcd- Ilarker i;. Dement, 9 Gill, 7. itor, see 34 La. Ann. 389; §221, c jreadwell w. Davis, 34 Cal. 601 ; post. Brownell v. Hawkins, 4 Barb. 491 ; 3 Snprn, §§ 22, 115. Benjamin v. Stremple, 13 111. 406. * Noles V. Marable, 50 Ala. 300; '' Cooley U.Minnesota R., 53 Minn. Harker v. Dement, 9 Gill, 7 ; Adams 327. 221 § 219 THE LA"W OF BAILMENTS. [PART IV. transfer. It has long been admitted that a pledgee may- assign over the pledge so that the assignee shall take it sub- ject to all the responsibilities under the original pledge trans- action ; or may deliver it into the hands of a stranger for safe custody ; or may assign in form for his own purposes of en- forcement ; or may convey his interest conditionally by way of pledge to another person ; in all of which cases his secu- rity will not be destroyed or impaired.^ The right is here more liberally conceded than in the case of a mere lien claim- ant. But any such act on the pledgee's part is understood to be subject to all the original restrictions ; for to attempt to pledge property beyond the pledgee's own demand, or to make transfer as though he were the absolute owner, is re- garded as a breach of trust and a fraud upon the original pledgor; 2 so that the pledgee's creditors can in .general acquire no title in the property beyond that of the original pledgee himself. And it may be questioned whether, under some circumstances, and as to certain kinds of chattels Avhose intrinsic qualities were presumably regarded, such as a valu- able work of art, or private garments, a fair construction of the pledge contract would admit of passing the custody on to strangers at all, at the mere discretion of the pledgee, apart from his pledgor's special permission ; ^ for wherever the true intendment of the transaction was to restrain the pledge security to the pledgee personally, that intendment must prevail.^ § 219. The Same Subject. — But whether the pledgee's 1 Story Bailm. §§314, 322-324; liability as stockholder. The execu- Mores -y. Conham, Owen, 123; Whit- tor or administrator of a deceased aker v. Sumner, 20 Pick. 399 ; 2 Kent pledgee has much freedom in this Cora. 579 ; Shelton v. French, 33 respect. Drake v. Cloonan, 99 Conn. 489; Belden v. Perkins, 78 Mich. 121. 111. 449; Ashton's Appeal, 73 Penn. 2 gtory Bailm. § 324. St. 153 ; 101 Cal. 445 ; Whitney v. ^ See Cockburn, C. J., and Black- Peay, 24 Ark. 22 ; Van Blarcom v. burn, J., in Donald v. Suckling, L. K. Broadway Bank, 37 N. Y. 540 ; Proc- 1 Q. B. 585, 615, 618. tor V. Whitcomb, 137 Mass. 303. * See § 225, post, as to special See Heath v. Griswold, 18 Blatch. contract. 655, where one transferred to avoid 222 CHAP. IV.] PLEDGE OR PAWN. § 219 transfer in breach of trust shall so impair his security as to give tlie pledgor a right to reclaim the chattel on other or better terms than before the transfer, and regardless of what he owed, is quite different. Indeed, according to many of the latest American cases which follow late English prece- dents, the lien of the pledge must still prevail against the pledgor. Particularly is this true where the breach of trust appears rather a technical one than wholly wrongful in intent; as if the pledgee should merely sub-pledge or assign over for a greater amount than was actually due him. The modern custom of pledging marketable commodities and securities for which a money equivalent can easily be supplied, and the convenient practice, further, of recouping damages where contracts are sued upon, incline courts still further to the negative. A pledgee's overdealing with the thing pledged appears in England and many parts of the United States to be now regarded, not as utterly annihilating the pledge contract, nor extinguishing the pledgee's interest in the chattel there- under ; but as simply making the transfer so far inoperative against the pledgor, that the latter may recover possession by tendering what he owes.^ Perhaps there might be a tortious dealing by the pledgee so utterly inconsistent with his pledge undertaking as to terminate the contract altogether; but such certainly is not the usual consequence of his sub-pledge be- yond his own demand.2 Hence the prevailing modern rule, thus far applied to corn, claim-vouchers, dock-warrants, mar- ketable commodities, and securities, generally, which are easily replaced or paid for, that the pledgor cannot recover the chattel in replevin or a suit for damages from the sub- pledgee or a ho7id fide purchaser from the pledgor for value, without having first paid or tendered the amount of the debt for which the thing was pledged ; and this, notwithstanding the pledgor's transfer was in breach of trust.^ In favor of » Johnson v. Stear, 16 C. B. n. s. Suckling, L. R. 1 Q. B. G17 ; Fenn 338 ; Donald v. Suckling, L. K. 1 v. Bittleston, 7 Ex. IGO. Q. B. 58'). 8 'j'he present Engli.sh rule (s to 2 Blackburn, J., in Donald v. this effect. Johnson v. Stear, 16 223 § 220 THE LAW OF BAILMENTS. [PART IV. the bond fide transferee for value of pledged negotiable secu- rities, not overdue nor put forth wrongfully, another and broader principle of protection might, of course, avail.^ A sub-pledgee, not bond fide but charged with notice, cannot under any such rule compel a pledgor who has lawfully settled with his pledgee to pay him besides, in order to regain the pledge. 2 Even the pledgee, when sued for his wrongful transfer, may, in general, recoup the secured debt in the damages.^ But one who violates his contract of pledge by making a sub-pledge of the note or other collectible instrument left with him for security, must respond to the owner for the full amount of such security, unless he clearly proves that it was not Avorth its face value.* The fact that some sub-pledgee converts the securities or overdeals with the pledge does not render the original pledgee liable for conversion if he assigned them properly.^ § 220. Pledgor's Right to assign, etc., subject to the Pledge. — The pledgor, pending accomplishment of the bailment pur- pose, has rights and duties, with reference to the pledged property ; the discussion of which we have in a measure anticipated. He may sell or assign his own interest in the pledge, subject to the pledgee's rights ; in which case his transferee will stand in his place with the right of redeem- ing the pledge, and holding the pledgee to its diligent care.^ C. B. N. s. 338 ; Donald v. Suckling As to the wrongful repledge of (Shee, J., dis.), L. R. 1 Q. B. 585, parcels belonging to different per- where the subject is amply dis- sons, see 6 Abb. N. Cas. 381. cussed. And see Babcock v. Law- i Supra, §§ 182, 192. son, 4 Q. B. D. 394. So is the ^ German Bank v. Renshaw, 78 American rule. See Talty v. Freed- Md. 475. man's Savings Co., 93 U. S. Supr. s Belden v. Perkins, 78 111. 499 ; Ct. 321, and the valuable opinion Story Bailm. § 349. See further, as therein delivered by Mr. Justice to the pledgee's sale on default, post. Swayne ; Jervis v. Rogers, 15 Mass. •* Laloire v. "Wiltz, 29 La. Ann. 389 ; Lewis v. Mott, 36 N. Y. 395 ; 329. First Nat. Bank v. Boyce, 78 Ky. 42 ; ^ Waddle v. Owen, 43 Neb. 489. Cherry v. Frost, 7 Lea, 1 ; 74 N. Y. "5 2 Kent Com. 579 ; Franklin v. 223 ; Belden v. Perkins, 78 111. 449 ; Neate, 13 M. & W. 481 ; Story Bailm. Bradley v. Parks, 83 111. 169. § 350 ; Goss v. Emerson, 3 Fost. 38 ; 224 CHAP. IV.] PLEDGE OR PAWN. § 222 So may he pledge and tlien mortgage his property ; tlius rendering the mortgagee's interest simply that snrplus which might remain after satisfaction of the pledgee's claim. ^ One who has purchased from the general owner goods in pledge, with knowledge of the pledgee's lien, and receives the goods from the latter accordingly, cannot set off his claim upon the pledgor, but takes subject to the pledgee's lien; and he cannot set up the pledgee's wrong in defence.^ This case is to be distinguished from that of a pledgor's sale while the pledgee is out of possession, or where the pledgee surrenders possession without notice of his claim to the purchaser. § 221, Whether Goods in Pledge can be attached, etc. — At the common law, goods in pawn could not be taken in execu- tion in an action against the pawnor ; so long, at all events, as the pawnee's title remained unextinguished ; ^ nor, under like circumstances, be distrained for the pawnor's rent."* But in some parts of the United States are statutes whose aim is to enable a creditor to reach by legal process in attachment or execution the proceeds of a pledge, to the extent of the pledgor's right to a surplus above what might be needful for satisfying the pledgee's claim.^ § 222. Pledgor's Bankruptcy, Insolvency, or Death. — A pledgee's rights are not, apart from his consent, impaired or affected by his pledgor's decreed bankruptcy or insol- vency. And it is no conversion for the pledgee to refuse to surrender to his pledgor's assignee in bankruptcy who does not tender him what is due under the pledge.^ Nor Fisher v. Bradford, 7 Me. 28 ; Van ^ pomeroy v. Smith, 17 Pick. 85 ; Blarcom v. Broadway Bank, 37 N. Y. Stief v. Hart, 1 Comst. 20 ; Kcichen- 540. bach v. McKean, 95 Penn. St. 432 ; 1 Sanders v. Davis, 13 B. Monr. 120 Mo. 127 ; 31 La. Ann. 8G5 ; .34 432 ; Taylor v. Turner, 87 111. 200. La. Ann. 389. See Lainbertou v. See, for a peculiar instance of assign- Windoui, 18 Minn. 500 ; Lawrence ment by pledgor, First Nat. Bank v. v. McCalinont, 2 How. 420. Root, 107 Ind. 224. '^ Yeatman v. Savings Institution, 2 Carrington v. Ward, 71 N.Y. 300. 95 U. S. 704 ; Ilalliday v. HoJgate, 8 Story Baihn. § 353 ; Coggs v. L. R. 3 Ex. 299 ; Jerome v. Mc- Bernard, 2 Ld. Rayni. 909. Carter, 94 U. S. 734 ; 57 Fed. 821. * Swire v. Leach, 18 C. B. n. s. As to the effect upon the security, 479. where both pledgor and pledgee be- 15 225 § 224 THE LAW OF BAILMENTS. [PAET IV. does a pledgee's right terminate by his pledgor's death,^ But in all such cases the pledgee must account for his securities before he can share as a creditor in the insolvent estate. ^ § 223. Pledgor's Right to sue Third Persons. — The extent of the pledgor's right to sue strangers for Avrongfully taking or injuring the pledge has not been fully determined ; but while it may be theoretically true that either the party having the special property, or the general owner, may recover full damages against an intermeddler, courts obviousl}'- incline, in practice, to prefer the pledgee ; that at all events the pledgor, whose principal debt remains unpaid, or principal engagement unfulfilled, may not oust him of his security.^ Following the usual rule of bailments for mutual benefit, we may presume that whichever bailment party first sues the third person, the court if invoked will duly protect the interest of the other out of the damages recovered ; but in a bailment for security it commonly happens that the pledgee's interest in the thing is as great as the pledgor's or even greater, which is rarely the case in other bailments. § 224. Warranty of Title under a Pledge. — A pledgor, by the act of pledging, engages in effect, unless he has given his pledgee notice to the contrary, that he is the owner of the property ; and hence, if the ownership of any part of the security should prove to be not in him but another, and the pledgee suffer loss by reason of such defective title, the pledgor may be held liable in damages for the breach of con- tract.* A pledgor of property which he does not own is estopped from setting up any title afterwards acquired dur- ing the continuance of the pledge.^ And for the pledgor's come bankrupt, see Levi's Case, L. R. ^ gtory Bailm. § 352. See supra, 7 Eq. 449. And concerning the divi- §§ 217, 219 ; Swire v. Leach, 18 C. B. dends to a pledgee out of a bank- n. s. 479 ; Donald v. Suckling, L. R. nipt estate, see Weeks's Case, 8 Ben. 1 Q. B. 585. (U.S.) 265. And see Le Marchant -y. * Mairs v. Taylor, 40 Penn. St. Moore, 150 N. Y. 209. 446 ; Story Bailm. § 354 ; Pothier 1 Bennett V. Stoddard, 58 Iowa, 654. Contrat de Nantissement, n. 54. 2 Bryan Shoe Co. v. Block, 52 s Goldstein v. Hort, 30 Cal. 372. Ark. 458. Local statutes are usu- See 75 Fed. 433. ally to this effect. 226 CHAr. IV.] PLEDGE OR I'AWN. § 225 fraud, affecting injuriously his pledgee's interest under the pledge contract, the latter may likewise claim indemnity.^ But while, as regards any third party who has become purchaser of chattels held in pledge, he who sells such prop- erty as owner may be treated as personally liable for their genuineness, the pledgee's intervention in such a transaction, to make delivery for the pledgor and owner, and to retain enough of the purchase-money for discharging his own claim, pa}ing the residue to his pledgor, will not amount to a warranty of genuineness on his own part, nor, as long as he acted honest!}'', render him personally responsible to the purchaser.'^ § 225. Effect of Special Contract upon Pledge Transaction. — The legal rights and lial)ilities of pledgor and pledgee, which we have now considered, are of course widely susceptible of variation by special contract. Thus their mutual stipulation may require that the pledge be kept, until default of the pledgor, in some particular place or by some particular custodian ; ^ or that the pledgee shall hold possession of negotiable collaterals for the bailor to collect, and not try himself to collect them ; '^ or that no assignment of the pledge shall be made before default without the j^ledgor's assent.'^ And if the pledgee expressly undertakes absolutely to re- deliver, on satisfaction of the pledgor's debt, either the pledge or its money equivalent, his rash promise must be kejot, even though the thing perished on his hands without his fault.^ For a special agreement on some material point once appear- ing on the part of the pledge parties, not contrary to statute or public policy, this, as in other bailments, will regulate the bailment, and supersede the general law of pledge.'^ 1 Storj' Bailra. §§ .355. .356 ; AVliite Lawrence v. McCalmont, 2 ITow. V. Piatt, 5 Deni.., 209 ; Way v. David- 426. son, 12 Gray, 405. 6 Stipra, § 218. In First Nat. 2 Baker r. Arnot, 07 N. Y. 448. Bank v. Koot, 107 Ind. 224. it was 8 St. Losky V. Davidson, Cal. asreed that the pledgor miglit with- 64.3. Cf. Proctor v. Whitcomb, 137 draw collaterals in proportion as the Mass. .303. secured debt was reduced. * Lee V. Baldwin, 10 Ga. 208 ; « Drake v. White, 117 Mass. 10. ^ Supra, § 20. 227 § 227 THE LAW OF BAILMENTS. [PAET IV. § 226. Effect of Bailment on Pledgor's Default, etc. — IV. Bailment in pledge on the pledgor's default, or upon fulfil- ment of the secured undertaking. Let us now suppose that the pledgor has failed to pay the secured debt on maturity, or that he otherwise defaults in performance of the princi- pal undertaking. At the common law a pledge does not, in such event, become the absolute property of the pledgee; but he may avail himself of the security for his own satis- faction, or sue upon the main engagement, pursuing both modes, or either. Nor is mere indulgence or forbearance by the pledgee a waiver of his legal rights where the pledgor remains in default. § 227. Pledgee's Remedies on Default; Judicial or Non- Judicial Sale. — As for proceeding upon his security, there are these two remedies open to his election : 1. To file his bill in chancery, and obtain a judicial sale under a regular decree of foreclosure ; a tedious and expensive process, fa- vored in England in Glanville's time, but only to be com- mended where the pledged property is of much value and powerful conflicting interests are at stake ; ^ or where there are many claimants and a doubtful title should be cleared up. 2. After giving reasonable notice of his intention to the pledgor, to sell the thing publicly and fairly (the pledgor's default continuing), without judicial process at all.^ This latter summary proceeding, which, though jealously watched by tlie courts, is commonly preferred as altogether the more exj)editious and inexpensive method of gaining satisfaction, deserves examination in detail.^ 1 2 Kent Com. 581, 582 ; Story defraud his creditors. Chafee v. Bailm. § 310 ; Demandray v. ]Met- Sprague Man. Co., ib. calf, Free. Ch. 419; Gilb. Eq. 104 Kemp V. Westbrook, 1 Ves. 278 Vanderzee v. Willis, 3 Bro. Cli. 21 2 2 Kent Com. 582 ; Story Bailm. § 310 ; Tucker v. Wilson, 1 P. Wms. 261 ; Lockwood v. Ewer, 2 Atk. 303 ; Hart V. Ten Eyck, 2 Jolins. Ch. 02, cases infra; Steams v. Marsh, 4 100. See Boynton v. Payrow, 67 Denio, 227. Me. 587 ; Chafee v. Sprague Man. ^ If a pledgee has special authority Co., 14 R. I. 168. In a suit to fore- to make private sale on the pledgor's close a pledge, it cannot be responded default, he may agree with a third that defendant gave the pledge to person before such default to sell 228 CHAP. TV.] TLEDGE OH PAWN. § 229 § 228. Requirements of the Non-Judicial Sale. — The non- judicial sale by the pledgee, made under a power incidental to the pledge transaction, regards the pledgor's interests in two main particulars : first, in giving him final opportunity to make his principal engagement good, and so prevent tlie sale ; next, in requiring the sale, when made, to be so conducted that the thing may most likely bring all it is worth. In fur- therance of these salutary ends the law requires tlie most scrupulous good faith of him who holds the security. S 229. Sale should be on Due Notice, Demand, etc. — Ihe sale must be upon due and reasonable notice to the pledgor. However informal in expression, this notice should give the pledgor plainly to understand that the pledgee intends selling the thing, because of his default on the secured undertaking, at a certain time and place, unless he meanwhile redeems ; ^ and if a demand were needful to put the pledgor in such default, such demand is imperative.^ Due notice requires that the time and place of sale be clearly stated ; ^ nor should the time set for the sale be unreasonably close to the date of serv- ing notice.* But formal notice of the time and place of sale is not a prerequisite, where the pledgor gains actual and sea- sonable knowledge, and the pledgee's procedure is in fair pursuance of the terms.^ Nor would the sale be invalid for want of personal notice to the pledgor, if this part}-, having gone beyond the seas, left a fully empowered agent in his usual place of business, to whom notice was given instead. Whether constructive notice, such as newspaper publication, to him on that contingency. 1G2 Allen, 474 ; Conyngham's Appeal, Mass. 527 ; § 248. 57 Penn. St. 474 ; Gay t'. Mo.ss, 34 1 Brj'an v. Baldwin, 52 N. Y. 23.3 ; Cal. 125 ; Cushman v. Hayes, 40 111. Gay r. Moss, 34 Cal. 125 ; Cushman 145 ; Goldsmith v. Church Trustees, V. ilayes, 4(5 111. 145 ; Davis v. Funk, 25 Minn. 202; Stearns v. Mar.sh, 4 .39 I'enn. St. 243; Stevens v. Hurlbut Denio, 227; Millikin v. Dehon, 10 Bank, 31 Conn. 14() ; 3 Col. 551. Bosw. .325. But see Worthiiigton v. 2 Stevens v. Hurlbut Bank, 31 Tormey, 34 Md. 182, as to notice of Conn. 140 ; Conyngliam's Appeal, the sale of stock. 67 Penn. St. 474; Wilson v. Little, * lb. See 105 Mass. 407. 2 Comst. 443. 5 Alexandria K. v. Burke, 22 3 Stevens v. Hurlbut Bank, 31 Gratt. 254. Conn. 140 ; Washburn v. Pond, 2 6 Potter v. Thompson, 10 K. I. 1. 229 § 230 THE LAW OF BAILMENTS. [PART IV. can ever suffice in the pledgor's absence, is not clearly set- tled ; ^ but the safer, and, as some authorities appear to hold, the only safe course for the pledgee to pursue when his pledgor has absconded and cannot be actually charged with demand and notice, would be to file his bill in chancery .^ The requirement of due notice of sale, we may add, is the same on default, whether the pledge secured a debt payable at some future day or payable presently.^ When the time for the repayment of a secured loan was plainly fixed in advance, the pledgee may treat his pledgor as in default, after the appointed time, without an express demand upon him.* But a demand of payment is needful to charge an indorser ; and, as regards any pledgor, where no day for payment was stipulated, or there has been an indefi- nite extension of the principal debt at maturity.^ It would appear that the demand and notice of sale may be embraced in one and the same instrument. But the pledgee's notice that he will sell unless an excessive sum is paid him imme- diately, or the pledgor does something else which he has, as pledgee, no right to demand, is invalid.^ § 230. Method of Conducting the Sale. — Next, the non- judicial sale must be at public auction, and not at j)rivate sale ; '' nor should the sale be carried out in an oppressive or underhand manner.^ Even the sale, on default, of pledged 1 See Potter v. Thompson, 10 R. I. 701; Wilson v. Little, 2 Comst. 443 ; 1. Newspaper notice is held suffi- Story Bailm. §308; Wadsworth v. cient (the sale being in all respects Thompson, 8 111. 423; Stokes v. fairly made and for a fair price) in Frazier, 72 111. 428 ; Sharpe v. Na- Stokes V. Frazier, 72 111. 428. And tional Bank, 87 Ala. 644. see City Bank of Racine v. Babcock, ^ pjgot v. Cubley, supra. 1 Holmes (U. S. Cir.), 180. '^ Wheeler v. Newbould, 16 N. Y. 2 Stearns v. Marsh, 4 Denio, 227 ; 392; Strong v. Nat. Banking Assoc, Donohoe v. Gamble, 38 Cal. 340 ; 45 N. Y. 718 ; Washburn v. Pond, 2 Pigot V. Cubley, 15 C. B. n. s. 701. Allen, 474; White v. Rah way, 16 Cf. City Bank of Racine u. Babcock, Fed. R. 833; 3 Col. 551. A public 1 Holmes, 180. sale with only one bidder is not 3 Stearns v. Marsh, 4 Denio, 227. invalid. 105 Mass. 407. * Martin v. Reed, 11 C. B. n. s. ^ Ainsworth v. Bowen, 9 Wis. 348 ; 730 ; Chouteau v. Allen, 70 Mo. 290. Stevens v. Hurlbut Bank, 31 Conn. 5 Pigot V. Cubley, 15 C. B. n. s. 146. 230 CHAP. IV.] TLEDGE OR PAWN. § 231 stock or other incorporeal cliattel at a broker's board has been held a private, and consequently an improper, sale.^ But if the sale of the pledge be fairly made, on due notice and pub- licly, the pledgee is not blamable because of the low price it may fetch ;^ the pledgee is not bound to wait for a better market ; ^ nor can the honest purchaser's title suffer for want of the pledgor's good will.* A sale on the pledgor's default which has been fairly and openly conducted is not to be afterwards impeached. Once more, where the pledgee himself purchases the chat- tel at the sale,^ or buys it in immediately after, by collusion with a sham purchaser, the sale is improper and leaves the pledgor free to avoid it, the practical effect being the same as though no sale at all had taken place, and the title stands as before.'' But the pledgor has it at his option to treat such a sale as valid.' A merely colorable and pretended or irregular sale of pledged property b}'- the pledgee after default does not affect the pledgor's rights as against any one not standing upon the peculiar equities of a bond fide purchaser of ne- gotiable paper without notice.^ § 231. The Same Subject. — Any sale on the part of the pledgee, in fact, before or after his pledgor's default, which is 1 Dykers v. Allen, 7 Hill, 497 ; Chicago Artesian Well Co. v. Corey, Bra.ss v. Worth, 40 Barb. 648; GO 111. 73 ; Stokes r. Frazier, 72 111. Wheeler v. Newbould, 16 N. Y. 392; 428; Ainsworth v. Bowen, 9 Wis. Markham v. Jaudon, 41 N. Y. 235. 348 ; Baltimore Mar. Ins. Co. v. Scdqu. Child u. llugg, 41 Cal. 519; Dalrymple, 25 Md. 2G9 ; Bank of Maryland Fire Ins. Co. v. Dalrym- Old Dominion v Dubuque B., 8 pie, 25 Md. 242. Iowa, 277 ; Sharpe v. National Bank, 2 Ainsworth v. Bowen, 9 Wis. 348. 87 Ala. 644 ; llestonville K. v. Shields, 8 King V. Texas Banking Co., 58 2 Brewst. 257. A subsequent pur- Tex. 669 ; 133 Mass. 482. chase from the pledgee with notice * Lewis V. Mott, 3(5 N. Y. 395 ; of the facts leaves the effect of the Stokes V. Frazier, 72 111. 428; New- improper sale as above. Canfield r. port Bridge Co. ?). Douglass, 12 Bush, Minneapolis Assoc, 14 Fed. B. 801. 673 ; Potter I'. Thompson, 10 B. I. 1. "Hamilton v. State Bank, 22 5 Apploton V. Turnbull, 84 Me. 72. Iowa, 300. See post, § 248, as to 8 Pigot V. Cubley, 15 C. B. n. s. the effect of special contract or stat- 702 ; Hope ?•. Lawrence, 1 Hun, 317 ; ute. Ogden V. Lathrop, 65 N. Y. 158; 8 Norton v. Baxter, 41 Minn. 146 ; Middlesex Bank v. Minot, 4 Met. Glidden v. Mechanics Bank, 63 Ohio 25; Biyan v. Haldwin, 52 N. Y. 233 ; St. 588. 231 § 232 THE LAW OF BAILMENTS. [PART IV. made without pursuing the legal formalities or respecting the pledgor's property rights, may be assumed wrongful. Yet, as we have elsewhere seen, the modern tendency is to go to the marrow of the pledge transaction : requiring the pledgor to pay or tender all he owes as a prerequisite to punishing, for the wrong itself, either the pledgee or an improper transferee of the pledge ; and hence the courts refuse to award the pledgor damages, except for the possible surplus over and above making good that which the pledge was meant to secure.^ The pledgor's bankruptcy, after putting the thing in pledge, will not impair the pledgee's right to make sale upon default ; ^ and the failure and utter dissolution of a pledging partnership or company is held to justify the pledgee's infor- mal sale, so far as the act of the pledgor for whose benefit the formality was required had rendered its strict pursuance impossible.^ § 232. Effect of Pledgor's Waiver of Defects ; Ratification, etc. — We shall presently see that the special contract of the parties and their mutual assent in advance may modify con- siderably these strict requirements of the law which attend a pledgee's sale on default. But more than this, any possible defects in the sale, as to notice or publicity, or even a pur- chase by the pledgee himself may be cured by subsequent conduct, on a pledgee's part, which amounts to a ratification on his part ; * especially if the result has not been injurious to his interests. Lapse of time in connection with circum- stances puts a bar of course to all claims which tend to disturb a title ; and a pledgor may by his conduct ratify a sale of the 1 Supra, § 219 ; Donald v. Suck- 2 Supra, § 222. ling, L. II. 1 Q. B. 585 ; Halliday v. ^ City Bank of Racine v. Babcock, Holgate, L. K. 3 Ex. 299 ; Johnson 1 Holmes, 180. V. Stear, 15 C. B. n. s. 730 ; Tally v. " Child v. Hugg, 41 Cal. 519 ; Freednian's Savings Co., 93 U. S. Hamilton v. State Bank, 22 Iowa, 321 ; Bulkeley v. Welch, 31 Conn. 306 ; Clark v. Bouvain, 20 La. Ann. 339 ; Davis v. Funk, 39 Penn. St. 70 ; Chouteau v. Allen, 70 Mo. 290; 243 ; Kidney v. Persons, 41 Vt. 386 ; Fisher, ex parte, 20 S. C. 179. Baltimore Mar. Ins. Co. v. Dalrym- ple, 25 Md. 269. 232 CHAP. R'.] PLEDGE OR 7'AWN. § 233" pledge in a manner other than that prescribed l)y statute, as well as the common law, and thus cut off his riglit of redemption.^ When a pledge is illegally sold and tlie money received, the pledgor may waive the tort and require the money so received to be applied in discharge of the secured debt or engagement and claim any balance by suit or set-off.^ § 233. Peculiar Pledge Sales ; Stocks on Margin. — Our modern transactions in stocks and other kinds of incorporeal chattels give rise to a singular application of the foregoing rules for pledge sales. Thus, buying and selling stock through a broker on deposit of a " margin " with him — a speculating transaction in which the broker carries stock for his customers in his own name and with his own funds on the " margin " security — is held, in the State where such transac- tions are most common, to create the relation of pledgor and pledgee ; so that, on the pledgee's failure to keep his margin good, the pledgor or broker cannot sell the stock, except upon the pledge formalities, for repayment of his advances and commissions ; and this, notwitlistanding a contrary usage among New York stock-brokers.^ Other States have treated this transaction as a pledge, but not, in each instance, with the same rigorous exaction of sale formalities ; deferring, per- haps, without assertion of public policy, to what might be called the special stipulations of the pledge parties them- selves.* In Massachusetts where a broker is ordered to buy stocks on margin, he is not allowed to assume the contract himself, and tlius become virtually both buyer and seller.^ 1 Hill V. Finigan, 62 Cal. 420 ; s Markham v. Jaudon, 41 N. Y. Earle V. Grant, 14 K. I. 228 ; Jeanes's 235, Grover and Woodruff, JJ., Appeal, 110 Penn. St. 573. And see diss. ; McNeil v. Tenth Nat. Bank, post as to rights of redemption. 40 N. Y. 325. See pledgor's special release of his * Maryland Fire Ins. Co. v. Dal- equity of redemption after default, rymple, 25 Md. 242 ; Baltimore 45 Fed. 712. And see Downer v. Mar. Ins. Co. v. Dalryniple, ib. 209 ; Whittior, 144 Mass. 448 ; 42 La. Ann. Chil.l v. Hugg, 41 Cal. 519. And 183 ; Merriam v. Childs, 93 Mo. 131 ; see Skiff v. Stoddard, 03 Conn. 198. 165 Mass. 407. ^ Comra. v. Cooper, 130 Mass. 2 Fletcher v. Harmon, 78 Me. 465. 285. A broker thus emjiloyed must See §§ 250, 251. not so sub-pledge that he cannot 233 § 234 THE LAW OF BAILMENTS. [PAET IV. One who is a pledgee on " margin " may sue instead of selling the stock, like other pledgees.-' § 234. Sale of Pledged Stock. — We may remark that the irregular sale of stock b}^ a pledgee, or its misappropriation before or after his pledgor's default, does not, by the better opinion, fall under that rule of negotiable securities which permits the bond fide transferee for value to hold the thing against the original owner beyond a recoupment of the secured indebtedness.^ If, however, the pledgee were care- lessly held out to the public as the pledgor's agent, clothed by him with all the indicia of ownership for its full transfer, or as an owner, an apparent authority or ownership might, as concerned such a stranger, prove tantamount to a real authority or ownership in the premises.^ And on this latter ground, as it would appear, the irregular or wrongful sale of stock by a pledgee has been sometimes upheld in favor of a bond fide transferee for value ; or at least whatever considera- tion he gave is protected ; a power of attorney to transfer having for convenience been delivered to the pledgee, together with the stock certificate.* As to the pledgee of stock him- self, however, no right can be maintained to sell or transfer it, save in compliance with contract and the general law of pledge : ^ though, it is observable,' the formalities which restore the collateral when the cus- N. Y. 223, so that one who is not tomer settles. Germacn Bank v. Ren- understood to be more than the shaw, 78 Md. 475. pledgor's agent, clothed with doubt- 1 130 N. Y. 615 ; § 244. ful authority to transfer, cannot give 2 McNeil V. Tenth Nat. Bank, 46 the transferee a full bona fide title. N. Y. 325 ; Ashton's Appeal, 73 * Conyngham's Appeal, 57 Penn. Penn. St. 153. Story Bailm. § 322, St. 474 ; Prall v. Tilt, 27 N. J. Eq. appears inaccurate on this point ; and 393. Cf. Merchants' Bank v. Liv- Jarvis v. Rogers, 13 Mass. 105, s. c. ingston, 74 N. Y. 223. 15 Mass. 389, is not necessarily in 5 Conyngham's Appeal, 57 Penn. contradiction of the text above. See St. 474 ; Wilson v. Little, 2 Comst. supra, §§ 181, 219. 443 ; Baltimore Mar. Ins. Co. v. 3 Crocker v. Crocker, 31 N. Y. Dalrymple. 25 INId. 269 ; Ogden v. 507; Ogden V. Lathrop, 65 N. Y. 158; Lathrop, 65 N. Y. 158. Such is the Thompson v. Toland, 48 Cal. 99 ; rule, even though the pledgee be McNeil V. Tenth Nat. Bank, supra, himself a shareholder in the com- The New York doctrine is limited by pany. Fay v. Gray, 124 Mass. 500. Merchants' Bank v. Livingston, 74 284 CHAP. IV.] PLEDGE OK PAWN. § 235 attend stock transfer are not in all States the same, nor even uniform as to sliares in diiierent companies.^ The pledgee is not justitied, according to the weightier authorities, in parting with such a security at his own pleasure ; but, if he does so, his retransfer to the pledgor of a similar amount, when the bailment is accomplished, should oblige him likewise to account for the profits of his speculation.^ Nor would a broker's usage, independently of the pledgor's permission, sustain so dangerous a privilege as that of restoring other similar shares and not the identical certificate.^ But stock is a species of property valued chiefly for kind and quantity; and hence, where shares held in pledge are not easily distinguishable from others of the same descrip- tion which the pledgee liolds in a different capacity, courts disincline to award damages against the pledgee, as though the mixture were wa-ongful.* Nor is the pledgee's right to recoup his pledgor's indebtedness to be lost sight of in any issue of stock conversion.^ § 235. Enforcement of Mortgage Security. — Mortgage bonds or notes taken in pledge may require, on the pledgor's default, an enforcement of their special security ; and the pledgee of such bonds or notes has no right to dispose of them at a loss to his pledgor, in order that strangers interested in wiping out the mortgage incumbrance may gain an advantage.^ So is it l^ad faith on the pledgee's part to makp a pretended sale of tlie mortgage note, at a sacrifice to the pledgor, so as to buy it back collusively for himself." Nor can security be 1 1 Schoul. Pers. Prop. § 405. In » lb. ; Oregon Co. v. Ililmers, 20 Worthington v. Tormey, 34 Md. 182, Fed. R. 717. notice of tlie place of tlie pledijee's •» Berlin v. Eddy, 33 Mo. 426 ; sale of stock was deemed unneces- Ilayward v. Kogers, 62 Cal. 348. sary. Tliat the pledgee is not obliged to .^Langton v. Waite, L. K. Eq. sell stock at once upon default, see 165 ; ib. L. R. 4 Cli. 402 ; Lawrence § 244. post. " Supra, § 219. V. Maxwell, 53 N. Y. 10 ; Dykers v. ^ Fletcher v. Dickinson, 7 Allen, Allen, 7 Hill, 407 ; Shaw v. Spencer, 23 ; Newport Bridge Co. v. Douglass, 100 Ma.ss. 382; Fowles i>. Ward, 113 12Bush,073. See Burrows v. Bangs, Mass. 548. But see Thompson v. 34 Mich. 304. Toland, 48 Cal. 99. ' See Bichardson v. ALann, 30 La. Ann. 1000 ; 20 Fed. R. 05. 235 § 236 THE LAW OF BAILMENTS. [PART IV. used beyond the security ; and where a mortgagor discharges his own debt the mortgage security is no longer available for what the pledgor owed.^ A deposit of title deeds as collateral security does not create such a lien on the land as can be foreclosed at law ; but a bill in equity will lie to subject the land to the secu- rity .^ And foreclosure by bill in equity duly decreed will effectually bar all further redemption by the pledgee.^ § 236. Enforcement of Negotiable Securities by Collection, etc. — As regards negotiable securities like bills, notes, and coupon-bonds, two pledge peculiarities are noticeable : 1. Availability of title to a hond fide holder for value, when not overdue, even though lost, stolen, or otherwise put out of the original owner's control, without his fault or knowledge.* 2. Application, in many instances, to a pledgee's satisfaction agreeably to the understood mutual intent, without any sale of the pledge whatever. On this latter point the rule dedu- cible from a number of late decisions is, that the pledgee of negotiable securities not only has the right, but is bound, in the exercise of ordinary diligence, to make presentment for collection on their maturity, and then apply the proceeds on the pledge account;^ and if loss arises from a failure to do so upon reasonable knowledge and opportunity, the pledgee must bear that loss.^ And it has even been held wrongful for one to sell a negotiable note pledged to him, instead of col- lecting it ; notwithstanding a contrary usage among brokers.^ 1 Newman v. Bank, 67 Miss. 770, ^ Suj-tra, § 206 ; Wheeler v. New- 2 English V. McElroy, 62 Ga. 413 ; bould, 16 N. Y. 392 ; Jones v. Haw- 20 Fed. R. 65. While an equitable kins, 17 Ind. 550 ; Reeves v. Plough, mortgage is thus created as between 41 Ind. 204 ; 71 Iowa, 671 ; Lamber- individuals by the deposit of title ton v. Windom, 18 Minn. 232 ; Lazier deeds, the pledge of railroad or other v. Nevin, 3 W. Va. 622. This duty, corporate personal securities, though as already observed, is to duly pre- issued by way of mortgage bonds, sent the note for payment and give gives a pledgee no such right to fore- notice of its dishonor so as to charge close. Carter v. Wake, 4 Ch. D. 605. indorsers. Siqira, § 206. 3 Anderson v. Olin, 145 111. 168. e city Sav. Bank v. Hopson, 53 See 159 111. 416. Conn. 453. * 2 Schoul. Pers. Prop. §§ 20, 21 ; •? Wheeler v. Newbould, 16 N. Y. Story Bailm. §§ 322, 323. 392 ; Markham v Jaudon, 41 N. Y. 235. 236 CIIAI'. IV.] I'LEDGE OR PAWN. § 236 With the owner's assent the pledgee may sue upon such in- struments in his own name ; ^ or, indeed, without procuring such assent under the practice of many States, since his own rightful possession of the thing establishes his right.^ An obliged party incurs the risk of having to pay over again, so far as the pledgee's secured right goes, if he settles Avith the pledgor who has put the note in pledge out of liis own hands.'^ Whatever the pledgee may thus collect, be it in whole or in part, goes to the account of the pledge ; and the surplus remaining after full satisfaction of his secured debt or engagement, and incidental expenses, he must render to his pledgor.* The pledgee's transfer or retention of a nego- tiable security which he might have collected may render him chargeable with its full amount, as though he had elected to take it in payment of his secured indebtedness;^ and this to the extent of releasing the pledgor from any contingent lia- bility as indorser.^ Where a negotiable security contains on its face a memo- randum that it is to be used as collateral security, the party sued upon it may show its true consideration, and the iden- tity, nature, and amount of the demands for which it was collateral.'' But, under ordinary circumstances, the holder of a note as collateral is not chargeable with its wrongful con- version by refusing to deliver it up until the person claiming it pa3's, or offers to pay, the full amount for which it is held.^ An accommodation note, which is without consideration as between the original parties, is yet in the hands of a pledgee who took it without notice thereof available to the extent of 1 Lobdell V. Merchants' Bank, 33 Overstreet v. Nunn, 36 Ala. 666 ; Mich. 408. Houser v. Houser, 43 Ga. 415 ; Rice 2 Hou.ser v. Houser, 43 Ga. 41.5; v. Benedict, 19 Mich. 132; Hancock Hilton V. Waring, 7 Wis. 492 ; Louisi- v. Franklin Ins. Co., 114 Mass. 165 ; ana State Bank v. Gaiennie, 21 La. Rohrle v. Stidger, 50 Cal. 207. Ann. 555 ; White v. Phelps, 14 Minn. ^ See Cocke v. Chaney, 14 Ala. 65 ; 27. Powell V. Henry, 27 Ala. 612. 8 Mayo V. Moore, 28 111. 428 ; <> Whitten v. Wright, 34 Mich. 92. Valette v. Mason, 1 Ind. 288 ; Dix v. ' Garton v. Union City Nat. Bank Tully, 14 La. Ann. 456. 34 Mich. 279. 4 Hilton V. Waring, 7 Wis. 492 ; ^ Benior v. Paquin, 40 Vt. 199. 237 § 237 THE LAW OF BAILMENTS. [PAP.T IV. the intended security or consideration ; ^ while this and no more is by the better rule all the bond fide holder for notice can recover, where the maker of the note has a good defence against the pledgor.^ § 237. The Same Subject. — But, though the pledgee of negotiable securities may thus sue and recover upon them, he cannot, in general, compromise with the parties bound thereon, and so surrender the security, without becoming liable to account to the pledgor for its full amount.^ Much less can he make a careless or faithless settlement against his pledgor's interest.^ Yet, if the compromise were reason- able and just, and not, as a pledgee is tempted to make it, so as to sacrifice the pledgor for the pledgee's own sake, it ought, seemingly, to stand ; for, as w^e have seen, ordinary care and diligence is the standard by which the pledgee's responsibility for realizing upon such securities is measured.^ Quite commonly does the taking of short commercial paper in pledge practically involve rather its renewal on maturity, or the substitution of other security, than making a cash collection. Such exchange or renewal of securities would most safely be performed by pledgor and pledgee acting in concert ; yet the sole discretion of the latter in such matters, where the pledge contract laj^s him under no special restraint, has been strongly asserted in some cases ; provided, however, at all times, that the pledgee exercise therein ordinary dili- gence and prudence, and good faith besides.^ 1 Fisher v. Fisher, 98 Mass. 303 ; 2 qq n. Y. 483 ; Union Nat. Bank Louisiana State Bank v. Gaiennie, 21 v. Roberts, supra. La. Ann. 555. And see Mechanics ^ Garlick v. James, 12 Johns. 146 ; Bank v. Barnett, 27 La. Ann. 177 ; 98 111, G13 ; Depuy v. Clark, 12 Ind. Gardner v. Maxwell, 27 La. Ann. 427 ; Story Bailm. §321. See Thayer 561 ; Union Nat. Bank v. Roberts, v. Putnam, 12 Met. 297. 45 Wis. 373. It is held in Goldsmidt * Union Trust Co. v. Rigdon, 93 V. Church Trustees, 25 Minn. 202, 111. 458. that where promissory notes are ^ Supra, § 206. And see 9 Lea, sold, a purchaser from the pledgee, 63. The pledgee ought, if possible, with notice that the notes are merely to consult the pledgor upon such a held in pledge, cannot claim the full point. right of bona fide holder for value ^ Girard Fire Ins. Co. v. Marr, 46 against the equities of the pledgor. Penn. St. 504. Cf. 165 Mass. 402. 238 CHAP. IV.] PLEDGE OR PAWN. § 238 § 238. The Same Subject. — The reason of the rule which requires the pledgee to collect, and not sell, negotiable securi- ties, appears simply to be that the sale of commercial paper wliich will mature in the pledgee's keeping is not, j)resum- ably, intended under the pledge contract, but rather its col- lection or renewal on the pledge account; inasmuch as collection by the pledgor himself on tlie one liand is not feasible while he is out of possession, and on the other, the pledgee, by selling securities so soon to mature, would annoy and perhaps cause loss to the pledgor and the security parties, and by holding them without presentment and then selling them when overdue, would be sure to occasion damage ; be- sides which is the circumstance that such security is to mature sooner than the principal undertaking. But the length of time for which the security is to run, as compared with the principal, is of vital bearing upon the issue of mutual intent, as w-ell as of mutual convenience. Hence, the propri- ety of confining this rule to securities which wall mature before or about the same time that the bailment properly ter- minates, so far as any presumed obligation on the pledgee's part is concerned. For, in the case of coupon-bonds not presently redeemable,^ long commercial paper, and, in general, such pledged bonds and negotiable instruments as are not expected to mature till considerably later than the secured undertaking is fully performed, a power in the pledgee to sell on default with the usual formalities may w^ell be presumed, rather than an obligation on his part to make presentment and collection, and delay his pledge remedies.'^ But if a pledgee elect to wait until the security matures, his pledgor continuing, meantime, in default, this is a different matter.^ ' Morris Canal Co. v. Lewis, 1 471 ; Union Cattle Co. v. Trust Co., Beasl. 32.3 ; Water Power Co. v. 149 Mass. 492 ; Overlock v. Hills, 8 Brown, 2.3 Kan. 67G. If the payee Me. 38.3 ; Alexandria R. v. Burke, of a note guarantees payment be- 22 Gratt. 254. The decision in sides giving it in pledge, it is he who Fraker v. Reeve, .30 Wis. 85, is best should see that due vigilance in ju-stified, upon such a distinction from collection is applied. City Savings Wheeler v. Newbould, 10 N. Y. 392. Bank v. Ilopson, 63 Conn. 453. s gee Hancock v. Franklin Ins. 2 Richards v. Davis, 5 Penn. L. J. Co., 114 Mass. 155. 239 § 240 THE LAW OF BAILMENTS. [PART IV. There is authority, too, for holding that, on due presentment and dishonor of short paper given as security, and the pledgor's default on the main engagement, the pledgee has a right to sell the overdue paper publicly upon notice, instead of suing upon it.^ It should be observed that, at all events, the failure to pre- sent and give notice of non-payment, in such cases of matur- ing negotiable paper, renders the pledgee liable when loss or damage ensues, and then only to the extent of such damage.^ S 239. Enforcement of Debts, Claims, Insurance Policy, etc., as Security. — When mere debts, claims, or money rights are re- ceived in pledge, or paper already overdue, it may or may not, according to the circumstances and the apparent intent of the parties, be the pledgee's duty to diligently attempt their col- lection, instead of waiting to sell ; ^ but, for any amount thus collected, he is certainly accountable as under the pledge.* Where a life insurance policy is taken as security, the pledgee can do little more than keep up the premiums, and reimburse himself whenever the policy becomes payable, for what may then be due him.^ § 240. Every Security to be enforced according to its Nature and the Mutual Intent. — Whatever be the nature of the se- curity, in fine, the pledge contract carries the implication that it shall be put reasonably towards discharging the pledge obligation, in accordance with mutual intent and the good sense of the transaction. And, if the main object be to in- demnify instead of discharging an indebtedness, the happen- ing of what was provided against, or breach of the pledgor's engagement, constitutes the default upon which resort to the 1 Potter V. Thompson, 10 R. I. 1, ^ Mullen v. Morris, 2 Penn. St. 8, 10. 85 ; Rice v. Benedict, 19 Mich. 132. Where promissory notes are prop- * Rice v. Benedict, 19 Mich. 132 ; erly sold instead of collected, the sale Kittera's Estate, 17 Penn. St. 14G. should be with the usual formalities. See supra, §§ 206-208, Goldsmidt v. Church Trustees, 25 ^ But the representatives of the Minn. 202. deceased pledgor may redeem. Hicks 2 See Kennedy v. Rosier, 71 Iowa, v. Life Ins. Co., 60 Fed. 690. Here 671, death had foUbwed soon after the pledge transaction. Cf. § 250. 240 CHAP. IV.] PLEDGE OR PAWN. § 241 security is justifiable.^ Increments of the pledge retained by the pledgee may be sold, as well as the original pledge itself.2 And in the conduct of a sale once undertaken upon the pledgor's default, as well as in collecting the security, good faith and ordinary diligence should be exercised.^ The enforcement of a pledge should not be collusive or oppressive, to the pledgor's detriment.* § 241. Rules of Priority; Application of Proceeds, etc. — In adjusting the riglits of various lien-creditors to the fund derived from the sale of a pledge on default, or its reduction to cash, the usual rules of priority are to be observed ; though such doctrines, in the present connection, receive but slight attention from our courts.^ If the proceeds be insufficient for discharging the whole debt secured or fully indemnifying the pledgee under his pledge contract, the deficit should con- stitute a personal charge against the pledgor, recoverable against him.^ But if, on the other hand, the pledgee obtain entire satisfaction, and there should remain a surplus, this (saving the claims of a paramount owner) belongs to the pledgor, or to subsequent lien-parties in his right, and the pledgee must account accordingly.' Wherever the thing was pledged to the same party for two 1 Vest V. Green, 3 Mo. 219 ; Post » See McQueen's Appeal, 104 V. Tradesmen's Bank, 28 Conn. 420. Penn. St. 595; Colquitt v. Stultz, 65 2 Story Bailm. § 314. Ga. 305. As to the formalities in enforc- * 66 Cal. 480. ing the security of a savings-banlc ^ Story Bailm. § 312 ; 1 Domat, book, delivered under peculiar cir- 3, 1 ; Newport Bridge Co. v. Doug- cumstances, see Boynton v. Payrow, lass, 12 Bush. 073. 67 Me. 587. For the case of a bond " Story Bailm. § 314 ; Faulkner and certificates given to secure pur- v. Hill, 104 Mass. 188 ; Stokes v. chase money due on shares of stock of Frazier, 72 111. 428. a land company, see Merchants Bank " Story Bailm. § 314 ; Hancock v. V. Thomp.son, 133 Mass. 482. City Franklin Ins. Co., 114 Mass. 155; scrip or orders should be collected Van Blarcom v. Broadway Bank, 37 and not sold. 10 W. Va. 717. For N. Y. 540; Kohrle v. Stidger, 50 Cal. enforcement of a pledge of the frac- 207 ; Jesup v. City Bank, 14 Wis. tional part of a claim, see Fairbanks 331. For a sale of the pledge vnuler V. Sargent, 117 N. Y. 320. As to an arrangement with the pledgee's foreclosing a lien on warehouse re- assignee in bankruptcy, see 126 Mass. ceipts, see 37 Neb. 766. 209. 16 241 § 242 THE LAW OF BAILMENTS. [PART IV. or more debts or engagements, and the pledge, when sold, will not suffice to liquidate the whole, the proceeds of the sale are naturally applied proportionally to all the debts, so as to extinguish them 'pro tanto^ unless the pledgee would thereby suffer special damage.^ But the law leaves appro- priation of payments largely to a creditor's own choice ; and hence, where a pledgee who holds security for various notes is bound to no express arrangement in this respect, he may, on his pledgor's default, apply the proceeds of the security towards the notes in the manner most convenient for himself even though some of the notes have solvent sureties or in- dorsers to them, and some have not.^ Where the security, first given for a specific debt, is afterwards extended to all the pledgor's indebtedness to the pledgee, the latter has been allowed to apply the sale proceeds, when insufficient for liquidating the pledgor's entire indebtedness to him, to the specific debt first of all, with the balance pro raid towards his general demands.^ In general, where the pledge is for a specific debt, it must be so applied, but where it extends to general indebtedness the application becomes general.^ It is held that when a creditor, having two demands against his debtor, one of which is specially secured while a pledge is given for the security of the whole, sells the pledge, on default, for enough to pay both demands, it will be a satisfaction of both.^ § 242. Various Securities ; how applied. — Where, again, several things are pledged for the same principal under- taking, each, by the civil as well as the common law, will be deemed liable for the whole debt or engagement ; and the pledgee may, on his pledgor's default, proceed to sell them from time to time till fully satisfied.^ Here, too, the pledgee 1 Story Bailm. § 312 ; Blackstone * Fall Eiver Bank v. Slade, 153 Bank v. Hill, 10 Pick. 129; Beach v. Mass. 415. State Bank, 2 Ind. 488. ^ strong v. Wooster, 6 Vt. 536. 2 Wilcox V. Fairhaven Bank, 7 ^ Story Bailm. § 314 ; Pothier de Allen, 270. Nantissement, n. 43 ; Vest v. Green, 3 Eichelberger v. Murdock, 10 Md. 3 Mo. 219 ; Union Bank v. Laird, 2 373. Wheat. 390 ; CuUum v. Emanuel, 1 242 CHAP. IV.] PLEDGE OK PAWN. § 243 has much freedom of choice ; for he is not obliged to pursue all together, nor one security rather than another ; ^ nor can he be compelled to give up any one until the pledge obliga- tion is fully discharged.2 One may have the benefit of all collateral obligations, given in security, whether by way of pledge or mortgage.^ But though there be many securities, the pledgee can obtain but one satisfaction ; and he ought not to force an excessive sale of separable securities, such as scrip or coupon-bonds, when the sale of a portion will amply suffice,* nor having realized enough upon his security proceed to sue the pledgor,^ nor sue on other securities for collection.^ In general, if the amount recovered on the security be greater than the pledgor owed, the pledgee recovers the excess for the pledgor's use." § 243. Right of Third Party Who discharges to the Securi- ties. — While, however, the pledgee is under no obligation to relinquish any part of his security until the principal object for which he took it has been fully accomplished, it is a well- settled rule of equity that the security of a debt or engage- ment, in whosesoever hands it may be, is a fund held in trust for the ultimate discharge of that debt or engagement in favor of all parties concerned.^ Hence any third party, such as an indorser or surety who was bound for the pledgor's performance, may, upon discharging, voluntarily or by com- pulsion, the pledge obligation, demand the collaterals of the Ala. 2.3. But the taking of several that known to be indorsed for accom- securities might be for several specific modation. 152 Mass. 189. debts. See Baldwin v. Bradley, 69 * Fitzgerald v. Blocher, 32 Ark. 111. 32 ; Phillips v. Thompson, 2 742. Johns. Ch. 418. 5 See Rea v. Forrest, 88 111. 275. 1 Comstock V. Smith, 2.3 Me. 202 ; " New England Trust Co. i'. Belt- Brick V. Freehold, &c. Co., 37 N. J. ing Co., 1G6 Mass. 42. L. 307 ; Buchanan v. International ^ Union Bank v. Roberts, 45 Wis. Bank, 78 111. 500. 373 ; Fletcher v. Harmon, 78 Me. 2 Union Bank v. Laird, 2 Wheat. 465. Special contract may specially 390. stipulate in this respect. § 248. 8 Ileid V. Vreeland, .30 N. J. Eq. ^ Church, J., in New London Bank 591. Of collateral notes, ordinary v. Lee, 11 Conn. 112 ; Merrick, J., paper should be resorted to before in Wilcox r.Fairhaven Bank, 7 Allen, 270, 272. 243 § 244 THE LAW OF BAILMENTS. [PAET IV. pledgee, and obtain full satisfaction for himself or a just con- tribution from the other sureties, as justice may require ; for he is legally subrogated thereby to all the pledgee's rights.^ A bill in equity for contribution may be brought in behalf of such subrogated claimants.^ § 244. Pledgee not bound to sell on Default. — But a pledgee, we now observe, is not in general bound, on his pledgor's de- fault, to sell the thing pledged ; ^ while, on the other hand, the pledge will not become his absolute property where he fails to do so.* His omission to enforce his right under the secu- rity simply leaves the thing a mere pledge as before ; and under these circumstances the pledgee will remain bound to restore it to the pledgor whenever full payment or satisfaction of the secured undertaking has been made or tendered him, subject, of course, to the doctrine of limitations.^ But since he is not bound to sell, neither will he be held liable, while his pledgor remains inert, for the mere depreciation of the unsold pledge on his hands.^ Is, then, the unfortunate pledgor who cannot help default- ing compelled to see valuable securities sink into worthless- ness, through his pledgee's inaction, which might have gone towards extinguishing the main indebtedness ? Not utterly, unless justice slumbers ; but where the interests of the pledgor, or perhaps of general creditors, demand it, equity will entertain a bill to compel a sale of the pledged property lib.; Brick V. Freehold, &c. Co., e gmith v. Strout, 63 Me. 205; 37 N. J. L. 307 ; Stewart v. Davis, 18 Granite Bank v. Richardson, 7 Met. Ind. 74 ; Strong v. Wooster, 6 Vt. 407 ; Williamson v. McClure, 37 536; Goss v. Emerson, 3 Fost. 38; Penn. St. 402; Richards v. Davis, Mitchell t). Bass, 24 Tex. 392 ; Wood- 5 Penn. L. J. 471; Richardson v. ward V. Exposition R,, 39 La. Ann. Ins. Co., 27 Gratt. 749; Robinson v. 566 ; Searight v. Bank, 162 Penn. St. Hurley, 11 Iowa, 410 ; Rozet v. Mc- 504. Clellan, 48 111. 345 ; Wood v. Morgan, 2 New England Ins. Co. v. Belting 5 Sneed, 79 ; Bank of Rutland v. Co., 166 Mass. 42. Woodruff, 34 Vt. 89. The above 3 Badlam v. Tucker, 1 Pick. 400. rule is frequently asserted of stock. And see 35 La. Ann. 520. and the like chattels of fluctuating 4 Story Bailm. §§ 320, 321, 346. market values. And see O'Neill v. * See §§ 250, 251, as to the pledgor's Whigham, 87 Penn, St. 394. right of redemption. 244 CHAP. IV.] PLEDGE OK PAWN. § 245 and a due application of its proceeds.^ Even his notice to the pledgor to sell or realize, upon a fit emergency, may put the risks of inaction upon his pledgee ; for what we mainly observe is that the pledgor must not remain inactive, but nmst keep on the alert for the interest of the pledged prop- erty, taking the initiative unless his pledgee was clearly bound to do so, and indemnifying the latter against new expenses which might otherwise burden him. Furthermore, as the reason of the situation requires, the pledgee who continues thus in possession after default is not absolved from the exercise of at least a gratuitous bailee's diligence ; and if it would be culpable negligence to proceed to expose pledged furniture to rough weather, why should he not be held for a like insensibility in carelessly suffering pledged securities to become utterly worthless on his hands when he might well have realized upon them? If a pledged note or bond should mature long after the pledgor's default, or stock be called in to wind up a company, it would seem to be incumbent upon him, a possessor at that late day, to take ordinary precautions for its collection.^ We have seen that a pledgee may be bound to collect with ordinary diligence, from the very nat- ure of the transaction.^ And in general if by the fault of the pledgee collaterals deteriorate or become worthless he should bear the loss, and the rule of ordinary diligence ap- pears the true one. § 245. The Same Subject. — To apply our principles in the light of late precedents. If the creditor takes promissory notes having a short time to run, outstanding debts or claims, judgments, or other like security, whose enforcement, it may be said, was to consist in collecting and applying the proceeds to his claim, his inertness or want of ordinary diligence in realizing as was intended, renders him accountable for the 1 Story Bailm. § 320 ; Kemp v. others interested in subordination to Westbrook, 1 Vcs. Sen. 278 ; 2 Story his own claim. Williams v. Schooner E(i. Jur. §§ 1031-10:13. The civil St. Stephens, 14 Mart. 22. law, which is followed in Louisiana, - See Hancock v. Franklin Ins. recognized the ri<;lit of compelling Co., 114 Mass. 155; 105 Mass. 467. the pledgee to sell for the benefit of ^ Supra, § 230. 245 § 246 THE LAW OF BAILMENTS. [PART IV. loss and may be offset to his claim against the pledgor.^ But where stock is held by way of pledge the pledgee is not bound to sell the stock on default without at least notice from the pledgor directing him to do so, or facts indicating a necessity .^ Where the pledgee delays selling the stock in bad faith, and in pursuance of some conspiracy to depreciate the stock for personal advantage, he violates his bailment duty.^ And if the pledgee undertakes to sell or becomes charged with the duty of selling, the sale should be fairly conducted and with ordinary diligence.* In short, without a special undertaking on his own part, the pledgee is not bound to sell even when the pledgor requests him to do so, except for the limit of ordinary care applicable to the condition and character of the property, which might involve him in culpable negligence if he disregarded a notice ; for his power of sale is a right rather than a duty.^ § 246. Pledgee may sue the Pledgor on Default. — 3. This brings us to the pledgee's third remedy upon his pledgor's default : viz., to sue the pledgor personally on the principal debt or engagement. This he may always do without selling the thing pledged, since the mere taking of security imports no promise to pursue the security first ; ^ and he may even attach the pledged property in his suit,''' thereby abandoning the lien of the pledge, as some cases liold.^ Recovery of judg- 1 Semple Man. Co. v. Detwiler, 30 « 2 Kent Com. 582 ; South Sea Co. Kan. 386 ; szipra, § 236 ; Harper v. v. Duncomb, 2 Str. 919 ; Elder v. Second Bank, 12 Lea, 678 ; 65 Ga. Rouse, 15 Wend. 218 ; Story Bailm. 305; Douglass v. Mundine, 57 Tex. 344. § 315 ; Dugan v. Sprague, 2 Ind. 600 ; 2 O'Neill V. Whigham, 87 Penn. St. Bank of Rutland v. Woodruff, 34 Vt. 394; Colquitt v. Stultz, 65 Ga. 305; 89; West v. Carolina Life Ins. Co., Newsom v. Davis, 133 Mass. 343. 31 Ark. 476. And see statute con- Some cases even deny the pledgor's strued in United States v. New Or- right to force such a sale at pleasure, leans, 98 U. S. 381 ; 40 La. Ann. Napier v. Central Georgia Bank, 68 796. Ga. 637. ^ Whitwell v. Brigham, 19 Pick. 3 Napier v. Central Georgia Bank, 117 ; Buck v. Ingersoll, 11 Met. 226 ; 68 Ga. 637. Arendale v. Morgan, 5 Sneed, 703 ; * See McQueen's Appeal, 104 Penn. Story Bailm. § 366. Co ttira, Neil i>. St. 595. Rogers Co., W. Va. (1896). s See Minneapolis R. v. Betcher, ^ Citizens Bank v. Dows, 68 Iowa, 42 Minn. 210. 460, and cases cited. Cf. 80 Iowa, 246 CHAP. IV.] PLEDGE OR PAWN. § 247 ment on the principal debt or engagement, thougli followed by an arrest of the pledgor's person, will not preclude the pledgee from continuing to hold the collaterals until that full satisfaction is obtained to which the pledge contract entitleil hira;^ and even his bare promise to give them up, under such circumstances, is a promise without consideration, and of no binding force.^ Nor, in general, would recovery of judgment against the pledgor, whether upon the security or the principal debt, dis- charge the pledge ; for actual satisfaction is what the law ultimately seeks on behalf of a pledgee.^ And judgment, by confession or otherwise, may thus operate, by fair intendment, as additional or cumulative security.* But the pledgor who pays the amount of judgment into court is entitled to a stay of execution until the pledge is returned or properly ac- counted for ; ^ and where, after suit brought, the pledgee sells collateral security for enough to make good what was owing, this discharges his cause of action.^ So, too, in any such suit, the pledgor is allowed a liberal right of set-off.^ § 247. The Same Subject. — A pledgee may, however, actu- ally relinquish to his pledgor collateral securit}^ without im- pairing his right to proceed against him personally or upon different security still left in his hands ; and other creditors, not in privity with the pledge parties, have no cause to com- plain of any such arrangement on their part.^ So it is a general principle, which our bankrupt and insolvent laws recognize, that the just balance due a pledgee over and above his securities, may be judicially pursued like the claim of an ordinary creditor.^ 512; 5 Sneed, 703; Guenther v. ^ Semple Man. Co. u. Detwiler, 30 Cary, Ky. (189G). Kan. 386. > Smith V. Strout, 63 Me. 205 ; e See Lewis v. Jewett, 51 Vt. 378. Fisher v. Fisher, 98 Mass. 303 ; '' Cases infra. But cf. Fletcher v. Charles v. Coker, 2 S. C. 122. Harmon, 78 Me. 4G5. 2 Smith V. Strout, supra. » Dyott's Estate, in re, 2 W. & S. 3 lb. ; Fisher v. Fisher, 98 Mass. 463. 303. 9 Story Bailm. § 314 ; Faulkner v. < Chariest). Coker, 2 S.C. 122. Hill, 104 Mass. 188; U. S. Bank- ruptcy Act of 1807, §§ 20, 21. 247 § 248 THE LAW OF BAILMENTS. [PART IV. Wherever suit is brought to recover the demand for which the pledge was given, the pledgee ought to be prepared either to restore the pledge on satisfaction, or to account fairly as bailee for its non-production.^ § 2-48. Remedies on Default regulated by Statute or Special Contract. — This whole subject of remedies on the pledgor's default may be found specially regulated : (1) by local legis- lation ; (2) by express stipulations of the parties themselves. As instances of the former kind may be mentioned the stat- utes of certain States which prescribe a specific method of conducting the non-judicial sale in various particulars, as in the formalities of notice, or the proper interval which should elapse between serving the notice and selling, — not, perhaps, to the exclusion of other lawful methods ; ^ and the salutary provision frequently found, that the holder of collateral secu- rity shall exhaust or surrender it before he can sue on the original indebtedness.^ And with respect to instances of the latter kind, it is undoubtedly true (saving the rights of those in privity with them) that, by suitable contract the parties may expressly regulate the general terms of bailment, and method of pursuing remedies by the one party on default of the other. And in the vast volume of large mercantile loans at this day by chartered companies upon the pledge of mar- ketable securities, special advantages in sale on default are commonly stipulated by contract with the pledgor, expressed in his note or otherwise. Thus has the power to sell been expressly conferred;* the time and manner of such sale fixed,^ and even the right conferred on the pledgee to sell upon default, with newspaper notice or without any notice,^ or optionally at a private sale,'^ or with clear permission to be 1 Stuart V. Bigler, 98 Penn. St. 80. s See Swift?;. Fletcher, 6 Minn. 550. Where the pledgee sues on his de- * Wilson v. Little, 2 Comst. 443 ; mand the pledgor may counterclaim Story Bailm. § 317. a culpable loss or conversion of the ^ Robinson v. Hurley, 11 Iowa, pledge. Cutting v. Marlor, 78 N. Y. 410 ; Rohrle v. Stidger, 50 Cal. 207 ; 454 ; Donnell v. Wyckoff, 49 N. J. L. City Bank v. Babcock, 1 Holmes, 181. 48 ; Waring v. Gaskill, 95 Ga. 731. « Williams v. Trust Co., 133 N. Y. ^ Mass. Gen. Sts. c. 151, §§ 9-11 ; 660 ; 124 111. 491. 62 Cal. 426. ^ Genet v. Howland, 45 Barb. 560 ; 248 CHAP. IV.] PLEDGE OR PAWN. § 249 himself a purchaser.^ Stipulations for a sale on good oppor- tunity, even before pledge or default, with due application of the proceeds are sometimes made.^ It is possible, too, that, by virtue of some special provision to that effect, the pledgee might be empowered to take absolute ownership of the pledged chattel at a fixed valuation, such valuation being fair to both, and the provision a reasonable one.^ Special con- tract may have given a special riglit to apply the surplus of a sale to more than the specific indebtedness,* or to sell on de- fault "in such manner as the pledgee may deem proper,"^ or to sell at brokers' board at public or private sale without notice and to purchase,^ or to regulate the disposition of commercial paper specifically." Tliat ratification or mutual assent after default may vary the bailment terms we have already seen.^ § 249. Oppressive Stipulations violate Public Policy. — But stipulations between pledge parties are not to be upheld, if, as too frequently happens, they are unconscionable and oppressive to the debtor ; as, for instance, where they con- tract that, unless the pledgor fulfil his principal undertaking at the appointed time, the pledgee shall hold the pledge as absolutely his own.° The pledgor's rights are not to be sacri- ficed upon vague and doubtful terms of expression. ^"^ Nor, on the other hand, should express terms be taken to defeat the rational purpose of securing the creditor, and permitting the security to be enforced on default; so that a stipulation liter- Maryland Fire Ins. Co. v. Dalrymple, ^ And accordingly to sell bonds 25 Md. 242 ; Loomis v. Stave, 72 111. from time to time after they begin 623; Mowry v. Wood, 12 Wis. 413. to depreciate. William ?;. Trust Co., Under a stated option, the pledgee's 133 N. Y. 660. private sale without notice is valid. ^ Manning r. Shriver, 79 Md. 41. Carson v. Gas Light Co., 80 Iowa, 638. ' Hunter v. Hamilton, 52 Kan. 195. » Chouteau v. Allen, 70 Mo. 290 ; 8 Supra, § 232. Hamilton v. State Bank, 22 Iowa, ^ Lucketts v. Townsend, 3 Tex. 306. 119; Dorrill v. Eaton, 35 Mich. - See National Bank v. Baker, 128 302. This would give the simple 111. 533. effect at law of a chattel mortgage. 8 See Story Bailra. § 345. w Goldsmidt v. Church Trustees, 25 * See "drag-net" stipulation as to Minn. 202. But the pledgee may be "any other claim," in Hallowell v. specially empowered to realize on de- Blackstone Bank, 154 Mass. 359; fault by sale or collection. lb. See Cross V. Brown, 17 R. 1. 568. 166 Mass. 550. 249 § 250 THE LAW OF BAILMENTS. [PART IV. ally purporting that the pledgor may determine when the thing pledged shall be sold, ought not to be construed so as to confer upon him the right, when in default, to defeat the pledgee's remedies upon the security.^ All bailment stipula- tions in fact are limited by public policy and good sense.^ The law of Rome treated special stipulations between pledgor and pledgee with like reservations ; and the modern codes of continental Europe exhibit a corresj^onding disposi- tion.3 True, by the ancient lex commissoria, the debtor and creditor might agree that, if the former did not pay what he owed by the day fixed, the pledge should become the absolute property of the pledgee ; but this privilege was found to work so harshly that Constantine abolished it."^ While recognizing a pledgee's right to sell on default of the pledgor, by special contract arrangement, the Roman law for ordinary cases showed in Justinian's time excessive solicitude for the pledgor, since it required the pledgee to give two years' notice, before he could sell the pledge.^ § 250. Pledgor's Right of Redemption, — Now, as concerns the pledgor's right of redemption. Where the pledge has once been disposed of on the pledgor's default, either under some decree in chancery or by a non-judicial sale regularly conducted, the same being in full compliance with law and the just and rational contract of the parties, the pledgor's right of redemption is utterly gone.^ So it is in the case of pledged incorporeals, such as negotiable paper or money claims, which the pledgee has rightfully collected.'^ But otherwise, — as if the pledgee refrain from selling or col- lecting, or sell irregularly, or buy in the thing for himself 1 Belden v. Perkins, 78 111. 449. ten days' notice, the notice should And see King v. Texas Co., 58 Tex. be accordingly. 95 Ga. 731. 669. 3 story Bailm. §§ 309, 318, 319, 2 Stock wrongfully pledged and 345. claimed by the true owner cannot * 2 Kent Com. 583 ; Pothier Con- rightfully be sold without notice, trat de Nantissement, n. 18. even under the rules of a brokers' ^ 2 Kent Com. 582, 583 ; Code, 8, board. Smith v. Savin, 141 N. Y. 34, 3, 1. 315, distinguishing 113 N. Y. 327. « Supra, § 227. Where special contract prescribes '' Supra, §§ 236-239. 250 CHAP. IV.] PLEDGE OR PAWN. § 250 where he has no special permission to do so, or make a wrongful transfer of it to some third party whom the pledgor is not legally debarred from pursuing, — the pledgor's right of redemption will continue, notwithstanding his own delin- quency. And so greatly are the equities of all pledge trans- actions now regarded, that courts look through the form to the substance of a transaction for determining whether a pledgor is debarred or not. It is said that where no time was limited for redemption of the pledge, the pledgor has his own lifetime to redeem, unless quickened by a notice in pais, or through the interven- tion of a court of equity; consistently with which rule the pledgee's death would afford him no hindrance.^ But modern prescription runs rather by lapse of years than the uncertain span of a human life ; ^ and wdiile, supposing the lapse of no unreasonable period from the pledgor's default, nor a waiver of redemption, the right to redeem may pass to the represen- tatives of a deceased pledgor, time puts an absolute barrier to the pursuit of all such remedies, irrespective of the living or dead. Strictly speaking, the Statute of Limitations does not run against a pledge ; '^ but, inasmuch as it runs against the pledgee's enforcement of the secured debt or engage- ment, so will equity decline to entertain the pledgor's bill for redemption if he or his representatives bring it urneasonably late ; for the property will then be conclusively presumed to have vested in the pledgee, or, at least, duly disposed of.'* 1 2 Kent Com. 582 ; Story Bailm. bar the right to redeem. Reynolds v. §§ 345-348, 362 ; Kemp v. West- Cridge, 131 Penn. St. 189. brook, 1 Ves. Sen. 278 ; Prec. Ch. * What shall be the limitation of 420 ; Katcliff v. Davis, 1 Bulst. 29 ; the pledgor's right of redemption ap- Bac. Abr. Bailment, B. ; Cortelyou pears largely a matter of judicial V. Lansing, 2 Cain. Cas. in Err. 200 ; discretion. The pledgor can claim, Perry v. Craig, 3 Mo. 51G ; Jones v. doubtless, the full period during Thurmond, 5 Tex. 318. which a pledgee is permitted to sue 2 See redemption applied after on the secured debt or engagement, pledgor's death to a life-insurance which is, in general, six years. Whe- policy. § 239. Ian v. Kinsley, 26 Ohio St. 131. A " lb. Mere lapse of time, in leav- period longer or shorter is in some ing a pledge in pledgee's hands, with- States prescribed by statute. See out equitable estoppel does not de- U. S. Dig. 1st series, Bailment, 370. 251 § 251 THE LAW OF BAILMENTS. [PART IV. The pledge having been made and possession kept, the pledgor cannot, though limitation has run against the debt, recover possession in any event without payment or tender of the debt.^ And even thus, it is to be borne in mind that the pledgee, even upon the theory of a bailment through the whole intervening period, might not be actually charge- able if the thing were lost. Where, however, the pledgor's object is rather to compel the account of a certain surplus received from the sale or collection of the pledge than to make profit from an unex- pected rise in the value of securities once presumably relin- quished to the pledgee, and duly disposed of, equity regards his bill with much more favor, notwithstanding a long delay in bringing it.^ And, in general, should an incorporeal col- lateral fall due long after the pledgee's right to sue the princi- pal debt has become outlawed, and the pledgee make collection thereof, the Statute of Limitations may be said to run against the overplus above his own secured claim, from the time of such collection.^ Though the Statute of Limitations may have barred the pledgee's action on the principal engagement, his right to hold the security is not impaired.* § 251. The Same Subject. — A pledgor may doubtless waive his right of redemption by expressly consenting, upon default, that the pledgee shall sell the pledged chattels, satisfy him- self out of the proceeds to the extent the pledge contract pro- vided, and account for the balance to the pledgor.^ And the In "White Mountains R. v. Bay State 680 ; Fennell v. McGowan, 58 Miss. Iron Co., 50 N. H. 57, the pledgors of 261. bonds secured by mortgage were al- i Hudson u. "Wilkinson, 61 Tex. 606. lowed to redeem the bonds after the 2 gee Hancock v. Franklin Ins. lapse of fifteen years, although the Co., 114 Mass. 156; "White Moun- pledgee had meanwhile foreclosed tains R. v. Bay State Iron Co., 50 the mortgage. And see Hancock v. N. H. 57. Franklin Ins. Co., 114 Mass. 155. 3 See Hancock v. Franklin Ins. But in "U^aterman v. Brown, 31 Penn. Co., 114 Mass. 155. St. 161, the pledgor of certain bank * Roots v. Mason Co., 27 W. Va. stock was not allowed to redeem 483. after six years from the maturity ^ 114 Mass. 155 ; Stevens ». Bell, 6 of the note it was given to secure. Mass. 339, per Parsons, C. J. ; supra, See Lockwood v. Brantley, 103 N. Y. § 248. 252 CHAP. IV.] PLEDGE OR PAWN. § 253 same doctrine applies, at his election, in case of a tortious sale of tlie pledge.^ A pledgor's right to a balance above the sale is always favored.^ ^ 252. Pledgor's General Right to Pledge on Fulfilment of Secured Undertaking. — But, to speak more generally of a pledgor's rights on maturity of the principal engagement, he is entitled to a restoration of the pledge property, or (if left for collection) of its proceeds, whenever he has, volun- tarily or on compulsion, fulfilled the secured engagement, or made payment or tender of all that was due from him under the bailment;^ provided, of course, he has not previously debarred himself from pursuing the pledge on any of the grounds already considered. F'or the rule is, that a pledge ceases to be operative when its object is effected, and the whole beneficial interest in the security pledged then vests absolutely in the equitable owner.* In other words, the alternative wdiich obliges the bailee to redeliver has now arrived. § 253. The Same Subject ; Tender of what was due, etc. — As to sufficiency of tender, the usual rules here apply. A tender of whatever is due on the appointed day, or any other right- ful and seasonable tender although made after maturity, will put an end to the pledge relation, and render the pledgee's longer detention of the thing inexcusable, and his refusal or unreasonable delay to give it up on demand tantamount to conversion .5 The pledgee's sale for non-compliance with conditions which he had no right to superadd, or after the pledgor has made satisfaction or tender of all that was right- fully due under the pledge contract, is certainly tortious.^ 1 Fletcher v. Harmon, 78 Me. 465. Doak v. Bank of State, 6 Ire. 309 ; 2 Loew V. Austin, 140 Penn. St. McCalla v. Clark, 65 Ga. 53 ; 41 41; 52 N. J. Eq. 400. Minn. 146 ; Geron v. Geron, 15 Ala. 3 Blackwood v. Brown, 34 Mich. 558 ; Mayo v. Avery, 18 Cal. 309 ; 4 ; cases iii/ra. Mitchell v. Roberts, 17 Fed. B. 776, * Ward V. .Ward, 37 Mich. 253 ; See as to misappropriation, §§ 210, Stuart V. Bigle'r, 98 Penn. St. 80 ; 131 218. Mass. 14. « Pigot v. Cubley, 15 C. B. n. s. 6 M'Leanr. Walker, 10 Johns. 471 ; 702; Hope v. Lawrence, 1 Hun, 317. Lawrence v. Maxwell, 53 N. Y. 19 ; 253 § 253 THE LAW OF BAILMENTS. [PART IV. And as the pledgee by refusal or delay transcends his bail- ment he becomes liable absolutely for all subsequent loss or depreciation of the pledge while in his custody.^ But tlie pledgee's bare offer to redeem, unaccompanied by the tender of what he owes, will not suffice ; ^ nor will any partial tender.^ Nor is the pledgee favored in any effort to obtain redress short of discharging all that he owed under the security."* Where the pledgee has not dealt wrongfully with the thing, and especially if his rights have become jeopardized by the pledgor's own default, courts disincline to construe into a technical refusal on his part mere wavering or dilatory conduct when tender is made him ; and time, in such cases, ought to be allowed for computing the items pay- able on a long or difficult open account.^ A surety or indorser holding property for his indemnity may, upon demand, require a like reasonable opportunity to learn his status ; and so in a pledge of which some third party was permitted to keep the actual custody.^ But it is otherwise where no rational cause for delay exists, and the pledgee appears inclined to evade his legal duty.'' As for methods of tender, the pledgor is protected against wrong and oppression. Thus, the tender of a larger amount than what was owing, for the sake of preventing litigation, will not readily be construed into an admission of liability to that amount.^ And if the tender were made too soon, the pledgee may be deemed to have waived that objection un- less he asserted it.^ Unreasonable non-compliance with the pledgor's sufficient tender is available not only to the 1 Loughborough v. McNevin, 74 ^ See Dewart v. Masser, 40 Perm. Cal. 250. St. 302. 2 Potter V. Thompson, 10 E. I. 1. ^ Fisher v. Brown, 104 Mass. 259. 8 See Kittera's Estate, 17 Penn. s Talmage v. New York Bank, 91 St. 416; Hailowell v. Blackstone N. Y. 531. Bank, 154 Mass. 359. 9 Wyckoff v. Anthony, 90 N. Y. * Hinckley v. Pfister, 83 Wis. 442, where the tendet was made on 64. the day when the note became due, ^ Dunham v. Jackson, 6 Wend, without waiting for days of grace to 22 ; McCalla v. Clark, 55 Ga. 63. expire ; and whether this was too early, qiicere. See also 100 N. Y. 248. 254 CHAP. IV.] PLEDGE OR PAWN. § 254 pledgor but to those acquiring rights to the thing under his title.i § 253 a. Obligations of Pledgor and Pledgee Concurrent and Reciprocal — In all such cases the obligations of pledgor and pledgee are mutual, concurrent, and reciprocal ; either party is entitled to performance as a condition of his own perform- ance. And the refusal of either to perform, where perform- ance is tendered by the other, furnishes good ground for action, Avhile at the same time neither can safely stand upon a mere willingness as the standard of his rights.^ § 254. The Same Subject; Suit for Repossession. — Upon full satisfaction of the secured indebtedness, or the tender thereof, besides a demand for the pledge, followed by the pledgee's refusal without good reason to redeliver, the pledgor may sue for the thing pledged in trover, or perhaps replevin.^ He may recover the pledge or its value without keeping the tender good or bringing the money into court, and so may put the pledgee to his own remedies.* And, if he once gets repossession of the thing under such circumstances, he has good cause for maintaining it.^ Where, plainly, nothing more was owing on the pledgor's part, while the pledgee had wrongfull}' misappropriated the thing, demand might be dis- pensed with as useless ; and, indeed, upon the pledgee's wrongful transfer or conversion of the pledge, the pledgor has been sometimes permitted to sue without even tendering what he owes.^ But, as we have elsewhere seen, the bailee in pledge is now favorably viewed by the law to the extent of a secured demand still subsisting ; so that, in order to avoid circuity of action, he or his transferee may generalh' recoup such demand against the pledgor's claim of damages as for conversion. 7 And, generally speaking, where no wrongful 1 Norton v. Baxter, 41 Minn. 146. ^ Qeron v. Geron, 15 Ala. 558. 2Cassv. Higenbotam, 100N.Y.248. « Story Bailm. § 34<.» ; Cortel3'ou 8 M'Lean v. W^alker, 10 Johns, v. Lan.sing, 2 Cain. Gas. in Err. 200 ; 471 ; Fisher v. Brown, 104 Mass. 259. Stearns v. Mar.sh, 4 Dciiio, 227; * Mitchell V. Roberts, 17 Fed. R. Lucketts v. Town.send, 3 Tex. 119. 776 ; Loughborough v. McNevin, 74 ' Supra, § 210 ; Donald v. Suck- Cal. 250. ling, L. R. 1 Q. B. 585 ; Johnson v. 255 § 255 THE LAW OF BAILMENTS. [PART IV. transfer or conversion appears, the pledgor, although he has paid all he owed, ought to make a demand before suing ; ^ and still less is he justified in suing as for conversion where he has not made or tendered payment at all.^ A pledgee's special transfer of his principal claim against the pledgor is held, however, to preclude him from using this by way of offset or counter-claim.^ The damages recoverable in trover are such as will make the pledgor whole ; or, in general, the value of the pledge less what may prove due from him to the pledgee under the bailment.^ § 255. The Same Subject. — One who has taken property in pledge for becoming a surety upon his pledgor's bond cannot, when called upon to restore the chattels after the pledgor has fulfilled all conditions, set up technical objections to the in- strument, of which the obligee did not choose to avail him- self.^ Nor can any pledgee claim to retain the pledge, in order to secure new debts, or so as to apply it to different objects than those for which it is confided to him.^ As a rule, he has no right to dispute his bailor's ultimate title to the thing; but to this an exception may arise where the true owner makes such a demand upon the pledgee that the latter cannot disregard the paramount title without peril ; for, as Stear, 15 C. B. n. s. 7-30 ; Halliday v. Rankin v. McCuUough, 12 Barb. 103 ; Holgate, L. K. 3 Ex. 279; Talty v. Conyngham's Appeal, 57 Penn. St. Freedman's Savings Co., 93 U. S. 474. See, further, as to damages, 321 ; Van Blarcom v. Broadway Cushman v. Hayes, 46 El. 145 ; Han- Bank, 37 N. Y. 540; Bulkeley v. cock v. Franklin Ins. Co., 114 Mass. "Welch, 31 Conn. 339 ; Brightman v. 155 ; 55 N. J. L. 296 ; Fowle v. Ward, Reeves, 21 Tex. 70 ; Davis v. Funk, 113 Mass. 548 ; Gilson v. Martin, 49 39 Penn. St. 243 ; Belden v. Perkins, Vt. 474 ; Smith v. Savin, 141 N. Y. 78 111. 449. 315, vphich discourages damages where 1 Auld V. Butcher, 22 Kan. 400. the pledgor has suffered no loss. 2 Cumnock v. Institution for Sav- As to the pledgor's election to ings, 142 Mass. 342, abide by the sale or collection, and 3 Strong V. Nat. Banking Associa- suing as for money had and received, tion, 45 N. Y. 718. see Mayo v. Peterson, 126 Mass, 516 ; 4 For a wrongful sale, a pledgee of Union Bank v. Roberts, 45 Wis. 373 ; stock has been held liable both for post, § 260; 78 Me. 465. the stock itself and all the profits he ^ Blackwood v. Brown, .34 Mich. 4. had made in the sale. Langton v. ^ Post v. Tradesmen's Bank, 28 Waite, L. R, 6 Eq, 165. And see Conn. 420 ; Teutonia Nat. Bank v. Hunsaker v. Sturgis, 29 Cal. 142 ; Loeb, 27 La. Ann. 110. 256 CIIAl'. IV.] PLEDGE OR PAWN. § 257 between his own pledgor and strangers tlms asserting title, his only safety is in neutrality.^ § 250. What the Pledge protects ; Expenses, etc. — The pledge is understood to proteet not only the debt or engage- ment itself, but aceumulating interest, if any, and all reason- able and necessary expenses incidental to the pledgee's posses- sion ; and this seems to include even sucli interest as might be awarded on equitable grounds through the unjust delay of the pledgor in performing according to his undertaking.^ Never- theless the common law here furnishes little firm soil to tread upon ; and inferences must be drawn, in the absence of ex- press contract or usage, chiefly from the civil law and general reasoning.-^ Expenses properly and reasonably incurred in realizing on the pledge or in protecting it against liens and taxes and in rendering it available are allowed by the latest decisions.'* § 257. Rule as to Future Advances, etc. — As to future ad- vances to be made or liabilities to be incurred by the pledgee, there is no doubt that the pledge parties may, by agreement, so extend the pledge security as to cover these as well as present advances and liabilities : whereby we may sometimes find a bailee held to a pledge liability as custodian for a loss 1 Cheesman v. Exall, 6 Ex. 341. v. British Empire Shipping Co., 8 And sec Wliitlock v. Stewart, 15 Ala. H. L. Cas. 338, 345. But see § 128 ; 601 ; Duell v. Cudlipp, 1 Hilt. (N. Y.) Devereux v. Fleming, 53 Fed. 401. 106. This is the usual rule of bail- And yet a hirer's lien for his com- ment. Supra, § 22. pensation is an excrescence, and less 2 Story Baihn. §§ .306, 357, 358 ; 2 an incident of the bailment contract Kent Com. 583 ; Kerr's Policy, in re, itself than a pledgee's right to hold L. R. 8 Eq. 331 ; 1 Domat, 3, 1, 3 ; continuously or realize, upon the Hurst V. Coley, 22 Fed. R. 183. pledgor's default, for his own secur- 8 As against the allowance of in- ity. Third Nat. Bank v. Boyd, 44 terest or expenses ex morfi may be Md. 47 ; Wilcox v. Fairhaven Bank, cited a modern English decision, af- 7 Allen, 270. firmed in the House of Lords, which * § 215; 22 Fed. 183 ; IG Neb. 502 ; denies to a bailee for hired work on a Furness v. Union Bank, 147 111. 570. thing the right to bring under his lien Lu-luding a reasonable attornp^y's fee. for service a charge for keeping the G7 Fed. 837. So may extra compen- thing till his debt is paid ; this being sation be claimed in a proper case, in truth, as Lord AVensleydale ob- Goodwin v. Mass. Trust Co., 152 served, a charge for keeping the thing Mass. 189. for his own exclusive benefit. Somes 17 257 § 258 THE LAW OF BAILMENTS. [PART IV. occurring at a moment when, in point of fact, the pledgor had ceased to owe him an3^thing. This rule is, at our law, subject to some qualifications in favor of subsequent parties acquiring rights in rem ; and the better opinion is that as to these, in the absence of positive evidence showing that the pledge was intended by the pledge parties to serve as col- lateral security for future loans or engagements, the pledgee must restore the thing upon receiving full satisfaction of the original debt or engagement.^ Yet so desirable is it thought in these days to avoid circuity of action, that, between pledgor and pledgee alone, the circumstance of making a new loan or incurring a new liability, while the pledgee holds the se- curity, raises a presumption in his favor, that the pledge was mutually designed to secure the subsequent, as well as the original, loan or liability .^ The Roman law is supposed to have permitted a pledgee to insist upon the full satisfaction of all that might be due him on a general reckoning before giving back the pledge ; but every such presumption of mutual intention is easily disturbed where proof exists to overthrow it.^ At all events, a pledge transaction with reference to a certain debt or engagement does not justify the pledgee in holding the pledge for another debt or en- gagement.^ § 258. Equitable Remedies on a Pledgor's Behalf. — The pledgor's action at law, for repossession of the pledge, or damages as for its loss or detention, affords him, in general, an ample remedy as a party aggrieved.^ But while, for this reason, equity will not commonly interfere on his behalf, in case of his pledgee's misconduct, it will, in a fit case, enjoin the pledgee's wrongful sale of collateral securities, and com- 1 2 Kent Com. 584 ; 1 Atk. 236 ; 3 story Bailm. § 305 ; Pothier Con- Jarvis v. Rogers, 15 Mass. 389 ; Petti- trat de Naiitissement, n. 47. bone V. Gri-swold, 4 Conn. 158 ; Van * Supra, § 178; Woolley v. Louis- Blarcom v. Broadway Bank, 37 N. Y. ville Banking Co., 81 Ky. 527 ; post, 540. § 263. 2 See Gilliat v. Lynch, 2 Leigh, ^ See Doak v. Bank of State, 6 Ire. 493 ; 2 Vern. 691 ; 2 Kent Com. 584 ; 309 ; Taylor v. Turner, 87 111. 296. Story Bailm. § 304. 258 CHAP, rv.] PLEDGE OR PAWN. § 2G0 pel their specific redelivery to a pledgor who has discharged his full duty. This is a remedy peculiarly appropriate to family relics, and other things of intrinsic value wliose loss cannot be well compensated in damages, and to such com- plex transactions as involve the taking of mortgage notes or of a life-insurance policy as security.^ § 259. What i3 to be restored ; Mutual Adjustment when Bailment ends. — The identical thing pledged is, in general, what should be restored to the pledgor when tlie bailment terminates.^ And the thing should be restored in good con- dition ; subject, however, to such loss or damage as may possibly have occurred, imputing to the bailee neither fraud nor the lack of ordinary care and diligence in the course of the transaction.'^ If the pledgee pays or accounts honestly for its full value, and the same is duly accepted, he acquires the pledgor's title to the thing.* The net income, profits, increase, and advantages derived from the pledge ouglit to be restored with the pledge, or duly accounted for.^ § 260. The Same Subject. — Supposing the pledge to have been sold, or collected in whole or in part b}^ the pledgee, such sale or collection being rightful, or the pledgor electing to treat it so, an account of the proceeds may be needful, in order to establish whether the pledgor shall have a certain surplus or be obliged to make up a certain deficiency. Since such proceeds are properly applied, first, to the satisfaction of the secured indebtedness or engagement, with its inci- dentals, in other words, to the pledgee's use ; second, as con- cerns a surplus, if any, to the pledgor's use ; the pledgor may 1 Brown v. Runals, 14 Wis. G93 ; Cal. 00, and Langton v. White, L. R. Knox V. Turner, L. R. 9 Eq. 155. Eq. 105 ; Dykcrs v. Allen, 7 Hill, Shares of stock standing in the name 407 ; Lawrence v. Maxwell, 53 N. V. of a testator who, in fact, held them 10 ; Squier v. Squier, 30 N. J. Eq. G27. merely as collateral security for a ^ Supra, §§ 204-209. note of his son, one of the executors, * Thompson v. Toland, 48 Cal. 99. were ordered transferred to the son ^ 2 Kent Com. 578 ; IMcrrifield v. on his paying the note. Squier v. Baker, 9 Allen, 29 ; Gilson v. Martin, Squier, 30 N. J. Eq. 027. 49 Vt. 474 ; Ilunsakcr r. Sturgis, 29 2 But, as to the restoration of stock Cal. 142; supra, § 212; Houton ». pledged, cf. Thompson v. Toland, 48 Holliday, 2 Murph. 111. 259 § 261 THE LAW OF BAILMENTS. [PAET IV. recover the surplus rightfully his, in an action, as for money had and received.^ And if the pledgor has made full pay- ment and satisfaction outside of the security, the full proceeds of that security should be his ; such an action ratifying in effect the pledgee's sale or collection. But, in order to main- tain his cause, the pledgor must know clearly what to tender or demand ; and hence, if the true balance be in uncertainty because of numerous and complicated or disputed items, pro- ceedings in equity for account would be the pledgor's more appropriate remedy .^ § 261. The Same Subject. — Should the pledge be lost or injured through the failure of the pledgee to use due care and diligence, or his other remissness of duty, the pledgor may bring a special action for damages.^ But the practice is not uniform, as to permitting the pledgor to set off such loss or injury when sued on the principal debt.* Where the pledgee sues his pledgor for wrongfully taking the pledge out of his possession, or keeping its custody in violation of some special trust reposed in him, the latter cannot set up in defence the pledgee's conversion of other securities held for the same purpose, but must bring a separate action.^ Yet in reason the pledgee thus suing him ought not to recover in damages more than will make him whole as to the unsatisfied portion of the secured debt or engagement.^ When the pledgee sacrifices by a total sale marketable securities whose partial sale would have sufficed to discharge all the pledgor's indebtedness, he incurs the risk of having to 1 Hancock v. Franklin Ins. Co., to simplify common-law procedure 114 Mass. 155 ; Ovei-street v. Nunn, in such cases. See Faulkner v. Hill, 36 Ala. 6G6 ; Stearns v. Marsh, 4 104 Mass. 188. Denio, 227 ; Union Bank v. Roberts, 3 May v. Sharp, 49 Ala. 140. 45 Wis. 373 ; 126 Mass. 516. Whether * lb. ; Winthrop Bank v. Jackson, such surplus may be recovered by 67 Me. 570 ; Lambertson v. Windom, way of set-off when the pledgor is 18 Minn. 232 ; Reeves v. Plough, 41 sued, see 51 Vt. 378. Ind. 204. 2 Conyngham's Appeal, 54 Penn. » Hays v. Riddle, 1 Sandf. (N. Y.) St. 474 ; Stephens v. Hartley, 2 Mon- 248. tana, 504; 1 Story Eq. Jur. § 506. « Sheldon t;. Southern Express Co., But the practice in some States tends 48 Ga. 625. 260 CHAP. IV.] PLEDGE OR PAWN. § 263 compensate the pledgor for liis loss in replacing the securities thus sold in excess.^ § 262. The Same Subject. — If the pledgor lias assigned his own interest in the pledge, and, by mutual consent of the assignee and pledgee, the pledge is afterwards sold, the pledgee cannot set off against such assignee who sues for the surplus proceeds, debts or engagements of the pledgor not embraced under the pledge at the time of the assignment.^ § 263. Extinguishment of Pledge ; Satisfaction, Renewal, etc. — In fine, the contract of pledge becomes extinguished, ac- cording to universal principles, b}"- the complete discharge of the debt or engagement thereby secured, together with such incidental charges or expenses as may have lawfully accrued. And since discharge and satisfaction may take place, not only by one's receiving complete payment and ful- filment, but by his taking a higher or different security, by releasing and waiving his rights, or through operation of law, it will readily be inferred that the pledge contract may be extinguished in a corresponding variety of ways.^ Thus where the pledgee takes other property in full settlement of the secured debt, a release of the pledge results.* After the discharge and extinguishment of the pledgor's main debt or engagement, in any of these modes, the pledged property will presumably revert at once to the pledgor, and the pledgee, as such, can have no further right to hold it.^ For a pledge can only be held for that which it was given to secure. And as to the proceeds of pledge securities sold or collected, which remain in the pledgor's hands, the rule is similar.^ But satisfaction is to be distinguished from a mere renewal or extension of the note or obligation which the pledge was 1 FitzRerald v. Blocher, 32 Ark. 742. » See Story Eailm. §§ 359-.'?G5. If a pledfjee without his pledgor's * Dupee v. Blake, 148 111. 45:5. consent renews, extends, surrenders, ^ lb. ; Merrifield v. Baker, 9 Allen, or sub-stitutes a note pled,!j;ed as col- 29; 62 Ga. 271 ; Mayo v. Avery, 18 lateral, he must account to his pledgor Cal. 309; Hathaway v. Fall Kiver in full. 41 Neb. 754. Bank, 131 Mass. 14. 2 Van Blarcom u. Broadway Bank, ''See Rust v. Hausett, 41 N. Y. 37 N. Y. 540. Super. 467. 261 § 2G4 THE LAW OF BAILMENTS. [PAllT IV. meant to secure,^ for such renewal is not presumed to dis- cliaro-e the security .^ Taking a new note for an old one dis- charo-es presumably the old debt ; but this is only a question of intention ; and accepting a new note for a secured debt cannot be presumed any such discharge of the latter as to forfeit the security .^ And novation, or the taking of new security, will operate, if so intended by the parties, as simply a continuance, or, perhaps, a renewal of the pledge contract.* So far as concerns pledgor and pledgee alone, there might be a series of obligations incurred and of pledges for security, stretching on indefinitely ; and the main issue throughout is that of their mutual intention. § 264. General Conclusion as to Pledge; Equity Principles. — This whole doctrine of pledge is one which has unevenly developed at the common law ; and our rules are frequently derived from the Roman law of pledge, which, however, in many points differs from our own ; or else we borrow from the analogies of the chattel mortgage. Regarded as a bail- ment, the transaction imposes on the pledgee the duty of accounting for proceeds, if not of delivering back or over, in all cases where the bailment purpose has been fully accom- plished; and should he continue against his pledgor's will to hold the thing after the bailment has properly terminated, his liability m rem, we may fairly assume, is like that of any other bailee for mutual benefit who wrongfully detains the thing which another intrusted to him for some special tem- porary purpose. The modern transaction of pledge or collateral security, we may finally add, involves often some intricate details ; 1 Pigot V. Cubley, 15 C. B. n. s. peal, 94 Penn. St. 309 ; Case v. Fant, 701 ; Wads worth v. Thompson, 8 111. 53 Fed. 41. 423 ; 132 111. 120 ; 70 Md. 343 ; 3 Not even though the new note Thompson v. Toland, 48 Cal. 99. And should include a new debt or the re- see Alliance Bank, ex parie, L. R. newal take place after the pledgor's 4 Ch. 423 ; Levi's Case, L. R. 7 Eq. death. Cotton v. Atlas Bank, 145 449. Mass. 43. 2 Collins V. Dawley, 4 Col. 138 ; * Girard Ins. Co. v. Marr, 46 Penn. Union Bank v. Slocomb, 34 La. Ann. St. 504 ; 82 Tex. 368 ; 87 Ga. 339. 927 ; Shrew.sbury Institution's Ap- 262 CHAP. IV.] PLEDGE OR PAWN. §264 but general maxims of equity in aid of the principles we have set forth in this chapter will readily solve them for the most part; a further difficulty arising from the application of those rules to so many modern kinds of incorporeal personal prop- erty. The fair priorities among parties in or out of posses- sion, hand fide conduct pursued to one's disadvantage without some notice which another who claims adversely should have given but did not, and the convenient practice of simplifying remedies in court by allowing one to recoup and counter- claim, all find scope in our present law of pledge ; and the object to be steadily kept in view, in comparing such cases, is to do justly and equitably by all concerned, so far as the circumstances permit.^ 1 Courts of equity have to deal with some of the more perplexing cases which involve dealings in pledge or collateral security. Thus, where a pledgee, having parcels of stock owned by different persons, wrong- fully repledges them as collateral for a loan, equity requires that the re- pledgee be satisfied, not out of the stock of any one owner, but so as to distribute the burden equitably among all the owners. Gould v. Central Trust Co., G Abb. (N. Y.) N. Cas. 381. And if a creditor holding his debtor's note, and also the note of another person as collateral, trans- fers them after maturity to different persons, the rights of the transferees (the rule of negotiable paper not here applying) must depeud upon the pri- ority of the transfers. Ware v. Kus- sell, 57 Ala. 43. For late instances of peculiar transactions by way of pledge, see Foster v. Berg, 104 Penn. St. 324 ; Callanan v. Smart, GO Iowa, 305 ; Davis v. Carson, G9 Mo. GOO ; Farwell v. Importers Bank, 90 N. Y. 483 ; Brown v. Merchants Bank, 4 Ohio St. 445 ; Foster, ex parte, 20 S. C. 179 ; Means v. Bank of lian- dall, 14G U. S. G20 ; Falmouth Bank V. Cape Cod Canal Co. IGO Mass. 550. 263 § 265 THE LAW OF BAILMENTS. [PART V. PART y. EXCEPTIONAL BAILMENTS FOE MUTUAL BENEFIT. POSTMASTERS AND INNKEEPERS. CHAPTER I. POSTMASTERS. § 265. Exceptional Bailments in General ; the Public Voca- tion for a Recompense. — Under the three several heads of which we are henceforth to treat in the present volume, the law comprehends all bailments of personal property to those who, in the due course of business, receive such property in one or another of these three capacities : as Postmaster, as Innkeeper, and as Common Carrier. Bailees of these three classes are essentially, as concerns the transaction in point, bailees for mutual benefit, deriving a compensation for their trouble, and undertaking to perform a beneficial service in return. But the common doctrines of bailment responsibility here fail us ; for the law asserts an exceptional rule, from a regard less to the private intention of bailment parties than to the pregnant circumstance that the particular bailee has accepted the thing while in the exercise of an important vocation which, consistently with the public welfare, must be treated as a public trust. The exceptional bailment of the thing is made to one who shall perform, not on his simple individual undertaking, but as one of a well-recognized class. Such a bailment necessitates, however, a hiring, an employ- ment for reward. For, should an innkeeper give a stranger a bed in his house out of charity, or a common carrier take 264 CHAr. 1.] POSTMASTERS. § 266 a a package gratuitously to its destination, this would consti- tute a bailment out of his course of business ; and, the com- mon incentive of a business compensation wanting, his bailment responsibility would not be such as we are now to consider, but that of a mere private individual, and, in fact, of a gratuitous bailee.^ § 260. Postmasters, Innkeepers, and Common Carriers to be considered in Order. — Compensation, however, enters very differently into the transaction of the government post-office business, and the carriage of the mails, from what it does where innkeepers and common carriers are concerned. And, for reasons to appear in the course of discussion, our excep- tional mutual-benefit bailments are of two fundamentally distinct classes. I. That of Postmasters, or the public bail- ment to government agents, where the bailee's legal accounta- bility must be exceptionally small. II. That of Innkeeper and Common Carrier, or the bailment to private parties exer- cising a public vocation, where the bailment accountability must be exceptionally great. By this, however, we are not to understand that the exceptionally great responsiljility im- posed upon innkeepers and common carriers ranges within precisely the same limits for both pursuits. In the case of Postmaster there is a vocation exercised by government, by the public ; in the other two instances there is a vocation carried on by private persons, but guarded peculiarly by pub- lic policy. § 266 a. Elements of a Public Vocation exercised by Private Persons. — The three distinguishing elements of a public bail- ment vocation are these, as the courts have defined and applied the law: (1) The bailee must serve the public alike and not select patrons at pleasure ; a condition quite unlike the usual pursuit of business by private individuals. (2) He is held to an exceptional degree of responsibility, which approxi- mates insurance ; but, as we shall presently see, does not necessarily coincide in the case of Innkeepers and Common Carriers. (3) By way of offset or limitation to these con- 1 See §§ 285, 298, 313. 265 § 2G7 THE LAW OP BAILMENTS. [PART V. ditions, the bailee may always claim his reasonable recom- pense in advance ; and hence his service to the public alike does not compel him to take any risk of pecuniary loss from strange patrons. These three elements where private per- sons exercise, will be developed in discussion later.^ § 267. Postmasters ; Nature and Origin of Mail Transporta- tion. — And first, as to Postmasters, the main subject of the present chapter. The business of mail transportation is essen- tially forwarding, or, as the law would now term it, carrying things ; and on our Pacific slope but a few years ago, before railways spanned the American continent, private companies took a large share of this business and its profits, because they had better facilities than government for making quick delivery, and offered more ample insurance against loss.^ Government carries the mails as the bailee of chattels. Not only may a letter enclose money and valuables, but letters themselves are personal property; so, too, are newspapers, cards, and manuscripts, not to mention those miscellaneous articles of moderate weight which under our later acts of Congress are permitted to swell the mail-bags, to the lessen- ing of the public revenue, in order that government may become the cheap transporter of small wares for popular convenience. In all these instances, whether it be for the conveyance of written sheets of paj^er or merchandise sam- ples, a bailment takes place, whose purpose is to transmit the thing and deliver it at the point of destination according to the bailor's directions ; the government, represented by 1 And see §§ 333-335, as to the telegraph, telephone, gas and water probable Roman origin of a public companies, not strictly of the bail- vocation as applied so universally to ment character, but subject to like Innkeepers and Common Carriers, considerations of policy. See West- A legislature may by enactment give em Union Co. v. Dubois, 128 111. 248. the like character of public vocation And as to sleeping-car companies, see wholly or partially to other analo- § 353. gous pursuits where favoritism would 2 gg^ Hayes v. Welles, 23 Cal. be injurious to the public ; and in- 185, which requires the sender of a deed as to the first and third elements valuable article by letter to give alone we see an inclination to apply notice to the company which trans- the law of the text to the business of ports it. 266 CHAP. I.] rOSTM ASTERS. § 208 designated officers, becomes the bailee ; and the postal stamp indicates the bailment compensation taken in advance, whieh, as the pivot of our present discussion, we are to observe, con- stitutes in these days the revenue, not of the officer, but of the government which employs him. Whence is derived this exceptional responsibility at our law, narrowing down, as it appears, to a practical immunity from the consequences of careless transmission, where prop- erty is received in bailment at the post-office ? Not from any mysterious significance attached to the business itself, which might in any country be left to private individuals, nor, as we apprehend, from a public policy Avhich singles out bailors of this class as especially suitable for bearing their own losses. It comes from this admitted state of things in Great Britain and the United States : that government car- ries on the post-office ; and the sovereign authority, on broad reasons of policy, refuses to submit its conduct to judicial inspection, or to respond to the suit of any private indi- vidual. The bailor who suffers from maladministration may have abstract right on his side ; but the courts are shut to him, and consequently his legal injury is without the means of redress. As for the individual postmaster, he is but a public agent, or servant of the government, and under the usual rules of master and servant he should not answer per- sonally for the merely careless performance of his master's business. In a word, the legal situation is that of a trun- cated agency : of an agency where legal process cannot reach the principal, if the bailor suffers an injury through care- less transmission. § 268. History of Mail Transportation — The custom of providing public facilities for sending despatches, or placing at intervals public couriers to run from station to station, — from which placing comes our word post^ — was not unknown to Rome under its first emperors ; nor, indeed, to nations of far more remote antiquity.^ But the ancient post was main- 1 Darius, king of Persia, more tian era, connected his capiUils, Susa than live centuries before the Chris- and Ecbataua, with the most distant 267 § 268 THE LAW OF BAILMENTS. [PAET V. tained for the special convenience of rulers, not the ruled ; and the same appears true of the post establishments which Charlemagne and other rulers of the Middle Ages maintained in continental Europe. So useful an appendage of sover- eignty could not but become of private service to persons high in authority at a time when the community kept up its moderate correspondence by the uncertain hand of messengers, travelling friends, peddlers, carriers, and itinerants generally. In England, as early as the reign of Edward I., all royal messengers for the delivery of despatches throughout Eng- land and in other parts of the king's dominions beyond the seas were placed under the supervision of a particular officer of the king's household ; whence came, in the course of years, the institution of a postmaster-general, and a gradual extension of the postal service by royal proclamation and orders in council, until merchants and the general public were fairly accommodated; the crown finding its advantage in gaining a handsome revenue from carrying private de- spatches, letting the post-horses to hire, and transmitting packets of moderate size. From the accession of Scotland and the colonization of America dates a rapid and systematic increase of the postal facilities of Great Britain, in further- ance of a far-reaching mercantile policy; and during the civil wars of the Stuarts, whether king or parliament won, the post-office was cherished by all parties for its revenue and the general convenience thus afforded to the citizens. As a legalized and permanent branch of public administra- tion, its benefits were, at times, however, farmed out to individuals ; and one result of the postal system, which par- liament in those days did not blush to call a blessing, was, that it enabled officers of state, by prying into the correspondence intrusted to them, to detect treasonable plots and conspira- cies. The act of 12 Charles II. c. 35, upon which some have based our modern postal system, simply codifies and parts of his empire, by post-roads, the king's name, and relays of cou- along which were buildings for ac- riers to convey royal messages. See commodating those who travelled in Smith Hist, of Greece, 51. 268 CHAr, I.] POSTMASTERS, ' § 2G9 places upon a more systematic footing for Great Britain an establishment whose cracUc is shrouded in remote centu- ries.^ As regards the American Colonies a royal postal system on a comprehensive scale was projected early in the eighteenth century. This was organized by Franklin, wliom the liritisli crown selected as colonial postmaster-general ; and, by the outbreak of the Revolution, it had become so indispensable to the community, that the Continental Congress would not, in the interest of the American public, suffer the office to lapse when our Colonies declared their independence of Great Britain. Under our Articles of Confederation, and still later the Constitution of the United States, the power to establish post-offices was, by common consent, vested in the United States. Constantly, then, was our post-office maintained on its continental or national footing, so that the line of Ameri- can postmaster-generals can alone, among our present Federal officials, be traced directly back to royal appointment and the days of Queen Anne.^ § 269. Theoretical Bailment Responsibility of Government. — Thus closely is the postal system subservient to sovereign power. Were government lawfully and constitutionally to monopolize railway traffic, the same practical bailment im- munity would at once result, unless the legislature ordered it otherwise, in which case a vast burden of litigation would ensue, all of which suggests a strong argument against mak- ing government a common carrier at all. But to a partial extent statutes now afford legal redress to individuals who 1 See Encycl. Britt. " Post-oflSce " ; carry mailable matter where post- New Am. Cycl. " Post." routes are established. Blackburn 2 lb. ; Articles Confed. art. 9 ; v. Gresham, 10 Fed. R. 609. And it Constitution of United States, art. 1, is a penal offtMice to detain, delay, or § 8. The general power of the Con- open the mails. 17 Fed. R. 837. gress of the United States to regulate Modern legislation in England mo- at discretion the transmission of mat- nopolizes the postal and the telegraph ter through the mails is strongly up- and telephone business on behalf of held in the recent case of Jack.son, government. § 272, n. ex parte, 96 U. S. 727. United States statutes forbid private expresses to 269 § 270 THE LAW OF BAILMENTS. [PART V. encounter injury in the course of their contract dealings with supreme authority.^ Should a common-law country ever submit to a legal expo- sition the rightful standard of government responsibility to individual bailors as a mail-carrier, the courts would not prob- ably reckon this at the extraordinary standard of a common carrier (since widely different considerations of public policy apply), but rather at that of ordinary bailees for hire ; while perhaps, were it made to appear, from public tables, that the postage charged the injured individual served not for actual recompense in the bailment, but merely to help defray the necessary costs of a transportation which government carried on at a loss for the benefit of the public, the standard might fall to the register of gratuitous bailment. But that a bail- ment duty of some sort co-exists on the part of government, apart from the adequate means of enforcing it, we cannot reasonably doubt. § 270. Postmasters, Mail Contractors, etc., as Public Servants. — With regard to bringing actions against the individual postmaster-general, or local postmaster, for losses occasioned by negligent transmission through the mails, the fundamental objection is that servants are not, as a rule of law, personally liable in the course of a service performed on behalf of their master. If government, the common master of such parties, will not respond to the individual loser, yet the postal busi- ness, with its incidental profit or loss, is a matter of govern- ment or public concern ; nor, without gross injustice, could public officers, individuals paid out of the treasury as mere agents in an immense concern of public administration, be exposed to a fretting litigation simply because the bailee him- self refused to come into court. The authorities, English and American, are well agreed that, for negligence in the course 1 See U. S. Rev. Stats. § 1059, as permitting the postmaster-general to to jurisdiction of the Court of Claims, consider and adjust petty claims for And see 1 Am. Law Rev. 653, article negligent transmission and loss (lim- by this author. No costs or tortious ited, for instance, to twenty dollars) damages are here allowed. A stat- might well be passed by Congress, ute, like that in force in England, 270 CHAP. I.] POSTMASTERS. § 271 of his usual and understood public employment, a postmaster, or the postmaster-general himself, while acting lionestly and committing no wilful injury, is not personally liable to the sender of articles by mail.^ This rule extends to the duly appointed and sworn deputies and assistants of a postmaster who are engaged in tlie public and not his private service ; since all are servants of one master, as regards the bailment responsibility .2 But should a postmaster or other public offi- cer employ a mere private assistant, as, for instance, a person not sworn into office as the law positively requires, or one whose appointment and compensation have no sanction of statute, he may, in a measure, render himself personally answerable for such a party's carelessness and misbehavior, as being in effect his private employer.^ jMail contractors, too, under like reservations, enjoy this immunity from the suits of individuals who make use of the postal facilities ; for they are servants of the government performing certain duties in connection with other public servants.* § 271. The Same Subject; how far liable. — But the relation of master and servant here, as elsewhere, fails to cloak one's acts which are committed clearly outside the usual or per- mitted scope of service ; whether because the act is tortious or as having been performed by one in no such public capac- ity. Hence, for losses really occasioned by one's negligent management of his private store or dwelling-house, where he happens to keep the post-office, he ought to respond per- sonally.^ So, too, where a letter containing money is taken 1 Lane v. Cotton, 1 Ld. Raym. Wiirgins v. Hathaway, 6 Barb. 632 ; 646, Lord Holt, C. J., dis. ; Whitfield Raisler v. Oliver, 97 Ala. 710. V. Despencer, Cowp. 754, 765, per * Conwell v. Voorhecs, 13 Ohio, Lord Mansfield ; Dunlop v. Munroe, 523 ; Hutchins v. Brackett, 2 Fost. 7 Cr. 242 ; Story Bailin. §;? 402, 463 ; 252 ; Central R. v. Lampley, 76 Ala. Schoul. Dom. Rel. § 483; Keenan v. 357. See Sawyer v. Corse, 17 Gratt. Southworth, 110 Mass. 474; Central 230, where the exemption was held R. V. Lampley, 76 Ala. 357. ^ jb_ inapplicable to a contractor's agent 8 Bishop V. Williamson, 2 Fairf. who was not duly qualified. 496 ; Ford v. Parker, 4 Ohio St. 676 ; « pord v. Parker, 4 Ohio St. 576 ; Schroyer v. Lynch, 8 Watts, 463 ; Raisler v. Oliver, 97 Ala. 710. 271 § 271 THE LAW OF BAILMENTS. [PART V. to be registered to a certain address, and the postmaster finds afterwards that it cannot be registered to that phice, he incurs a personal risk and is not protected in his public capacity if he forwards that letter by mail unregistered ; ^ for he was not thus employed by the sender. And still more clearly does this hold of utterly dishonest, wanton, and fraudulent conduct on his part ; for no sanction of a master or principal can authorize a wrong.^ Should a postal subor- dinate break open letters, embezzle their contents, pilfer, purloin, steal, maliciously destroy, or otherwise commit inju- rious acts to the sender, clearly outside the scope and shelter of his public employment, not only may he be held person- ally liable in damages to the aggrieved party, but so may his principal, if the latter sanctioned or abetted the misconduct.^ In any case it is incumbent upon every postmaster or chief employer whom government intrusts with the superinten- dence and selection of subordinates under him, as well as upon one who employs his private assistants, to make no such careless, reckless, or corrupt appointments, nor to con- duct himself so utterly regardless or reckless of discipline about his ofSce, that justice would be compelled to treat him as a contributor to the active mischief of the subordinate, and so make him jointly answerable for the legal con- sequences.* But, in general, every postmaster who uses due care and vigilance, according to his opportunities, in selecting, retain- ing, and discharging his subordinates, and in superintending the performance of their functions, is no more accountable for their torts and frauds than any stranger.^ 1 Fitzgerald v. Burrill, 106 Mass. 2 ib. ; Ford v. Parker, 4 Ohio St. 446. This seems to stretch analogies 576. under the doctrine of a deviation ^ Dunlop v. Munroe, 7 Cr. 242 ; from bailment. Registered letters, Schoul. Dom. Pel. § 483 ; Wiggins v. however, impose stricter care, con- Hathaway, 6 Barb. 632 ; Schroyer v. sidering circumstances, than unregis- Lynch, 8 Watts, 453 ; Keenan v. tered letters, and sealed letters stricter South worth, 110 Mass. 474. And see care than unsealed circulars, upon Foster v. Essex Bank, 17 Mass. 479. any one receiving with due notice of * lb. such character. See 27 Neb. 38, ^ j^-^ injunction does not lie against 272 CHAP. T.] POSTMASTERS. § 272 § 272. Local Letter-Carriers ; what is "Mail." — City Or local letter-carriers are, by our acts of Congress, authorized to receive letters duly prepaid while going ou their respective routes. And giving a letter thus to a city letter-carrier, which he takes and puts in his bag to be carried to the office, or dropping it in one of the street boxes placed by government for the reception of letters, is virtually a deposit in the mail as much as leaving it at the general post-office. Indeed, as it was recently observed in one of our State courts, the word " mail " means originally, a wallet, sack, budget, trunk, or bag, and, in connection with the post- office, the carriage of letters by whatever means under pub- lic authority. " Mail " referred in early times to the valise which postilions or carriers had behind them, and in which they carried letters; but after the establishment of post- offices, post-routes, and post-coaches, it required a more general signification.^ a postmaster for refusing to deliver mail matter. Boardman v. Thomp- son, 12 Fed. R. 675. Semhle, re- plevin or a suit for damages is avail- able, lb. 1 Wynen t;. Schappert, 6 Daly (N. Y.), 558. Post-oflBce money- order funds are part of the public money of the United States. Wood- ruff V. United States, 58 Fed. 706. Telegkaph and Telephone Busi- ness. Some recent authorities have shown a disposition to range the business of telegraphing under the head of Bailments. See Redf. Carri- ers, § 574 ; Birney v. New York, &c. Teleg. Co., 18 Md. 341. True, this modern invention is closely allied, in a certain sense, to the railway and post-office, and might be specially discussed with the former subject. But it fails in the essential particu- lars which justify treating of those two topics in works like the present ; for the law perceives in the employ- ment of the telegraph no delivery of a thing in tangible shape, in order that the same thing may be delivered back or over, but the undertaking of one with special facilities to perform a certain piece of business, like a courier who is chosen to run upon a verbal errand because of his wondrous swiftness. There is here no engage- ment in rem; no bailment worthy of the name ; for, even if the sender leave a written message, this writing is not delivered, but remains mere waste paper or an office vouchur, after the telegraph company has made and delivered its own correct copy. The true issue of responsibil- ity, instead of involving the due iires- ervation and the safe and prompt delivery over of that which the sender delivers, hinges upon the due prepa- ration and the prompt and faithful transmission of a copy thereof, and the question of negligence is pre.sented under something quite unlike the bail- ment aspect. In the later use of the telephone the case still less resembles that of bailment. Telegraphing, therefore, seems 18 273 §272 THE LAW OF BAILMENTS. [part V. Letter-carrier routes are held to be "post-routes" and subject to the same public monopoly of the business.^ properly classed for legal treatment with kindred topics of Agency, Ser- vice, Genei-al Mandate, or the com- prehensive law of Contracts ; and so is it with the Telephone business. And though these are vocations unique in many features, so as to justify, perhaps, a special text-book ; and while, too, in some aspects, there is a vocation exercised which involves the rights of the public, the govern- ing principles are by no means foreign and exceptional, but such as would apply in point of responsibility to any parties paid for delivering quickly and correctly a verbal message, or wherever one engages for hire to accomplish some general transaction. Telegraph (and probably Tele- phone) companies are not responsi- ble as common carriers, but only according to the nature of their undertaking. Redf. Carriers, § 556 ; liirney v. New York, &c. Teleg. Co., 18 Md. 341 ; Western Union Teleg. Co. V. Carew, 15 Mich. 525 ; Young V. Western Union Teleg. Co., 65 N. Y. 163 ; 23 Fed. R. 315 ; 18 Hun, 157 ; Grinnell v. Western Union Teleg. Co., 113 Mass. 299. Their business should be transacted with reasonable despatch, correctness, and fidelity, in accordance with their engagement. Western Union Teleg. Co. v. Ward, 23 Ind, 377; New York, &c. Teleg. Co. V. Dryburg, 35 Penn. St. 298; Bartlett v. Western Union Teleg Co., 62 Me. 209. And for loss occasioned by their default or misconduct, the ordinary rule of damages under a contract will apply. Redf. Carriers, §§ 561, 562 ; United States Teleg. Co. V. Gildersleeve, 29 Md. 232; Squire V. Western Union Teleg. Co., 98 Mass. 232 ; Baldwin v. United States Teleg. Co., 45 N. Y. 744. A tele- graph company is bound to exercise reasonable care in the construction and maintenance of its line, but is not bound beyond this. Ward v. Atlantic Teleg. Co., 71 N. Y. 81. There might appear contributory neg- ligence on the sender's part, such as to absolve the company from blame. Leonard v. New York, &c. Teleg. Co., 41 N. Y. 544 ; Baldwin v. United States Teleg. Co., 45 N. Y. 744, 751 ; Koons V. Western Union Teleg. Co., 102 Penn. St. 104. And see, in gen- eral, Redf. Carriers, § 556 et seq. ; Scott and Jarnagin Telegraphs ; Allen Telegraph Cases. There may be culpable negligence on the part of the company, in wrongly transmitting the message which was delivered in sufficiently plain language. 71 Ga. 760 ; 37 Ohio St. 301. Or for unreasonably delaying to send or deliver the mes- sage. 59 Tex. 542 ; 84 Ind. 176. As to messages in cipher, see 75 Ala. 168. The latest cases appear to well es- tablish the principle that the com- pany may stipulate against liability for damages, except for fraud or gross negligence on its part (though not for complete immunity beyond price of the message), where mes- sages are not repeated. Clement v. Western Union Teleg. Co., 137 Mass. 463 ; 18 Fed. 717 ; 89 N. C. 334 ; Womack v. Western Union Teleg. Co., 58 Tex. 176; 11 Neb. 87; 18 Hun, 157 ; Gillis v. Telegraph Co., 61 Vt. 461 ; 87 Tenn. 554 ; Western Union Co. v. Broesche, 72 Tex. 654. Or where night messages are sent at half-rates. 57 Tex. 283. Reason- able limits in time, too, may be set to the presentment of claims for damages on behalf of those sending messages. 95 Ind. 228 ; 63 Tex. 27 ; 274 1 Blackham v. Gresham, 16 Fed. R. 609. CHAP, r.] POSTMASTERS. §272 57 Wis. 562. In short, all special stipulations of the kind should not only be consonant with public policy, but should be brought to the sender's notice. The rule of telegraph or telephone liability is not as yet decisively set- tled ; but it would appear that the English and American cases are in- harmonious in this respect. For the inclination in this country is to hold telegraph companies liable for such damages as may directly ensue to a receiver in consequence of its tardi- ness or misdelivery of a message, whenever this appears inexcusable ; while in Great Britain it is repeatedly afiirnu^l that the injury suffered by the receiver in consequence of the company's negligent transmission cannot serve as the basis of an ac- tion against the company. Dickson V. Renter's Teleg. Co., 2 C. P. D. 02 ; 8. c on appeal, 3 C. P. D. 1 ; Sanders V. Stuart, 1 C. P. D. 320. Cf. Scott and Jarnagin Telegraphs, § 230 ; American cases cited, supra ; Allen Telegraph Cases, §§ 728-734. But the English telegraph act of 1869 brings this business under public direction, like that of the ordinary mails, by giving to the postmaster- general the exclusive privilege of transmitting telegrams within the kingdom ; and conversations through the telephone are pronounced "tele- grams" within this statute. Attor- ney-General V. Edison Teleph. Co., 6 Q. B. D. 244. Telegraph companies are servants of the public in being bound to serve the public alike on the payment of reasonable charges ; and in this re- spect are like common carriers. Western Union Co. v. Dubois, 128 111. 248. And see § 206 a. 275 § 274 THE LAW OF BAILMENTS. [PART V. CHAPTER 11. INNKEEPERS. § 273. The Innkeeper as a Bailee. — The vocation o£ inn- keeper falls well under the head of bailment in respect of caring for animals, baggage, and other personal property, committed by a guest to his host's keeping; which topic, inclusive of the innkeeper's lien thereon for his charges, affords almost the only point of view from which our civil courts have steadily regarded the rights and duties of this interesting class of persons ; though one's treatment of his guest has sometimes been discussed, while the enforcement of liquor and license laws occasionally commends the inn- keeper to the inspection of other tribunals. § 274. Nature and Origin of this Exceptional Liability. — During many centuries, and most emphatically when journey- ing was slow and by the high road, the uniform excellence of their inns was one of Great Britain's standing boasts. That English literature should take its spring flavor from a pro- vincial hostelry, in whose wide chambers and stables, some- thing like a century and a half before Columbus crossed the Atlantic, a company of twenty-nine mounted pilgrims were " eased at best," is quite in keeping with the character of a people whom visitors from the continent of Europe in Eliza- beth's age pronounced dwellers in houses of sticks and dirt, but choice eaters and drinkers.^ The genuine home comforts 1 See 1 Macaulay England, c. 3 ; inns, as they were reputed in the Daly, J., in Cromwell v. Stephens, days of Shake.speare and Queen Eliza- 2 Daly (N. Y.), 15; Leopold Shak- beth. He says that each comer had spere, Furnivall Introduction, XIV., clean sheets and whatever variety of XV. victuals a guest might choose to call Harrison, in Holinshed's Chroni- for, according to his means ; and that cles, ed. 1587, bk. 3, c. 16, pp. 246, 283, in towns called thoroughfares there gives a lively description of English were great and sumptuous inns for 276 CHAP. II.] INNKEEPERS. § 274 of the English inn have inspired native poets and chroniclers of every age since Chaucer's, except, perhaps, the present; and our dramatic literature preserves the type of an obliging, full-fed, jovial landlord, who, if he sometimes joined foot-pads on the road to pick a purse, afforded the traveller a sure sanctuary, so long as he kept under cover of the roof and paid for what he ordered. During the seventeenth century, when mounted highwaymen so infested the main roads lead- ing to London, that travellers had to journey with an armed escort, excellent inns of every rank abounded, as history has recorded, and the innkeeper was the servant, and not, like the host of other civilized countries, the tyrant, of those who crossed his threshold.^ The stubborn independence of the Englishman, that relish for the substantial comforts of life which has always marked him, and his disposition to take his home with him, when he travels at all, are traits which may largely explain the pecul- iar mould of English innkecping. Before trustworthy inn- keepers abounded in the land, the lord of a castle opened his gates and entertained travellers who stood in need of food and a night's lodging, each according to his degree. Much of the shaping influence, however, must be conceded more immediately to the courts, and to that exceeding measure of responsibility which the common law from the earliest period fastened upon the innkeeper ; and this out of regard for the confidence which wayfarers must necessarily repose in him. If the thief or highway robber might elude justice, slipping away with his booty, not so easil}'' could one whose premises and stock might be attached at any private suit, and his the convenience of such travellers the highway robbers, but would put and strangers as might pass to and these marauders on the scent of some fro. And the same authority (p. 283) departing patron whose saddlebags, confirms the impression one gathers as his keen eye or that of his hostler from dramatic writers of this period, had assured him, were well worth that the host, while keeping on the rifling. shady side of the law, and entertain- i See 1 Macaulay England, c. 3 ; ing his guests handsomely during Daly, J., in Cromwell u. Stephens, 2 their stay, was not always scrupulous Daly (N. Y.), 16. about becoming a sly accomplice of j 277 § 27i THE LAW OF BAILMENTS. [part V. business broken up, on the guest's mere showing that his goods and money had disappeared while infra hospitium. This being the rule of public policy which the courts would vigorously enforce, on occasion, with a sympathizing jury, it followed that English innkeepers must have been, not only men of substance, but men of discretion as well, if not of sound morals. An extraordinary responsibility, it is true, attached to innkeepers in imperial Rome, whence the doc- trine pervades the modern jurisprudence of civilized Europe ; and perhaps our ancestors filled their pitcher at the same fountain, though failing to accredit such a source. But to a more rigid administration we owe it, probably, that English inns were a safe haven at a period when those of the Conti- nent were notoriously the nests of bandits, and only monas- teries, of whose hallowed guardians the most hardened ruffian stood in awe, afforded to pilgrims, for centuries, the only suit- able precinct for refreshment and repose.^ 1 The civil law relative to innkeep- ers is given at lengtli in 1 Domat Civ. LavF, Part I., Book 1, tit. 16, § 1. Hov? nearly its rules correspond to ours will appear by comparing the following extracts : " Engagements of Innkeepers. There is formed between the inn- keeper and traveller an agreement, by which the innkeeper obliges him- self to the traveller to lodge him, and to take care of his baggage, horses, and other equipage ; and the traveller on his part binds himself to pay his charges. " A Covenant either Express or Tacit with the Innkeeper. This en- gagement is formed usually without any express covenant, by the travel- ler's bare entering into the inn, and his depositing his baggage and other things into the hands of the master of the inn, or of those whom he ap- points to take care of it. " In what manner the Innkeeper is made accoxmtahle for the Things by 278 the Act of Domestics. The innkeeper is accountable for the acts of those of his family and of his domestics, ac- cording to the functions in which they are employed. Thus, when a travel- ler gives to the servants who have the keys of the chambers, a cloak, bag, or other things, or when he puts his horse into the stable, under the care of the hostler, the master of the inn is answerable for them. But if the traveller, upon his arrival, delivers a bag of money to a child, a scullion, out of the master's and mistress's sight, the innkeeper will not be an- swerable for a bag of this conse- quence deposited in such a manner. " Care of the Innkeeper. The master of the inn is obliged to watch, or cause to be watched by others, with all possible care, all the things that the traveller brings and deposits in the inn, whether it be in the pres- ence or absence of the master. Thus, he is answerable, not only for his own faults, but even for the least neglect, CHAP. II.] INNKEEPERS. §276 § 275. Preliminary Points to be considered. — Before dwell- ing at length upon this exceptional measure of responsibility which the common law has afiixed to innkeepers for the advantage of the public, let us see what persons and what property are embraced under the provisions of the rule. To consider, then: (1) who are innkeepers; (2) who are guests; (3) to wdiat property of the guest does the exceptional lia- bility relate ; (4) limits of the relation. And here let us bear in mind that, as in our other instances of exceptional bailment, the exception is found in one's rewarded exercise of a public vocation to which public policy assigns a rule.^ § 270. Who are Innkeepers ; Circumstances considered. — 1. Who are innkeepers? The older cases have been wont to define an inn as a public house for lodging and entertaining travellers while on their way; an innkeeper as one who, for either in himself or servants ; and he is only discharged from what may happen by such accidents as the greatest care could not have pre- vented. ^'■Innkeepers answerable for Thefts. Although innkeepers are not paid in particular for watching or keeping what is deposited in the inn, but only for the lodging, and for other things which they furnish to travellers, yet they are nevertheless bound to take the same care as if they were ex- pressly paid for watching the goods. For this is an accessory to the com- merce which they drive ; and it is for the interest of the public, considering the necessity under which travellers are to trust innkeepers, that they be bound to an exact and faithful care of the things committed to their cus- tody ; and that they be made answer- able even for thefts. For otherwise they might with impunity commit the thefts themselves. " They are acrountahle for the Arts of any of their Family or Do- mestics. If any one of the domes- tics, or of the family of the inn- keeper, causes any loss to a traveller, as if he steals from him even that which was not specially intrusted with any of the people of the inn, or if he damages his goods, the master of the inn shall be accountable for the value of the thing lost, or of the damage done. '■'■They answer for their Servants only for what they do in the Inn. The engagement of the innkeeper, for the act of his domestics, is limited to what is done in the inn ; and if any of his servants steals any thing, or does any damage in another place, the master is not accountable for it." In the Roman law, innkeepers do not appear to have had an excep- tional responsibility impo-sed upon them, until the Praitor issued a spe- cial edict, declaring that if shipmas- ters, innkeepers, and stable-keepers did not restore what they had re- ceived to keep safely, he would give judgment against them. See Dig. 4, 9, 1 ; with comments of Ulpian and others thereupon ; Story Bailm. §§ 458, 464-468. And see post, § 287. 1 Supra, § 265. 279 § 276 THE LAW OF BAILMENTS. [PAET V". reward from such persons, keeps open such a house for their convenience ; and the lodging or entertainment, as extending to the wayfarer's horses and full travelling equipage.^ The typical English inn has commonly some name, indicated by an emblematic device or painted sign before the door ; which, fanciful of itself, and seldom used to denote the individual landlord, may serve as a plain token of publicity. There need be, however, no sign before the door to constitute one legally an innkeeper, since this is but one means of showing that the house is an inn.^ Advertisement and cards may hold one out as thus keeping a house for the public accom- modation under one public name or another.^ Modes of entertaining alter with the fashion of the age, and to preserve a clear definition is not easy. It is not way- farers 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 com- ing or whither going, as for transient lodging and entertain- ment.^ Nor do innkeepers furnish entertainment for " man and beast " to the same extent as formerly ; but, at the great centres of passenger transportation, guests usually appear without carriages or private equipage of any kind ; and it has long been concluded that an inn may be carried on with- out inn-stables at all.^ And though victuals and lodgings have usually been supplied together in an inn, yet inns may be kept, as many now are, on the so-called " European plan," where one pays a certain price for his room, and settles for meals separately according to what he may incline to order 1 Calye's Case, 8 Co. 32 ; 5 Mod. « Walling v. Potter, 35 Conn. 183 ; 427; Bac. Abr. Inns and Innkeepers, People v. Jones, 54 Barb. 311 ; Pink- B.; Thompson v. Lacy, 3 B. & Aid. erton v. Woodward, 33 Cal. 557. 283, per Bayley, J. ; Dickerson v. The definition of Oakley, C. J., in Rogers, 4 Humph. 179. Wintermute v. Clark, 5 Sandf . (N. Y.) 2 Bac. Abr. Inns and Innkeepers, 242, 247, that an inn is " a public B. ; 12 Mod. 255, per Holt, C. J.; house of entertainment for all who Dickerson v. Rogers, 4 Humph. 179 ; choose to visit it," is approved in Clary v. Willey, 49 Vt. 55. these cases. 3 See Bostick v. State, 47 Ark. s Thompson v. Lacy, 3 B. & Aid. 126. 283. 280 CHAP. TI.] INNKEEPERS. § 277 at a refectory ; and if comers in such a house are registered and assigned rooms with their baggage as in other inns, and the keeper of the house holds out the refectory as part of his general establishment, he should be deemed an innkeeper.^ Nor would it be thought essential, in order to give a modern house the character of inn, that wines or spirituous liquors are kept on hand for the patrons of the place.'^ The permanent character of the lodging and entertainment offered the public bears on this issue. Some authorities in- cline to the view that one who keeps open a public house merely for a short season of the year, at a watering place, for instance, cannot in strictness be called an innkeeper. ^ But any such statement, if not positively inaccurate, is mislead- ing ; for, unless the manner of entertainment be of quite a limited and special description, one cannot well deny to a summer or winter hotel the capability of becoming, in the fullest sense, an inn for the time being. And certainly one who regularly keeps an open house for the public does not forfeit the character of innkeeper simply because his patronage comes rarely or periodically.* But merely enter- taining people at some special gathering, as at a horse-race, or on other unfrequent and brief occasions, for the profit of one's private house, is held not to constitute that house an inn.^ § 277. The Same Subject ; Tavern, Hotel, Restaurant, etc — The statutes of our States not unfrequently use the terms "inn," "tavern," and "hotel" as synonymous;^ yet there are shades of difference in these words which British legis- lation touches off more delicately." In the last century and 1 Krohn v. Sweeney, 2 Daly * See Clary v. Willey, 40 Vt. 55 ; (N. Y.), 200; Bernstein v. Sweeny, Kisten v. Hildebrand, 9 B. Monr. 72. 33 N. Y. Super. 271 ; Pinkerton v. ^ State v. Mathews, 2 Dev. & Bat. Woodward, 33 Cal. 557. 424 ; Lyon v. Smith, 1 Morris, 184 ; 2 See Pinkerton v. Woodward, 33 Howth v. Franklin, 20 Tex. 7!)8. Cal. 557, 590, per Rhodes, J. <* People v. Jone.s, 45 Barb. 311; 8 Story Bailm. § 475 ; Bac. Abr. Bonner i'. Welborn, 7 Ga. 29(3. Inns and Innkeepers, B. ; Southwood " See Smith v. Scott, 2 Moo. & Sc. V. Myers, 3 Bush, 681 ; Bonner v. 35 ; Jones, in re, 3 Ch. D. 457. Welborn, 7 Ga. 296. Cf. Park- house V. Forster, 6 Mod. 427. 281 § 277 THE LAW OF BAILMENTS. [PART V. the earlier part of the present, it was common for Americans to style their inns " taverns " ; ^ but those more choice of speech have defined " tavern " rather as a place for procur- ing food and drink, without lodging.^ Both " taverns " and " inns," however, are words of humble extraction ; though the latter term, which is now falling into popular disuse, may serve all the better for the technical purposes of legal nomenclature. Rapid transit tends to focalize the innkeeping business, diverting it from old market towns and stations where fresh horses used to be put to the mail coach ; and we find substi- tuted for those home comforts which suited a simpler age the display of palatial glories such as might set a sight-seeing crowd agape. The present caravansary style of entertaining has doubtless its attractions ; though fascinating those most whom the family hearth fails to cheer, and who crave new faces and the turmoil of a changing crowd. Considerations like these, with motives of economy, or the desire to purchase the most style and luxury at the least cost, bring men and women nowadays into the inn as their abiding place. Hence, in this country, even more than in Great Britain, the rise of the modern " hotel " or " house," as something more preten- tious, more of a substitute for home life, than the Anglo- Saxon inn or tavern ever aspired to be ; the former word suggesting that Parisian influence which in modern times dominates polite society. A " hotel," in the primitive sense, regards lodgings alone, or the French home, in which sense there would be no inn at all, but dwellings arranged by piles instead of rows ; and yet, in almost universal parlance, "hotel," like "house," in the public sense, now signifies simply a genteel inn.^ 1 See Weld Travels, 35; Davis "Tavern" ; Webster lb. ; per cjjrmm, Travels, 32. English travellers in in Queen v. Rymer, 2 Q. B. D. 136; the United States about the opening Smith v. Scott, 2 Moo. & Sc. 35 ; 47 of the present century expressed Ark. 126. their surprise at finding that every ^ -Worcester Diet. " Hotel "; Web- public house was called a "tavern." ster lb. ; Johnson Encycl. 3 See Worcester Diet. "Inn," The English Innkeepers' Act of 282 CHAP, ir.] INNKEEPERS. §278 One who merel}'- furnishes food or drink to the public, whether his establislnnent be called a tavern, a coffee-house, an ale-house, a restaurant, or a bar-room, is not legally an innkeeper.! Nor can the proprietor of a sleeping-car attached to a train be so regarded ; there being only accommodations for repose and toilet furnished, and this only for a particular class of travellers on a particular trip.^ Nor can a steamship company, though its passengers be lodged and fe'KEErERS. § 323 customers.^ Exceptions like these, however, are not to be extended so as to thwart public policy in its dealings with a public vocation. No innkeeper has the right to make his business subservient to other people's schemes ; nor can he throw open his doors to the passengers and soliciting agents of one railway company, and shut them upon those of its rival. 2 But the keepers of boarding-houses, lodging-houses, and restaurants may, as a rule, select their own customers, and deal with mankind on tlie mutual footing, for theirs is no l)ublic emploj'ment, any more than that of bankers or the mercantile profession. § 322. lunkeeper should refuse Guests -when Health and Safety require it. — AVhere there is an infectious disease, like small-pox, it is not only the innkeeper's right, but his duty, to shut out business while the danger lasts ; and he ma}^ have to respond in damages to one whom he permits to become a guest under such circumstances, and who contracts the dis- ease without being himself negligent.^ And generally speak- ing, if the landlord knows the inn premises to be dangerous or unsafe for habitation from any cause, he ought to exclude tlie public and close the inn, so far as prudence may require, until the danger is removed. § 323. Innkeeper's Liability for Assault upon Guest ; Other Injuries, etc. — For wanton and malicious assault committed upon the pei'son of a guest during his stay, an innkeeper is not necessarily to respond in damages, though the act be done by one about the inn ; for his strict charge as innkeeper concerns only l)ailment and the guest's chattels. But, within the usual limits of that rule which holds a master 1 Jencks V. Coleman, 2 Sumn. 221, Hughes, 541 (overruled on other 220, per Story, J. A rival's false and grounds, 109 U. S. 3). But cf. State injurious statements, to dissuade peo- v. Steele, 106 N. C. 766. The public pie from going to his inn, may furnish vocation of common carrier or pas- cause of action against him. Bac. senger carrier presents analogous in- Abr. Inns and Innkeepers, B. stances. Seeposf, PartVI. c. 3 ; Part 2 Markham v. Brown, 8 N. H. 523. VII. c. 1. And see The Civil Rights Bill, 1 » Gilbert v. Hoffman, 66 Iowa, 205. 325 § 325 THE LAW OF BAILMENTS. [PART V. responsible for acts of a servant committed in the usual course and scope of employment, he would have to answer,^ as he undoubtedly must for his personal assaults. A certain duty rests upon him to keep good order on his premises and to restrain the assaults of others upon his guests.^ Inns should be properly built, provided with suitable means of ingress or egress, and kept in proper repair ; but for a patent defect or inconvenience the guest takes his own risk to a certain extent.^ § 324. other Duties of Innkeeper ; Charges ; License, etc. — Innkeepers should make no extortionate and unusual charges against their guests, nor supply them with unwholesome victuals and drink, or their animals with bad provender. Our Anglo-Saxon legislation has, from the earliest period, shown, in these and kindred particulars, a sedulous regard for the comfort and well-being of travellers.^ Innkeepers must be licensed as such ; this being, however, a matter of municipal regulation commonly liable to change; and the pursuit is no franchise, but a lawful trade, open to all who choose to pursue it ; ^ nor does the want of a license affect one's legal obligations to the public.^ The keeping, too, of spirituous liquors at an inn may subject the host to the re- straints of certain statutes, whose policy extends to those engaged in carrying on mere bar-rooms or restaurants; but legislation of this character, which is purely local, fluctuates constantly, and we need not attempt to trace its course.' S 825. Rights of Innkeeper; Rules, etc. — Second, as to the 1 Calye's Case, 8 Co. 32 ; Bac. Abr. * Bac. Abr. Inns and Innkeepers, Inns and Innkeepers, C. ; Wade v. C. ; Cro. Jac. 609 ; Roll. Abr. 95 ; Thayer, 40 Cal. 578 ; Commonwealth Duchman v. Hagerty, 6 Watts, 65. V. Mitchel, 2 Pars. (Penn.) 431 ; "" Bac. Abr. Inns and Innkeepers, Story Bailm. § 481 ; Schoul. Dom. A. ; Dickerson v. Rogers, 4 Humph. Rel. §§ 489-491. 179 ; 87 Penn. St. 168. ~ Even though the guest be intoxi- ^ Atwater v. Sawyer, 76 Me. 539. cated. Rommel v. Schambacher, 120 "^ See Bac. Abr. Inns and Innkeep- Penn. St. 579. ers, A. ; 2 Kent Com. 596, 597, and 3 Ten Broeck v. Wells, 47 Fed. notes ; 11 Daly, 234. 690. Cf. West V. Thomas, 97 Ala. 622. 326 CHAP. II.] INNKEEPERS. § 326 I'iglits of innkeepers. Besides his qualilied right, already ad- verted to, of refusing lodging and entertainment to ill-behaved and unsuitable persons, and of expelling from his house troublesome characters, the innkeeper has likewise power to prescribe salutary rules for the welfare of the establishment, and to properly interpret, in some degree, his own legal responsibilities. Inn rules, however, should never sul)ject one's guests to petty and humiliating discipline, nor defeat the policy which the law has set up for the comfort of those who come and go. §320. Right of Recompense; Lien, etc. — -But the right most pertinent to the situation is that of getting remunera- tion for the lodging and entertainment he furnishes. Not only may an innkeeper require to be paid in advance, and refuse to receive the penniless stranger into his rooms, but the law grants him, as security for unpaid charges, a lien upon all the movable property which the guest may have brought with him to the house and placed in the legal cus- tody of the innkeeper as bailee.^ Even where the thing belonged to a third person, and the guest himself had only a bailee's right therein, or was an agent for the owner, the innkeeper's lien will attach, provided only he received the property on the faith of the innkeeping relation.^ And the innkeeper's knowledge that the guest did not own the goods does not affect the case, unless he knew that the pos- session was wrongful.^ But, if the innkeeper did not receive the property on the faith of the innkeeping relation, but otherwise, he cannot, it is held, detain the property against 1 Proctor V. Nicholson, 7 C. & P. ^ gnead v. Watkins, 1 C. B. n. s. 67 ; Turrill v. Crawley, 13 Q. B. 197 ; 2G7 ; Threfall v. Berwick, L. R. 10 Story Bailm. § 47G ; Snead v. Wat- Q. B. 210 ; Manning v. HoUenbeck, kins, 1 C. B. n. s. 2G7 ; Alvord v. 27 Wis. 202 ; Berkshire Woollen Co. Davenport, 43 Vt. 30 ; Manning v. v. Proctor, 7 Cush. 417 ; Mowers v. HoUenbeck, 27 Wis. 202 ; Dunlap v. Fethers, 61 N. Y. 34. Thome, 1 Kich. (S. C.) 213. A piano ^ Kobins v. Gray, [1895] 2 Q. B. D. so received may be subject to the inn- 501 (sewing-machines). Cf. 99 N. C. keeper's lien. Threfall v. Borwick, 523 ; Cook v. Kane, 13 Oreg. 482 ; L. R. 10 Q. B. 210 ; s. c. L. R. 7 Q. B. Singer Co. v. Miller, 52 Minn. 516. 711. 327 § 326 THE LAW OF BAILMENTS. [PART V. the true owner ;^ and yet, if some proper charge were in- curred against that specific chattel, the result might be different.^ An innkeeper's rightful lien ought fairly to be coextensive with his liability for all such property of other persons.^ Distinctions like these will apply to horses and other animals which are put up at an inn stable ; for upon these an innkeeper has full lien,* unless, indeed, it should appear that he received the creature purely as an agistor.^ Even were the animal borrowed or stolen by the bailor, food and shelter would be so clearly for the creature's benefit, that the innkeeper ought, if fairly receiving the creature in the honest exercise of his public employment, to be fully recompensed for his care and cost.*^ In general, the innkeeper's lien will subject all personal property brought by a guest infra hospitium, animals inclu- sive, to the satisfaction of the host's bill against himJ And this lien properly extends to effects brought by a minor, so far as to secure the host for necessaries, or for money fur- nished the minor for necessaries and used accordingly ; as- suming that the host has conducted himself honorably in the case, and not contrary to plain and proper directions of the parent or guardian.^ Such lien extends to a wife's separate baggage brought with that of her husband, while they lodged together at the inn, although credit was given to the hus- 1 Broadwood v. Granara, 10 Ex. has no common-law lien, as we have 417. Doubted in [1895] 2 Q. B. 501. seen elsewhere, a lien is given by stat- 2 See Domestic Sewing- Machine ute in many States. See Young v. Co. V. Watters, 50 Ga. 573. Kimball, 23 Penn. St. 193 ; Colquitt 3 See § 283. v. Kirkman, 47 Ga. 555. 4 Mason v. Thompson, 9 Pick. 280. ^ gge Johnson v. Hill, 3 Starkie, Supra, § 296, shows that one is as- 172 ; Domestic Sewing-Machine Co. sumed an innkeeper of horses rather v. Watters, 50 Ga. 573 ; Fox v. Mc- thau livery -stable keeper, indepen- Gregor, 11 Barb. 43. dently of the strict relation of guest '^ Story Bailm. § 476 ; Mulliner v. to the person bringing the animal. Florence, 3 Q. B. D. 484. This in- 5 Orchard v. Rackstraw, 9 C. B. eludes merchandise of the employer 698 ; Saint v. Smith, 1 Coldw. 51 ; brought by a travelling salesman. Grinnell v. Cook, 3 Hill, 485 ; Hick- Robins v. Gray, [1895] 2 Q. B. 501. man v. Thomas, 16 Ala. 666. See ^ Watson i'. Cross, 2 Duv. 147. supra, §§ 122, 296. Although a mere See Proctor v. Nicholson, 1 C. & P. agistor of cattle or livery-stable keeper 67. 328 CHAP, ir.] INNKEEPERS. § 327 band.^ But, where several persons sui juris travel together and put up at an inn, the goods of one cannot be detained for the lodging and entertainment of all, but only for liis share in the reckoning, unless lie liad agreed with the inn- keeper to defray the expenses of his companions.^ Nor has the innkeeper any right to detain the person of a guest and the clothes he wears ; for this would be a virtual imprison- ment for debt without judicial process.^ It does not follow that a third party whose goods are held by tlie innkeeper's lien is legally liable for the bill itself."* §327. The Same Subject. — The innkeeper's lien is not lost or waived by his guest's occasional absence from the inn, leaving his chattels behind ; ^ nor because of any forcible or fraudulent dispossession thereof.^ The taking of other secu- rity for his charges does not displace the lien, unless from his conduct in other respects this intent maybe inferred;^ but he must take good heed not to let the property go wit- tingly and willingly or carelessly out of his keeping, lest he lose against other bond fide parties his security upon it.^ Where a horse is left in the innkeeper's custody, which the owner appears to have abandoned, a moderate use of the animal by the innkeeper may not be unreasonable, either for the health of the creature or by way of offset to the cost of its continuous keep.^ It is recently held in England, that (unlike the case of a pledgee) an innkeeper will lose his lien, and the practical benefit thereof, whenever he sells the guest's property to re- 1 Gordon v. Silber, 25 Q. B. D. 491. * Covington v. Newberger, 09 N. C. 2 Clayton v. Buttertield, 10 Rich. 523. (S. C.) 300. 5 Allen v. Smith, 12 C B. n. s. 8 Sunbolf V. Alford, 3 M. & W. G38. 248. It appears to have been an- ^ Manning v. Hollenbeck, 27 Wis. ciently thought otlierwise. See Bac. 202. Abr. Inns and Innkeepers, I). ; Show. '' Angus y. McLachlan, 23 Ch. D. 270. Criminal .statutes in these days 330. are found wliich punisli tho.se who » 1 Schoul. Pers. Prop. §§ 385, impose as gue.sts upon an innkeeper. 380 ; Perkins v. Boardman, 14 (iray, 28 Minn. 424 ; 95 Tenn. 54G. 481, 483. 9 Alvord V. Davenport, 43 Vt. 30. 329 § 329 THE LAW OF BAILMENTS. [PART V. imburse himself.^ Common-law methods for enforcing liens were always imperfect,^ so that recourse was had to chancery to afford relief ; but the tendency of legislation at the present day is to aid an innkeeper, whose charges are unpaid, in per- mitting him to realize upon his security by a sale of the prop- erty at auction.^ § 328. The Same Subject. — Irrespective of a lien, the inn- keeper may, of course, sue for his recompense like any other creditor.^ And where he is left in charge of the guest's effects to secure his bill, he is held a mere gratuitous bailee for their safety ; ^ and certainly his exceptional liability has ended. § 329. Whether Boarding-house Keepers have Lien, etc. — As for boarders, whether at an inn or a boarding-house, also mere lodgers, the common law recognizes no right of lien upon their effects in favor of the keeper of the house.^ But there are statutes now in force in many of the United States, which confer upon boarding-house keepers substantially the same privileges in this respect as innkeepers have enjoyed.'^ 1 Mulliner v. Florence, 3 Q. B. D. ^ Angus v. McLachlan, 23 Ch. D. 484. 330. 2 2 Kent Com. 642 ; Pothonier v. ^ Pollock v. Landis, 36 Iowa, 651 ; Dawson, 1 Holt, N. P. 383; 1 Schoul. Hursh v. Byers, 29 Mo. 469; Ewart Pers. Prop. § 387; Fox v. McGregor, v. Stark, 8 Rich. (S. C.) 423 ; Singer 11 Barb. 41 ; Case v. Fogg, 46 Mo. Co. v. Miller, 52 Minn. 516. But 44 ; Shaw, C. J., in Doane v. Russell, there might be a lien on a boarder's 3 Gray, 382. And as the old books horse for its keep. See Smith v. note, even if the owner's horse " eat Keyes, 2 Thomp. & C. 650. out the price of his head," the hostler '^ U. S. Dig. 1st Series, Innkeepers, cannot sell him ; for one man is not 31, 32 ; Cross v. Wilkins, 43 N. H. authorized to sell and convey the 332 ; Jones v. Morrill, 42 Barb. 623 ; property of another. Bac. Abr. Inns Bayley v. Merrill, 10 Allen, 360 ; and Innkeepers, D. Nichols v. Holliday, 27 Wis. 406. 3 1 Schoul. Pers. Prop. § 387. But such statutes are not to be un- * See Classen v. Leopold, 2 Sweeny duly extended by construction as to (N. Y.), 705. An innkeeper may in property of third persons. Mills v. the modern practice of various States Shirley, 110 Mass. 158. The words recoup his inn charges against his sometimes used are " baggage and guest's action for loss of property, effects" of a boarder. lb. lb. And see supra, § 300. 380 CHAP. I.] COMMOX CARRIERS. § 330 PART VI. EXCEPTIONAL BAILMENTS FOR MUTUAL BENEFIT. COMMON CARRIERS. CHAPTER L CARRIERS IN GENERAL. § 330. Magnitude of the Present Topic ; Common Carriage simply a Bailment. — Our previous Study has cleared the way for discoursing at length upon a final topic, included under the head of Bailments, which, in practical consequence to modern society and modern jurisprudence, overshadows all the others grouped together. The law of Carriers has not only become already of surpassing magnitude, but of sur- passing intricacy ; the keenest intellect of practitioners and the most profound wisdom of judges serve hardly to unravel and lay open its principles ; distinctions relied upon in the decisions seem often unnatural, forced, and contradictory, as though the law were training itself into suppleness, in order that courts and juries might deal with individual cases according to discretion. Here we find courts decidinor with a bias in favor of great corporations at one time, and of the public at another ; and counsel most acute to shift the burden of proof from one litigant to the other. And unless we deter- mine to take no precedent for more than it is worth, to keep fast hold of fundamental bailment principles, and bear con- stantly in mind that this transportation of movable property to and fro, which involves immense mercantile and commer- cial interests, such as the ancient world never dreamed of, 331 § 331 THE LAW OF BAILMENTS. [PART VI. is but a bailment, whose essence consists in the delivery of a chattel for the accomplishment of a certain purpose, to be succeeded by delivering it back or over when that purj)ose is accomplished, and that the present idiosyncrasy simply consists in an extraordinary degree of responsibility to which public policy chooses to subject the class of bailees known as Common Carriers, we shall lose our most needful clue. So far as concerns the United States, whose power over interstate and foreign commerce is exclusive, the decisions of the supreme Federal court have great authority and hence reconcile to a great extent the discordance of State decisions on local traffic. This branch of bailment law owes most of its inspiration to the creative genius of modern times ; so that, unlike the fabled genie which rose cloudlike from the vase of its mys- terious confinement, when a fearless hand broke the seal of Solomon, this once-stifled giant of the codes, likewise made free to overspread sea and shore, goes on enlarging in bulk and stature, destined, perhaps, to lose all shapeliness of feat- ure in so immense a mass, yet certain never to re-enter its ancient prison. But in common carriage appears what we may call the full flower of the bailment principle which we have already repeatedly set forth in these pages. § 331. Private and Public Carriers of Personal Property; Common Carrier defined. — By carrier we are to understand one who undertakes to transport personal property from one place to another. Our common law deals with two general classes of carriers : (1) Private Carriers ; (2) Public or Com- mon Carriers. Private Carriers — a class which (if it be a class at all) comprehends, as will hereafter appear, only isolated cases of transportation, performed by those whose usual vocation is different,^ save where a recognized Public Carrier undertakes specially to act without reward — rank as 1 Sucli instances, besides, as the reckoned as a public vocation, nor business of towing, furnishing sleep- that of "common carrier." See ing-cars, etc., will be noted under AUis u. Voight, 90 Mich. 125; §349. c. 2, post, where the pursuit is not 332 CHAP. I.] COMMON CARRIERS. § 332 simple bcailees, incurring the usual responsibilities, and en- titled to the usual rights and immunities, either of bailees with recompense, or of bailees without recompense, according to the circumstances actually present. But a Public or Com- mon Carrier is one whose regular calling it is to carry chat- tels for all who may choose to employ and remunerate liim.^ " Carrier," as a technical term of our law, is often employed in this latter sense alone. § 332. Carriers by Land or Water. — Carriers, private or common, may be (1) carriers by land, or (2) carriers by water ; but the transportation business of modern times tends so constantly to forming continuous lines, bridging broad rivers, running cars upon ferry-boats, and, in fine, bringing land and water transit under the same control and manage- ment, that the line of demarcation between the two classes, once so boldly traced, has perceptibly faded. Watercraft has its peculiar codes and regulations, whose full exposition belongs not to works on bailment, but to special treatises on shipping and commercial law; land carriage, too, since tlie successful application of steam to locomotion, whose experi- mental beginnings in England and America many still living can remember, gives scope for ample text-books on railway law; but the law of bailment, treating of land and water carriers under a common head, with reference to the main performance of their functions, brings into view the leading principles of jurisprudence which affect both classes. These principles it is our purpose to investigate in this and the suc- ceeding chapters. 1 In the foregoing definitions we might speak of private carriers of follow the established precedents, goods (or rather of personal prop- See Bouv. Diet. "Carrier," "Com- erty) and private carriers of persons ; mon Carrier;" Story Bailm. § 495; and so, correspondingly, of public or 2 Kent Com. 598. But were the common carriers. But the words question an open one, it might be "carrier" and "common carrier" argued that the word "carrier" came to be exclusively applied to should include the undertaking to chattel transportation, before rules transport persons, instead of being affecting the transportation of pas- confined, as above, to the transporta- sengers attracted judicial attention, tiou of chattels ; and hence, that one 333 § 333 THE LAW OF BAILMENTS. [PAET VI. § 333. English Theory of Exceptional Responsibility ; its Roman Origin. — The English doctrine, that common carriers of goods and chattels are to be regarded as clothed with singularly vast and exceptional responsibilities, is drawn, in all probability, with its reasons, from Roman sources, and from that praetorian edict to which reference has been made under the head of Innkeepers.^ '-'• Nautce, caupones, stabu- larii,^^ so runs the Digest, " quod cujusque salvum fore recep- erint, nisi restituant, in eos judicium daho.'''' ^ Here, the reader perceives, there is no class of persons expressly desig- nated, in addition to innkeepers and stablekeepers,^ except what we translate " shipmasters ; " whence, perhaps, a just inference that land carriage was of too little consequence in imperial times to attract the attention of the magistrates. For certainly, according to modern civilians, as well as writers of common law, not only carriers by water, but carriers by land, have been bound to a corresponding special responsibility from very early times. Domat, one of the most trustworthy writers upon European jurisprudence, has ob- served, putting Innkeepers and Carriers in the same cate- gory, that those who undertake the carriage of goods by land or water are answerable for the baggage and goods which they take charge of, and the custody, carriage, and transpor- tation of the same, and to use all the application and take all the care of them that is possible ; and if anything perishes, or is damaged through their fault, or the fault of the persons whom they employ, they ought to answer for it.* This rule of the civil law, while discharging the common carrier from what might happen by such accidents as the greatest care could not have prevented, appears plainly to grant immunity 1 Supt'a, §§ 274 n., 287. eludes all sorts of watercraft, whether 2 Dig. 4, 9, 1 ; Colquhoun Rom. for the sea or inland transportation. Civ. Law, § 1969. By naittce we are Colquhoun, lb. § 1970 ; Pand. 14, 1, to understand, not strictly sailors, 1, 6. but exercitores navis, so that the ^ as to the precise meaning of word may be rendered by "such stabularii, see supra, ^ 287 . carriers by water as are shipown- * 1 Dom. Civ. Law, Pt. I., b. 1, tit. ers." Further, the word navis in- 4, § 8, 5 ; ib. b. 1, tit. 16, § 2. 334 CHAr. I.] COMMON CARRIERS. § 334 in certain cases of fire or forcible robbery, such as tlie com- mon law would not so readily excuse ; yet it leaves him under great restraint.^ In a word, both civil and common systems claim to hold common carriers to an accountability unusually strict ; but as to the limits of that accountability, they are not in accord. The Anglo-Saxon has apparently laid hold of the Roman idea, but worked it out according to the genius of Anglo-Saxon institutions.^ § 334. Carriage and Innkeeping Responsibility to be distin- guished ; also Roman and English Theories. — : Hence the im- portance, at the outset, not only of keeping our excepted cases of innkeeper and common carrier quite apart, but like- wise of preventing the common and the civil schemes of carrier law from intermingling. For the English sages made their judicial precedents stepping-stones to a theory of bail- ment accountability far more rigorous than that of the Romans, certainly as regards common carriers, however it may have been with the innkeeper. True, in the reign of 1 See Story Bailm. §§ 468, 488 ; Louisiana Code of 1825, 2722-2725 ; Code Civil of France, art. 1782, 1784, 1929, 1954 ; 2 Kent Com. 598 ; 1 Bell Com. 470. 2 We .should add, however, that an English authority of the day, as eminent as Cockburn, C. J. , repudi- ates the notion (which, to those who acknowledge the foreign source of such early works of English law as that of Bracton, seems reasonable enough) that the English law of car- riers was derived from Roman law. His reasons are: (1) That our law was first applied to land carriers, upon whom the Roman law inflicted no extraordinary liability ; (2) That the Roman law made no distinction as to "act of God," etc., but afforded immunity from casns fortuitus as well as vis major. Nugent v. Smith, 1 C. P. D. 428. But it may be said, in reply, that law borrows foreign ideas and adapts them, with change, to local and existing wants of society; a remark which holds strikingly true of legislative enactments. And again, if the Roman law could not, by con- struction, extend its provisions to land carriage, whence is it that the modern civilians derive their own rule for such cases ? In other words, if, when occasion first arose, England by inference went from land carriage to water carriage, why might not the Roman law have gone, on a similar exigency, from water carriage to land carriage ? It appears, to say the least, a strange coincidence that Inn- keepers and Common Carriers should have been subjected to special rules of liability under the Roman and Anglo-Saxon sy.stems, so nearly al- lied, and yet so that the earlier sys- tem could not have influenced the later. 335 § 335 THE LAW OF BAILMENTS. [PART VI. Henry VIII., the opinion prevailed that a common carrier was chargeable, in case of loss by robbery, only when he had travelled by ways dangerous for robbing, or driven by night, or at any inconvenient hour.i But under Queen Elizabeth the rising greatness of England's commerce brought this question more into discussion ; and it was resolved in the King's Bench, as Sir Edward Coke has recorded, that a car- rier "implicitly undertaketh the safe delivery of the goods delivered to him, and therefore he shall answer the value of them if he be robbed of them." ^ So, too, Lord Holt, in that famous opinion pronounced in Queen Anne's reign, which constitutes the groundwork of our modern law of bailments, observed : " The law charges this person thus intrusted to carry goods, against all events but acts of God and of the enemies of the king. For though the force be never so great, as if an irresponsible multitude of people should rob him, nevertheless he is chargeable." ^ This exposition of the car- rier's common-law responsibility has sturdily kept ground in England ever since ; and transplanted to America, in the colonial period, the doctrine took equally strong root there. Of all this, however, and the possible modifications of a carrier's responsibility, which legislation and special contract in this later day appear to justify, more in place hereafter. But here let us add that while the modern development of carriage tends steadily to promote international comity, our Cokes and their compeers, men of clear, gritty, but narrow common sense, and lovers of freedom, were yet legal non- conformists, given to vaunting their ignorance of foreign jurisprudence as a proof of complacent superiority. The institutions they lived under were as yet those of a people who might travel to Europe, but not to confess they could learn anything of foreigners. § 335. Foundation of Exceptional Responsibility is Public Policy. — In the present instance, as not unfrequently hap- 1 Doct. & Stud. Dial. 2 Cli. 38. s Coggs v. Bernard, 2 Ld. Raym. 2 3 Co. Litt. 89 ffl ; 1 Co. Inst. 89 a ; 909, 918. Moore, 462 ; Jones Bailm. 103. 336 CHAP. I.] COMMON CARRIERS. § 33G pens, the rule took the start of its reasoning; for, according to Sir Edward Coke and the King's Bench judges, who, without being aware of it, had got a smack of the civil law through some native purveyor, the carrier's obligation was founded in his hire.^ But it was gradually perceived that the rational ground for holding the carrier so severely must be far broader than this ; and, as Lord Holt pointed out afterwards, the great cause of the law charging the carrier is attributable to the public employment he exercises. " This is a politic establishment," he says, " contrived by the policy of the law, for the safety of all pers,ons, the necessity of w^hose affairs obliges 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, etc., 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." ^ This very clear statement is so con- clusive of the matter that later judges have constantly an- nounced the same reason, with only verbal variation ; and it accords with Ulpian's comment upon the Roman edict, centu- ries earlier.^ Public policy, then, not private contract, is the foundation of the common carrier's exceptional responsibility. § 336. Influence of Compensation in this Connection. — It is observable, however, that the carrier's hire, though not the only, nor even the chief, reason for charging him thus strictly, is yet of influence in the case; that public policy operates only upon the professional carrier working for his compensa- tion. The carrier, to be charged as a public bailee, must be exercising the public vocation on a business footing. For where one carries personal property for another without re- ward, he is reckoned chargeable, like any other bailee for a 1 3 Co. Litt. 89 a ; 1 Co. Inst. 80 a; ' Maxima utilitas est hnjus edicti; Moore, 402. quia necesse est plerumque eorum 2 Lord Holt, in Coggs v. Bernard, Jidein sequi, et res custodia' eorum 2 Ld. Raym. 909, 918, And see 12 cnmmittere. Dig. Lib. 4, 9, 1. And Mod. 487. see Story Bailm. § 458. 22 337 § 337 THE LAW OF BAILMENTS. [PART VI. bailor's sole benefit, with slight diligence only ; ^ a rule which operates not only where one casually conveys something as a favoring friend, but also upon public professional carriers, whenever they take the goods of a particular party free, and for his exclusive benefit.^ But a departure from one's usual course of conduct in this particular is not readily assumed ; nor will a bailment service be necessarily a service without reward for want of an expected recompense in money. In a common carrier's business transactions, mutual silence im- plies that the customer shall pay what is reasonable ; nor is it enough that the carrier made a mental resolve of benevo- lence, or used ambiguous words, as that " he would charge little or nothing," for the law to relieve the bailor from yield- ing recompense if the bailment be well accomplished, or the bailee from accounting as an insurer should it turn out ill.^ § 337. Private and Common Carriers for Hire distinguished. — Private carriers for hire cannot, as a class, be said to exist at this da}^ either in England or the United States ; for, whenever one plies the vocation of a transporter of chattels from one place to another, and so holds himself out to the public, expecting to be paid for his services, our law affixes to the pursuit of his business, when exercised for reward, the responsibilities of a public employment. But the relation of private carrier for hire may exist when one, not holding him- self out to do such business regularly, undertakes, for reward, on a special occasion, to transport property for some particu- lar person, or perhaps persons ; as where a country farmer or lawyer, intending to journey to a distant cit}'', takes with him, for the accommodation of his neighbor, a barrel of apples to leave at some city store, or a package of coupon-bonds to deposit with some city banker, understanding that he shall 1 Supra, § 25. Coggs v. Bernard, § 457 n. ; Michigan Central R. v. Car- 2 Ld. Raym. 909, is a remarkable row, 73 111. 348. case in point. 3 Gray v. Missouri River Packet 2 Coggs I'. Bernard, sM/)ra ; Jones Co., 64 Mo. 47. See, further, next Bailm. 62, 63; Beauchamp v. Pow- c. ; White v. Bascom, 28 Vt. 268; ley, 1 Moo. & R. 38 ; Fay v. Steamer Pennewill v. CuUen, 5 Harr. 238 ; New World, 1 Cal. 348 ; Story Bailm. Varble v. Bigley, 14 Bush, 698. 338 CHAP. I.] COMMON CARRIERS. § 337 be remunerated for his special trouble. A bailment like this differs not in principle from the general bailments, already discussed, of hired service upon a chattel ; in other words, the bailee, apart from a special contract to the contrary, be- comes bound to exercise ordinary care and diligence in per- forming the undertaking, and nothing more.^ Any private carrier for hire might, nevertheless, so bind himself by the express terms of his engagement as to incur all the risks of a public emj)loyment, though this would not readily be expected of hira.'^ Furthermore there are pursuits, analogous at least to carrying, which are nevertheless pronounced exempt usu- ally from the rule of Common Carrier ; these can hardly be logically classed among Private Carriers, but at all events they involve this same ordinary bailment standard; the voca- tion being in effect a private, not a public, one in respect of goods and chattels.^ Not only does a common carrier find himself compelled to encounter extraordinary risks at our law, but he is further bound, according to his facilities, to receive and carry all goods and chattels which are offered him for transportation in the line of his vocation, provided his reasonable compensa- tion be likewise tendered him. This is another consequence resulting from the public employment which such carriers are declared to exercise, and serves like exceptional responsibility to distinguish those of this class from private carriers,* since private carriers, and all who exercise a private vocation, are free to select those with whom they shall deal, unless stipu- 1 Supra, § 103 ; Story Bailm. § 217 ; Hollister v. Nowlen, 19 Wend. 457 ; Coggs v. Bernard, 2 Ld. Raym. 234. 900; Robinson v. Dunmore, 2 Bos. Wood, J., has (illogically as it & Pull. 417 ; 2 Kent Com. 597. seems to us) embodied this incident 2 Fish V. Cliapman, 2 Ga. 349 ; or consequence of the relation in a Harrison v. Roy, 39 Miss. 390 ; 30 definition of common carrier. A Miss. 231. common carrier, he says, is "one 8 See e.<7. street railways, sleeping- (1) who offers to carry goods for cars, forwarding merchants, tow- any person between certain termini boats, etc., in next c. or on a certain route, and (2) wlio is * Story Bailm. § 508 ; Bac. Abr. bound to carry for all who tender Carriers, B. ; Riley v. Home, 5 Bing. him goods and the price of carriage." The Neaffie, 1 Abb. 405. 339 § 339 THE LAW OF BAILMENTS. [PART VI. lating to the contrary.^ A similar obligation to receive all who will pay in advance rests, we have seen, upon those who exercise the public vocation of innkeeper.^ § 338. Common Carriers by Land or Water follow the Same Rule of Responsibility. — Though the earliest English carrier decisions bore reference to carriers by land, it was held, as early as the reign of James I., that no substantial distinction, in point of responsibility, could be drawn between these and carriers by water ; but that both classes, irrespective of the element on which they exercised their vocation, ought to be held strictly accountable as common carriers of the goods and chattels committed to their custody.^ The doctrine has since been repeatedly affirmed by the best English and Amer- ican authorities;* and under Charles II. it was solemnly adjudged that not carriers upon inland waters or coastwise alone were thus included (for the earlier case was that of simple bargemen), but shipmasters or owners of vessels, and all who might be employed to carry goods beyond seas in consideration of freight.^ Admitting, however, that one and the same standard of responsibility as common carrier is ap- plicable to those occupied in transporting by land or water, it will yet appear that the peculiar perils incident to naviga- tion, and the peculiar methods of averting them, give rise to details of application in the respective classes which do not quite coincide ; modern legislation and policy favoring car- riers by water who seek to reduce their legal responsibility more than carriers by land. § 339. The Ancient and Modern Common Carrier compared. — The earliest picture afforded us of the English common car- 1 Varble v. Bigley, 14 Bush, 698. * See Trent Nav. Co. v. Wood, 3 2 Supra, §§ 305-308, where the Esp. 127 ; 2 Kent Com. 598-600. rule is stated with its qualifications. ^ Morse v. Slue, 1 Vent. 190. For qualifications in the case of the And see Boucher v. Lawson, Cas. common carrier, see c. 3, jyost. temp. Hardw. 194 ; Goff v. Clinkard, 3 Rich V. Kneeland, Cro. Jac. 330. cited in 1 Wils. 282, confirming this "The first case of this kind," said decision; King v. Shepherd, 3 Story, Lord Holt, "to be found in our 349 ; Elliott v. RosselL 10 Johns. 1. books." 12 Mod. 480. See Jones Bailm. 106, 107. 340 CHAP. I.] COMMON CARRIERS. § 339 rier by land is that of a horseman toiling along the high- way between two market-towns, laden with money, light parcels, and letters, whose chief peril is that of being set upon by thieves in some lonely place, or having his over- loaded horse slijj down in the mire.^ Shakespeare's Roches- ter carriers, after a night's stay at the inn, where they appear to have had the worst of its cheer, are hurrying to pack their horses and be off at four in the morning for London, one with his pannier full of turkeys, and the other with " a gam- mon of bacon and two razes of ginger, to be delivered as far as Charing Cross." ^ When the reign of Elizabeth began, inland transportation on its most extensive scale was by strings of pack-horses ; ^ then came the rude wagon without springs, which, improved, gradually became a fairly con- venient vehicle, both for goods and the humbler sort of pas- sengers. The lumbering York wagon, drawn by Flemish cattle, which was used in the early part of the eighteenth centurj^ is preserved to us by Hogarth's pencil ; with its bow- shaped top, protected by canvas, under which one could re- pose at night as in an army tent, its solid body, and heavy wheels. As it thumped slowly into the London inn-yard, the guests stood on the door-steps, while the carrier, first setting his passengers safely on their feet and unharnessing his beasts, proceeded to unload trunks, hampers, packages of every size and description, piles of crockery, barrels, and bales.'* Under the Statute of 12 Charles IL, the liberty of forwarding letters by private post was taken away from sub- jects of the realm ; ^ and then the land carrier had to confine his business to the heavier teaming, of which, doubtless, there was enough, considering his limited means of conveyance.^ And this was the land carriage of Coke and Lord Holt, — a legal theme which inspired neither of these nor the later 1 See Doct. & Stud. Dial. 2, c. 38; * See Hogarth's " Harlot's Prog- Encycl. Britt. " Carrier." ress," Plate I. 3 First Part of Heiuy IV., Act II., M2 Mod. 482 ; Lane u. Cotton, Scene I. 1 Ld. Kaym. G4G ; supra, § 2G8. 8 Encycl. Britt. supra ; 44 Atlantic « lb. Mouthly, p. 49 (July, 1879). 341 § 340 THE LAW OF BAILMENTS. [PART VI. Blackstone.^ Yet, long before this, water transportation had attained high renown. Ah-eady had the Mediterranean powers, the Dutch Republic, Great Britain, in turn, come to ascribe the most copious source of material prosperity to grasp- ing the carrying trade of the ocean ; and to the wars which have been fostered for the sake of gaining and keeping such a prize, the United States, in later times, have been no strangers. § 340. The Same Subject. — But, meantime, our land carrier has made progress. During the eighteenth century, and the earlier part of the nineteenth, the stage-coach, which had been known in and about London since 1650, greatly ex- tended its facilities ; post-roads were multiplied ; and the local and inland business, for conveying both passengers and goods, became, in England and America, organized on a much more liberal scale than before, so as to meet the increas- ing demand for extensive transit. But, until horse-power began to be superseded for long distances, about 1840, by steam, the capacity of the carrier car was trifling as com- pared with vessels ; and the promoters of inland traffic devoted their enterprise to canals and a connected water highway. If expanded vapor has wrought wonders in naviga- tion since this century opened, the revolution it has accom- plished during a much shorter period, in method and the bulk of land carriage, has been overwhelming. Capacious cars are yoked together in a long line, and whole cargoes of grain and produce are now rapidly drawn to the seaboard from some far inland point. Hence, if the past should serve as a criterion of the future, those now living may yet see some new and more convenient means of transit introduced, while it is certain that the interchange of the world's com- modities will grow, rather than diminish, as civilization advances its steps.^ 1 Land carriers are but lightly his day, something inferior. 2 Bl. touched upon in 3 Co. Litt. 89 a ; Com. 453 ; 3 ib. 165. 1 Co. Inst. 89 a ; and that in Ian- 2 ^ new and remarkable social guage showing a misapprehension, phenomenon of this day, as concerns Supra, %Z20. Blackstone, too, treats inland carriage in America, is the the pursuit slightingly, as though, in spectacle of municipal and local gov- 342 CHAI'. I.] COMMON CARRIERS. § 341 § 341. Carriers of Personal Property to be considered; Carriers of Passengers distinguished. — Treating of carriers as a branch of bailment law, we shall proceed to discuss the sub- ject at length in several succeeding chapters, with sole refer- ence to the transportation of personal pj'operty; in which sense alone our courts are wont to specify the vocation of " common carriers," or to apply the personal word " carrier." But " carriers of passengers " is a topic which will deserve our final attention in this volume, not only for the reason that this business is now so closely interwoven with chattel transit, and so extensively pursued under the same manage- ment, but because of the implied bailment relation which is incidentally created between the carrier himself and his pas- senger's baggage. To speak candidly, there can be, of course, no bailment of human beings, as our present law runs ; and, to the persons of passengers, as will duly appear, the courts have steadily refused to extend the severe doctrine of com- mon carriage or insurance responsibility. Yet, for one's baggage, the passenger carrier is in effect answerable, on the footing of common carrier ; and, as to passengers themselves, should he occasion loss of life or limb to au}^ human being under his charge, he would be held responsible, like one whose employment is in some sense public, and justly in- tended to be exercised for the public welfare.^ ernments uniting with individual cap- pursuit, tending less to the general italists and stock companies in the enrichment of a people than external common pursuit of monopolizing for traffic, but rather to local wealth ; themselves the privilege with its gains thus provoking municipal rivalries, of trundling freight and passengers and festering, unless skilfully treated, back and forth. It has grown com- into internal strife, civil dissensions, mon to speak of railway kings; and and public corruption. If, as history truly he wields despotic functions in teaches us, rival contention for the the comnmnity, at whose will cities ocean's commerce fructities in ftu'cign and towns bud forth or fade out, wars, that for the prizes of inland and States advance or intermit their carriage may germinate into rebellion lustre. Iidand carrying trade has and anarchy. grown already into the great com- i See Passenger Carriers, ;)o.s7, Tart peer of that on the ocean highway ; VII. ; Story Bailm. § 590 ; St« am- a potent factor of necessity in the boat New World v. King, K! How. opulence of a State or nation; and (U. S.) 4G9 ; Collett v. London & yet, from the internal confines of the North Western R., 16 Q. B. 984. 343 § 343 THE LAW OF BAILMENTS. [PAET VI. CHAPTER 11. NATURE OF THE COMMON CARRIER RELATION. § 342. Essentials of the Common Carrier Relation stated. — When controversy arises over the rights or responsibilities of a given bailment relation which had in view the transporta- tion of certain personal property from one place to another, this is the preliminary inquiry : Did the bailee undertake to transport the thing as a common carrier, or in some less perilous bailment capacity? And if it were by inference as a common carrier, then his transportation undertaking must have been (1) for reward, and (2) in pursuance of some carriage vocation which he exercises. For, though any hired bailee might expressly contract to be unduly bounden, the common carrier is one who, by virtue of his calling, undertakes, on recompense, to transport personal property from one place to another for all such as may choose to employ him,^ § 343. Transportation must be for Revrard ; Presumption of Recompense, etc. — 1. The transportation in question must have been for reward. For if it were plainly a gratuitous undertaking, though performed by one who usually charges for such service, this is nothing more than a gratuitous bail- ment for the bailee's sole benefit.^ Hence we may lay it down 1 Supra, § 331 ; Dwight v. Brew- business, but not necessarily, as will ster, 1 Pick. 50, per Parker, C. J. ; presently appear. Sheldon v. Robinson, 7 N. H. 157 ; ^ Beauchamp v. Powley, 1 Moo. & Story Bailm. § 495. Wood, J., in R. 38 ; Fay v. Steamer New World, The Neaffie, 1 Abb. 465, appears to 1 Cal. 348 ; Blanchard v. Isaacs, 3 tliink such a definition too broad. Barb. 388; Michigan Central R. v. He qualifies it by making the under- Carrow, 73 111. 348 ; Coggs v. Bernard, taking or offer one to carry between 2 Ld. Raym. 909 ; Flint R. v. Weir, certain termini, or on a certain route. 37 Mich. Ill ; supra, § 336. Such is usually the nature of such a 344 CHAP, ir.] COMMON CARRIERS. § 344 as a rule that no one is to be designated common carrier in a particular case unless he performed as a carrier for hire. But liability as a common carrier does not necessitate tlie prepay- ment of carriage charges, provided only the carrier lias a right to demand a recompense ; ^ nor is one any the less a comnion carrier because the stipulated reward is other than money, or because the rate was not fixed in advance, or because the un- dertaking may have turned out disadvantageous to him ; for it suffices that the undertaking itself was expressly, or by implication, an undertaking for reward.^ Even an extra service which is performed by the carrier as an inducement to customers who pay their regular transit fees, is not easily separable from the main undertaking as itself gratuitous ; as for instance where one's rule is to return free the empty bags of consignees who employ him as the carrier of their grain, and the loss occurs while he is so returning them."^ The general presumption is that one usually transporting for hire in the course of his business lias undertaken to transport for hire in a particular instance ; and the law here infers the mutual understanding of a reasonable compensa- tion for the service on a quantum meruit where none was expressly agreed upon, without requiring proof of an express promise.^ And yet if the facts repel all presumption of a reward intended, the carrier's standard of liability is gross negligence onl}".^ § 344. The Same Subject. — On the same general principle, a carrier's employ^i, who, out of the plain course of the car- riage business itself, takes letters or parcels gratuitously for persons, like the conductor of a passenger railway train, or clerk of a steamboat, does not bind the employer as common carrier for their safe delivery ; but, if at all, only as a gratui- 1 Indianapolis R. v. Herndon, 81 ' Pierce v. Milwaukee R., 23 Wis. ni. 143. 387. - Supra, § 29 ; Knox v. Rives, 14 * Gray v. Missouri River Packet Ala. 249; Kirtland v. Montgomery, Co., 64 Mo. 47; Gott v. Dinsmore, 1 Swan, 452; Hall v. Cheney, 30 111 Ma.ss. 45. N. H. 26. 6 Supra, § 29 ; Louisville R. v. Gerson, 102 Ala. 409. 345 § 345 THE LAW OF BAILMENTS. [PART VI. tous bailee bound to the exercise of slight diligence ; nor would the vague object of rendering the line a popular one by so doing change the gratuitous nature of the bailment.^ § 345. Transportation must be in Pursuance of Vocation. — ■ 2. The transportation in question must have been in pur- suance of some carriage vocation which the carrier exercises. And here our main object is, to distinguish one sort of hired bailee from another, with a view to determining whether the bailment responsibility in a particular instance shall be pro- nounced ordinary or extraordinary. In an early case, it was said that any person who undertakes to carry, for hire, the goods of all persons indifferently, is, in respect of the liability thereby incurred, a common carrier ; ^ and this statement is frequently found embodied in the opinions of our modern courts.^ But Alderson, B., used what, to this age, appears clearer language, when he said that every one who undertakes to carry for any one who asks him is a common carrier. " The criterion," he continues, " is whether he carries for par- ticular persons only or whether he carries for every one. If a man holds himself out to do it for every one who asks him, he is a common carrier ; but if he does not do it for every one, but carries for you or me only, that is a matter of special contract." ^ Once more, a pertinent statement of Judge Story is found constantly cited in the books : namely, that to bring a person within the description of a common carrier, he must exercise the business " as a public employment ; he must un- dertake to carry goods for persons generally ; and he must hold himself out as ready to engage in the transportation of goods for hire as a business, not as a casual occupation pro hdc vicey^ 1 Bac. Abr. Carriers, A. ; Coggs L. 372 ; Verner v. Sweitzer, 32 Penn. V. Bernard, 2 Ld. Raym. 909 ; Citi- St. 208 ; Cincinnati Mail Line Co. v. zens' Bank v. Nantucket Steamboat Boal, 15 Ind. 345 ; Elkins v. Boston Co., 2 Story, 16; Allen v. Sewall, 2 & Maine R., 3 Fost. 275; Haynie t>. Wend. 327 ; Hall v. Cheney, 36 N. H. Waring, 29 Ala. 263. 26. * Ingate v. Christie, 3 Car. & K. 61. 2 Gisbourn v. Hurst, 1 Salk. 249. s gtory Bailm. § 495 ; Citizens' 8 Mershon v. Hobensack, 22 N. J. Bank v. Nantucket Steamboat Co., 2 346 CHAP. II.] COMMON CARRIERS. § 346 This holding out, then, to the public, that one is ready to cany things generally, in pursuance of some regular culling, appeal's the prime element that distinguishes the common carrier from a mere private carrier for liire. And circum- stances must determine such an issue, as in the case of an innkeeper.^ Hence proof that one has, in the course of his vocation, for a long period carried for such as chose to employ him will readily charge him as a common carrier.^ And the carrier's sign, his business cards, advertisements, and cir- culars, may, any or all, be material in such an issue.'^ Dubi- ous expressions thus put forward should certainly not be distorted, by forced legal construction, into an offer of general carriage ; * and the restrictive and explanatory terms under which one holds himself out as doing a transporting business might, in a clear case, negative any inference in favor of his being treated as a common carrier for general customers.^ But where an individual's acts, or conduct, his methods of business, and the propositions he holds out for conducting it, lead naturally to the inference that he exercises, or offers to exercise, the vocation of common carrier, they who intrust goods and chattels to him upon the confidence that he is a common carrier can hold him responsible accordingly.*^ § 346. The Same Subject. — Difficulties are presented in case the transporting party has carried but once or twice in this manner, or for one or two particular patrons ; though such difficulties are rather of proof than of principle. Thus, in a case where the owner of a sloop was specially employed to make a certain trip for a load of grain, on the promise of a certain sum of money for doing so, he was held not sufficiently Story, 32 ; Satterlee v. Groat, 1 "Wend. 2 Haslam v. Adams Express Co., 272 ; Fish v. Chapman, 2 Ga. 349 ; Bosw. 235. Anonymous v. Jack.son, 1 Hayw. 14 ; ^ ingate v. Christie, 3 Car. & Samnis v. Stewart, 20 Ohio, 71 ; K. Gl. Elkins V. Boston & Maine K., 3 Fost. * Oxlade v. North-Eastern R., 9 273, 280. But see our definition, W. H. 272. supra, § 342. ^ Scaife v. Farrant, L. R. 10 Ex. 1 Supra, § 276. 368. 6 See Browne Carriers, 4(5, 47. 347 § 3-17 THE LAW OF BAILMENTS. [rART VI. chargeable as a common, rather than a private, carrier.^ And so was it decided, whei'e the owners of a boat, used for their own purposes, merely permitted some other parties to use it with them on the pa3nnent of certain rates.^ But had evi- dence been produced, showing further that the party in either instance had offered his vessel to the public for such trips, the decision Avould probably have been different. For a common carrier is rightfully made responsible on his general under- taking to carry things for reward, even though the trip be his first ; ^ nay, as a recent case has held, though but one trip at all were contemplated ; * since it is the public carriage inten- tion which is material to such an issue, rather than the longer or shorter fulfilment of that intention. On the other hand, a party once a common carrier, who has clearly discontinued such business, is but an ordinary bailee towards a stranger for whom he casually transports property at a much later date ; ^ though, like a retiring partner, one who has been lately en- gaged in a certain business, from which he withdraws, must take heed how he permits himself to be held out to old cus- tomers who seek him. § 347. The Same Subject; Casual Occupation, etc. — Again, notwithstanding what text-writers may have said of a busi- ness, as distinguished from one's casual occupation pro hdc viee, there is no denial that one may render himself liable as a common carrier, even though he pursues this carriage call- ing at the same time with other business.^ Thus, if one whose principal pursuit is farming solicits goods to carry to the market-town in his wagon on certain convenient occa- sions, he makes himself a common carrier for those who then employ him.'' Such, at least, is the well-considered result of several American decisions, which appear to justify the gen- 1 Allen V. Sackrider, 37 N. Y. 14L 5 Satterlee v. Groat, 1 Wend. 272 ; 2 Flautt V. Lashley, 36 La. Ann. Steele v. McTyer, supra. 106. 6 See Dwigbt v. Brewster, 1 Pick. 3 Fuller V. Bradley, 25 Penn. St. 50, per Parker, C. J. 120. But see Elkiiis v. Boston & '^ Gordon v. Hutchinson, 1 W. & Maine R., 3 Post. 275. S. 285; Angell Carriers, §§ 70, 71 ; * Steele v. McTyer, 31 Ala. 667. Harrison v. Roy, 39 Miss. 396. 348 CHAP. II.] COMMON CAKRIERS. § 348 eral assertion, that whether the business of common carrier be principal or subordinate, leading or incidental, usual or only at periods, the law subjects it, while it is being pursued, to all the consequences of exercising a public piofcssion.* But Avhere one of a different vocation assumes towards those who may choose to employ him the business of carrier only at particular!' seasons of the year, it does not follow that at other seasons, and under exceptional circumstances, his casual transportation of goods would render him liable therefor, as a common carrier.*-^ On the other hand, one may be a common carrier and at the same time conduct a private pursuit ; nor does it follow that because he exercises a public vocation in one sense he exercises it in another and all senses.^ § 348. The Same Subject ; Carriage between Fixed Points ; from Town to Town, etc. — A person who is engaged in carry- ing generally, for others, to and from any point, is a common carrier, notwithstanding his trips be not regular between the same points, or places.* One may even be a common carrier, who has no fixed termini, but leaves the course of transpor- tation in each case to depend upon his customer's wishes.^ And a carrier whose line of business is a certain route be- tween certain points, but who undertakes to carry or have the goods transported to a point beyond or out of his route, has been held, in that instance, a common carrier for the whole transit ; a doctrine of the utmost consequence in its application to connecting railways.^ So, should one who 1 lb. ; Chevallier v. Straham, 2 * Pennewill v. Cullen, 5 Ilarr. 238. Tex. 115 ; Moss v. Bettis, 4 Ileisk. f* Liver Alkali Co. v. Joliiison, L. 661. But see Fish v. Chapman, 2 R. 7 Ex. 207 ; s. c, on appeal, L. K. Ga. 349. 9 Ex. 388. 2 Haynie v. Baylor, 18 Tex. 498. " Muschamp v. Lancaster R., 8 M. 8 Tims, a common carrier, who & W. 421 ; Tuckerman v. Stephens, contracts with government to carry &c. Trans. Co., 32 N. J. L. 320; the mails, exercLses no public voca- Wilcox v. Parmelee, 3 Sandf. 610. tion as postmaster or common can-ier Cf. Pitlock r. Wells, 109 Mass. 462. towards the sender of a letter by See post, c. 9. the mail. Central R. v. Lampley, 76 Ala. 357. 349 § 348 THE LAW OF BAILMENTS. [PART VI. hahitnally uses his wagon or barge to convey his private produce to market, and then loads up with supplies to bring home for such of his neighbors as will pay him for the ser- vice, be adjudged a common carrier, in respect of the return trips.i It is usual, however, for a common carrier to hold himself out as carrying between certain fixed termini, or on a certain route, or as his customers may desire within some circumscribed limits. It appears to have been a common impression in England, once, that, to constitute any party a common carrier, the trans- portation must needs be from one town within the realm to another.'-^ But a public relation of such magnitude cannot, at this day, be regarded as circumscribed within such positive confines. For, first, it must be admitted that one who offers himself, generally, to transport personal property from one part of the same town to another is not less a common carrier than one who plies his vocation between two municipalities.^ And, in the second place, it is now well settled, that one may be a common carrier, though he undertake to transport or to send goods from a place within the realm to one without it ; or, with reference to this country, from a place in one State to a place in another State, or, indeed, to some point quite outside of the United States ; * for, were it otherwise, not only would foreign trade by the ocean be too little subjected to the wholesome restraints of public policy, but our modern railways would be worse for the want of similar discipline. We speak here of contract rights, and duties assumed within our own jurisdiction, without reference to the possible con- flict of laws which might affect the enforcement of legal remedies in some foreio:n tribunal. 1 Harrison v. Roy, 39 Miss. 396. * This holds true of water con- 2 See Story Bailm. § 496 n. ; Brind veyance. Morse v. Shie, 1 Mod. 85 ; v:Dale, 8 C. & P. 207. Nugent v. Smith, 1 C. P. D. 19, 423 ; 8 See Ingate v. Christie, 3 C. & K. Elliott v. Rossell, 10 .Johns. 1. And 61 ; Richards v. Westcott, 2 Bosw. of transportation by railway. Crouch 589 ; Robertson v. Kennedy, 2 Dana, v. London, &c. R., 14 C. B. 255 ; 480 ; Story Bailm. § 496 ; 2 Kent Burtis v. Buffalo R., 24 N. Y. 269. Com. 598, 599 ; Angell Can-iers, § 74. 350 CHAP. II.] COMMON CARRIERS. § 350 S 340. Either a Professed Vocation or a Special Undertak- ing should appear. — 111 general, to charge a person as a com- mon carrier who transports personal property for liire, the transportation in question should come within the scope of the professed vocation of common carrier; unless, indeed, some special undertaking to carry in such a capacity should appear.^ One's special undertaking may help out his general undertaking and establish the public vocation in question. But no written memorandum is needful to prove such a spe- cial undertaking ; 2 for the proof may be oral and evinced by one's conduct and circumstances. The special agreement to transport gratuitously may place one who is usually a public carrier on the footing of private carrier and gratuitous bailee in a particular instance ; and so, too, may a special undertaking (such as we seldom find) place a private carrier or ordinar}^ bailee on the footing of public carrier, with corresponding risks and responsibility .^ But aside from such special undertaking, the main elements which determine the issue of common carrier are tlie two which we have described at length. And in pursuits for hire such as we are now to distinguish from that of common carrier, the standard applicable is that of ordinary care and dilin-ence, whether under the rule of bailments or the broader one of service for hire.* § 350. What Pursuits are classed -writh Common Carriers ; Carriers by Land. — We ROW proceed to inquire what pur- suits by land or by water are most commonly classed with common carriers. 1. As to occupations by land. Wagoners and teamsters, whose business it is to carry on hire goods and chattels from one locality to another, stand earliest amonn: the recognized common carriers of our law,^ after the loaded horseman;^ and to these may be added common porters, 1 Tunnel v. Pettijohn, 2 Hart. 48 ; ^ gge sitpra, § 337. 30 Miss. 231 ; Fish i?. Ch.apman, 2 Ga. * § 331 ; Allis v. Voight, 90 Mich. 349 ; Harrison v. Roy, 39 Miss. 396 ; 125. Varble v. Bigley, 14 Bush, 698. * Gisbourn v. Hurst, 1 Salk. 249 ; 2 Citizens' Bank v. Nantucket Gordon r. Hutchinson, 1 W. & S. 285 ; Steamboat Co., 2 Story, 10. Story Baihn. § 496. « Supra, § 339. 351 § 351 THE LAW OF BAILMENTS. [PART VI. riders, draymen, truckmen, and cartmen ; it mattering not whether siicli emj)loyment be carried on from town to town, or from one part of a town to another.^ A city express en- gaged in transporting parcels or the baggage of travellers within the city liraits,^ and local expresses, so called, whose business is carried on from one town to another in special conveyances, after the fashion of the ancient wagoner, fall alike under the denomination of common carriers. § 851. The Same Subject; Express and Forwarder distin- guished. — But our modern express, which forwards for hire over transportation routes by means of conveyances otherwise controlled, presents a somewhat novel aspect. The American pioneer in that business is said to have journeyed in person, by steamboat and rail car, between New York and Boston, with all his customers' valuables contained in a hand-satchel ; but the pursuit thus humbly originating fifty years ago now commands immense capital, and lays the civilized world under contribution.^ True is it that such a pursuit somewhat resem- bles the earlier one of " forwarding merchant,," which it has largely superseded ; and forwarding merchants were always adjudged not to be liable at our law as common carriers, but only for ordinary diligence.* Hence an early hesitation in the courts about treating the express carrier differently.^ But forwarders, besides participating in no wise in the control of the carriage, were only a sort of commission merchant, em- ployed mainly in warehousing, or for buying and selling the goods they forwarded ; and, indeed, one who simply sells to a distant customer becomes almost invariably a forwarder of merchandise to him in the same sense. Any carrier, too, for 1 Story Bailm. § 496 ; Angell Car- Harnden, an American, instituted riers, §§ 74, 76; 2 Kent Com. 598; the modern express in 1839. Robertson v. Kennedy, 2 Dana, 4-31 ; * Angell Carriers, § 75 ; Story supra, § 348. Bailm. § 502 ; 2 Kent Com. 591, 592 ; 2 Verner v. Sweitzer, 32 Penn. St. Piatt v. Hibbard, 7 Cow. 497 ; May- 208 ; Eichards v. Westcott, 2 Bosw. bin v. South Carolina R., 8 Rich. 589; Parmelee v. Lowitz, 74 111. 116. 240; Northern R. v. Fitchburg R., Cf. Scaife v. Farrant, L. R. 10 Ex. 6 Allen, 254 ; Stannard v. Prince, 64 358. N. Y. 300. 3 See Am. Cycl. " Express." & Hersfield v. Adams, 19 Barb. 577. 352 CHAP. II.] COMMON CARRIERS. § 351 his own route, may undertake to become the forwarder beyond its terminus.^ Forwarders naturally take instructions of a customer as to the line or the mode of transmitting liis goods ; and deviation from the customer's directions in this respect has rendered a forwarder personally answerable for the loss sustained in consequence, notwithstanding his honesty of pur- pose, and the refusal of the designated line to take the goods ;2 though, we should add, it ma}' be the right and duty of for- warders to pay advance charges of the carrier, looking to their own emph)yers for full reimbursement.'^ The express, on the other hand, makes a through transportation its main concern ; it forwards, as a rule, on lines of its own choice, under the continuous supervision of its own agents, and in pursuance of private arrangements with the transporters, of which its own customers are not cognizant; it solicits business from the public, and its service is sought mainly because of the peculiar assurance thus afforded, that property which, because of its nature, its value, or the peculiar hazards of the journey, re- quires personal watchfulness throughout the transit, shall reach its destination in safety. Accordingly, in this country, it has at length become clearly settled that expresses are liable, not as forwarders, but as common carriers ; * nor can this doctrine yield to their use of such misleading titles as " transportation company," " forwarder," and the like, for designating what, in fact, is an express business, conducted after the company's own judgment.^ J See Northern R. v. Fitchburg 3.35 ; Southern Express Co. v. Mc- K., 6 Allen, 254 ; post, c. 9. Veigh, 20 Gratt. 264 ; Southern Ex- 2 .Johnson v. New York Central press Co. v. Iless, 53 Ala. 10 ; United R., 33 N. Y. 610; Angell Carriers, States Express Co. v. Backman, 28 § 75; Proctor v. Eastern K., 105 Ohio St. 144; Christenson v. Am. Mass. 512. Exp. Co., 15 Minn. 270. 8 Stannard v. Prince, 64 N. Y. " Mercantile Mut. Ins. Co. v. 300. Chase, 1 E. D. Smith, 115; Anieri- * Bank of Kentucky v. Adams can Express Co. v. Pincknej', 2!» 111. Express Co., 93 U. S. 174; ITaslam 392; Buckland v. Adams Express V. Adams Expre.ss Co., 6 Bosw. 235; Co., 97 Mass. 124; Bank of Ken- Belger v. Dinsmore, 51 Barb. 69; tncky v. Adams Express Co., 03 U.S. Southern Express Co. v. Newby, 30 174 ; 86 Tenn. 392. Ga. 035 ; Sweet v. Barney, 23 N. Y. 23 353 § 852 THE LATV OF BAILMENTS. [PAET VI. The owner of property lost on transit while being expressed may, if he prefer, according to some earlier cases, sue the culpable transporting carrier instead of the express ; but a reasonable arrangement, in force between those parties them- selves, might qualify such a right on his part ; ^ and doubtless the express carrier, on making the loss good as he was bound to do, should gain the owner's rights against the carrier, who, actively transporting the thing, occasioned, in reality, the mis- chief. Generally speaking, one who employs an express will sue the express carrier for a loss rather than the transporting carrier who did the mischief as agent of the express.^ And such appears the preferable course.'^ 5 352. The Same Subject ; Carriers of Passengers, Baggage, and Goods. — The business of stage-coach or omnibus has primary reference to the carriage of passengers, in which sense the strict common-carriage liability can affect only the bag- gage accompanying the parties who are so conveyed.* But where this business is so extended as to hold out the carrier of passengers to the public as a carrier likewise for all who may choose to send on hire parcels, money, valuables, or other chattels, by his conveyance, this will constitute the stage or omnibus proprietor a common carrier for customers of the latter description.^ The same doctrine is true of railways, but with far better presumption in its favor; for our modern railways, unlike the stage-coach lines they so widely displace, have constantly assumed, with their immense inland facilities, to carry over 1 Langworthy v. New York, &c. Shouse, 5 Rawle, 179 ; Robertson v. R., 2 E. D. Smith, 195 ; New Jersey Kennedy, 2 Dana, 430 ; Story Bailm. Steam Nav. Co. v. Merchants' Bank, § 500 ; Powell v. Mills, 30 Miss. 231 ; 6 How. 344. Merwin v. Butler, 17 Conn. 138. 2 Boscowitz V. Adams Express That omnibuses follow the doctrine Co., 93 111. 523. of stage-coaches, in their course of 3 See § 359 a further on this point, business, as visually pursued, see * See Passenger Carriers, post, Parmelee v. McNulty, 19 111. 556 ; Part VII. ; Story Bailm. §§ 496, 499 ; Verner v. Sweitzer, 32 Penn. St. 208 ; Angell Carriers, § 77. Dibble v. Brown, 12 Ga. 217. And ^ Bac. Abr. Carriers, A. ; Middle- see, as to the proprietor of a line ton V. Fowler, 1 Salk. 282 ; Dwight of omnibuses and baggage-wagons, V. Brewster, 1 Pick. 53 ; Beckman v. Parmelee v. Lowitz, 74 111. 116. 354 CHAP. II.] COMMON CARRIERS. § 352 their route both passengers and general freight. Railways, in short, are common carriers both of goods and chattels re- ceived as freight, and of the baggage of their passengers ; and they are, moreover, passenger carriei-s.^ Yet railway freight trains and passenger trains are commonly run separately, and on different time-tables ; hence the inquiry may become pertinent, whether the fact of receiving mere freight on rare occasions upon passenger trains, apart from the baggage and effects of persons actually conveyed, will render the railway liable to such bailors as a common carrier. Such an issue must depend upon the particular circumstances of the case ; and while isolated exceptions of such hired employment prove no rule, a practice in this respect pursued by one's suitable agents may extend the principal's responsibility beyond the usual limitations.^ Even a street railway, whose regular occu- pation is that of transporting passengers, and that without any baggage, may be proven a common carrier of merchandise by the habitual conveyance thereof on hire to accommodate the public.^ Stage-coaches, omnibuses, and street railways are primd facie passenger carriers only, and not held out as common carriers of goods for the general public, however it may be as to baggage which is incidental to the passenger service ; but with steam railways it is commonly otherwise, for they ad- vertise for freight, and issue rate schedules for transporting merchandise ; and they moreover run special trains, provide suitable cars, and maintain buildings expressly for receiving and delivering goods and chattels consigned them for trans- portation.* 1 2 Redfield Railways, 235 ; Story 2 gee Murch v. Concord, &c. R., Bailm. § 500 ; Angell Carriers, § 78 ; 9 Fost. 9 ; Elldns v. Boston & Maine Parker v. Groat Western R., 7 M. & R., 3 Fost. 275. G. 253; Camden & Amboy R. r. 3 Levi v. Lynn, &c. Horse R., 11 Burke, 13 Wend. 611 ; Thomas r. Allen, 300. Boston & Providence R., 10 Met. •• Cf. Powell v. Mills, 30 Miss. 231 ; 472; Hannibal R. r. Swift, 12 Wall. Thomas v. Boston & Prov. R., 10 262. For a pas.senger carrier's lia- Met. 472. And see Kimball v. Rut- bility as to baggage, see post, Part land R., 20 Vt. 247. VIL A railway may be a common car- 355 § 854 THE LAW OF BAILMENTS. [PAET VI. § 353. The Same Subject ; Sleeping-Cars, Bridge and Turn- pike Companies, Stockyards, etc. — The Special business of sup- plying sleeping-cars to railway trains, for travellers who may choose to pay for the extra accommodations so afforded them, is held no common-carrier pursuit, in the sense of imposing an exceptional bailment responsibility for what the occupant may have about him.^ This seems to be, however, because the responsible transporter of baggage and passengers is the railway company. In some aspects of his business, at all events, a sleeping-car proprietor must conduct himself as one who exercises a public vocation ; ^ and at all events he must exercise ordinary care and diligence within the scope of his trust, like any other bailee for hire.^ A bridge or turnpike company, which furnishes to respon- sible carriers a highway with switching or other like facili- ties, is not by virtue of such business a common carrier.* Nor is a stockyard company or other mere agistor or warehouse- man for a carrier.^ § 354. Common Carriers by Water. — 2. As to Occupations by water. A bargeman, hoyman, lighterman, or boatman, tier of goods, even though its charter Martin, 95 Ga. 314. He should look does not style it thus ; for the busi- after property casually left in the ness itself sufficiently imports such car. 95 Ga. 810. Thus, the sleepiug- an occupation. Chicago R. v. Thomp- car company should not only furnish son, 19 111. 578. a berth at night, but keep a com- 1 Pullman Palace Car v. Smith, petent watch, exclude unauthorized 73 111. 3G0 ; Blum v. Pullman Palace persons from the car, and take rea- Car Co., 1 Flip. C. C. 500; Tracy t?. sonable care towards preventing Palace Car Co., 67 How. (N. Y.) thefts and loss by its own servants Pr.l54. Cf. 1 Sheldon (N.Y. Super.), or otherwise. lb. 457. Nor is an innkeeper's liability That the railroad company cannot imputed. 73 111. 360. evade its own duty as responsible 2 Thus, he cannot select his pat- transporter, by placing blame upon rons at pleasure, but must treat all the sleeping-car proprietor, see Penn- the public alike. Nevin v. Pullman sylvania Co. v. Roy, 102 U. S. 451 ; Palace Car Co., 106 111. 222 ; § 266 a. Part VII., posi. ^ Kinsley v. Lake Shore R., 125 * Kentucky Bridge Co. v. Louis- Mass. 54 ; Woodruff Co. v. Diehl, 84 ville R., 37 Fed. 567. And see as to Ind'. 474 ; Blum v. Pullman Palace canal highways, § 354. Car Co., 1 Flip. C. C. 500 ; 28 Neb. & Delaware R. v. Stock Yard Co., 39 ; Pullman Palace Car v. Gavin, 93 45 N. J. Eq. 50. Tenn. 53 ; Pullman Palace Car v. 356 CHAP. II.] COMMON CAKllIERS. § 354 whose carriage of goods by water is near shore, has long been adjudged a common carrier.^ To ferrymen, or ferry compa- nies,2 and those plying canal boats,^the same doctrine should apply; the ferries of this da}-, however, usually taking loaded teams on board with their drivers, whose partial control much affects the issue of responsibility, while canal boats are rather employed in conveying cattle and inanimate freight placed under the carrier's sole charge. One who has a raft or flat- boat suitably employed may be a common carrier, even though intending to go down the river Imt once, and then break up his transport and sell it for lumber;* a mode of water-carriage formerly quite in vogue on the Mississippi and its tributaries. Steamboats, which have from their first introduction on the Hudson River, in tlie early part of this century, transacted a general freight and passenger business, are established, both in England and America, by a long series of decisions, to be common carriers, both for the baggage of passengers, and as to goods which are shipped by general consignors.^ But here, as elsewhere, the employment to be designated 1 Jones Bailm. 106-108 ; Rich v. 42 Ga. 528 ; Ferris v. Union Ferry Kneeland, Cro. Jac. 830 ; Bac. Abr. Co., 36 N. Y. 312 ; Wyckoff v. Queens Carriers, A. ; Morse v. Slue, 1 Mod. County Ferry Co., 52 N. Y. 32. 85 ; Angell Carriers, § 79 ; Liver ^ Angell Carriers, § 81 ; Arnold v. Alkali Co. v. Johnson, L. R. 7 Ex. Ilalenbrake, 5 Wend. 33 ; De Mott 267; 9. c, on appeal, L. R. 9 Ex. v. Laraway, 14 Wend. 225; Spencer 338 ; Allen v. Sewall, 2 Wend. 327 ; v. Daggett, 3 Vt. 92. AUter, under supra, § 338 ; Moss v. Bettis, 4 certain inconsistent circumstances. Heisk. 0(51. Beckwith v. Fri.sbie, 32 Vt. 559. 2 Story Bailm. § 490 ; Willoughby * Steele v. McTyer, 31 Ala. 067. V. Horridge, 12 C. B. 742 ; White v. And see supra, § 346. Winnisimmet Co., 7 Cash. 150 ; An- ° Story Bailm. § 490 ; 2 Kent gell Carriers, § 82 ; Smith v. Seward, Com. 599 ; Angell Carriers, § 83 ; 3 Penn. St. 342 ; Pomeroy v. Donald- Siordet v. Hall, 4 Bing. 007 ; Allen son, 5 Mo. .3(5 ; Sanders v. Young, 1 v. Sewall, 2 Wend. 327 ; Jencks v. Head, 219 ; Wilson v. Hamilton, 4 Colcn)an, 2 Sumn. 221 ; Harrington Ohio St. 722; Powell V.Mills, 37 Mis.s. v. M'Shane, 2 Watt.s, 443; Hale v. G91 ; Hall v. Ronfro, 3 Met. (Ky.) New Jersey Steam Nav. Co., 15 Conn. 61 ; Lewis v. Smith, 107 Mass. 334; 539; Bowman v. Hilton, 11 t)hio, Harvey v. Rose, 20 Ark. 3. The 303; Porterfield v. Humphreys, 8 ferry occupation must be a public Humph. 497 ; Bennett v. Filyaw, 1 one, and for hire, in order to render Fla. 403. one a common carrier. Self v. Dunn, 357 §354 THE LAW OF BAILMENTS. [part VI. as common carriage is that held out for conveying personal property for all who may pay for the particular service. A canal company which simply allows the use of its water-high- way to the boats of customers, who pay tolls, is not a com- mon carrier.^ For it is the control of the transporting vehicle, or, at least, participation in the transportation performance itself, which gives to one the status of carrier; and his duty must be not passive, but active, as concerns the goods. Neither is a tow-boat usually taken to be a common carrier,^ though in such a case the border line runs very close ; since here the legal responsibility imposed is that of exercising ordinary care, diligence, and skill in performing a peculiar service which consists in drawing, pulling, tugging, but not carrying, certain vessels with their cargoes, of which other parties have the active control.^ Nor is log-driving con- sidered a common-carriage pursuit.* 1 Exchange Ins. Co. v. Delaware Canal Co., 10 Bosw. 180. And see § 353. 2 Grigsby v. Chappell, 5 Rich. 443. And see § 356 et seq. as to responsi- ble transporter. 3 Transportation Line v. Hope, 95 U. S. 297 ; Angell Carriers, § 86 ; Caton V. Rumuey, 13 Wend. 387 ; Wells V. Steam Nav. Co., 2 Comst. 204, per Bronson, J. ; Hays v. Paul, 51 Peun. St. 134 ; The New Philadel- phia, 1 Black, 62 ; Ashmore v. Penn. Steam Towing Co., 4 Dutch. 180 ; White V. The Mary Ann, 6 Cal. 462 ; The Neaffie, 1 Abb. 465 ; Varble v. Bigley, 14 Bush, 698 ; Hays v. Millar, 77 Penn. St. 238. But see Sproul v. Hemmingway, 14 Pick. 1 ; Clapp v. Stanton, 20 La. Ann. 495. In Bussey v. Miss. Valley Trans. Co., 24 La. Ann. 165, a distinction is founded upon the method of employ- ing the tow-boat. A tow-boat, ob- serves the court, may well be said to be no common carrier, when it is em- ployed as a mere means of locomo- 358 tion under the entire control of the towed vessel ; or the owner of the towed vessel and goods therein may remain in possession and control of the property thus transported to the exclusion of the bailee ; or the tow- ing may be casual merely, and not as a regular business between fixed termini. But the tow-boat must be held responsible as a common car- rier, where, as in the present case, she plies regularly between fixed ter- mini, towing, for hire and for all persons, barges laden with goods, and taking into her full possession and control, and out of the control of the bailor, the property thus trans- ported. * Mann v. White River Log Co., 46 Mich. 38. This business consists in running, rafting, and booming logs down stream. And see, as to the business of a mud-scow, under pe- culiar circumstances. Bell v. Pidgeon, 5 Fed. R. 634 ; and as to hauling hired cars, St. Paul R. v. Minneapo- lis R., 26 Minn. 243. CHAP. 11.] COMMON CAIIKIERS. § 35G § 355. The Same Subject. — Some have essayed to set up a letjal distiiicLioii between eania<;e on inland waters and oeean carriage.^ But tliis, upon ample consideration, the courts of Great Britain long ago held to be untenable. And the English doctrine is that they who carry, by a ship or vessel, whether propelled by steam or wind, goods, chattels, and merchandise, the same being conveyed as freiglit under their general undertaking to perform such carriage fur the public, shall be held answerable all the same, whether the transpor- tation be on inland waters, coastwise, or by the high seas.^ This appears now to be the well-settled rule in America, likewise ; ^ though one or two early State decisions seem to have inclined to a different conclusion.* And yet, at the present day, the liability of ship-owners in respect of the carriage of property is, both in England and the United States, largely controlled by legislative enactments, founded upon an appreciation of the peculiar hazards incurred, which we shall take occasion to examine in a later chapter.^ § 356. Relation attaches to the Responsible Bailee as Indi- vidual, Partnership, or Company. — In all of the pursuits we have just enumerated, the rights and responsibilities of the 1 Morse v. Slue, 1 "Vent. 190 ; Jones ship-owner, who is not a common Bailm. 109 ; Trent Nav. Co. v. Wood, carrier upon the usual tests, can be 3 Esp. 127 ; Boucher v. Lawson, Cas. subjected to the liabilities of a com- tenip. Hardw. 183. mon carrier. lb. 423. 2 lb. In Nugent v. Smith, 1 C. P. »2 Kent Com. 599, 600 ; Story D. 19, Brett, J., sets forth the view Bailm. § 497 ; Angell Carriers, § 88 ; that not only such ship-owners as Hastings v. Pepper, 11 Pick. 41 ; have made themselves in all senses Williams v. Grant, 1 Conn. 487 ; common carriers are liable to that Boyce v. Anderson, 2 Pet. 150 ; Bell extent; but all ship-owners who carry v. Reed, 4 Binn. 127 ; Brown v. Clay- goods for hire, — whether inland, ton, 12 Ga. 5(i4 ; Elliott v. Ilossell, 10 coastwise, or abroad, outward or Johns. 1 ; Allen v. Sewall, 2 Wend, inward. This ingenious reasoning, 327 ; s. c. 6 Wend. 335. founded upon the supposed incorpo- * Aymar v. Astor, 6 Cow. 200 ; ration into English jurisprudence of Angell Carriers, § 80. the Roman doctrine was, however, ^ q 5^ p^g^ ■ Angell Carriers, § 90, expressly repudiated by Cockburn, and Lathrop's note ; English Acts, 7 C. J., when the same case came up Geo. II., c. 15; 26 Geo. III., c. 159; on appeal from the Common Pleas U. S, Rev. Sts. §§ 4281-4289. Division ; and it was held that no 359 § 357 THE LAW OF BAILMENTS. [PAKT VI. common-carriage relation attach to parties having possession, control, and authority in the bailment performance ; that is, to the real bailee. It is not the mere wagoner or boatman, the railway conductor, engineer, or navigator, who incurs the risks of a common carrier, but rather the permanent or tem- porary proprietor of the vehicle, with its contents, the trans- porting party in charge of the goods, the principal in the business for the time being ; except that any one accepting goods for transit for an undisclosed principal renders himself personally liable to customers in consequence. Our common carrier may be an individual, a partnership, or a company ; and agents, officers, and employes may have borne active part in the bailment performance, for which, in the eye of the law, those they represent are alone chargeable to the bailor or owner, unless they themselves transcend the actual and manifest scope of their authority. Some further considera- tions which this idea of responsible transporter suggests may well, then, be set forth. § 357. How Agents may become solely Responsible. — The business of a simple carrier of passengers, like a stage-coach or omnibus company, which does not presumably include the conveyance of general merchandise on hire for all who wish, may be so guardedly transacted in a particular instance that the servant alone must be deemed the special personal bailee of such packages as third parties may have confided to him to carry without his principal's concurrence. Hence, a stage- driver whose employers had not compromised themselves, has alone been held liable, and that as an ordinary bailee for hire, to parties for whom he has been in the habit of carrying par- cels of money on his route for a small and uniform personal compensation.! But where, on the other hand, the stage com- pany takes the profits thereof, instead of the driver, or (what would amount to the same thing) employs him on terms wdiich recognize the perquisites for taking small packages as part of his remuneration, or in some other w^ay assumes the business as its own, the stage company may be rendered liable 1 Shelden v. Robinson, 7 N. H. 157. 360 CHAI». II.] COMMON CARRIERS. § 357 in his stead as the bailee, and, upon justifying facts, as a full common carrier of the })aekagcs ; supposing, of course, that the owner of the goods did not, while cognizant of such a private arrangement, contract with the driver as sole princi- pal.^ The same reasoning will apply to the conductor of a passenger railway train, who carries goods on board contrary to the prevailing practice ;2 to the driver or conductor of a horse-car taking chai'ge of parcels ; to the clerk eniplo3-ed on a passenger steamboat ; ^ and in numerous other cases where one has charge of another's vehicle not clearly offered for the public transportation of such property. For, in general, where a servant performs acts in violation of his master's instructions, and not, moreover, in the ordinary and apparent course of the business in which he is employed, he acts for himself, upon his own responsibility, and not for his em- ployer ; * but, as concerning acts permitted, or in the appar- ent scope of an authorized employment, in faith of which the bailment is made, his master must respond to others.^ Common carriers are, of course, responsible to the public for the acts of all subordinates whom they emplo}^ iu the usual course and scope of the public vocation, notwithstand- ing any private arrangement between employer and em- ployed, of which the bailor was not apprised. And, in general, no private understanding between a carrier and his own subordinate, whereby the latter is to receive the sole compensation for carrying certain things, can avail against a bailor for reward who suffers loss, unless the bailor is shown to have been aware of this arrangement, and to have bailed his property to the agent exclusively on the faith of it.** iSeeBean«.Sturtevant,8N.II.14G. o Story Bailm. § 507; Allen v. '■2 Elkins V. Boston & Maine R., 3 Sewall, 2 Wend. 327 ; s. c. O Wend. Fost. 275. 335 ; Citizens' Bank v. Nantucket 8 Angell Carriers, § 85 ; Citizens' Steamboat Co., 2 Story, 40. Where Bank v. Nantucket Steamboat Co., 2 sleep! n.i:-car companies furnish their Story, 10. convenient cars to a railway, the * Levi V. Lynn Horse Railroad passenger, as to himself and his bag- Co., 11 Allen, .300. gage, is usually free, by the purchase 6 Satterlce v. Groat, 1 Wend. 272 ; of his ticket, to hold the railway com- Jenkins v. Pickett, 9 Yerg. 480. 3G1 § 359 THE LAW OF BAILMENTS. [PART VI. § 358. The Same Subject ; Scope of an Agency which shall bind Principal. — A principle often available for cases of this character is that, where the servant or employ(5 of a carrier company is accustomed to act in violation of a rule of the company, a waiver of that rule by the company itself cannot be established, unless a knowledge of such custom and con- duct, amounting to acquiescence, be brought home to some officer or subordinate who is charged with the enforcement of the rule.i But, whatever conflict of opinion may formerly have pre- vailed as to the binding force of an agent's acts and its true extent, the inclination of late cases appears to be, with refer- ence to railway and express companies at least, to consider that the words, acts, and knowledge of the agent are admis- sible in evidence to bind the company only so far as relates to the particular business intrusted to him, and while engaged in that business.^ § 859. Test of Responsible Employment as against Owner- ship ; Lessee, Charterer, etc. — Again, as to who shall be deemed the public bailee in control or management of the transporta- tion business, the criterion is actual responsible employment, not mere ownership.^ If one ferryman leases his boat to another, it is held that the former cannot be compelled to respond for an accident which occurs while the boat is in the latter's management, nor be sued in an action on the case for not maintaining the ferry .^ Similar inquiries might arise as to the employment of a vessel. For the owners of a ship or vessel are liable, where they undertake to convey merchandise on general freight ; ^ but, where the vessel is chartered for a voyage, it is rather the charterer who becomes the carrier ; and, as between pany liable as responsible transporter 8 Xuckerman v. Brown, 17 Barb, and principal. § 353. 191. 1 O'Neill u. Keokuk R., 45 Iowa, * Claypool v. McAllister, 20 111. 546. 504. 2 Evans v. Atlanta R., 56 Ga. 498 ; ^ Liverpool Steam Co. v. Phenix Wells V. Am. Express Co., 44 Wis. Ins. Co., 129 U. S. 397. 342. 362 CHAP. II.] COMMON CARRIERS. § 3G0 owner and charterer, the charter-party must determine how the mutual rights and duties lie.^ But, if the owner of a chartered vessel should act as its manager before the public, and fail to bring notice to the general consignor of freight, that the vessel has been let out to others, he may i-ender himself immediately liable to such consignor as the ostensi- ble carrier.2 A ship-owner wlio employs the vessel on his personal account, and takes certain goods on special freight for another party's private accommodation, does not of neces- sity assume a common carrier's risks ; for, to come within our delinition, he must have held himself out as ready to transport property for persons generally.^ § 359 a. Common Carriers as to Express or Mail Matter. — A railway or transportation company may, as to the govern- ment which employs its service in carrying the mails, incur the liabilities of a common carrier. But in such a case the responsible transporter as concerns the general public is the United States, and to the individual sender of mail matter such an agent is not liable directly for loss.* § 360. Rule applied to Railv7ays ; Letting, Chartering, etc. — The letting or chartering of a car or an entire train on a railway may give rise to similar differences of legal construc- tion, though the law of shipping finds here no exact parallel. Thus, where a railway company lets or charters cars abso- lutely to any consignor of freight, the charterer's rights and remedies must turn largely upon a just interpretation of the special arrangement. And, at all events, for an injury caused by his own bad loading, he cannot hold the railway 1 Story Bailm. §§ 49G, 501 ; Nugent riers, § 89 ; Lamb v. I'arkmau, 1 V. Smith, 1 C. P. D. 423 ; Sproul v. Sprague, 343. Hemmingway, 14 Pick. 1 ; Tucker- * See Central R. v. Lampley, 7(i man v. IJrown, 17 Barb. 191 ; Lamb Ala. 357. But here is the case of a V. Parkman, 1 Sprague, 343. See 1 government agency. Supra, §§ 209- Schoul. Pers. Prop. §§ 318-326 ; Abb. 271. In the analogous transportation Shipp. 123, 223, 241 ; 1 Pars. Shipp. by express, where no public agt-ncy 170, 274, as to the employment of exists, some cases have peruiilled a ships and vessels generally. sender to sue the private agLMit caus- 2 Sanderaan v. Scurr, L. R. 2 Q. B. ing loss. § 351. But this is not usual. 86. And see, as to connecting carriers, 8 Storj' Bailm. § 501 ; Angell Car- § 599. 363 § 361 THE LAW OF BAILMENTS. [PxVRT VI. company responsible as insurer,^ nor charge it with losses against which the contract provided, and which impute neither fraud nor mismanagement, so far as the carrier's own partici[)ation in the bailment performance extended.^ In shipping, however, the charterer for a voyage once finding the vessel stanch, tight, and serviceable for his purpose, the whole control of the transportation becomes his, save so far as the owner may have furnished his own officers and crew; while the charterer of a railway car, or even of a whole train, must trust largely to the company itself, to the condition of its road, the management of other trains, and, in short, to the discretion and skill of numerous agents over whom the company, and not the charterer, exer- cises supervision. The resemblance borne by such a land carriage to a ship put under charter-party is, perhaps, closer where the entire business of one railway company, with its tracks, rolling- stock, equipments, and goodwill become leased for a certain term to another company. Here the carrying risks, as con- cerns patrons of the road, devolve naturally for the time being upon the lessee ; though something still depends upon the manner in which the transfer of management is held out to the public, and, more generally, upon a considera- tion of what were the terms of the lease or contract itself. As a rule, for damage or loss occasioned on a railway which is run and operated by a lessee company in its own name, and not that of the lessor corporation, the former, and not the latter, should be held responsible.^ § 361. The Same Subject; Charter Restraints; Use of Mo- tive Power, etc. — In respect of all corporations, however, fundamental restraints, which are imposed by charter or general law, must be duly regarded. For instance, it is held that a railroad company, incorporated by law in one 1 East Tennessee R. v. Whittle, 27 ^ Pittsburgh R. v. Hannon, 60 Ind. Ga. 535. 417 ; Leonard v. New Yorlc Central 2 See Kimball v. Rutland R., 26 R., 42 N. Y. Super. 225. Vt. 247. 364 CHAP. II.] COMMON CARRIEIIS. § 361 State, cannot lightly escape for the loss of goods which were delivered to it to be carried over part of its road to the State line, on the score of having previously leased that part of its road to a connecting corporation established by law in an adjoining State ; since this would be to allow the company to divest itself arbitrarily of duties the perform- ance of which formed the consideration of its original charter.^ But, on the other hand, a corporation cannot avoid its own liability for freight injured on a connecting road leased to it, on the plea that the lease was without legis- lative sanction, and void ; ^ for it is inequitable that a com- pany should set up its own acts as ultra vires in order to escape legal responsibility. Where one railway receives for compensation into its exclusive control, and draws over its own road, the cars of another company, it becomes strictly liable for damage done to the cars during such transit. But whether this liability be founded in an implied carrier relation, and not rather deducible from the peculiar contract of employment itself, is not clearly determined by the courts.^ From the latter standpoint alone, there is generally found strong reason for regarding one's carriage accountability as much greater here than under mere towing contracts, which usually involve a far lighter acceptance of control by the bailee. We must, however, admit that a railway exercises more clearly a public vocation in conveying freight and passengers on its own trains than in pulling the cars of other companies; while again, if it accepts those cars with their contents, as the responsible carrier, so as to control the transportation over 1 Langley v. Boston & Maine R., theoretically a common caiTier. Of. 10 Gray, 103. § 354, that towing is not deemed a 2 McCiuer v. Manchester, &c. R., common-carriage pursuit. Ikit in 13 Gray, 124. And see Feital v. towing, others have active control of Middlesex R., 109 Mass. 308. what is thus carried along. In Coup 8 Vermont, &c. R. V. Fitchburg R., r. Wabash R., 50 Mich. Ill, a rail- 14 Allen, 462 ; New Jersey R. v. way company while drawing cars for Pennsylvania R., 27 N. J. L. 100. a menagerie is held not to transport In both of these cases the court in- as common carrier. clined to regard the transporter as 365 § 362 THE LAW OF BAILMENTS. [PART VI. its own route, it should, for the contents, at least, of the cars, for what is freight, be deemed a common carrier, and for the passengers, a passenger carrier.^ Any railway company which operates its trains over the road of another company is responsible as common carrier.^ Instances may arise where the arrangement for hauling another's cars by one's motive power does not involve the strict carrier relation at all, but rather a private and special one.^ § 362. The Same Subject ; Case ■where Rail'way yields Partial Control. — Permissively, doubtless, a railway company may incur the full risks of a common carrier as to property of other companies, or of its own patrons, notwithstanding it has partially yielded up its customary control and supervision, provided its undertaking be upon its customary footing of re- sponsibility.* Thus, in one instance, the Supreme Court of the United States pronounced a carrier of this class responsible to the full extent, for the baggage of an army surgeon, con- tained in a car which was accidentally destroyed by fire, not- withstanding an army officer had selected the car, in which the baggage was placed along with a quantity of cartridges and military stores, and had further detailed a guard, super- intended the loading, and finally locked up the car himself. These were precautions taken in an insurrectionary district for the benefit of all concerned ; and the railway had made no objection to receiving goods for transportation under such circumstances, nor had, in fact, declined assuming the usual risks of a common carrier. No military interference with the company's control and management of the car or the train, while in actual transit, appeared in proof ; nor was the de- 1 25 Fed. K. 317. hill. And see St. Paul R. v. Minne- 2 Eureka Springs R. v. Timmons, apolis R., 26 Minn. 243, as to hire; 51 Ark. 459. Chicago R. v. Wallace, 66 Fed. 506. 3 Coup V. Wabash R., 56 Mich. * If the carrier is under military 111, is in point, where one's railway control, he ought to be able to refuse engine was used to draw a menagerie to transport for private parties on the train of cars owned by the exhibitor, usual footing of common carrier. See So might a teamster use his horse to Phelps v. Illinois Central R., 94 111. help a fellow-teamster's wagon up 548. 366 CHAP. 11.] COMMON CARRIERS. § 3(53 struction of the property occasioned by insurrectionists. The fire which broke out in the car, and consumed it, might pos- sibly have been due to the explosion of the army cartridges it contained ; but of this there was no positive evidence.^ Tliis same rule of essential carriage responsibility, while yielding a partial control, may apply to other classes of com- mon carriers by land or water. § 363. Operation of Railways ; President, Trustees, Contrac- tors, etc. — Carriers by railway have commonly a corporate name and organization, and the corporate business is entirely conducted by agents, each with his own sphere of duty. The board of directors, headed by the president, have commonly the managing functions of the company, which are to be exer- cised subject to such fundamental restraints as the charter, or act of incorporation, and by-laws may have imposed upon them ; their authority being, moreover, a delegated one, and derived from the consent of the stockholders.^ But othei-s actually operating the road might sometimes be, instead, the proper representative managers of the company's carrier business ; ^ as, for instance, receivers who operate a railroad under an appointment from a court of chancery; or the trustees of mortgage bonds in actual possession.* But con- tractors building a railroad are not presumed to intend exer- cising a public employment, if, indeed, they have any right to do so ; ^ nor is the company, under such circumstances, i"In all such cases," says Mr. 273. And see Mallory v. Tioga R., Justice Field, "the liability of the 39 Barb. 488. But for a loss which common carrier attaches when the is showu to have been really occa- property passes, with his assent, into sioned by the customer's own fault, his possession, and is not affected by or the stress of military control, we the car in which it is transported, presume the carrier can exonerate or the manner in which the car is himself. See c. 4, post. loaded. The common carrier is re- ^ ggg 2 Iledfield Railways, § 104. garded as an insurer of the property ^ paige v. Smith, 99 Mass. 395 carried, and upon him the duty rests Nichols v. Smith, 115 Mass. 332 to see that the packing and convey- Blumenthal v. Brainerd, 38 Vt. 40 ance are such as to secure its safety. Newell t'. Smith, 49 Vt. 255. The consequences of his neglect in * Sprague v. Smith, 29 Vt. 421 ; these particulars cannot be trans- 44 N. Y. Super. 471. f erred to the owner of the property." ^ gijoemaker v. Kingsbury, 12 Hannibal R. v. Swift, 12 Wall. 262, Wall. 369. 3G7 § 365 THE LAW OF BAILMENTS. [PART VI. liable as a common carrier.^ If, however, the company re- ceives freinflit and undertakes its business before the road is completed and while running construction trains, the liability of common carrier is incurred.^ Where government owns a railroad whose motive power is under the exclusive control of public officers, a community of interests may exist between the State and those carriers whom it permits, on condition of sharing the profits of trans- portation, to have their trains hauled over the road. In such case it is held that the carrier's liability towards his own customer will not be diminished by the circumstance that the State cannot be sued in the courts, and made to contribute for occasioning the loss."^ § 36-1. Partnership Responsibility in Carrier Business. — A partnership may be created for the carrier business. And where two or more own the vehicle, and one of them, being intrusted with its management, carelessly runs it so as to injure a stranger, his fellow-partner is none the less respon- sible -with him.* "Where, again, persons have entered into a carrier partnership, by w'hose private terms one is to find horses and drivers for a certain distance, and the other for the remaining journey (an arrangement \vhich formerly pre- vailed much in stage-coaching), they are to be deemed partners as to the public, nevertheless, and jointly respon- sible for the whole distance.^ So is it, too, with partners in different coaches, all employed at one office on the same business; and a contract for carrying parcels, which is made by the keeper of the coach office, will bind all the coach- owners with whom the keeper is partner.^ § 365. Connecting Carriers ; Agency and Partnership Princi- ples applied. — This discussion takes a wider range as our 1 Kansas R. v. Fitzsimmons, 18 ^ "Waland v. Elkins, 1 Stark. 272 ; Kans. 34. Fairchild v. Slocum, 19 Wend. 329 ; 2 Little Rock R. v. Glidewell, 39 s. c. 7 Hill, 292. Ark. 487 ; 23 Ohio St. 186. 6 story Bailm. § 506 ; Helsby v. 3 Peters v. Rylands, 20 Penn. St. Mears, 5 B. & Cr. 504; s. c. 8 Dow. 497. [571. & Ry. 289; Bostwick v. Champion, * Bostwick V. Champion, 11 Wend. 11 Wend. 571 ; Angell Carriers, § 93. 368 CHAP. II.] COMMON CARRIERS. § 367 modem carrier companies employing steam power are brought into view and continuous transportation increases. Where two or more railways make connecting agreements for their mutual convenience in effecting a through transportation, or railways in combination with steamboats or packets, tlie law of agency may supplement that of partnership so as to establish the power of one company to make a transportation contract which shall bind both or all.^ An arraiigeiiK'nt, moreover, between connecting carriers in the nature of a partnership or mutual agency may be shown so as to charge one for losses beyond his own route.^ But such arrangements or special contracts must be established by proof ; and upon the question of proof and of presumption from certain facts, contradictory rules are stated by the courts at this stage of the law, while the arrangement itself gives rise to problems of right and liability in the transportation which are intri- cate and perplexing. To this subject we shall recur here- after.^ § 366. "What Kinds of Property may be carried. — Let US now inquire what kinds of property may be the subject of carriage. To movables or personal property is this and every bailment both logically and practically confined.^ But when the books speak of " common carriers of goods," is it meant that under this expression any species of chattel property not technically "goods" must be ruled out? By no means; for, excepting that particular carriage pursuits may limit the deal- ing to certain kinds of chattels, whatever is capable of being bailed at all may be brought under the protection of public policy. § 367. The Same Subject ; Money and Valuables. — Hence, a person may l)e adjudged a common carrier of money, whether in specie or bills, as well as of other kinds of per- sonal property, if such be his line of business.^ But the term 1 Gill V. Manchester, &c. R., L. R. » Sec c. 9, post. 8 Q. B. 180. ■» Supra, § ». 2 Railroad Co. v. Pratt, 22 Wall. ^ Kemp v. Coughtry, 11 Johns. 123. 107 ; Allen v. Sewall, 2 Wend. 327 ; 24 369 § 367 THE LAW OF BAILMENTS. [PART VI. " money " falls not well under the denomination of " goods," or " wares," or " merchandise " ; and a vocation, publicly exercised as respects the latter only, does not embrace the former. To determine, then, whether one is responsible as the common carrier of money, we must consider: (1) the true nature and scope of his business, as held out to the public ; (2) the fundamental restraints which charter or leg- islation may have imposed upon that business. These two considerations have been applied to steamboats in several cases, so as to relieve their proprietors of responsibility as common carriers for money or bank bills specially taken by some person employed about the vessel, but without the sanc- tion or privity of the owners and managers, or contrary to their directions. For steamboats are usuall}- occupied in car- rying passengers with their baggage, general goods, and mer- chandise, and possibly specie in bulk, but not bank bills ; ^ and as steamboat charters commonly run, the owners might properly decline altogether to be money carriers.^ Yet a company may become bound to customers by its own business methods, irrespective of the terms of its charter, so as to be estopped to deny its liability ; and the acceptance of money for transit on hire by the captain, the chief representative of the company, as though acting in the scope of his employ- ment, such acceptance being from one who intrusts the prop- erty, not on that officer's personal credit, but on the credit of the steamboat, would bind the steamboat owners as com- mon carriers ; and this, too, notwithstanding a usage of the owners, of which the consignor himself was not aware, not to accept such property for transportation.^ If, furthermore, the owners had permitted an officer of the boat to take such s. c. 6 Wend. 335 ; Dwiglit v. Brew- 519 ; Allen v. Sewall, 2 Wend. 327 ; ster, 1 Pick. 50. s. c. 6 Wend. 335. 1 See Citizens' Bank v. Nantucket - Farmers' Bank v. Champlain Steamboat Co., 2 Story, 16, and the Trans. Co., 23 Vt. 186 ; Sewall v. instructive opinion of Story, J., con- Allen, 6 Wend. .335. tained therein ; Whitmore r. Steam- ^ Farmers' Bank v. Champlain boat Caroline, 20 Mo. 513 ; Chouteau Trans. Co., 23 Vt. 186. V. Steamboat St. Anthony, 20 Mo. 370 CHAP. II.] COMMON CAKUIEUS. § 3G8 property for the sake of the perquisites from the parties in- terested, and as a partial consideration of his service to them- selves, this would make the case stronger against the ownei-s ; ^ and a general usage of boats in the trade, to receive money for public transportation, would likewise bear in favor of a con- signor who had supposed himself dealing with the steamboat as a common carrier of such property .^ This does not imply, however, that a rule of the owners, forbidding transportation of such property, can, when brought plainly to a consignor's knowledge, be utterly disregarded with impunity whenever the captain or managing ofTicer appears willing to violate it. § 368. The Same Subject. — It is no part of a common car- rier's duty to sell for his consignor the goods he transports, and remit the proceeds thereof; and should he specially undertake to do so, there might arise, on his part, a duty as factor to account for, rather than as carrier to restore, the identical money received from a purchaser. The usage, how- ever, among inhabitants in thinly settled parts of the United States, has been sometimes to make a factotum of the steam- boat captain, and employ him to take their local produce down to a distant market. Any such usage, upon which the carrier and those employing him are shown to liave based their operations, and which has, in fact, been brought home from agent to principal, will bind the carrier, though it be to the extent of making him iirst a carrier, next a factor for barter or sale, and last a carrier for returning the proceeds ; in which sense the carrier's liability for specific sale-money on transit homewards may be extraordinar}-, like that for a return cargo.^ A similar succession of duties is sometimes traceable where a carrier, in the scope of his employment, undertakes to make a money collection, and remit the pro- ceeds ; as where an express carries a parcel with tlie direc- tion, "• collect on delivery." * It will not readily be presumed ^ lb. Emory v. Hersey, 4 Greenl. 407 ; 2 lb. ; Hosea v. McCrorj', 12 Ala. Ilairin^^ton v. M'Shane, 2 Watts, 349 ; Garey v. Meagher, 33 Ala. 630. 443 ; Taylor v. Wells, 3 Watts, Go. 8 Aiigell Carriers, §§ 104-1 Ofi; * As to tho duty of collecting on Kemp V. Coughtry, 11 John.s. 107; delivery, see post, c. 6. 371 § 370 THE LAW OF BAILMENTS. [PART VL that a steamboat purser or other employ^ who undertakes such a commission gratuitously does so within the scope of his employment so as to bind the carrier.^ § 3G9. The Same Subject. — Such a discussion tends to es- tablish, not that a common carrier's liability for money dif- fers from that for ordinary goods and merchandise, but that the obligation to transport or collect money is less readily de- ducible from the mere exercise of a public carriage vocation. As with steamboats, so, as we have seen, with stage-coaches, the transporting party is not presumed to hold himself out as a common carrier of money, though proof of contract or usage might establish the contrary in any case.^ The same reason- ing will apply to other carriers, notably to railways ; and indeed, at this day, money and valuables, apart from what may properly be considered baggage, are usually conveyed on our steam highways under the especial safeguard of an express carrier.^ § 370. Animals are Subjects of Common Carriage. — Animals are " chattels " or " personal property," and, as such, may be bailed for transportation as well as custody ; though the peculiar habits and propensities of living creatures give rise to novel methods of transportation, and introduce perplexing qualifications of the common carrier's liability, in respect of their conveyance, which we shall consider hereafter.^ 1 Suarez v. The Washington, 1 * See Story Bailm. § 576 ; Nugent Woods, 96. V. Smith, 1 C. P. D. 19, 423 ; Smith 2 See 1 Salk. 282 ; Bean v. Sturte- v. New Haven, &c. R., 12 Allen, 531 ; vant, 8 N. H. 146 ; Shelden v. Rob- Clark v. Rochester R., 14 N. Y. 570 ; inson, 7 N. H. 157. Kansas Pacific R. v. Nichols, 9 Kans. 3 Modern English and American 235 ; Bamberg v. South Carolina R., legislation tends to exempt the com- 9 S. C. (n. s.) 61, where this subject mon carrier by water from excep- is carefully examined. tional risk for specified valuables. In some late American cases it is such as gold, silver, jewelry, and asserted that, as the early precedents precious stones, either as freight or contain nothing about animals, the baggage, unless the shipper notifies common law may be assumed to such articles to the carrier, so that have taken no cognizance of such the liability may be declared in writ- property, and did not mean to in- ing. U. S. Rev. Stats., § 4281 ; Act elude it; hence, they argue, a com- 17 & 18 Vict. , c. 104, § 503 ; c. 5, mon carrier is not an insurer of live- post. stock. Louisville R. v. Hedger, 9 372 CHAP. II.] COMMON CAllUIEMS. § 371 S 371. Dangerous Articles, etc., aa Subjects of Carriage — It might be worth iiKiuiiiug whether, in view of the variety uud vastness of our modern inhind and external carrying trade, and the constant tendency of all labor to subdivision, a carrier should not be able to make still closer limitations of the scope of his employment, in order that his vehicles may not be put to uses for which they are phiinly unsuitable, nor freight be thrust upon him of a sort which he neither ofTers to take, nor desires, nor has the facilities for handling. Thus, the trans- portation of petroleum in large quantities must necessitate using cars of peculiar construction, and, in any case, is attended with much hazard.^ But, doubtless, the general obligation of a common carrier is and always has been to receive and carry and to provide the means for carrying, whatever may be offered him for reward within the scope of his calling as professed to the public. Be the subject never so dangerous or difTicult, some one must be prepared to carry it for the public, and his charge may be commensurate with the pains and danger involved. Bush, 645 ; Michigan Southern R. v. not have been thus taken, nor spin- McDonouf,'h, 21 Mich. 165. See also ning-jeuuies, nor could the common- Baker V. Louisville R., 10 Lea, 304. law jurists have actually had these This reasoning appears fallacious, species of personal property in con- besides being opposed to all the templation. And yet as carriers analogies of the law of bailment ; may, by the method of holding them- which ought here to have expressly selves out to the public, specialize excepted animals, had not their car- their business considerably, so even riage, so far as the nature of the case a railroad company, or a vessel, may permitted, been intended to follow thus exclude the business of carrying the usual rule of chattels or per- live-stock. See 123 U. S. 727. But sonal property. The ancient carrier's usually a railroad makes no such dis- wagon did not, it is true, transport avowal in holding itself out for busi- live-stock to anything like the ex- ness. Ayres v. Chicago R., 71 Wis. tent of modern railway cars ; but 372. a bird in a cage, a dog fastened by a ^ See Brass v. Maitland, 6 E. & B. cord, or a young lamb, must occa- 470 ; Boston & Albany R. v. Slianly, sionally have been thus transported 107 Mass. 568; Nitro-Glycerine Case, for hire ; and this at a day when, for 15 Wall. 624. obvious reasons, coupon-bonds could 373 § 373 THE LAW OF BAILMENTS. [PART VI. CHAPTER III. WHAT CONSTITUTES BAILMENT TO THE COMMON CARRIER. § 372. Duty of Carrier to receive for Transportation ; hoTw far qualified. — It is fitting, at tlie outset of this chapter, to make inquiry concerning the extent of the common carrier's duty to receive property for transportation. By the common law every common carrier is bound to receive, without respect of persons, whatever may be offered him for transportation on hire, and to take charge of its conveyance ; that is to say, so far as comports with his means and the nature of his calling.^ This obligation, like the corresponding one of the innkeeper, results from the public employment which one professes, and which the general good requires shall be exercised for the convenience of all who may apply, and not of one's choice customers alone. The above statement embodies, it will be perceived, three marked qualifications of this duty to receive and convey : (1) that the party offering the chattels should offer for hire ; (2) that the common carrier's means of safe conveyance should be adequate ; (3) that such carriage should be in the line of his vocation. § 373. Customer should offer for Hire. — 1. As to the first point; viz., that the party offering should offer for hire. It is clear that a common carrier is under no obligation to take things, except upon compensation for his service. And, as no mean offset to the great risks he must encounter, a common carrier has the most ample means of making that recompense 1 Riley •;;. Home, 5 Ring. 217 ; sender v. Penn. R., 37 N. J. L. 531 ; Bac. Abr. Carriers, B. ; New Jersey Audenried v. Phil. R., 68 Penn. St. Steam Nav. Co. v. Merchants' Bank, 370; McDuffee v. Portland, &c. R., 6 How. 344 ; Story Bailm. § 508 ; 52 N. H. 430 ; New England Express Angell Carriers, § 124 ; Crouch v. Co. v. Maine Central R., 57 Me. 188. Great Northern R., 11 Ex. 742 ; Mes- 374 CHAT. III.] COMMON CARRIERS. § 374 sure ; for, to say nothing of the customer's credit as a source of reliance, such a party may demand pay in advance as the condition of carrying, or, as is commonly preferred, retain by way of lien wliatever he conveys for any customer, for the security of the transportation costs and charges.^ Hence is it that, in dealings with a stranger, it is the employer that must repose confidence, far more than the party emploj-ed; a further proof of the justice of public intervention. But if his reasonable compensation be tendered him, the carrier who refuses, without assigning good reason, to carry the goods so offered, is put in default, and may be sued as for breach of a public duty ; ^ nor need even such a tender be made, provided the party wronged by the carrier's refusal can aver and prove that he was ready and willing to pay in advance for tlie carriage,^ or that the carrier's misconduct made such tender useless.* But, unless the carrier's refusal to carry is specifi- cally established, a waiver of actual tender is not favored by the courts.^ And a complete tender seems fairly that of specific property to be transported as well as of recompense in advance.** § 374. The Same Subject; Reasonable Hire ; Discriminating Rates. — It is not what the carrier may arbitrarily exact, that furnishes here the criterion of compensation, but he is suable if he refuse to carry for what is a reasonable reward ; for, were the rule otherwise, a carrier might easily evade his duty by asking of his customer an exorbitant sum. And where the customer, in order to induce a public carrier to perform as he 1 See post, c. 7. * Texas R. v. Nicholson, Gl Tex. 2 Cro. Jac. 202 ; Jackson v. Kog- 491. ers, 2 Show. 328 ; Angell (^arriers, § » !„ Wilder v. St. Johnsbury R., 124. 60 Vt. 036, a tender of recompense 8 Story Raihn. § r>OS ; Pickford v. for some specific transportation was Grand Junction R., 12 M. & W. 700 ; deemed necessary, where the carrier Galena R. v. Rae, 18 111. 488. And had simply made a general refusal see McGill v. Rowand, 3 Penn. St. to transport any longer for the com- 451 ; Fitch v. Newberry, 1 Dongl. plainant, and reliance was placed (Mich.) 1 ; Texas R. v. Nicholson, upon such general refusal alone. 61 Tex. 401. As to remedies for the « Little Rock R. v. Conatser, 61 carrier's refusal, see further, § 556. Ark. 560 ; cases sripra. 375 § 374 THE LAW OF BAILMENTS. [PART VL is bounden, pays, under protest, a larger recompense than should be deemed reasonable, he may bring his action, as for money had and received, to recover the excess taken, just as in other cases of extortion.^ Injunction is sometimes granted to prevent discrimination.^ But here we should observe that the common law never went so far as to compel a common carrier to treat all cus- tomers equally. He might show special favor to individuals by taking their freight at an unreasonabl}' low rate, or even free of charge, without being compelled to do the same by others. The fact that others were charged less was available to a particular customer only so far as it tended to show that this customer himself was charged unjustly high ; and if the carrier had demanded of him only a reasonable reward for the service, this duty was well discharged.^ Whether, how- ever, the carrier at the common law could directly afford one party undue and unreasonable facilities and advantages over another in transportation is more doubtful ; and, though such a question seldom arose in the early days of our law, the true principle of justice must have been to forbid this, and, much more, any monopoly of the carriage facilities.* We owe it chiefly to the modern introduction of railways, and the chartering of companies, by special acts, to perform inland transportation on a grander scale than ever before witnessed, that the legislature has been turned to checking abuses in this direction. From the restraints which acts of incorporation specially impose to general restraints under a public act is a natural progression, and we find to-day in 1 Great Western R. v. Sutton, L. 16 Fla. 623. The subject is exten- R. 4 H. L. 226, 237 ; c. 8, post ; 12 sively discussed in Lough v. Outer- Fed. R. 309. bridge, 143 N. Y. 271, and reduced 2 De Menaclio v. Ward, 27 Fed. rates as to a large customer per- R. 529. mitted for a certain time, provided 3 Great Western R. v. Sutton, L. rates to other customers were per se R. 4 H. L. 226, 237 ; Baxendale v. reasonable. Eastern Counties R. , 4 C. B. n. s. 78 ; * This subject is discussed in Mc- Branley v. South-Eastern R., 12 C. B. Duffee v. Portland, &c. R., 52 N. H. N. s. 74 ; Fitchburg R. v. Gage, 12 430 ; Messenger v. Penn. R., 37 N. J. Gray, 393 ; Johnson v. Pensacola R., L. 531 ; 12 Fed. R. 309 ; post, § 380. 376 CHAP. III.] COMMON CARRIERS. § 375 England, and in many of the United States, comprehensive "equality statutes," which seek to prohibit every species of undue preference on the part of carriers towards particular persons or particular kinds of traffic' § 375. The Same Subject — But discrimination in charges between local freight and through freight is, to a certain ex- tent, neither unjust, illegal, nor unconstitutional.^ Nor would it be unfair discrimination for a common carrier to charge higher rates than usual where the risk becomes, from some pressing cause, excessive, or to exact a premium for taking property which is extra-hazardous, and requires special pains in the handling ; or, in general, to fix a tariff of rates, variable on reasonable considerations, to which all of his customers are expected to conform.^ And, as an element in the just com- pensation due the party wdio transports as a public vocation, it has been said that, since the law makes the common carrier an insurer against accidents which the utmost care on his part cannot prevent, he is as much entitled to be paid for insuring 1 The English statutes in point are, 7 & 8 Vict. c. 3 ; 8 & 9 Vict. c. 20 ; 17 & 18 Vict. c. 31, § 2 ; which are well reviewed, together with the ear- lier cases arising upon their construc- tion, in Great Western R. v. Sutton, L. R. 4 H. L. 226 (a.d. 1868). See also West v. London R., L. R. 5 C. P. 622; Baxendale v. London R., L. R. 1 Ex. 137. And see c. 7, §485. It is held in Crouch v. Great Northern R., 11 Ex. 742, that a rail- way company cannot legally charge a greater sum for carriage of a pack- age containing several parcels belong- ing to different persons, than for a package containing several parcels belonging to one person. Transportation at discriminating rates may thus be forbidden. See Messenger v. Penn. R., .36 N. J. L. 407 ; Commonwealth v. Worcester R. , 124 Mass. 561 ; 22 Fed. R. 404. And to receive goods of a later applicant, after rejecting those of an earlier one, offered under like conditions, indicates a violation of the statute. Houston R. V. Smith, 63 Tex. 322. Treating one locality better than an- other violates the statute. [1891] 1 Q. B. 120. So does rebate. Union Pacific R. V. Goodridge, 149 U. S. 680 ; 49 Ohio St. 649 ; ^[1892] 2 Q. B. 229. So, in general, does favored rates to large customers over the casual shipper. 132 Ind. 617 ; 31 Fed. 652. But cf. 143 N. Y. 271, supi-a ; 126 Ind. 348. Such unlawful rebate does not avoid the bill of lading for a carrier's convenience. Merchants Co. v. Insurance Co., 151 U. S. 368. - Shipper v. Pennsylvania R., 47 Penn. St. 3.38. See Schneider v. Evans, 25 Wis. 241 ; c. 9, post. * See Pickford v. Grand Junction R., 10 M. & W. 399, 422. 377 § 376 THE LAW OF BAILMENTS. [PART VI. the delivery of the goods at their place of destination as for the labor and expense of carrying them thither.^ Conunon carriers, again, may guard themselves against undue competition. And, to this end, an agreement between carriers not to carry goods for less than a certain schedule rate is not to be condemned, provided the rate itself be reason- able. But a combination of carriers to prevent any one from carrying for less than their agreed rates, without reference to the reasonableness of such rates, would be oppressive to the public, and unlawful.^ The transportation rates of railways are sometimes limited by the charter of the particular com- pany, or by general legislation.^ § 376. The Same Subject — Goods are presumed to have been received at the customary rates previously charged his patron, unless the carrier takes heed to make his change of rates known to the latter.'^ And a carrier's written agreement to transport at certain rates for a specified time is a continu- ous offer, and binds him whenever merchandise, during that period, is tendered on those terms.^ But no common carrier has a right to impose conditions of shipment tending to secure to himself exorbitant compensation or other unreasonable advantage, even by indirection;^ nor can he refuse freight 1 Best, C. J., in Riley v. Home, 5 43, 45. What the carrier's proper Bing. 217, 220. A State act to pre- servant states as the rate of trans- vent extortion and unjust discrimi- portation should bind the carrier, nation by railways does not interfere Winkfield v. Packington, 2 C. & P. with or abrogate contracts made with 599. particular parties prior to its passage, ^ Harvey v. Conn. R., 124 Mass. •which would have been valid at the 421 ; 10 Fed. R. 774. See further, as common law. Chicago R. i;. Chicago to compensation, c. 7. Coal Co., 79 111. 121. e See Tons of Coal, in re, 14 2 Sayre v. Benevolent Associa- Blatchf . (U. S. ) 453, where the im- tion, 1 Duv. 143. proper condition of carriage was 3 See Camden R. v. Briggs, 1 Zab. that the shipper of coal should em- 406 ; post, c. 7. And see Lamar v. ploy shovellers to put coal on board, New York Steamship Nav. Co., 16 such as the carrier should designate, Ga. 558 ; People v. Boston, &c. R., and at prices to be fixed by the car- 70 N. Y. 509; Munn v. Illinois, 94 rier. And see Johnson v. Tons of U. S. 113. Coal, 44 Conn. 548. But cf., as to * Fitchburg R. v. Gage, 12 Gray, wharfage privileges, Audenried v. 393 ; Newstadt v. Adams, 5 Duer, Philadelphia, &c. R., 68 Penn. St. 370 378 CHAP. III.] COMMON CAllRIERS. § 377 because the customer does not give him a monopoly of his business.^ § 377. Carrier's Duty qualified by his Accommodations ; Rea- sonable Delay — 2. As to the second point. The carrier may excuse transportation, in a particuhir case, on the ground that his means of conveyance are inadef^uate for taking safely and suitably what is offered him. Like the innkeeper, he may stop receiving when his quarters are full ; for he is under no obligation to provide extra carriages to satisfy an unusual demand ; ^ and some carriers employ a large capital, others a small one. So, if his conveyance be utterly unfit for goods of the description offered, and he has not held himself out for taking such, the carrier can make this his excuse for not receiv- ing them ; and furthermore, he may decline immediate accept- ance if the property will, at the particular time, be exposed on his route, from special cause, to extraordinary danger or popular rage,^ or if he is under coercion so as not to be in the free exercise of his vocation.^ There should be no unreasonable delay either in receiving ^ Chicago R. v. Suffern, 129 111. iiig and carrying live-stock. Pitts- 274. burgh K. v. Hollowell, 05 Ind. 88. '■^ An accumulation of freight for And this, notwithstanding the insur- transportation over a railway, three rection arose from the violence of months in every year, so that cus- men who had been employed by the tomers are put to loss and expense railway, but struck for higher wages by delay, does not impute blame to and severed their relation with the the railway on the ground of neg- company. lb. ; Geismer v. Lake ligence in equipment. Thayer v. Shore R., 102 N. Y. 503. AUter, Burchard, 09 Mass. 508. For such where the company's employes sim- special emergency, the company ply refuse to work without increased should provide with reasonable dili- wages, no acts of violence, riot, or gence. Wibert v. Erie R., 2 Kern, intimidation having occurred. 28 245; Galena R. v. Rae, 18 111. 488; Ilun (N. Y.), 543; Blackstock v. N. 10 Bis.s. 170 ; 6 Ducr, 375. Y. R., 20 N. Y. 48. And see Haas 8 2 Show. 127, 327; Riley v. v. Kansas City R., 81 Ga. 792 ; Louis- Home, 6 Bing. 217; Edwards v. ville R. v. Queen Coal Co., Ky. (1890). Sherratt, 1 East, 004 ; Story Bailm. So is it even though the journey be § 508 ; Angell Carriers, § 125. already begun. Gulf R. v. Levi, 76 , An insurrection or strike or riot Tex. 3.')7 ; Lake Shore R. v. Bennett, ■which attains such proportions that 89 Ind. 457. it has to be finally put down by the * Phelps v. Illinois Central R., 94 militaiy power of the State will ex- 111. 548. cuse a railroad company from receiv- 379 § 378 THE LAW OF BAILMENTS. [PAllT VI. or transporting ; but for delays that under the peculiar cir- cumstances are reasonable, a carrier is fairly excusable. § 378. Carrier's Duty qualified by Scope of Vocation. — 3. Finally. Transportation may be refused because such transportation is not in the line of the carrier's vocation. Not every common carrier is a universal carrier. Passenger carriers do not, as a matter of course, hold themselves out for general freight, nor do freight carriers always undertake to carry passengers also. And much closer may one's public business be restricted, if he so wills, so offers himself, and acts consistently. " At common law," says Parke, B., " a carrier is not bound to carry for every person tendering goods of any description, but his obligation is to carry according to his public profession." ^ In accordance with such public profes- sion, then, one miglit hold himself out to carry a particular description of property only, or, at all events, so as to reason- ably exclude the carriage of certain kinds of chattels, — money, for instance ; in which case his limitations, if openly shown and reasonable, ought to be respected by the public. With like effect one may, and commonly does, limit his course of transit to a certain route and as between certain places, or establish it from one fixed point to another, so as to exclude freight for any or all intermediate places.^ The legis- lation which now requires railroad companies to carry for the public equally, does not lay the duty upon them beyond their respective termini, nor regardless of their limited number of way stations.^ To some extent local carriers may establish 1 Johnson v. Midland R., 4 Ex. freight. It certainly may as to money 367, 372. and valuables, such as express com- 2 lb. ; Lane v. Cotton, 12 Mod. panies make their own special busi- 484; Oxlade v. North-Eastern R., 15 ness. See §§ 369, 370. C. B. N. s. 680 ; Citizens' Bank v. ^ See Pittsburgh R. v. Morton, 61 Nantucket Steamboat Co., 2 Story, Ind. 539. Thus has it been held that 49. Qucere, whether railroad com- a railway cannot, by mandamus, be panies are bound to provide means of compelled to receive grain in bulk at carrying all kinds of goods. Supra, its stations for transportation and de- § 371. As to carrying live-stock, in livery to an elevator or warehouse any wholesale sense, it would appear which is situated upon a switch that a railway may expressly hold track, connecting with its road at out its business as exclusive of such the terminus, but considerably be- 380 CHAP. III.] com:mon carriers. § 380 and hold out a certain local area outside of which they will not call for or deliver goods. ^ § 379. Carrier may prescribe Reasonable Rules as to Receiv- ing, etc. — As incidental to his right of putting bounds to the scope of his profession, the carrier may promulgate reasonable rules concerning the time and methods of receiving freight. He may require delivery to be at seasonable times, and close his doors upon all customers after certain hours, or when the car or vessel ought to be ready to start.^ Nor can a carrier be held bound to receive goods so long before the time of departui'e as to add unfairly to his risks ; ^ nor to receive at unreasonable places.'* Reasonable rules, too, as to the mode of packing articles offered for transportation may be made and enforced ; but not to the extent of putting the consignor to hardship.^ In general, while unreasonable rules are for- bidden, the carrier's fair and reasonable regulations must be respected by the consignor who is made duly aware of them.^ § 380. Undue Preference, Discrimination, etc., in General ; Express Facilities, etc. — Under the influence of equality statutes, as already noticed, not only discriminating and unfair rates of transportation are checked and discouraged, but the undue preference of customers in other respects." yond the actual terminus ; nor be ^ story Bailm. § 508 ; Tickford v. compelled to acquire the right of Grand Junction R., 12 M. & W. 7GG. using the switch track which leads ^ Story Bailm. § 608 ; Angell Car- from their road to the elevator for riers, § 125. the purpose of making such delivery. * As e.g. to delay his train con- People V. Chicago, &c. R., 55 111. 95. taining live-stock in order to pick up But the modern and reasonable cus- other stock, not yet at the station. tom of receiving grain and delivering Frazier v. Kansas City R., 48 Iowa, it at an elevator upon its track should, 571. in general, be respected by such com- ^ See Munster v. South-Easteru panics ; and a refusal to so receive R., 4 C. B. n. s. 676. must not be the subterfuge for an ^ Qleason v. Goodrich Trans. Co., unlawful preference among elevator 32 Wis. 85. For an unreasonable rule men. lb. ; Chicago, &c. R. v. People, concerning the handling of freight in 56 111. .^05. delivering, see Tons of Coal, in re, 14 1 Bullard v. American Express Blatchf. 45.3. Co., Mich. (1896), where plaintiff '' See siq^ra, § 374. Thus, under had been cognizant of such a rule the Engli.sh statutes, it is held undue before he established himself outside, preference to allow one customer to 381 § 380 THE LAW OF BAILMENTS. [PART VI. Discrimination and partiality in the exercise of a public vocation our common law certainly abhors ; and yet the com- mon law, independently of such salutary legislation, fails positively to forbid some practices whose mischievous ten- dency must undoubtedly be to favor special patrons to the detriment of others and the general public. Thus, the prin- ciple holds good, that the carrier has no right to select his patrons arbitrarily, that equal facilities on equal terms should be furnished to all ; and yet, as the common law does not really prevent the carrier from taking one customer's goods at an unreasonably low rate, neither does it clearly exclude him from conferring upon that customer other practical ad- vantages in the transportation to which competitors and the general public are not admitted.^ B}^ the better modern opinion a railroad is not bound at common law to furnish equal express facilities to all com- panies undertaking this peculiar business as now conducted in special passenger cars ; though in receiving for transpor- tation the express matter of small jobbing expressmen the rule may still be other wise. ^ deliver his goods at a later hour than refused transportation to sue for the others. Palmer, »-e, L. R.6 C. P. damages. Sandford r. Railroad Co., 194. Or to cart, load, and unload 24 Penn. St. 378 ; New England Ex- goods free for particular customers, press Co. v. Maine Central R., 57 Evershed v. London R., 2 Q. B. D. Me. 188. And see McDuffee v. 254. Portland R., 52 N. H. 430; Audeu- 1 It is questionable whether the ried v. Phil. R., 68 Penn. St. 370. common law would of itself restrain For legislation on this point, see 24 undue preferences like those men- Penn. St. 378 ; 57 Me. 188. On the tioned in the preceding note. And other hand, a Massachusetts case indeed, undue preference to an indi- rules that the common carrier is not vidual is sometimes defended on bound to continue to any expressman general principle as salutary to the greater facilities than it affords the public at large. L. R. 1 C. P. 588 ; general public, even though the prac- supra, § 374. tical effect be to cut off privileges 2 It has been held in some States long enjoyed by a party and to trans- that for a railway to confer a monop- fer his business to the railway's own ' oly of its carriage facilities upon one control. Sargent v. Boston & Lowell express to the exclusion of all others, R., 115 Mass. 416. And the Supreme or even better and extra facilities Court of the United States has (1886) simply, is a grievance such as enti- confirmed this view of the question ties an express whose packages are by a decree which reverses a number 382 CIIAl'. III.] COMMON CARRIERS. § 380 a § 380 rt. The Same Subject. — The carrier is under a legal obligation to provide suital)le facilities for receiving and dis- charging his freight according to the business and its ordi- nary and reasonable modes of transaction. And he has no right to burden his customei"s with special charges for fur- nishing such facilities.^ Discrimination against one who has of decisions made during the past ten years in the various southwestern cir- cuits and districts, and favoring facil- ities to all express companies alike. Express Cases, 117 U. S. 1, reversing 3 McC. 147 ; 8 Sawyer, GOO ; 2 Flip. 672 ; 18 Fed. K. 17, etc. Railroad companies, observes the court, are not required by usage or by the com- mon law to transport the traffic of independent express companies over their lines in the manner in which such traffic is usually carried and handled. They are not obliged, either by the common law or by usage, to do more as express carriers than to provide the public at large with reasonable express accommoda- tion ; and they need not, in the ab- sence of a statute, furnish to all independent express companies equal facilities for doing an express busi- ness upon their passenger trains. 117 U. S. 1, per Mr. Chief-Justice Waite. And see 70 Cal. 1G9. The development of this doctrine, now so boldly and to many jurists so unex- pectedly announced, remains for the future. But to the present writer it seems that this denial of equal facili- ties to express companies is founded in the rapid and enormous gi'owth of the express business of late years and the complicated relation which it necessarily bears to the active transporter ; a public vocation exer- cised by great rival companies in the cars and vehicles of another carrier, with masses of valuable packages, which the railroad or steamboat company cannot itself open and in- spect, and can only in a partial sense be said to control. For the express company's convenience, this traffic is on the quick passenger trains, as in the conveyance of mails. Were let- ters to be carried by any and all pri- vate expresses, these burdens of the active transporter would be still greater. But government monopo- lizes the mail and then makes its contract with the railroad or steam- boat company ; so, too, the company's convenience leads naturally to an ar- rangement with some one express company, and special facilities for the transportation accordingly ; but otherwise, if it be permitted by law to transport every article and pack- age without the intervention of an express carrier at all. And yet, were each express, as formerly, a man with a valise, asking to travel like any other passenger, discrimination among such passengers would violate the common law, since all should be accommodated alike. We find (1807) various new en- actments in Massachusetts and other States, compelling, as far as possi- ble, that all engaged in a local ex- press business shall receive equal facilities and privileges on railroad passenger trains, as well as in freight trains. See 165 Mass. 398, and other State legi-slation referred to ; 81 Me. 92. Such statutes can have no force as to interstate or foreign trans- portation. See c. 10, pust. 1 Thus a carrier of live-stock, holding himself out thus, cannot make extra cost to the shipper for 383 § 383 THE LAW OF BAILMENTS. [PART VI. no other means of shipment is peculiarly reprehensible in a carrier ; ^ and the exaction of a monopolizing customer will not justify him in giving special favors.^ § 881. Carrier's Waiver of Right to refuse, etc. — While a carrier may refuse on reasonable grounds to carry goods which are offered him to transport, he can of course waive this right so as to debar himself of the defence.^ A carrier may have good excuse for refusing the property ; yet any such excuse will be waived by his actual acceptance thereof in his public capacity; while the right to demand his pay in advance for the carriage always requires a timely asser- tion in order that it may avail him anything.* The right to refuse for exposure to extraordinary danger may thus be waived ; ^ or the right to refuse at an unseasonable hour.^ § 382. Carrier not bound to receive from Wrongful Parties. — We may add that a common carrier is not bound to receive goods from one who is neither their owner nor the owner's agent or bailee, clothed with authority to make delivery thereof, but rather the reverse ; for a carrier must not know- ingly connive at wrong,'^ but on the contrary is put upon inquiry where suspicion arises.^ § 383. Carrier's Liability for refusing to receive. — A com- mon carrier who violates, by refusing without good excuse to accept what is tendered him for transportation, renders receiving and delivering such stock 217 ; Texas R. v. Nicholson, 61 Tex. through the yards of another com- 491. pany. Covington Co. v. Keith, 139 * Galena R. v. Rae, 18 111. 488. U. S. 128. As to refusing to receive perishable 1 Chicago R. v. Wolcott, 141 Ind. goods liable to spoil from exposure, 267. See Lough v. Outerbridge, 143 see Tierney v. N. Y. Central R., 76 N. Y. 271, which justifies a carrier in N. Y. 305 ; Hewett v. Chicago R., 63 giving reduced rates to all who ship Iowa, 611. by his line for a certain period, if the & Porcher v. North Eastern R., same advantages are offered to every supra ; Hannibal R. v. Swift, 12 one, and other customers are charged Wall. 262. no more than reasonable rates. ^ Pickford v. Grand Junction R., 2 47 Ohio St. 130. 12 M. & W. 766. 3 Porcher v. North Eastern R., 14 '''Fitch v. Newberry, 1 Dougl. Rich. 181 ; Riley v. Home, 5 Ring. (Mich.) 1. 8 Hayes v. Campbell, 63 Cal. 143. 384 CIIAl'. HI.] COMMON CAIIIIIKRS. § 385 himself liable to an action in case ex delicto as for a bieaeli of his public duty.^ Jiut it is the consignor who should thus sue him, if any one ; and, though the carrier's refusal be to take to a particular consignee, the latter cannot make the grievance his own.^ In some instances the carrier has been compelled by mandamus to perform his duty, when the wrong suffered was by the general public,^ or the common- law action afforded the individual no adequate remedy.* If the carrier's refusal is in breach of an actual contract to transport, he may be sued accordingly, at the injured party's option.^ For one who agrees expressly to furnish facilities at a given date becomes liable accordingly .'^ § 384. When the Carrier's Responsibility commences — At what time, we now inquire, does the common carrier's respon- sibilit}' commence ? This is often a delicate matter of fact to determine, for it may depend upon a varietj'^ of circumstances to which custom gives the coloring. But the main principle is the same as in other bailments : namely, that, when chattels are delivered to one as common carrier, and in that character and no other accepted by him, the incident responsibilities at once attach ; and further, there may be a contract for the bailment before the bailment itself takes place. § 385. Delivery and Acceptance considered ; Carrier's Agent, etc. — Such delivery and acceptance may be individual, or 1 Pickford v. Grand Junction R., * Audenried v. Philadelphia, &c. 10 M. & W. 399 ; >:ew Jersey Steam TJ., 08 Penn. St. .370 ; Peo])le v. Clii- Nav. Co. V. Merchants Bank, How. cago, &c. R., 55 111. 95 ; Ciiicagn, &c. 344 ; Story Bailm. § 508 ; Angell R. v. People, 56 111. .305. Injunction Carriers, § 124 ; Galena R. v. Rae, is permitted in 27 Fed. R. 529. 18 111. 488 ; 61 Ind. .5.39. ^ Texas R. v. Nicholson, 61 Tex. 2 Lafaye v. Harris, 13 La. Ann. 491; Northwestern Fuel Co. i-. Bur- 55.3. lington R., 20 Fed. R. 712. And 8 People V. N. Y. Central R., 28 see Pittsburgh R. v. Hollowell, 01 Hun. 543. In People r. Babcock, 23 Ind. 539 ; 05 Ind. 188. N. Y. Supr. 313, the court refused to « See, as to the presumable bind- compcl by mandamus; but the car- ing agency of a station agent in tliis rier's refusal related to insuring respect, Easton v. Dudley, 78 Tex. fragile goods, and was, perhaps, not 2.36. And see 108 N. C. 344 ; 127 deemed wholly unreasonable. And Ind. 108. see People «. New York R., 22 Hun, 533. 25 385 § 386 THE LAW OF BAILMENTS. [PATtT VL through the medium of agents. Railways and other char- tered companies must needs deal with the public tln-ough officers, managers, and subordinates ; vessels are manned and officered; and, for all carriage on an extensive scale, interme- diate parties must be employed for various purposes. There are agents for freight, and agents whose sole concern is the locomotion ; agents with directing authority, and subordi- nates ; agents to make and receive pajmients, and agents to load, unload, and store things, as may be needful. Now, to constitute a delivery of property to a carrier's agent in the proper sense, the thing offered for transportation should come into the hands of the carrier's agent for receiving freight, not of any person whom the carrier may employ for other pur- poses. Hence, a delivery of goods simpl}^ to the deck-hand of a steamboat will not sufficiently charge the steamboat owners as carriers.^ Nor is a mere clerk to be deemed so fit a reci]3ient as the agent for freight, who employs him." A stage-coach driver and the master or clerk of a steamboat may well accept freight for their employers ; but even these might receive certain things to carry rather as individuals personally trusted than as agents acting on behalf of the principal carrier.^ The scope of the agent's authority to receive and accept, as brought home to a consignor's notice, cannot be safely disregarded. Delivery of goods which are to go by water to some un- known person at a wharf will not charge the wharfinger either as custodian or carrier, if no privity therein can be brought home to the wharfinger or his agents.* § 386. The Same Subject ; Place and Manner of Delivery. — The proper place of delivery to the carrier is a matter of 1 Trowbridge v. Chapin, 23 Conn, charge, he becomes a personal bailee 595 ; Ford v. Mitchell, 21 Ind. 54. and does not render the steamboat 2 Cronkite v. Wells, 32 N. Y. 247. company responsible ; especially if he And see Blanchard v. Isaacs, 3 Barb, undertook besides to collect dues 388. from the consignee. Suarez v. The 8 Supra, § 367 ; Angell Carriers, Washington, 1 Woods, 96. §§ 76, 77, 85, 146. Where the purser * Buckman v. Levi, 3 Camp. 414 ; of a steamboat takes a parcel out of Butler v. Hudson River R., 3 E. D. favor to one who offers it and without Smith, 571. 386 CHAP. III.] COMMON CARRIERS. § 386 much consequence ; and, as a rule, delivery sliould be at the canier's habitual place of receiving his customer's goods. Thus, a package of money to go by express ought to be de- livered at the ofTice counter; and its delivery at some place outside the office, even though this be to a clerk accustomed to issue receipts in the office, will not commonly suffice.^ Nor is a railway to be pronounced the common carrier of goods which are carelessly left at the side of the track, to be picked up by the next freight train, there being neither station nor freight-agent at hand.- For freight should be delivered at such a spot on the carrier's premises that the carrier or his servant charged with such affairs can at once take control and know that he is expected to assume the liability.^ In all such cases, one's delivery of the property on the carrier's premises should be accompanied by some notice, express or implied, to the carrier or his proper agent, that the consignor intends committing it for a specific transportation. Merely placing goods where the carrier could easily have taken them is not sufficient ; and a customer may well bear his own loss when he silently deposits the thing where it must needs be exposed to harm.^ Not even loading the property upon the carrier's car, cart, or vessel will make the carrier responsible for its safety, if the sanction of himself or his proper servants be wanting.^ Delivery of warehouse receipts is not a constructive deliver}^ of the 1 Cronkite v. "Wells, 32 N. Y. 247. lonely and remote stopping-place. But see § 380, as to the custom of See further, 88 Tex. 549. sendinc; for express matter. * See Grosvenor v. New York Cen- 2 AVells r. Wilmington R., G Jones, tral R., 39 N. Y. 34. 47. And tlie more so, as to a mere * Selway v. Holloway, 1 Ld. switch where there is not even a Raym. 40 ; Story Baihu. §§ 532, platform. Kansas City v. Lilley, 533 ; Packard v. Getman, (i Cow. Miss. (1891). Cf. Montgomery R. v. 757 ; Grosvenor v. New York Cen- Kolb, 73 Ala. 396 ; 41 La. Ann. 639. tral R., 39 N. Y. 34 ; Gleason v. Good- At the same time, it is understood richTrans. Co.,.32 Wis.85 ; O'Bannon that railway agents for freight in a v. Southern Express Co., 51 Ala. 481. large city have a more specific scope ^ Leigh v. Smith, 1 C. «& P. 640 ; than the station agents of some Illinois Central R. v. Smyser, 38 111. 354. 387 § 387 THE LAW OF BAILMENTS, [PART VI. goods tliey represent in any full sense, until actual receipt follows.^ § 387. The Same Subject ; Acceptance ; Bill of Lading, Way-bill, Receipts, etc. — Actual or constructive acceptance by the carrier is, then, an indispensable element in every complete delivery. And business usage will not unfre- quently call for the booking or entry of the goods by the carrier, followed by his handing over a receipt, way-bill, bill of lading, or other like token of the responsibility he has thus assumed towards the property .^ Yet the assumption of the common carrier's responsibility turns not upon the interchange of documents, but upon the carrier's acceptance ; upon the completion of that bailment delivery in fact, actual or constructive, of which documents afford only a more convincing proof.^ The mere date of a bill of lading does not conclude the date of actual receipt for transportation, which is the real test.* Whenever prop- erty is received for purposes of present transportation, know- ingly and willingly, by the party who professes the public employment, and the consignor relinquishes control to him accordingly, his duty as common carrier on that instant arises. It is enough that such assent be given by one the scope of whose employment authorizes him to make the delegated acceptance ; and, under circumstances like these, delivery of the property to the person and at the place where such things are habitually left for the carrier, will charge him sufficiently, whether the freight money was paid or not, and notwithstanding the circumstance that writings or other token of acceptance follow at a later stage.^ Even where the duty of receiving freight devolves commonly upon another, the carrier may become specially bound by the 1 See 93 Tenn. 314. 3 nnnois Central R. v. Smyser, 38 2 See The Keokuk, 9 Wall. 517; 111. 354; Hickox v. Naugatuck R., Illinois Central R. v. Smyser, 38 111. 31 Conn. 281. 354 ; Judson v. Western R. , 4 Allen, * Railroad v. Neel, 56 Ark. 279. 520 ; Lakeman v. Grinnell, 5 Bosw. And see § 394. 625. A carrier is not an agent per se ^ Burrell v. North, 2 C. & K. 680. for acceptance under the Statute of Frauds. (Mich.) 28 N. W. 892. 388 CHAP. III.] COMMON CARRIERS. § 388 acceptance of some servant whom he has held out as duly em{)Owered to accept for the particular occasion or purpose.^ And the fact of delivery having been plainly brought home to the carrier, no actual acceptance on his part need be shown by the customer; for negative conduct and even silence ma}' be construed into the assumption of that duty which the public servant has no right to renounce at discretion. § 388. Effect of Usage or Special Contract in determining Delivery. — Goods which are delivered according to the car- rier's established usage have been pronounced fully delivered in various instances, though this were under circumstances not clearly importing acceptance on the carrier's part. For example, where freight for water-carriage was carted through the gate into the private dock of a steamboat company, and left on the usual place for loading up the vessel, this was held to constitute a good delivery and acceptance for trans- portation, although neither the carrier nor his agent were shown to have received any distinct notice or made any dis- tinct acceptance thereof ; and the constant usage of the com- pany to receive property at its dock for transportation in this manner, and without a special notice of the deposit, was deemed equivalent to a public offer.^ Or again, in the case 1 Miller, J., observes on this point ness, yet the company who sanction as follows, in Grosvenor v. New York the performance of this duty by other Central R., 39 N. Y. .34, 37: "Per- personsintheiremployment, and thus sons dealing with railroad corpora- hold out to the world that they are tions, and parties engaged in the authorized agents, are not at liberty transportation of freight, have a to relieve themselves from respousi- right to consider that those usually bility by repudiating their acts." In employed in the business of receiv- this case it was considered that notice ing and forwarding it, have ample to a baggage-master might, under the authority to deal with them. It is circumstances, suffice to complete the enough to establish a delivery, in the delivery of freight, first instance, to prove that a person ^ Merriam v. Hartford R., 20 Conn, thus acting received and accepted the 354. There was in this case evidence property for the purpose of trans- to show that the cartman called out portation, and even although it sub- that he had freight, to some one on the sequently appears that another em- bo.at, who responded, "All right"; ploy6 was actually the agent having but who this person was did not ap- charge of this department of busi- pear. 389 § 389 THE LAW OF BAILMENTS. [PART VI. of a railway whose receiving agent had adopted the custom of receiving for shipment cotton which was left in a street by the side of the platform, or in the railroad cotton-yard.^ But precedents like these tend to enfeeble the main principle we are discussing, and ought not to receive an implicit credence ; though all must concede that special contracts in this respect, between a carrier and his patrons, and, in like manner, usage, whose operation is that of a special contract, may be found to color the mutual delivery and acceptance in a given in- stance. Business methods go far towards determining the point of time at which the thing passes into the carrier's control with his assent for present transit purposes. And, provided the circumstances of a case warrant the inference that a certain carrier has accepted for present transportation in his public capacity, the place of acceptance becomes immaterial ; for it may be in or out of his office, store, depot, or warehouse, and either with or without being accompanied by written for- malities. Thus, freight placed in a railway car for present shipment, with the company's assent, becomes as effectually delivered to the company as though it were taken to the freight-house, or delivered upon the depot j^latform. For a car so loaded with freight in the company's control, and re- maining upon a side-track, the railway may, by virtue of an oral acceptance, become liable as a common carrier, even though no bill of lading of the freight be yet signed.^ And yet, had these goods been placed in the car without some such oral assent, it would justly be said that no bailment liability, and especially no common-carriage liability, was incurred by the company. § 389. Custom of Sending to Receive Freight. — Expressmen and other carriers, too, who send their servants habitually to the customer's dwelling or store to receive goods, shift, by so doing, their place of carriage acceptance, and become there ^ Montgomery R. v. Kolb, 73 Ala. 2 Illinois Central R. v. Smyser, 38 396. 41 La. Ann. 639. Cf. § 386. 111. 354 ; 89 111. 244. 390 CHAP. III.] COMMOX CAIUUERS. § 300 as fully bound as though delivery had been made on their own business premises.^ In some instances the carrier's duty of acceptance requires him to come and select, or to take a certain quantity from a heap, rather than merely to accept what the owner may bring liim ; in which case he must perform according to the mutual understanding, and neitlier beyond nor short of what the consiofnor directed. ^ § 390. Where Carrier is Bailee ia another Preliminary Capa- city. — It is, however, observable tliat carriers are often to be deemed at a certain posture of the case Warehousemen or simple custodians with respect to property which has been placed in their charge. And, whether one holds himself out as blending these two professions in practice or not, a person or company exercising the public vocation, whose custody of goods continues long before or long after the transit, should be charged, not as common carrier, but in the less onerous capacity of a hired or gratuitous bailee. Railway freight depots, where much property is necessarily held, from one cause or another, on long storage, furnish instances Avhere the distinction is applicable. In all such cases the just intent of the transaction must guide us towards determining what bailment relation is sustained at any particular stage. For while every public carrier may doubtless refuse to receive property when tendered him for transit unreasonably early, such carrier may accept, if he choose, on the just under- standing, express or implied, that, until he is prepared to load aboard for the journey, his own liability shall be simply that of warehouseman or hired custodian, or, if the case were freed utterly from the consideration of recompense (a conclu- sion which ought reluctantly to be accepted in any case where advance facilities are provided for goods which are ultimately to be transported for a recompense), as a gratuitous bailee. 1 Boys V. Pink, 8 C. & P. HOI ; Railway companies have in some in- Daviy V. Mason, 1 C. & M. 45 ; Phil- stances established receiving offices lips V. Earie, 8 Pick. 182. for freii^lit, as a result of conii)eti- 2 Cooper V. Berry, 21 Ga. 550. tiou. See L. K. C. P. 104. 391 § 391 THE LAW OF BAILMENTS. [PAET VI. This previous storage may be of much convenience to the bailor ; yet early delivery of freight is not without its advan- tages to those who are to pack and stow it for the transit ; and hence, as a rule, the carrier who accepts is taken to accept for present transportation at his own convenience, and accordingly as a party at once liable as common carrier, even though the goods lie at the wharf, on the platform, in the freight-house, at the depot, or elsewhere, or are awaiting some preliminary preparation for the transit, and are not yet laden or stowed in condition for the transit to commence.^ This rule of carriage delivery and acceptance, we should feel assured, is no arbitrary or capricious rule, but one which is shaped by actual circumstances. And wherever the bail- ment relation which follows the transfer of possession im- ports, upon all the evidence, no duty of immediate or present transportation on the bailee's part, but rather that he shall await his consignor's further acts or instructions before put- ting the goods on their course, and the delay is for the cus- tomer's convenience instead of his own, or by way of a license to use his premises for shelter, the position of the bailee, though he be a public carrier by profession, will continue meantime that of warehouseman or simple bailee, and not of carrier.^ § 391. The Same Subject; Acceptance as Common Carrier, etc. — But the presumption arises, w^iere goods are deliv- 1 Robinson v. Dunmore, 2 B. & P. pressed before sending. 112 Mo. 622 ; 416, 419; Story Bailra. §§ 534-537 ; 154 U. S. 155. ritchburg R. v. Hanna, 6 Gray, 539 ; ^ Barron v. Eldredge, 100 Mass. Moses V. Boston & Maine R., 4 Fost. 457; Angell CaiTiers, § 134 ; Finn v. 71 ; Blossom v. GrifiBn, 3 Kern. 569 ; Western R., 102 Mass. 284 ; St. Louis Clarke v. Needles, 25 Penn. St. 338 ; R. v. Montgomery, 39 111. 335 ; Spade Michigan Southern R. v. Shurtz, 7 v. Hudson River R., 16 Barb. 383. Mich. 515. Where goods were origi- An understanding that goods received nally delivered to a railroad to be shall be held as part of a lot to await kept until further notice, the com- transportation until the whole is de- pany's custody is that of ordinary livered will render the carrier liable bailee and warehouseman until he re- only as warehouseman until he has ceives orders to ship them. Schmidt the whole lot ; even though he be V. Chicago R., 90 Wis. 504. And so, authorized (not directed) to carry in too, if cotton is received to be com- portions. Watts v. Boston & Lowell R., 106 Mass. 466. 392 CHAP. III.] COMMON CARRIERS. § 393 ered and accepted by a common carrier in the ordinary course, and nothing remains for the consignor to do to them, that no intermediate storage is requisite unless it be for his own convenience; that tlie acceptance is, in fact, to forward fortliwith, or solely as common carrier.^ How the common carrier may be changed into a custodian or warehouseman, at the journey's end, because of some delay in delivery over to the proper consignee, we shall consider hereafter.^ The same general doctrine of a preliminary bailment duty applies to carriers who act as forwarders ; as, for instance, to successive companies in a line of connecting railways.^ As the warehouseman or forwarder of goods, with a right to charge for his services, the common carrier is bound to exer- cise, at all events, ordinary care and diligence.* The perti- nence of our present distinction is strongly shown in case goods are accidentally destroyed by fire Avhile in the carrier's possession, but before or after the actual transit; accidental fire being a casualty against which one insures as a common carrier, but not as a hired custodian or warehouseman. § 892. Carrier need not forward where Destination is un- known. — Where the carrier has no means of knowledge, by marks on the goods or otherwise, as to their destination, or finds them by mistake misdirected to some place which has no existence, he is not bound to undertake their transporta- tion, until properly informed.^ § 393. Carrier usually loads and stows. — In general the ^ Mo-ses V. Boston & Maine 'R.,4 But a railway company, prohibited Fost. 71 ; Nichols v. Smith, 115 Mass. by its charter from chari^inii for stor- 332 ; Hickox v. Naugatuck K., .31 age, would, it is held, be liable as a Conn. 281 ; Grand Tower Co. v. UU- mere gratuitous bailee under circum- man, 80 III. 244. • stances like the present. Michigan 2 Post, c. 6. Southern H. v. Shurtz, 7 Mich. 515. ^ Post, c. 9. And cf. Judson v. ^ See O'Rourke v. Chicago R., 44 "Western R., 4 Allen, 520 ; Michaels Iowa, 52G ; Erie R. r. Wilcox, 84 111. w. New York R., .30 N. Y. 5(i4. 239. The consignor's duty in this * Northern R. v. Fitchburg R., 6 respect will be presently ccmsidered. Allen, 254; Nichols v. Smith, 115 As to misdirection and its effect, see Mass. 332; Maybin v. South Caro- c. fi, poi^t ; Stimson v. .lackson, 58 lina R., 8 Rich. 240; supra, § 101. N. H. 138; Cougar v. Chicago R., 24 Wis. 157. 393 § 39J: THE LAW OF BAILMENTS. [PAKT VI. carrier is to determine how and where to stow goods received by him for carriage.^ If he permits the loading to be done by the consignor or his servants, the hiw treats them, for this purpose, as agents of his own, and subject to his direction, save so far as it might appear that the transfer of the con- signor's control was still kept in abeyance. The carrier can- not evade his public responsibility for property actually taken into control for carriage, on the plea that the consignor or others loaded it upon his vehicle ;2 for where no fraud is practised upon him he is considered as waiving all faults of loading by others when he accepts the property so loaded on the undertaking to transport it, having the opportunity to inspect and rectify for himself.^ But shippers sometimes have a private car or quarters and are held liable for load- ing and stowing accordingly.* § 394. Delivery and Acceptance illustrated ; Bill of Lading, Way-bill, etc. — The carriage of freight by water affords an illustration of our rule of delivery and acceptance. Whenever property comes into control of the water carrier's servants for present transportation, the carrier risk attaches ; and this does not wait for the thing to be actually put on board where, as constantly happens, freight is received by the carrier on a wharf for loading up the vessel ; or so as to be taken out in lio-hters while she lies in the stream at anchor; or even at the shipper's warehouse ; provided the loading and stowing be under the carrier's direction.^ Still more clearly is the vessel's liability fixed if the carrier has receipted for the 1 Hannibal R, v. Swift, 12 Wall. Edwin, 24 How. 386 ; Angell Car- 262; Merritt v. Old Colony R., 11 riers, §129; Story Bailm. §534; 28 Allen, 80 ; May t;. Hanson, 5 Cal. 360 ; Fed. R. 202. Under snch circum- Illinois Central R. v. Smyser, 38 111. stances, if goods are delivered and 354. Cf. The Keokuk, 9 Wall. 517. accepted in a lighter which the car- 2 Merritt v. Old Colony R., 11 rier hires to bring goods out to his Allen, 80. vessel, and the lighter explodes be- 3 Kinnick v. Chicago R., 69 Iowa, fore it reaches the ship, the carrier 665. must respond for the loss of goods * Fordyce v. McFlynn, 56 Ark. on board, whatever his own remedy 424 ; 111 N. C. 592. against the lighter. 24 How. 386, 5 British Columbia Co. v. Nettle- § 429. ship, L. R. 3 C. P. 499 ; The Barque 394 CHAP. Iir.] COMMON CARRIERS. § 395 goods. ^ liut acceptance must be brought home to the mas- ter, or other authorized representative of the vessel ; and while full custody may be taken by the carrier, apart from giving receipts or a bill of lading,^ no bailment for carriage is to be presumed from the fact that the shipper himself, without the carrier's sanction, loads his goods on a lighter which the carrier is not using.*^ Where, too, there has been no actual delivery of goods, the carrier cannot be concluded b}^ pretended bills of lading which the master signs, in fraud of his employers, through conni- vance with the consignor,^ or even, as some late cases rule, where there was error rather than fraud in such issue.^ Bills of lading or way-bills are used to a considerable extent in railway or other land traffic to the same general legal effect as in water transportation.*^ Notwithstanding their use, the question as between shipper and carrier is one of actual delivery of the goods as for immediate transportation.'^ § 395. Further Illustration; Carriers by Ferry. — A ferryman (and the same would hold true of ferry companies) is usually ^ lb. ; Greenwood v. Cooper, 10 these cases ; 108 Penn. St. 529 ; 93 La. Ann. 79G. N. C. 42. The latter view is sus- 2 Lakeman v. Grinnell, 5 Bosw. tained by the Siii:)renie Court of the 625 ; 04 Tex. 615. United States. Tollard u. Vinton, 8 The Keokuk, 9 Wall. 517 ; Tack- 105 U. S. 7 ; 18 How. 182. And see ard V. Getnian, G Cow. 757. c. 5, post. Local statutes rendering * Grant v. Norway, 10 C. B. 005. such instruments negotiable may af- But whether this rule shall avail feet such a doctrine. Stamping the absolutely as against an innocent words "not negotiable" upon the purchaser or holder for value with- face of a bill of lading does not de- out notice, there has been much con- stroy its assignable character. 1 Mo. flict in the authorities ; some hokling App. 417. that such acts of an agent acting ^ Nat. Bank v. Chicago 11., 44 witliin the apparent scope of his au- Minn. 224, and cases cited, thority shall, by estoppel at least, *' Here, again, the rule apjilics that bind the carrier ; while more hold to a bill of lading, fraudulent in its in- the contrary, denying liability, be- cei)tion and wrongfully put in circu- cause of the agent's fraud and want lation, shall not avail ; even (as good of autlnn'ity. lb. See Sears v. Win- authorities rule) as against an iinio- gate, .'5 Allen, 103 ; Baltimore &' Ohio cent purchaser without notice of in- R. V. Wilkens, 44 Md. 11; Armour firinity of title. Friedlander r. Texas V. Michigan Central U., 05 N. Y. Ill ; II., 130 U. S. 410 ; 154 U. S. 155. and the authorities amply cited in '^ 93 Tenn. 314. 395 § 397 THE LAW OF BAILMENTS. [I'ART VI. liable as common carrier, from the time he admits teams upon one slip, until they are off the other.^ And he is bound to keep the ferry slips in good order, as well as the boat itself.^ He is said to have the absolute right to direct what position persons and their carriages shall take on the boat without reference to priority of arrival.^ Both in receiving and de- livering, it is the ferryman's duty to see that the teams and their contents, and the animals attached to the teams, are safely driven ; to which end he may drive a team himself, or unharness, or unload it while on his premises; and if the ferryman lets the party drive his own team off or on, or re- main in charge, he makes him, to a certain extent, the ferry- man's agent.* Yet the driver who has not actually parted control of his team to the ferryman is not without a consid- erable share of responsibility for its safety, as in the corre- sponding instances, where one travels upon a cattle-car, in charge of his property ; ^ nor, indeed, would the animal's own nature and disposition be immaterial in such an issue of responsibility.® § 396. Further Illustration ; Delivery by Apparatus, etc. — Other illustrations of delivery may be cited where pipe, tack- ling, or other apparatus is used; the nice point of distinction being whether the carrier or the consignor controls such apparatus when a loss occurs.'^ § 397. Duty of Consignor in making Delivery. — With regard to bailment delivery to a common carrier, the consignor of goods and chattels has correspondent duties to those we have now considered which rest upon the carrier himself. What the consignor wishes transported should be offered for that 1 Willoughby v. Horridge, 12 C. B. 6 gee next c. 742 ; Miles v. James, 1 M'Cord, 157 ; '' Thus, where a cargo is to be de- May V. Hanson, 5 Cal. 360. livered from the lighter at the side of ^ lb. a ship by means of slings and tackle. 3 Clay pool V. McAllister, 20 111. The Cordillera, 5 Blatchf. 518. And 504. in delivering wheat from a warehouse 4 May V. Hanson, 5 Cal. 360 ; through a pipe into the vessel. The Miles V. James, 1 M'Cord, 157. Wiuslow, 4 Biss. 13. ^ White V. Winnisimmet Co., 7 Cush. 155. 396 CriAP. III.] COMMON CARRIERS. § 397 purpose to the right carrier at a reasonable time. If offered as freight, he should be ready to make compensation in ad- vance upon the carrier's request ; or if as baggage, to pay his passenger fare under like circumstances, by procuring a ticket, or otherwise ; while, on the other hand, it is for the carrier himself, who wishes his hire settled in advance, to decline re- ceiving the goods until paid, and generally to make known his reasons for declining the service, where acceptance is refused.^ The consignor should see that what he sends is plainly and legibly marked in some way, so that the place of destination may be readily known, and the party identified who should receive the goods ; ^ though an identification by marks, and description in bills of lading or way-bills, or by check or other token, will often suffice for practical purposes, as trans- portation business is now conducted.^ Above all, he should not misdirect what he sends.* Again, the consignor should offer his goods properly packed according to their nature and condition ; for he is liable for losses directly due to his own packing ^ as well as to his own misdirection or misdelivery. So, too, is it the consignor's duty to make no false preten- sions of ownership, nor practise deception as to the contents of the package he delivers. He should not only have his goods well packed, according to their nature and the charac- ter of the journey, but, as a certain class of cases indicate, acquaint the carrier, in some way, with facts not patent on inspection, which necessarily enhance greatly the usual risks of conveyance. Money and precious stones, for instance, should not be done up to look like cheap merchandise, nor glass and explosives as articles which bear rough handling.*^ 1 Story Bailm. § 508 ; supra, § 374. van, 25 Ga. 228 ; Forsythe v. Walker, 2 The Huntress, Daveis, 82, per 9 Penn. St. 148 ; post, as to termiiia- Ware, J. ; Southern Express Co. tion of carrier's risk, c. 6. V. Kaufman, 12 Heisk. IGl ; supra, * Stimson v. Jackson, 58 N. H. 138. § 392. 6 Baldwin v. London R., 9 Q. B. D. 8 Bradley v. Dunipace, 1 H. & C. 582 ; Shriver v. Sioux City li., 24 521 ; Finn v. Western R., 102 Mass. Minn. 606. 283, 290 ; Krender v. Woolcott, 1 « American Express Co. v. Per- Hilton, 223, See Rome R. i-. Sulli- kins, 42 111. 458 ; Angell Carriers, 97 § 398 THE LAW OF BAILMENTS. [PART VI. And, for giving to a carrier nitro-glycerine, or other highly dangerous substance, so packed that its injurious character does not appear on ordinary inspection, the consignor must bear whatever damage the carrier or third parties may sus- tain in consequence. Fraud is not the needful basis of such liability ; but the shipper's negligence often proves sufficient to charge him.^ The carrier must, however, on his behalf, have exercised, in all these cases, such care as befitted the apparent nature and worth of the article committed to him.^ § 398. Rule -where Consignor deceives as to Contents of Package, etc. — Indeed, the carrier's duty is limited to trans- porting things according in character to what he may have reasonably supposed them to be. It was remarked by an English judge, in one of the earlier cases, that a common carrier might refuse to take goods, unless the owner would tell him what they were.^ But the later decisions reject this as too broad a pro]30sition in his favor ; and, declining to make an inquisitor of the carrier, they leave him to judge, in general, by appearances, and by what the shipper may have chosen to reveal,^ Hence, if a shipper studiously conceals the true contents of the package, or marks it, or makes it up, as something different from what it really is, or misrepresents its value or nature, the carrier may set up such misconduct in defence to a loss thereby induced.^ The limitations of this doctrine will be discussed here- after;^ but we here add that it is held that, when the ap- pearance of the package is such as to arouse the carrier's suspicion that it is extra-hazardous, he may require a know- §213; Munster u. South-Eastern R., than in ordinary freight. See post, 4 C. B. N. s. 676 ; Brass v. Maitland, Part VII. c. 4 ; Railroad Co. v. Fra- 6 E. & B. 470 ; Farrant v. Barnes, 11 loff, 11 Otto, 24. C. B. N. s. 553; Boston & Albany R. ^ Best, C. J., in Riley v. Home, V. Shanly, 107 Mass. 568 ; Nitro- 5 Bing. 217. Glycerine Case, 15 Wall. 524. * Crouch v. London R., 14 C. B. 1 lb. And see Pierce v. Winsor, 255 ; Nitro-Glycerine Case, 15 Wall. 2 Sprague (U. S.), 35. 524. 2 lb. But as to the duty of ac- ^ Relf v. Rapp, 3 W. & S. 21 ; quainting the carrier with the value Phillips v. Earle, 8 Pick. 182. of wearing apparel carried as bag- « gee next c. gage, the rule appears less stringent 398 CHAP. III.] COMMON CARRIERS. § 399 ledge of its contents, as a prerequisite of carrying it ; ^ since only latent matters could justify him in setting up tlie shipper's negligence or deception, by way of an excuse for loss or injury .2 So the carrier may ask ship[)ers the value of packages tendered with a view to determining whether extra rates should be charged, and he may rely upon the answer given, by way of limiting his risk, unless disproof were patent;^ while, on the other hand, the shipper who has practised no deception or improper concealment is under no obligation to volunteer a statement of contents or value.* § 399. Consignor should make Full Delivery. — Finally, the consignor is bound to make personally, or through his agents, a full delivery, or, in other words, to yield possession and immediate control of the property to the carrier. What falls short of this, so as to import rather a retention of custody on his part, or the trust of his own agents, instead of the carrier, leaves a hiatus in the bailment delivery ; for the carrier must have been trusted, in order to become full}- liable. Hence, delivering a parcel to a friend, with instructions to have the common carrier book it for London, leaves the friend the sole responsible bailee in case of loss, if, instead of so doing, the latter puts the parcel into his carpet-bag, and carries it as part of his own baggage to save freight.^ Retention of custody by the owner, or a bailment too un- confiding to justly subject the bailee to extraordinary hazard, may, however, be better affirmed at all times of baggage, whose carriage is at best but incidentally paid for, than of goods delivered as freight. For the latter sort of transporta- tion a common carrier will not readily be excused from full responsibility at our law, simply because the owner or his 1 Field. J., in Nitro-Glycerine Case, * Merchants' Despatch Trans. Co. 15 Wall. 524. v. Bolles, 80 111. 473 ; Dwight v. Brew- 2 See New Jersey R. v. Pennsyl- ster, 1 Pick. 50 ; Story Bailni. § 507. vania R., 27 N. J. L. 100 ; Wiggin v. ^ Miles v. Cattle, Bing. 743. And Boston & Albany R., 120 Mass. 201. see Dunlap v. International Stcam- 8 Story Bailin. § 567 ; Little v. Bos- boat Co., 98 Mass. 371. As to bag- ton & Maine R., 66 Me. 2.39. See gage, see Part VII. c. 4. Lebeau v. General Steam Nav. Co., L. R. 8 C. P. 88. 399 § 400 THE LAAV OF BAILMENTS. [PART YI. servant happens to go with them. Nor does the owner's mere supervision of what is conveyed antagonize the mutually- intended transfer of bailment custody to the carrier.^ Thus, the supercargo in a vessel, or the drover travelling by rail with his cattle, leaves the carrier a common carrier and insurer still of the goods or animals whose conveyance he has in truth undertaken.2 Nor, once again, does baggage which has been stowed with the carrier cease to be at the carrier's risk, because the traveller sits where he can keep his eye upon it.^ § 400. Theory of Mixed Responsibility -where Consignor ac- companies the Goods in Transit. — But, whether the case be that of baggage or freight, there arises, doubtless, a sort of mixed responsibility for all property in transit, over whose custody the passenger or the shipper or his agent retains any practical control. This mixed responsibility in public car- riage the courts do not yet very happily decompose ; but perhaps the best solvent would be found in that universal principle that one who seeks to recover from another for a loss or injury inflicted upon him in person or property must not, by his own want of ordinary care or misconduct, appear to have contributed to that loss or injury. As in packing, marking, and bringing his goods into the possession of the public carrier for a particular undertaking towards them, so, too, in partaking of their care on the journe}^ if he does so, the customer is bound to be honest, and to bestow ordinary diligence within whatever happens to be the sphere of his chosen opportunity.* For, as will be shown more fully in the next chapter, the fraud or the negligence of the consignor contributing to a particular loss may, under proper circum- stances, be set up by the carrier in his own exoneration. 1 See Angell Carriers, §§ 113, 142. 3 Eobinson v. Dunmore, 2 B. & P. 2 See Wilson v. Hamilton, 4 Ohio 416 ; Cole v. Goodwin, 19 Wend. 251 ; St. 722 ; Evans v. Fitchburg R., Ill LeConteur v. London R., L. R. 1 Q. B. Mass. 142 ; Sneesby v. Lancashire 54 ; Part VII. c. 4. And see, as to a R., L. R. 9 Q. B. 263 ; s. c. 1 Q. B. permissive loading on board by the D. 42. And see next chapter, as to consignor, siipra, § 362 ; Hannibal R. transporting animals. But cf. East v. Swift, 12 Wall. 262. India Co. v. PuUen, Stra. 690. * Seeper curiam, in Talley v. Great Western R., L. R. 6 C. P. 44. 400 CHAP. lY.] COMMON CAKllIERS. § 402 CHAPTER IV. BAILMENT KESPONSIIULITV OF THE COMMON CARRIER. § 401. Perilous and Exceptional Responsibility assumed; but Duty is that of Bailee for Hire. — Upull the ilistuut a thing is delivered on liiic to a common carrier for present trans- portation, and accepted by himself or his agents in con- formit}^ with such an undertaking, the duties and rights of a public relation will attach thereto at the common law. Whether it remains in quiet custody until he can perform the journey, or is ready to be sent at once, whether it requires to be loaded by the carrier upon a car or vessel and stowed away, or is already on board and in place, the cariier has now assumed towards the chattel thus consigned to him a peril- ous and exceptional responsibility, which must in general continue until the thing safely reaches its destination, and his carriage undertaking, under the bailment and bailment contract, becomes fully performed, so far as may be. But the responsibility or risk incurred at the common law is one thing, and the duty another. To separate these two ideas will be found convenient, as our investigation proceeds. As to his duty, the common carrier is a bailee for hire, bound to the ordinary or average standard of performance. The legal responsibility, however, transcends all considerations of care and diligence, on his part, as we shall [)rcsently see ; making him an insurer, virtuall3% in many instances, aside from the qualif^'iiig elements to be noted in our next eliapter. § 402. Bailment Duty first considered ; Loading, Propelling Force, Vehicles. — Let US first observe what is the carrier's duty in exercising his public vocation. It is observable, as to the transit obligations, that a common carrier is bound to have his customer's property fitly loaded and stowed upon the vehicle, and to carry it in vehicles wliich are reasonably 20 401 § 402 THE LAW OF BAILMENTS. [PAET VT. strong, tight, and serviceable for the purpose intended ; this, liowever, only with reference to the nature and value of the chattel as disclosed to the carrier by its appearance or other- wise, and applying the ordinary or average standard of care and diligence in the particular calling. He must keep things properly packed and stowed and not carelessly shift them about. The propelling force must be fit and adequate for the common emergencies of the particular transit ; and the car- rier must man, equip, and provide the propelling faculties with reasonable prudence and foresight.^ For transportation by horse and wagon, the carrier must supply ordinarily fit animals and teams, competent drivers, and good harness ; besides providing, if the journey be a long one, the means of feeding, resting, and changing his beasts. In transpor- tation by railway, the cars furnished should be serviceable, the road-beds secure, the locomotive a fit one, placed under the control of a competent engineer, and supplied with fuel and water, the train with its equipments and the tracks kept in good condition, and well looked after by proper subordi- nates in charge. Transportation by water demands a vessel stanch and tight, proper officers, and a proper crew; steering apparatus, sails and masts all in good order ; a proper supply of provisions and water ; and, if the vessel be propelled by steam, safe engines and machinery, persons skilled in manag- ing them, fuel, and the other usual appliances. Where there will be no likely opportunity on the transit to refit, refurnish, revictual, or otherwise supply the wants of the entire journey, the carrier should with foresight provide, before starting, whatever may be desirable. In manning and equipping, the carrier need not provide against unusual exigencies, but only those which ordinary prudence forecasts ; for, in these and all other respects, his obligation is presumably commensurate with the exercise of a reasonable care and discretion, such as those ordinarily careful in the vocation would bestow.^ 1 Branch V. Wilmington R., 77 N.C. 2 gtory Bailm. §509; Propeller 347 ; svpra, § 377 ; Alabama R. v. Niagara v. Cordes, 21 How. 8 ; Kopi- Searles, 71 Miss. 744. 402 CHAP. IV.] COMMON CARRIERS. § 403 It is well settled that a water carrier warrants, by implica- tion, that his vessel is reasonably lit for the particular freight when she sails, and not merely that he has honestly endeav- ored on his part to make her fit ; ^ to which end he is bound to have the vessel often and thoroughly inspected to make sure of its condition, and must cease using it wholly when it becomes unsafe for its purpose beyond the reach of further repair.'^ And a like warranty probably holds good of any kind of vehicle for the public carriage of property on hire.^ A bailment for steam conveyance does not permit the sub- stitution of horse-power or a sailing-vessel ; and, as a rule, the mode of carriage is taken to be limited and defined by the carrier's public undertaking.* § 403. Carrier's Duty in Transporting. — In carrying the goods to their destination, the common carrier and his ser- vants are bound to transport safely, with reasonable despatch, and by the prescribed or his customary route .^ He must take care that the goods be kept, after their kind, well stowed, secured, and sheltered throughout the transit, so as not to suffer undue waste, decay, or diminution; that the vehicle and motive power fail not from want of skill or fair j^recau- tion ; that the transit be made over clear tracks or an unob- structed course, so far as ordinary discretion on his part can make it such ; and, at the last, that the property be delivered over rightfully, with reasonable despatch, and according to toff V. ^Yilson, 1 Q. B. D. 377; vessel) "seaworthy," we mean ordi- Schraidt v. Chicago U., 83 111. 405. narily fit, and not so exceptionally 1 Lyon V. Mells, 5 East, 428 ; Kopi- serviceable that the vehicle may en- toff r. Wilson, 1 Q. B. 1). 377 ; .Steel counter safely every irresistible peril. V. State Line Steain.ship Co., 3 App. See Amies v. Stevens, 1 Str. 127. D. (H. L. Sc.) 72; Stanton v. Rich- •• Fraser v. Telegrapii Construction ard.son, L. R. 9C. V. .300 ; The North- Co., L. R. 7 Q. B. 500 ; Merrick v. em Bell, 9 Wall. r)2('.. "Webster, 3 Mich. 208. 2 The Northern Belle, supra. ^ Story Bailm. § 500 ; Raphael v. 8 See lUackburn, J., in Readhead Pickford, 5 M. & Gr. 551 ; Hales v. V. Midland R., L. R. 2 Q. B. 412; London R., 4 B. & S. OO ; Powers KopitofI V. Wil-snn, 1 Q. B. D. 377, v. Davenport, 7 Blackf. 407 ; Harris 381 ; Gibson v. Small, 4 H. L. C. 353. v. Northern Indiana R., 20 N. Y. 232 ; But by being fit or (as it is said of a 37 La. Ann. 408. 403 § 404 THE LAW OF BAILMENTS. [PART VI. the just sense of his particular bailment undertaking.^ But a carrier is not obliged to carry goods strictly in the order in which ho receives them, and without regard to their charac- ter, condition, exposure to depredation, or liability to perish ; ^ nor, on the other hand, to favor unduly one kind of property to the detriment of another.^ And while deviations from the agreed or customary route, if made without good excuse, must place the carrier in the predicament of having to answer for all the ill consequences which may ensue from his breach of contract, a deviation from necessity, especially in a sea voyage, ought to be and is more lightly visited.^ § 404. Carrier's Duty in Case of Disaster or Delay. — Should disaster overtake him during the transit, the common carrier is bound to lessen its injurious effects by pursuing a reason- able course of conduct towards the property placed under his charge for carriage.^ He ought, if the goods be still worth transporting, to repair the vehicle and then proceed on his way, or else to transship them ; if delayed long, he should temporarily store and shelter them ; and he should neither needlessly abandon the goods nor expose them carelessly to damage ; all this according to his opportunity and in the exer- 1 Story Bailm. § 509 ; Lyon v. says that in determining tlie neces- Mells, 5 East, 428 ; Hastings v. Pep- sity of a deviation from tlie course of per, 11 Pick. 41. See c. 6, jwst, as a sea voyage, and running into port to final delivery. to avoid disaster, " much must be left 2 Peet V. Chicago R., 20 Wis. 594 ; to the judgment and discretion of a Marshall v. New York Central R., 45 master." But here it was decided, on Barb. 502 ; 76 N. Y. 305. the proof, that the vessel was actually 3 Dixon V. Chicago R., 64 Iowa, in an unseaworthy condition. Where 531. a vessel was long detained in port by 4 Story Bailm. § 509 ; Davis v. Gar- an excused calamity, and a perishable rett, 6 Bing. 716 ; The Maggie Ham- commodity was kept in the hold, in- mond, 9 Wall. 435 ; 11 Fed. R. 179 ; stead of being discharged, the carrier Crosby v. Fitch, 12 Conn. 410 ; Hand was held chargeable for the damage. V. Baynes, 4 Whart. 204. The Jason, 28 Fed. R. 323. And see 5 Story Bailm. § 509 ; Davis t;. Gar- Kinnick v. Chicago R., 69 Iowa, 665. rett, 6 Bing. 716; Powers v. Daven- The rule of necessity in deviating is to port, 7 Black, 497 ; Hales v. London be fairly applied, and a more remote R., 4 B. & S. 66 ; Phillips v. Brigham, port may appear more suitable for re- 26 Ga. 617. In The Schooner Sarah, pairs than the nearest one. Phelps v. 2 Sprague (U. S.), 31, Sprague, J., Hill, [1891] 1 Q. B. 605. 404 CHAP. IV.] COMMON CARRIERS. § 404 cise of ordinary discretion and prudence under the peculiar exigency. And, after the same measure of sound good sense, shoukl he apply the proper means of preserving from destruc- tion whatever may remain ; as in diying, repacking, repairing, and separating the spoiled from the unspoiled.^ But he would not be justified in sending forward, merely for the sake of earning his hire, that which plainly is too far damaged to be worth to its owner the cost of further transportation ; ^ but should rather send for instructions, or else sell it on the spot for what it will bring ; for he is bound to regard his customer's interests as well as his own in such a calamit}'. Nor, again, is the carrier bound to suspend his journey to the undue preju- dice of other shippers, in order that injury to the property of one consignor may be repaired ; for the general welfare of the property in his vehicle must always be considered.^ The carrier, furthermore, has no right to transship such goods as he may have preserved, at so high a rate that it will not be for the owner's interest to receive them.^ Transshipment, in fact, though highly desirable oftentimes, as in furtherance of the original purpose of transportation, must be pursued only when practicable and promising a real benefit to the customer. If, however, the carrier has once transshipped property under justifying circumstances, he is not bound to take it on board again after the immediate danger is past.^ A carrier delayed with his goods from some cause for which the law will excuse him should, when that cause ceases to operate, proceed onward and complete the transit, if the interests of the owners of the goods so require.^ And his inexcusable failure to put the goods in transit at all, or his 1 Propeller Niagara v. Cordes, 21 ^ Notara v. Henderson, L. R. 5 How. 7 ; Blocker v. Whittenburg, 12 Q. B. 340 ; s. c. L. R. 7 Q. B. 22o. La. Ann. 410 ; Rogers v. Murray, 3 « Steamboat Lynx v. King, 12 Mo. Bosw. .357 ; Houston R. v. Ham, 44 272. Tex. G28 ; The Maggie Hammond, 9 * Lemont v. Lord, 52 Me. 305. Wall. 4.35 ; Choutcaux v. Leech, 18 5 Cox v. Foscue, .33 Ala. 713 ; Penn. St. 224; Bird v. Cromwell, Branch v. Wilmington R., 77 N.C. .347. 1 Mo. 81 ; 13 Mo. App. 415 ; 72 Miss. See Wilson r. Harry, 32 Pcnn. St. 270. 891. « Lowe V. Moss, 12 III. 477. 405 § 405 THE LAW OF BAILMENTS. [PART VI. want of ordinary foresight in receiving goods which were not likely to go through safely unspoiled and uninjured, will charge a carrier with all the damaging consequences.^ As between perishable and non-perishable goods, or things ani- mate and inanimate, the former might naturally claim some priority in the exercise of due care if delay occurs ; but sup- posing the carrier to have prudently undertaken his business, he is not bound to transport one kind to the exclusion of the other, nor to show undue preference, but rather to do his duty faii'ly by all customers as the exigency may require.^ One's absolute contract as common carrier to receive and transport goods at a future time is not rightfully broken merely because some superhuman necessity intervenes to prevent a prompt performance ; but this, at the utmost, can only suspend the progress of his journey.^ For mere delay, reasonable in tlie course of events, courts are not disposed to visit the carrier harshly nor to pronounce a delay unreasonable Avithout refer- ence to the circumstances.* In absence of a special under- taking on his part the carrier is to transport presumably within a reasonable time after the goods are delivered him, and with reasonable expedition ; but a special undertaking exacts special fulfilment.^ § 404 a. Premature Shipment as well as Delay renders Car- rier Liable. — As a carrier should not transport with unrea- sonable delay, neither should he make an unreasonably premature carriage to the injury of his customer.^ § 405. Legal Liability distinguished from Duty ; how far Car- rier is answerable as an Insurer. — So much, then, for those 1 Adams Express Co. v. McDonald, * §§ 377, 488. 1 Bush, 32 ; Clarke v. Needles, 52 ^ As in undertaking to forward by Penn. St. 338 ; Tierney v. N. Y. Cen- a specified date or train. Corbett v. tral R., 76 N. Y. 305 ; Hewett v. Chi- Chicago R., 86 Wis. 82 ; Cantwell v. cago R., 63 Iowa, 611. Pacific Express Co., 58 Ark. 487. 2 Dixon V. Chicago R., 64 Iowa, ^ gee Campion v. Canadian R., 43 531. But cf. Tierney v. N. Y. Cen- Fed. 775, where damage ensued be- tral R., supra. cause the carrier made shipment 3 Collier v. Swinney, 16 Mo. 484. without notice, after undertaking to See 2 Mo. App. 557 ; Sumner V. Char- hold the goods until charges were lotte R., 78 N. C. 289 ; 107 N. C. 76. prepaid. 406 CHAP. IV. J COMMON CARRIERS. § 405 general duties of tlie common carrier to wliicli his bailment undertaking naturally gives rise. Taking circumstances in their true relation to one another, this standard is ordinary- care and diligence, as in other bailments for hire. The in- stances in which we are presently to trace their influence upon the mutual adjustment of losses will not want that fda- ment which connects our whole system of bailments, namely, the legal requirement of good faith on the bailee's part, and the exercise of a certain degree of diligence towards the thing confided to him ; a consideration peculiarly applicable where the carrier's public liability has been reduced by special con- tract or legislation. And yet our present bailment is not an extraordinary one in the sense of requiring tlie exercise of an extraordinary degree of diligence and nothing beyond it. Public policy under the common law takes a higher plane ; and, without asking whether a certain loss or injury occa- sioned to property which was consigned for carriage to one who exercised a public vocation in convejang it imputes to him actual diligence or negligence, actual blame or blameless- ness, pronounces him legally answerable therefor, unless he can clear liimself by bringing the loss or injury within certain stated exceptions. It makes the common carrier, in other words, a virtual insurer against all risks of loss or injury save those (1) of loss or injury by act of God, and (2) of loss or injury b}"^ a public eneni}^ ; to which modern precedent justifies us in adding, (8) of loss or injurj^ by act of the owner or consignor of the goods, since common justice de- mands that the carrier's customer shall suffer for his own faults. One more exception this writer ventures to add, in advance of judicial announcement, viz., (4) of loss or injury by the public authority.^ As regards the two former exceptions, our law has fastened upon these not simply for the reason that tlie cause of loss is irresistible, — for so, too, might be the scattering of the car- rier's goods by a mol), or their destruction by an accidental fire, — but because calamities like these are matter of public 1 This, like the other exceptions, will be presently discussed at length. 407 § 406 THE LAW OF BAILMENTS. [PART VI. notoriety, open to investigation, and such as no carrier would be likely to draw upon himself by corrupt collusion with in- dividuals or fraud upon his customer. Here we may perceive, as in the case of innkeepers, the operation of a principle whereby the public bailee is invested with a responsibility which no degree of prudence or forethought on his part can wholly confine. § 406. Reason for this Severe Rule of Public Policy. — Dis- trust of an ancient profession whose members could, if they chose, easily embezzle or confederate with thieves, and might cover up losses occurring through heedlessness or misconduct on their part by artful pretexts whose falsehood the customer himself had little chance of exposing, will explain the strin- gency of the law in this respect. The community, even in an era of lawlessness, had to confide their property to persons of this pursuit, or else be shut out from mercantile intercourse ; so the law took the public cause into its special keeping. Thus does Lord Holt put the argument in Queen Anne's time, for charging the common carrier against all occasion of loss, except acts of God and of public enemies, though the force be never so great, or even though he were robbed by an irresistible multitude : "And this is a politic establish- ment, 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; for else these carriers might have an opportunity of undoing all persons that had any dealings with them by combining with thieves, etc., and yet doing it in such a clan- destine manner as would not be possible to be discovered. And this is the reason the law is founded upon in that point." ^ A later English judge of renown. Best, C. J., developed the same line of reasoning quite as forcibly. " When goods," he says, " are delivered to a carrier, the}^ 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 1 Coggs V. Bernard, 2 Ld. Raym. 909, 918. See § 335. 408 CHAP. IV.] COMMON CARRIERS. § 407 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 car- rier'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 responsibility of a carrier Avhich 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, namel}^ : the act of God and the king's enemies." ^ A vast number of other authorities serve to strengthen this position by their approval, without, however, adding much to the reason of the rule itself, which is, undoubtedly, the stronger for sim- plifying the main inquiry in cases of loss, and so checking litigation. 2 § 407. The Same Subject. — Under this ensign the courts of England and America have rallied for centuries ; yet there is reason to believe that a conservative regard for ancient precedent, and a disposition to rest on the popular side of the controversy, have kept the carrier's responsibility wound up to tliis pitch, more than an unshaken conviction of the justice and necessity of the rule, whatever changes in society or in the modes of transportation time might bring. Consistency drove our courts to declaring ships at sea public carriers in this sense of public insurers ; ^ but how slight the chance 1 Riley v. Home, 5 Bing. 217, 220. rington v. M'Shane, 2 Watts, 443 ; 2 See Story Bailm. §§ 490, 401 ; Klauber v. American Express Co., Angell Carriers, §§ 148-153 ; 2 Kent 21 Wis. 21. In Hollister v. Nowlen, Com. 002 ; Nelson, J., in New Jersey supra, stress is laid upon the carrier's Steam Nav. Co. v. Merchants' Bank, right to graduate his charge accord- 6 How. 344 ; Hubbard, J., in Thomas ing to the risk he runs, as proof that V. Boston R., 10 Met. 472, 476 ; Bron- he suffers no great hardship under son, J., in Hollister v. Nowlen, 10 such a policy. Wend. 234 ; Mershon v. Hobensack, s Supra, § 338. 22 N. J. L. 372 ; Sergeant, J., in Har- 409 § 407 THE LAW OF BAILMENTS. [PART VL here of plunder by fraud or collusion when compared with that "poor carrier" who travelled by himself over lonely roads infested by marauders, and whose hard lot, should he, an honest fellow, happen to be robbed without any default whatever on his part. Lord Holt could not, out of his human- ity, help pitying.^ Modern business methods, modern in- ventions, modern customs, have all reduced the carrier's opportunities for clandestine plunder of his customers quite as low, it may be thought, as those of depositaries, commis- sion merchants, and a host of others who were never put in this pillory of public policy. The carriage of property is now organized on an immense scale, engaging numerous servants, conducted with much publicity, choosing often for managers men whose names ought to inspire confidence among their fellow-citizens, and who, at all events, would not be suspected of plundering the merchandise they conveyed. With the in- troduction of steam, and of traffic by railway more especially, we find the Anglo-Saxon rule put to a harder strain in the last fifty years than during all the preceding centuries of in- land carriage put together. The distrustful feeling towards common carriers which modern experience engenders is not so much that of positive dishonesty on their part, as of over- bearing and extortionate conduct and negligent and reck- less transportation. Carriage monopolists are growing so rich, so powerful, and that responsibility which, to be con- scientiously exerted, should be individual, is getting to be diffused through so many subordinates, that the small con- signor is bruised, if not broken, when he seeks justice against the carrier, unless he can simplify his cause and the proof required. This the old rule certainly enables him to do, and hence he may hold the carrier to something like a scrupulous discharge of his duty ; and, if the judgment be severe, feel at least assured that it is to be satisfied out of a large fund, without causing human misery. Except for some such need of an advantage to the pigmy who contends against a giant, and a certain dread, among the people, lest our ministers be- 1 See Lane v. Cotton, 12 Mod. 482. 410 CHAP. IV.] COMMON CARRIEKS. § 409 come our masters, it is likely that the old maxims avouIcI, ere this, have spent considerable of their pristine force. § 408. Modern Rule affected by Legislation, Special Con- tract, etc. — We shall show, in the succeeding chapter, that, with more particular reference to modern railways, steam- ships, and sailing-vessels, the ancient rigor of the carrier law has much abated ; not only that legislation in England and America strikes out some of the most hazardous risks the common carrier was once compelled to run, but that by virtue of special contract with his customers, and this often of the most indirect character, the carrier has been permitted to gain a very considerable advance towards immunity, and, indeed, at some periods of our law, almost a complete immu- nity.^ No view of the carrier's practical relation with his patrons in modern days can be thought complete which fails to take in all of these possible modifications of liability. Yet the ancient doctrine which Lord Holt and his predecessors inculcated is at the basis of our carrier jurisprudence, and this we must accordingly make the starting-point of the pres- ent investigation. § 409. Influence of Modern Insurance as a Special Pursuit. — The development of insurance, in modern times, as a dis- tinct and special business pursuit tends, we may add, to favor a modern discrimination between the charge for diligent car- riage and that for incurring hazards beyond this ; the effect being that a professed carrier shall reap the legitimate re- ward of his proper service, while an insurance company takes premiums for the risks which ordinary care cannot forestall. But, notwithstanding a shipper takes out insurance on the goods which he gets transported, the common carrier, under the common-law doctrine, runs his usual risk besides ; and should a loss occur, for which both carrier and insurer would be legally answerable, the shipper has the right to treat the carrier as primarily liable, and sue him for the insurer's benefit.^ 1 See next chapter, where this sub- ^ Bumside v. Union Steamboat ject is treated at length. Co., 10 Rich. 113 ; 81 Tex. 005. Nor 411 § 410 THE LAW OF BAILMENTS. [PART VI. § 410. First Exception ; Loss or Injury by Act of God. — Now, ill detail, a,s to tlie exceptional cases which the com- mon law always recognizes, where the carrier's risk is under consideration. 1. Loss or injury by act of God. A loss by " act of God " signifies such irresistible disaster as results immediately from natural causes, and is in no sense attributable to human agency.^ The civil law employs, as a corresponding term, vis major. With less point the phrases casus fortuitus and "inevitable accident" are sometimes used as expressive of the same idea.^ The latter phrase Sir William Jones desired to substitute for the somewhat irreverent one the fathers of Eng- lish law had put in circulation.^ But, as Lord Mansfield has shown, "inevitable accident" is by no means synonymous with "act of God;" for an accident due to human force or fraud might be pronounced inevitable, while the act of God, on the contrary, means something which is opposed to the act of man.'* The current of the decisions serves to confirm the strict, if not precisely literal, construction put upon this term by our earlier jurists ; a term which indicates that which man neither produces nor can contend against, a natural necessity, as the carrier's sole ground of justification under the present head, and not merely some calamity which human intervention so brought about that the carrier was unable to escape it, and which human instrumentality might have altogether pre- vented. Accidents attributable, while the carrier pursues his line of duty, to lightning, tempest, earthquake, flood, and sudden death, afford the usual instances of disaster which the common law recognizes as the " act of God." ^ can a common carrier divest himself ^ 3 Kent Com. 217 ; Angell Car- of all risks so as to compel the cus- riers, § 155. tomer to insure and look only to the ^ Jones Bailm. 104, 105. insurance company for indemnity. * Forward v. Pittard, 1 T. R. 27, Willock V. Railroad, 166 Penn. St. 33 ; Trent Nav. Co. v. Wood, 4 Doug. 184 ; post, c. 5. And see § 440. 280. And see Wright, J., in Merritt 1 Story Bailm. §§ 25, 511 ; 2 Red- v. Earle, 29 N. Y. 115. field Railways, § 151 ; Angell Car- ^ gee Story Bailm. § 511 ; Angell riers, §§ 154, 155 ; U. S. Digest, 1st Carriers, §§ 154, 155 ; U. S. Digest, Series, Carriers, 122, 123. 1st Series, Carriers, 122, 123 ; For- 412 CHAI\ IV.] COMMON CARRIERS. § 411 Damage caused by rain, stress of bad weather, snow, freez- ing, thawing, rough winds, and the like, are also referable to this head.^ But, since the less sudden and violent action of the elements may better be foreseen by prudent men, and guarded against, or, at all events, kept from doing their worst, the carrier is here less readily excused than before. A snow-storm blocking up the railroad track may excuse delay, or, under strong circumstances, loss or injury, by a carrier ; ^ and so, too, may the freezing of a canal or river.^ And if the owner of goods which are liable to be injured by freezing or melting chooses to send them at a season of the year when the carrier cannot, by exercising due care, prevent their exposure to the mischief in question, he may be said to take such risk upon himself.* Even a sudden failure of wind may, like a sudden gust, be deemed an act of God.^ § 411. The Same Subject; Loss by Fire or Explosion. — But losses by fire are, generally speaking, not to be excused as the "act of God." To have to insure against this risk is, per- haps, the harshest infliction which our common carrier must bear ; yet to their rule in this respect the courts have firmly adhered. The ground taken appears to be that a fire, what- ever may have caused its spread, and however far it may have ■ward V. Pittard, 1 T. R. 27 ; Nugent ^ Ballentine i'. North Missouri R., «. Smith, IC. P. D. 19,423; Railroad 40 Mo. 491; Vail v. Pacific R., 63 Co. V. Reeves, 10 Wall. 176 ; Michaels Mo. 230. V. New York R., 30 N. Y. 564 ; Me- » Parsons v. Hardy, 14 Wend. Henry v. Railroad Co., 4 Harring. 215; Amies v. Stevens, 1 Str. 128; 448, 449 ; McArthur v. Sears, 21 Bowman v. Teall, 23 Wend. 306 ; Wend. 190 ; Denny v. New York Harris v. Rand, 4 N. II. 259. Central R., 13 Gray, 481 ; Morrison * See Chapman, J., in Swetland V. Davis, 20 Penn. St. 171 ; Powell v. v. Boston & Albany R., 102 Mass. Mills, 30 Miss. 231; Nashville R. v. 276,283. David, 6 Heisk. 261. See, for in- ^ Colt v. M'Mechen, 6 Johns. 160. stance of damage by earth(]uake But as elsewhere, the case should be (1886), Slater v. South Carolina R., free from negligence on the carrier's 29 S. C. 96. part, or other human agency, as the 1 Story Bailm. § 511 ; Angell Car- proximate cause of the disaster. See riers, §{; 160-165 ; Empire Trans. Co. Wallace's criticism of this decision, r. Wallace, 68 Penn. St. 302; 30 Neb. 1 Smith Lead. Cas. 233, Am. ed. ; 197. Angell Carriers, § 155. And see § 431, post. 413 §411 THE LAW OF BAILMENTS. [part VL outrun the control of those who started the first spark, origi- nates in human agency, and not independently of it. Hence the common carrier, by land or water, though free from all complicity in the disaster, energetic in repelling the flames, vigilant and prompt in the moment of danger, must answer for his customer's goods so injured or destroyed. For, as against -fires, accidental or otherwise, he is jjronounced an insurer ; ^ not, however, by way of logical exception, where the cause of the fire was a lightning stroke, for this would be an " act of God ; " nor, as it appears, when the case is purely one of spontaneous combustion.^ As in the case of fire, loss from the explosion of a steam boiler is inexcusable ; for this originates in human and not 1 Forward v. Pittard, 1 T. R. 27 ; Hyde v. Trent Nav. Co., 5 T. R. 389 ; Gatliffe v. Bourne, 4 Bing. N. C. 314; Morewood v. Pollok, 1 El. & Bl. 743 ; Hale v. New Jersey Steam Nav. Co., 15 Conn. 539; Parker v. Flagg, 26 Me. 181 ; Moore v. Michi- gan R., 3 Mich. 23 ; Cox v. Peterson, 30 Ala. 608 ; Singleton v. Hilliard, 1 Strobh. 203; Graff v. Bloomer, 9 Penn. St. 114 ; Gilmore v. Carman, 1 Sm. & Marsh. 279 ; Chevallier v. Straham, 2 Tex. 115. 2 See Angell Carriers, §§ 156-159 ; Story Bailm. § 511. But see acts limiting the responsibility of ship- owners, post, c. 5. So imperiously does the common law compel sub- mission in this respect that the New York Court of Appeals once refused to excuse a common carrier, where it appeared in evidence that a sudden gust of wind diverted the course of a distant fire so as to drive the flames unexpectedly upon the goods in his charge and destroy them. Miller v. Steam Nav. Co., 6 Seld. 431. The court did not, as it would appear, controvert the posi- tion taken in defence, that, where the proximate cause of destruction is 414 the " act of God," as, for instance, a sudden gust of wind, and not fire, the carrier is exonerated, but rested their decision on his general liability to re- spond for the accidental destruction of property on the transit by a fire whose origin is presumably in some act of man. But more recently, on a sharper issue of facts, the Supreme Court of Pennsylvania protected the carrier on precisely this distinction between the proximate and remote cause of fire. A fire in distant woods, doubtless of human origin, had been raging some days ; when a sudden tornado of remarkable force sprang up, and drove the flames with such force into tlae town that it was, in about two hours, destroyed, inclusive of the carrier's freight cars and their contents, the cars being switched off to await, as usual, a fresh locomotive. Here it was ruled that the tornado, an "act of God," and not the acci- dental flre, was the proximate cause of loss, and hence that the carrier need not respond for the destruction in damages, no negligence on his part appearing. Pennsylvania R. v. Fries (1878), 87 Penn. St. 234. And see 15 Col. 333 ; § 437. CHAP. IV.] COMMON CAIilUERS. § 413 divine agency, so that the carrier is here afforded no claim of exemption from tlie risk of insurer.^ § 412. The Same Subject; Effect of a Sudden Strike or Im- pressment. — A sudden combination and strike of engineers on a railway, or of a carrier's other skilled employes, es- sential to the transportation service, whose places cannot possibly be supplied at once by competent persons, may be an inevitable and unforeseen obstacle to the due performance of the carrier's duty ; but he cannot so discharge himself as though this were in any sense an act of God or excepted calamity .2 The same may be said of the sudden impressment into the navy of certain seamen who are needed on board ship to manage the carrier vessel to which they properly belong.^ § 413. The Same Subject ; Hidden Obstructions, etc., through Natural or Human Agency. — The striking of his vessel Upon some hidden and unknown rock, snag, shallow, or bar has, iu several instances, been deemed an act of God, for which the carrier is not legally answerable.* A sudden and recent formation of sand, too, in a place where vessels were wont to sail in safety, may afford a similar cause of exemption.^ All the stronger must be the case where storm, flood, tempest, or other natural necessity drives the vessel thither, or suddenly produces the obstruction. But here the causation of the dis- aster should be keenly scrutinized, lest human agency appear uppermost, either on the part of a stranger, in placing the obstacle there, or in respect of the carrier himself, in care- lessly failing to keep clear of it. The agency which produces 1 The Barque Edwin, 24 IIow. such a misfortune should be leniently 380 ; 1 Cliff. 322 ; 1 Sprague, 477 ; treated, see sitpra, §§ 377, 404 ; post, McCall V. Brock, 5 Strobh. 119 ; The c. 6. Mohawk, 8 Wall. 153. ■« Williams v. Grant, 1 Conn. 487 ; 2 Hlackstock r. New York & Erie Smyrl v. Niolon, 2 Bailey, 421 ; Story R., 1 Bosw. 77 ; 20 N. Y. 48. Bailin. §§ 516, 517 ; Steele v. McTyer, 8 McArthur v. Sears, 21 Wend. 31 Ala. 607. 100, 100, per Cowen, J. But .see & lb. But see Friend v. Woods, Hodgson V. Malcolm, 5 B. & P. .3.36 ; 6Gratt. 180, which disinclines to relax § 428, post, as to less by direct act of so much the carrier's liability as in- public authority. surer. That mere delay resulting from 415 § 413 THE LAW OF BAILMENTS. [PART VI. such disaster should be essentially a natural one. If the ex- istence of the rock, bar, shoal, or snag was generally known to navigators, and prudent mariners knew how to avoid it, the carrier cannot, by striking upon it without compulsion of the elements, be said to have suffered an irresistible disaster from natural cause ; for his own carelessness produces it. And hence, in rivers and harbors whose formation is reduced to chart, nothing can be called, so as to excuse a carrier, hidden and unknown, in the legal sense here considered, which good pilots are wont to avoid.^ On the other hand, the sinking of an anchor, a mast, a ca- ble, a boat, a cargo, or other similar obstruction, is certainly due presumptively to human, and not divine intervention ; and, according to the best authorities, even though a carrier show that his loss occurred by running without fault upon something of this character hidden in the water, he shall not on this account be legally excused from the consequences to his freight.^ Thus, in New York, an accident to a steamboat, caused immediately by its contact with the mast of a sloop which had been sunk in a squall two days before, has been held not to absolve the owners of the steamboat from their liability for freight as public carriers.^ And in New Jersey a similar decision was rendered where a carrier's barge, during an unusually low tide after a storm, was pierced by a timber projecting from a wharf, which, in ordinary tides, could not have done such a mischief.* 1 See Collier V. Valentine, 11 Mo. though it might have been that of 299 ; Friend v. Woods, 6 Gratt. 189 ; sinking the sloop. The evidence Pennewill v. CuUen, 5 Harring. 238. showed, hovpever, as going still fur- 2 Trent Nav. Co. v. Wood, 3 Esp. ther to subject the carrier to the 127 ; Smith v. Shepherd, cited Abbott usual liabilities, that the sunken mast Shipping, 11th ed., pt. 4, c. 6, § 1 ; was out of water fifteen or sixteen McArthur v. Sears, 21 Wend. 190 ; feet, at low tide, for two days before Merritt v. Earle, 29 N. Y. 115. the steamboat struck, and hence could 3 Merritt v. Earle, 29 N. Y. 115, not have literally been a " hidden ob- 121. Here it was said that there was struction." Cf. Redpath v. Vaughan, no "act of God," as concerned the 52 Barb. 489. carrier ; and that the squall which * New Brunswick Steamboat Co. sunk the sloop was not the immedi- v. Tiers, 24 N. J. L. 697. In this case ate proximate cause of this accident, it was held that, admitting the storm 416 CHAP. IV.] COMMOX CARRIERS. § 415 § 414. The Same Subject; Accidents in Transportation, Colli- sion, etc. — Accidents in navij^ation, which one may attribute to a display of false lights, the drifting of a buoy, or the re- moval of a beacon, are not devoid of human agency, though the navigator and carrier himself were blameless.^ Nor, to lay down a broad principle, is any loss on which a carrier might found his own action for damages, because of another party's wrong, fitly pronounced to be an " act of God." A collision of vessels, therefore, not brouglit on immediately by tempest or other natural accident, ought, upon good reasoning, to be taken as insunicient reason of exemption for a carrier to allege under the present head, notwithstanding his own vessel "was blameless.2 And the same may be affirmed of trains which collide on a railway track, or stages which run into one another, if they belong to different carriers. § 415. The Same Subject; Destruction by Animate Nature; Rats, etc. — Whether the action of animate nature to the in- jury of goods may ever excuse a carrier is not clearly stated by authority. S uch agency may not be human, but to attribute it to natural necessity and bring it within our exception is another matter. Thus the destruction of one's goods by rats or other common vermin is no "act of God" and is held not to excuse the carrier even though he be so prudent as to keep a cat about the vehicle.^ Nor can the carrier set up as an ex- cuse that worms destroyed his ship's bottom in the course of the vo3-age ; since every vessel in actual service is expected to be seaworthy.* If the carrier were careless, the surer must be his condemnation. to be the remote cause of loss, the ceptions as "perils of the sea," or proximate cause was the projecting "dangers of navigation," see Story timber. Bailm. §§ 512, 514 ; Smith v. Scott, 1 McArthur v. Sears, 21 "Wend. 4 Taunt. 126, and other cases, post, 190 ; Reaves v. Waterman. 2 Speer, § 440. 197 ; Angoll Carriers, §§ 197-199. » Dale v. Hall, 1 Wils. 281 ; Lav- 2 Plaisted v. Boston Steam Nav. erniii v. Drury, 8 Ex. 106 ; Kay v. Co., 26 Me. 1.32 ; Mershon v. Hobcn- AVheeler, L. R. 2 C. P. 302. Cf. sack, 2 Zab. ."572. Story Bailm. § 513 ; Angcll Carriers, But wluther collisions may not §109; 59 Fed. 617. come within such special contract ex- •» Forward v. Pittard, 1 T. R. 27 ; 27 417 § 416 THE LAW OF BAILMENTS. [PART VI. § 416. The Same Subject; Natural Decay, Waste, Wear and Tear, etc. — But losses due to the natural decay, deterioration, and waste of the things carried are excusable ; and such, also, as may be fairly attributed to the ordinary wear and tear of the journey ; all this, however, with reference to the nature and inherent qualities of the articles in question, their una- voidable exposure at the time and place and under the general circumstances, while in charge of a carrier of ordinary pru- dence, and the condition in which the shipper may have chosen to intrust them to the carrier for the particular transportation.^ For example, where liquids evaporate, effervesce, sour, or burst the bottles, or leak out of the casks in which they were con- signed (for whose imperfections the carrier is no more answer- able than for their own inherent qualities), the loss is not the carrier's, unless he occasioned it by remissness of duty.^ Nor, where meat taints, lard melts, oranges and lemons rot, salt loses its savor, or eggs grow stale, is the carrier necessa- rily under obligation to replace the goods in quantity or quality, or stand to the loss in damages.^ The broad ground of all such exemption is " act of God ; " or, in other words, that natural causes must be allowed their natural and inevitable operation during the accomplishment of the bailment purpose, provided the bailee pursue his course with ordinary care and diligence. This doctrine may often be found reinforced by Backhouse v. Sneed, 1 Murph. 173 ; that some inanimate natural agency Story Bailm. §§ 509, 513 ; Hazard bred such a calamity. V. New England Ins. Co., 8 Pet. i Story Bailm. § 492 a. 557 ; Kopitoff v. Wilson, 1 Q. B. D. 2 Hudson v. Baxendale, 2 H. & N. 377 ; The Northern Belle, 9 Wall. 526 ; 575 ; Warden v. Greer, 6 Watts, 424 ; supra, § 402, It appears to this Powell v. Mills, 87 Miss. 691. writer that unforeseen injury caused ' Story Bailm. § 492 ; Ship How- by animate nature might in some ex- ard v. Wissman, 18 How. 231 ; Swet- treme case excuse a carrier who had land v. Boston & Albany R., 102 not been wanting in prudence and Mass. 276 ; Nelson v. Woodruff, 1 foresight ; as, for instance, should a Black, 156 ; Lawrence v. Denbreens, swarm of locusts or vermin suddenly 1 Black, 170 ; Brown v. Clayton, 12 appear from some unknown quarter. Ga. 566 ; Clark v. Barnwell, 12 How. Perhaps it might be said, however 272. Aliter, as noted post, where (not to put too fine a point to it), the loss was through fault of the carrier. 418 CHAP. IV.] COMMON CARRIPZRS. § 418 that other reason of exoneration to be later discus.sed, the fault of the owner or customer himself. For the common- sense of carriage undertakings forbids that the carrier should warrant, by implication, the quality of what he simply conveys for the true owner, be things better or worse, and moie or less capable of bearing the exposure of the journey. We shall hereafter discover these same principles qualify- ing the liability of one who transports animals, so that he need not be a life and health insurer of such creatures.^ § 417. The Same Subject; Jettison. — Whether jettison by a carrier will render him liable for the loss so occasioned de- pends upon circumstances. In an ancient case, goods were thrown overboard, during a sudden storm, by a bargeman who carried passengers and these goods together ; this was done prudently to lighten the boat and save human lives ; and it was resolved by Lord Coke and his associates that the barge- man should be exonerated from the loss, inasmuch as the sudden storm or act of God was the direct occasion of his loss.^ Under other justifying circumstances jettison may be ascribed to act of God.^ But where the jettison springs out of no such divine necessit}-, but is resorted to under circum- stances of human compulsion, or because of some strait into which the carrier's imprudence has brought him, or care- lessly or wantonly, the carrier should be made to suffer for it.'* § 418. Second Exception; Loss or Injury by Public Ene- mies. — 2. Loss or injury by public enemies. "Public ene- mies," in this connection, are those with whom the government which prescribes these conditions of carriage contract is at 1 Post, §§ 442-444, as to animals ; commented on in Jones Bailm. 107, Story Bailm. § 576. 108, and Story Bailm. § 631. See 2 See Lord Coke, in Bird v. Ast- Mr. Justice Curtis in Lawrence v. cock, 2 Bulst. 280. And see Gillett Minturn, 17 How. 100 ; Mr. Ju.stice V. Ellis, 11 111. 570; Johnston v. Clifford in The Delaware, 14 Wall. Crane, 1 Kerr (N. B.), 356; Story 579. Bailm. § 525. See also § 431, post, as to the 8 Price V. Hartshorn, 44 N. Y. 94. proper stowage of goods, where the * The Portsmouth, 9 Wall. 682 ; subject of loss by a carrier's own Barcroft's Case, cited Aleyn, 93, and fault is further considered. 419 § 419 THE LAW OF BAILMENTS. [PART VI. open war. This is what the expression, more familiar in the mother country, of " king's enemies," or " queen's enemies," properly signifies ; for it would be absurd to confine this common-law exemption of the carrier to the enemies of a kingdom or monarchy .^ Under our American system, State and Federal sovereignty may come into conflict ; and yet the Constitution plainly gives the supremacy as to declaring and dealing with public ene- mies to the United States, or the Federal head. With abun- dant reason, therefore, the Confederate insurgents of 1861, with whom the Union waged open war, have been styled "public enemies," thus affording to our carriers a rule of practical immunity in certain cases which simple justice de- manded, rather than for afiBxing upon particular States or their inhabitants a needless stigma.^ Hostile tribes of Ind- ians, too, on our borders, may well be regarded as " public enemies," though their status with reference to the govern- ment is a peculiar one.^ § 419. The Same Subject ; Acts of Mobs, Rioters, etc. — But, as a rule, the violence of mobs, rioters, and insurgents within a sovereign jurisdiction does not constitute a cause of exemp- tion within the meaning of the term " public enemies." * This is a great hardship imposed by our law upon the carrier, and 1 Russell V. Niemann, 17 C. B. to Indians maintaining their peculiar N. s. 162. See Story Bailm. § 526 ; tribal relations, not taxed, and virtu- Angell Carriers, § 200 ; Coggs v. ally excluded from citizenship under Bernard, 2 Ld. Raym. 909 ; Holla- our constitution. See U. S. Consti- day V. Kennard, 12 Wall. 254 ; Gage tution, art. 1, §§ 2, 3, 8. V. Tirrell, 9 Allen, 299. * Story Bailm. § 526 ; Coggs v. 2 McCranie v. Wood, 24 La. Ann. Bernard, 2 Ld. Raym. 909 ; Barclay 406; Bland v. Adams Express Co., v. Heygena, cited by Lord Mansfield, 1 Duv. 232 ; Lewis v. Ludwick, 6 IT. R. 27 ; S. C. 7iom. Barclay v. Coldw. 308; Philadelphia R. v. Cuculla y Gana, 3 Doug. 389. "For Harper, 29 Md. 3.30 ; HoUaday v. though the force be never so great," Kennard, 12 Wall. 254 ; Nashville R. says Lord Holt, "as if an irresistible V. Estes, 10 Lea, 749 ; Caldwell v. multitude should rob him, neverthe- Southern Express Co., 1 Flip. 85. less he is chargeable." Coggs v. Cf. Porcher v. Northeastern R., 14 Bernard, 2 Ld. Raym. 909, 918. See Rich. 181. also Missouri R. v. Nevill, 60 Ark. 3 Holladay v. Kennard, 12 Wall. 375. 254. This applies, we presume, only 420 CHAP. IV.] COMMON CARRIERS. § 422 second only to that of his liability for a loss by accidental fire.^ And it is well understood that the common carrier can claim no legal immunity from the depredation of thieves and robbers, but is held as an insurer against all losses of this character, even though he were personally free from the reproach of complicity or cowardice. § 420. The Same Subject; Pirates; Privateers. — It has been claimed that acts of pirates fall within our present ex- ception ; inasmuch as pirates are now pursued by civilized nations, and scourged as the common enemies of mankind.^ So, with equal or better reason, should acts of privateers fur- nish the carrier with a cause of exemption ; for if privateers differ at all from pirates,^ it is only because the broad seal of a belligerent power sanctions their depredations, so as to exalt those by whom the carrier is thus overpowered all the more nearly to the plane of "public enemies."* § 421. Third Exception; Loss or Injury by Act of the Cus- tomer. — 3. Loss or injury by act or fault of the consignor of the goods, or the customer himself. This third case of exemption appears not to have been specially stated in the earlier books ; but the influence of the consignor's or cus- tomer's conduct in diminishing or excluding his right of re- covery under the contract, has always been conceded ; and in many of the latest decisions, this class of exceptions will be found expressly recognized.^ Whenever the consignor or customer has, under contract of carriage, by himself or his servants, wilfully, fraudulently, or in negligent disregard of his duty as bailor, occasioned the loss complained of, the carrier may set this up for his own especial justification. § 422. The Same Subject ; Packing, Loading, Selection of Place, etc., by Customer. — Thus, if there be some hidden de- fect in the packing, whence damage ensues, this (if not excusable as " act of God " ^) is the act of the owner or con- 1 Supra, § 411. « 1 Kent Com. 06. 2 Story Bailm. §§ 25, 626. 6 See U. S. Digest, 1st Scries, Car- 8 See The Magellan Pirates, 25 riers, 123 ; Choate r. Crowninsliield, E. L. & Eq. 595. 3 Cliff. 184. « Supra, § 416. 421 § 422 THE LAW OF BAILMENTS. [PART VI. signer, and the carrier stands absolved.^ Insecure or imper- fect packing which causes damage imputes fault to the customer rather than to the carrier. Or, if the goods are improperly marked or directed, the carrier cannot be blamed for their being missent according!}^, in fair pursuance of direc- tion.2 The duty of loading and stowing, as we have seen, devolves commonly upon the carrier;^ and yet if heavy machinery or other peculiar freight, which the shipper, ac- cording to custom, secures on board by his own experts specially selected for the service, should give way on the transit because of their carelessness, the carrier might, on this plea, escape liability.* And as to packing, loading, and securing the property on the vehicle generally, it may often be material to inquire how far the performance, instead of being intrusted to the carrier and his own servants, or where at all events the carrier had the responsible supervision, was kept under the exclusive management and control of the con- signor or customer himself ; since presumptions of duty may be controlled by the actual circumstances of a case.^ Where again, contrary to usage, the owner or shipper makes special choice of the vehicle, or of a particular part of it, under circumstances charging him with full knowledge of its capabilities and defects — and especially if he agree to pay lower rates for inferior accommodations — the carrier might not be held absolutely responsible for injuries solely attributable to such understood defects ; as in the owner's selection of a cattle-car with projections which must needs bruise the cattle,^ or of some place in a ship for perishable 1 Lord Denman, iu Muddle v. ^ Supra, § 393, Stride, 9 C. & P. 380 ; Klauber v. * Ross v. Troy & Boston R., 49 American Express Co., 21 Wis. 21 ; Vt. 364. Cases like these should be 22 Oreg. 14. As, for instance, where deemed exceptional, however ; for rags were delivered to the carrier, usually, in loading, the shipper's damp and badly packed, and without agents are taken to be the agents of notice that special care was needful the carrier, who should satisfy himself on the carrier's part. Baldwin v. that the goods are securely placed. London R., 9 Q. B. D. 582. & Cf. supra, § 393, and post, § 443 ; 2 Congar v. Chicago R., 24 Wis. Fordyce v. McFlynn, 56 Ark. 424. 157 ; Stimson v. Jackson, 58 N. H. " Harris v. Northern Indiana R., 138. ■ 20 N. Y. 232. 422 CHAP. IV.] COMMON CARRIERS. § 423 commodities, where tlie means for ventilation are not the best.^ For, it may be argued, if the carrier makes the actual disadvantages plain, pointing out to his customer such defects as are not palpable and visible, he shifts so much of the risk of carriage upon the other party as under some special con- tract. This, however, is a dangerous theory to press far; and we cannot safely assume that a carrier is left thus at liberty to use vehicles not reasonably fit for their purpose according to connnon usage, nor to divest himself of the duty of exer- cising at least ordinary diligence and care as to the thing transported throughout the full period of his public relation towards it.''* § 423. The Same Subject ; Customer's Bad Faith ; Deception as to Contents. — Bad faith, too, wherever exhibited, dulls the sympathy of the law towards the victim who has prac- tised it to his own injury. And since a carrier may not break packages, and learn for himself what they contain or how much they are worth, nor ply the consignor with search- ing interrogatories, the latter party should take heed that appearances and his own voluntary statements be not calcu- lated to deceive and impose upon the carrier.^ One who sends goods need not, to be sure, disclose their value in gen- eral, unless asked; ^ but for the purpose of regulating the carriage rates, and charging for the extra hazards incurred, the carrier may always ask the value of a package tendered him ; in which case the sender should answer truly, since the carrier has the right to rely upon his response, unless he per- ceives it to be false, and to limit the amount of risk accord- ingl}'.^ And while the sender is not bound to tell either the 1 lb. That the stowage of goods * Walker v. Jackson, 10 M. & W. on deck ^Yilh the shipper's assent IfiS ; Story Baihn. §§ 5G5, 5(57 ; An- may expose them to peculiar risks of geil Carriers, § 2G4 ; Orange County loss which the shipper was not bound Bank v. Brown, Wend. 115; Mer- to take, see § 433. chants' Despatcii Co. v. Bollos, 80 111. 2 See Railroad Co. v. Pratt, 22 473 ; Phillips v. Earle, 8 Pick. 182. Wall. 123; Pratt v. Ogdensburg U., ^ Phillips v. Earle, 8 Pick. 182; 102 .Mass. 557. Little v. Boston & Maine U., nO Me. '^ .S'f^im, §§ 397-399, as to the cou- 239. And sec Kenrig r. Egglcston, signor's duties. Aleyn, 93 ; Tyly v. Morrice, Carth. 423 § 424 THE LAW OF BAILMENTS. [PART VI. value of the goods or what his package actually contains, except, perhaps, in special cases, where the thing has a sus- picious appearance, or great mischief may ensue from his silence, every statement made should be truthful, and not calculated to throw the carrier off his guard ; ^ nor ought the sender, by device or artifice, to put off inquiry, so as to ex- pose the carrier to undue responsibility .^ And, apart from open statements, should the consignor do up his package art- fully, so as to make it appear less valuable or less liable to receive or inflict injury than is really the fact; or, by false marks or other trick, impose upon his bailee ; all evil conse- quences which such misconduct may have invited must be borne by himself.^ For a carrier is to be charged with no responsibility beyond what the thing appears, on its face and the proof at command, to deserve ; and the sender whose con- duct induces him to relax his guard, or goes to deprive him of his just compensation, puts himself without the pale of justice. § 424. The Same Subject ; Negligent Omission to state Con- tents. — Apart from any wilful misconduct, the consignor may, by his negligent omission of duty, exonerate the carrier. Thus, where he fails to warn the carrier of the dangerous, fragile, or perishable nature of articles he delivers, whose peculiar character does not appear on inspection, he puts in jeopardy his right to recover for a loss which his ordinary prudence in this respect might have prevented.* He may even render himself personally liable in damages for injury 485, commented on by Lord Mans- Co., 5 Rob. (N. Y.) 490 ; Relf ■;;. Rapp, field, in Gibbon v. Paynton, 4 Burr. 3 W. & S. 21 ; Hutchinson v. Guion, 2298. 5 C. B. N. s. 149 ; Coxe v. Heisley, 19 1 Crouch V. London R., 14 C. B. Penn. St. 243 ; Chicago R. v. Thomp- 255 ; Nitro-Glycerine Case, 15 Wall, son, 19 111. 578. And see Hayes v. 524 ; American Express Co. v. Per- Wells, 23 Cal. 185. kins, 42 111. 458. * Sicpra, § 397 ; Brass v. Maitland, 2 Railroad Co. v. Fraloff, 10 Otto, 6 E. & B. 470 ; Farrant v. Barnes, 11 24. C. B. N. s. 553 ; Nitro-Glycerine Case, 3 Gibbon v. Paynton, 4 Burr. 2298 ; 15 Wall. 524 ; Boston & Albany R. Richards v. Westcott, 2 Bosw. 589 ; v. Shanly, 107 Mass. 568. See also Southern Express Co. v. Everett, 46 Pierce v. Winsor, 2 Sprague, 35. Ga. 303 ; Warner v. Western Trans. 424 CHAP. IV.] COMMON CARRIERS. § 425 of person or property occasioned the carrier, the cari'ier's ser- vants, or, indeed, strangers, by tilings whicli were unsuitable for ordinary stowage, and more especially such higlily danger- ous articles as oil of vitriol, gunpowder, and nitro-glyeerine, where he has been so indiscreet as to consign them, without especial warning, in packages whose exterior gives no indica- tion of their true contents.^ Where, too, things break, spoil, or run out, because of inherent defects or properties against whose mischievous operation unusual pains should be taken, the carrier may set up, in extension of the defence of natural wear and deterioration usually allowed hira,^ that the dam- age was occasioned by the shipper in delivering the property without affording him the means of knowing its real nature or condition. For, if the carrier takes such reasonable pains against wasting, breaking, or spoiling, as the thing, when ac- cepted, appears to require, in accordance with its evident nature and condition, this is pains enough ; though as to matters open, and not latent, he is bound to be alert and discriminating.^ § 425. The Same Subject ; Mixed Custody in the Transit. — Negligence or misconduct of the owner or customer during the transit itself may so far have occasioned the loss of the thing as to enable the carrier to set up the customer's act in defence. Two striking instances, presently to be dwelt upon, are afforded in the passenger who travels with his hand-baggage, and the drover who accompanies his cattle in a freight train ; * while the driver of a carriage on a ferry-boat supplies a third illustration. '^ In all such cases ^ lb. Sprague, J., in Pierce v. induce him to try experiments with Winsor, 2 Sprague, 35, commends the articles unknown to commerce, if he principle as a sound one, regardless could set up his ignorance of the of the shipper's innocence or igno- real character of the articles as a de- rance of the danger. " It throws the fence to any damage caused by the loss," he says, "upon the party who shipment." generally has the best means of in- ^ Supra, §§ 397, 410. ' lb. forming himself as to the character * See post, Part VII. c. 4, as to of the article shipped. A different Liability for Baggage ; and as to rule might encourage negligence on Drover, post, § 443. the part of the shipper, and even ^ gee §§ 395, 445. 425 § 427 THE LAW OF BAILMENTS. [PART VL there is a mixed custody, so to speak, and liability for loss may actually rest upon carrier or customer, according to the circumstances. § 426. The Same Subject; Customer's Act must have prima- rily occasioned the Loss. — But in order that the consignor's or customer's act or conduct may avail the carrier to excuse a loss, the act or conduct in question must have primarily and essentially occasioned or contributed to the loss ; and, further, the carrier should not appear misbehaving, or failing in ordi- nary diligence on his part to ward off and escape the loss or injury. Where articles of unduly great value are concealed in the same box with ordinary merchandise, whose transportation is for hire, the carrier is not presumably divested of liability for the less valuable freight, while the more valuable remains unharmed.! The fact that the consignor improperly marks the package does not excuse carelessness in its transporta- tion ; 2 and though goods were badly packed, he cannot be answerable for injuries to which the bad packing did not contribute.^ Nor can a carrier justify his conversion of the property he transports, or wrongful or careless behavior, on any such plea as that the consignor had fraudulently under- stated its weight."^ S 427. The Same Subject; Carrier's Own Vigilance should not relax. — - The judicial inclination appears to be, further- more, against accepting the carrier's plea of the consignor's or customer's act in any such sense as would suffer his own vigilance and discretion to relax. Not even a fraudulent mis- statement by the customer can be set up in defence, unless it relates to matters latent, and not open to his own observation ; for the carrier must still exercise his own judgment upon the whole proof afforded him, consistently with his permitted scope of investigation, which, of course, is narrow.^ If goods 1 Hyde v. New York Steamship * "Wiggin v. Boston & Albany R., Co., 17 La Ann. 29. 102 Mass. 201. 2 Union Express Co. v. Graham, ^ xew Jersey R. v. Pennsylvania 26 Ohio St. 595. R., 27 N. J. L. 100. 3 Shriver v. Sioux City R., 24 Minn. 506. 426 CHAP. IV.] COMMON CARRIERS. § 428 be brought him wliiuh appear of improper condition, unwhole- some, dangerous, and the like, or unsuitably packed and se- cured, he should refuse to receive them thus, or else see, in the one case, that they are stowed with reference to their apparent condition, nature, and quality, and, in the other, made reasonably secure ; ^ nor should he suffer what he per- ceives, or has fair reason to think, will be likely to injure other goods to go too near them.^ Where, again, the sliipper's bill of goods, which describes them as of one kind, while they are really of another, and hence properly subject to higher charges, is stamped by tlie carrier, "weight, value, and con- tents, unknown," the stamp admission forbids any assumption, on the carrier's behalf, that he relied upon such misdescription of the goods.'*^ Courts and juries hesitate, in fine, to transfer the risks of transportation from the carrier to his customer, on any sug- gestion that the latter has concealed or misrepresented to the former's prejudice, where such concealment or misrepresenta- tion was through inadvertence, or because of a silence neither unnatural nor inexcusable, and where, too, it does not reach fundamentals ; but their presumption is rather against the party pursuing his public vocation, who is not intended to enter at pleasure into contracts as one on equal terms, and who, under no circumstances, should be allowed, on trivial grounds, to shift to his patron's shoulders the extraordinary risks which the law conq:)els him to bear b}^ himself.* § 428. Fourth Exception ; Loss or Injury by the Public Au- thority. — 4. Since loss by " public enemies " affords the in- stance of carriage exemption because of human intervention as contrasted with that occasioned by Divine or natural inter- vention, such as we denominate " act of God," according to the old statement of the rule (to which we have just added 1 Tlie David & Caroline, 5 Blatchf. ^ x^ebeau v. General Steam Xav. 266 ; Union Express Co. v. Graham, Co., L. R. 8 C. P. 88. Cf. Clark r. 26 Ohio St. 595. Barnwell, 12 How. 272. And see 2 The Schooner Reeside, 2 Sumn. Harmon v. New York & Erie R., 28 667. Barb. .323. *Ib. 427 § 428 THE LAW OF BAILMENTS. [PART VI. the act of the customer himself), we may here inquire what would be the effect of a seizure of the goods and disposses- sion by the domestic public authority, or the strong arm of the law ; a further exception, by human intervention, if an ex- ception at all. How far this condition of things may excuse the carrier is not clearly adjudicated. There is a class of cases which holds that a wrongful attachment or seizure by a sheriff or other officer of the courts cannot be set up to excuse a carrier, any more than that of a highway robber, since the officer who so transgresses is a trespasser, and the carrier may treat him accordingly, while at all events bound to fulfil his contract toward his customer ; ^ and another class affirms the same true as concerns customs officers who make a tor- tious seizure.^ But where goods are taken into the genuine custody of the law, and so taken that the carrier is, without default or connivance on his part, constrained by public au- thority from performing his contract duty, and more especially where he has a remedy neither against the government nor the public officer who makes the seizure, it seems that the overwhelming necessity ought, in justice, to be his sufficient justification for delay or non-delivery ; and a third class of cases tends strongly to establish this.^ In case of a seizure or legal compulsion because of the carrier's own fault, the carrier can, of course, claim no exemption from full responsi- bility to the party who employed him.* But otherwise, where- ever he encounters without fault the service of genuine legal process against the goods, he is properly absolved from further 1 Edwards v. White Line Transit and cases cited. The carrier ought Co., 104 Mass. 159; Kiffu. Old Colony to notify his customer in such case. E., 117 Mass. 591 ; Faust v. South lb. ; Bliven v. Hudson River R., 36 Carolina R., 8 S. C. 118. If the seiz- N. Y. 403. That the rightful owner ure or attachment was without war- obtained possession by or without rant or legal process the carrier is legal process would of course justify liable if he yields to it. Bennett v. the carrier. Express Co., 83 Me. 236. * Gosling v. Higgins, 1 Camp. 451 ; 2 Gosling V. Higgins, 1 Camp. 451. Spencer v. Chodwick, 10 Q. B. 516 ; 3 See Mr. Justice Nelson, in Stiles Howland v. Greenway, 22 How. 491 ; V. Davis, 1 Black (U. S.), 101; Ohio Elwell v. Skiddy, 15 N. Y. Supr. 73. & Mississippi R. v. Yohe, 51 Ind. 181, And see 28 Fed. R. 920. 428 CHAP. IV.] COMMON CAIIUIERS. § 429 liability if he notifies his customer promptly and leaves the latter to defend, otherwise using due diligence and care.^ Our conclusion, from these cases and the liglit of reason, is, that a fourth legal exception should be stated to the carrier's common-law liability: namely, where loss or injury is directly caused by the public authority. And hence, should the car- rier's own government, by a direct act of sovereignty, such as embargo, seizure, or impressment, hinder or interrupt his transit or intercept the goods, this overpowering act would serve him as an excuse, wliether the government acted by its civil or military officers, through the courts or the execu- tive department.^ We here suppose the carrier himself to have acted in good faith and with ordinary prudence and discretion. § 429. Carrier Liable for Negligence or Default of Servants. — A common carrier is doubtless liable to his customer for the negligence or default of his own servants, and all whom he may have occasion to employ under him, in the fulfilment of the particular undertaking.^ Thus, where the carrier engages a tow-boat to tow his vessel, or barges to take goods on board, 1 See Jewett v. Olsen, 18 Greg, carrier need not accept private busi- 419 ; Furmanv. Chicago R., 81 Iowa, ness, see Phelps v. Illinois Central R., 540 ; cases supra. And see Stat. 28 94 111. 548. And see Wells v. Maine Fed. R. 920. It is not a carrier's S. S. Co., 4 Cliff. 228, where the car- duty to take active steps in asserting rier was exonerated from the loss of the stoppage in transitu; and he liquors in his custody, which were may surrender to an attachment seized and destroyed under the Maine against consignees. French v. Star liquor act of 1871 ; having given due Co., 134 Mass. 288. In 126 Ind. 322, notice of the seizure to the owner, the carrier was excused for refusing So, too, the carrier's exemption dur- to permit goods in his hands to be ing our civil war, which one State attached where his refusal was on court excuses as the act of a " public good ground. And so as to a mere enemy," appears in another regarded demand upon the carrier without as an act of public (or "confeder- legal process. Kohn r. Richmond R., ate") authority. Nashville R. v. 37 S. C. 1. A public .seizure under Estes, 10 Lea, 749. As to the im- police regulations of a State excuses pressment of sailors, .see § 412. the carrier ; but he should not con- ^ Blackstock v. New York & Erie nive at or procure it, nor withhold R., 1 Bosw. 77 ; Angell Carriers, notice from his customer. Railroad' §102 ; Stoiy Bailm. § 507 ; Winter v. Co. V. O'Donnell, 49 Ohio St. 489. Pacific R., 41 Mo. 503. 2 That under such constraint a 429 § 430 THE LAW OF BAILMENTS. [PART YI. and damage ensues through the negligence of those in charge of the tow-boat or barges, he may hold these responsible on their undertaking towards himself, while the owner of the goods should look to the carrier alone for indemnity.' Part- ners, too, may be liable for an injur}'-, which one of them inflicts, as their common servant.^ The railroad company which an express employs to transport goods is the express company's servant pro hdc vice.^ And those who load and unload, even to the customer himself or his agents, may thus become the carrier's own servants for the work which it is his duty to direct.* All such liability for neglect or default of servants transcends the rules of agency so as to render the carrier liable absolutely for the felony or wilful wrong of his servants.^ Employes of a railroad company who have struck and sev- ered their relation cease to be servants of the carrier in any such sense as to bind the company for their acts ; ^ but with those still servants in time of a strike it is otherwise." Responsible agents of a carrier require commensurate care in their selection and retention in service. Thus, in select- ing so highly responsible an agent as the captain of a vessel, it would be negligent to select an ignorant, timid, or intemperate person. § 430. Fraud and Misconduct of Carrier or his Servants is Inexcusable. — The fraud and misconduct of the carrier or his servants, which occasions a loss, forbids, therefore, his exemp- tion on any plea, whether it be " act of God " or other pre- 1 See Merrick v. Brainard, 38 Barb, shall see this same principle operat- 574, reversed, however, on another ing in the case of connecting car- ground, on appeal, 34 N. Y. 208 ; riers, post, c. 9. Bulkley v. Cotton Co., 24 How. 386. 5 Stephens v. London R., 18 Q. B. 2 Bostwick V. Champion, 11 Wend. D. 121 ; § 430. So as to Innkeepers, 571 ; Mayall «. Boston & Maine R., §§290,291. Cf. usual rule of agency, 19 N. H. 122. § 42. And see § 455. 8 Bank of Kentucky v. Adams Ex- s Geismer v. Lake Shore R., 102 press Co., 93 U. S. 174; Boscowitz N. Y. 563 ; Pittsburgh R. v. Hollowell, V. Adams Express Co., 93 111. 523 ; 65 Ind. 188. supra, § 351. '' Central R. v. Georgia Exchange, * Supra, § 393 ; 84 Tex. 348. We 91 Ga. 389. 430 CHAP. IV.] COMMON CARRIERS. § 431 tended excuse ; as if liis ship be wilfully scuttled, or run aground, or deserted, or set on lire, whereby the cargo sus- tains injury.^ § 431. Proximate and Remote Cause always regarded, where Excuse is set up. — In applying any and all of these excuses, the proximate and remote, the direct and indirect, cause of the loss or injury in question must always be regarded, as our discussion of the four exceptions has already suggested. Thus, to take the most familiar exception, " act of God." Manifestly all issues of the present character, discussed under this head, pivot upon proximate or immediate cause of the disaster as distinguished from what is remote. Hence, the carrier's own conduct, as inducing or enhancing the loss, or otherwise, becomes an affair of great moment. If a ferry- man, for instance, ventures out in a blinding storm, or the master of a ship crowds sail to meet a tempest, or an express or railway carrier undertakes to transport animals, notwith- standing a flood, the disaster invited by thus daring the ele- ments should not be ascribed to the elements themselves, but to the carrier's foolhardiness.^ Or supposing a wagoner tries unwisely to ford a creek at dusk, and his wheels stick fast, so that a sudden rise of the waters injures the goods in his charge, his carelessness may not improperly be reckoned the immediate cause of the loss.^ When, again, a carrier needlessly deviates from his true course and sustains an accident, while out of his bearings, the law holds that he must suffer, and not his customer.^ Or where he leaves his loaded vessel or car insufficiently manned, and the emergency 1 Story Bailm. § 519 a ; Waters v. is due to bad steering and ignorance Merchants' Ins. Co., 11 Pet. 213; of the usual charts. Supra, §413. 18 Q. B. D. 121. Nor excuse himself for goods need- 2 Angell Carriers, § 165 ; Cook v. lessly abandoned in a wreck. 13 Mo. Gourdin, 2 Nott & McC. 19; Adams App. 415; supra, § 404. Express Co. v. Jackson, 92 Tenn. * Davis v. Garrett, G Bing. 716 ; 326. Phillips v. Brigham, 20 Ga. 617 ; 8 Campbell v. Morse, Harp. 468. Hales v. London R., 4 B. & S. 66; And see Doct. & Stud. Dial. 2, c. 88. Powers r. Davenport, 7 Blackf. 497. The carrier cannot ascribe to some Cf. The Schooner Sarah, 2 Sprague, natural obstruction the accident which 31 ; supra, § 403. 431 § 4-31 THE LAW OF BAILMENTS. [PART VI. comes against which he should in prudence have provided, his neglect of the goods makes him the culprit.^ Wherever, in short, by overloading, deviating, furnishing unsuitable vehicles, servants, or equipments, journeying at improper seasons or in unsafe places, carelessly directing his vehicle, or imprudently exposing the property contained therein, the carrier substantially occasions the loss or injury under dis- cussion, the proximate cause of loss, no matter what tempest or other natural calamity may come upon him, is of man's intervention, and that man the carrier himself.^ The law refuses to accept his excuse in such cases, because the essen- tial cause of loss was his remissness in duty.^ On such consideration of cause and effect, a carrier will be held responsible for the freezing or melting of perishable goods, through his failure to take due and reasonable care, under all the circumstances, to protect them against the weather.* Also for injuries caused by the wetting of such goods as he might, by the usual precautions, have kept dry ; for a carrier is bound to prudently shelter what requires such attention while it continues in his custody.^ Also for damage caused by disregarding the consignor's reasonable directions as to the manner and position of carriage ; as where the car- rier of a box marked " Glass, with care, this side up," con- veys it upside down.^ Also for natural injury operating upon an unseaworthy vessel which would not have harmed a seaworthy one ; ' and in failing to exercise due care 1 The Schooner Sarah, 2 Sprague, of wine in casks. But see Swetland 31; West v. Steamboat Berlin, 3 v. Boston & Albany R., 102 Mass. 276; Iowa, 532. Vail v. Pacific P., 63 Mo. 230. As to 2 See Siordet v. Hall, 4 Bing. 607 ; animals see § 442. So where butter Boyle ij. M'Laughlin, 4 Harr. & J. 291. on a long transit ought to have been 3 As to the carrier's duty in the placed in refrigerator cars. Beard v. transportation of property, see sjjpra, Illinois Central P., 79 Iowa, 518. §§ 402-404. And see 159 111. 53, ■* Wing V. New York P., 1 Hilt. ^ Klauber v. American Express 235; Hewett v. Chicago P., 63 Iowa, Co., 21 Wis. 21 ; Philleo v. Sanford, 611 ; Tierney v. N. Y. Central P., 76 17 Tex. 227. N. Y. 305. And see Wolf v. Ameri- 6 Hastings v. Pepper, 11 Pick. 41. can Express Co., 43 Mo. 421, where "^ Packard v. Taylor, 35 Ark. 402. the rule was applied to the freezing And see 16 Fed. P. 861. 432 CHAP. IV.] COMMON CARRIERS. §433 and discretion to preserve goods and diminish the loss where calamity overtakes him.^ § 432. The Same Subject. — And, as with exposure to the unforeseen action of natural elements, so in general as to permitting their normal operation and the wear and tear of the transit, no carrier can escape liability for loss and dam- age, who, from a failure to exercise such care and skill as is usually bestowed by prudent persons of his calling, becomes in any instance the efficient cause or occasion thereof. Thus, for badly stowing things in his wagon, car, or ship, so as cul- pabl}' to leave tliem perilously exposed, or for carelessly shift- ing things about, there can be no excuse ;2 nor can leakage be charged off against the owner, by way of common-law ex- emption, when the carrier himself has tampered with the cask ; -^ nor natural waste be alleged in his defence where he omits the customary duty of ventilating or of letting in or excluding light;* nor wear and tear serve as his excuse where he or his servants did the damage by thumping the things carelessly about and handling them rudely. Likewise is the carrier denied the privilege of alleging natural spolia- tion or "act of God" in his defence, where he placed things in close contact, which prudent carriers know should be kept far apart, and so caused mischief; where, for instance, what he perceives to be a bale of silk is set against sulphuric acid or molasses,^ or breadstuffs are deliberately packed among volatile oils of penetrating flavor.^ If bad stowage increases the labor and strain of a vessel in heavy weather, so as to produce a loss of cargo which good stowage would have prevented, the carrier is answerable." § 433. The Same Subject ; Bad Stowage in a Vessel ; Jettison, etc. — Goods carried in a vessel should, in general, be stowed 1 Kinniok V. Chicago R., 60 Iowa, (U. S.), 176; The America, 8 Ben. 665 ; The Jason, 28 Fed. R. 323. (U. S.) 4',)1. 2 The Star of Hope, 17 Wall. 651. ^ Alston v. Herring, 11 Ex. 822. 8 Leech v. Baldwin, 5 Watts, 446. " Gillespie r. Thompson, 6 E. & B. And see 20 Fed. R. 397. 478 n. ; The Barque Colonel Led- * The Ship Invincible, 3 Sawyer yard, 1 Sprague, 530. 7 16 Fed. R. 148 ; 29 Fed. R. 373. 28 433 § 433 THE LAW OF BAILMENTS. [PART VI. under the deck, where they are better protected from action of the elements as well as the depredations of vicious persons, and are likely neither to be swept off nor recklessly thrown overboard in time of peril. The presumption is that a ship- per at the present day engages for stowage of his goods under deck ; and, by commercial usage, a clean bill of lading legally imports this undertaking so strongly that the contrary cannot be established upon parol evidence.^ No sacrifice of goods carried on the deck, though it be by jettison in a sudden storm, can relieve a carrier from responding therefor to the owner, unless he can show that his manner of stowage was sanctioned by commercial usage or specially authorized, or else that such stowage in no sense occasioned the loss.^ But he is exonerated where usage sanctions the conveyance of such property above deck,^ as perhaps in barges and ferries, which ply for short distances ; or if such exposed manner of stowage appear to have been with the due assent of the shipper or owner ; or if the situation of the goods had no agency in producing the particular loss, as in case of a total jettison, or where some lightning-stroke lays the whole vessel open.^ Stowage should be suitable according to all the cir- cumstances ; such as the character and bulk of the particular goods, their liability to spoil, and whether other goods or the proper appliances of the vehicle will be incommoded.^ No jettison, of course, is excusable which is immediately traceable to the fault of the carrier ; as where a shipmaster, iThe Delaware, 14 Wall. 579; Kent Com. 240 ; Smith v. Wright, 1 Newall V. Royal Shipping Co., 33 W. Caines, 43 ; Johnston v. Crane, 1 Kerr E. 342 ; Creery v. Holly, 14 Wend. (N. B.), 356; Gillett v. Ellis, 11 111. 26 ; Barber v. Brace, 3 Conn. 9. But 579 ; Cram v. Aiicen, 13 Me. 229 ; cf. Mr. Justice Story, in Vernard v. Chevaillier v. Patton, 10 Tex. 344. Hudson, 3 Sumn. 405, 406 ; Bigelow, That a railway carrier may take on C. J., in Sayward v. Stevens, 3 Gray, a platform car a box too large to go 97, 101 ; The Thorn, 8 Ben. (U. S.) 3. into the covered car, if he uses due 2 lb. precaution against exposure to the 8 See The Harold Haarfager, 8 weather, see 94 N. C. 451. Ben. 216. ^ Stowing coal among machinery * Bird V. Astcock, 2 Bulst. 280 ; is not proper. Mackill v. Wright, 14 Shackleford v. Wilcox, 9 La. 38 ; Law- App. Cas. 106. rence v. Minturn, 17 How. 114 ; 3 434 CHAP. IV.] COMMON CARRIERS. § 434 in port, throws overboard, to lighten his vessel, goods which he might have safely landed in boats ; or finds himself com- pelled to the sacrifice because of some peril which he brought about through his unskilful navigation, or by overloading the vessel.^ Inasmuch as goods shipped on deck and justifiably sacrificed by jettison are not commonly entitled to the bene- fits of a general average, the carrier ought to have a strong case, in order to compel the owner to bear such a loss.^ § 434. Proximate and Remote Cause ; Rule further applied to Excuses for Loss. — The rule of proximate and remote cause is further ap[)lied to loss or injury from " public enemies." ^ Here, as under our former exception, the overpowering ca- lamity must have been the proximate and immediate cause of the loss ; so that the carrier's want of ordinary care and dili- gence, as well as his fraud and wilful misconduct, entering as a contributing element into the disaster, would commonly leave him responsible as before.* For the experience of many confirms the remark that the seizure, destruction, or confisca- tion of personal property on transit, even bj' public enemies, is by no means so irresistible or beyond the power of a car- rier's prevention, that common prudence and energy may not, in many instances, preserve them ; while, on the other hand, opportunity and the prospect of private gain may tempt such a party to collude with his country's foes, at the sacrifice of those who were compelled to trust him. That proximate and remote cause must be considered where " act of the customer " is set up in defence clearly enough appears from our former statements on this point. This de- fault or misconduct of the carrier's consignor or consignee — in other words, of his customer — must have been the primary and essential cause of the mischief in order to avail the car- rier.^ The same holds true of loss or injury " by the public 1 The Portsmouth, 9 Wall. G82 ; 3 Spp supra, §§ 418-420. Story Bailm. §§ 525, 530 a, 531 ; * Ilnlladay v. Kennard, 12 Wall. Cogg.s V. Bernard, 2 Ld. Raym. 909 ; 254 ; Porcher v. Northeastern R., 14 supra, § 417. Rich. 181. 2 See Cram v. Aiken, 13 Me. 229. ^ Supra, §§ 426, 427. 435 § 435 THE LAW OF BAILMENTS. [PART VI. authority ; " an excuse AA'liich no carrier is competent to set up where he yields heedlessly to legal process such as any claimant might set in motion under the color of a right, without either notifying his customer to defend the suit or testing the justice of the claim for himself.^ Proximate and remote cause is also regarded in deciding as between an excusable and non-excusable calamity ; as, for instance, where a fire (which is not legally excusable) occurs, which, it is claimed, would not have destroyed the goods had not a tem- pest driven the flames suddenly forward.^ In pfeneral, common carriers are answerable for the ordi- nary and proximate consequences of their culpable careless- ness, though not for such as are remote and exceptional ; and this liability includes all those consequences which may have arisen from the want of ordinary prevision to antici- pate or ordinary care to reduce the damage by what occurs, so far as, under all the circumstances, a due exercise of dili- gence would have prevented loss.^ § 435. Perplexing Instances of Proximate and Remote Cause ; Influence of Carrier's Contributory Negligence. — If, therefore, the property in transit be lost or impaired, because essen- tially of the carrier's default of duty, we shall find the carrier held legally to respond to his customer, notwithstanding the further intervention or agency of some act of God or other admitted excuse which aids, but otherwise need not have pro- duced, the mischief. But when the disaster is not so easily traceable to the carrier's default, and causes j^rimary and sec- ondary, proximate and remote, approach and blend together, the case becomes perplexing, and our precedents may appear discordant. The issue now resolves itself into analyzing the influence upon the disaster of the bailee's contributory negli- gence, and practically it may be of much consequence in a 1 Supra, § 428. exceptions from liability as special 2 Pennsylvania R. v. Fries, 87 contract introduces into the carriage Penn. St. 234. See supra, § 411 n. undertaking. We shall see, in the next chapter, ^ g^e Scott v. Allegheny E., 172 the principle of proximate and re- Penn. St. 646. mote causes extended to such other 436 CHAr. IV.] COMMON CAliKIERS. § 436 suit to know upon which party rests the burden of proof. Some authorities, standing fast by the ancient and rigorous policy, incline to rule that the slightest mingling of negli- gence or misconduct, as co-operative on the carrier's part, should cliarge him ; wliile others are more lenient to his lighter delinquencies, provided only the act of God or other admitted excuse appear the more immediate and moving cause of the mischief. § 436. The Same Subject ; English Instances. — That inflexible adherence to principle in this respect, regardless of popular sympathies or an exceptional hardship, which so won Chan- cellor Kent's admiration of the common-law doctrine years ago,^ can hardly be predicated at this day of the English courts. For instance, Brett, J., on a late occasion, thus essayed to define the phrase " act of God " : " The best form of the definition seems to us to be, that the damage or loss in question must have been caused directly and exclusively by sucli a direct and violent and sudden and irresistible act of nature as the defendant could not by any amount of ability foresee would happen, or, if he could foresee that it would happen, could not by any amount of care and skill resist, so as to prevent its effect." And the decision here was, in effect, to make a sea-carrier liable for an animal whose death was evidently caused by fright and struggling on a rough voyage, without the carrier's fault.'^ But on appeal the decision was reversed; and this exposition was condemned as demandinsf too much of the carrier under the bailment accomplishment. According to Cockburn, C. J., the immunity of the carrier where accident arises from " act of God " must depend on his ability to avert its effects, and the degree of diligence he is bound to apply to that end ; if by his default the loss or damage ensues, he remains responsible, though 1 See 2 Kent Com. 602. the meaning of the term, ' act of God,' 2 Nugent V. Smith, 1 C. P. D. 19, as regards the degree of care to be 34. "It is somewhat remarkable," applied by the carrier, in order to observed Cockburn, C. J., on appeal, entitle himself to the benefit of its " that, previously to the present case, protection." S. C, 1 C. P. D. 423, no judicial exposition has occurred of 435. 437 § 437 THE LAW OF BAILMENTS. [PALIT VI. the so-called act of God may have been the immediate cause of the mischief; yet all that can be required of him is that he shall do all that is reasonably and practically possible to insure the safety of the goods. " If," adds this eminent judge, upon a copious review of the English decisions, "he uses all the known means to which prudent and experienced carriers ordinarily have recourse, he does all that can reasonably be required of him ; and if, under such circumstances, he is overpowered by storm or other natural agency, he is within the rule which gives immunity from the effects of such vis major^ as the act of God." ^ In other words, the exertion of ordinary skill and prudence to avert or overcome the dis- aster appears to be all that the law holds requisite, under the latest English exposition of the carrier's responsibility in this respect. § 437. The Same Subject; American Instances. — In Amer- ica, where the law of carriers receives more voluminous dis- cussion, the same general inquiry comes up, but, as might be expected of a country less strongly commercial, with more especial reference to railway than ocean carriers ; and elicit- ing, in like manner, a marked diversity of judicial opinion. New York State has set the example of holding the carrier to a strict accountability for contributory negligence manifested on his part. Where a railway company deferred transporting goods immediately, and held them, though with but slight delay, or for what in some States would be considered good excuse, in the freight depot, near the Hudson River, and a sudden flood arose, so as to wet the goods, the highest court of the State refused to excuse the carrier. This delay was deemed delinquency sufficient to make the carrier immediately responsible for the flooding of the goods ; and the onus of proof was upon this party to establish that no act of his had concurred in or contributed to the injury .^ But in Pennsyl- 1 Nugent V. Smith, 1 C. P. D. 423, N. Y. 630. See also Wolf v. Ameri- 435. can Express Co., 40 Mo. 421, where 2 Michaels v. N. Y. Central R., 30 the carrier's co-operative negligence N. Y. 564 ; Read v. Spaulding, 30 is strongly disfavored. j 438 CHAP. IV.] COMMON CARRIERS. § 437 vaiiia, upon not dissimilar facts, a different conclusion had been reached ; for goods carrietl in a canal-boat were injured by the wrecking of the boat in an extraordinary flood ; and the court excused the carrier, notwithstanding the lameness of a horse was shown to have prevented the boat from promptly passing the place of danger, whereby the carrier's delay must have contributed to the loss.^ More than this, that same Hudson River flood, whoso devastation the New York courts visited upon the railway carrier, was, in Massachusetts, held to relieve the company of responsibility under the same circumstances.^ The rule of Pennsylvania and Massachusetts, rather than of New York, received, several years later, the approval of the Supreme Court of the United States : ^ a sanc- tion, which, under all the circumstances, ought to preponder- ate in American tribunals. Whether this indicates more, however, than a disposition to indulge the carrier, whose only remissness in contributing to a loss is a not unnatural delay,* cannot yet be stated with con- fidence. But the bearing of these latter decisions appears to 1 Morrison v. Davis, 20 Penn. St. arises, unless it is made by the other 171. party. It is not necessary for him to 2 Denny v. New York Central R., prove that the cause was such as re- 13 Gray, 481. Cf. also with New leases him, and then to prove affirma- York decisions, supra ; Judson v. tively that he did not contribute to Western K., 4 Allen, 520; Swetland it. If, after he has excused himself V. Boston & Albany R., 102 Mass. by showing the presence of the over- 270 ; Iloadley v. Northern Trans. Co., powering cause, it is charged that his 115 Mass. 304 ; Empire Trans. Co. v. negligence contributed to the loss, the Wallace, G8 Penn. St. 302. proof of this must come from those 8 Railroad Co. v. Reeve, 10 Wall, who assert or rely on it." See, fur- 176. In this case Mr. Justice Miller ther. Vail v. Pacific R., 63 Mo. 230 ; thus disposes of the main question : IloUaday v. Kennard, 12 Wall. 254 ; " A common carrier assumes all risks Lamont v. Nashville R., 9 Ileisk. except those caused by the act of God 58 ; Nashville R. v. David, 6 Ileisk. and the public enemy. One of the 261. The latest cases (1807) confirm instances always mentioned by the the text. 15 Col. 333 ; §411; Black elementary writers of lo.ss by the act v. Chicago R., 30 Neb. 197 ; Smith of God is the case of lo.ss by flood v. AVestern R., 91 Ala. 455 ; Balli- and storm. Now, when it is shown more R. v. Keedy, 75 Md. 320 ; John- that the damage resulted from this son v. Tennessee R., 90 Ga. 810 ; 101 cau.se immediately, he is excused. Cal. 187. What is to make him liable after * Supra, § 404 ; post, c. 6. this ? No question of his negligence 439 § 438 THE LAW OF BAILMENTS. [PART VI. be towards the attainment of that same general conclusion to which the latest English authority tends : viz., that the contributory negligence which shall charge a common carrier, notwithstanding the loss was occasioned by act of God or a public enemy, is not slight negligence, or such as renders only bailees for their sole recompense responsible, but ordinary negligence, or the failure to bestow that skill, diligence, and foresight, in which persons ordinarily prudent, of the same class, would not be wanting under the same circumstances ; in other words, holding the carrier to that exercise of duty, under all circumstances, upon which we discoursed at the outset.^ § 438. The Same Subject ; Where Disaster was Inevitable, notwithstanding Default. — Admitting, as we must, the carrier's general responsibility for loss or injury by a disaster which his own negligence or misconduct has materially aided in producing, the question sometimes occurs, how far may this responsibility be overborne by proof that the disaster must inevitably have befallen the goods in transit, even though the carrier had pursued the strict line of duty. Thus, supposing the master of a ship to have deviated so slightly, or for so short a period, that the same tempest which actually wrecked his vessel must infallibly have overtaken it, even if he had steadily pursued the true course, will he be held liable for the loss of the goods on board? Or must he strictly respond, supposing goods were left on deck, in violation of his duty, and yet the storm that washed them away destroyed likewise all that were stowed in the hold? The Roman law would, under such circumstances, have exonerated the carrier. " If the bailee, to use the Roman expression," says Sir William Jones, " be m mora, — that is, if a legal demand have been made by the bailor, — he must answer for any casualty that happens after the demand ; unless in cases where it may be strongly presumed that the same accident would have befallen the thing bailed, even if it had been restored at the proper time ; or un- less the bailee have legally tendered the thing, and the bailor have put himself in mord by refusing to accept it : this rule 1 Supra, §§ 402-404. 440 CHAl'. IV.] COMMON CAKKIEKS. § 438 extends, of course, to every species of bailment." ^ Puthier is an eminent authority in favor of the same doctrine."'^ Our common hiw appears It) incline in the same direction ; permitting the carrier to show in defence, that alUunigli he may have been in default, yet tliat tlie loss was indepen- dent of such default, and must have happened regardless of it. Tlius, if an unseaworthy ship be captured by a public enemy, the carrier may show, as it seems, that, seaworthy or unseaworthy, the ship could not have escaped its captor.^ In several instances, in i)oint of fact, our common carrier, while not altogether blameless, has yet been allowed the full benefit of a loss which was substantially and primarily occasioned by one of the excepted perils.* And certainly, if the carrier has acted with ordinary prudence, skill, and foresight, in en- deavoring to prevent or escape the calamity, and his vessel is ordinarily seaworthy, it shall not charge him, that his pru- dence, skill, and foresight, or the condition of his vessel, were not the very best.^ As for delay or deviation, whereby goods are brought into immediate contact with the excepted peril, we may well conceive of circumstances rendering such de- lay or deviation not only reasonable, but highly expedient.® All this goes, however, towards justifying, not so much the admission of contributory wrong or default on the carrier's part, despite wdiich the excepted calamity, it is shown, must have happened, as to strike away the link of contribution altogether, and leave the excepted cause in sole operation as the motive of the disaster. Or, it may be said, the bail- ment of itself mutually implies that in a peculiar and press- ing emergency, the carrier may delay or even deviate, observing the bounds of prudence and good faith." For the 1 Jones Bailm. 70. And see Angell ner v. Smallwood, 2 Ilayw. 349; Carriers, §§ 203-208 ; Slory Baihn. supra, § 431. * Supra, § 437. § 413 a-d; supra, § 139. ^ ggg Cockburn, C. J., in Nugent 2 Pothier I'ret k Usage, n. 55-58 ; v. Smith, 1 C. P. D. 423, 435 ; Mor- Story Baihn. § 413 c. rison v. Davis, 20 Penn. St. 171. 8 Tindal, C. J., in Davis v. Gar- » See supra, §§ 40:!, 404 ; The rett, 6 Bing. 716. And see, as to Schooner Sarah, 2 Spraguo, 31. stowage on deck not producing the " For this suggestion as applied to loss, The Rebecca, Ware, 188 ; Gard- bailments for hire, see supra, § 140. 441 § 439 THE LAW OF BAILMENTS. [PART VI. rest, our reports give us, thus far, dicta, but not conclusive precedents.^ Tliey rule clearly that the onus, at all events, rests upon the carrier, whose culpable delinquency appar- ently helped produce and essentially contributed to the loss, of showing not that the same loss might, but that it must, have happened independently of such delinquency;^ a bur- den, it must be confessed, not easily to be uplifted, under the variation of circumstances most readily conceivable. § 439. Legal Excuses, how set up ; Presumption ; Burden of Proof, etc. — The several legal excuses for loss we have thus enumerated are for carriers to set up in defence when charged with a loss or injury. For, to discourage litigation, the common law strongly presumes against every public transporter to whom, in the regular course of business, prop- erty has been consigned for carriage, which fails in due time to reach its destination reasonably safe and sound. Proof, to this extent, of an owner's or customer's loss or injury, estab- lishes, primd facie, the liability of the common carrier to make that loss or injury good, and puts upon him the onus of con- troverting such proof, or of relieving himself by showing that the occasion of loss or injury was such as ought, by law, to excuse him.^ But while the consignor or owner of goods is not commonly bound to prove how or where the mischief actually happened, — matters whose knowledge, except in special cases, must be within the carrier's peculiar province, if proof be attainable at all, — it is yet incumbent upon such party, as the foundation of his rightful claim, to show a com- 1 Tindal, C. J., in Davis v. Garrett, Hill v. Sturgeon, 28 Mo. .S23 ; Murphy 6 Bing. 716; Parker v. James, 4 v. Staton, 3 Munf. 239 ; Bell u. Reed, Camp. 112 ; Hill v. Sturgeon, 28 Mo. 4 Binn. 127 ; Tarbox v. Eastern 323 ; Smith v. Whitman, 13 Mo. 352 ; Steamboat Co., 50 Me. 339 ; David- Collier V. Valentine, 11 Mo. 299 ; son v. Graham, 2 Ohio St. 131 ; Hart u. Allen, 2 Watts, 114. Michaels v. New York Central R., 2 See Phillips v. Brighara, 26 Ga. 30 N. Y. 564 ; Montgomery R. v. 617. Moore, 51 Ala. 394 ; Hall v. Cheney, 3 Story Bailm. § 529 ; Nugent v. 36 N. H. 26 ; Alden v. Pearson, 3 Smith, 1 C. P. D. 19, 423 ; Forward Gray, 342 ; Van Winkle v. South V. Pittard, 1 T. R. 27 ; Angell Card- Carolina R., 38 Ga. 32; Little v. ers, § 202 ; Riley v. Home, 5 Bing. Boston R., 66 Me. 239 ; 89 Mo. 340, 217 ; Hastings v. Pepper, 11 Pick. 41 ; And see § 478, post. 442 CHAP. IV.] COMMON CARRIERS. § 439 plete delivery of the property to the party exercitjing the pub- lic vocation, and further, that the goods in question were delivered over, at the end of the transit, in the damaged or wasted condition complained of, or not delivered over at all. His showing must be such as leaves it improbable that the loss or injury could have occurred from any other cause than such as leaves a carrier liable.^ And whenever the carrier has, in response, brought the loss or injury faiily within one of the foregoing legal exceptions, of act of God, act of public enemy, or act of the consignor or customer, or act of public authority, by ample evidence to that effect, such as imputes no blame to himself, he is not bound to show further, afhrma- tively, that there was, in fact, no contributory negligence or misconduct on his part, but may here rest his case, and leave the other to show such negligence or misconduct, as proxi- mate cause of the mischief, by way of rebutting testimony if he can.2 jj^ general, and as the final result of all the evidence adduced, the burden of a prlynd facie case against the carrier rests upon the customer. Where goods are found damaged at the end of the transit, and it is left, on the whole, in doubt, upon the owner's suit, what the real cause of injury was, so that the loss or damage may as well be attributed to the carrier's excepted cause as to the carrier's negligence, the plaintiff, it is held, cannot re- cover.^ Damage which appears to be the result of the inher- ent nature or inherent defect of the thing of course relieves the carrier.* But where the evidence imputes actual careless- ness or misconduct to the carrier, on the owner's showing, all 1 Midland R. v. Bromley, 17 C. B. And see, in general, as to bailments, 376 ; The Falcon, 2 Blatchf. 64 ; supra, § 28. Ringgold V. Haven, 1 Cal. 108. 8 Muddle v. Stride, C. & P. 380 ; 2 Nugent V. Smith, 1 C. P. J^. 423 ; Clark v. Barnwell, 12 How. 272. Vail V. Pacific R., 63 Mo. 230 ; Hussey * As if a horse's sickly condition V. The Saragossa, 3 Woods, 380 ; or the decay of perishable articles Railroad Co. v. Reeve, 10 Wall, should appear the natural result of 176. the transportation. Hussey v. The As to the burden of proof under Saragossa, 3 Woods, 380 ; 12 Fed. R. special contract modifications of lia- 876. bility, see § 478. See further, § 578. 443 § 44:2 THE LAW OF BAILMENTS. [PAKT VI. the more surely is his case established against the carrier.^ A case being made out of delivery in good order to the car- rier and non-delivery over, the burden shifts to the carrier in conformity with the rule already stated.^ § 440. Carrier not a Technical Insurer ; Right of Insurance Company. — It is often said that the law makes the carrier an insurer ; but by this we are not to understand the word " in- surer " in its present technical sense. For the rule of " aban- donment," whereby the owner may, in case of partial injury, reject the uninjured part, and claim indemnity as for a total loss, does not apply here, as it would in the law of insurance.^ Where goods are insured by the carrier's customer against fire, and a loss occurs, the insurance company upon paying for the damage becomes subrogated to the customer's rights against the carrier, and may recover the entire loss and not merely the amount of insurance paid the customer.^ § 441. Care and Diligence is according to Circumstances. ■ — We may add that the occasion presented, the nature and quality of the subject-matter, the character of the transit, and other kindred circumstances, may determine, in a particular case, what ordinary care and diligence were requisite on the carrier's part. For, as it was observed in a recent case, what would be sufficient care in case of ponderous articles not liable to be deteriorated by exposure might be most palpable neglect in the case of costly and perishable goods.^ Peculiar considerations arise in applying the standard of ordinary care to explosive and combustible substances.^ § 442. Instances of Mixed Custody considered ; Hand-bag- gage ; Animals. — A few special instances of a peculiar cast 1 See Little v. Boston R., 66 Me. 13 Ind. 263 ; Henderson v. Ship Maid 239. of Orleans, 12 La. Ann. 352. 2 70 Tex. 26 ; Browning v. Trans. * Mobile R. v. Jarey, 111 U. S. 584. Co., 78 Wis. 391; cases supra. But See § 458. some evidence of non-delivery, ac- ^ Wolf v. American Express Co., cording to the carrier's obligation, 43 Mo. 421. And concerning the ought to be shown. Roberts v- Chit- influence of usage among carriers, tenden, 88 N. Y. 33. special contract, and legislation, upon 3 Nettles V. Railroad Co., 7 Rich, the issue of negligence, see next c. 190 ; Michigan Southern R. v. Bivens, e gee 67 Fed. 426. 444 CHAP. IV.] COMMON CARRIERS. § 442 involving a mixed custod}' may serve to illustrate further the Anglo-Saxon doctrine of a common carrier's liability. 1. Baggage carried by passengers, and particularly their hand-baggage, and money taken on the person. This topic will be treated in place hereafter.^ 2. As to live animals. Litigation over the liability for the trans[)ortation of animals involves two elements of especial difficulty : one, the animal's own nature and disposition ; the other, the behavior of the owner, or his drover or servant, who may have accompanied the creature on the transit. A public carrier incurs all the usual risks of his profession at the com- mon law, with reference to brute creatures that he undertakes to transport ; for these are chattels.^ He must fasten up and secure the animal well, to prevent its escape;^ and must put it in some suitable place which may afford reasonable shelter and protection. He must not endanger the creature's life and health by neglecting to provide food, water, and the means of repose or needful exercise on the journey.^ In case of delay or accident, from whatever cause, he must reasonably regard the comfort and safety of the creatures intrusted to his care, whether in keeping them on board or unloading and re-load- ing them.^ Where cattle are transported by rail in large num- bers, cars of a peculiar construction are commonl}^ used; but whatever the vehicle, or part of a vehicle, assigned to ani- mals, this must be of strength reasonably sufficient to keep them from breaking through, escaping, or doing themselves serious damage, and in all respects well adapted for the pe- culiar transportation purpose.^ Unreasonable delay or unrea- 1 See post, Part VII. c. 4, 111. 474 ; Toledo R. v. Thompson, 71 2 Angell Carriers, § 214 ; Story 111. 4-34 ; Harri.s v. Northern Indiana Bailm. § 576; Nugent v. Smith, 1 R., 20 N. Y. 2-32; Dunn v. Hannibal C. P. 1). 10, 423 ; McCoy v. K. & I). K., 08 Mo. 2G8. M. R., 44 Iowa, 424. Cf. supra, § 370, ^ Kinnick v. Chicago R., 09 Iowa and n. 605. 8 Stuart V. Crawley, 2 Stark. .323 ; e cf. Harris v. Nortliern Indiana Porterfield v. Humphreys, 8 Humph. R., 20 N. Y. 2.32 ; Smith v. New Haven 497. Cf. Blower v. Great Western R., 12 Allen, 531 ; Welsh r. I'itts- R., L. R. 7 C. P. 655. burg R., 10 Ohio St. 05 ; Indianapolis * Illinois Central R. v. Adams, 42 R. v. Strain, 81 111. 604 ; Pratt v. 445 § 442 THE LAW OF BAILMENTS. [rART VI. sonable exposure might be at the beginning or end of the transit or at some intermediate point.-^ In short, the carrier of animals is responsible for any loss or injury which the pur- suance of ordinary diligence and skill in his vocation might have obviated ; and he will be charged as their insurer, save so far as he can bring himself within some one or more of the recognized exceptions of the law.^ But the common carrier of animals does not necessarily make himself an insurer against a loss or injury which is really attributable to the nature, habits, disposition, and pro- pensities of the animals, and such as ordinary diligence on his part would not probably have prevented. Should the animal sicken, pine away, and die a natural death ; or, because of fright, restlessness, or viciousness, inflict injury on itself or other animals of the same owner ; or even should it escape, — it is the owner who must bear the loss, so long as the carrier appears to have faithfully performed his own duty as the un- dertaking bound him.^ And the carrier has a clearer excuse where such mischief develops in the course of some irresisti- ble, natural, and hence excusable calamity.* The principle of this exception is analogous to that already noticed, where goods spoil and deteriorate from inherent defects, and other Ogdensburg E., 102 Mass. 557 ; Rail- he has given no notice to the car- road Co. v. Pratt, 22 Wall. 123 ; Haw- rier of the animal's injury, nor of- kins V. Great Western R., 17 Mich, fered it to be cared for. Evans v. 57 ; 29 Fed. R. 373. And see supra, Dunbar, 117 Mass. 546. §402, as to seaworthiness. If cars ^ glower v. Great Western R., L. are built suitably and strongly enough R. 7 C. P. 655; Kendall v. London for animals ordinarily vicious and un- R., L. R. 7 Ex. 373; Smith ??. New ruly, the carrier has done his duty Haven R., 12 Allen, 531; Clarke v. sufficiently. Selby v. Wilmington R., Rochester R., 4 Kern. 570; Conger 113 N. C. 588. V. Hudson River R., 6 Duer, 375; 1 Where live-stock are delayed by Hall v. Renfro, 3 Met. (Ky.) 61 ; stress of bad weather, they should be Mynard v. Syracuse R., 71 N. Y. 180 ; suitably sheltered according to their Central R. v. Smitha, 85 Ala. 47 ; natural requirements. Feinberg v. Louisville R. v. Bigger, 66 Miss. 319 ; Delaware R., 52 N. J. 451. And see Coupland v. Housatonic R., 61 Conn. 71 Miss. 757. 631. See Sturgeon v. St. Louis R., 2 The owner may bring his action 65 Mo. 569 ; Evans v. Fitchburg R., against the carrier for injury done to 111 Mass. 142. his animal while in transit, although * See Nugent v. Smith, 1 C. P. D. 446 CHAP. rV.] COMMON CARRIERS. § 443 natural causes ; no blame attacliing' to the party transporting tliem.^ §443. The Same Subject; Animals. — If the consignor, or his drover or servant, as is now quite frequent, travels with his own live-stock, as in a cattle-train, he relieves the carrier from the active care of the creatures, in so far as he assumes such care for himself. Within his understood sphere of ac- tion, as for feedinrr and ■watering;, or the treatment of bruises and disease, a person thus travelling in charge of one's stock as care-taker is more immediately answerable than tlie car- rier; and for negligence or misconduct on his part, produc- tive of injury, or, indeed, for damage occasioned l)y him, wliether culpably or not,^ the carrier may set up that it was the consignor's or customer's act.^ This assumes, however, that the carrier was not himself at apparent fault; for, ■whether in intermeddlinsf, or while attendingf to runnino- the train or other transit duties of his own or supervising the carriage of the creatures, the carrier continues responsible for all such damage as his misconduct or want of ordinary diligence may have inflicted;^ and as a public carrier, he continues in a considerable measure the insurer of such freight.^ He must at least give any such care-taker on the shipper's belialf full opportunity to take care.^ If an entire railway car be cliartered for the cattle of a par- 19, 423; Gabay v. Lloyd, 3 B. & C. * Gill v. Manchester R., L. R. 8 793 ; Story Bailm. § 576 ; Angell Car- Q. B. 18G ; Sneesby v. Lancasliire R., tiers, § 214. L. R. 9 Q. B. 263 ; s. c. 1 Q. B. D. ^ Supra, § 416. 42 ; Powell v. Pennsylvania R., 32 2 Hart V. Chicago R., 09 Iowa, Penn. St. 414; Illinois Central R. v. 485. Here the fodder was set on fire Adams, 42 111. 474 ; Cragin v. N. Y. by the drover in charge of the live- Central R., 61 N. Y. 61. stock, though, as it was claimed, not ^ If frightened animals are in dan- carelesslj'. And see 87 Ga. 403. ger on their car, and the drover asks 3 Wilson V. Hamilton, 4 Ohio St. to have the car left at a way station, 722 ; Evans V. Fitchburg R., Ill Mass. the carrier ought to comply if he rea- 142. The .shipper is at fault if he sonably can. Coupland v. Housatonic sends no care-taker where expected R., 61 Conn. 531. to and must bear risks attributable ^ Smith r. Michigan R., 100 Mich, to the want of such immediate over- 148. sight of the creatures. Heller v. Chi- cago R., Mich. (1896). 447 § 445 THE LAW OF BAILMENTS. [PART VI. ticular party who takes entire charge of the loading, the com- pany is not to be held liable for damage caused by such improper loading ; ^ and, as we have seen, the consignor's selection of a cattle-car may, to some extent, and even though the car be rather an unsuitable one, establish a qualification of the carrier's legal responsibility .^ § 444. The Same Subject. — Loss by the animal's running away should usually justify a presumption that the carrier did not have the creature fastened up properly. And yet, so nicely does the law adjust its reckoning by the facts, for the escape of a dog, delivered with only a string about its neck, a carrier was once held liable, when the dog slipped the noose, because, as it was alleged, the carrier should have secured the creature better ; ^ but where a dog was delivered, having on a leather collar and strap, and after being fastened up thereby, slipped its head from the collar, and ran off, it was later adjudged that the loss was by the owner's act, since the carrier had fastened the dog by means apparently sufficient, which the owner had himself provided.* The consignor of animals may, of course, be to blame for the manner in which he has loaded or fastened the creatures on board, so far as he assumed to do this ; and the fact that he has had opportunity to know the creature's propensities, while the carrier has not, is a circumstance which calls for special heed on the part of the former.^ § 445. Instance of Ferry Transportation. — 3. Ferrymen and ferry companies incur risks, subject to peculiar qualifica- tions, with respect to the horses and teams they transport ; and, as this business is usually conducted at the crowded centres of trade, the ferry seldom takes entire charge of such property, but leaves the driver to cross in charge of his team. A ferryman is bound to keep his slips in good order, and to provide suitable means of ingress and egress ; to have a boat 1 East Tennessee R. v. Whittle, 27 * Richardson v. North-Eastern R., Ga 535. L. R. 7 C. P. 75. And see Cantling 2 Harris v. Northern Indiana R., v. Hannibal R., 54 Mo. 385. 20 N. Y. 232 ; siipra, § 422. ^ Evans v. Fitchburg R., Ill Mass. » Stuart V. Crawley, 2 Stark. 323. 142 ; Rixford v. Smith, 52 N. H. 355. 448 CHAP. IV.] COMMON CARRIERS. § 445 stanch, strong, and seaworthy, well constructed and fitted up for its peculiar service, and properly manned, equipped, and managed ; and to maintain reasonable safeguards, and enforce such customary rules, as may keep the boat well trimmed on its passage, and promote the general security and comfort in person and property of all concerned.^ lie must not overload, nor venture out imprudently, in bad weather, without the means of averting possible dangers.'* Should damage result from his violation of these plain duties, the carrier must respond to his patron who suffers in conse- quence ; as where his boat was not well fastened at the landing-place,^ or he omitted to put his chain up at the end of the boat,^ or negligently suffered the slip to be out of repair.^ A ferryman's rights, we have seen, are commen- surate with the responsibilities devolving upon him ; ^ and he must suffer the consequences of his culpable negligence, even should the property lost be a horse and carriage over which the owner, or his driver, exercises a certain con- trol." But if the ferryman discharge his duty in the premises with ordinary diligence and discretion, and the loss be occa- sioned by the animal's restiveness, viciousness, or other inhe- rent fault, the owner must suffer for it ; ^ and so, too, where the owner or his servant, instead of surrendering the animal to the ferryman's entire custody, drives on board, selects his place, and, undertaking, in fact, to look after his creature, occasions the damage by neglecting to do so.^ * Supra, § 395 ; Angell Carriers, ^ Supra, § 354 ; Claypool v. Mc- § 82. That ferrymen are common Allister, 20 111. 504. carriers, see supra, § 354. '^ VVilloughby v. Horridge, 12 C. B. 2 Angell Carriers, § 1G5 ; 1 Roll. 742. Abr. 10, pi. 18; Cook v. Gourdin, 2 » Hall v. Rcnfro, 3 Met. (Ky.) 51 ; Nott & McC. 19. Lewis v. Smith, 107 Mass. 3?A ; cases 8 Pomeroy v. Donaldson, 5 Mo. 36. supra, §§ 442-444. * Ferris r. Union Ferry Co., 36 ' White v. Winnisimmet Co., 7 N. Y. 312 ; Miller v. Pendleton, 8 Cush. 155. Cf. JMay v. Hanson, 6 Gray, 547. Cal. 360. 6 Willoughby v. Horridge, 12 C. B. 742. 29 449 § 446 THE LAW OF BAILMENTS. [part VI. § 446. Expressions in Bills of Lading; "Perils of the Sea," etc. — The common-law doctrines of liability we have thus discussed might be further illustrated by reference to the expressions which have long been current in bills of lading and similar documents of common carriage. Phrases of corresponding tenor might be cited, too, from marine in- surance policies.^ But any and all terms of exception, 1 The stated exceptions under a bill of lading or stated risks in a pol- icy of insvirance vary, of course, with time and circumstances and tlie changing methods of transportation. But tlie following are the phrases most commonly employed in carriage by water, to which special allusion is made in the text : — 1. Exception of '■'■perils of the sea,^^ or '■'■j)erils of navigation.'''' The former expression, which for a long time was the only one used by Eng- lish carriers in merchant vessels under bills of lading, covers, doubtless, nat- ural accidents peculiar to that ele- ment. But the phrase is by no means synonymous with "act of God"; for, excluding on the one hand altogether the idea of land calamities, it has on the other hand been judicially interpreted so as to protect various losses by sea which are not referable, on the principles already discussed, to the interven- tion of Providence. Thus, loss by impressment has been excused as a " peril of the sea." Hodgson v. Mal- colm, 5 B. & P. 336. So has loss by the collision of vessels, when imput- ing no blame to the carrier. Buller V. Fisher, 3 Esp. 67 ; Smith v. Scott, 4 Taunt. 126. And, likewise, a capt- ure by pirates on the high seas. De Rothschild v. Mail Steam Packet Co., 7 Ex. 734 ; Pickering v. Barclay, 2 Roll. Abr. 248 ; all of which are the result of human intervention, and not the "act of God." And see Story 450 Bailm. § 512 ; Abbott Shipping, 11th Eng. ed. pt. 4, c. 6, § 2. Cf. § 420. " Perils of navigation " is a phrase of rnuch the same import, which is now sometimes preferred to "perils of the sea," as less technical. But loss by fire is not excepted as a " peril of the sea," or a " peril of navigation ": Morewood v. PoUok, 1 E. & B. 743 ; Martin v. Salem Marine Ins. Co., 2 Mass. 420 ; nor is loss by explcsion : Propeller Mohawk, 8 Wall. 153 ; The Barque Edwin, 1 Sprague, 477 ; nor loss by the depredation of rats and vermin : Laveroni v. Drury, 8 Ex. 166 ; Dale v. Hall, 1 Wils. 281 ; Hunter v. Potts, 4 Camp. 203. Judge Story inclines to the view favored by the civilians Emerigon and Roccus, that if the shipmaster keeps a cat, or, as we may say, uses due diligence to keep rats away, he shall in this respect be excused : Story Bailm. § 513, and authorities cited ; but the English courts do not in this respect sustain him. See also 3 Kent Com. 300 n. ; Angell Carriers, § 170 ; Aymar V. Astor, 6 Cow. 266 ; Kay v. Wheeler, L. R. 2 C. P. 302 ; contra, Garrigues V. Coxe, 1 Binn. 592. Nor is damage done to a ship's bottom by worms in the course of the voyage a "peril of the seas," or of " navigation " : Story Bailm. § 513 ; Rohl v. Parr, 1 Esp. 444 ; Martin v. Salem ^Marine Ins. Co., 2 Mass. 420 ; Hazard v. New England Marine Ins. Co., 1 Sumn. 218 ; s. c. 8 Pet. 557 ; for surely every vessel ought to be reasonably sea- worthy while in active use. Nor, of CHAP. IV.] COMMON CARRIERS. §446 such as express contract creates in favor of the carrier, must be distinguished from those three sanctioned and firmly course, is a damage happening on land after arrival and wliile tlie ves- sel remains in port. Thompson v. Whitmore, 3 Taunt. 227 ; Accomac, The, 15 I'rob. Div. 203. As to time of loading up before departure, see 16 Prob. Div. 203. When a carrier vessel taken in tow by a ship of war has to crowd sail during a gale of wind, wlieroby her cargo is injured, this has been called a loss by "peril of the sea." Hage- dorn V. Whitmore, 1 Stark. 157. So has striking the ground, running on unknown and hidden obstructions, and otherwise encountering loss from those natural causes, pertaining to the element, which might usually be said to arise ex vi divinS. Angell Carriers, §§ IGG, 180 ; Potter v. Suf- folk Ins. Co., 2 Sumn. 197. Also damage by sweating, or condensation of moisture in passing from a warm to a cold climate. McKinlay v. Morrish, 21 How. 243. And various accidents in the course of loading or unloading may thus be excused in extension of " act of God." South- gate, The, [1893] Prob. 329. But whenever collision occurs, not through the fault of the other vessel, nor so a.s to acquit both vessels of blame, but by reason of the negli- gence of the carrier vessel in ques- tion, the latter cannot ascribe the loss to "peril of the seas" or a "peril of navigation." Lloyd v. Collier Co., 3 H. & C. 284 ; Grill v. Collier Co., L. R. 1 C. P. 600 ; s. c, on appeal, L. R. 3 C. P. 476. And see Converse v. Brainerd, 27 Conn. 607. And the same principle of proximate and remote cause of loss applies, upon which our text dis- courses under "act of God," etc. For the rational understanding of these exceptional phrases is, that the carrier shall not, by misconduct, or the failure to perform tiie functions of his calling with ordinary skill and diligence, invite, so to speak, the peril, and occasion in fact the loss. See Angell Carriers, §§ 167, 173; Story Bailm. §§ 512 a, 615 ; 3 Kent Com. 216, 217 ; Schooner ]{ecside, 2 Sumn. 571 ; McArtiiur v. Sears, 21 Wend. 190, 199. The carrier is not, to be sure, compelled to provide a vessel exceptionally weather-proof or seaworthy. Amies v. Stevens, 1 Str. 127. But he must have a reasonably weather-proof and seaworthy vessel ; and if loss occurs because he has not one, or through unreasonable devia- tion, bad stowing, overloading, bad steering, bad management of the ves- sel or its cargo, insufficient equip- ment, or other culpable neglect of duty, this shall not be excused him as a peril of the seas or of naviga- tion. See The Star of Hope, 17 Wall. 651 ; Putnam v. Wood, 3 xMass. 481 ; Davis V. Garrett, 6 Bing. 716 ; Crosby V. Fitch, 12 Conn. 410 ; Charleston Steamboat Co. v. Bason, Harper, 262 ; Story Bailm. § 519 a ; Hand v. Baynes, 4 Whart. 204. On the whole, the precise scope of the foregoing expressions is not read- ily gathered. Gould, J., in Williams V. Grant, 1 Conn. 487, 492, holds that "act of God" and "perils of the sea" signify one and the same thing. And see Crosby v. Fitch, 12 Conn. 410, 419. But, though enlightened jurists might wish this supposition correct as concerns water transpor- tation, the precedents we have cited prove the reverse ; and this, too, not- withstanding the just criticism that, in permitting the immediate acts of third persons to pass as a peril of the sea, we open to the caiTior that very door for collusion and fraud which 451 § 446 THE LAW OF BAILMENTS. [part vr. established by our Anglo-Saxon public policy, and which this chapter has aimed to set forth ; viz., act of God, act of public policy barred so closely. See Cowen, J., iu McArthur v. Sears, 21 Wend. 190. 2. Exception of ''dangers,^' ''ac- cidents,^^ etc. "Accident" excludes human design ; while " danger " may be considered a generic term, of which "peril" is the specific, as importing some imminent danger. But whether an exception of "dangers and acci- dents of the seas and navigation" is to be construed as essentially differ- ent from "perils of the seas," may well be doubted. In an English case, where a vessel arrived in port, and began discharging her cargo, and while so doing, most of the crew having been dismissed, the tackling broke which fastened the vessel to a lighter, and she canted over so that water came into her port-holes and damaged the goods, a clause like this was construed into an exemption. The case is not, however, fully re- ported. Laurie v. Douglas, 15 M. & W. 746. After much dispute it is settled in England that damage done by water entering through holes made by rats is within the exception of "dangers and accidents," etc. Pan- dorf V. Hamilton, 12 App. Cas. 518. 3. Exception of '■'dangers'''' or "perils''^ of the " river,'' ^ of "-lalce navigation,''^ etc. Clauses of this description are often found in mod- ern bills of lading, but less in Great Britain than America, where inland navigation is of so vast consequence. By such expressions, ordinary dan- gers or perils, corresponding to those of the sea, which attend the inland navigation referred to, are mainly intended. Transportation Co. v. Downer, 11 Wall. 129 ; McArthur V. Sears, 21 Wend. 190 ; Angell Car- riers, § 168 ; Jones v. Pitcher, 3 Stew. & P. 135. But the peculiari- 452 ties which distinguish transit by in- land waters from that by sea are not to be forgotten. Thus, "dan- gers of lake navigation" will include the danger which arises from shallow- , ness of the waters at the entrance of harbors formed from them. Trans- portation Co. V. Downer, 11 Wall. 129. A loss by collision without the carrier's fault, if occurring on the lake or river, would by analogy fall within the stated exception. Jones V. Pitcher, 3 Stew. & P. 135 ; White- sides V. Thurlkill, 12 Sm. & M. 599 ; Hays V. Kennedy, 41 Penn. St. 378. Not, however, following the same analogj", a loss by fire or explosion : Garrison v. Memphis, 19 How. 312 ; Cox v. Peterson, 30 Ala. 608 ; Hibler v. McCartney, 31 Ala. 501 ; nor a loss by rats or vermin : Kay v. Wheeler, L. R. 2 C. P. 302 ; nor damage such ' as evinces that the vessel was not reasonably fit for its peculiar service. But cf. English rule, supra. For, whether carriage be by ocean or inland waters, the same parity of reasoning applies to perils of this de- scription. As to piracy, however, it might be otherwise ; for this is a crime which has always been associ- ated, not with inland waters, but the high seas. King v. Shepherd, 3 Story, 349. Collision, or other loss, occasioned by the carrier's misconduct and want of ordinary diligence, must, of course, fail of exemption under clauses like these. For, as before, the "danger" or "peril" comprehends such only as the carrier's exercise of ordinary skill, judgment, foresight, and dili- gence in the performance of his duty is unable to avert. Whitesides v. Russell, 8 W. & S. 44 ; Turney v. Wil- son, 7 Yerg. 340 ; Williams v. Bran- CHAP. IV.] COMMON CARRIERS. §44G public enemies, act of consignor or customer; to which we have added, act of public authority. These and other son, 1 Murph. 417 ; Marsh v. Blyth, 1 2si)tt & McC. 170 ; Hill v. Sturgeon, 28 Mo. 323 ; Angell Carriers, § 108 ; Grey v. Mobile Trade Co. , 55 Ala. 387. And it is peculiarly incumbent upon a carrier wlio navigates inland waters to avoid running a.sliore, to keep clear of other craft, and to look out for bridges. See The Lady Pike, 21 Wall. 1 ; The Mohler, 21 Wall. 230. 4. Exception of ^^ restraint of princes,^^ ^^ losses by the kinrfs ene- «iies," etc. It is held that the excep- tion "restraint of princes" extends to the hostile detention of goods •within a besieged city or town ; siege and blockade standing on an equal footing in this respect. Rodocanachi V. Elliott, L. R. 8 C. P. 649. Los.ses by "king's enemies" or "public enemies" are now quite often for- mally excepted under bills of lading ; but, according to the better reason, this exception will equally prevail through operation of the common law, notwithstanding the bill of lad- ing makes express reference only to "perils of the sea." Story Bailm. § 550; Gage v. Tirrell, 9 Allen, 299. 5. Miscellaneous phrases of ex- ception. The present tendency of common carriers and insurers is to multiply words and expressions, so as mure clearly to except particular perils, dangers, and accidents, which are not embraced in general phrases like the foregoing. IIow eagerly, in fact, railways and ship-owners run to cover behind special contract pro- visions of their own framing will better appear in our next chapter. Some of the more striking of these miscellaneous exceptions, however, are here collected for the reader's examination. Thus, "stranding" is found spe- cially excepted in bills of lading or insurance policies not of very recent date. Kingsford v. Marshall, 8 Bing. 458 ; Burnett v. Kensington, 7 T. R. 210. "Jettison and stranding" is an exception considered in Ncwall v. Royal Shipping Co., 33 W. R. 342. Another express exception, now com- mon, is that of loss by "fire," or "accidental fire," "explosion," etc. Steamboat Sultana v. Chapman, 5 Wis. 454 ; Bank of Kentucky v. Adams Express Co., 93 U. S. 174 ; We.st V. Steamboat Berlin, 3 Iowa, 532 ; 66 Vt. 290. See the Iddo Kim- ball, 8 Ben. (U. S.) 297. Another is loss by "thieves" or "robbers." Taylor v. Liverpool Steam Co., L. R. 9 Q. B. 546 ; De Rothschild v. Steam Packet Co., 7 Ex. 734. Another is "damage to goods which can be in- sured against " ; a phrase referring to damage by the loss or destruc- tion of the goods, but not to loss by their abstraction. Taylor r. Liverpool Steam Co., L. R. 9 Q. B. 546. An- other is "dangers of the roads," which commonly means, as employed in water carriage, dangers of marine roads ; or, if in land carriage, then such dangers as the overturning of a carriage in rough and bad places. De Rothschild v. Royal Mail Steam Packet Co., 7 Ex. 734. Another is loss by "capture." Losses by ver- min, by leakage, by breakage, by pil- ferage, by accidents of machinery, and the like, are also found expressly excepted ; in short, the enumeration takes often a very wide range, mak- ing verbal mention even of the com- mon-law instances of exemption at the same time. See De Rothschild V. Royal Mail Steam Packet Co., 7 Ex, 734 ; Taylor v. Liverpool Steam Co., L. R. U Q. B. 546; Ohrloff v. Briscnll, L. R. 1 P. C. 231 ; Edwards 453 THE LAW OF BAILMENTS. [part VI. contract exceptions remain for discussion in our next chapter. V. Steamer Cahawba, 14 La. Ann. 224 ; The Pereire, 8 Ben. 301. The courts, in construing all such phrases as these, will very properly decline to infer a mutual inten- tion that the loss shall excuse the carrier, regardless of his agency therein. Hence, under an exception of "fire," "theft," "capture," "leakage," "breakage," "jettison and stranding," and the like, the peril stated must have been the real cause of damage ; not the dereliction of duty, culpable negligence, or bad conduct of the carrier himself, with- out which the disaster would not have happened : Steamboat Sultana V. Chapman ; Bank of Kentucky v. Adams Express Co. ; Taylor v. Liver- pool Steam Co., supra; Phillips v. Clarke, 2 C. B. n. s. 156 ; Mynard v. Syracuse R., 71 N. Y. 180; Pennsyl- vania II. V. Miller, 87 Penn. St. 395 ; Hunnewell v. Taber, 2 Sprague, 1 ; The America, 8 Ben. 491 ; Newall v. Royal Shipping Co., 33 W. R. 342 ; though, whether such construction be founded in a fair interpretation of what the parties meant, or a deeper public policy against which private convention is powerless, is not uni- versally settled in England and Amer- ica, as the next chapter will show. A valuation per head of cattle by way of limiting the amount in case of loss is held not to apply to damage caused by sending the animals in a ship which has not been properly cleansed and disinfected. Tattersall V. Nat. Steamship Co., 12 Q. B. D. 297. We may here add that, in general, causes of exemption enumerated under bills of lading and insurance policies are not to be extended, by inference, for the carrier's undue 454 advantage. For instance, a loss by theft or robbery, when committed by persons on board ship, or by persons coming to the vessel while not on the high seas, is not a "piracy," nor, of course, a peril of the seas. King v. Shepherd, 3 Story, 349 ; De Roths- child V. Royal Mail Steam Packet Co., 7 Ex. 734. By "thieves" is meant, presumably, thieves external to the vessel or other vehicle, and not a thievish servant, sailor, or passen- ger. Taylor v. Liverpool, &c. Steam Co., L. R. 9 Q. B. 546. Even where " theft " or "robbery " or "barratry of master and mariners " is excepted, the carrier has the onus of showing by whom the crime was committed ; and if he cannot so clear himself, the owner may recover. lb. But the New York rule here relieves where it is shown that the purser committed the theft. Spinetti v. Atlas S. S. Co., 80 N. Y. 71. Contra, § 455. Embezzlement is not a "peril of the seas." lb. ; King v. Shepherd, 3 Story, 349, Nor can "dangers of the roads " be said to include dangers from highwaymen or other human violators of the law. De Rothschild V. Royal Mail Steam Packet Co., 7 Ex. 734. See further, § 453. Finally, inasmuch as the special enumeration of perils or dangers of the seas has for its primary object that of enlarging the common-law exemption of "act of God," it will not be readily assumed that the car- rier meant thereby to exclude the privilege of setting up any of his other common-law excuses, such as act of public enemies or of the cus- tomer. Even should he give a bill of lading for delivering goods "the dan- gers of the seas only excepted," the inference is not conclusive that he undertook to be responsible for losses CHAP. IV.] COMMON CARRIERS. §146 arising from all other causes, such as the act of "public enemies." Gago V. Tirrell, 9 Allen, 299. And see Morrison v. Davis, 20 Tenn. St. 171 ; Story Bailm. § 550. The reader should study the fore- going note in connection with our next chapter. Further instances of exceptions under a bill of lading may be found in 5 Myer Federal Decisions, "Carriers," §§ 287-715. 455 § 4-i7 TPIE LAW OF BAILMENTS. [PAllT VI. CHAPTER V. USAGE, SPECIAL CONTRACT, AND LEGISLATION, AFFECTING THE COMMON CARRIER'S BAILMENT RESPONSIBILITY. § 447. Modern Qualifications of Carrier's Responsibility. — Were the common carrier's bailment responsibility depend- ent entirely upon the rules set forth in our preceding chapter, its breadth and compass might by this time have been grasped by the reader with tolerable firmness ; notwithstanding that quivering play of proximate and remote cause, of divine and human agency, of contributory negligence now on the bailee's and now on the bailor's part, which so eludes the effort to generalize broadly from precedents and the given facts of a particular case. But the Anglo-Saxon carrier, grown to man- hood with the cords about his limbs which public policy fast- ened there while he was an infant, has struggled with more purpose to shufde them off than has the law to knot them tighter; and in the course of events the force of ancient maxim has been so considerably spent, that we seem to have passed only through the outer hall, in this investigation, so as now to stand where inner chambers are seen opening one into another and stretching far away. We are in this chapter to consider how far bailment respon- sibility as a common carrier may become specially qualified, so as to impose upon one who exercises his public vocation in a given case greater, or, as far more commonly happens, less risk in performing the transportation engagement. The old priming is overlaid in these days with coats of diverse tints; and while the basis of our bailment responsibility con- tinues, as already shown, non-exemption, save for act of God, act of public enemies, and act of consignor or customer, and act of public authority, special variance in responsibility may 456 CHAP, v.] COMMON CARRIERS. § 448 be established : (I.) by usage ; (II.) by special contract; or (III.) by legislation. Under, then, these three separate heads in order, which suggest (lualifications possible in any bailment relation, we sliall discourse in the present chapter. § 448. Carrier's Responsibility affected by Usage. — I. The carrier's bailment responsibility as affected by usage. Usage, in its legal aspect, sha[)es and modities a contract only so far as some uniform, reasonable, and continuous business method of the jurisdiction may be taken to have influenced the mut- ual intent of both parties concerned in a particular transac- tion. Custom antedates judicial sanction in most instances , and not to recognize its just force as shaping the social and business intercourse of mankind would be to set the courts, whose machinery was contrived for bending individuals to the public will, into hopeless encounter with the public will itself and the irresistible forces of human society. Usage distinguishes between carriage by land and carriage by water ; and in either branch of the business permits one to confine himself to special modes of locomotion, to choose specific routes with fixed termini, and, in a measure, to put definite limits to the kinds of property or the classes of cus- tomers he purposes dealing with.^ Usage among ordinarily prudent carriers of the same class under similar circumstances will largely determine, too, what care, skill, and diligence should be employed towards avert- ing or lessening the injurious consequences of a disaster otherwise excusable.^ Usage may thus enlarge rather than diminish the scope of a carrier's duties.^ But usage cannot be set up to absolve a carrier from the ordinary duties which public policy, his general undertaking, or an express prom- ise may have bound him to ; instead of diverting, it shapes the natural course of the current; and its controlling influ- 1 Supra, § 378. And see (Cal.) » Thus, if it be the custom of an 11 Pac. R. 680. express company to seal valuable 2 Baxter v. Leland, 1 Blatchf . packages, the omission to ,nm. § 440, and notes ; Grill v. "Missouri Co., Be, 42 Ch. Div. Collier Co., L. R. 3 C. P. 470 ; Tay- 321 ; Norman v. Binnington, 25 Q. B. lor r. Liverpool Steam Co., L. R. 9 D. 475. And see (1889) [1894] 1 Q. B. 54G ; Czech v. General Steam Q. B. 373. •30 4G5 § 453 THE LAW OF BAILMENTS. [PART VI. vessels, and other specified and chief cLasses of freight trans- porters ^) to exclude, by special contract with his customer, all risk, except for one's own wilful misconduct and gross (or as some, with better regard for natural justice, have thought " ordinary ") negligence ; and, if the language of the particu- lar contract be explicit enough, and sufficiently brought home to the customer himself, to avert the personal liability of the carrier for the negligence and misconduct of his servants and those he employs. § 453. American Doctrine of Contract Qualification. — 2. Now, to examine the American doctrine on this point. In this country, the course of decision has been far more con- servative, consistent, and uniform than in England. We find no judicial eccentricity manifested in dealing with the rights of companies organized for carriage of freight that legisla- tures have felt called upon to correct; but the whole treat- ment of this special-contract question by American courts with reference to the policy of the law appears, on the whole, prudent, sensible, and worthy of public gratitude. In view, certainly, of the local independence of so many jurisdictions, and of the conflict and diversity of State interests in our modern land and water transportation, the uniform steadiness with which American courts have continued to hold common carriers to their fundamental obligations in dealing with the individual customer, despite English example and a corporate pressure no less forcible, is quite remarkable. In the New York courts, which, first of American tribunals, appear to have been gravely confronted by this special-con- tract subject, it was early declared, with emphasis, that public policy could not be warped in any such manner to the public servants' interests. Common carriers, it was held, might, agreeably to some notice brought home to a particular cus- tomer, require the nature and value of the property to be stated, and for that purpose make a special acceptance ; but they could not by special acceptance limit their common-law responsibility for what was entrusted them for transporta- ^ Supra, § 451. 466 CHAP, v.] COMMON CARRIERS. § 454 tion.^ Tliis, however, antedates the period of railways and iu- hmd carriage expansion ; and the current soon set so strongly in favor of countenancing such a fair relaxation of tlie ancient rule as the bailment parties might themselves mutually per- mit, that this extreme doctrine was afterwards abandoned.^ Shortly before the middle of this century the Supreme Court of the United States, in a well-considered case, brought up to test the question fully, pronounced the carrier's right to qualify his risks, to a fitting extent and under fitting circum- stances, an undeniable one ; ^ and this, throughout the Union, was fairly accepted as conclusive of the doctrine. § 454. The Same Subject. — Our State courts have since fairly reached without the aid of legislation these quite consistent conclusions : 1. That common carriers ma}-, by special agreement, stipulate for a less degree of responsibility than the common law imposes ; and this, apparently, to the ex- tent of making them, in effect, no longer what public policy once declared them, extraordinary bailees, who are invested with extraordinary risks, but, what they would otherwise have been, ordinary bailees for hire, bound to the exercise of honest good faith and ordinary diligence.* 2. But, on the other hand, that for the culpable negligence, fraud, or misconduct of himself or his servants, subordinates, and sub- contractors, the common carrier continues answerable in law, 1 Story Bailm. § 554, and note ; Conn. 333 ; Squire v. New York Ccn- Cole V. Goodwin, 19 Wend. 251; tral K., 98 Mass. 239 ; Sager d. Torts- Pardce V. Drew, 25 Wend. 459. And mouth R., 31 Me. 228; Hoadley v. see Gould v. Hill, 2 Hill, 623 ; Angell Northern Trans. Co., 115 Mass. 304 ; Carriers, § 221. Davidson v. Graham, 2 Ohio St. 131 ; 2 See Alexander v. Greene, 3 Hill, 4 Ohio St. 362 ; Field v. Chicago K., 9 ; reversed, 7 Hill, 533 ; Dorr v. 71 111. 458 ; Camden R. v. Baldauf, Steam Nav. Co., 4 Sandf. 136; 1 16 Penn. St. 67; Powell r. Pennsyl- Kern. 485. vania R., 32 Penn. St. 414 ; Miciii- 3 New Jersey Steam Nav. Co. v. gan Central R. v. Hale, 6 Mich. 243; Merchants' Bank, 6 How. 344 (Jan. Hooper v. Wells, 27 Cal. 11; Rice Term, 1848). v. Kansas Pacific R., 63 Mo. 314 ; * Slocuni V. Fairchild, 7 Hill, 292 ; York Co. v. Central R., 3 Wall. 107 ; Wells V. Steam Xav. Co., 4 Seld. 375; Swindler v. Hilliard, 2 Rich. 286; Kirkland i'. Dinsmore, 62 N. Y. 171 ; Roorman v. American Express Co., Camp V. Hartford Steamboat Co., 43 21 Wis. 152. 467 § 454 THE LAW OF BAILMENTS. [PART VI. notwithstanding any special stipulations to the contrary, which he may have procured from his customer ; this mean- ing, as we conceive, not gross but ordinary negligence, as in the case of other hired bailees, besides fraud or misconduct. In fact, the public carrier may become a private carrier, or mutual-benefit bailee of the ordinary sort, by special contract; and here the right to transcend the safeguards of public policy ceases.^ 3. If the carrier gives a lower rate of recompense, quicker transportation, or some other genuine consideration to the customer in return for a reduction of his legal risks, more especially should his special stipulation receive favor.^ What we may style, then, the settled American doctrine, so far as any legal doctrine may be pronounced settled, con- cerning the special-contract capacity of common carriers of goods, finds, apparently, English confirmation, not only in the judicial opinion of one so eminent as Baron Parke,^ but in a passage contained in that earliest of English text-books, "The Doctor and Student," which a century later Attorney-General Noy embodied among his legal Maxims.* Nor do the Ameri- 1 Railroad Co. v. Lockwood, 17 surer ; the other for losses by default Wall. 357, and many cases cited ; or negligence, where he is answerable Reno V. Hogan, 12 B. Men. 63 ; Union as an ordinary bailee. It would cer- Express Co. v. Graham, 26 Ohio St. tainly seem but reasonable that he 595 ; Snider v. Adams Express Co. , might, by express special contract, 63 Mo. 376 ; Mann v. Birchard, 40 restrict his liability as insurer, that Vt. 326 ; Bank of Kentucky v. Adams he might protect himself against mis- Express Co., 93 U. S. 174 ; Christen- fortune, even though public policy son V. American Express Co., 15 should require that he should not be Minn. 270. permitted to stipulate for impunity 2 Dillard v. Louisville R., 2 Lea, where the loss occurs from his own 288. default or neglect of duty." Dorr v. To quote from the opinion pro- New Jersey Steam Nav. Co. , 4 Sandf. nounced in the first New York case 136, 145 (1850), per Campbell, J. which conformed the rule of that And see Mr. Justice Field in York State to the decisive, and somewhat Co. v. Central R., 3 Wall. 107. antagonizing utterance of the Federal ^ Wyld v. Pickford, 8 M. & W. supreme bench, and thus interpreted 443, cited, supra, § 450 n. it: " A common carrier has in truth * Doct. & Stud. 2, c. 38; Noy two distinct liabilities, the one for Maxims, 92. This passage in the losses by accident or mistake, where former book runs as follows: "If he is liable, by the custom of the he" [the common carrier] "would realm or the common law, as an in- percase refuse to carry it" [the thing 468 CHAP, v.] COMMON CARRIERS. § 455 can courts distinguish among common carriers in this respect ; to individuals, partners, and companies alike, the rule is applied.^ § 455. The Same Subject ; Latest Decisions ; Rule as to Ser- vants. — In various instances, however, the negligence of the carrier and his servants is held inexcusable, whatever special conditions may have accompanied tlie bailment ; the court not clearly defining, however, whether by this was meant gross or ordinary negligence.^ And a few States hold tlie standard with a feeble grasp.'^ It may yet be desirable, tliere- fore, for our State legislatures and Congress, each within its proper sphere of jurisdiction, to aid l^y written law the some- what indefinite rule of public policy. But otherwise, tlie true standard should be deemed that of ordinary, not slight diligence, as its ultimate limit.* Our natural inference is that for the negligence and mis- conduct of his servants the carrier in this country must still answer as for his own ; ^ that he cannot by the better opinion be permitted to absolve himself from a loss which either he or they directly occasioned ; *^ and that the usual limitations delivered for carriage] " unless prom- ' See § 479, j)ost, as to the carriage ise were made unto him that he shall of animals. not be charged for no misdemeanor * The latest cases (1897) are to that should be in him, the promise this conclusion. Alabama K. v. were void, for it were against reason Thomas, 83 Ala. 343 ; Missouri R. and against good manners, and so it v. Cornwall, 70 Tex. Gil. is in all other cases like." Note the * See suj^ra, §§ 429, 430. effect of .special contract in the other " Medfield v. Boston, &c. R., 102 bailments, snpi-a, § 20. Mass. 552 ; Shriver v. Sioux City R., 1 The opinion pronounced by Mr. 24 Minn. 50G. Iliggins v. Kew Ur- Justice Bradley (1873) in Railroad leans R., 28 La. Ann. 133, contra, Co. V. Lockwood, 17 Wall. 357, is re- favors stipulations of the carrier plete with learning, and shows an against the fraud and misconduct of abundant research of the authorities his servants. And see 97 N. Y. 87. on this whole subject ; though the A bill of lading by sea cannot in disposition he manifests to inter- American jurisdiction relieve the change carriage of goods and car- carrier for loss or damage occasioned riage of passengers, as topics turning by the negligence of officers or crew, upon the same precedents, should Liverpool Steam Co. v. Phcnix Co., not escape criticism. 129 U. S. 397. As to animals see 2 Railroad Co. v. Lockwood, 17 § 479. Wall. 357. See § 479, post. 409 § 456 THE LAW OF BAILMENTS. [PART YI. of agency or service as between negligence and a positive wrong committed by the servant do not here avail. ^ § 456. American Rule ; Permitted Qualifications by Contract ; Fire ; Loss by Mobs, etc. — In pursuance of this theory of responsibility, it has become a well-settled American rule, that a common carrier may, by actual express contract to that effect, clearly made, divest himself of all responsibility for loss of his consignor's goods by any fire happening without his own fault.2 But he cannot thus secure exemption from damage or loss by a fire which the negligence or misconduct of himself or his servants occasioned.^ So, too, a special exemption may properly be secured by the carrier against losses by " break- age," " leakage," " damage by rats," and the like ; but not, again, to the extent of discharging legal liability for such a loss, when produced by the negligence of the carrier and his servants, or by his or their other plain breach of duty."* The same rule, with its reservations, will hold true of special stipulations against damage of sea or river, and losses or delays by unavoidable accident, by thieves, mobs, riots, and the like ; ^ and of special acceptances to carry only to a cer- 1 If this proposition be true, em- press Co., 93 U. S. 174 ; Steinweg v. bezzlement by the carrier's servant Erie R., 43 N. Y. 123 ; Hibler v. Mc- cannot be excused by the carrier, Cartney, 31 Ala. 501 ; Powell v. Penn. under his special contract, on the plea R., 32 Penn. St. 414 ; Erie R. v. that he was careful in employing Lockwood, 28 Ohio St. 358 ; Michi- the servant. Contrast with tliis the gan Central R. v. Hale, 6 Mich. 243 ; ordinary bailee for hire ; supra, § Empire Trans. Co. v. Wamsutta Oil 108. Co., 63 Penn. St. 14; 18 Fed. R. 2 York Co. V. Central R., 3 Wall. 318; Little Rock R. v. Talbot, 39 107 ; Germania Fire Ins. Co. v. Mem- Ark. 523 ; Louisville R. v. Brownlee, phis R., 72 N. Y. 90 ; Pemberton Co. 14 Bush, 590. So, too, where the V. New York Central R., 104 Mass. exemption was against damage by 144; Grace V. Adams, 100 Mass. 505 ; "fire or water;" and cotton was Swindler v. Hilliard, 2 Rich. 286. carelessly carried in open cars and See The Iddo Kimball, 8 Ben. 297 ; burned in consequence. New Or- Rand v. Merchants Despatch Co., 59 leans R. v. Faler, 58 Miss. 911 ; Chi- N. H. 363. Such exemption from cago R. v. Moss, 60 Miss. 1003. fire will avail the carrier, if without * Reno v. Hogan, 12 B. Monr. 63 ; his fault the goods are burned by Sager v. Portsmouth R., 31 Me. 228 ; a mob. Wertheimer v. Penn. R., 17 The Isabella, 8 Ben. 139 ; The Amer- Blatchf. 421. ica, 8 Ben. 491. 3 Bank of Kentucky v. Adams Ex- ^ gge Davidson v. Graham, 2 Ohio 470 CHAP, v.] COiMMON CARRIERS. § 457 tain point, and then forward by another conveyance.^ On the main principle tlius indicated, no general stipulation against liability for loss " from whatever cause arising " can carry the sweeping force of an absolute immunity from bail- ment responsibility .2 But the carrier may provide, by spe- cial agreement, against all accountability, save for tlie negligence or misconduct of himself and his agents ; or, in other words, cast off tlie capacity of insurer conipletel}'.^ As Avith risks from which the law, of itself, exempts the carrier, so as concerns those which are specially excused by contract, there is no liabilit}^ incurred for a loss due })roxi- mately and primarily to the excepted risk, even tliough the carrier's negligence may have remotely contributed thereto, by exposing the goods to the peril.* § 4o7. Contract for Valuation ; as to Time of presenting Claims, etc. — The carrier may state a reasonable limit to the sum for which he shall be held accountable in case of any loss ; but he cannot, where this sum is understood to be an under-valuation of the goods, thereby evade his full accountability as an ordi- nary bailee.^ Upon this point State decisions have been some- St. 131 ; 4 Ohio St. 3G2 ; S7ipra, § 446 being made, by hi.s contract, an ex- 11.; 79 Tex. 89. ceptod peril. 1 See Reed v. U. S. Exp. Co., 48 Where an express company con- N. Y. 462 ; Snider v. Adams Express tracts for liability only as " for- Cc, 63 Mo. 377 ; Field v. Chicago K., warder," this does not exclude 71 111. 458. liability for culpable negligence or 2 Mynard v. Syracuse R., 71 N. Y. misconduct in a common-carrier 180 ; New Jersey Steam Nav. Co. capacity. Hooper v. Wells, 27 Cal. V. Merchants' Bank, 6 How. 344; 11 ; Christenson r. American Express Sager u. Portsmouth K., 31 Me. 228 ; Co., 15 Minn. 270; 4 McArthur, (Minn.) 31 N. W. 519. 124. 3 See Camp v. Hartford Steam- ^ United States Express Co. v. boat Co., 43 Conn. 333. Backman, 28 Ohio St. 144 ; Belger v. * Hoadley v. Northern Trans. Co., Dinsmore, 51 N. Y. 166. And see 115 Mass. 304. See sitpra, § 438 ; Boorman v. American Express Co., Magnin v. Dinsmore, 70 N. Y. 410; 21 Wis. 152; Squire v. New York Railroad Co. v. Reeves, 10 Wall. 176. Central R., 98 Mass. 239; Railroad And see Pemberton Co. v. New York Co. v. Lockwood, 17 Wall. 357 ; South Central R., 104 Mass. 144, where his Alabama R. v. Ilcnlein, 52 Ala. 606 ; tight packing into a car which caught Westcott v. Fargo, 61 N. Y. 542 ; fire was held no conclusive denial of Magnin v. Din.smore, 62 N. Y. .35 ; the carrier's right of exemption ; fire Harvey v. Terre Haute R., 74 Mo. 538. 471 THE LAW OF BAILMENTS. [PAKT VL what at variance, but the better authority decidedly favors the carrier's right to protect himself against arbitrary fanciful and extravagant valuations even where his own negligence may have occasioned the loss,^ especially if he has given re- duced rates in consequence. The business of express companies is peculiarly liable to heavy loss in parcels of money or valuables delivered in closed packages whose contents are not apparent; and late de- cisions favor the right of such carriers to limit liability reasonably where value is not stated at the outset.^ 1 See the recent case of Hart v. Pennsylvania R., 112 U. S. 331, ap- proving tlie rule of Massachusetts, New York, Illinois, Pennsylvania, and Missouri, in this respect, and disapproving that of Ohio, Missis- sippi, Wisconsin, Kansas, and Min- nesota. Where a contract is fairly made with a railroad carrier (ob- serves Mr. Justice Blatchford with becoming caution), agreeing on a valuation of the property carried, based on the condition that the car- rier assumes liability only to the extent of the agreed valuation, the contract will be upheld, even though loss should occur by the carrier's negligence, as a proper and lawful mode of securing a due proportion between the amount for which the carrier is responsible, and the freight he receives, and of protecting him- self against extravagant and fanciful valuations. In this case, horses were transported at a fair assumed value of $ 200 each ; and because one was killed by the carrier's fault the ship- per claimed to recover $15,000 as his real worth. This doctrine, thus care- fully announced, must not be ex- tended so as to conflict with 17 Wall. 357. 52 Fed. 903. This same principle was lately applied (without reference to the above case) in Graves v. Lake Shore R., 137 Mass. 33, where wine was 472 transported at an agreed valuation of $20 per barrel. And see 144 Mass. 284 ; Rosenfeld v. Peoria R., 103 Ind. 121 ; Zimmer v. N. Y. Cen- tral R., 137 N. Y. 400 ; 61 Conn. 531 ; Alair v. Northern R., 53 Minn. IGO ; 91 Ala. 340; Duntley v. Boston R., 60 N. H. 263. Contra, 55 Wis. 713 ; 30 Kan. 645 ; 60 Miss. 1017 ; 120 Ind. 73 ; 71 Ala. 611 ; 31 Minn. 85 ; 134 Penn. St. 310 ; 67 Miss. 609 ; 133 111. 96. So is it as to stipulations which restrain liability to the invoice value of goods carried by bill of lading. 18 Fed. R. 459. And see § 473 as to option given to shipper. The limitation contained in an express receipt of $50 for loss or damage " of any box, package, or thing" unless the true value was in- serted, permits the shipper of three packages to recover at least $50 for each package. 93 111. 523. Such limitations are to be fairly construed. 63 Wis. 93. 2 See express receipts, limiting value to $50 unless shipper states actual value when asked by the car- rier. The customer, though not com- jjellable to state value or contents, increases his own risk by his silence. Ballou V. Earle, 17 R. I. 441 ; Durgin V. Am. Express Co., 66 N. H. 277; Pacific Express Co. v. Foley, 46 Kan. 457 (1891) ; 96 Fed. 574 ; Smith v. Am. Express Co., Mich. (1896). CHAP, v.] COMMON CARRIERS. §458 Reasonable stipulations as to tlie time and metliod of pre- senting one's claim for loss or damage, against the carrier, may also be made so as to bind the customer ;i but to utterly exclude thereby the consignee's fair o[)portunity of ins[)ecting the property upon its arrival, ascertaining the extent of dam- age, if any, and so making his claim known to the carrier, or his proper representative, is not allowable.^ All sucli stipu- lations ought in fact to be reasonable and consistent with sound policy as applied to the particular case ; and every such limitation sliould be reasonal)ly interpreted.'' § 458. Miscellaneous Qualifications by Special Contract. — - A special contract may give the carrier an option as between modes of transportation.^ Or a right to jettison cattle sliipped on deck, should the safety of the ship require it.^ Or the ben- Provided the carrier's negligence be not gross, wanton, or wilful. Zouch V. Chesapeake R., 36 W. Va. 624 ; 46 Kan. 457, 470. 1 Express Co. v. Caldwell, 21 Wall. 264, sustains an agreement that the company shall not he held liahle for loss of property unless claim be pre- sented within ninety daj^s after its delivery to the company; the transit occupying only about a day. Contra, Soutiiern Express Co. v. Caperton, 44 Ala. 101, here commented upon. Had the transit occupied ninety days, or nearly, such limitation would not, semble, have been available. And see Southern Express Co. v. Hunni- cutt, 54 Miss. 566 ; United States Express Co. v. Harris, 51 Ind. 127 ; Westcott V. Fargo, 61 N. Y. 542. See also (Tenn.) 1 S. W. 102. 2 Rice V. Kan.sas Pacific R., 63 Mo. 314 ; Adams Express Co. v. Reagan, 29 Ind. 21 ; Capehart v. Seaboard R., 77 N. C. 355 ; Porter v. Southern Express Co., 4 S. C. n. s. 135 ; Mem- phis R. V. Holloway, 9 Baxt. 188. The foregoing is held to be a limita- tion rather than a condition, which must be specially pleaded. Westcott V. Fargo, supra. * Jennings v. Grand Trunk R., 127 N. Y. 4.38; 68 Mo. 268. See also 159 111. 53. Claim under oath of damage to be made within five days after delivery pronounced valid in Black V. Wabash R., Ill 111. 351; 153 Penn. St. 302. Limit of thirty days is reasonable. 16 Lea, 472. As to thirty days after loss occurs, see 53 Minn. 183. As to three months' after loss, see 8 C. C. A. 341. Thirty-six hours might be reasonable in some cases ; but the peculiar cir- cumstances might make it unreason- able. 78 Tex. 372. That a claim must be presented before a consignee could in fact ascertain, would be un- reasonable ; and the question of rea- sonableness on the facts is sometimes left to a jury. But the carrier's ex- posure to fraudulent claims, if no reasonable limit is placed after he delivers over, is to be considered in his favor. 47 Kan. 753. * And if so, the option must be exercised with fair regard to the owner's interest. Blitz v. Uuion S. S. Co., 51 Mich. 558. * The ICnrique, 5 Hughes, 275. 473 § 459 THE LAW OF BAILMENTS. [PART VI. efit, in case of loss, of any insurance taken out by the customer.^ Or express exemption before goods are in deliverable condition for him to receive.^ Or the right to ship "at convenience ; " or " without liability for delay ; " not meaning, however, with wholly unreasonable delay .^ For stipulations like these are not deemed unreasonable or obnoxious to the public inter- ests, nor should they be so interpreted. But an absolute re- lease by the shipper for all prospective loss or damage is void.* And so is any stated exemption while loading or un- loading in any such sense as to excuse improper facilities or improper handling.^ For negligence is never excusable on the carrier's part.^ § 459. Carrier's Enlargement of Risk by Special Contract. — The carrier's intention to enlarge, by special contract, his legal risk as insurer, so as to make his responsibility absolute, or to indemnify against an excepted peril, will, of course, be respected whenever this is manifest ; but a contract of this sort is so out of course and so disadvantageous to himself, that, unless some special consideration appear for such extreme indulgence to a particular customer, a binding agreement to this effect is not inferable from the carrier's bare promise to do more than the law demands.'' Even a special contract on the carrier's part to carry " safely and securely " will not readily be construed into a more onerous undertaking tlian to 1 Rintoul V. N. y. Central R., 17 ^ jsforfolk R. v. Harmon, 91 Va. Fed. R. 905 ; British Ins. Co. v. Gulf 601 ; 92 Va. 495. And see 78 Tex. R., 63 Tex. 475. See 129 U. S. 128, 372 ; 87 Tex. 322 ; 61 Conn. 531. 397. But not so that the customer ^gee 91 Tenn. 177, as to a defec- must rely upon such insurance re- tive car accepted by shipper; 167 gardless of the carrier's fault. 166 Penn. St. 166 ; 68 Miss. 351. Penn. St. 184. ^ Fenwick v. Schmalz, L. R. 3 C. 2 E.g. as to cotton compress. 90 P. 313 ; Railroad Co. v. Reeves, 10 Tenn. 306. Wall. 176. See also Nelson v. Wood- 8 Branch v. Wilmington R., 88 N. ruff, 1 Black, 156 ; Tarboxu. Eastern C. 573 ; Jennings v. Grand Trunk R., Steamboat Co., 50 Me. 339 ; Knowles 127 N. Y. 438. -y. Dabney, 105 Mass. 437 ; Tierney v. See, further, Green v. Boston R., New York Central R., 17 N. Y. Supr, 128 Mass. 221 ; Overland Mail Co. v. 569 ; The Harriman, 9 Wall. 161 ; Carroll, 7 Col. 43. Harmony v. Bingham, 2 Kern. 99. 4 40 Fed. 731. 474 CHAP, v.] COMMON CARRIERS. § 460 perform his general duty as tliu law and public policy require.^ Nor is his qualified engagement to carry by a particular train or boat on a certain day to be presumed an absolute one, regardless of perils and accidents which he cannot control .2 § 460. How Special Contract with Carrier ia made. — We next ask in what maimer a special contract which seeks to qualify the carrier's common-law liability may be entered into. Were it customary for modern carriers to go strictly by pub- lic policy in their charges, and at the same time to ask each shipper, as a personal favor, to sign off deliberately in advance his legal rights, special carriage contracts would be few, and litigation under this head quite infrequent. But the practice of this busy century shows the bailor's real position by no means so advantageous in such transactions as ancient wis- dom designed it should be. Ship-owners, stage-coach pro- prietors, transporters by steam, expresses, common carriers in general, more especially those with great capital, push un- ceasingly for that practical immunity which the common law denied them ; and, as one important means to this end, most of them seek to establish, wherever they can, a constructive assent on the part of customers to special terms which they alone have put forward ; and so gain, by indirection, conces- sions that by open proposal, while affording free opportunity for assent or rejection, they could not hope to procure. The reports bear ample record of the unflagging persever- ance with which the common carrier seeks to make decreased responsibility to the public the price of affording to the public increased facilities of transportation ; of his quick-wittedness in coaxing, entrapping, even coercing his customers into ac- 1 Shaw V. York R., 13 Q. B. 347. Stewart v. Despatch Co., 47 Iowa, But see Story Bailm. § 33 ; Coggs v. 229. Beruard, 2 Ld. Rayra.909, 911 ; Ket- 2 gge Hawes v. South Eastern R., tie V. Bromsall, Willes, 118. A carrier 54 L. J. Q. B. 174, where the engage- ■who agree.s to carry through witliout ment to carry fi.sh by a special train change of cars is bound accordingly, and boat was "wind, weather, and and endangers his special qualitica- tide permitting," and bad weather tions of risk if he does otherwise, made such transit impossible. 475 § 461 THE LAW OF BAILMENTS. [PART VI. complLsliing the furtherance of his own ends ; and of his con- stant disposition to promulgate rules concerning freight, for whose successful enforcement he calculates upon the natural disposition of men to j)ut up with a small exaction from those whose service is indispensable, rather than take the initiative in carrying on a petty litigation and provoking a dangerous enmity for the sake of asserting a principle. § 4G1. The Same Subject ; Former Practice of giving Notices. — Of all special carriage contracts, mutual assent is a necessary ingredient, certainly in theory. But formal stipulations of this kind, proposed and duly assented to, come rarely before our courts ; but it is the indirect agreement, the consignor's assent by inference to his carrier's proposition, which they have chiefly to pass upon. It became common in the latter part of the eighteenth century for inland carriers to post and dis- tribute notices which announced express conditions and limita- tions of responsibility on their part ; so that whosoever might employ the transportation service without objection was chargeable, as the carrier could claim, with knowledge of these express conditions, and a tacit consent to abide by them. In' Great Britain the practice of giving notice had prevailed long before the courts gave decision upon the validity of making such limitations ; and by Lord Ellenborough's time, and at the opening of this century, the general right of the carrier to thus limit his risks became clearly conceded in Westminster Hall.^ The courts of our foremost American States, confining themselves to a recognition of the common law as interpreted prior to the separation of the American Colonies from the mother country, were long reluctant to concede so loose a practice, but they yielded somewhat to pressure in the same direction .2 1 Nicholson v. Willan, 5 East, 507 Home, 8 Taunt. 144. And see Story (1804). It is said tliat the doctrine Bailm. §§ 551, 553. of notice was not known to the courts ^ Hollister v. Nowlen, 19 Wend, prior to the case of Forward v. Pit- 234, where the English cases are re- tard, 1 T. II. 27 (i.e. about the year viewed; Cole v. Goodwin, 19 Wend. 1785). Burrough, J., in Smith v. 251; Angell Carriers, §232 et seq. ; Yi&hv. Chapman, 2 Kelly (Ga.), 349; 476 CHAP, v.] COEVION CARRIERS. § 461 We are to note a fluctuation of judicial opinion, not, how- ever, by the same wave line in England as in America ; nor, indeed, so as to keep different quarters of the United States in full accord on the general doctrine. Best, C. J., one of the ablest English defenders of the carrier's right of express limitation by notice, has hiid stress on the immense risks which attend the modern business, whereby the loss of a single package might ruin tlie bailee, as a circumstance to justify him in giving general warning that, unless S[)ecially compensated for his care and trouble, he will not hold him- self liable beyond a certain sum.^ But the English courts did not stop here ; for, as we have seen, they came from per- mitting his limitation of value to granting him the right to procure unjust and unreasonable contract exemptions ;2 and when the right of casting off the public responsibilities was once found to depend, in actual practice, not upon the clear and indisputable permission of the customer himself, but upon the issue or publication by the carrier of some card, circular, poster, or advertisement, to which no more than one's tacit assent was expected in return, the situation of the public was seen to be intolerable.^ Hence, the English Rail- way and Canal Traffic Act of 1854 (17 & 18 Vict. c. 31) required that the conditions "just and reasonable" should be embodied in a sjDecial contract in writing, signed by the owner or sender of the goods.* Jones V. Voorhees, 10 Ohio, 145 ; At- cases reviewed therein by Blackburn, ■wood r. Reliance Trans. Co., 9 Watts, J., concerning carriers' notices pre- 87. But see Dwight v. Brewster, vious to 1830. The extravagance of 1 Pick. 50 ; Beckman v. Shouse, 5 the P'ngli.sh cases is strikingly pre- Rawle, 179 ; Bingham v. Rogers, 6 sented in 1 Bell Com. 382, which An- W. & S. 495. gell Carriers, § 234, quotes. It was 1 Riley v. Home, 5 Bing. 217. believed by many that the Carriers' And .see Story Bailm. § 550. Act of 1830 (11 Geo. IV. & 1 Will. 2 Supra, § 450. IV. c. 08) would control in some 8 See Having v. Todd, 1 Stark. 72, measure the effect of such notices ; 79; Leeson v. Holt, 1 Stark. 186; see Story Bailm, §554; but experi- Clark V. Gray, 4 Esp. 177 ; Walker ence proved otherwise. V. York & North Midland R., 2 E. & * See supra, § 451 ; Peck r. North B. 750 ; Peek t). North Staffordshire Staffordshire R., 10 II. L. 473; R., 10 H. L. 473, 494, and earlier Doolan v. Midland R., 2 App. Cas. 477 § 402 THE LAW OP BATLMEXTS. [PAET VI. § 4G2. The Same Subject; Present English Rule. — Nothing better shows how completely the English carrier companies had previously outgeneralled the public in the course of half a century's warfare than a prominent case, decided shortly before the above act was passed, and which doubtless influ- enced its passage. A railway company distributed printed circulars among fish-dealers, announcing that it would trans- port fish only upon condition of its absolute exemption from carrier liability. The fish-dealers angrily tore up the notices ; and one recipient of a circular sent his fish through as though in defiance of such terms. But the courts held (the carrier company's legal right to stipulate for such absolute exemp- tion having been previously adjudicated in his favor) that the customer's intended dissent could not avail; for if, after being served with the notice, he insisted on sending his fish, he must be taken as bound by the terms of the notice.^ It was a relief to the public when the Railway and Canal Traffic Act of 1854 cut away this pretence of a mutual agreement.^ Consistency still keeps the English courts swerved to the carrier's side in the cases of public notice to which legislation of the above character does not extend. And a customer who has been served with a general notice that the carriage will be upon conditions contained in other documents has been held chargeable accordingly ; so that the means of ascertain- ing a certain condition may sometimes bind the consignor to that condition, without his actual knowledge thereof.^ And 792. Though such common carriers ville, 21 L. J. Q. B. 319. This signed had, to a large extent, sought exemp- memorandum had, of course, the tion by giving bills of lading, tickets, effect of a special contract, receipts, and the like, to the sender ^ "Walker v. York & North Midland or owner, or by means of some more R. , 2 E. & B. 750. general notice, and they had asked ^ g^e § 461. The policy of this no -writing or token of assent in re- act has, as we have already observed, turn, the fairer method was some- been since extended to steamships, times employed of procuring the etc. Supra, § 452 ; Act 31 & 32 Vict, sender's signature to a memorandum c. 119, § 16 (1868). or ticket stating the terms. See, ^ Stewart v. London H., 3 H. & C. €.(/., Austin V. Manchester R., 16 Q. 1.35. See also Phillips v. Edwards, 3 B. 600 ; Great Northern R, v. Mor- H. & N. 813. 478 CHAP, v.] COMMON CARRIERS. §463 yet the principle of mutual assent is so far upheld that, wliere one who could not see to read was induced to sign a special contract under the misrepresentation that his signature was a mere matter of form and of no consequence, the special con- tract was pronounced invalid. • § 463. American Rule ; General Notices not favored ; Mutual Assent. — The better nerve of our American tribunals, in keeping the curb rein steady which holds the carrier to his public obligations, has rendered judicial laxity concerning methods of special contract much less injurious. Nor even in this latter respect, closely as many States have approached the English doctrine of notice, are mere public notices, as by the carrier's general advertisement or posters, favored in this country to the extent of enabling the public transporter to limit his legal responsiljility by such means alone. Even a public notice brought directly to the knowledge of the owner or sender of the goods has, in several cases before the appel- * Simons v. Great "Western R., 2 C. B. X. s. G20 ; Gibbon v. Paynton, 4 Burr. 2302 ; Kerr v. Willan, 2 Stark. 63 ; Story Bailm. § 558. And see, as to distributed handbills, Palmer v. Grand Junction R., 4 M. & W. 749. Where two or more inconsistent notices were given, the carrier was deemed bound by that least benefi- cial to himself. Munn v. Baker, 2 Stark. 255 ; Story Bailm. § 558. But see Phillips v. Edwards, 3 H. & N. 813. And he could waive his notice in favor of any customer he mijcht select. Story Bailm. §§ 558, 572 ; Marsh v. Ilorne, 6 B. & C. 322 ; Helsby v. Hears, 5 B. & C. 504. This doctrine of notice bears largely upon the rule of mutual as- sent, where bills of lading, receipts, tickets, and other memoranda con- taining written or printed qualifica- tions of liability are habitually given by the carrier to his several cus- tomers. Judge Story has set forth at much length the English doctrine of no- tices, as expounded in the early part of the present century. Story Bailm. §§ 653-573. Ills lucid statements are worthy of the student's careful peru- sal, though, ere this, the subject has lost its prestige. The courts appear to have considered that the carrier's mere advertisement of the terms of his responsibility could not take effect unless brought home in some way to the customer's knowledge. But as this knowledge might be constructive as well as direct, much uncertainty existed in practice. A foundation for presuming such knowledge might be laid, as by showing that the notice was printed in a newspaper which the party habitually read. Leeson V. Holt, 1 Stark. 18G ; Story Bailm. §§ 557, 558. But a notice posted at the termini could not of itself affect persons who delivered goods at in- termediate points. Gouger v. Jolly, Holt, X. P. 317 ; Clayton v. Hunt, 3 Camp. 27. And in general, posting a public notice at the carrier's place of business was a fact inconclusive. 479 § 464 THE LAW OF BAILMENTS. [PART VI. late courts of different States, been treated as ineffectual.^ And our general rule is to require, at all events, some evi- dence, aliunde, of the owner's assent to the qualified liability which the carrier thereby seeks to impose upoii him.^ But in America, as in England, saving legislative restric- tions on this point, the common carrier may qualify his bail- ment responsibility within such limits as may be lawful, by any express contract, oral or written.^ If the owner's or sender's assent appear in writing, all the better ; yet this is by no means indispensable to the validity of that stipulated exemption which bears the genuine stamp of mutual assent. The special contract should not be with one legally disquali- fied ; and if with a consigning party who is blind, deaf, igno- rant of writing, or unacquainted with the language, the carrier must take good heed not to impose unfairly upon his understanding.* In some States railways, and perhaps other classes of carriers, are compelled, as in England, to make ex- press contracts with the shij^per.^ And where fraud or mis- take is absent, the customer who signs a written contract for transporting his goods is, on general principle, bound by its terms, and cannot set up oral stipulations to vary or defeat it.^ § 464. Mutual Assent in Bills of Lading and Similar Docu- ments. — The English practice of giving public notice of the intent to transport under a qualified liability appears to have 1 Kimball v. Rutland & Burling- ^ New Jersey Steam Nav. Co. v. ton E., 26 Vt. 247; Jones v. Voor- Merchants' Bank, 6 How. 344 ; Mich- hees, 10 Ohio, 145. igan Central R. v. Hale, 6 Mich. 2 lb. ; Dorr v. New Jersey Steam 243. Nav. Co., 1 Kern. 485; Blossom v. * Camden R. v. Baldauf, 16 Penn. Dodd, 43 N. Y. 264 ; Bigelow, C. J., St. 67. And see, for English author- in Judson V. Western R., 6 Allen, ity to the same purport, Simons v. 486, 490; Michigan Central R. v. Great Western R., 2 C. B. n. s. 620. Hale, 6 Mich. 243 ; Davidson v. Gra- ^ Georgia R. v. Gann, 68 Ga. ham, 2 Ohio St. 131 ; Moses v. Boston 350. & Maine R., 4 Fost. 71 ; New Jersey 6 gt. Louis R. v. Cleary, 77 Mo. Steam Nav. Co. v. Merchants' Bank, 634. That he signed hurriedly, with- 6 How. 344 ; Cantling v. Hannibal out reading carefully, is no excuse. R., 54 Mo. 385 ; 49 N. H. 20 ; 17 R. I. Johnstone v. Richmond R., 39 S. C. 441. 55 ; St. Louis R. v. Weakly, 50 Ark, 480 CHAP, v.] COMMON CARRIERS. § 464 originated with land-canicis, who always found better oppor- tunities to pursue it than carriers by water. The latter class early adopted a more positive and appropriate means of cur- tailing their public risks, by stating the special exceptions they meant to claim in the bill of hiding, a document univer- sally recognized by connuercial countries in shipments of personal property by w^ater, and given in each individual transaction. This bill of lading, wliich has usually been made out in triplicate for the convenience of all parties con- cerned, serves as the written evidence of a contract with the particular customer for carr3dng his goods by sea for a certain compensation called f leight ; it is signed by the cap- tain, master, or other agent of the vessel ; it specifies the receipt of sjiecified chattels ; and, in effect, promises their transportation on the terms therein expressed, followed by their delivery at the place appointed to the consignee or his assigns, he or they paying freight for the same. It is assign- able by indorsement, so as to afford a ready means of trans- ferring property and possessory title to the goods represented; and, as its verbal tenor shows, this instrument partakes of two distinct characters, — that of a written contract, and that of a written receipt.^ Now, the insertion of special conditions of carriage in documents like these was natural enough, from the moment it became likely that a sea-carrier's special terms or special acceptance would bind his customer by indirection at all. And, beginning with that very moderate and reasonable exception of "perils of the seas," ship-owners came gradually to multipl3'ing their special conditions of ex- emption, until, at the present day, bills of lading, unlike those 397 ; Western 11. v. Harwell, 'Jl Ala. ware, 14 Wall. 579, GOO, Mr. Justice 840. Clifford ob.servcs : " Beyond all doubt, 1 See Abbott Shipp. 321-323 ; a bill of lading, in the usual form, is Mason v. Lickbarrow, 1 II. B\. 357, a receipt for the quantity of goods per Lord Loughborough, 2 T. R. shipped, and a promise to transport 607 ; 1 Pars. Shipping, 184 et scq. ; and deliver the same as tiierein stip- Sears v. Wingate, 3 Allen, 103 ; The ulated." And see post, §§ 476- Keokuk, 9 Wall. 617; Pollard v. 477. Vinton, 15 Otto, 7. In The Dela- 31 481 § 465 THE LAW OF BAILMENTS. [PAET VI. in common use when Abbott and Story wrote their respective text-books,^ call frequently for judicial interpretation.^ That silently receiving a bill of lading for carriage by ocean or in our inland waters imports an assent, on the shipper's part, to be bound by any and all special and permissible qualifications which may prove to be therein contained, is not, as a rule, to be denied.^ And since general notices have fallen into disrepute, railways and other inland carriers are latterly drawn into the extensive use of corresponding instru- ments for similar purposes of carriage and carriage exemp- tion. Conditions inserted in documents like these are more readily brought home to the knowledge of consignors and owners than those promulgated by general notice, and hence obtain the judicial sanction more readily ; while, on the other hand, the carrier keeps the advantage he has so much craved, of securing the customer's assent by indirection or his mere non-objection, if only the courts will extend to inland traffic the time-honored favor accorded to bills of lading where the transportation is by water. § 465. Indirect Mutual Assent in Modern Cases; the Deci- sions reconciled. — This widely prevalent use, in modern trans- portation, of inland bills of lading, receipts and tickets, writ- ten or printed, which the carrier alone issues, so that the consignor need sign nothing and say nothing, but find from inspection, if he cares to read the document, that the other party intends to perform the transportation upon other than the common-law terms, and take the onus of offering his inop- portune objections at the last moment, lays open a field of legal controversy, originating in misunderstandings and an uncertain mutuality. Here the carrier has commonly this 1 Judge Story reiterates the asser- 2 gee supra, § 446 and n., where tion contained in Abbott on Ship- tlae leading exceptions under our ping, pt. 3, c. 4, § 1, 5th ed., that the modern bills of lading are set forth terms of the exception in the modern at length. bill of lading in England had given ^ i\,^ ^^d see Story Bailm. § 550 ; rise to but one judicial decision. The Delaware, per Mr. Justice Clif- Story Bailm. § 552. ford, 14 Wall. 579, 602 ; Davis v. Central Vermont R., m Vt. 290. 482 CHAT*, v.] COMMON CARREERS. § 466 advantage of an altercation with his customer, that he may keep his lien alive upon the goods in dispute, if they be not utterly lost or destroyed, refer his customer to the document of receipt, refuse to surrender on other terms, and put the bur- den of litigation and of disproving a contract upon the party of the two who can less afford to sue, and who is kept out of possession. But tlie main question which engrosses the courts in such issues must be whether, under all the circumstances, the sender should be taken to have understood the carrier's notice that he means to transport under a specially qualified respon- sibility, and to have assented by implication accordingly. The decisions under this head appear somewhat confusing; yet seven separate elements for consideration may help to recon- cile them ; and these we proceed to point out. They are briefly these : (1) the character of the document given into the sender's hands ; (2) the carrier's fair effort to make his spe- cial terms plain ; (3) his seasonableness in announcing these special terms ; (4) whether the special terms are brought home to the proper party ; (5) honesty and fair dealing on the sender's part; (G) waiver or non-waiver of the terms specially announced ; (7) authority from the carrier. § 406. Character of Document ; Bill of Lading ; "Way-Bill ; Receipt, etc. — 1. The character of the document given into the sender's hands. Bills of lading, for carriage transit by sea or an extensive journey by inland waters, are of such solemnity, both as the means of transferring title, and as the long-established method of evincing the true terms of transportation, that one can hardly be justified in receiving such an instrument without reading its terms.^ In a less degree the more modern railway bills of lading or way- bills for freight acquire a similar legal importance, especially for extensive distances ; and these are sometimes iiv like manner pledged for advances or transferred outriglit.- But 1 Supra, § 464. Central 11., 30 Iowa, 181 ; Morrison 2 See Farmers', &c. Bank v. Erie v. IMiillip.s Co., 44 Wis. 405 ; Wichita R., 72 N. Y. 188 ; Mulligan r. Illinois Savings Bank v. Atchi.son R., 20 483 § 466 THE LAAV OF BAILMENTS. [part VI. the mere receipts of express or other miscellaneous land-car- riers are of little consequence, usually, other than to evince, perhaps, an acceptance by the carrier; and, being mainly for the consignor's temporary convenience, and as a voucher which need not be presented at the terminus, and cannot be negotiated as a document of title,^ they are seldom read or carefully preserved. And yet, here we should add, be the inland conveyance by express or as railway freight, the importance of the consignment, and the distance and time of transit, has much to do with assimilating such documents to those which symbolize a carriage by sea ; nor can a uniform local custom be disregarded in any case.^ As to tickets which are used in passenger travel, these, for the most part, are hurriedly bought, and by those who must hurriedly get their baggage taken in charge, and find their places. The passenger's main concern as to the ticket is that Kan. 519 ; Fairfax v. N. Y. Central R., 73 N. Y. 167 ; Louisville R. v. Brownlee, 14 Bush, 690 ; O'Bryan v. Kinney, 74 Mo. 125. 1 Railroad Co. v. Manuf. Co., 16 Wall. 318, 329, per Mr. Justice Davis ; Strohn v. Detroit R., 21 Wis. 554 ; Belger v. Dinsmore, 51 N. Y. 166 ; Southern Express Co. v. Newby, 36 Ga. 635 ; Adams Express Co. v. Stettaners, 61 111. 184 ; 55 111. 140 ; Boscowitz V. Adams Express Co., 93 111. 523 ; Buckland v. Adams Express Co., 97 Mass. 124, But see Grace v. Adams, 100 Mass. 505, distinguish- ing former cases decided in that State ; Boorman v. American Ex- press Co., 21 Wis. 152 ; Kirkland v. Dinsmore, 62 N. Y. 171 ; Snider v. Adams Express Co., 63 Mo. 376; Hadd V. U. S. Express Co., 52 Vt. 335. The tendency in many States is evidently to place express receipts containing conditions on the same footing as other inland bills of lading. See Grace v. Adams, and other cases, 484 supra. But such cases lay stress upon the circumstance that the in- strument is not given as a mere receipt ; but, according to the local usage, as an inland, or even negoti- able, bill of lading. Hence their as- sumption that the delivery of the document will sufficiently charge the consignor with knowledge of any proper terms of transportation spe- cially stated therein. See Madan v. Sherard, 73 N. Y. 329. There is, however, some confusion on this point, so far as presumptions of assent are concerned. Eor, in some States, the rule is broadly stated, that the shipper's assent to limitations contained in a railroad or express bill of lading is not necessa- rily presumed from receiving it ; but the question of actual assent is for the jury to determine, Illinois Cen- tral R. V. Frankenberg, 54 111. 88 ; Adams Express Co. v. Stettaners, 61 111. 184 ; 86 111. 71 ; 89 111. 43, 152 ; 90 111. 455 ; 160 111. 648. 2 lb. CHAP, v.] COMMON CARRIERS. §467 the document shall take him personally to a certain destina- tion ; and neither such things nor baggage-checks or tokens, if inscribed with special restrictions for baggage liability, would readily attract a traveller's attention before he had actually bailed his baggage and started on the journey.^ § 4G7. The Same Subject. — Thus is our descent from a doc- ument which naturally invites a bailor's scrutiny to that which rather seems to repel it. And while, in the absence of fraud, a consignor must commonly be held bound to express qualifi- cations, not inadmissible of themselves, who receives without objection, before bailing his goods, a bill of lading, which, de- scribing them, stipulates clearly in such respects, even where he has not, in fact, read the document,^ the same doctrine does not, necessaril}^, hold true of receiving the lesser docu- ments of carriage ; ^ though circumstances might render him a party to the carrier's terms, as undoubtedly would a direct assent to those terms on his part.* 1 Blossom V. Dodd, 43 N. Y. 264 ; Rawson v. Penn. R., 48 N. Y. 212 ; Woodruff V. Sherrard, IG N. Y. Supr. 322 ; Malone v. Boston & Worcester R., 12 Gray, 388 ; Vernerv. Sweitzer, 32 Penn. St. 208. 2 Germania Fire Ins. Co. v. Mem- phis R., 72 N. Y. 90, and cases cited therein ; Grace v. Adams, 100 Mass. 505 ; Morrison v. Phillips Construc- tion Co., 44 Wis. 405; Hoadlcy v. Northern Trans. Co., 115 Mass. 304. And see Lewis v. Great Western R., 5 H. & N. 867. 8 See Blcssom v. Dodd, 43 N. Y. 264 ; Southern Express Co. v. Newby, 36 Ga. 635 ; Adams Express Co. v. Haynes, 42 111. 80 ; 90 111. 455. And see supra, § 466. But, doubtless, the acceptance of a mere receipt or ticket with seasonable knowledge of its terms will bind the consignor, if the special qualifications be legally admissible. Adams Express Co. v. Haynes, supra ; Morrison v. Phillips Construction Co., 44 Wis. 405. In Ballon V. Earle, 17 R. 1. 441, and other cases (§ 457), the shipper's knowl- edge of limitations in an express re- ceipt was inferable from his familiar use of such blanks. Cf. 95 Ga. 451, Some ca.ses incline to excuse the consignor from reading over his re- ceipt or other document of the lesser sort, where he may well have pre- sumed that it would not differ in terms from those previously under- stood. Buckland v. Adams Express Co., 97 Mass. 124 ; Perry v. Thomp- son, 98 Mass. 249 ; Strohn v. Detroit R., 21 Wis. 554 ; Missouri Pacific R. r. Beeson, 30 Kan. 298. Such cases might come within the scope of the text in § 468. The contract embodied in such receipts or bills of lading is to be gathered from the whole instrument, and not from detached clauses. Rob- inson V. Merchants' Desp. Co., 45 Iowa, 470. ♦ As to the nature and character- istics of bills of lading, see further, § 475, post. 485 I 468 THE LAW OB^ BAILMENTS. [PAKT VI. § 468. Carrier's Fairness in making Special Terms plain. — 2. Whether the carrier has fairly sought to make plain his special terms to his customer, or rather to bind the customer while keeping those terms from attracting his attention. Written or printed conditions which are to the consignor's disadvantage should, in general, be legibly expressed, in order to avail the carrier, whose conduct ought, substantially, to in- vite mental action upon his proposal, and not steal from the consignor a heedless acquiescence. Hence those devices, not uncommonly employed with a purpose, but whose pur- pose is not a material issue, which tend usually to trick the sender out of his rights, and at all events set up equities against the carrier, — such, for instance, as printing the gen- eral objects of the carriage in large letters, and the special restrictions in small ; stamping obscure words on, obliterat- ing, or covering over, essential phrases ; or inserting qualifi- cations out of their natural place, and where they would not naturally attract attention, — are, by our best decisions, strongly discountenanced and disapproved.^ And so, too, for similar reasons, our American current of authority sets against sustaining special conditions, which the carrier has printed, written, or stamped upon the back of his bills of lading, re- ceipts, or tickets ; requiring affirmative proof, in such a case, that the sender's attention was so called to the same, and so seasonably, that his assent, as bailor, suitably extended to both sides of the instrument ; ^ which appears to be likewise, though less clearly, the English rule.^ Fraudulent intent on 1 Brittan v. Baruaby, 21 How. 527 ; of the ticket or document refers the Perry v. Thompson, 98 Mass. 249 ; reader to the back. Malone v. Boston Verner v. Sweitzer, 32 Penn. St. & Worcester R., 12 Gray, 388 ; Rail- 208; Blossom v. Dodd, 43 N. Y. road Co. ?;. Mauuf. Co., swpm. 264 ; Nevlns v. Bay State Steamboat ^ Henderson v. Stevenson, L. R. Co., 4 Bosw. 225 ; Jones V. Voorhees, 2 H. L. Sc. 470; Parker v. South- 10 Ohio, 145 ; Madan v. Sherard, 73 Eastern R., 1 C. P. D. 618 ; s. c, on N. Y. 329. appeal, 2 C. P. D. 416. But see 2 Railroad Co. v. Manuf. Co., 16 Harris v. Great Western R., 1 Q. B. Wall. 318; Brown v. Eastern R., 11 D. 515, where a passenger was charged Cush.97 ; Newell v. Smith,49 Vt.255 ; with notice of conditions concerning Ayres v. Western R., 14 Blatchf. 9. baggage, which were on the back of And this, notwithstanding the face his ticket. 486 CHAr. v.] COALMON CAlilllERS. § 409 his part is not essential here, in order that the carrier be de- barred from asserting the stipuhition ; but the fact that his course has put the consignor, in the matter of giving indirect assent, at a decided disadvantage. Simihxr objections may apply in other instances wliere tlie carrier fails to make his special terms fairly understood by his customer: where, for instance, he gives his document knowingly to an illiterate foreigner, ignorant of the lan- guage, without offering to translate it correctly for him ; • or, without any explanation, hands it over to his customer at times and in places where it cannot possibly be easily read in season for the consignor to announce his dissent ;2 or uses vague and contradictory terms, or employs strange stamps, initials, or abbreviations, which the customer failed naturally enough to understand.^ § 469. Carrier's Seasonableness in announcing Special Terms. — 3. Seasonableness in the announcement of the special terms. Under the fundamental rule of contracts, that mut- ual intent upon which the carriage is actually undertaken must prevail as the true bailment contract, unless both parties are shown to have agreed to a later cliange. And where carrier and consignor are silent as to terms, and neither custom nor modern statute controls the case, the carriage must be taken to have been upon the terms pre- scribed by ancient policy. The bill of lading or other docu- ment which puts forth or proposes special conditions should come, then, to the sender, or he must be made otherwise aware of such conditions, in time for him to assent or object to the terms, intrust the goods to the carrier or withhold them ; and after a bailment is made upon one contract, the carrier cannot, at his sole option, prescribe new terms of carriage. It is true that the mutual agreement, orally ex- pressed at the time of delivery, might be evinced by a bill of 1 Camden R. v. Baldauf, 16 Penn. Miwlan v. Sherard, 73 N. Y. .329. St. 67. But cf. Hadd v. U. S. Ex- And see Simons v. Great Western press Co., 52 Vt. .3.35. K., 2 C. B. n. s. 020. 2 Blossom V. Dodd, 43 N. Y. 2G4 ; » See § 480, post. 487 § 470 THE LAW OF BAILMENTS. [PART VI. lading or receipt made out afterwards, which is expressive of the same terms and conditions ; it is true, also, that any- verbal understanding of the parties at the outset will merge in a written document which the carrier gives the sender in good season, and before fully accepting the goods, and. enter- ing upon the bailment undertaking. ^ And yet the carrier cannot set up the special conditions of such an instrument in prejudice of the sender's rights, when delivered, so as to disclose its special terms only after the goods were already shipped; for it is then too late for the shipper to refuse trans- porting on such conditions, and withhold his goods ; so that the carrier must abide by the original undertaking as fairly interj)reted.'^ If the carrier has contracted in writing as to terms, all the more is he disabled from modifying those terms by any bill of lading given after the actual shipment.^ § 470. Whether Special Terms are made knoAwn to the Proper Party. — 4. Bringing the special terms home to the proper party under the consignment. The express or implied assent of the sender or owner in due season, which is here requisite, may doubtless be given through the medium of agents ; ^ yet the sender's agent for delivering goods to the carrier for transportation is not necessarily his agent for binding him to special modifications of the carriage con- tract;^ while the person he sends to arrange for the trans- 1 See Fairfax v. N. Y. Central R., sonable and suflBcient notice where 73 N. Y. 167. the bill of lading showing those terms 2 Bostwick V. Baltimore & Ohio was given after transportation be- R., 45 N. Y. 712 ; Shiff v. New York gan. Merchants Co. v. Furthmann, Central R., 23 N. Y. Supr. 278 ; Gott 149 111. 06. And see Union Pacific V. Dinsmore, 111 Mass. 45; Gaines R. v. Moyer, 40 Kan. 184; 22 Neb. V. Union Trans. Co., 28 Ohio St., 721. 418 ; 90 111. 455 ; Michigan Central » Park v. Preston, 108 N. Y. 434. R. V. Boyd, 91 111. 268 ; O'Brien v. And see 79 Tex. 33. Kinney, 74 Mo. 125 ; Cleveland R. v. * Squire v. New York Central R., Perkins, 17 Mich. 296; Wilde v. 98 Mass. 239; Grace v. Adams, 100 Merchants' Des. Trans. Co., 47 Iowa, Mass. 505, 509, per Colt, J.; York 272. Cf. Germania Fire Ins. Co. r. Co. v. Central R., 3 Wall. 107, 113. Memphis R., 72 N. Y. 90, and other And see Story Bailm. § 558; May- cases, supra, § 467. A receipt di- hew v. Fames, 3 B. & C. 601. reeling special attention to terms ^ Fillebrown v. Grand Trunk R., printed in bill of lading is not sea- 55 Me. 462 ; Buckland v. Adams Ex- 488 CHAP, v.] COMMON CARRIERS. § 471 portation carries an implied authority to consent to special terms.^ § 471. Whether the Sender has acted fairly. — 5. Whether, upon the whole, honesty and fair dealing are manifest on the sender's part. The early English cases which treated of car- riers' notices strongly insisted that the person employing a carrier must make use of no fraud or artifice to deceive him; and, in a familiar instance, one wlid packed money into an old mail-hag, and stuffed it with straw to give it a mean appear- ance, was made to bear his own loss, where the hag arrived at the journey's end minus its choicer contents.^ Later cases confirm the same general doctrine ; while permitting the sender, so long as he practises no deception to the carrier's injury, to keep silence over the contents and value of the package he has offered for transportation ; and rather leaving the carrier himself to ask such qnestions for prudence' sake as may not be impertinent.^ If, however, the carrier is known to have expressly limited his liability to a specified sum, un- less otherwise mutually agreed upon and at higher rates of transportation, silence as to the true value would be less ex- cusable on the sender's part. Such silence may import the sender's assent to the specified limit of value ; and tlie con- cealment of value is even said to so far impose upon such a carrier as to work a legal fraud upon him ; misleading him upon the degree of security requisite for the undertaking; and depriving him of his adequate reward for the extra risk he incurs.* press Co., 97 Mass. 124 ; Gaines v. ^ lb. ; Brooke v. Pickwick, 4 Bing. Union Trans. Co., 28 Ohio St. 418; 218; Crouch v. London & N. W. R., American Trans. Co. v. Moore, 6 14 C. B. 255 ; Nitro-Glycerine Case, Mich. :!(18. 15 Wall. 624; supra, §§ 423, 424; 1 Ziininer v. New York Central R., Rosenfeld v. Peoria R., 103 Iiul. 121 ; 137 N. Y. 400. But a seller is not Rathbone v. N. Y. Central K., 140 necessarily agent for the purchaser N. Y. 48. to whom he ships, for special terms. ■* Batson v. Donovan, 4 B. & Aid. 89 111. 152. 21 ; Story Baihn. § 508, and ca.ses 2 Gibbon v. Paynton, 4 Burr, cited ; Mapiin v. Dinsmore, 02 N. Y. 2298; Stoiy Bailm. §§ 565-509; 35; Oppenheimer v. United States Orange County Bank v. Brown, 9 Express Co., 69 111. 02. So^e also Fry Wend. 115. v. Louisville R., 103 Ind. 205, where 489 § 472 a THE LAW OF BAILMENTS. [PART VT. Where, on the other hand, there has been no deceit prac- tised, nor negligence on the sender's part, and the carrier accepted the thing with full knowledge that its true value was far greater than appearances indicated, the latter may not easily take to the cover of implied conditions when asked to respond for a loss, nor denude the owner of his just indemnity.^ § 472. Whether the Special Terma have been -waived or not. — 6. Whether or not a waiver of the expressed conditions has been made. In the last instance mentioned,^ it has sometimes been said, the carrier's conduct is a waiver of his general condition ; and certainly circumstances which imply a waiver by the carrier of express conditions announced in his documents are by no means to be disregarded ; ^ though the carrier's waiver in one instance does not necessarily im- port his waiver in another.* The carrier's own inducement to non-compliance may constitute a waiver.^ § 472 a. "Whether the Special Contract ■wraa duly made on the Carrier's Behalf. — 7. Whether the special contract was duly made by the carrier or his proper agent may prove a material issue where the special terms were rather burden- some than advantageous to the carrier. We have seen that a carrier's receiving agent cannot, even by bill of lading, bind him to a fraudulent and fictitious shipment of goods.^ So, too, in special terms under a shijDment to the carrier's disad- vantage may the question of a due binding agency sometimes arise.'' deception was used to procure low of loss within a stated time is specially rates. imposed, and later notice is given, 1 Marsh v. Home, 5 B. & C. 322 ; and the carrier makes no objection Kember v. Southern Express Co., to its sufficiency, but objects to pay- 22 La. Ann. 158 ; Southern Express ment on different grounds, a waiver Co. V. Crook, 44 Ala. 468 ; Story as to defects of notice may be in- Bailm. § 569; Orndorff v. Adams ferred. Merrill v. Express Co., 62 Express Co., 3 Bush, 194. 2 \\^_ jj jj_ 514, ^nd gee Owen v. Louis- 3 See Story Bailm. §§ 569, 572; ville R., 87 Ky. 626; 118 Ind. 174; Helsby v. Mears, 5 B. & C. 504 ; 140 N. Y. 48. Minter v. Pacific R., 41 Mo. 503. 5 Gulf R. v. Trawick, 68 Tex. 314; * Oppenheimer v. United States 87 Ga. 734. ^ Supra, § 394. Express Co., 69 111. 62. Where proof ''See International II. v. Went- 490 CHAP, v.] COMMON CARRIERS. § 473 S 473. Legal Effect of giving Document to Sender; Sender's Option to require Full Legal Risks. — Somo miscellaneous points as to special contracts of carriago remain to bo con- sidered. What, we may first ask, is the legal effect of seasonably putting one's bill of lading, or other sufficient document, which expressly limits the carriage liability, into the sender's or customer's hands ? This act apprises the sender of the carrier's intention to transport under a corre- sponding modification of his common-law risks in the particu- lar transaction; and warns him to object to such a special acceptance on the carrier's part, or else become bound by it, so far as the terms are not what courts, of their own motion, refuse to sustain. If, then, the sender declines to be bound by such terms, the carrier may demand extra rates for being an insurer of the goods, and carrying on the terms prescribed by public policy ; provided, of course, he charges on the whole no unreasonable compensation for his service.^ There may reasonably be one rate for carriage on the common-law terms, and a less rate for carriage with less risk, but these rates should be comparatively just and optional.^ Farther than this the carrier cannot rightfully force his customer to his own will. lie cannot refuse to carry the goods at all unless the customer yields compliance to his terms, nor so conduct his business as to exclude the sender's option to re- quire the common-law risks.^ In short, the carrier must give each shipper a real practical freedom of choice as between rates under a common-law lia- bility and rates under special contract, since the rule of the public yields only to a mutual waiver by both parties con- cerned.'* worth, 87 Tex. 311 ; 1 Mo. App. 357. See, further, 153 Tenn. St. 474. 302. 1 Kirkland v. Dinsmore, G2 N. Y. ^ Want of optional reduced rates 171, 179, per Andrews, J. in carrying at a stated valuation is 2 Violation shown in Little Rock sometimes objected. See § 457. R. V. Cravens, 57 Ark. 112; Louis- * Kansas Pacific R. v. Reynolds, ville R. r. Gilbert, 88 Tenn. 4:]0 ; 17 Kans. 251 ; 48 Kans. 210. Railroad Co. v. Lockwood, 17 Wall. 491 § 474 THE LAW OF BAILMENTS. [PAET VI. § 474. Proof of Special Contract ; Terms, Written, Printed, or Oral. — Again, special stipulations of common carriage may be written, printed, or simply oral. The true issue in a case of the present sort is, whether a certain contract was entered into ; and of this the proof required conforms to ordinary rules of evidence.^ Even usage may, to some ex- tent, be resorted to, in proof that such a contract is to be implied.2 The presumption undoubtedly is, that one who, in the exercise of his public vocation, undertakes to transport a thing, does so subject to the common-law liabilities ; and this presumption prevails until overcome by countervailing proof of a special agreement as to the terms of carriage.^ Where the consignor's acceptance, without objection, of a bill of lading, or other document reciting special conditions, does not, on principles already discussed, operate by way of estoppel, or conclude the question, that mutual assent which is vital to the special contract is a matter of fact to be proven from writings, or mutual "vvords, acts, conduct, and the attend- ant circumstances of the bailment.* But, as to what consti- tutes per se a special contract of carriage, this is usually a question of law.^ That at all events a reasonable limitation of liability on the carrier's part need not be shown by a con- tract wholly in writing and signed by the shipper, unless the local statute so prescribes, is certain.^ Oral negotiations merge in a subsequent written or printed contract, which embodies the final understanding of the par- ties at the time the carriage is undertaken upon a completed 1 American Trans. Co. v. Moore, ^ jjg^ Jersey E. v. Pennsylvania 5 Mich. 368 ; Cooper v. Berry, 21 Ga. R., 3 Dutch. 100. 526; Roberts v. Riley, 15 La. Ann. * Gaines v. Union Trans. Co., 28 103. Ohio St. 418 ; Boorman v. American 2 Cooper V. Berry, 21 Ga. 520 ; Express Co., 21 Wis. 152, 158 ; Mer- Vose V. Morton, 5 Gray, 594 ; Hibler chants' Trans. Co. v. Leysor, 89 111. V. McCartney, 31 Ala. 501. See Illi- 43. nois R. V. Smyser, 38 111. 354 ; Cox « Kimball v. Rutland R., 26 Vt. V. Peterson, 30 Ala. 608 ; Steamboat 247. See Field v. Chicago R., 71 111. Sultana v. Chapman, 5 Wis. 454 ; 458. snpra, § 448. 6 See §§ 463, 466-468 ; (Mich.) 28 N. W. 685. 492 CHAP, v.] COMMON CARRIERS. § 475 bailinc'iit. The written contract is not to be orally disputed.* But the undertaking being upon a certain written or verbal, express or implied, qualified or unqualified agreement of trans- portation, nothing short of mutual assent can create new terms or rescind the original contract. Hence, a carrier can- not, while the goods are on transit, vary the original risks by the mere delivery of a written instrument at this late stage ; nor escape thus his liability for losses already incurred;^ though a clear mutual assent, in such respect, given upon full knowledge on both sides, might establish any variance or waiver of rights. § 475. Bills of Lading ; their Nature and Characteristics. — A few words specially, as concerns bills of lading. Of two or more bills of lading issued under the same transaction, that which is delivered to the sender must govern, in case of discrepancy as to special terms; not that retained by the carrier.^ And the English rule applicable to general notices appears to be, that where there are two or more inconsistent sets of terms, the carrier will be bound by that least favorable to himself and most favorable to the sender.'* But the formal stipulations which are contained in a solemn bill of lading cannot well be disputed by other less formal writings, as, for instance, the language of a mere account for freight given afterwards by the carrier to the shipper of goods.** Should a carrier fraudulently or inadvertently issue two original bills of lading for the same shipment, he will, as late cases hold, render himself liable for such loss as innocent third parties for value may have sustained in consequence.^ 1 Hewett V. Chicago R., G3 Iowa, » The Thames, 14 Wall. 98. 611 ; Orttr. Minneapolis R., 30 Minn. * Munn v. Baker, 2 Stark. 255; 396. Nor can usage change the writ- Cobdeu v. Bolton, 2 Camp. 108. ten contract expression. The Rce- ^ Phillips v. Edwards, 3 II. & N. side, 2 Rumn. 507. 813. 2 Gott V. Dinsmore, 111 Mass. 45; " "Wichita Savings Bank r. Atchi- Gaines v. Union Trans. Co., 28 Ohio son R., 20 Kan. 510. And see Farm- St. 418; Bostwick v. Baltimore & ors' Bank v. Erie R., 72 N. Y. 188; Ohio R., 45 N. Y. 712 ; Cleveland R. Wilde v. Trans. Co., 47 Iowa, 272. V. Perkins, 17 Mich, 296; siij^ra, § 469. 403 §475 THE LAW OF BAILMENTS. [part VI. Bills of lading, as tliey commonly run, have a twofold character, being compounded of a receipt and a contract.^ So far as such an instrument is a contract, extrinsic evidence is not admissible to vary or superadd to its plain terms ; ^ though it may be allowed to explain doubtful language ; ^ and the obligation to carry and deliver must be construed accordingly. But in respect of its receipt alone, the bill of lading is open to explanation as between carrier and sender ; and hence it affords only primd facie evidence of the quantity and condi- tion of the goods shipped, so far as they are concerned.* The receipt is equally inconclusive and open to explanation as against consignees who have made no advances upon the faith of the bill and stand on the simple footing of a sender.^ But a railway carrier is, according to the doctrine of some States, estopped to deny the clear recitals of his bill of lading to one 1 Supra, §§ 464, 466. 2 The Delaware, 14 Wall. 579; Cox V. Peterson, 30 Ala. 608 ; Shaw V. Gardner, 12 Gray, 488 ; White v. Van Kirk, 25 Barb. 16 ; Simmons v. Law, 8 Bosw. 213 ; Barber v. Brace, 3 Conn. 9. 3 Russian Steam Nav. Co. v. Silva, 13 C. B. N. s. 610 ; Bradley v. Duni- pace, 1 H. & C. 521 ; Wayland v. Mosely, 5 Ala. 430 ; Vose v. Morton, 5 Gray, 594. Thus, parol evidence is inadmis- sible to show that, notwithstanding a clean bill of lading, it was agreed that the goods should be stowed on deck. The Delaware, 14 Wall. 579 ; Creery v. Holly, 14 Wend. 26. See Sayward v. Stevens, 3 Gray, 97. Or, that the carrier agreed to take a particular route. White v. Van Kirk, 25 Barb. 17. Or, that delivery might be at other than the place specified. Cox V. Peterson, 30 Ala. 608. But in Chouteaux v. Leech, 18 Penn. St. 224, extrinsic evidence was admitted to show that, by mistake, a printed clause limiting the carrier's liability was not struck out; the 494 clause appearing unsuitable for the particular carriage at all events. * Bates V. Todd, 1 Moo. & R. 106 ; McLean v. Fleming, 2 H. L. Sc. 128 ; Portland Bank v. Stubbs, 6 Mass. 422 ; Sears v. Wingate, 3 Allen, 103, 105, per Hoar, J. ; O'Brien v. Gil- christ, 34 Me. 554 ; Bissel v. Price, 16 111. 408 ; Goodrich v. Norris, Abb. Adm. 196; Pollard v. Vinton, 105 U. S. 7. The rule holds good, not- withstanding a special clause empow- ering the consignee to deduct any damage or deficiency in quantity from the balance due the captain. Meyer v. Peck, 28 N. Y. 590. 6 Berkley v. Watling, 7 Ad. & El. 29 ; Sutton v. Kettell, 1 Sprague, 309 ; Blanchard v. Page, 8 Gray, 287 ; The Lady Franklin, 8 Wall. 325 ; Hall v. Mayo, 7 Allen, 454. As to the sender, and those who stand on his footing, it may be shown that through the mistake of an agent for different vessels, the receipt acknowledged goods as received for one vessel or responsible carrier, when they were rightfully sent by another. The Lady Franklin, ib. CHAP, v.] COMMON CARRIERS. § 476 who makes advances in faith thereof ; ^ though our federal courts lead in denying that the doctrine of bond fide pur- chasers has more than a partial application to instruments of this character.^ § 476. Master's Authority to issue Bills of Lading. — The master of a vessel is the long-established representative of the ship-owners or responsible carrier by water, in signing bills of lading for such goods as may have been thus intrusted for transportation. While the master acts within the true and obvious scope of his authority the owners are estopped as well as himself; and, as against a land fide consignee for value who was no party to the carriage contract, and also a bond fide assignee of the bill of lading for value, the mas- ter is estopped to deny the truth of the statements, even as to 'amount and condition, to which he has given credit by his signature.^ Circumstances may sufficiently justify the presumption of authority on the part of the master to sign bills of lading, so as to protect one who advances money on the faith thereof.'* It is not within the general scope of a mas- 1 Wichita Savings Bank v. Atchi- elude, as in those cases, all inquiry son R., 20 Kan. 519 ; Armour v. Mich- into the transaction in which it origi- igan Central R., 65 N. Y. Ill ; nated, because it has come into the Brooke v. N. Y. R., 108 Penn. St. hands of persons who have inno- 529. And see Coventry v. Great cently paid value for it." Mr. Jus- Eastern R., 11 Q. B. D. 776. Butcf. tice Miller, in Tollard «. Vinton, 106 93 N. C. 42. U. S. 7. And see, as to advance- s'' A bill of lading is an instrument ments made upon a lost or stolen well known in commercial transac- bill of lading, Shaw v. Railroad Co., tions, and its character and effect 11 Otto, 557 ; §§ 190, 394. have been defined by judicial deci- The receipt, under a bill of lading, sions. In the liands of the holder it is not conclusive upon the carrier as is evidence of ownership, special or to the quantity of goods received, general, of the property mentioned 21 Fed. R. 590. Nor docs it warrant in it, and of the riglit to receive said the nature or quality of goods as property at the place of delivery, against a sender's fraud in making Notwithstanding it is designed to pass up the package so as to deceive by its from hand to hand, with or without appearance. 90 N. Y. 4.30. indorsement, and it is efficacious for ^ Howard v. Tucker, 1 B. & Ad. its ordinary purposes in the hands of 712 ; Tindall v. Taylor, 4 E. & B. the holder, it is not a negotiable in- 219 ; Grant v. Norway, 10 C. B. 605 ; strument or obligation in the sense Bradstreet w. Heran, 2 Blatchf. 116. that a bill of exchange or promissory * The Mary Bradford, 23 Fed. R. note is. Its transfer does not pre- 733. 495 § 477 THE LAW OF BAILMENTS. [PART VI. ter's authority, however, to sign bills of lading for any goods which were not actually received on board ; though if such bill, through inadvertence or otherwise, is signed prematurely, and the goods are afterwards placed on board, as and for the identical goods therein described, the bill of lading will then operate upon them by way of relation and estoppel, so as to bind all concerned, and just as though it had been signed at the proper time ; and the rights of a bond fide holder of the bill for value will be protected.^ Where, however, the party to whom the bill of lading was given had no goods, or the goods so described were never put on board or delivered into the carrier's custody, the owners will not be liable, according to the stronger and more numerous authorities ; but the bill is void even in the hands of a bond fide holder for value ; ^ though some cases appear to justify a distinction in favor of bond fide transferees of the bill of lading for value, as con- trasted with the consignor who must have perpetrated a fraud, and others claiming in his right.^ § 477. Rules applied to Inland Bills of Lading. — The general doctrines of a vessel's bill of lading apply, so far as may be, to bills of lading which are given for land carriage ; whose receipt clause, but not the contract portion, will be susceptible of explanation in the same manner as between the correspond- ing parties of a sea transit.* Inland bills of lading are not 1 Rowley v. Bigelow, 12 Pick. 307 The Delaware, 14 Wall. 579, 600 Halliday v. Hamilton, 11 Wall. 560 Wichita Savings Bank v. Atchison R., 20 Kan. 519; 108 Penn. St. 629. 8 Biss. 61. The transferee of a fictitious bill 2 Grant v. Norway, 10 C. B. 665 ; of lading, or of one fraudulently Hubbersty v. Ward, 8 Ex. 330 ; The issued, has no remedy against an in- Schooner Freeman, 18 How. 182 ; dorser, unless for the special wrong. Sears v. Wingate, 3 Allen, 103, 107, Maybee v. Tregent, 47 Mich. 495. per Hoar, J. ; 14 Wall. 579, 602 ; The * Harmon v. New York & Erie R., Lady Franklin, 8 Wall. 325 ; Pollard 28 Barb. 323 ; Illinois Central R. v. V. Vinton, 15 Otto, 7 ; Baltimore, &c. Cobb, 72 111. 148. See Baltimore & R. V. Wilkens, 44 Md. 11. And see Ohio R. v. Wilkens, 44 Md. 11, as to Meyer v. Dresser, 16 C. B. n. s. 646 ; the guaranty of an inland bill of Fearn v. Richardson, 12 La. Ann. lading by an association of railroad 752. companies, and the negotiability of 3 See Armour v. Michigan Central such bills. R., 65 N. Y. Ill, and cases cited; 496 CHAr. v.] COMMON CAUKIERS. §47' commonly given by persons of such extensive authority as a ship's master, but freight-agents or special clerks are fre- quently thus empowered to act on behalf of the cariier.^ 1 Newell V. Smith, 49 Vt. 255. And see Hunt v. Mississippi li., 29 La. Ann. 44(> ; Batavia Bank v. N. Y. R., 33 Ilun, 580. A receipt given by a common car- rier for the goods as " in good order," "in apparent good order," "well- conditioned," and the like, affords, as to the shiiiper, prim28. Co., 104 Mass. 150; 117 Mass. 501; That loss by act of God, act of Faust V. South Carolina R., 8 S. C. public enemies, act of customer, or 118. Cf. French r. Star Transp. Co., act of public authority, excuses the 134 Mass. 288, which modifies this carrier from delivery over, so far doctrine. as such cause operates, — not to 8 Stiles V. Davis, 1 Black (U. S.), add other losses properly excepted 101. by special contract, etc., — mu,s<^ be * Bliven v. Hudson River R., .36 borne constantly in mind. Supra, N. Y. 403 ; Ohio, &c. R. v. Yohe, 51 cs. 4 and 6. 521 § 500 THE LAW OF BAILMENTS. [PART VI. form, and afterwards, hearing of the vendee's insolvency, stops them in transit, notifying the carrier accordingly, his stoppage-right cannot avail against a bond fide third party having no knowledge of such insolvency, or of other circum- stances which would render the bill of lading not fairly assignable, who makes advances on the faith of the bill of lading, and becomes indorsee accordingly ; and the carrier should deliver in recognition of such party's rights.^ But, as between the unpaid consignor and his insolvent consignee, it is held that the right of stoppage in transitu may continue after the actual transit is ended, and while the goods, in de- fault of the consignee's demand for them, are held in ware- house for those rightfully entitled thereto. ^ It is for the owner, not the carrier, to take active steps in stopping goods in transitu;^ but the carrier is bound to regard such steps.* § 500. Carrier's Duty as to Unclaimed or Refused Property; Storage, etc. — - Where, after due inquiry, the true consignee cannot be found, or is ascertained to be dead or absent, it becomes the duty of the carrier to keep the goods until they are claimed, or to store them prudently for and on account of the owner.^ And if the consignee refuses to receive the goods on tender and pay freight, the carrier has likewise the right to store them on the owner's behalf,^ or retain a further 1 Newhall v. Central Pacific R., R., L. R. 5 Ex. 51 ; 24 Fed. R. 815. 51 Cal. 345. See Lee v. Kimball, 45 The carrier need not invariably give Me. 172. the consignor notice of such non- 2 Worsdell, in re, 6 Ch. D. 783. acceptance. Fisku. Newton, 1 Denio, As to the right of stoppage in tran- 45; Kremer v. Southern Express Co., situ, see, more generally, 2 Schoul. 6 Coldw. 356 ; American Express Co. Pers. Prop. § 558. v. Greenhalgh, 80 111. 68. See 27 8 French v. Star Transp. Co., 134 Kans. 238. Though this seems his Mass. 288. natural and prudent course. Ameri- * See Louisville R. v. Hartwell, can Refining Co. v. McGhee, 96 Ga. Ky. (1896). 27. Nor is it safe for a carrier to 6 TheThames, 14 Wall.98 ; Angell assume that because the consignee Carriers, § 325 ; Fisk v. Newton, 1 cannot be found, the consignor or Denio, 45 ; Witbeck v. Holland, 45 his agent should receive the goods. N. Y. 13. "Wilson Machine Co. v. Louisville R., 6 Great Northern R. v. Swaffield, 71 Mo. 203. But the carrier should L. R. 9 Ex. 132 ; Heugh v. London be cautious not to misdeliver upon 622 CHAP. VI.] COMMON CARRIERS. § 501 temporary custody as bailee. By acting thus, the carrier di- vests himself of his extraordinary responsibility, and becomes for his custody, like any warehouseman, liable only for ordi- nary care and diligence,^ or even for less, if the circumstances warrant regarding him as a merely gratuitous bailee.^ Even thus, however, he cannot deliver to a mere stranger, or the wrong party ; though for losses by theft, fire, and the like, he should doubtless be held far less rigidly accountable."^ Nor can the carrier, under the strict rule of the common law, make sale of such goods for his charges, unless, possibly, where they must otherwise perish on his hands and become worth- less.* That a carrier may be justified in storing the goods with another he must not have been wanting in proper efforts to find the consignee, so as to give the latter an ojjportunity to accept or refuse delivery, and pay freight.^ But after he has so stored them properly, and has received from the ware- houseman reimbursement of his own charges, the presump- tion arises that the warehouseman takes the storage on behalf of the true owner or consignee, rather than as the carrier's own bailee.^ § 501. Delivery to Joint Parties, etc. — Where a package really belonging to A alone is sent directed to the firm of A & B, A may prove his sole claim and recover, though pro- ducing no assignment, order, or acquittance of any sort from the consignee's refusal to receive, in Co., 109 Mass. 151 ; Alabama R. v. disregard of the consignor, or true Kidd, 35 Ala. 209 ; Indianapolis R. owner. 83 N. C. 158 ; siipra, § 490. v. Ilerndon, 81 111. 143. Cf. Dobbin v. Michigan R., 56 Mich. * Rankin v. Memphis, &c. Packet 522. Co., 9 Ileisk. 504. 1 lb. See peculiar circumstances ^ Sherman v. Hudson River R., in Gregg v. Illinois K., 147 111. 550. 64 N. Y. 254. 2 See Kremer v. Southern Express "^ Hamilton v. Nickerson, 11 Allen, Co., 6 Coldw. 356; Marshall v. 308; 13 Allen, 351. But cf. Bick- American Express Co., 7 Wis. 1 ; ford v. Metropolitan StcauKship Co., post, § 516. 109 Mass. 151. If the consignee of 8 See supra, § 117 ; Story Bailra. a horse fails to call for it within a § 450 ; Parker v. Lombard, 100 Mass. reasonable time after its arrival, the 405 ; Smith v. Nashua R., 7 Fost. 86 ; carrier may put the animal out to a Bickford v. Metropolitan Steamship livery-stable keeper at tlie owner's 523 § 503 THE LAW OF BAILMENTS. [PAET VI. B.^ For the right of a paramount owner must be resj^ected by every bailee, whenever the chiim is seasonably made upon him, be his bailor's directions what they may ; provided of couise, the bailee has acted not collusively but in good faith.2 As a rule, however, the carrier's duty is to deliver accord- ing to his consignor's directions ; and where the package is directed to two or more persons jointly, he should deliver to both, or to either of them for both.^ § 602. What constitutes a Complete Delivery. — That sur- render of possession which constitutes a complete discharge of the carrier's trust must be attended with no circumstance, on his part, such as would impair the title of the consignee, or affect the latter's peaceful enjoyment of the property.* § 503. Carrier's Duties in Unloading, etc. — The carrier, with respect to unloading, has duties which, though varying with time and circumstance, regard always the natural wants and inherent qualities of the thing itself. Thus, a modern ferry should provide suitable means of egress as well as in- gress, and keep the drops in good order and well cleared to allow teams to be driven off the boat safely.^ Reasonable facilities for unloading as well as loading should in general be provided.^ And a railway company which transports live- stock ought not only to have proper machinery and facilities for unloading them whenever, in the course of the transit, it charge. Great Northern R. v. Swaf- How. 491, where, through the mas- field, L. R. 9 Ex. 132. ter's carelessness in making up his 1 Wells V. American Express Co., papers, the goods became confiscated 55 Wis. 23 ; s. c. 44 Wis. 342 ; Sheri- at the port of destination. The ship- dan V. New Quay Co., 4 C. B. n. s. owners were here held liable, because 616. it was the master's duty to know the 2 Supra, § 494. Cf. Angell Car- revenue and navigation laws of the tiers, § 355, and Story Bailm. § 582, country with which he traded, criticised, supra, which lean to the ^ Supra, §§ 395, 445 ; Willoughby opinion that tlie bailee cannot dis- v. Horridge, 12 C. B. 742 ; White v, pute the bailor's title unless evicted Winnisimmet Co., 7 Cush. 155; An- by title paramount. gell Carriers, § 82. 3 Wells u. American Express Co., ^ 87 Ky. 626; Covington Co. v. supra. Keith, 139 U. S. 128. * See Howland v. Greenway, 22 524 CHAP. VI.] COMMON CAKRIERS. § 504 may be necessary to unload them for exercise and refresh- ment, but also to unload, feed, and water them at the jour- ney's end, if there be delay in making deliver}'^ over and discharging the carrier from liability, and the health of the animals requires this to be done.^ As to the permitted period for unloading a vehicle, the law implies, in the absence of special contract, that this shall be within a reasonable time after its arrival.^ Even though the carrier should specially stipulate exemp- tion from risks of unloading so far as the law permits, his duty to unload is presumed to continue.^ But the bailment might be one of delivering a loaded vehicle, like a receptacle with its contents, for the consignee to empty ; * and in such a case the delivery should be sufficiently complete to reason- ably admit of such unloading.^ § 504. Methods of Unloading ; Carrier and Consignee. — If a common carrier, in pursuance of the duty of making delivery, uses the tackle, machinery, lighters, or cars of a third person, and damage ensues, by the breaking of the tackle or the like, the thing is his jjro hdc vice, so as to make him responsible therefor to his own customer, as he would have been for his own in delivering.^ But if the consignee, or his agent or other bailee, uses such tackle, machinery, or other conven- ience for himself, after the carrier's duty is performed, and the goods are received into his own custody and control, the carrier is not chargeable for the defects of the thing." Where the proper consignee of goods is present, accepts the consignment, and pays the freight, and the goods are accordingly unloaded with reasonable opportunity for him to 1 See Dunn v. Hannibal, &c. R., « Angcll Carriers, §§ 104, 282, 330 ; 68 Mo. 208. De Mott v. Laraway, 14 Wend. 2 ITenlpy v. Brooklyn Ice Co., 14 225. Blatchf . 522. " lb. ; Thomas v. Day, 4 Esp. 462 ; 8 Benson v. Gray, 154 Mass. 391 ; Lewis v. Western R., 11 Met. 509; 787 Ex. .307. Loveland v. Burke, 120 Mass 139. * See Connecting R. v. Wabash And see Blakeraore v. Bristol R., 8 R., 123 111. 594. E. &. B. 1035; supra, §§ 121, 396. 6 Independence Co. v. Burlington R., 72 Iowa, 535. 525 § 506 THE LAW OF BAILMENTS. [PART VI. remove them, custody is transferred from the carrier, and responsibility devolves upon the consignee to secure them from the weather and depredation, and otherwise make dis- position of them.^ § 505. Consignee's Right to intercept Goods on Transit. — With the consent of the carrier, any consignee may intercept his goods on the transit, and assume the risks accordingly ; but not necessarily to the prejudice of a consignor or true owner of the goods,^ nor so as to deprive the carrier of his just reward.^ § 506. Notice without Personal Delivery, etc. — In certain modes of convej'ance, the carrier, on reaching the end of his transit, becomes bound, not to seek out the consignee, in order to make personal delivery, but only to give due notice that the consignee may come and take his goods from the carrier's premises. "Carriers by ships and boats," it has been said, " must stop at the wharf ; railroad cars must re- main on the track. In these cases, notice should be given to the consignee of the arrival and place of deposit, which comes in lieu of personal delivery." * At the same time it has generally been conceded that common carriers are lyrimd facie under obligation to make personal delivery to the con- signee.^ Usage and special contract shape the duty very considerably in modern times, as will presently be shown. Thus among inland carriers a railway commonly makes no personal delivery, while with an express or teamster it is the reverse. But that usage or contract ought to be clearly es- tablished, under which a carrier can assume to clear himself by simply leaving the goods at his own place of deposit, to be called for, without at least giving the consignee notice of their arrival.^ 1 Goodwin v. Baltimore & Ohio Hyde v. Trent Nav. Co., 5 T. E. R., 50 N. Y. 154. 389 ; Storr v. Crowley, 1 M'Clel. & 2 See Dewey, J., in Lewis v. West- Y. 129 ; Golden v. Manning, 3 Wils. em R., 11 Met. 509, 616. 429 ; Angell Carriers, §§ 313-317 ; 8 Post, § 527. risk v. Newton, 1 Denio, 45 ; The * Cowen, J., in Gibson v. Culver, Thames, 14 Wall. 98. 17 Wend. 305, 311. e Proof of such usage is admitted 6 lb. ; 2 Kent Cora. 604, 605 ; in Gibson v. Culver, 17 Wend. 305 ; Story Bailm. § 543, and cases cited ; 626 CHAP. VI.] COlSfMON CARRIERS. § 507 As to giving notice, public notice has been ruled insuffi- cient;^ nor is it unreasonable that the carrier's care of the goods should continue until knowledge of such notice is brought home to the proper party .^ Where formal notice is required to be given, it should be properly directed, in ac- cordance with the carrier's means of knowledge ; and imper- fect direction or misdirection, such as prevents the notice from reaching its destination through the mail, is inexcusa- ble, where the package was duly directed by the shipper.^ But the carrier's failure to give notice is, in general, excusa- ble, whenever a consignee or the indorsee of a bill of lading for delivery to order is unknown, or is absent, or cannot, after diligent search, be found;* and here, once more, it becomes the carrier's duty to retain the goods until they are claimed, or to store them prudently for and on account of their owner, thus divesting himself of the risks of extraordi- nary bailee.^ § 507. Undertaking to collect on Delivery ; C. O. D. — Com- mon carriers at the present day frequently undertake to collect the consignor's demand upon the consignee simultaneously with making delivery of the goods to the latter party, and remit the same to the former; and the letters "C. O. D." placed upon the package are in some States held to have ac- quired a mercantile sense sufficiently importing such a direc- tion from the consignor, who, however, ought to furnish the carrier with receipted bill or other memorandum of the amount to be collected, or place such direction plainly upon the package.^ This practice doubles or enlarges a carrier's Farmers' Bank v. Champlain Trans. * Fisk v. Newton, 1 Denio, 45 ; Co., 16 Vt. 62; 18 Vt. 131. The Thames, 14 Wall. 98, 107, per 1 Rome R. v. Sullivan, 14 Ga. 277 ; Mr. Justice Strong. Kohn V. Packard, 3 La. 224 ; 110 Cal. ^ ib. ; supra, § 600. 348. * American Merchants' Union Ex- 2 The Thames, 14 Wall. 98 ; Angell press Co. v. Wolf, 79 111. 480 ; A meri- Carriers, § 316 ; Pickett v. Downer, can Express Co. v. Greenhalgh, 80 4 Vt. 21 ; Sherman v. Hudson River 111. 68 ; American Express Co. v. R., 64 N. Y. 254. Lesem, 39 111. 312 ; United States 8 Union Steamboat Co. v. Knapp, Express Co. v. Keefer, 50 Ind. 263 ; 73 111. 606. Hutchings v. Ladd, 16 Mich. 493 ; 527 § 508 THE LAW OF BAILMENTS. [PART VI. duty as bailee. Carriers undertaking to collect on delivery- are bound either to collect and remit the cash, or else return the goods as for the consignee's default ; ^ but express com- panies, upon whom this duty coramonl}'- devolves, sometimes advance to the sender the amount of his bill to save the trouble of remitting afterwards the amount collected. Where the consignor sends his goods by one carrier, such as a rail- way, and sends the bill for collection by another, — for in- stance, an express company, — it is enough to discharge the latter that the bill is promptly returned on refusal of pay- ment; the carrier of the goods having delivered them to the consignee himself, so that the carrier holding the bill did not have them in possession .^ Nor does the undertaking to collect on delivery necessarily keep the bailee strictly liable as common carrier, while the consignee delays payment upon a demand and tender of the goods, and the property contin- ues in the carrier's custody, after a reasonable time or notice to the consignor.^ In numerous instances, the carrier who takes a parcel with directions to collect on delivery is justi- fied in giving the consignee opportunity to inspect the pack- age before paying, in order to ascertain whether the bill sent for such goods is a correct one.* § 508. Ratification or Waiver on the Customer's Part. — The customer may by his acts and conduct, as well as b}' for- mal writing, ratify the carrier's performance or waive a com- plete delivery by the latter. Thus, if a carrier charged with goods to collect on delivery ^ should take the consignee's check CoUender v. Dinsmore, 55 N. Y. 200. Hasse v. Express Co., 94 Mich. 1.33 Semble, that indorsing on the bill, and cases cited. Special contract may "Please collect the bill," is a mere reduce liability to such a standard, request of the carrier, and not a direc- 60 Ark. 100. tion. Tooker v. Gormer, 2 Hilt. 71. * Lyons v. Hill, 46 N. H. 49. At all events, parol explanation can- See also Libby v. Ingalls, 124 Mass. not contradict or vary the express 503, as to the practice of sending a language of full written directions. railvfay receipt vfith draft attached, 1 lb. But see Rathbun v. Steam- to indicate that delivery is only to be boat Co., 76 N. Y. 376, cited in § 508. made on payment of the draft. See 2 Wells V. American Express Co., also § 493. 44 Wis. 342. ^ see § 507. 8 Weed V. Barney, 45 N. Y. 344 ; 528 CHAP. VI.] COMMON CAURIERS. § 510 ill payment, the consignor, after accepting such check uncon- ditionally in satisfaction of the carrier's performance, cannot sue the carrier if it turns out worthless.^ And an unauthorized delivery of goods by the carrier may be ratified by the party who is entitled to thera.^ That a consignee may so intercept the goods as to relieve the carrier from transporting them to the terminus we have already seen.^ § 509. Bearing of Usage, etc., upon Modern Rules of Deliv- ery. — But, as a practical issue, there is far more uncertainty in determining the exact point at which our modern common carrier's liability terminates than the foregoing statements indicate ; and this chiefly because usage and special contract regulate the whole matter to a considerable extent, and because of the complexity and magnitude of modern inland transportation ; so that not only has the rule become a different one for different classes of common carriers, but it varies to suit the shifting business modes of different localities. § 510. One may be Carrier for Transit and Simple Bailee after Arrival. — We are in the first place to observe that one may hold goods as common carrier or insurer for a transit, but, for various reasons, retain them with the less onerous risks of a warehouseman or ordinary bailee for hire, at the place of destination, without ever having actually delivered over or parted with possession. This is a peculiarity not often notice- able in other bailments, but here constantly to be borne in mind ; so that if, for instance, goods which had safely reached the journey's end were accidentally burnt up, or plundered by a mob, before that final delivery over which legally terminates a bailment, a court would often be perplexed to say whether the present bailee were liable or no for the loss ; or, in other words, whether his standard of responsibility should be deemed exceptional or ordinary. To determine such a question, it is material to consider 1 Rathbun v. Steamboat Co., 76 58 N. H. 521 ; Dobbin u. Michigan R., N. Y. ;]70. 5G Mich. 522. 2 Converse v. Boston & Maine R., * Sujira, § 505. 34 529 § 511 THE LAW OF BAILMENTS. [PAIIT VL whether the common carrier is legally bound as such to make delivery over, or the consignee must come and fetch them ; and, in the latter case, whether notice must be given and sufficient time allowed to elapse after arrival of the goods to enable such a party fairly to perform his duty. In both re- spects our law is far from being exact, and local usage sways the English and American courts considerably, as we now proceed to show. Even where the carrier was bound natu- rally to make delivery, he often becomes by reason of the con- signee's refusal to receive and pay, or where the consignee is dead or cannot be found, a bailee of the ordinary sort, after fulfilling his carrier duty.^ § 511. Mode of Delivery by Vessel; Responsibility ho-w di- vested. — Where goods are brought by water, the rule long sanctioned in Great Britain has been that delivery on the usual wharf will discharge the carrier ; ^ and such, too, is the American rule.^ This applies with especial force to transporta- tion between foreign ports, which for centuries has involved the use of bills of lading ; and a bill of lading is quite commonly specific on the j)oint involved, whether in creation or confir- mation of some commercial usage as to the method of termi- nating the vessel's liability.* This usage at the present day generally requires the consignee to take off his merchandise in lighters from the vessel's side on its arrival in port ; otherwise the carrier shall land the goods on the wharf,^ or finally shall warehouse them if they are not called for, and advance pay- ment of government duties, at the cost of those entitled to the property, especially if the consignee unreasonably delays doing 1 §§ 500, 507. We have seen that * Story Bailm. § 544 ; Richardson one may receive in a lesser bailment v. Goddard, 23 Hov7. 28 ; 1 Cliff. .38.3, capacity before the carrier risks at- 396. tach. § 390. ^ For usage of the port of Lon- 2 2 Kent Com. 604, 605 ; Story don, as to discharging goods from Bailm. §§ 544, 545 ; Angell Carriers, steamers, and the terms expressed §§309-312; Hyde v. Trent Nav. Co., in bills of lading accordingly, see 5T. R.389. Petrocochino v. Bott, L, R. 9 C. P. * lb. ; Cope v. Cordova, 1 Ravrle, 355. 203 ; Chickering v. Fowler, 4 Pick. 371 ; Price v. Powell, 3 Comst. 322. 530 CHAP. VI.] COMMON CARRIERS. §511 so.^ In landing on the wharf or storing goods, the carrier should have delicate, perishable, and valuable merchandise properly guarded against exposure to the weather or depreda- tion ; and justice requires that, before or at the time of land- ing, due and reasonable notice be given the consignee that the goods have arrived and are ready for delivery, in order that the latter may have fair opportunity to protect and re- move them, and save risks and special warehouse charges.^ He should not disregard his own reasonable precautions as warehouseman.^ The same general usage (except as to paying government duties), together with the issue of bills of lading, applies commonly to carriage between domestic ports and inland transportation by water ; but local exceptions may prevail.* And in general, after reasonable opportunity for 1 Wilson V. London Steam Nav. Co., L. R. 1 C. P. 61 ; Redmond v. Liverpool Steamboat Co., 46 N. Y. 5 Wall. 481 ; The 98 ; McAndrew v. Y. 40 ; Collins v. 1 ; The Tybee, 1 578 ; The Eddy, Thames, 14 Wall. Whitlock, 52 N. Burns, 63 N. Y. Woods, 358. •■^ Story Bailm. § 545 ; 2 Kent Com. 604 ; The Eddy, 5 Wall. 481 ; Graves V. Hartford Steamboat Co., 38 Conn. 143 ; Morgan v. Dibble, 29 Tex. 107 ; Angell Carriers, § 313 ; Richardson v. Goddard, 23 How. 28 ; 1 Cliff. 383, 396. Delivery to a drayman not au- thorized by the consignee, neither discharges the carrier nor dispenses ■with notice. Ostrander v. Brown, 15 Johns. 39 ; Dean v. Vaccaro, 2 Head, 488. As to newspaper publication by way of notice, see 6 Ben. 517. To land and store the goods without giv- ing notice or an opportunity to in- spect does not relieve the carrier. Chase Dec, 125. But a custom to deliver to a warehouseman wiio noti- fies is good. 80 Mich. 90. And usage or special provision of the bill of lad- ing may reduce the requirement of no- tice ; thus posting on a bulletin at the custom house has sufficed. Con- stable V. Steamship Co., 154 U. S. 51. 2 As in requiring a receipt before delivery. Tarbell v. Shipping Co., 110 N. Y. 170. * Crawford v. Clark, 16 111. 561 ; Union Steamboat Co. v. Knapp, 73 111. 506 ; McAndrew v. Whitlock, 52 N. Y. 40 ; Young v. Smith, 3 Dana, 91. See, as to exceptional rules for inland transportation, Hemphill v. Chenie, 6 W. & S. 62; Sultana v. Chapman, 5 Wis. 454. If the con- signee presents himself seasonably to receive hi.s goods conformably to the contract, the carrier ought not to put him to the expense of storage. Graves V. Hartford Steamboat Co. , 38 Conn. 143. As to what is a usual or suitable wharf, as the place of discharging a vessel, there are numerous decisions turning largely upon local usage. In many instances the consignee may choose a wharf, and so may a major- ity in interest where two or more consignees are not unanimous. But this right to select a wharf, as against the carrier's own selection, is waived 531 § 513 THE LAW OF BAILMENTS. [PART VI. the consignee to take his goods, the strict carrier liability is at an end.^ S 512. Delivery by Land-Carrier ; Responsibility how di- vested. — Concerning transportation by land, there has long been a diversity of opinion as to the proper mode of termi- nating liability. Judge Story, with excessive caution, has observed that the inclination had been (not without some diversity of judicial opinion) to require the carrier, in the absence of some different contract or custom of trade, to make a personal delivery to the owner.^ But he more strenu- ously contends that, in the absence of clear usage or contract to the contrary, the carrier is bound to give reasonably prompt notice of the arrival of the goods to the persons, if they be known, to whom the goods are directed.^ There is, however, at the present day much doubt concerning the obligation in these respects ; though less regarding the latter duty, which only they who condemn the policy of making the carrier an insurer can consistently ask to dispense with. § 513. The Same Subject; Conflict of Doctrine as to Railway Carriers. — Thus, it is now generally conceded that railways, like water carriers, are exempt from the duty of making personal delivery. Yet the responsibility of this comprehen- sive class of inland carriers is, by the more conservative au- thorities, held to continue after the goods have reached their destination, and until the consignee has had reasonable time where prompt notice of a particular T. E. 389, Lord Kenyon, dis. ; Duff choice is not given him. The Boston, v. Budd, 3 Brod. & B. 177 ; Garnett 1 Low. 464, and cases cited ; 1 Low. v. Willan, 5 B. & Aid. 53 ; Stephen- 114. See further. The Bark Tangier, son v. Hart, 4 Bing. 476; Gibson v. 1 Cliff. 396 ; 5 Myer Fed. Decisions, Culver, 17 Wend. 305; Angell Car- Carrier, §§ 716-752. There are cus- riers, §§ 295-297 ; 2 Kent Com. 604, toms concerning delivery by grain- 605. bearing vessels on the great lakes ^ Story Bailm. § 543 ; Gatliffe v. which must be duly regarded. 3 Fed. Bourne, 3 M. & Gr. 642; Crawford R. 344 ; 5 Biss. 371. v. Clark, 15 111. 561 ; Price v. Powell, 1 See § 520. As to retaining un- 3 Comst. 322 ; Rome R. v. Sullivan, claimed goods on the vessel, see 63 14 Ga. 277 ; Michigan Central R. v. Fed. 1015. Ward, 2 Mich. 538 ; Michigan R. v. 2 Sicpra, § 506 ; Story Bailm. § 543. Bivens, 13 Ind. 263. And see Hyde v. Trent Nav. Co., 5 532 CHAP. VI.] COMMON CARRIERS. §513 to cull for and take tlieru,^ which would seem naturally to require the carrier to give notice of their arrival.^ In Massa- chusetts, however, and many other important States, the rule is that the usual conduct of railway business does not require notice to be given to the consignee, but that immediate and safe storage in a freight depot on arrival answers as the proper substitute;^ and this, as it is held, even though, before a loss occurs, no reasonable o[)portunity is given a consignee to take his goods away.* Even in such extreme instances, however, the legal liability of insurer is taken to continue after the transit, until the goods are properly discharged and stored ; upon which the company ceases to be a common carrier, and assumes the less hazardous posture of ware- houseman.^ And under either rule the carrier risk, after a 1 Alabama, &c. Rivers R. v. Kidd, 35 Ala. 209; Mobile R. v. Prewitt, 46 Ala. 67 ; Moses v. Boston & Maine R., 32 N. II. 523 ; Winslow v. Ver- mont, &c. R. , 42 Vt. 700 ; Parker v. Milwaukee R., 30 Wis. 089; Rail- road Co. V. Manuf. Co., 16 Wall. 318 ; Faulkner v. Hart, 82 N. Y. 413. 2 See Michigan Central R. v. Ward, 2 Mich. 538 ; Zinn v. New Jersey Steamboat Co., 49 N. Y. 442 ; Hedges V. Hudson River R., 6 Robertson, 120 ; Maignan v. New Orleans R., 24 La. Ann. 333 ; 60 Ark. 375. 8 Shaw, C. J., in Norway Plains Co. V. Boston & IMaine R., 1 Gray, 263 ; Thomas v. Boston & Providence R., 10 Met. 472 ; Bansenier v. Toledo R., 25 Ind. 434 ; Francis v. Dubuque R., 25 Iowa, 60 ; Jackson v. Sac- ramento Valley R., 23 Cal. 208; McCarty v. New York & Erie R., 30 Penn. St. 247 ; Neal v. Wilming- ton R., 8 Jones, 482. * Rice V. Hart, 118 Mass. 201. And see Shepherd v. Bristol R., L. R. 3 Ex. 189. * lb. ; Cahn v. Michigan Central R., 71 111. 96 ; Chicago R. v. Scott, 42 111. 132, per Breese, J. ; Rice v. Boston & Worcester R., 98 Mass. 212. And see Mitchell v. Lancashire R., L. R. 10 Q. B. 256, to the point that the requisite diligence of a warehouse- man must still be exercised, otherwise the railway is responsible for a loss. The foregoing decisions show on a most important issue an irreconcil- able conflict of authority in leading States where railway traflic is con- ducted, — a situation greatly to be deplored. The subject may be ex- plored at length by examining the opinion of Cooley, C. J., in McMillan r. Michigan R., 16 Mich. 103 ; 2 Red- field Railways, 5th ed. 77 ; and coun- sel briefs, and tlie opinion of Gray, C. J., in Rice v. Hart, 118 Mass. 201. It is observable that railway usage has been much insisted upon as the reason of the Massachusetts rule. ♦' In short," says Gray, C. J., in Rice V. Hart, snpra (p. 208), " the railroad corporation ceases to be a common carrier and becomes a warehouse- man, as matter of law, when it has completed the duty of transportation and a.ssumed the position of ware- houseman, as matter of fact, and according to the usages and neces- 533 513 THE LAW OF BAILMENTS. [part VI. reasonable time to take away has expired, merges in that of mere warehouseman.^ For careless discharge or negligent storage of the chattels carried, or carriage to some other point distant from the proper place of delivery, so as to subject the owner to special loss or damage, a railway is of course chargeable, whether it be in the one capacity or the other.2 sities of the business in which it is engaged." Breese, J., in Chicago R. V. Scott, 42 111. L32, admits the usage as thus established with evident re- luctance. In Graves v. Hartford Steamboat Co., 38 Conn. 143, 151, Seymour, J., observes: "The rule adopted in Massachusetts has the merit of being definite and of easy application, and may, in many cases, avoid a painful controversy as to what, under the circumstances, is a reasonable time within which the consignee must appear and take his goods. But, on the other hand, that rule puts an end to the carrier's re- sponsibility as such, just where that responsibility is of the highest value to the shipper. Between the deposit of the goods on the platform and their delivery to the consignee, they are exposed to theft, depredation, and injury by strangers, and by the carrier's employes." This criticism is perhaps too severe, as though grounded on the misapprehension that a company ceases to be a com- mon carrier before the goods are unloaded and stored, and does not thereafter continue liable on at least the footing of a warehou.seman. In New York the Massachusetts rule is pointedly condemned in a re- cent case where, certainly, the con- signee would otherwise have been put to great hardship. The goods arrived at the railway terminus and were called for, but a delivery was re- fused until the next day, as it was not convenient to deliver at the 534 time. They were unloaded the same afternoon and placed in the freight depot, but too late for delivery ; and during the night the warehouse, with its contents, was destroyed by fire. Faulkner v. Hart, 82 N. Y. 413. The court here observes that the decisions of a court of one State upon a ques- tion of commercial law are not ob- ligatory upon the courts of other States. A late South Carolina case shows the court divided on this ques- tion. 11 S. C. 158. In 40 Kan. 184, the carrier said goods had not arrived when they had arrived. And see 91 Tenn. 708; 70 Fed. 764. See 80 Ala. 38. Special stipulations in the way-bill or special contract may regu- late on this point. § 520. In this collision of State author- ity, we shall await with interest the opinion of the Supreme Court of the United States on this subject. As to local legislation on this point, see § 521 ; 49 Tex. 748. 192 Wis. 393; Columbus R. v. Ludden, 89 Ala. 612. " Reasonable time " begins to run even before a notice is given. lb. See §§ 101- 103. 2 See Kimball v. Western R., 6 Gray, 542 ; Rice v. Boston & Worces- ter R., 98 Mass. 212 ; Louisville R. V. Gilmer, 89 Ala. 534 ; Mitchell v. Lancashire R., L. R. 10 Q. B. 2-56; Cahn V. Michigan Central R., 71 111. 96; White v. Colorado R., 5 Dillon, 428 ; supra, § 101. Towards goods in their possession merely as warehouse- men, railways are not bound to exer- CHAP. VI.] COMMON CARRIERS. §513 We should note that it is the reasonable opportunity, rather than technical notice, which those States insist upon where the consignee is most favored as against railway carriers. For, where the consignee's address is not known to the car- rier, the consignee or the consignor should take pains to make it plainly understood ; and if, after due inquiry, the railway carrier fails to ascertain such address, the notice is excused, and, after a reasonable time for removal has elapsed, the lia- bility of the carrier who has stored the goods will be changed to that of warehouseman.^ And if the consignee has had reasonable opportunity to remove his goods, but the rail- way company consents, for mutual convenience, that they may remain longer in the freight house, the presumption arises that the exceptional risk as public carrier exists no longer.^ So may a carrier, whose duty is to deliver loaded cars upon an independent track, comply reasonably with that duty so as to be relieved of further immediate responsibility ; and cise more than ordinary care and diligence. And it is held tliat where the daily average of goods stored at a freight station is of trifling value, the company is not required to keep a night watchman on the premises. Pike V. Chicago, &c. R., 40 Wis. 683. Under peculiar circumstances it was held in Shepherd v. Bristol & Exeter R., L. R. .3 Ex. 180, that the carriage liability for cattle trans- ported over a railway ceased when the cattle were put into the carrier's pens. The dissenting opinions in this case impair its usefulness as a precedent. 1 Pnlton V. Ren.sselaer, &c. R., 54 N. Y. 214 ; Xorthrop v. Syracuse R., 2 N. Y. Trans. App. 183. 2 Fenner v. Buffalo, &c. R., 44 N. Y. 505. In this case, ib. p. 511, Earl, Com., thus summarizes the rule of New York on the subject of deliv- ery by railway carriers : " If the con- signee is present upon the arrival of the goods, he must take them with- out unreasonable delay. If he is not present, but lives at or in tiie imme- diate vicinity of the place of delivery, the carrier must notify him of the arrival of the goods, and then he has a reasonable time to take and remove them. If he is absent, unknown, or cannot be found, then the carrier can place the goods in its freight liou.se, and, after keeping them a reasonable time, if the consignee does not call for them, its liability as a common carrier ceases. If, after tlie arrival of the goods, the consignee has a reasonable opportunity to remove them, and does not, he cannot hold the carrier as an insurer. The car- rier's liability thus applied and lim- ited, I believe will be found consonant with public policy, and sufficiently convenient and practicable." See also Clialk v. Charlotte R, 85 N. C. 423. 535 § 514 THE LAW OF BAILMENTS. [PART VI. even if the cars when unloaded were to be returned by the carrier he thus awaits a new bailment by the consignee.^ § 514. The Same Subject; Delivery by Expressman, etc. — Expressmen and express companies are generally bound, how- ever, even though they avail themselves of carriage by rail, to make personal delivery ; and so, too, with wagoners and teamsters generally ; this being their common custom, and, indeed, a chief reason with many for employing the service of such a carrier in these days when one might transmit his goods more cheaply as railway freight, to the same point of destination. Where delivery should be made to the consignee at his place of business, delivery should be during business hours, and with reasonable regard to the safety of the goods, and the consignee's convenience ; delivery at the consignee's residence, when proper at all, must be made in a suitable manner, and at a suitable time;^ and, generally speaking, nothing short of prevention by act of God, or a public enemy, or the conduct of his customer, can excuse an express carrier from actual delivery of the thing to the proper party ,^ Where the goods are tendered the consignee, and he fails to receive and pay for them, the express carrier may deposit them, or hold them on deposit; and it may be proper to notify the consignor of the situation ; ^ after which the company will become relieved of its strict responsibility, and hold the goods subject to the consignor's or true owner's order ; bound, like 1 Connecting R. v. Wabash R., arrives. But otherwise, and as to 12.3 111. 594, distinguishing 109 111. portable boxes of valuable miscel- 135. See this rule as to connecting laneous merchandise particularly, he carriers, c. 9. And cf. § 50.3 ; 72 ought to place them promptly in the lovra, 535. It is not an inflexible freight house, and such is the general rule that the railway carrier should usage for delivery. 59 Minn. 161, always remove from the car and 164. place in the freight house, in order 2 Merwin v. Butler, 17 Conn. 138 ; that the strict carrier liability may Marshall v. American Express Co., 7 terminate. As to coal, lumber, and Wis. 1 ; Baldwin v. American Ex- various other goods taken in bulk, press Co., 23 111. 197; Haslam v. the consignees often unload directly Adams Express Co., 6 Bosw. 235. from the cars. So may a carrier, ^ American Merchants' Union Ex- under special circumstances, use his press Co. v. Wolf, 79 111. 430. car as a warehouse for freight which * Cf. § 501. 636 CHAP. VI.] COJIMON CARRIERS. § 515 a gratuitous bailee, only to take slight care of them, save where custom or contract gives him compensation for the special trouble.^ Personal delivery dispenses with personal notice and af- fording reasonable opportunity to remove the goods ; which otherwise, in localities where business usage, the character of the goods, and the sender's knowledge and assent, might justify an express company in non-delivery, the law will insist upon.2 Packages of moderate value may commonly be delivered to the consignee's clerks, or subordinates about his premises ; but the express carrier should, witli greater cau- tion, scrutinize credentials of authority to receive on behalf of a consignee, where he knows the thing is of considerable worth, and his trust an important one.^ § 515. Carrier's Obligation to make Personal Delivery affected by Circumstances, Contract, etc. — The obligation of a carrier to make personal delivery may be confirmed by special circum- stances. Thus, a railway company may extend its patronage to certain carters and teamsters at its terminus, in cases where consignees do not send their own teams ; and yet, having no interest in the profits, assume no duty of delivering at a con- signee's door ; but if the company should exact the payment of cartage in advance, this would amount to an express un- dertaking to deliver to the consignee in person, and the com- mon carriage risk would extend accordingly.* So there may be a binding usage or an express undertaking, on the carrier's part, to give the consignee notice when his goods have arrived.^ 1 70 111. 430 ; Kremer v. Southern « See Sullivan v. Thompson, 99 Express Co., 1 Coldw. 356 ; Merrill Mass. 259. V. Express Co., 62 N. H. 514 ; Mar- * Hyde v. Trent Nav. Co., 6 T. R. shall r. American Express Co. , 7 Wis. 389; Cahn v. Michigan, &c. R., 71 1 ; Witbeck v. Holland, 45 N. Y. 13 ; 111. 96. 92 Penn. St. 323. 6 Richmond R. v. \Vliite, 88 Ga. 2 See Baldwin v. American Ex- 805. In Tanner r. Oil Creek R., 53 press Co., 23 111. 197 ; Packard v. Penn. St. 411, it is held that the Earle, 113 Mass. 280; Sullivan v. freight-agent may bind a railway Thompson, 99 Mass. 269. company by hi.s promise to give notice of the goods' arrival. 537 § 516 THE LAW OF BAILMENTS. [PART YI. In general, a special custom mutually understood, or special contract, may, if reasonable and just, vary the common rule of the particular vocation, in respect of the place or mode of making- deliver3^^ § 510. Responsibility as Warehouseman further considered. — As we have seen, a carrier may become himself the ware- houseman or depositary of goods left upon his hands after his transportation duty terminates ; ^ or he may constitute some responsible third party the warehouseman.^ In the latter case, the nature of the carrier's delivery must determine on whose behalf it is made ; for, if the consignee fails, after rea- sonable opportunity, to take the goods, the carrier has his election to make the third party his own agent, for whose negligence he shall stand responsible, or to divest himself of such risks by making such third party agent of the owner.* Where the carrier himself becomes warehouseman of the goods, personally or by his own agent, it is of importance to note whether the transportation duty has ended, or not, upon the principles already discussed. For, in the one case, he re- mains no longer chargeable as insurer, and under the carriage contract, but must, for loss or injury occasioned while acting in this new capacity, be held answerable only as would any other ordinary bailee for hire, supposing the bailment to be with in- tended recompense, or as a gratuitous bailee, if the trust be without recompense.^ In the other case, however, and wheie 1 See §§ 519, 520, post. 10 Met. 472 ; Smith v. Nashua R., 7 2 Supra, § 500. Fost. 91 ; Norway Plains Co. v. Bos- 3 lb. ton & Maine R., 1 Gray, 2G3 ; Hall * Great Northern R. v. SwaiiBeld, v. Boston & Worcester R., 14 Allen, L. R. 9 Ex. 132 ; Bickford v. Metro- 444 ; Francis v. Dubuque R., 25 Iowa, politan Steamship Co., 109 Mass. 151 ; 60 ; Neal v. Wilmington R., 8 Jones Hamilton v. Nickerson, 11 Allen, 308 ; (N. C), 482 ; Bansemer v. Toledo R., Hathorn v. Ely, 28 N. Y. 78, 81. See 25 Ind. 434 ; Jackson v. Sacramento Alabama R. v. Kidd, 35 Ala. 209, Valley R., 23 Cal. 268. We have where the contract was to deliver to already seen that our States rule dif- the carrier's own agent. ferently as to the exact point at which 5 Story Bailm. § 446 ; Garside v. the railway carrier divests himself Trent Nav. Co., 4 T. R. 581 ; Shep- of his responsibility as such, and herd v. Bristol R., L. R. 3 Ex. 189 ; becomes a warehouseman. Supra, Thomas v. Boston & Providence R., § 513. 538 CIIAr. VI.] COMMON CARRIERS. § 517 the transportation dutj' has not been fully ijcrformed, his lia- bility is essentially that of common carrier, or such as makes the bailee answerable at the common law for losses by rioters, accidental fires, and the like ; which rule must further apply where the carrier deposits the goods at some intermediate place on his route,^ or sends by a conveyance different from that agreed upon,^ or has carried them carelessly out of the way, or, after their arrival at the point of destination, holds them still, without having as yet given the notice or reason- able opportunity of removal, or made the personal delivery which was incumbent upon him.^ § 517. Responsibility of Carrier to forward beyond his Route ; Connecting Carriers. — hi other rcspects the carriage and de- liverj' of goods as a common carrier will be found associated with further duties towards the property. A carrier may be at the same time a forwarder for a particular undertaking ; pos- sibly, too, a wharfinger or warehouseman, besides; and here the point at which performance ceases in one capacity and be- gins in the other is of consequence in determining the chang- ing character of his risks. Completing his own carriage duty, and holding as warehouseman or wharfinger, to await the owner's orders, before the goods are put upon their next course, the position of this party is that of an ordinar}' bailee for hire.'* So, if as forwarder, the carrier, on arrival of the goods at the termination of his own route, puts them into a proper vehicle for their further conveyance, having no inter- est therein, he discharges his own carriage duty completely, and is not responsible for their subsequent loss.^ The modern expansion of our inland transportation system, whereby goods are carried in a continuous line to distant 1 Forward v. Pittard, 1 T. R. 27 ; * Roskell v. 'U'aterliouse, 2 Stark. Story Bailm. §§ 417, 5.3G. 461 ; Piatt v. Hibbard, 7 Cow. 497 ; 2 As where ordered to send by Goold v. Chapin, 10 Barb. 010; An- " f ast freight" and sending differ- gell Carriers, § 1.34; Story Bailm. ently. 12.5 Penn. St. 020. § 440. 8 Hyde v. Trent Nav. Co., 5 T. R. ^ Story Bailm. §§ 448, 538 ; Ack- 389; White v. Ilumphery, 11 Q. B. ley v. Kellogg, 8 Cow. 223 ; Garside 45 ; Hemphill v. Chenie, 6 W. & S. v. Trent Nav. Co., 4 T. R. 681. 62 ; cases, supra, § 513. 539 §519 THE LAW OF BAILMENTS. [PART VI. points by means of successive carriers, has given rise to some delicate and perplexing questions before English and Ameri- can tribunals, concerning the point at which a particular car- rier's liability shall terminate, while the goods are taking their onward course. In one case a carrier may have undertaken a through transportation over other lines to a given terminus, on his strict responsibility ; while in another his engagement may be that of a mere forwarder for the customer beyond his own route.^ § 518. Carrier's Duty of making Proper Delivery where receiv- ing from another Carrier. — In general, we may add, the car- rier's duty of making proper delivery, without unreasonable delay either before or after his arrival, is the same, whether he received the property directly from the consignor, or from some other carrier to whom it was originally bailed.^ § 519. Usage, Special Contract, or Legislation affecting Deliv- ery. — Usage, special contract, or legislation may affect the common carrier's obligation of delivery, as it often does the transportation undertaking in other respects.^ This the drift of the present chapter has already indicated. As to the first point, dark allusions are not unfrequently made by courts of this day to the force of custom and usage in justification of what might otherwise be pronounced a posi- tive variance of authorities. Usage dispenses with personal delivery by ships and railway carriers.^ Usage of railways has been strongly alleged by some courts as a ground for reliev- ing such carriers from the obligation of giving notice ; ^ and strongl}^ too, has usage been upheld as the reason for treat- ing various other classes of carriers with less favor.^ 1 See c. 9, post, as to delivery by to justify the peculiar method of de- connecting carriers. livering from a vessel. See 87 N. Y. 2 Gulliver v. Adams Express Co., 240, as to the designation of an ele- 38 111. 503. vator by the consignee. See also 8 Supra., c. 5. §§ 511, 515, supra ; 3 Wall. 225. * Supra, § 506. Whether carriers by inland vraters s Supra, § 513. And see 83 Mo. may divest themselves of responsi- 112. bility like carriers by sea or not, 6 Supra, § 514. usage long established, uniform, and Usage of the port is often set up vyell knovsm may regulate the mode 540 CHAP. VI.] COMMON CARRIERS. §519 We may here observe generally that, while the primd facie obligation of a carrier, with regard to delivery, may be affected by a well-established usage consonant to public policy and gen- erally understood, so uniformly and so long ought the usage to have been acquiesced in by the public that a jury would feel constrained to say that it entered into the minds of the contracting parties as part of the contract.^ Yet it suffices that a carrier does his business according to the regular, known, and ordinary modes, or, if the other party understood it, his own particular modes; and the carrier need not prove that his consignor understood an established usage, for the usage explains itself.^ As to delivery, which peculiarly con- cerns the local terminus, and not so much a consignor as the consignee, the course of business at the place of destination may control concerning the proper time, place, and manner of discharging the carrier's duty.^ But usage or custom cannot prescribe that acts which the law declares to be a delivery of delivery. The Richmond, 1 Biss. 49 ; Abb. Adm. 209. Where a bill of lading is silent as to the particular place or mode of delivery, the usage and regulations of the port or the ar- rangements made with the consignee should determine ; but it is the cus- tom of the particular port, and not of other ports, which governs. 10 Fed. R. 779 ; 2 Am. L. Reg. n. s. 287. Delivery to the wrong elevator, or at the wrong wharf, is, in such cases, a misdelivery. For a local usage of railroads to deliver under a bill of lading not containing the words " or order," without requiring production of the document, see 1.3.3 Mass. 154. Usage in some of our sparsely settled re- gions to deliver goods by water at a landing-place where there is neither warehouse nor agent to keep custody, binds customers who are aware of it. 4 McCrary, 383. And Turner t. Huff, 46 Ark. 222, affirms the usage, even as against customers not aware of it. And so is it with the custom of deliv- ering by railway at a side track and there leaving the car and its contents for the consignee, the comjjany hav- ing neither depot nor station-agent at that point. 0(5 Ala. 1(37. Those who do business with the carrier upon such conditions are bound to look after their property when it arrives. 1 Rushforth v. Hadfield, 6 East, 519 ; Alabama Rivers R. v. Kidd, 35 Ala. 209 ; Calm v. Michigan Central R., 71 111. 90 ; Angell Carriers, § 301 ; StoiT Bailm. § 543. 2 See St. John v. Van Santvoord, 25 Wend. 660 ; Farmers', &c. Bank V. Champlain Trans. Co., 10 Vt. 52 ; s. c. 18 Vt. 131 ; s. c. 23 Vt. 180 ; Loveland v. Burke, 120 Mass. 139, per Ames, J. 3 lb. And see Barnes v. Foley, 5 Burr. 2711. It has been held that a carrier may show usage to deliver at certain stopping-places only. See McMasters v. Penu. R., 69 Peun. St. 374. 541 §520 THE LAW OF BAILMENTS. [part VI. shall not sufficiently constitute it,^ or otherwise overturn what public policy sets up ; and, where delivery according to usage becomes from special circumstances unsuitable, the carrier cannot so discharge himself.^ § 520. The Same Subject. — Special contract may regulate the time, place, and manner of delivery, and, as we have inci- dentally shown, affect very considerably the common carrier's obligation in this and other respects, by stringent or lax pro- visions ; though not, as it appears, to the extent, in America at least, of permitting persons of this profession to stand toward their customers with lesser burdens, under the most favorable aspect, than are sustained by private bailees for hire.^ Special terras, relative to delivery and the mode of ter- minating the carrier's responsibility, must, if reasonable of themselves, prevail over local usage as well as common law ; * and the common carrier's performance should in general be in accordance with his engagement;^ which, as modern trans- 1 Reed v. Richardson, 98 Mass. 216. Usage to deliver without re- gard to indorsement of a bill of lad- ing "to order," etc., is bad. 75 Iowa, 673 ; § 492. 2 Stone V. Rice, 58 Ala. 95. 3 See supra, § 454. In case of a refusal to deliver to the consignee under a mistaken belief that freight has not been paid, a special stipula- tion against liability for " detention " does not protect the carrier. Gordon V. Great Western R., 8 Q. B. D. 44. Nor, in general, are contract terms, by way of reducing liability, which relate to the transit, to be extended by construction to negligence or mis- conduct affecting the goods after their arrival. * Myrick v. Michigan R. , 7 Re- porter, 229. ^ A carrier may thus bind himself to transport and deliver without a change of cars. Stewart v. Mer- chants' Trans. Co., 47 Iowa, 229. 542 Or to deposit in warehouse at the consignee's risk and expense unless the goods are promptly taken. Thom- son V. Liverpool, &c. Steam Co., 44 N. Y. Super. 407. Or so as to apply a specific rule as to § 513. Western R. V. Little, 86 Ala. 159. Where a steamship company provides a special wharf with a covered warehouse into which a cargo is discharged, and the time and place of discharge are eas- ily ascertainable by consignees, a special exemption from liability for loss by accidental fire after unloading is reasonable. Constable v. Steamship Co., 154 U. S. 51. And see Tarbell V. Royal Shipping Co., 110 N. Y. 170, Personal notice by the carrier as to time and place of discharging cargo may be thus dispensed with. 154 U.S. 51. But express agreement for place of landing must be followed. 68 Miss. 803. Express company's special limitation considered where the consignee could not be found. CHAT. VI.] COMMON CARRIERS. §521 portation is conducted, is quite commonly to be gathered from the expressions used in the bill of lading, way-bill, or receipt given for the goods, to which the sliipper has actually or by legal inference assented.^ A special contract may limit as to the character and mode in which the railroad carrier shall hold sroods after their arrival, or define what acts shall termi- nate his carrier risk, if public policy be not transcended.^ § 521. The Same Subject. — Legislation, too, may be found affecting the local operation of the rules we have considered ; and it might well be employed more extensively to eradicate some of the more glaring inconsistencies of our law touching the delivery obligation of railway and other carriers, and the method of terminating the present relation when the goods have reached their journey's end.^ Some local statutes, in fact, may be found which specify the course to be pursued by railways in delivering freight ; * and various legislative Merrill v. Express Co., 62 N. H. 614. 1 Supra, §§ 404, 511. The princi- ples set forth in the preceding chap- ter as to the requirement of mutual assent and reasonableness of inter- pretation apply to terms qualifying the duty of delivery as well as to other terms of carriage performance. See Ayres v. Western K., 14 Blatchf. 9. An agreement to allow goods to remain in a carrier's custody for ninety days after their arrival witli- out extra charge, does not fairly im- port that the carrier consents to be held as insurer for so long a period. Hathorn v. Ely, 28 N. Y. 78. On the other hand, negligent delay and devi- ation, or misdelivery or misconduct or careless delivery, should not be excused under the color of special terms of carriage. Supra, §§ 488, 489 ; 08 Ga. 805 ; Dibble v. Morgan, 3 Ben. 276. And see Wise v. Great Western K., 1 H. & N. 63 ; Mitchell V. Lancashire R., L. R. 10 Q. B. 256 ; Bank of Commerce v. Bissell, 72 N. Y. 615 ; Toledo, &c. R. v. Merri- man, 52 111. 123 ; Bancroft v. Mer- chants' Desp. Trans. Co., 47 Iowa, 202. 2 Western R. v. Little, 86 Ala. 159 ; Feige v. Michigan R., 62 Mich. 1. As in an option to retain goods in the cars or store them, provided the cus- tomer has reasonable time to remove. Draper v. Delaware R., 118 N. Y. 118. Cf. § 513. 3 See supra, §§ 481-486, 513. * Houston R. V. Adams, 49 Tex. 748. A New York statute forbids the delivery by a common carrier of property covered by a bill of lading except on surrender of the bill, unless the words "not negotiable" are on the face of the document. 102 N. Y. 120. For legislation concerning the man- ner of unloading live-stock, etc., see 15 Fed. R. 209 ; U. S. Rev. Sts. §§ 4380, 4390. And as between rules under § 513, see 56 Cal. 584; 49 Tex. 748; 94 Cal. 166. Notice to consignee is requisite. 110 Cal. 348. 543 § 521 THE LAW OF BAILMENTS. [PART VI. provisions, carefully framed, now abound, which authorize the sale of unclaimed property by certain classes of common carriers.^ 1 See Mass. Pub. Stats. (1882) c. 96. And see next chapter. 544 CHAT. VII.] COMMON CAlilUERS. § 523 CHAPTER VII. GENERAL RIGHTS OF COMMON CARRIERS. § 522. General Rights of Carrier stated. — The general rights of the common carrier which remain for our consideration are: I. His special property in the goods and cliattels during the accomplishment of the biilment purpose. H. His right of compensation, with or without the incidental security of a lien. § 523. Carrier's Special Property in the Thing ; Right of Ac- tion. — I. As to the common carrier's special property in the goods and chattels during the accomplishment of the bailment purpose. In conformity with the general doctrines of mutual-benefit bailments, every common carrier is invested with a special property in the goods and chattels which a customer confides to him, so that he may maintain an action against any and all persons who disturb his possession thereof and injuriously interfere with the performance of his hiwful duties. He may thus replevy the thing from a stranger, or sue in trover for the conversion.^ He may sue in his own name for a trespass upon or injury to the property carried.^ He may likewise recover in many general instances from his sub-contractors, whose delinquency occasions an injury or loss for which he must personally respond ; as wliere one company has transported, on behalf of itself as the principal and responsible party on a connecting line, and a connecting company occasions the loss.^ The general reason of this 1 Bac. Abr. Contract C ; Roll. ^ jjot at common law only, but, as Abr, 6 ; Angell Carriers, § 348 ; Gos- to carriage by water, in admiralty, ling V. Higgins, 1 Camp. 451, per and where there has been damage Lord EUenborough. The carrier's by collision. Beaconsfield, The, 158 recovery of full damages against the U. S. 303. wrong-doer will bar the owner. ' Chicago, &c. R. v. Northern Line Steamboat Farmer v. Macrow, 26 Packet Co., 70 111. 217 ; Smith v. Ala. 189. Foran, 43 Conn. 124 ; post, c. 9. 35 545 § 525 THE LAW OF BAILMENTS. [PAKT VI. right of action in the common carrier's behalf is that, as bailee, he must answer over to the bailor or owner whom he represents for the whole property committed to him ; ^ and this is reinforced, in instances like the present, by the con- sideration that he commonly has a special interest in the par- ticular goods or chattels, as security for his recompense.^ So ample, therefore, is the remedy afforded the carrier, that, as against trespassers, he has been allowed to recover, in dam- ages, the full value of the goods.^ So, too, if a carrier by mistake or the fraud of others de- livers goods to the wrong person, he may replevy the goods or sue in damages for their conversion ; and this right avails generally against the wrong receiver of the goods and any person subsequently receiving them.* § 524. The Same Subject. — The carrier, too, as a principal bailee who employs his own subordinates in the performance of an undertaking, is entitled to sue his servant, sub-con- tractor, connecting carrier, or other subordinate, by virtue of his own responsibility over to the owner for their acts, and the circumstance that he has employed them, whenever any such party stands chargeable with a breach of contract made with him.^ § 525. Carrier's Right of Compensation. — II. As to the common carrier's right of compensation, with or without the incidental security of a lien. We have shown, in a previous chapter, that the carrier's right of recompense for his trouble 1 Supra, §§ 22, 54, 115. innocently acquired, does not impair 2 Supra, § 122. the right of the true owner to pursue 3 Campbell v. Conner, 70 N. Y. and take them, a carrier stands in no 424. This was the case of an unlaw- better situation than any other bailee ful seizure by a sheriff, who attached or transferee of a wrong-doer, but without first giving indemnity as the must surrender to the true owner law required. whose conduct has not estopped him But since the owner of chattels is to assert his claim. Supra, § 494. not divested of his property (except * 80 Ala. 100. in certain cases where negotiable in- * Deford v. Seinour, 1 Ind. 532 ; struments come to the hands of a White v. Bascom, 28 Vt. 268. And bona fide party for value) by their see Chicago, &c. R. v. Northern Line fraudulent or larcenous taking, and Packet Co., 70 111. 217 ; Smith v. the transferee's possession, however Foran, 43 Conn. 124 ; supra, § 108. 546 CHAP. Vir.] COMMON CARRIERS. § 527 is so highly favored at our hiw that one may refuse, in the exercise of his public vocation, to transport goods and chat- tels for any customer, unless first paid his reasonable reward for the service.^ More commonly, however, is this reward claimed by him at the journey's end as a condition precedent of surrendering the property to the consignee. Where common carriers receive goods in the ordinary course of business, to be transported from one place to an- other, they may expressly stipulate for an}^ reward which, of itself, is not extortionate, oppressive, or to the special disfa- vor of individuals \^ but in the absence of express stipulation, the law implies that the usual and customary compensation shall be paid.^ § 52G. Recompense, how denoted; Freight; Contract, etc. — Recompense for the carriage of goods and chattels on a large scale is usually denominated "freight," — a word which, originating in maritime law, was once restricted to convey- ance by water, but now applies as well to inland transporta- tion, though more especially to that by railway.^ But other words are used with more particular reference to the lesser carriers ; such as " cliarges," " reward," " hire money," " fare ; " this last word applying rather to passengers and their bag- gage, than to the general conveyance of goods and chattels. Where through some misunderstanding or otherwise the minds of the parties have not met upon the terms of carriage, the standard of reasonable recompense will determine what should be paid.^ § 527. "When Freight begins; Removal of Goods placed on Board. — The consignor of goods, who has once completely delivered them to the carrier, has no right to demand them 1 Supra, § 373. < See Bouv. Diet. " Freight ; " 2 Supra, §§ 373-376. And see Worcester, ib. ; Story liailm. § 587 ; Ansell Carriers, § 392. Angell Carriers, §§ 391, 392 ; Brittan 8 lb. Nor ought reasonable rates v. Barnaby, 21 How. 527. to be reckoned without reference to ^ Rowland v. New York 11., Gl the carrier's limitations by .special Conn. 103 ; Louisville R. v. Wilson, contract. Holford t?. Adams, 2 Duer, 119 Ind, 352. 471. 547 § 528 THE LAW OF BAILMENTS. [PART VI. again, and break or prevent their transit, regardless of the carrier's just indemnity ; nor would he, by altogether refus- ing to deliver them according to the contract of transporta- tion, absolve himself from making compensation in damages for his breach of engagement. And the approved rule as to carriage by a general ship, extending, perhaps, to other modes of conveyance by land or water, is that one who has laden goods cannot insist on having them relanded and delivered to him without paying the freight that might become due for carrying them, and indemnifying the master against the consequences of signing a bill of lading.^ But, as regards the question, when lien attaches to the goods, and the earn- ing of freight, as such, commences, authorities are not uni- form. The modern English rule, of which some American authorities approve, regards the freight as being earned, and the lien therefor as attaching from the time the goods are once delivered, and accepted by the carrier; which accept- ance would quite commonly date from the delivery of a bill of lading.''^ But other decisions in this country decline to recognize any right in the carrier by sea to recover full freight, or to avail himself of the lien security, before he has broken ground for the voyage ; whereby the consignor's earlier removal of the goods he has delivered would entitle the carrier only to sue for his proper indemnity, as under any breach of contract.^ § 528. Recompense ■where Goods are intercepted by Owner. — If the consignee or owner demands and receives the goods 1 Thomson v. Trail, 2 C. & P. 334, how the carrier might, by availing per Lord Tenterden ; Tindal v. Tay- himself of his proper opportunities, lor, 4 E. & B. 219, 227, per Lord have substituted other freight and Campbell, C. J. ; Angell Carriers, mitigated his loss. § 393. When this question arises for ap- 2 Tindal v. Taylor, 4 E. & B. 219 ; plication to railway cars, it will be Thompson v. Small, 1 C. B. 328; found to present a different aspect Bartlett v. Carnley, 6 Duer, 194. from that of carriage by a single 3 Bailey v. Damon, 5 Gray, 92. vehicle, because of the circumstance And see Burgess v. Gun, 3 Har. & J. that freight cars are attached or left 225 ; Curling v. Long, 1 B. & P. 636. off from a train, according to the Such a construction of the carrier's nature and amount of personal prop- indemnity leaves it open to consider erty requiring present transportation. 548 CHAP. VII.] COMMON CARRIERS. § 529 before they reach their final destination,^ he is liable for the full freight or recompense, provided the carrier was ready to deliver at their ultimate destination, and does not consent to an abatement of his charges.- But where acceptance is made short of the place originally agreed upon, and the mutual understanding appears to justify the supposition that the carrier abates his charges, then the carrier will be entitled only to pro raid compensation ; ^ which would be the general result of an acceptance where the transit, from some cause exonerating the carrier from liability, was broken up or seri- ously interrupted.* If, however, the consignee or owner intercepts and takes his goods because of the carrier's tortious conduct, or his inexcusable refusal to complete the transit according to his contract, the carrier earns no freight at all.^ And wherever the carrier inexcusably loses the goods on the way, or they are wrongly delivered, or other act is done which the law visits upon the carrier, rendering their delivery impracticable, he has no right as such to receive freight for their carriage.^ § 529. Rule of Full Freight or None considered. — Indeed, the rule which has long been asserted of carriage by water under a bill of lading is that the contract of transportation • is an entire one, so that the carrier can recover no compensa- tion unless he fulfils his engagement by making a complete transit and complete delivery.' But to thus permit the cus- 1 See supra, § 505. '' Ship Nathaniel Hooper, 3 Sumn. 2 Violett V. Stettinius, 5 Cranch 542, 550, and cases cited ; AngellCar- C. Ct. 559. Tiers, 5th ed., § 398, and Lathrop's 8 U. S. Dig., 1st Series, Carriers, note; Sayward v. Stevens, 3 Gray, 420 ; Lorent v. Kentrin";, 1 Nott & 97. The convenience with which the M. 132 ; Portland Bank v. Stubbs, 6 consignee may supply the deficiency Mass. 422, 427 ; Parsons v. Hardy, is held not to better the carrier's 14 Wend. 215 ; Hunt v. Haskell, 24 claim for compensation. Sayward Me. 339. V. Stevens, ib. 4 lb. No freight is due, whether full or 6 See Parsons, C. J., in Portland pro rat(i (under the rule of the text), Bank v. Stubbs, 6 Mass. 422, 427. where a ve.ssel has been captured 6 Ferguson v. Cappeau, 6 Har. & and condemned with its cargo at an J. 400 ; Sayward v. Stevens, 3 Gray, intermediate port, though part of the 97; Mason v. Lickbarrow, 1 II. Bl. 359. cargo is restored and sold at the same 549 § 530 THE LAW OF BAILMENTS. [PART VI. tomer to derive an advantage at the carrier's expense seems unnecessarily harsh, and such a rule must often discourage the carrier from doing his best where calamity occurs. This doctrine, which probably originated out of regard for the peculiar incidents and responsibilities attending ocean navigation and the carriage of cargoes, where the presump- tion is a fair one that intermediate delivery must be im- mensely inconvenient to an importing merchant, applies with less force to land transit and small consignments; since here, to a much greater extent, one carrier may forward what an- other has left, and the owner, by telegram or otherwise, adapt his course to the emergency, so as to reduce the mis- chief which disaster occasions. Even in water carriage, the courts have broken the force of the rule to some extent, by paying fair heed to the mutual understanding of the parties, as their express contract, acts, or general conduct make it manifest. Thus, not only may an intermediate or partial acceptance by the shipper or consignee be construed into a waiver, on his part, of full performance by the carrier, and a new mutual agreement for a pro raid compensation,^ but, under the original contract itself, the idea of allowing full freight or nothing may be excluded, to a just and reasonable extent.^ Moreover the fault of the customer shall not de- prive the carrier of his recompense ; nor shall temporary stress or delay amount to a breaking up of the transit.^ § 530. The Same Subject. — Thus, where the carriage con- tract is not for a gross sum, nor relates to miscellaneous goods, unlike in kind or value, and bearing no definite pro- portion to one another, but is apparently designed to make compensation for the carriage divisible and apportion able, port. Sampayo v. Salter, 1 Mason, i Supra, § 528 ; Ship Nathaniel 43. Nor generally in case of a com- Hooper, 3 Sumn. 542 ; Bigelow, C. J., pulsory sale at an intermediate port in Sayward v. Stevens, 3 Gray, 97, by reason of the disaster. 3 Ware, 104 ; 2 McL. 422. 139 ; Abb. Adm. 490. No freight is ^ 2 McL. 422 ; Industrie, The, earned against the shipper where [1894] P. 58. delivery has become impossible. 4 84 ^iss. 417 ; 5 Duer, 538, Blatchf. 443. 550 CHAP. Vir.] COMMON CAIIKIERS. § 530 such a contract will be enforced according to its intent; as, where the freight is stipulated as payable by weight or meas- urement, or where different [)ortions of the same consignment are upon distinct and separate terms as to freight.^ Full freight is due where the loss, as under a consignment in leaky barrels, is owing to the consignor's fault,^ or where the consignee prevents due delivery from being made.^ Where, too, a common carrier pays damages for the loss of goods by his breach of contract, this is now regarded as tantamount to a safe delivery in many instances, so as to entitle liim to the allowance of his freight thereon.* And if, from some cause which would clearly excuse a total delivery, as, for ex- ample, where part of the goods consigned were destroyed by lightning, without the carrier's fault, or perished from natu- ral decay, the carrier makes delivery of a portion only, courts incline to allow him freight pro raid for the portion safely delivered.^ The universal rule, however, as to what may have been actually lost in transit, is, in the absence of some special usage or contract to the contrary, that, provided neither owner nor carrier was in default, and saving, of course, the carrier's common-law risks as an insurer, the goods must perish to the one and the freight to the other.*^ Nor is a 1 Ritchie v. Atkinson, 10 East, * TIaminond v. M'Cluros, 1 Bay, 295 ; Sayward v. Stevens, 3 Gray, 101 ; Atkisson v. Steamboat Castle 97, 103. As to computing payment Garden, 28 Mo. 124. And see Ila- by weight, etc., see 6 Ben. 199. gerstown Bank v. Adams Express 2 Nelson v. Stephenson, 5 Duer, Co., 45 Penn. St. 419. But cf. 538 ; 4 Biss. 417. Stevens v. Sayward, 8 Gray, 215, 3 Angell Carriers, § 400 ; 2 McL. where there was no acceptance of 422. the residue by the consignee. It appears that where a landing ^ Price v. Hartshorn, 44 Barb. 055 ; of the goods is prevented by the gov- The Brig CoUenberg, 1 Black, 170. ernment officials, wilhout the carrier's "lb. Cf. as to ordinary bailees fault, freight is nevertheless earned, for mutual benefit, supra, § 111. Morgan v. North Am. Ins. Co., 4 And see TirrcU v. Gage, 4 Allen, 245. Dall. 455. See Ilowland v. Green- As to the commercial apjiortion- way, 22 How. 491. But it is other- ment of freight, and the circum- wise with a seizure caused by the stances under which it may be carrier's wrong. Elwell v. Skiddy, claimed, see further, Angell Car- 16 N. Y. Supr. 73. riers, 6th ed., §§ 399-408, and La^ 551 §531 THE LAW OF BAILMENTS. [part VI. special contract which throws risks of loss upon the owner readily assumed to make him pay freight upon what is lost besides.^ § 531. Freight where Delivery is incomplete. — Where, once more, a carrier, after making a partial delivery, unlawfully withholds delivery of the residue, and the consignee there- upon replevies them, freight may be recovered on the portion already delivered, and also on such portion as may after- wards arrive and be taken by the officer and delivered to the consignee after the beginning of the service of the re- plevin, there being, as to all this, no demand and refusal ; but as to that portion the possession of which was obtained only by replevin, the carrier cannot, as it appears, recover freight.^ In order to claim freight under his lien the carrier must deliver or tender delivery at the specific place agreed on and not elsewhere.^ throp's notes. Capture involves a loss of freight ; but a recapture and performance of the voyage revives the right. Angell Carriers, § 401. Transshipment after disaster may keep the right of freight alive. An- gell Carriers, §§ 402, 403. But this must be deemed affected by a con- sideration of the carrier's duty in this respect. See supra, §§ 401-404 ; Crawford v. Williams, 1 Sneed, 20.5 ; Hopper V. Burness, 1 C. P. D. 1.37. Where goods are so far damaged as to utterly lose their merchantable char- acter, — as vf here dates are soaked in salt water and reduced to a pulp, — freight is precluded. Asfar v. Blun- dell, [1896] 1 Q. B. 123. When goods are shipped and the vessel is wrecked, and the shipper abandons the cargo to the insurers, who accept the abandonment, and take possession of the goods against the wishes of the owners of the ves- sel, who are ready to send the goods on, this renders the shipper liable for 552 freight pro ratU. McKibbin v. Peck, 39 N. Y. 262. Cf. Atlantic Ins. Co. V. Bird, 2 Bosw. 195. For circum- stances deemed insufficient to con- stitute abandonment and a loss of freight, see Hughes v. Sun Ins. Co., 2N. E. 901 (N.Y.). The justifiable conduct of the car- rier, and his readiness to perform his full engagement so as to benefit the shipper, seems properly to be taken in his favor in all such cases, while his default, or a determination to earn freight regardless of the shipper's in- terests under an emergency, is taken against him. 1 N. Y. Central R. v. Standard Oil Co., 87 N. Y. 486. 2 Boston & Maine R. v. Brown, 15 Gray, 223. The actual decision is, that such freight cannot be recovered in an action commenced while the re- plevin suit was pending. 3 Clark V. Masters, 1 Bosw. 177, 185; 60 Mich. 56. Thus it is not enough for a vessel to arrive at a CHAP. Vn.] COMMON CARRIERS. § 533 § 532. Recompense paid in Advance recovered if not earned. — Ill the absciice of any special agreement to the contrary, the payment of freight or recompense in advance may be re- covered back if it is not actually earned ; that is to say, in general, unless the carriage has been fully performed consist- ently with the carrier's undertaking.^ § 533. Recompense under Bill of Lading or Special Contract. — The understanding of the liarties in respect of the carriage compensation is quite commonly, however, to be gathered from the language employed in the bill of lading or other contract of affreightment or carriage. The carrier, or the party from whom freight or recompense is claimed, may show, on his behalf, that the actual cargo was different from that described in the bill of lading, the receipt being open to explanation; 2 and thus the carrier may be found entitled to more or less compensation than there appears.^ The rule is, that though goods should swell or shrink naturally on the transit, so as to weigh more or less at the terminus than when taken on board, this will not affect the right oi jJro raid com- pensation ; since this is due only on the amount which is actually shipped;* but the special engagement serves as the standard for special cases.^ Of the general rule,^ Bigelow, C. J., observes, in a leading case on this subject, that it " 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 [sliip] owner [or carrier] at the time of its prepayment, and wharf ; it must unload there. 66 * Gibson v. Sturge, 10 Ex. 622. M(l. 269. 6 See, as to the recent construc- 1 Manfield v. Maitland, 4 B. & Aid. tion of certain expressions in this re- 582 ; Minturn v. Warren Ins. Co., 2 spect, Buckle v. Knoop, L. li. 2 Ex. Allen, 86, and cases cited ; Chase v. 125 ; L. R. 2 Ex. 333 ; Coiilthurst v. AlHance Ins. Co. , 9 Allen, 311. See Sweet, L. R. 1 C. P. 649; TuUy v. § 533. Terry, L. R. 8 C. P. 679 ; Robinson '•^ Blanchet v. Powell's Colliery Co., v. Knight, L. R. 8 C. P. 465 ; Duihie L. R. 9 Ex. 74 ; The Schooner Treas- v. Hilton, L. R. 4 C. P. 138 ; Mor- urer, 1 Sprague, 473. chant Sliipping Co. v. Armitage, L. 8 Allen V. Bates, 1 Hilt. 221 ; Nel- R. 9 Q. B. 99. sou V. Stephenson, 6 Duer, 638. " See § 532. 553 § 534 THE LAW OF BAILMENTS. [PART VI. not in any degree dependent on the contingencies of the per- formance of the contemphited voyage and the entire f uliilment of the contract of carriage.^ But, as such a stipuhition is intended to control the usual law applicable to such contracts, and to substitute in its place a positive agreement of the par- ties, it is necessary to express it in terms so clear and unam- biguous as to leave no doubt that such was the intention in framing the contract of affreightment. Otherwise, the gen- eral rule of law must prevail." ^ Reduced rates might furnish a consideration for an absolute payment in advance and the assumption of risks of loss besides.^ § 534. Consignee in General liable for Freight ; his Cross- Ac- tion for Damages. — The consignee or proper party receiving the goods is in general responsible for their freight: "the only discrepancy between the decisions being," as one of our American judges remarks, " whether the damages from injury to, or non-delivery of, the goods, are to be recovered by a sepa- rate action or by recoupment from the freight earned." * In England it was early decided that, if the consignee of goods received any benefit from their carriage, he could not defend himself from the payment of freight on the ground that the goods had been inexcusably damaged by the carrier to an amount exceeding the freight, but should bring his cross- action.^ But the modern inclination, and especially in this country, seems to be to allow the injury or partial loss occa- sioned by the negligence of the carrier to be set off pro tanto against his claim for compensation, even though it be to extinguish such claim altogether.^ 1 De Silvale v. Kendall, 4 M. & pense may be otherwise varied by S. 37 ; Jackson v. Isaacs, 3 H. & special contract, see supra, § 529. N. 405 ; Hicks v. Shield, 7 El. & B. ^ \2 Fed. R. 77. 633. * Appleton, J., in Hill v. Leadbet- '^ Bigelow, C. .1., in Benner v. ter, 42 Me. 572, 576. Equitable Safety Ins. Co., 6 Allen, ^ Shields v. Davis, 6 Taunt. 65 ; 222, 224. This issue is raised in cases Ritchie v. Atkinson, 10 East, 295. where insurance is made upon the ^ Sedgw. Damages, 451 ; Hinsdell freight. See Lawson v. Worms, 6 v. Weed, 5 Denio, 172 ; Boggs v. Mar- Cal. 365; Atwell v. Miller, 11 Md. tin, 3 B. Mon. 239 ; Kaskaskia Bridge 348 ; 12 Fed. R. 77. That recom- Co. v. Shannon, 1 Gilm. 15 ; Bancroft 554 CHAP. VII.] COMMON CARRIERS. § 536 § 535. Consignor is originally liable for Freight or Recom- pense. — Iii(lei)en(leMtl3% however, of an acceptance at the end of the transit, it is the consignor or shipper who is ordinarily bound to pay the freight or recompense on the goods whose transportation he procures, and thus may the carrier doubt- less regard him when they are offered for transportation.* But whenever the consignee engages to make payment, he, too, may be held responsible accordingl3^ The tenor of bills of lading and similar documents of title and transportation, and the conduct of the transferees of such instruments, may aid the carrier in fi.xing the liability to himself of others, for whose benefit the transportation was conducted ; ^ and the re- ceipt of goods unpaid for by the consignee or proper party usually imports a promise on the part of such consignee to stand responsible for what, on the whole, may be the carrier's rightful charges.^ Even though the consignor had sold the goods to the con- signee by delivery to the carrier, and the carrier was cogni- zant of that fact, the consignor is still presumably liable for the freight ; but circumstances may repel such presumption and show that the carrier meant to rely upon the consignee alone.* ^ § 536. Liability for Recompense under a Bill of Lading. — So strongly do the courts now regard the consignor of prop- erty for transportation as originally liable for the carrier's compensation, that the shipper named in a bill of lading may commonly be sued by the carrier for his remuneration, even though he was not the true owner thereof, provided the car- rier has seen fit to waive his right of lien and to deliver the V. Peters, 4 Mich. 519 ; Hill v. Lead- East, 665 ; Christy v. Row, 1 Taunt, better, 42 Me. 672 ; Leech v. Bald- 300 ; Story Bailm. § 589 ; Holt v. win, 5 Watts, 4 16 ; Edwards v. Todd, Westcott, 43 Me. 445 ; Wooster v. 1 Scammon, 462 ; Fitchburg U. v. Tarr, 8 Allen, 271. Hanna, 6 Gray, 539 ; Dyer v. Grand ^ jb. Trunk R., 42 Vt. 441 ; La Motte v. » Story Bailm. § 589 ; Hill v. Lead- Angel, 1 Hawaiian, 136, per Lee, C. J. better, 42 Me. 672 ; 3 Ben. 39. And see c. 8, post. * Union Freight Co. v. Winkley, 1 Abb. Siiipp. p. 3, c. 7, § 4, 5th 169 Mass. 133. ed. ; Shepard v. De Bernales, 13 555 § 536 THE LAW OF BAILMENTS. [PAKT VI. goods without receiving payment of the carriage dues.^ And the clause customarily inserted in bills of lading, directing payment of freight by the consignee or his assigns, is, by the current of English and American authorities, intended only for the benefit of the carrier ; so that, if he delivers without receiving such payment, he may recover of the consignor instead.^ But where the carrier procures the further stipula- tion in such bill of lading that the freight shall be payable to him, it is held that he ought personally or by agent to be present to receive payment from the consignee at the proper time and place.^ In general, the tardy and negligent per- formance of a duty respecting payment which the carrier owes may, in case of the consignee's subsequent insolvency, be reasonably visited upon himself instead of his consignor, because of the two innocent parties he has occasioned the loss. Where the consignee receives his goods under a bill of lad- ing, this is evidence from which a contract may be inferred to pay freight in consideration of the carrier's surrender of his lien thereon ; * and some cases seem to presume the con- tract to pay very strongly under such circumstances.^ But if the consignee designated in the bill of lading indorses the bill over before receiving the goods, his liability becomes thereby transferred, together with the right to claim them;^ 1 "Wooster v. Tarr, 8 Allen, 271. B., in Young v. Moeller, 5 E. & B. 2 lb. ; Fox V. Nott, 6 H. & N. 630 ; 755, 760. Shepard v. De Bernales, 13 East, ^ gee Dougal v. Kemble, supra ; 565 ; Holt v. Westcott, 43 Me. 445 ; Merian v. Funck, 4 Denio, 110 ; An- Angell Carriers, § 397 ; Woodwai'd, J., gell Carriers, § 397, 5th ed., and the in Thomas v. Snyder, 39 Penn. St. valuable notes of Mr. Lathrop ; New 317, 322. See Weguelin v. Collier, York Nav. Co. v. Young, 3 E. D. L. R. 6 H. L. 286, where certain Ian- Smith, 187. See Hinsdell v. "Weed, guage contained in the bill of lading 5 Denio, 172, as to the effect of re- was held equivalent to the usual ceiving the goods in part, after a par- clause, "he or they paying freight." tial loss. 3 Thomas v. Snyder, 39 Penn. St. s Cock v. Taylor, 13 East, 399 ; 317. Dougal V. Kemble, 3 Bing. 383; Tobin * Cock V. Taylor, 13 East, 399 ; v. Crawford, 5 M. & W. 235 ; 9 M. & Dougal V. Kemble, 3 Bing. 383 ; San- W. 716. ders V. Vanzeller, 4 Q. B. 200 ; Parke, 556 CHAP. VII.] COMMON CARRIERS. § 538 and whoever obtains the delivery of goods nndcr sucli a bill contracts, by implication, to pay the freight due on them.^ The English Bills of Lading Act strengthens this doctrine as enforced in that country, by providing in substance that the rights and liabilities of the consignee or indorsee shall pass from him by indorsement over to a third person.^ A refusal by the consignee to accept, unless upon deduction for damage done the goods, does not constitute acceptance of the consignment, and a contract to pay freight.^ § 537. The Same Subject. — Where goods are consigned by the terms of the bill of lading, so that delivery is made to one party as the agent for another, the receiving party incurs no personal liability for the freight ; but his princi|)al will rather become bound as the true consignee.* And if the carrier delivers to the indorsee of a bill of lading he cannot recover freight from the purchaser after delivery from the indorsee.^ One to whom a bill of lading is assigned merely as se- curity is not liable for the freight if he does not receive the goods.*^ § 538. Reimbursement of Carrier's Expenses ; Extortionate Charges not allowed. — A carrier may be entitled to the re- imbursement of incidental charges and expenses reasonably incurred in the performance of the transit, which his special contract does not restrain him from demanding ; but he can- not charge for services which were not performed, nor for 1 lb. ; Merian v. Funck, 4 Denio, knowledge and assent to such trans- 110. Dougal V. Kenible, 3 Bing. 383, fer, see Lewis v. M'Kee, L. R. 2 Ex. is a case in point where this rule 37 ; L. 11. 4 Ex. 58. was rigorously enforced. And the ^ Davis v. Pattison, 24 N. Y. 317. assignee who, as such, receives the * Amos v. Teniperley, 8 M. & W. goods, may be held liable for freight, 798 ; Grove v. Brien, 8 How. 429 ; even though the bill of lading was Miner v. Norwich R., 32 Conn. 91 ; made after the goods were sent to a Allen v. Bareda, 7 Bosw. 204. public warehouse. New York Steam ^ 28 Fed. R. 335. Nav. Co. V. Young, 3 E. D. Smith, « Blanchard v. Page, 8 Gray, 281 ; 187. Swett V. Black, 2 Spr. 49. And see, 2 Actl8&19 Vict. c. Ill ; Smurth- as to a surety, Trask v. Duvall, 4 waits V. Wilkins, 11 C. B. n. s. 842. Wash. 181. See also 7 Bias. 366. But, as concerning the carrier's 557 § 540 THE LAW OF BAILMENTS. [PART VI. expenses not reasonably incurred, nor, in general, overcharge, or demand exorbitant and unlawful recompense. Sums thus extorted from a consignee or customer, and paid under pro- test, the aggrieved party may recover from the carrier as for money had and received.^ Nor ought a carrier in general, without some sort of au- thority from the consignee, to perform acts upon the goods outside of his transportation contract, such as may subject the consignee to extra expense, even though this might prove in a measure beneficial ; as where a carrier undertakes at his own discretion to make good the ordinary wear and tear pf the transit at his consignee's cost, or makes personal delivery, at a special charge, in teams of his own employing, when his legal duty was to let the consignee come and remove them from his depot in whatever mode he might choose for himself.^ § 539. Charges w^here Sender imposed upon the Carrier. — On the other hand, where the sender has fraudulently or even carelessly induced a transportation at reduced rates, the carrier may, upon discovering the fraud or error, require payment of his regular and proper charges for carrying the goods.^ But where no deceit or imposition of any kind was practised by the sender, and no inquiry was made as to the contents or value of the package, the carrier cannot charge" more than his agreed recompense, on any plea that it proved more hazardous or more valuable than he had supposed.* § 540. Right to charge Demurrage. — Demurrage is an 1 Garton v. Bristol & Exeter E., 2 Richardson v. Rich, 104 Mass. 1 B. & S. 112 ; 15 Neb. 390 ; Great 156. See Cahn v. Michigan Central Western R. v. Sutton, L. R. 4 H. L. R., 71 111. 96. 226; Heiserman v. Burlington R., 3 pry ^. Louisville R., 103 Ind. 63 Iowa, 782. In Peters v. Scioto 265 ; Smith v. Findley, 34 Kan. 316. R., 42 Ohio St. 275, the customer's * Baldwin v. Liverpool Steamship right to recover illegal exactions as Co., 74 N. Y. 125 (where nitro- not paid voluntarily is ruled quite glycerine was thus carried), strongly. Here payments were made A carrier who agrees with the periodically, instead of upon each sender to carry goods at less than shipment. the regular rates is bound thereby. 16 Neb. 661. 558 CHAP. VII.] COMMON CARRIERS. § 542 allowance which marine law makes by way of indemnity to the carrier where the vessel has been detained unreasonably long in loading or unloading the cargo through the fault of the customer.^ If this right exists at all, so as to afford a lien, independently of contract, statute, or usage tantamount to law, it is confined to carriage by water ; and while railroad carriers may store in case of delay and charge storage rates, or perhaps sue for special damages, they cannot claim demur- rage, nor enforce such a claim by a lien upon the goods.^ Demurrage under marine law, and irrespective of special contract, imputes fault to the party who failed to unload; and hence a consignee's reasonable diligence must depend upon existing circumstances.^ §541. Legislative Tariff of Charges. — It is constitutional for a State legislature which has not abdicated fundamental powers to fix the maximum compensation which railway and other carriers shall charge the public* But a State cannot, under our Federal constitution, regulate rates of transporta- tion to and from another State.^ § 542. Carrier's Recompense secured by Lien ; its Priority, etc. — The compensation of the common carrier, whose pay has not been taken in advance, continues, at his option, re- coverable upon the lien security of the goods and chattels themselves; which is so common a means of assistance in 1 .3 Kent Com. 159 ; Bouv. Diet. B. G2G ; aff. [1893] App. 22. Cf. 25 "Demurrage"; Myer Fed. Decisions, Q. B. D. 320. Carriers, §§ 75.3-758. * See Peik v. Chicago R., 94 U. S. 2 Cliicago R. V. Jenkins, 103 111. 164 ; Chicago R. v. Acklcy, 94 U. S. 588 ; 15 Neb. 390 ; East Tennessee 179. R. V. Hunt, 15 Lea, 2G1. A railway Modern legislation is frequently may stipulate for reasonable charges directed against the tendency of rail- for such delay where the customer is ways and other common carriers to to unload the car for himself. 88 make excessive and wrongful charges, Ga. 5(53. See also Kentucky Co. v. and penalties are prescribed for the Ohio R., Ky. (1896). offence. Supra, §§ 374-376, 485. 8 Delay by reason of the strike See, ib., concerning the extent of the (1889) at London dock was held to carrier's duty not to transport at constitute no claim for demurrage, uiieriual or at excessive rates, in Hick v. Rodocanachi, [1891] 2 Q. ^ Waba.sh R. v. Illinois, 118 U. S. 557. And see c. 10. 559 § 543 THE LAW OF BAILMENTS. [PART VL obtaining one's dues under his bailment performance, and so highly advantageous, that the law presumes, wherever a car- riage undertaking is performed as to certain property without previous reward, that the carrier meant to retain its posses- sion at the end of the transit until fully remunerated ; and this, whether the transportation were by land or water.^ In its character and extent this lien is quite similar to that of innkeepers and ordinary mutual-benefit bailees which we have elsewhere discussed.^ Thus, there may arise in favor of the carrier, by virtue of a wide-spread custom or usage, or under some special contract, a general lien upon his cus- tomer's goods, for a general balance of accounts ; ^ but that which alone the law can be said to favor is a particular lien upon the goods transported, for the particular charges and expense incurred in respect of them.* This particular lien of the carrier is superior to that of any pledgee or other bailee who had procured the carriage of the goods ;^ but he cannot extend it to the prejudice of other rights.^ § 543. What Charges a Carrier's Lien protects. — A common carrier, then, may usually retain particular goods, by virtue of his lien right, until the freight and charges due thereon for his whole transportation are paid or tendered him, and he cannot be compelled to give them up sooner. This lien, moreover, extends to all the proper freight and storage charges upon the goods throughout the whole of a continu- 1 Story Bailm. § 588 ; Skinner v. * Adams v. Clark, 9 Cush. 215 ; Upshaw, 2 Ld. Raym. 752 ; Angell cases infra. Carriers, §§ 356, 369 ; Langworthy ^ Cooley v. Minnesota R., 53 Minn. V. New York & Harlem R., 2 E. D. 327. Smith, 195 ; 1 Schoul. Pers. Prop. ^ Thus as against a consignor's §§ 378-380 ; 2 Kent Com. 634 ; The stoppage in transitu the carrier's Eddy, 5 Wall. 481 ; Long v. Mobile lien will hold for charges and ex- R., 51 Ala. 512 ; cases infra. penses upon that consignment, but 2 Supra, §§ 122, 123. not for an unpaid balance due from ^ Angell Carriers, §§ 358-362 ; the consignee on other consignments. Rushforth v. Hadfield, 6 East, 519 ; Pennsylvania R. v. Oil Works, 126 7 East, 224 ; Wright v. Snell, 5 B. & Penn. St. 485; 102 N. C. -390 ; Penn. Aid. 350. Co. V. Georgia R., 94 Ga. 630. See 560 §499. CHAP. VII.] COMMON CAUHIEKS. § 544 ous transit over successive lines; since the last carrier or final warehouseman may advance what was lawfully due his predecessors, and hold the property as security for his reim- bursement.^ If a consignor exercises the right of sto])page in transitu he must honor the carrier's particular lien for his recompense.^ But the carrier's lien does not protect over- charges;^ nor charges unenforceable of legal right;* nor a repayment from the consignee of what has been paid in ad- vance.^ It does not as a rule secure former freight remain- ing unpaid, or the customer's general indeljtedness ;^ nor acts performed towards the property wliieh were entirely outside of what was expressed or implied in the carriage contract." Yet the carrier's lien is sometimes specially extended so as to cover the extraordinary expenses which may have been incurred on the transit, with respect to the propert}^ without authority from the owner ; as where a vessel goes asliore, and the cargo is rescued, with a cost, on the carrier's part, not, under the circumstances, unreasonable ; for this is done by the bailee in possession for the benefit of all concerned, and the lien claim appears analogous to that for general average or salvage.^ § 544. No Lien against Owner ^w•here Bailment was Wrongful. — The carrier, as against the true owner, has no lien on goods 1 Stevens v. Boston & Worcester Gorman, 1 Minn. 301 ; Briggs v. R., 8 Gray, 202 ; Briggs r. Bo.ston & Light-Boats, 11 Allen, 157; The Lowell H., C Allen, 24G ; White v. Davis, 10 Wall. 15. Vann, 6 Humph. 70 ; Schneider v. ^ Travis v. Thompson, 37 Barb. Evans, 25 Wis. 241 ; Nordemeyer 230 ; Marsh v. Union Pacific H., 3 V. Loescher, 1 Hilt. 499 ; 85 Ga. 343. McCr. 250. And see pout, c. 9, as to connecting ^ Adams v. Clark, 9 Cush. 215 ; carriers. Leonard v. Winslow, 1 Grant Cas. 2 Potts V. N. Y. II., 131 Mass. 455. 139 ; Pharr v. Collins, 35 La. Ann. 8 Long V. Mobile K., 51 Ala. 512. 9:!9. * For carrying mailable matter " Richardson v. Rich, 104 Mass. contrary to the provisions of Con- 15G ; Steamboat Virginia u. Kraft, 25 gross, the carrier has neither right of Mo. 70 ; Wiltshire Iron Co. v. Great action nor lien. Hill v. Mitchell, 25 Western R., L. R. Q. B. 770. Ga. 704. As to a carrier's lien on » ningston v. Wendt, 1 Q. B. D. goods which he transports on behalf 307. And see supra, §§ 122, 123. of his government, see Dufolt v. 36 561 § 545 THE LAW OF BAILMENTS. [PART VI. delivered him for transportation by a wrong-doer without such owner's express or implied assent ; and this, though he carry them or pay back charges upon them innocently ; inas- much as no one is to be deprived of his property without his consent.^ Nor can one who has carried a thing for the sole convenience of the mere hirer thereof, and at his request, acquire a lien upon the property available against the owuer.^ And while it must be generally admitted that the carrier's lien, and his right to retain possession, prevail as against the general owner until his reasonable charges are paid him, the courts, nevertheless, rule that this lien and right of posses- sion are so far personal to him that a wrong-doer who has acquired possession cannot set up any such defence to the suit of the general owner.^ But where the owner or his agent was at fault in procuring transportation to some point, or over some route not intended, the carrier's lien is good for his own charges and those advanced by him, provided they be reasonable and incurred in good faith.* § 545. Lien ho-w preserved; Possession Necessary. — But, in order to preserve his lien security, the general doctrine of liens requires the carrier who claims its benefit to retain pos- session of the goods, and not deliver them up while his dues remain unsatisfied. An unqualified and voluntary delivery to the consignee entitled will, as a rule, discharge the lien, if the carrier was not defrauded into making it;^ but so highly 1 Waugh V. Denham, 16 Irish C. L. ported as part of his own baggage, 405 ; Fitch v. Newberry, 1 Doug, quaere. A strong reason for prefer- (Mich.) 1 ; Kobinson v. Baker, 5 ring the innkeeper in issues like this Cush. 137 ; Stevens v. Boston & might be, that the custody and shel- "Worcester R., 8 Gray. 2G2 ; Clark v. ter of any owner's property in an inn Lowell, &c. K., 9 Gray, 231. See can hardly fail to be beneficial to King V. Richards, 6 Whart. 418. him, while transporting it to a dis- 2 Gilson V. Gwinn, 107 Mass. 126. tance without his authority is more This would seem to indicate that the likely an aggravation of the injury carrier, in respect of his lien, is less occasioned by the dispossession itself . favored as against a true owner than See supra, § 326 ; and see 72 Ga. the innkeeper ; though whether the 655. doctrine of this case would apply so ^ Ames v. Palmer, 42 Me. 197. as to utterly exclude the carrier's * Briggs v. Boston & Lowell R., 6 lien upon property belonging to an- Allen, 246. other, which the passenger has trans- ^ Angell Carriers, § 370 ; Bigelow 562 CHAP. VII.] COMMON CARRIERS. § 546 favored is the bailee's right of lien as to particular goods upon which he has performed an unremunerated and bene- ficial service, and so concomitant must be the acts of making delivery at the end of a transit and receiving compensation for the carriage, that acts of incomplete or conditional de- livery are not, by the leading authorities, deemed decisive of an intention to waive one's convenient right of lien upon the property. Thus, the transfer of goods from a vessel to the warehouse should be considered, if the terras of the contract or local usage can justify the construction, not an absolute delivery, but rather a deposit for the time being in the ware- house, so as to preserve the carrier's constructive possession.^ The discharge of a cargo on a wharf with notice preserves the lien.2 Again, should the consignee procure a delivery of the goods to himself by a false and fraudulent promise to pay the freight due as soon as they are received, or otherwise gain their possession by dishonest stratagem or theft, or by coercion of the carrier, the carrier's lien is not waived, but he may disaffirm and sue the consignee in replevin.^ And, as in other cases of lien, the carrier might make a special delivery, as for enabling the consignee to inspect the condi- tion of the property, or to put it in repair, without impairing his right to hold it for security of the transportation charges.'* Where, however, his lien has once been utterly waived and extinguished, the carrier cannot, by merely regaining posses- sion of the goods, enable himself to reassert it.^ § 54G. Lien not lost by a Partial Delivery. — The inclination of the courts is certainly against presuming a waiver or ex- tinguishment of the carrier's lien, so long as no more than a partial delivery has been made. Thus, where several cargoes V. Heaton, 4 Den. 496 ; Story Bailm. C. P. 227 ; The Bird of Paradise, 5 § 588 ; Kinloch v. Craig, .3 T. R. 119 ; Wall. 545, 555 ; [1894] 1 Q. B. 483. Sears v. Wills, 4 Allen, 212 ; Bow- 2 The Eddy, 5 Wall. 481. man V. Hilton, 11 Ohio, 303 ; Bags of ^ Bigelow v. Heaton, G Hill, 43; Linseed, 1 Black, 108 ; 61 Iowa, 338 ; AngoU Carriers, § 374. 43 Fed. 480. ■» See supra, §§ 122, 123 ; 1 Sclioul. 1 Bags of Linseed, 1 Black, 108 ; Pers. Prop. § 385. Mors Le Blanch v. Wilson, L. R. 8 ^ lb. 563 § 548 THE LAW OF BAILMENTS. [PART VI. or instalments of coal are successively transported for one owner, and portions thereof carried away and delivered from time to time from the carrier's premises at the place of des- tination, the presumption would be that the carrier retains his lien upon that which remains for the freight and storage of all the cargoes or instalments.^ A corresponding presump- tion may apply to partial deliveries made for a customer on a round trip.^ For the rule is, that for conveying goods the carrier may detain the whole or a part of the goods until the freight on all is paid.^ Whether the mutual intent of the parties was to discharge the lien, under such circum- stances, contrary to the presumption, a jury must determine.* § 547. Total Delivery on Stipulation that Lien shall con- tinue. — • Following out the principle which applies as between vendor and vendee, we might, perhaps, conclude that the carrier has the right to deliver the goods fully upon an ex- press or implied condition that his lien shall not be divested until his charges are fully paid ; ^ though it blunts the edge of the law to infer qualifications of this character in favor of parties who have totally surrendered actual possession with- out clearly expressing what rights they mean to reserve; and superior equities may arise in favor of third parties where the carrier has so surrendered. § 548. Extension or Waiver of Lien by Special Agreement. — So, too, may the parties to the carriage undertaking frame their contract so as to affirm the existence of the lien, or to extend or modify it, or even to exclude it altogether ; and on this point the language of a bill of lading, way-bill, or other like document, or the charter-party of a vessel, may be found conclusive.^ And while the presumption must be in favor of 1 Lane v. Old Colony R., 14 Gray, * New Haven Co. v. Campbell, 128 14.3. And see Vitrified Pipes, in re, Mass. 104. 14 Blatchf. 274. & Hoar, J., in Lane v. Old Colony 2 Fuller V. Bradley, 25 Penn. St. R., 14 Gray, 143, 148; The Eddy, 120. 5 Wall. 481. 3 Boggs V. Martin, 13 B. Mon. 239 ; « See Angell Carriers, §§ 385, 386 ; Abbott Shipping, 377 ; Angell Car- Chase v. Westmore, 5 M. & S. 180 ; Tiers, § 373 ; 94 Ga. 630. Pinney v. Wells, 10 Conn. 104 ; Mc- 564 CHAP. VII.] COMMON CAKKIEKS. § ;348 the carrier's lien, and his intention, if need be, to exercise such a right, this presumption may be overcome by a direct exclusion of the right in the contract of carriage, or by the insertion of some stipulation which is wholly incompatible with its existence. To stipulate that credit shall be given for the consignee's dues would be inconsistent with such a riglit; or that the goods shall be unconditionally delivered before the freight is paid.^ But where language somewliat ambiguous is employed, justice requires that the carrier should receive the benefit of the doubt ; and hence language importing that the payment or adjustment of the carriage dues sliall be concurrent or simultaneous with the delivery of the goods, or, at all events, leaving the duty of making a delivery antecedent to such payment or adjustment in doubt, is not to be construed into a stipulation for displacing the carrier's lien.^ Even a stipulation which amounts to giving the consignor or customer a sliglit credit may be controlled where the general language used imports an intention to claim the usual right of lien ; though credit might be prom- ised for so long a period as to justify the inference that the lien was not to attach, but that the personal responsibility of the customer was trusted.^ Questions of this character, however, arise more particu- larly with reference to sea than land carriage ; and in West- minster Hall and the Supreme Court of the United States, where the mutual binding of the ship and cargo for carriage dues under a charter of affreightment has proved an exceed- ingly interesting question, the manifest inclination has been in favor of the doctrine that while lien for freight, whicli is a common-law right, may be mutually displaced or waived by special stipulations of carriage inconsistent with and destruc- tive of it, this displacement or waiver is not shown, but the Lean v. Fleming, L. R. 2 H. L. Sc. 571 ; Logs of Mahogany, 2 Sumn. 128 ; Kirchner v. Venus, 12 Moore 000 ; Alsager v. Dock Co., 14 M. & P. C. 361. W. 798 ; Tamvaco v. Simpson, L. R. 1 The Bird of Paradise, 5 Wall. 1 C. P. 371 ; Payuter v. James, L. H. 645, 556. 2 C. P. 348. 2 See The Volunteer, 1 Sumn. » The Kimball, 3 Wall. 42. 565 § 549 a THE LAW OF BAILMENTS. [PART VI. right remains, unless the special agreement is absolutely in- consistent with the retention of the goods for lien security.^ § 549. Lien for Unpaid Instalments of Freight. — There may be, by virtue of the arrangement made for paying or adjust- ing the freight to the carrier, a right of lien for instalments of freight still due and unpaid. Problems of this character are very intricate for solution ; but the better opinion appears to be that when an acceptance for freight or an instalment thereof is overdue and unpaid, this, even though it were given for an instalment payable in advance, leaves the carrier free to stand, upon his lien right, unless he has clearly waived it ; since a bill of exchange or promissory note does not extin- guish or operate as payment of a debt unless the parties have so expressly agreed.^ But sums stipulated to be paid in ad- vance, and not dependent on the carrier's contract, have not the incidents of freight, and are not, unless by virtue of usage or special contract, protected by the carrier's lien.^ Notwithstanding one instalment of the stipulated freight has been paid on arrival, and the balance is made expressly pay- able on delivery of the goods, the presumption of intention favored would be that delivery and payment are concurrent acts, so as to leave the carrier's lien right unimpaired.* § 549 a. Where Damage to Goods exceeds Recompense. — Where the damage done to the goods exceeds the proper 1 See The Bird of Paradise, 5 tates against Gilkison v. Middleton, Wall. 545, 558, in which a lucid and 2 C. B. n. s. 134, and Neish v. Gra- very valuable opinion is pronounced ham, 8 E. & B. 505. See also, as to by Mr. Justice Clifford ; Foster v. the sea-carrier's claim of lien for Colby, 3 H. & N. 715; Phillips v. "dead freight," Kerford v. Mondel, Rodie, 15 East, 554 ; Kirchner v. 6 H. & N. 931 ; Fry v. Chartered Venus, 12 Moore P. C. 361, and Bank of India, L. R. 1 C. P. 689; cases cited ; Howard v. Macondray, Gray v. Carr, L. R. 6 Q. B. 522. 7 Gray, 516; Pinney v. Wells, 10 2 steamer St. Lawrence, 1 Black, Conn. 104. But it is often a matter 533 ; The Kimball, 3 Wall. 37, 45. of nice construction to determine ^ See Mr. Justice Clifford, in The whether the terms of commercial Bird of Paradise, 5 Wall. 545, 562; contracts exclude the lien right or How v. Kirchner, 11 Moore P. C. 21. not. In England, where such cases * Paynter v. James, L. R. 2 C. P. more commonly arise, Kirchner v. 348. Venus, 12 Moore, P. C. 361, mili- 566 CHAP. VII.] COMMON CAllKIERS. § 550 recompense for carrying them, and the carrier is culpablt*, his lien is displaced, inasmuch as he owes indemnity.^ S 550. Legal Effect of Carrier's Lien ; Right to sell. — The legal effect of the carrier's lien is, that he may retain the goods and suspend delivery thereof until his compensation and rightful charges for their transportation are properly ad- justed; and if the lien be upon merchandise carried on the high seas, the carrier may enforce it by proceedings in rem.^ But no carrier has a right by virtue of a lien — which, in common law, is practically only a right of detainer — to sell the goods as of his own motion, and so reimburse himself; nor would he, by such sale, confer title upon another more than a wrong-doer could.^ This hardship has, in some meas- ure, been rectified by local legislation, which provides, to some extent, that unclaimed property in the hands of certain carriers, such as railways or express companies, or, more gen- erally, that freight transported by steam or sailing vessels, or other specified carriers, may be sold to pay the carriage charges ; and, moreover, directs how the sale shall be con- ducted and the proceeds applied.'* And since the carrier, with property left on his hands, in an emergency, is a sort of trustee for the rightful owner or party in interest, he may, on such a consideration, but not by right of the lien, make a fair and open sale of the property where the goods are perish- able, or other extreme occasion occurs for prompt and decisive action on his own responsibility, and, deducting his freight and charges out of the proceeds, retain the balance for dispo- sition according to law;^ though, so perilous must be such a 1 See Miami Co. v. Tort Royal R., * See e.g. Mass. Pub. Stats. (1882) 38 S. C. 78. c. 9G. 2 See Mr. Justice Clifford, in The ^ Rankin v. Memphis Packet Co., Bird of Paradise, 5 Wall. 645, 555. 9 Ileisk. 564 ; Arthur v. Schooner 8 Lecky v. McDermott, 8 S. & R. Cassius, 2 Story, 81, 97. By virtue 500 ; BrifTps v. Boston & Lowell R., of his special undertaking, the car- 6 Allen, 240; Hunt v. Haskell, 24 rier is sometimes empowered to make Me. 3:59 ; Sullivan v. Park, 33 Me. sale of the goods at the place of desti- 438 ; Indianapolis R. v. Herndon, 81 nation, — in other words, he is both 111. 143. carrier and factor for his customer ; but this is quite a different case. 567 § 552 THE LAW OF BAILMENTS. [PART VI. course on his part, it is very doubtful whether the carrier is under any obligation, after fulfilling his contract of transpor- tation, to make such sale at all.i Under all circumstances the carrier's sale should be openly and fairly conducted, with a just regard to the owner's interest.^ §551. Carrier may sue for his Compensation, etc. — Inde- pendently of the lien security, a carrier may, after relinquish- ing his possession of the property transported, bring his action at law to recover his rightful compensation ; unless, indeed, he has stood upon his legal right of claiming pay in advance. The principles here applicable have already been incidentally set forth.^ § 552. Payment and Delivery are Concomitant Acts. — Pay- ment of the transportation dues and delivery of the goods are concomitant or concurrent acts ; so that neither consignor nor carrier is obliged to perform on his part until the other is ready to perform the correlative duty.* And under the ordinary bill of lading, given for carriage by water, freight is demandable only when the goods are discharged from the vessel, and the party to whom delivery is owed has reasona- ble opportunity to examine into their condition ; while, on the other hand, the carrier is under no obligation to part with possession of the goods, or make actual delivery, except upon pa3'ment or tender of his lawful dues.^ A consignee may See Angell Carriers, §§ 355 ; Rapp 3 Sn})ra, §§ 534-536 ; 3 Kent Com. V. Palmer, 3 Watts, 178 ; supra, 219 ; Angell Carriers, §§ 391, 409- § 368. Qucere, whether a special 417, and cases cited. As to the car- contract of the parties may give the rier's recompense by way of offset carrier a power to sell, Sayward v. in a suit against him for damages, Stevens, 3 Gray, 97, 105. The pro- see §§ 582-584. vision of a bill of lading to this effect, * Tate v. Meek, 8 Taunt. 280; even if assented to by the consignor, Adams v. Clark, 9 Cush. 215 ; Angell doesnotnecessarily conchidethe con- Carriers, §§384,400; Long v. Mo- signee and all other possible parties bile R., 51 Ala. 512; Clark v. Mas- in interest. ters, 1 Bosw. 177, 185. 1 As to lien upon baggage, see ^ gee Johnson, J., in Vitrified Part VIL c. 4. Pipes, in re, 14 Blatchf. 274 ; Black 2 See Nathan v. Shivers, 71 Ala. v. Rose, 2 Moore, n. s. 277 ; Lanata 117. V. Ship Henry Grinnell, 13 La. Ann. 24. 568 CHAP. Vir.] COMMON CARRIERS. § 552 test the goods reasonably; but his opportunity to inspect does not empower him to insist upon unreasonable or useless tests. When, therefore, the party to whom the goods were to be delivered offers to pay the freight and charges rightfully due, the carrier's refusal to deliver them is a breach of his con- tract duty, for which an action of assumpsit will lie ; and all that the consignee need aver and [)rove, in support of such action, is his readiness to pay the freight, the demand of the goods, and the carrier's refusal to make delivery.^ Indeed, where the carrier's non-delivery is clearly wrongful, as, for instance, where he refuses to give the property up, except on pa^-mont of that which the lien does not protect, or the fulfilment of a condition which ho has no right to impose, trover may be brought against him instead, with a suitable averment on the plaintiff's part.^ Replevin of the goods also lies, as modern authorities hold, for the carrier's wrongful refusal to give them up, and this to the forfeiture, it may be, both of his lien and compensation for freight;^ and where the carrier has, by his delay in transporting and making de- livery of the goods, injured the consignee to an amount equal to the freight charges, it is held that the consignee may maintain replevin for the goods, without paying or tendering the freight.* But, in general, to enable the consignee to sue the carrier for withholding delivery of the goods, he must tender the freight ; ^ nor should the carrier's request for rea- sonable time to ascertain and verify, especially on a long, continuous line, what freight may be lawfully due, be neces- sarily construed into an absolute refusal on his part to per- form his duty. 1 2 Sannd. 352 ti. 3 ; Porter v. Whart. 435 ; Boston K. v. Brown, Rose, 12 Johns. 209 ; Long v. Mobile 15 Gray, 223 ; Dyer v. Grand Trunk R., 51 Ala. 512, 513 ; Metcalf, J., in R., 42 Vt. 441. And see next chap- Adams V. Clark, Cush. 215. ter. 2 11). ; Marsh v. Union Pacific R., * Dyer v. Grand Trunk R., 42 Vt. 3 McCr. 230; Richardson v. Rich., 441. And see Hall v. Cheney, 36 104 Mass. 150. N. H. 26 ; Alden v. Pearson, 3 Gray, 8 Cutting V. Grand Trunk R., 13 342. Allen, 381 ; Humphreys v. Reed, 6 ^ § 531. 569 § 554 THE LAW OF BAILMENTS. [PAET VI. § 553. The Same Subject ; Mutual Rights of Carrier and Con- signee. — Hence, too, it follows that, since no consignee is bound to pay freight until the goods are delivered, or offered for delivery, independently of an express contract to do so, the carrier cannot sue such a party for his freight until he has at least tendered the goods. And where a carrier by vessel stood upon his legal right not to deliver the cargo, or any part of it, until his freight was paid, and the consignee of the cargo stood upon his right not to pay freight until the cargo was discharged, ready to be completely delivered, it was held, in a recent case, that the carrier, by subsequently landing the cargo, did not enable himself to sue for his freight before he had given the consignee notice of such delivery, or made demand for his recompense.^ § 554. Goods shipped as Entire not to be treated as in Por- tions. — Neither carrier nor consignee can require, as of right, that goods under one bill of lading shall be delivered in par- cels, on a separate payment of freight for each parcel.^ Nor where a shipment is landed in parts, can freight upon the whole shipment be demanded upon a part delivery.^ The delivery of part of a consignment does not operate as a de- livery of the whole.* 1 Vitrified Pipes, in re, 14 Blatchf. cargo to the consignee, though not 274. In this case the goods were formal, may be sufficient where the libelled for the freight, and the court consignee refuses unjustifiably to re- dismissed the libel with costs. The ceive it, and a reasonable time is assignee of a bill of lading may have given him to accept. 1 Fed. R. 619. the cargo weighed and examined to See, further, McCuUough v. Hellweg, verify quantity and quality. But he ^6 Md. 269. cannot require a delivery without ^ Vitrified Pipes, in re, 14 Blatchf. paying freight, nor insist upon un- 274. And see Paynter v. James, reasonable methods of weighing. The L. R. 2 C. P. 348. Schooner Treasurer, 1 Spr. 473. Vex- 3 Brittan v. Baniaby, 21 How. 527. atious conduct in this respect may be * Jeffris v. Fitchburg R., Wis. construed into a refusal to accept (1896). delivery. lb. And a tender of the 570 CHAP. VIII.] COMMON CARRIERS. § 556 CHAPTER VIII. KEMEDIES AGAINST COMMON CARRIERS. § 555. Causes of Action against Common Carrier stated. — Three leading causes of action are recognized in favor of the customer as against the common carrier : I. For inexcusably refusing to receive goods offered him for transportation. II. For transporting them, or accomplishing the bailment pur- pose, so tliat they become inexcusably lost or injured. III. For his negligence or misconduct in delivering them over, after his transit is completed. § 556. Remedy for Refusal to receive. — I. Where the com- mon carrier inexcusably refuses to receive goods offered him for transportation. The obligation of the carrier, in this respect, with its true limitations, has already been sufficiently considered.^ The usual form of common-law action against the carrier, for such refusal, is case ; and the plaintiff should aver that he was ready and willing to pay the defendant the amount such party was legally entitled to receive for receiv- ing and carrying the goods in question ; an absolute tender of recompense not being, under these circumstances, an in- dispensable prerequisite to maintaining one's suit.^ The consignor or owner whose property is inexcusably refused transportation is the proper party to sue the carrier on such a grievance, rather than any mere consignee.^ 1 Supra, §§ 373-383. buriGrh R. v. Morton, 61 Ind. 539, 2 Supra, §§ 373-383 ; Tickford v. And see supra, § 374, as to the right Grand Junction R., 8 M. & W. 372; to sue the carrier for di.scriminating Crouch V. Great Northern R., 11 Ex. unjustly in favor of certain cu.stomers. 742, 758 ; Angell Carriers, §§ 124, Where the refusal to carry alleged 418 ; Galena R. v. Rae, 18 111. 488 ; other reasons than non-payment, a McGill V. Rowand, 3 Penn. St. 451 ; tender of freight money need not be Fitch V. Newberry, 1 Dongl. (Mich.) averred. 08 Tex. 49. 1 ; New Jersey Steam Nav. Co. v. ^ Lafaye v. Harris, 13 La. Ann. Merchants' Bank, G How. 344 ; Pitts- 553 ; supra, § 383, Where one sues 671 § 558 THE LAW OF BAILMENTS. [PART VI. How far mandamus will lie to compel a carrier to perform his public obligation is not clearly decided ; this being, how- ever, a remedy which should not, in general, be invoked where the injured party has another, specific and adequate, under the common law.^ § 557. Remedy for Loss or Injury in Transportation. — II. Where transportation or the accomplishment of the bailment purpose is such that the goods become inexcusably lost or injured. In this instance of surpassing importance it is a matter of regret that our law should not, in all points, make the bailment remedies clear and certain, more than the bail- ment rights. These remedies we shall, however, proceed to state with as much precision as the nature of the case admits. § 558. Form of Action in Such Cases. — 1. Concerning the form of action. This, at common law, may be ex delicto or ex contractu. So long as the common-carriage occupation was considered simply as a public duty, its breach was deemed tortious, and the carrier suable in an action on the case founded upon the custom of the realm ; but when contract began to assuage the rigor of public policy, it became estab- lished that the carrier should be held liable in assumpsit on his undertaking ; and hence the modern usage to lay hold of the advantages of the action ex contractu, while preserving those likewise of that more ancient remedy against carriers, ex delicto, which the practice of earlier centuries commended.^ for the carrier's refusal to transport of a public obligation. 34 Fed. R. goods tendered him, the measure of 481. damages is the difference between ^ Angell Carriers, § 422, and cases the value of the property at the place cited ; Dale v. Hall, 1 Wils. 282 of tender and its value at the desired (1750), per Dennison, J. ; Tattan v. destination, less expenses of trans- Great Western R., 2 E. & E. 844; porting. People v. New York R., Baylis v. Lintott, L. R. 8 C. P. 345 ; 22 Hun, 533 ; Harrison v. Stewart, Orange Bank v. Brown, 3 Wend. Taney, 485 ; Galena R. v. Rae, 18 158 ; Smith v. Seward, 3 Penn. St. 111. 488. See also, as to damages, 342 ; School District v. Boston, &c. Houston R. V. Smith, 63 Tex. 322. R., 102 Mass. 552 ; Baltimore R. r. 1 See snpra, § 383. Injunction to Pumphrey, 59 Md. 390. prevent discrimination is sometimes The above cases concede to the permitted. 27 Fed. R. 529. Or in- aggrieved party quite a free choice junction to compel the performance of remedies against a defaulting car- 572 CHAP. VIII.] COMMON CAUKIEUS. § 559 Wliere the transaction and tlie character of the loss ie(|uire the phaintiff to sliow in variance of the common-law liahility, a contract, express or implied, witli the carrier, to support his action, contract is the true remedy ; otherwise, the prefera- ble form of action is tort. And in case of a special contract, especially a written one, action should be brought on that contract and not upon an implied one.^ § 559. The Same Subject ; Action Ex Delicto. — The action ex delicto^ which may be safely brought as an action on the case where one seeks to charge the carrier on a sim[)le breach of duty depending on the common law and public policy, or on some other tort or misfeasance, has this advantage, that, if it be uncertain whether some or all of certain parties are liable, the plaintiff may recover against all who are liable, while the rest go free, since the action itself is several and not joint ; whereas one who sues in assumpsit must prove the liability of all against whom he brings his suit.^ And, rier, as between the action ex delicto and the action ex contractu, unless it is incumbent upon him to show some special contract, express or implied ; and this, though there be in reality a privity of contract between the parties. But in England (where the choice of action in this respect may affect the question of costs as limited and prescribed by statute) the disposition appears manifested to narrow the plaintiff's election if possible. And in Baylis v. Lintott, L. 11. 8 C. P. 345, it is held that, in an action against a hackney-coach proprietor for not securely carrying the baggage of one who had hired the carriage, where the declaration alleged tliat " in consideration" that the plaintiff would, with her baggage, become a passenger and " of certain reward," etc., the defendant "promised" to carry, the plaintiff and her baggage safely, and that, not regarding his duty nor "his said promise," he did not safely carry the baggage, but so carelessly and negligently conducted himself that part of said baggage was lost, — this was held to set forth a cau.se of action founded in contract. In Tattan v. Great Western R., 2 E. & E. 844, however, a form of decla- ration somewhat similar was con- sidered to amount to case and not contract. But Cockburn, C.*J. , in that case expressed his regret at the anomalous state of the law, by which an option was given to the plaintiff to sue in either form. In Baylis v. Lintott, the remarks of Bovill, C. J., indicate a similar regret, and the opinion, besides, that where the cause of action alleged is not founded wholly on the breach of duty, but the declaration sets forth in sub- stance a promise and consideration, this must be considered to amount to contract and not tort. 1 Knight V. St. Louis K., 141 111. 110 ; Boaz v. Central K., 87 Ga. 463. 2 Angell Carriers, §§ 423, 424 ; 573 § 560 THE LAW OF BAILMENTS. [PART VI. further, in respect of non-joinder or misjoinder, where the form of action is in delicto^ the defendant carrier cannot set up in abatement that he is one of several part-owners of a ship, or co-proprietors in a land carriage, and that the other part-owners or co-proprietors are not joined as parties in the suit.^ Still another advantage of this form of action is, that the duty of the carrier in the premises need not be set out in the pleadings, nor proved, with as much particularity as would be requisite were the suit brought on a carrier's con- tract undertaking. For it is enough that the proof conforms substantially to the statements in the declaration, and that the declaration, without alleging any promise on the carrier's part, states, by way of inducement, that defendant is a com- mon carrier, and that certain goods and chattels were deliv- ered him, to be carried from A to B for a certain reasonable reward ; and assigning, as injury, that the defendant care- lessly and negligently behaved, so that the goods and chattels were lost.^ § 560. The Same Subject ; Count in Trover. — The declara- tion to an action on the case against a carrier may contain a count in trover in addition to the other count ; which, too, is sometimes advantageous to the party who brings a suit. And this practice is permissible wherever there may be the same judgment applicable to both counts, notwithstanding the plea be a ^different one.^ Conversion imports, however, a wrong more transcendent than the mere negligent omission of an act which the carrier owed, or even his careless and negli- gent performance of duty ; for by conversion one funda- mentally deals with another's property without right as though it were his own ; * and our previous discussion of the Bretherton t;. Wood, 3 Brod. & B. s Dickon v. Clifton, 2 Wils. 319 ; 54; Tattan v. Great Western R. , 2 Govett v. Radnidge, 3 East, 62, 69; E. & E. 844 ; Smith v. Seward, 3 Angell Carriers, § 430 ; Hawkins v. Penn. St. 342 ; Pozzi v. Shipton, 1 P. Hoffman, 6 Hill, 586 ; Dwight v. & D. 4 ; Lake Shore R. v. Bennett, Brewster, 1 Pick. 50 ; Packard v. Get- 89 Ind. 457. man, 6 Cow. 757 ; Johnson v. Strader, 1 lb. ; Orange Bank v. Brown, 3 3 Mo. 359 ; Bullard v. Young, 3 Stew. Wend. 158. 46. 2 See 1 Chitt. PI. 248. * lb. ; Abbott Law Diet. " Con- 574 CHAP. Viri.] COMMON CARRIERS. § 560 law of bailments sliows that a bailee renders himself liable in trover where he, without permission, undertakes to sell, pledge, give away, or otherwise misappropriate the property which has been confided to his keeping. IJut, in a more technical sense, and with less reference to the wilful conduct of the bailee, trover against a carrier will be supported by proof that the carrier or his servant misdelivered the goods, though this were by mistake, by a delivery to the wrong person ; ^ or, as one might reasonably add, that he delivered to the right person, in violation of the conditions imposed upon such delivery .2 In order to maintain trover as for conversion against a common carrier, a demand is needful wherever the fact of conversion is not decisive, so that the converting intent and behavior, as thus fixed upon the party, may be established in legal proof; for trover cannot be sustained without some proof of conversion. But formal demand is dispensed wuth where such demand would be useless, and the fact of conver- sion is clearly enough shown, independent of such formality ; as where the carrier has already transferred the thing to some party, as he had no authority to do, or where the property has been actually lost or destroyed by him ; ^ or where he refuses to deliver, except upon payment of charges which he has no right to claim, or on some other condition which he cannot lawfully exact.* In certain instances, a clearly tortious refusal may establish conversion against the carrier, version"; Bowlin v. Nye, 10 Cush. livery to a consicniee after notice of 416. sto\-)i>a.gG in transitu. AndseeTrow- ^ Siiprn, § 490 ; Devcreux v. Bar- ell v. Youmans, 5 Strobh. G7. clay, 2 B. & Aid. 702 ; Claflin v. 8 Aldeu v. Pearson, 3 Gray, 342. Boston & Lowell R., 7 Allen, 341. * Supra, § 552 ; Adams v. Clark, 2 See Murray v. Warner, 56 N. II. 9 Cush. 215 ; Richardson v. Rich, 546, 550, where goods were delivered 104 Mass. 156; Long v. Mobile R., to a carrier, "C. 0. D.," for coUec- 51 Ala. 512. tion on deliver}', and he delivered See supra, § 553, as to the reqnire- them to the consignee without pay- ment of a tender of freight where ment. This was an action of case one sues as for non-delivery of the with a count in trover. And see goods ; payment and delivery being supra, § 507. See also Pontifex v. concomitant acts. Midland R., 25 W. R. 215, as to de- 575 § 561 THE LAW OF BAILMENTS. [PART VI. even where the demand upon him was irregular.^ And if the carrier has sold the goods and retains the proceeds, whether a demand be needful or not, before an action of assumpsit can be maintained against him for such proceeds, the carrier's own action against such plaintiff, to recover a balance due for freight, is held a sufficient refusal to enable the latter to sue without making a demand.^ Demand and refusal do not, of course, conclude a carrier guilty of conversion, but serve only as evidence in an issue otherwise open to explanation ; and, if it prove that the car- rier lost or injured the goods by his mere negligence or de- fault, this supports the count of case, but not that of trover.^ § 560 a. "Whether Replevin lies. — Replevin does not lie by the consignee against a common carrier employed to carry "C. O. D.," before payment and delivery; for to sue in re- plevin one should be entitled to the immediate and exclusive possession of the goods.* § 561. The Same Subject; Action Ex Contractu. — Where, however, the remedy against the common carrier is ex con- tractu, assumpsit is the regular form of action, this being applicable generally to all contracts not under seal whose breach is alleged, whether the promise was express or only implied. It is manifest that, by thus relying upon an under- taking rather than a duty imposed by public authority or custom of the realm, the plaintiff takes a far more extensive range of our modern common-carrier law than he could by suing ex delicto, and may well cover those constantly occur- ring instances where the liability which furnishes a cause of action against the carrier is found qualified and restrained in some manner by the terms of a bill of lading or other special 1 Marine Bank v. Fiske, 71 N. Y. practice acts, where one sues for 353. the tort rather than under a con- 2 Stevens v. Sayward, 3 Gray, 108. tract, see Tattan v. Great Western 3 Angell Carriers, § 433 ; Dwight R., 2 E. & E. 844 ; Baylis v. Lintott, V. Brewster, 1 Pick. 50 ; Hawkins v. L. R. 8 C. P. 345. Hoffman, 6 Hill, 586, 588. * Lane v. Chadwick, 146 Mass. As to a further possible advan- 68. Carrier in such a case is still tage, in respect of gaining costs, agent of the consignor. lb. under the limitations imposed by 576 CHAP. VII r.] COMMON CARRIERS. § 5G2 contract, whose provisions cannot be disregarded ; while, fur- thermore, an implied promise to carry will be almost inevi- tably deducible from the carrier's mere acceptance, sufficient to sustain assumpsit for a loss or injury.^ As contrasted with the action ex delicto^ that ex contractu has certain advantages of its own. The action survives, un- like that grounded in tort, against the carrier's personal rep- resentatives ; ^ a consideration of less consequence, however, where the carrier is a corporation. The plaintiff, too, may join the common money counts, if he has other appro[)riate causes of action.^ He can maintain assumpsit where trover would have laid instead, as for misdelivery and misappropria- tion.* But, as already intimated, by suing in assumpsit, the plaintiff cannot join a count in trover, since contract and tort furnish separate and distinct causes of action;^ nor can he join and disjoin parties defendant, at his convenience, but must bring all co-defendants together into his suit, and prove them all liable together.*' § 5G2. The Same Subject ; Forms of Action compared. — Local practice, however, tends to assimilate forms of action more closely, and overcomes in many respects the technical distinctions of the common law. Thus, in some parts of the United States, the plaintiff, when it is deemed doubtful to which class a particular cause of action belongs, may join a count in contract with a count in tort, averring that both are for one and the same cause of action ; though the joinder of actions of contract and tort be not permitted.'' If the bailment be made under circumstances which do not justify a conclusion that the carrier entered into a contract relation with him for the thing's conveyance, the bailor can- 1 See 2 Chitt. V\. 342, 355, 7th ed. 6 Supra, § 560 ; Angcll Carriers, for the form of declaration appropri- § 435. ate to suing a land-carrier in assump- ^ lb. ; Patton v. Magrath, 1 Rice, sit. 102. 2 2 Greenl. Evid. §208; Angell " Mass. Gen. Stats. (1800) c. 129, Carriers, § 436. § 5 ; Ailing v. Boston & Albany R., 8 Angcll Carriers, § 435. 120 Mass. 121. * Supra, § 552 ; Sleat v. Fagg, 5 B. & Aid. 342, 349. 37 577 § 563 THE LAW OF BAILMENTS. [PAET VI. not sue ex contractu; but he may, nevertheless, be entitled, in some instances, to bring his action ex delicto as for an in- jury done to his property through the negligence or miscon- duct of the bailee.^ Such is the distinction sometimes raised where articles are transported as a passenger's baggage, for which the bailee might be held responsible under circum- stances of loss by default, not as carrier, but in some less onerous capacity.^ § 563. Admiralty Proceedings considered. — Admiralty pro- ceedings, we should add, are sustainable against a defaulting common carrier whose transportation is substantially by sea or those navigable waters over which our admiralty courts take jurisdiction ; not, however, to the exclusion of the ag- grieved party from the common-law courts.^ The chief ground for sustaining a libel of this character appears to be that, in such a case, the contract of affreightment may be viewed as a maritime contract, and the service undertaken by the carrier a maritime service ; but, where the issue is made upon one's breach of a legal duty, it might be said, instead, that there was a marine tort, committed on the navigable waters, of which admiralty might properly take cognizance.* The peculiar relation of the State and Federal courts, under the Constitution of the United States, whereby admi- ralty jurisdiction is enforced independently of State author- ity, may commend this method of procedure as a preferable one in many cases where the carrier by water is in default ; not to speak of those more general advantages which a libel in rem and an appeal to the familiar rules and methods of 1 Martin v. Great Indian R., L. R. * lb. ; 2 Parsons Sliipp. 559-566 ; 3 Ex. 9; Hannibal R. v. Swift, 12 Angell Carriers, §§419-421. The "Wall. 262. holder of a bill of lading for water - See post., Part VII. c. 4 ; Flint carriage has a threefold remedy, — R. V. Weir, 37 Mich. 111. against the master on his undertak- 3 Citizens' Bank v. Nantucket ing, against the owners personally. Steamboat Co. , 1 Story, 16 ; New or against the vessel in rem. 01c. Jersey Steam Nav. Co. v. Merchants' 12, 15 ; 1 Ware, 263. And see Blum Bank, 6 How. 378 ; The Thames, 14 v. The Caddo, 1 Woods, 64. Wall. 98 ; Shepherd v. Harrison, L. R. 5 H. L. 116. 578 CHAP. VIII.] COMMON CARRIERS. § 565 procedure recognized by commercial countries might afford the aggrieved party. § 564. Party Plaintiff in Case of Loss or Injury. — 2. Con- cerning the party phiintiff, where goods are lost or injured in transportation. Mere, again, is to be found a considerable diversity of opinion, notwithstanding the general rule that an action should be brought in the name of the person whose legal right of ownership has been thereby affected ; ^ for the carriage of goods usually imports one owner at the place of bailment delivery, to be succeeded by another at the terminus of the route, the latter being more the immediate party to controver- sies with the carrier over the loss or injury of that which would in due course have reached his possession unimpaired. The theory of ownership suffers in the modern construction of this right to sue the carrier, however well it may establish that the mere servant or agent, who has contracted solely for another without having any direct beneficial interest in the bailment transaction, is not the proper party plaintiff in the case.^ Even here, one like a warehouseman, a carrier, or other principal bailee, having a beneficial interest in the su]> ject-matter of the carriage contract, may, by reason of his privity with the carrier who occasions a loss, his beneficial interest, and his own obligation to answer over to the true owner, be the suitable party plaintiff.'^ § 565. The Same Subject ; Consignor or Consignee. — The consignor is generally favored as the party properly entitled in cases of land carriage to sue the carrier ; not only for the latter's wrong or breach of contract in connection with accept- ing the goods for transit, but likewise, though less positively, where loss or injury occurs while the bailment purpose is be- ing accomplished. The most widely accepted reason of tliis 1 Dawes V. reck, 8 T. H. 330 ; vioLation of statute, see "Wood v. Law V. Hatcher, 4 Blackf. 304 ; San- Erie R., 72 N. Y. 196. See also ford V. Housatonic K., 11 Cush. 155. Woods, J., in Bhim v. The Caddo, That, as against the true owner and 1 Woods, 64, and cases cited, shipper who sues him, the carrier ^ See Angcll Carriers, § 492. cannot set up that he transacts his " Shields v. Davis, 6 Taunt. 66 ; business under a fictitious name, in supra, § 537 ; c. 9, post. 579 § 565 THE LAW OF BAILMENTS. [PAKT VI. appears to be that, at the time the loss or injury occurs, and the carrier becomes in default, the consignor is still the owner, general or special, of the property bailed.^ But this very admission of general and special ownership leaves open a potential right of action against the carrier, apart from an absolute proprietorship of the thing. And, further, the in- clination of various eminent authorities is, in a word, to re- spect the consignor's right to bring his action, because of his original contract with the carrier, and his liability over to the owner, apart from any personal ownership in the thing.^ The consignor is pronounced the proper party to bring the action against the carrier, where he plainly continues to be the owner throughout the transit, and was necessarily such at the time when the loss or injury in question must have occurred. Such is the case where an owner transports goods by a carrier, which are to be sold on commission."^ Or, where the goods are so sent on a conditional sale to the consignee, that a complete transfer of title and property therein must await their arrival and the full accomplishment of the car- rier's service.* Or, on a like principle, where they are sent " C. O. D.," and the carrier fails to return either the goods or the money .° Or where, because of a vendee's fraud or non- compliance with the Statute of Frauds, no transfer of the right of property and risk of loss has actually taken place, but the consignor remains the owner.^ Or where a principal sends goods to his mere factor or agent.'' 1 Freeman v. Birch, 1 Nev. & M. ^ ganford v. Honsatonic R., 11 420, where a laundress, who paid for Cush. 155. the carriage of her customers' linen, * Swain v. Shepherd, 1 Moo. & R. was allowed to sue for a loss by the 224. carrier ; Green v. Clarke, 12 N. Y. * United States Express Co. v. 343 ; W. & A. R. v. Kelly, 1 Head, Keefer, 59 Ind. 263. And see supra, 158 ; 92 Va. 102. § 507 ; Spence v. Norfolk R., 92 Va. 2 lb. ; Davis v. James, 5 Burr. 102. 2680, per Lord Mansfield ; Freeman « Coats v. Chaplin, 3 Q. B. 483 ; V. Birch, 1 Nev. & M. 420 ; Atchison Duff v. Budd, 6 Moore, 469 ; Stock- V. Chicago R., 80 Mo. 213. Cf. dale w. Dunlop, 6 M. & W. 224 ; An- Coombs V. Bristol R., 3 H. & N. 1. gell Carriers, §§ 495, 496 ; Stephenson 7 Wright V. Snell, 5 B. & Aid. 350 ; Price v. Powell, 3 Comst. 322 ; Green V. Clarke, 2 Kern. 343. 580 CHAP. Vlir.] COMMON CAKKIERS. § 567 § 56G. The Same Subject. — On the other hand, when de- livery of goods to the earrier is on behalf of a consignee in whom is the property therein, with the accompanying risks of ownership, whether such title antedated the consignment, or operates by virtue thereof, the consignee is generally con- sidered the proper party to sue the carrier, in case the goods become lost or injured in transit ; and, if the circumstances show that the carriage contract was made by or on belialf of the consignee, so that the carrier undertook as the consignee's bailee, the consignor will not be permitted to sue him at all.^ The consignee who has bought the goods and paid the freight for their transportation is certainly a proper person to sue, and, as it would appear, the only proper one.^ So, too, has the consignor been denied the right to sue, where he sent as a mere agent of the consignee, having no personal responsi- bility in the employment of the carrier, and exercising no discretion in the choice of the transportation means.'' And as to water carriage it is frequently asserted that the prop- erty in the goods shipped is primd facie in the consignee, who may sue accordingly.* § 567. The Same Subject; Test of Contract. — But, in several instances, the controlling test which appears to have been preferred to that of ownership is that the plaintiff actually contracted with the carrier for transporting the goods in ques- tion ; though this, perhaps, is a doctrine most frequently re- lied upon to maintain a consignor's standing in court, where the general property to the goods had confessedly passed out V. Hart, 4 Bing. 476 ; Coombs v. ^ South Alabama R. v. Wood, 72 Bristol & Exeter R., .3 H. & N. 510 ; Ala. 451. Cf. 10:i Ind. 553. Law V. Hatcher, 4 Blackf. 3G4 ; Car- » Thompson v. Fargo, 49 N. Y. ter V. Graves, 9 Yerg. 440. 188. 1 Dawes v. Peck, 8 T. R. 3.30; * Lawrence v. Minturn, 17 How. Fragano i;. Long, 4 B. & C. 210; 100; Coleman v. Lambert, 5 M. & Brown v. Hodgson, 2 Camp. 30 ; An- W. 502 ; Blum v. The Caddo, 1 gell Carriers, § 497 ; Kverett v. Saltus, Wood-s, 64. See also Pennsylvania 15 Wend. 474 ; Ilsley v. Stubbs, 9 Co. v. Holderman, 09 Ind. 18. One Mass. (hi ; Bonner r. Marsh, 10 Sm. who has made advances on the con- & M. 370 ; 18 Barb. 32 ; Kirkpatrick signnient may sue as consignee. 3 V. Kansas City R., 80 Mo. 341. Blatchf. 289. 581 § 568 THE LAW OF BAILMENTS. [PART VI. of him before the loss occurred. This privity of contract with the carrier, which is most strongly manifested where the plaintiff actually selected the particular carrier and paid or agreed to pay him for the transportation of the goods, is a strong and reasonable ground of action, and may very con- veniently be insisted upon, where no party claiming better rights has intervened to perplex the carrier with other issues of property transfer and legal ownership.^ § 568. The Same Subject ; General or Special Ownership. — Now, as to general or special ownership. Where the bailee of property delivers it to a carrier for transportation, the rule is that either the bailee or the bailor may, in general, sue the carrier for its loss or injury ; ^ the court taking heed, as be- tween these parties themselves, that each interest shall be protected out of the judgment, but not permitting the defend- ant, who is only once answerable, to object. And, as to a bailment for transportation by the agent of an undisclosed principal, the rule is that either the agent or the real princi- pal may sue upon it, saving the defendant's right, in the lat- ter case, of being placed in the same situation at the time of disclosing the real principal, as if the agent had been the con- tracting party .^ Hence, the principal himself, even though undisclosed by his agent, may sue the carrier in his own name to recover dg-mages for loss or injury of the property, sustained while bailment accomplishment was in progress.* 1 Supra, § 565 ; Mead v. South- 413 ; Taintor v. Prendergast, 3 Hill, Western R., 18 W. R. 735. And see 72 ; Elkins v. Boston & Maine R., Davis V. James, 5 Burr. 2680 ; Free- 19 N. H. 337 ; Sanderson v. Lam- man V. Birch, 1 Nev. & M. 420 ; berton, 6 Binn. 129. This rule ap- Goodwyn v. Douglas, 1 Cheves, 174; plies, notwithstanding the Statute of Blanchard v. Page, 8 Gray, 281, Frauds. Higgins v. Senior, supra. 289 ; Story Bailm. § 598, 9th ed.. And see New Jersey Steam Nav. Co. Bennett's note ; 13 III. App. 490. v. Merchants' Bank, 6 How. 344, 2 White V. Bascom, 28 Vt. 268 ; where the same doctrine was ap- Freeniau v. Birch, 1 Nev. & M. 420. proved in the celebrated case of the See also supra, § 22. loss of the steamer Lexington in 3 Sims V. Bond, 5 B. & Ad. 393, Long Island Sound. Here a bank per Lord Denman. had delivered to Harnden's express * lb. ; Higgins v. Senior, 8 M. & a large amount of specie for trans- W. 834 ; Beebe v. Robert, 12 Wend, portation, but Harnden had in his 582 CHAP. VI I r.] COMMON CARRIERS. § 570 Where one having a special property in the goods bailed them for transportation, the carrier cannot volunteer the de- fence that some one else was the owner.' And the consignee of property to be sold by him on commission may sue for all damages caused to himself and the owner.* § 5G9. The Same Subject; Miscellaneoua Points. — The joint owners of personal property intrusted to a common carrier have been permitted to sue together for its loss, notwithstand- ing the receipt whicli the carrier gave for the property when he received it acknowledged tliat he had received it from two of them, — the joint ownership of the other plaintiff being unknown to him.^ And a receipt given by the consignee on arrival of the goods, though purporting to acknowledge their receipt in good order, does not necessarily estop a con- signor fi'om suing as of right for the carrier's negligent trans- portation.* A part owner of goods may sue for their loss where the contract was made with him.^ An action against a common carrier for goods and chattels belonging to a minor child ought to be brought in the name of the child ; ^ though the fundamental principle here consid- ered is simply that of ownership. By the common law a wife's personal property vests, for the most part, in her hus- band ; and though the married women's legislation and the modern doctrine of separate property has greatly changed this state of things, it remains true that, as to things personal which are not the separate property of the wife, and are lost or injured by the common carrier, the husband, and not the wife, should sue.'' § 570. The Same Subject ; Right under a Bill of Lading. — If the right to sue the carrier turned strictly upon legal own name contracted with the Steam * Cantwell v. Pacific Co., 58 Ark. Navigation Company for its due con- 487. veyance. ^ gee Hunter v. Westbrook, 2 C. & 1 Denver R. v. Frame, 6 Col. 382. P. 578 ; Angell Carriers, § 491 ; IJalti- 2 Boston & Maine R. t;. Mower more Steam Packet Co. v. Smith, 23 Co., 7(5 Me. 251. Md. 402. 8 Day V. Ridley, 10 Vt. 48. '' Hawkins v. Providence, &c. R., * San ford v. Housatonic R., 11 lit) Mass. 59(5; Furman v. Chicago Cush. 155. R., 57 Iowa, 42. 583 § 570 THE LAW OF BAILMENTS. [PART VI. ownership at the time of loss, tins would be so hard a matter to determine conclusively in those modern instances where the title to inland freight, as well as that carried by water, is transferred in transit by symbol, that the delinquent carrier would too often profit by the misconception of plaintiff par- ties, and baffle their efforts ; for legal ownership and the right to demand the goods as consignee may change over and over while one transportation purpose is being accomplished. The better opinion, then, is decidedly to the effect that the shipper named in a bill of lading may sue the carrier for in- jury or loss of the goods, although he has no property, gen- eral or special, therein ; for though some third party, not appearing in such document of title, might maintain his action against the carrier, it does not follow that the shipper cannot sue as upon his original contract with the carrier.^ And if the shipper, under a bill of lading, can overcome any presumptions to the contrary, and show that he is the true owner of the goods therein described, he is doubtless entitled to bring the action in his own name.^ As concerns the assignee and transferee of goods under a bill of lading, wherever it is shown that the consignor was the consignee's agent, and shipped the goods for his princi- pal's account or by his order, the consignee may doubtless maintain his action against the carrier.^ And where it is stated in such a document that the goods are consigned to a person named therein for his account and risk, the inclination appears to have been, in the older cases, to let the right of action go by legal ownership, rather than expect the shipper himself to sue.* " There is no doubt," observes Shaw, C. J., further on this point, " that the party, who was owner at the 1 See Shaw, C. J., in Blanchardu. was "to A or B." For suit by the Page, 8 Gray, 281,289. But cf. Sar- assignee of an insolvent consignee, gent V. Morris, 3 B. & Aid. 277 ; see Mass. Loan & Trust Co. v. Fitch- Potter V. Lansing, 1 Johns. 215. burg R., 143 Mass. 318. 2 Sargent v. Morris, 3 B. & Aid. 3 Blauchard v. Page, 8 Gray, 281, 77 ; Price v. Powell, 3 Comst. .322. 289. And see Moore v. Sheridine, 2 Har. * lb. ; Potter v. Lansing, 1 Johns. & M. 453, where the consignment 215. 584 CHAl'. VIII.] COMMON CARRIERS. § ."jTI time, or becomes owner of the goods afterwards, by assign- ment of the shipper or otherwise, and wlio was consignee, indorsee of the bill of lading, or lawful holder of a bill of lad- ing in blank, and who really sustains the damage, may main- tain an action against the ship-owner [carrier], not because he has any contract with him for the carriage, but because the ship-owner [carrier] has the goods lawfully in his pos- session ; it has become his duty to carry them safely, and deliver them to the consignee, subject onl}' to a lien for his freight ; and if the consignee is ready to discharge that lieii by a payment or tender of that freight, the refusal of the car- rier to deliver the goods to such consignee is a breach of duty, and a wrong done him, for which an action, either in tort for the conversion, or in assumpsit upon the implied promise to perform such dut}^ may be maintained." ^ And we may conclude from the latest cases that, whatever the shipper's own right of action as such, the party who holds the bill of lading, as such bills are now usually availed of in inland or sea transportation, has a primd facie ownership of the goods suflficiently enabling him to sue the carrier for their loss or damage in transit.^ But here we assume that the bill was negotiable in form.^ § 571. General Conclusion as to the Party Plaintiff. — In general, the right of one to bring an action against the car- rier, as a special rather than general owner, or b}^ virtue of 1 Blanchnrd i». Page, 8 Graj', 281, signees and under inland bills of 289, per Shaw, C. J. lading a similar right to sue has been ^ Barber v. Meyerstein, L. R. 4 recognized, though one is not the H. L. 317 ; Shepherd v. Harrison, beneficial party. Mobile R. v. Will- L. R. .5 H. L. 110 ; Burritt v. Rench, iams, 54 Ala. 168. See also Chaffe 4 McLean, 325 ; Arbuckle v. Thoinp- v. Mississippi R., 59 Miss. 182. son, 37 Penn. St. 170 ; Price r. Powell, ^ 'phe mere as.signee of a non- 3 Corast. 322 ; Conard v. Atlantic Ins. negotiable bill of lading cannot, under Co., 1 Pet. 38G, 445; Angell Carri- the general rule of assimiments, sue ers, §§ 50'}-512, and cases cited; in his own name. 141111.110. And The Thames, 14 Wall. 98. The ten- the consignee should not sue where dency here is to permit one to sue, the consignor made the contract, un- like the holder of negotiable paper, less he is holder of the bill of lading even though not the beneficial party issued. 81 Ga. 792. in interest. In favor of other con- 585 § 571 THE LAW OF BAILMENTS. [PAUT VI. the carrier's promise or breach of public duty, will not ex- clude the real owner in interest from intervening and bring- ing suit in his own behalf in respect of the goods. Such is the usual principle pertaining to bailments. And hence a suit by the consignor, or by the consignee, might avail against a common carrier, where the other part}^ or some third person with claims paramount to both, had tlie right to step in and anticipate one's recovery of damages. The prac- tical result of this would be that the carrier himself could not set up the plaintiff's want of interest or authority to bring the suit, but would have to respond fully to him on the legal assurance that one satisfaction on such a fair and primd facie showing of authority would debar any and all other possible parties in interest from pursuing him for the same delinquency ; ^ and that a judgment once obtained in his favor on the merits of the case would, in like manner, conclude the potential as well as the actual plaintiff.^ But where the theory of general or special ownership is untenable, and one party holds himself out to the carrier as having no interest at all, the case is different ; for the weight of authority favors the proposition that the person having both the right of property and the right of possession is the party to sue, whether consignor or consignee.^ And inas- much as a delivery to an agent for and on behalf of his prin- cipal will transfer the property equally with a delivery to the principal himself, delivery may be made to a carrier as strictly on the consignee's behalf.* What the conflicting decisions in England and the United States chiefly maintain, 1 See Nicolls v. Bastard, 2 C. M. A release in full to the carrier by & R. G59 ; supra. §§ 54, 80, 115, 154, the consignor without authority from as to other bailees ; Angell Carriers, the consignee does not debar the lat- § 493 ; Elkins v. Boston & Maine ter from suing for damages. City R. R., 19 N. H. .337 ; Steamboat Farmer v. Chicago R., 63 Wis. 93. V. McCraw, 26 Ala. 189. ^ potter v. Lansing, 1 Johns. 214 ; 2 In Green v. Clarke, 12 N. Y. The Venus, 8 Cr. 252 ; Brandt v. 343, this doctrine availed on behalf Bowlby, 2 B. & Ad. 932 ; Woods, J., of a carrier as against the special in Blum v. The Caddo, 1 Woods, 64. owner, where the general owner had * 1 Woods, 64 ; 1 Atk. 248 ; 1 already sued and lost his case. Johns. 15. 586 CHAP. VIII.] COMMON CARRIERS. § 572 however, with some legal inconsistency, is that in doubtful cases the carrier shall not dispute the right of either consignor or consignee to bring the suit.^ § 572. Party Defendant in Case of Loss or Injury. — 3. Con- cerning the party defendant. It has already been observed that where the common carrier is sued for a loss or injury to the goods ex delicto, the non-joinder or misjoinder of parties defendant is not of vital consequence, whereas if the suit were ex contractu, such an error would be fatal.^ In further considering the question against whom a suit should be brought, the principles brought into view in former chapters are to be remembered; so that one who seeks to bring his common-law action correctly must be careful to sue the prin- cipal carrier, — not the servant or subordinate ; the person, firm, or company which, as public carrier, has the actual con- trol, direction, and management of the transportation service hired by the customer, — not the mere proprietor of a route or vehicles ; the actual bailee who holds himself out to ac- complish the bailment purpose, — not his sub-bailee with whom the bailor had no privity.^ All these points have been discussed in place already.* But, on familiar principles, either the agent of an undis- closed principal may be sued, or the principal himself ; and an undisclosed party may be held liable as the partner in fact of a carrier, whose personal responsibility was at stake in performing the public service he professed.^ "Where, again, the agent or servant of a carrier so far ex- ceeds the permitted and ostensible scope of his authority as to discharge the principal or master, or where one professes to be such an authorized servant or agent while he is not such, nor was held out by the true carrier as such at all, the party aggrieved by his conduct may sue him pei'sonally.^ 1 A mere borrower from the con- < As to the carrier to be sued signee, who had no privity with the where there is a line of connecting carrier, cannot sue for loss or injury, carriers, see post, c. 9. 73 Ga. 472. & Story Agency, §§ 101, 209, 270 ; 2 Supra, § 559. supra, § 508 ; 1 Schoul. I'ers. Prop. 8 ^»/*ra, §§ 350-305. § 175. « Supra, §§ 350-358. 587 § 573 THE LAW OF BAILMENTS. [PAllT VI. And if it appears that the contract was made with the car- rier's servant ah)ne, and independently of the true carrier, though this might not prevent the carrier liiniself from disaf- firming the contract, and ckiiming the compensation for the service as his own, like any master whose servants another has sought to tamper with and corrupt, yet it is held that the servant, and not the carrier, must be sued for losing or injuring the thing so intrusted.^ § 673. The Same Subject; Master of a VesseL — The master of a ship or vessel has been regarded as a person of such vast and independent authority, — who must be greatly trusted by all having dealings with him, as chief executive in a haz- ardous transportation involving possible contingencies where his sole discretion must determine what should be done with ship and cargo, and as efficient representative of all concerned at distant ports, — that, upon considerations of convenience and public policy, these have long been considered personally liable as common carriers, by way of exception to the usual rules of agency, so that one suffering loss or injury of freight from some inexcusable cause can, at his election, proceed against either master or owner. This conforms to the tenor of the civil law, and, indeed, the almost universal law of nations.^ Convenience, in this respect, however, regards chiefly the pecuniary responsibility of the defendant; and perhaps this rule concerning the master has its foundation in a general solicitude that one brought into such intimate con- tact with the customer by affreightment contract, bill of lad- 1 lb. This rule has been applied of transportation. Ansell v. Water- to the driver of a stage-coach, who house, 6 M. & S. 835 ; Fairchild v. receives parcels. And, as against Slocum, 19 Wend. 329. This subject the ow^ner of a vessel vsrho makes a is more fully treated, post, c. 9. See charter-party of which shippers are Aigen v. Boston & Maine R., 132 kept ignorant, see The Figlia Mag- Mass. 423. giore, L. R. 2 Ad. & E. 106. 2 Morse v. Slue, 1 Vent. 190 ; EUi- Partners or joint associates in a ott v. Rossell, 10 Johns. 1 ; Abbott common transportation may well be Shipp. 5th Am. ed. , 165, 300 ; Angell joined and made answerable for a loss Carriers, §§ 518-520. And see supra, therein occasioned, although some of §§ 367, 404, 476, 563 «. them have no interest in the vehicle 588 CHAP. VIII.] COMMON CAIIRIEUS. § 575 ing, and otherwise, shall have the ship where it may be bound firmly for the engagement, regardless of the owners, or their attempted qualifications of lia])ility. The present tendency of the decisions appears to be against charging the master of a vessel unduly in a personal capacity for the acts and con- duct of others which cannot be brought home to him, either as the principal contracting party, or as a wrong-doer ; and this more especially Avhere the injury or loss appears discon- nected with the period of actual marine service.^ §574. The Same Subject; Corporate Carriers. — Various formalities are prescribed under local statutes with rcs[)ect to suing joint-stock companies and corporations, which have only a local operation. Thus, in New York, it is provided that suits against joint-stock companies shall, in the first in- stance, be prosecuted in the name of the president or treas- urer ; but that after judgment against the company, and the return of execution unsatisfied, the members may be sued individually; while, in Massachusetts, the members of the company may be sued as partners in the first instance.^ § 575. Declaration and Pleadings in Such Suits. — 4. Con- cerning the declaration and pleadings in cases of loss or in- jury. Inasmuch as the action against the carrier er. delicto is founded so nearly in wliat, from a different approach, might be called a contract breach of duty or misfeasance, difiiculty may arise from drawing a declaration of a tenor unsuitable to the form of action. Thus, averments of a "promise" or a " consideration," on the carrier's part, or of " an agreement," befit the action ex contractu rather than that on the case for tort, notwithstanding his "negligent conduct" and "misfea- sance " be likewise relied upon ; ^ and it is always important 1 See Blaikie v. Stembridge, 6 C. B. Triestly v. Fernie, 3 H. & C. 077. N. s. 894, 911 ; Sandeinan v. Scurr, See 1 Schoul. Pers. Prop. § .311-.314. L. R. 2 Q. B. 86 ; Walston v. Myers, « gee Gott v. Dinsmore, 111 Mass. 5 Jones, 174. The master having 45, a .suit against the " Adams Ex- been sued to judgment on a bill of press Company." As to the liability lading, the owner cannot be sued, of joint-stock companies generally, although the judgment be unsatisfied, see 1 Schoul. Pers. Prop. §§ 215-246. 8 See Baylis v. Lintott, L. R. 8 589 § 575 THE LAW OF BAILMENTS. [PAKT VI. that the pleadings should coiTespond to the distinctive charac- ter of the action.! In laying the cause of action ex delicto on the custom of the realm, an express allegation that the defend- ant is a common carrier seems quite material ; and a demurrer founded on a real omission of such allegation would probably be good ; ^ yet after a verdict against him, rendered upon proof of all the material facts, it may be too late for the de- fendant to raise the objection.^ The allegation of compensation or consideration need not be specific even in actions for a loss or injury ex contractu; and it is enough to allege that the consideration of conveying the particular property was a certain reward, or a reasonable hire and reward, without stating what that reward was.* If the action is brought ex delicto, no allegation of a compensa- tion or consideration paid, or agreed to be paid, ought to be made at all.^ The quantity and quality of the goods to be conveyed may be generally described without great nicety, where the action does not rely upon a bill of lading, or other special instrument making a minute description of the prop- erty.^ Where, in fact, the recovery sought is damages for an inexcusable loss or injury to a thing, and not, as in replevin, the thing itself, and where the plaintiff's ground of action is C. P. 345, distinguishing Tattan v. ^ Pozzi v. Shipton, 8 A. &. E. 963. Great Western R., 2 E. & E. 844. And see Jones v. Pitcher, 3 Stew. 1 Angell Carriers, §§ 436-439. But & P. 135. For insufficient allegation as to tbe joinder of counts of con- of right to sue where a consignor tract and tort in local practice, see sued for non-deUvery to his con- supra, § 56-2. See also 68 Ga. 344. signee, see 69 Ind. 18. And as to 2 Averment that defendant is a consignee who does not allege owner- corporation created by the laws of ship, see 103 111. 553. See forms of the State, and engaged in operating declaration in 4 Rob. Prac. 780-783 ; a railroad, and carrying corn and 9 W. Va. 33. grain in cars furnished by itself, etc., * Angell Carriers, § 446 ; Clarke is equivalent to an averment that it v. Gray, 6 East, 564 ; 78 Tex. 307 ; is a common carrier. Toledo R. v. Ferguson v. Cappeau, 6 Har. & J. Roberts, 71 111. 540. And in a suit 394 ; Hall v. Cheney, 36 N. H. 26 ; upon a special contract of a railroad supra, § 373. company "to carry," etc., there need ^ Hall v. Cheney, 36 N. H. 26; be no express averment that defend- Baylis v. Lintott, L. R. 8 C. P. 345. ant is a common carrier. 36 S. C. ^2 Saund. 74 a ; Angell Carriers, 110. § 447. 590 CHAP. VIII.] COMMON CARRIERS. § 576 a breach of the carrier's general duty, or of some promise on his part, to be inferred from circumstances only and an off- hand delivery and acceptance, courts do not insist upon a very closely drawn declaration. While the real ground of complaint should be disclosed, the duty safely to convey and deliver, or the promise, may be set forth in general lan- guage ; the grievance may be stated to be non-delivery within a reasonable time; ^ and it is not deemed material to set forth the particular means by which the loss occurred. ^ § 576. The Same Subject. — But where the ground of action is a special contract qualifying the carrier's common-law risks, care should be taken to declare this contract correctly and specifically, and not set up material terms that Avere not therein contained, nor omit material terms, nor allege a dif- ferent contract from that actually made, nor sue as for breach of one's duty and misfeasance as "common carrier," as though he had transported in his public and unqualified capacity.^ This rule has been strongly asserted where the action was ex contractu in form. Where the complaint in a suit against a common carrier counts upon a breach of his common-law liability, and the evidence shows a special contract, the vari- ance is often held fatal ; ^ though as some cases contend, there is no real variance unless the suit was ex coritractuJ' And it 1 See Raphael v. Pickford, 5 M. & R., 10 C. B. 454 ; 7 Ex., 609, 705 ; G. 551 ; Peck v. Weeks, ;J4 Conn. Davidson v. Graham, 2 Ohio St. 131 ; 145 ; Angell Carriers, §§ 447, 448. Camp v. Hartford Steamboat Co., 2 Raphael v. Pickford, supra; 43 Conn. 3.3:i ; 110 N. C. 338. Kim- WilHams V. Baltimore R., 9 W. Va. ball v. Rutland R., 26 Vt. 247; 33. Thus, in trespass on the case, Mann v. Birchard, 40 Vt. .326 ; Lake the allegation that the goods "were. Shore R. v. Bennett, 89 Ind. 457 ; 90 by the negligence of the carrier, Ind. 459. ■wholly lost" to the plaintiff, is « 89 Ind. 457; Hall v. Pennsyl- equivalent to an express denial of vaniaCo., 90 Ind. 459. Supra, ^ 4.1^. their delivery over. And see Mc- ^ Supra, § 478 ; 102 Mass. 552 ; Cauley v. Davidson, 10 Minn. 418. Clark v. St. Louis R., 04 Mo. 440. But where the real grievance was the In this last case it is said that the failure to return unloaded cars, this liability, where tort is alleged, does grievance should be alleged. 123 not arise from a special contract, but 111. 694. in spite of it. It may be worthy of * White V. Great Western R., 2 note that our American rule does C. B. N. 8. 7 ; Austin v. Manchester not favor the old English idea of a 591 § 577 THE LAW OF BAILMENTS. [PART VI. would appear that where the action is in tort, and not con- tract, the plaintiff need not allege a special agreement, but may leave the carrier to prove one if he can.^ A mere limita- tion of damages against him, as it were, by the carrier's special contract, need not, it is held, be noticed in pleading against him ; but a stipulation that under circumstances, such as losses by fire or robbery, he shall not be liable at all, must be stated.2 § 577. The Same Subject. — In the declaration of an action against the carrier ex delicto^ there might be a divisible aver- ment, so that enough being proved to sustain the plaintiff's action, the other part of the charge might be treated as sur- plusage, and suffered to fail.^ But where the action is brought ex contractu^ no such opportunity of division is afforded, for the contract must be proved materially as alleged.^ If the declaration in assumpsit states an absolute contract, and the proof establishes a contract in the alternative, or vice versd^ this is a fatal variance, whether the plaintiff had the option, and has determined it, or it was left to the defendant.^ And where one terminus of the transportation is stated, and an- other is shown, the plaintiff must fail, unless such variance be nominal only, and not real.^ But, as good authorities have stated, the form of action, whether ex contractu or ex delicto, does not materially affect the evidence necessary to maintain it ; and even when the declaration is in case, the contract with the carrier, or rather the particular duty from which the liability results, and on which it is founded, must be correctly, not incorrectly, stated. "special acceptance" by the carrier. * Angell Carriers, §§ 440, 441 ; See supra, § 450. Hughes v. Great Western R., 14 C. B. 1 Clark V. St. Louis R., 64 Mo. 637 ; 1 Chitt. PI. 334, .5th ed. ; Weed 440; Werthmeier v. Penn. R., 17 v. Saratoga R., 19 Wend. 534; 9 W. Blatchf. 421 ; Little Rock R. v. Tal- Va. 33 ; 81 Ga. 602. hot, 39 Ark. 423. But cf . § 558. ^ Penny v. Porter, 2 East, 2 ; Stone 2 Abbott, C. J., in Latham v. v. Knowlton, 3 Wend. 374. Rutley, 2 B. & C. 20 ; Angell Car- e Angell Carriers, § 449 ; Wood- riers, § 446. ward v. Booth, 7 B. & C. 301 ; Tucker 3 See Butt v. Great Western R. , v. Cracklin, 2 Stark. 385. 11 C. B. 140; 87 Ga. 734. 592 CHAr. YIIl.] COMMON CAllRIERS. § 578 For, in an action on a tort arising out of a contract, a mis- statement of the contract or a material variance in the proof is fatal, if it goes to the essence of the action ; and where the plaintiff suing in tort goes into a detailed statement of his cause of action, he encounters a risk of vital discrepancy, similar to that of the plaintiff relying on the action of con- tract.^ §578. Proof in Suits for Loss or Injury. — 5. Concerning the proof. We have indicated in former pages the evidence re- quired on the part of a plaintiff in order to sustain his suit against a common carrier ; the carrier's evidence in defence ; also where the burden of proof lies in this, as in other bail- ments, at any particular stage of the case. The contract, express or implied, with the defendant carrier must be proven by the plaintiff, whether a tortious breach of duty or a breach of contract be relied upon ; next, a bailment delivery of the goods ; lastly, the carrier's failure to deliver the goods over at the journey's end, or his delivery of them in unsuitable condition, in which the alleged grievance consists.^ A bill of lading, written receipt, check, or other token of acceptance, may well establish the contract and delivery ; the receipt, of course, being open to explanation, but not special-contract terms of a document, admissible of themselves, and brought home, actually or by legal implication, to the bailor.^ The carrier may set up exemption under his special contract by way of exoneration, or defend on the general grounds of excuse which the common law admits.* Proof of demand and refusal, or an apparent conversion, should place the carrier who is sued ex delicto sufficiently in 1 See 2 Greenl. Ev. § 208 ; Austin a reasonable time is specific enough. V. Manchester K., 1(5 Q. B. 600 ; Ire- 101 Cal. 187. land V. Jolinson, 1 Bing. N. C. 162 ; 2 Supra, §§ 23, 439, 478 ; Angell Angcll Carriers, §440; Mann v. Carriers, §§ 461-467 ; United States iJirchard, 40 Vt. 326 ; Jordan v. v. Pacific Express Co., 15 Fed. R. Hazard, 10 Ala. 221 ; Stump v. 867. Hutchinson, 11 Penn. St. 553; To- » See McCotter u. Hooker, 4 Seld. ledo R. V. Roberts, 71 111. 540, 542. 497 ; 81* Penn. St. 315. In suing for unreasonable delay, * Supra, §§ 23, 439, 478. an allegation of non-delivery within 38 593 §578 THE LAW OF BAILMENTS. [part VI. the wrong to oblige him to clear himself; and in general, when non-feasance or negligence is charged upon the carrier, slight evidence in support of his allegation will suffice on the plaintiff's part, whatever the form of action.^ But some evidence ought to be adduced, such as brings the default home to the carrier, and leaves it unlikely that others, for whose acts he is in no measure responsible, as, for instance, the cus- tomer or his agents, caused the loss or injury .^ Nor can any 1 Chicago V. Dickinson, 74 111. 249 ; Angell Carriers, § 470. 2 lb. ; Morley v. Eastern Express Co., 116 Mass. 97 ; supra, § 439. As to the fact of non-deli veiy because the consignee could not be found, and the carrier's evidence on this point, see Witbeck v. Holland, 45 N. Y. 13. See, further. South Ala- bama R. V. Wood, 71 Ala. 215 ; 6G Ala. 167. The responsibility for short delivery is on the carrier, and the burden is on him if he seeks to exonerate himself. TurnbuU v. Citi- zens' Bank, 16 Fed. R. 145. And though a special contract exempts the carrier from liability for injuries "from fire," he may be presumed negligent if he refuses to give any information as to how or where the fire occurred. 87 Penn. St. 395. And so generally may fault be im- puted to a carrier if he refuses all explanation of loss or injury. Kirst V. Milwaukee R., 46 Wis. 489. Where there is a contract limiting the car- rier's liability to injuries caused by negligence, the burden is on him to show from what cause a loss or injury occurs. Shriver v. Sioux City R., 24 Minn. 506 ; 28 Fed. R. 336. But an apparent conflict in the authorities is noticeable, where goods are lost under a special contract of immunity from specified risks. Some courts put the burden pretty strongly on the plaintiff to show the defendant's negligence, such as the special contract cannot relieve. 594 Others, again, pronounce it good policy to increase the carrier's bur- den, so that he should show both that the cause was within the ex- cepted risks, and that he was not negligent in respect thereto, nor were his agents. § 478. The differ- ence of circumstances will, we think, help to correct the discrepancy. And it would appear the better opinion that the carrier's proof of exculpation should go so far as to present, on his part, some particular occasion of loss or injury, such as the common law or his special con- tract would excuse ; which presen- tation of the facts, as he makes it, imputes to him and his servants no culpable negligence or default ; and that having done this, he need not affirmatively prove further that he was not negligent, but rather leave this for the plaintiff to establish if he can. But specific acts of negligence being shown by a preponderance of evidence against the carrier, he should now, with his better oppor- tunity of ascertaining the specific facts, disprove the charge. See supra, §§ 439, 478. The prolonged controversy in the courts over rules on this point shows how stubbornly fought and how finely drawn ar^ carrier suits at the present day. In an action against the carrier for non-delivery of goods, although the allegation is a negative one if put in issue, the burden of proof is upon the plaintiff, and he must give some CHAP. VI I r.] COMMON CAliKIEIlS. §578 loss of goods shipped or delivered at any other time than that alleged in the writ be admitted in proof.^ The common law disqualifies interested parties from testi- fying in their own helialf ; but this disqualification is, to a considerable extent, I'emovcd by modern legislation, wliich evidence of non-delivery, according to the obligation assumed by the car- rier, before the latter is required to prove delivery. Roberts v. Chitten- den, 88 N. Y. 33. But non-delivery being shown as a fact, a pnsuniption of liability on the carrier's part arises, and the burden is on him to show good excuse for non-delivery. 15 Fed. R. 080 ; §§ 430, -178. Where, again, the carrier delivers goods in a damaged condition, the onus is on him to show that he is not iu fault, and the injury being shown, he is prhnd, facie inculpated. But the plaintiff must first show the injury ; and the injury must be such, by his presentment of the case, as to exclude all inference that the loss occurred otherwise than by the car- rier's fault. Thus, to show that an animal transported by vessel was delivered in a sickly condition with- out external mark of injury, imputes nothing more than the natural effect of a voyage upon a feeble creature, and this does not sufficiently charge the carrier. The Saragossa, 3 Woods, 380 ; though the special facts of such condition might impute more. Dow V. Packet Co., 84 Me. 490. And if in a suit for animate or inanimate prop- erty the damage might as well be attributed to natural causes as to negligence, the plaintiff cannot re- cover. Ocean S. 8. Co. v. McAlpin, 69 Ga. 437 ; 150 Penn. St. 170 (brit- tle goods) ; 101 Mo. 631. Where, on the otiier hand, a bill of lading shows the package to have been in good condition when shipped, and the proof shows that the goods were properly packed, and the damage of a kind not likely to have been due to an excusable peril, tiie l)urden is on the carrier to account for the injury. 28 Fed. R. 330 ; 108 Penn. St. 209. A consignee's receipt for tiie goods on their delivery over, as being in good order, is primH facie evidence in the carrier's favor. Ocean S. S. Co. V. McAlpin, 09 Ga. 437. And where the hjss or injury was not dis- covered until after the delivery over at the journey's end, tiie burden is on the plaintiff to show that it must have occurred before the bailment ended ; as, for instance, if jewelry was abstracted from a box and nails were redriven, and yet tlie plaintiff fails to show what care was taken of the box from the time the box was delivered over to the discovery of the loss. Canfield v. Baltimore R., 75 N. Y. 144. While the presumption as to an injury or loss sustained between the time of the carrier's reception of the goods and the time of their rightful delivery is, that it should be attributed to his default, the carrier may show that the loss or injury proceeded from some previous and non-apparent cause ; and this, notwithstanding the bill of lading or other document ac- knowledges their receipt in good con- dition. Choate v. Crowninshield, 3 Cliff. 184. Such receipt being shown, the carrier has the burden of showing that the loss occurred after he had ceased to be carrier. Browning v. Trans. Co., 78 Wis. 391. As to defence of bad packing, see 37 Fed. 641. 1 Witzler v. Collins, 70 Me. 290. 595 § 579 THE LAW OF BAILMENTS. [PART VI. favors, on the whole, the admission of all interested parties to the witness-stand, leaving to the cross-examination of op- posing counsel, and the equal opj)ortunity for parties to con- front and contradict one another, the means of eliciting the whole truth. § 579. The Same Subject. — The defendant to the action ex delicto pleads, by way of general issue, " not guilty," or words of other form which amount to such a plea ; and under this general issue a carrier may prove most matters of de- fence allowable in action on the case.^ But " not guilty " operates as a denial of inexcusable loss and damage, and not of such special matters as the acceptance of the goods by himself ; though a loss proximately by act of owner or cus- tomer, as, for instance, by the consignor's own negligence, ought apparently to be available to the carrier on such a plea as well as loss by act of God or of a public enemy .^ Where the action is brought ex contractu, the general plea " non assumpsit " operates as a denial of any contract to the effect alleged in the declaration, and of any such bailment as would raise a promise in law to the effect claimed by the plaintiff.^ But, as it would appear, the general denial does not here extend to special matters in avoidance of liability upon which the carrier means to rely.^ Admissions of the carrier, or of his servant acting within the scope of his agency, which relate immediately to the loss may, as part of the res gestce, be of much avail to the plaintiff ; ^ while, on the other 1 Elwell V. Grand Junction H., 5 of the contract for shipment of the M. & W. 669 ; Wyld v. Pickford, articles, or only a partial loss. And, 8 M. & W. 443 ; Hoyt v. Allen, 2 as to a limitation under his special Hill, 322 ; Angell Carriers, §§ 451, contract, see Westcott v. Fargo, 61 452. N. Y. 542. And see, generally, Dem- 2 Cf. Holden v. Liverpool Gas Co., ing v. Railroad, 48 N. H. 455. 3 C. B. 1 ; Webb v. Page, 6 Scott, s Kirkstall Brewery Co. v. Furness N. R. 951. R., L. R. 9 Q. B. 4G8, and cases 3 Dale V. Hall, 1 Wils. 281 ; Angell cited ; Angell Carriers, § 468, 5th Carriers, §§ 455-459; Gatliffe v. ed., Lathrop's note; Burnside v. Bourne, 4 Bing. N. C. 314. Grand Trunk R., 47 N. H. 554; * See Houston R. i;. Harn, 44 Tex. Morse v. Conn. River R., 6 Gray, 628, where the carrier meant to rely 450; Lane v. Boston & Albany R., specially upon the plaintiff's release 112 Mass. 455. Where the acts of 596 CPTAI". VIII.] COM:srON CARRIERS. § 580 hand, there has been much difllculty found in drawing the line between those cases where, under the old rules of evi- dence, a carrier's servant could, and where he could not, be admitted to testify on his employer's behalf, without procur- ing a release, so as to make sure that the carrier, if held liable to the customer, would not turn round and sue ])im personally.^ The owner of the thing lost may qualify himself as a witness for the special bailee, by releasing to the latter his interest therein ; otherwise he, too, is an incompetent witness for the plaintiff, upon the old general principle.^ § 580. The Same Subject; Proof of Contents of Trunk, etc. — On the principle of necessity, the usual rule of disqualifica- tion has been relaxed in a particular case : namely, that of the loss of some trunk or closed receptacle with its contents, where only the plaintiff or jDarty in interest can disclose what those contents were, and the circumstances in connection with the bailment and the original contract fail to establish the fact. As to the extent of this exception, however, the authorities are not clear and harmonious ; though, indepen- dently of legislation, the better authority tends to confine it to cases where no other certain testimou}'-, less ex parte in character, is accessible. In the bailment of freight in large amount and of considerable value, under a bill of lading or other similar document, the recitals of the instrument evince the mutual understanding on this point ; and in general the application of the rule to freight must, at best, be quite a narrow one.^ the agent will bind his principal, Steam Packet Co., 35 Me. 55 ; Bailey- there his representations, declara- v. Shaw, 4 Fost. 297. tions, and admissions respecting the ^ ib. subject-matter will also bind him if * See Butler v. Basing, 2 C. & P. made at the same time, and consti- 01-3 ; Doyle v. Kiser, Ind. 242 ; tuting a part of the res gestce. Story Wright v. Caldwell, 1 Mich. 51. The Agency, § 134 ; supra, §§ 357, 358. exception is held in Adams lOxpress But not loose general admissions Co. v. Haynes, 42 111. 80, not to apply against the carrier who employs him. at all to the transportation of freight ; 140 Mass. 510. not even to that of a trunk by an 1 Angell Carriers, § 469 ; 1 Greenl. express company. And see Bingham Ev. §§ 394, 476 ; Moran v. Portland v. Rogers, 6 W. & S. 495 ; 22 111. 278; 597 § 582 THE LAW OF BAILMENTS. [PART VI. § 581. Sufficiency of Evidence. — If there be some evidence which tends to prove all the material allegations on the plain- tiff's part, the sufficiency thereof is usually to be left to the discretion of the jury, our courts being disposed to favor the consignor or consignee, upon even slight proof of material facts not disproved by the other party ; but where there is a fatal variance between the proof and the allegations, or where there is no evidence whatever on some material point neces- sary to be proved in order to make out the cause of action, the court, on motion of the defendant, should order a non-suit.^ Where evidence of the carrier's negligence is conflicting the court will not set forth rules as supposing certain facts were proved, but submit all the evidence to the jury.^ Proof of actual payment, or of an express promise to pay, freight on the goods, is not, in general, requisite in order that one may maintain his suit against the carrier ; for the willing- ness to pay is readily presumed.^ And on the more formal points slight evidence will often suffice to make out one's primd facie case against the carrier.* § 582. Damages recoverable for Loss or Injury. — 6. Con- cerning the damages recoverable against the carrier in suits for loss or injury on the transportation. The principle is that the plaintiff or rightful party must be fully indemnified against such pecuniary damage as he sustains by the carrier's inex- cusable breach of duty or of contract, so far as this damage is consequential upon the carrier's undertaking in question by a reasonable construction of its terms. Hence, the general 12 Ga. 217 ; Part "VII. c. 4, where the 2 ^igen v. Boston & Maine R., rule is applied to baggage. 132 Mass. 42.3 ; 128 Mass. 221 ; Balti- For this rule, as applied in a suit more R. v. Keedy, 75 Md. 320. Leav- against an innkeeper for loss of a ing the jury thus to ascertain the trunk, see Spurr v. Wellman, 11 Mo. facts, the court may rule what the 230. liability would be in case certain 1 See Ringgold v. Haven, 1 Cal. facts were found by them. 48 Kan. 108 ; supra, § 577 ; Morley v. Eastern 321. Express Co., 116 Mass. 97 ; Lane v. s Hall v. Cheney, 36 N. H. 26; Boston & Albany R., 112 Mass. 455; Ferguson v. Cappean, 6 Har. & J. Deming v. Railroad, 48 N. H. 455 ; 394. U. S. Digest, 1st Series, Carriers, * Chicago R. v. Dickinson, 74 111. 223-248. 249. 598 CHAP. VIII.] COMMON CARRIERS. § 582 measure of damages, in case of such loss or injury by the carrier, is the value of the goods at the place of delivery at the time they should have been delivered ; and market value is, apart from contract, the common test of value.^ Whether the suit be framed ex contractu or ex delicto the same general rule applies, and the measure of damages is equally within the control of the court.^ Since, too, the action for non-delivery against the carrier may be supported by proof of only partial delivery, the defence of partial delivery, if such property has been delivered or ten- dered, goes only in mitigation of the damages against the carrier.'^ And where goods are delivered but not in good con- dition, the carrier is liable for the difference between their actual market value at the time and place of delivery, and the sum which would represent their value were they de- livered uninjured.* 1 Angell Carriers, §§ 482-490, 5th ed., Lathrop's note; U. S. Digest, 1st Series, Carriers, 249-2G2 ; Ring- gold V. Haven, 1 Cal. 108 ; Parmelee V. Fischer, 22 111. 212 ; Hackett v. Boston R., 35 N. H. 390 ; Smith v. Griffith, 3 Hill, 333 ; Dean v. Vac- caro, 2 Head, 488 ; Feet v. Chicago R., 20 Wis. 594 ; Sherman v. Hudson River R., 64 N. Y. 255. This prin- ciple is applied, where gold coin is lost at a time when it commands a premium in the market, in Cushing 17. Wells, 98 Mass. 550. Punitory damages are not, in general, allow- able in suits of the present character, unless misconduct appears. Toledo R. V. Roberts, 71 III. 540; Wall v. Cameron, G Col. 275. Under counts against the carrier merely as carrier or bailee, the plaintiff cannot recover for losses specially resulting from the misrepresentation or deceit of the car- rier's agent. Maslin v. Baltimore R., 14 W. Va. 180 ; Mitchell v. Georgia R., 68 Ga. 644 ; 44 Ark. 439. As to damages under a contract limiting the amovmt for so much per box, package, etc., see 93 111. 523. A just valuation in case of loss might be imposed by contract in advance ; or a reasonable limit to the time of making claims for damages. Supra, § 457. But if the goods were ac- cepted at some intermediate point, the actual loss sustained by the owner, under the circumstances, is the point at issue. Supra, § 505 ; Bowman v. Teall, 23 Wend. 306. If the loss occurs before the trans- portation commences, the value of the goods at the place of delivery to the carrier appears commonly to be the measure of damages ; for at this cost the consignor may commonly replace them. This rule is applied to transportation by vessel in Lake- man V. Grinnell, 5 Bosw. 625 ; Krohn V. Oechs, 48 Barb. 127. 2 Baltimore R. v. Pumphrey, 59 Md. 390. 8 Houston R. V. Harn, 44 Tex. 628 ; Deming v. Railroad, 48 N. H. 455. See McHenry v. Railroad, 4 Harring. 448. * Jellett V. St. Paul R., 30 Minn. 599 § 583 THE LAW OF BAILMENTS. [PAllT VI. For negligent delay and culpable default in transporting the goods, so that there is a loss incurred by their depreciat- ing in value, the measure of damages against the carrier is the difference between the value of the goods to the owner or proper party at the place of delivery at the time they ought to have arrived, and their value at the time they in fact arrived,^ a reasonable time being allowed for their delivery .^ The carrier's unreasonable delay in delivering the goods is no defence to his action for freight, without some proof of the damage thereby sustained ; such as their fall meantime in the market value ; ^ though for actual damage occasioned by his unreasonable and unexcused delay, the carrier may doubtless be held answerable.* In computing the damages it is now quite common to add interest from the time when delivery was due or a demand made, if this be needful to make the plaintiff whole ; ^ though the allowance of interest upon what may be called unliquidated damages was not formerly favored.^ § 583. The Same Subject. — But the rule of damages against the carrier awards, in favor of the aggrieved consignor or owner, only such damages as the contract or the circumstances 265 ; The Mangalore, 23 Fed. R. 463. Tenn. 69. And the first market day And see 29 Fed. R. 530. possible after the arrival of animals 1 Deming v. Railroad, 48 N, H. unreasonably delayed may serve as a 455 ; Ingledew v. Northern R., 7 standard. 157 U. S. 124. Gray, 86 ; Cutting v. Grand Trunk 3 Page v. Munro, 1 Holmes, 232. R., 13 Allen, 381 ; Ward u. New York * Supra, §§ 488, 489. And see Central R., 47 N. Y. 29; Texas R. 54 Ark. 22; 85 Ga. 497. V. Nicholson, 61 Tex. 491 ; 46 Ark. 5 Spring v. Haskell, 4 Allen, 112; 485; Newell v. Smith, 49 Vt. 255, Smith v. Whitman, 13 Mo. 352; 266, per Powers, J. ; Scott v. Boston, Newell v. Smith, 49 Vt. 255 ; Robin- &c. Steamship Co., 106 Mass. 468; son v. Merchants' Desp. Trans. Co., 81 Ga. 602 ; Weston v. Grand Trunk 45 Iowa, 470 ; Murrell v. Dixey, 14 R., 54 Me. 376 ; Devereux v. Buck- La. Ann. 298 ; Caldwell v. Southern ley, 34 Ohio St. 16 ; (Tenn.) 1 S. W. Express Co. , 1 Flip. 84. 620. See Nettles v. South Carolina s Angell Carriers, § 484. Special R., 7 Rich. 190. items, such as advance freight or in- '^ See Sherman v. Hudson River surance premiums paid, or special R., 64 N. Y. 254; 82 Tex. 104. telegrams and correspondence, are If no market at the point, an ap- sometimes allowable. 61 Fed. 860. proximate calculation is made. 85 600 CHAP. VIII.] COMMON CARRIERS. §583 of the paitiuular bailment fairly contemplated as the natural result of such delinquency and non-fulfilment. And hence, if the article be desired for some special purpose, so as to ren- der the loss, injury, or delayed carriage of the thing unusually disastrous to the party entitled, the fact ought to have been specially stated or notified at the outset, sp as to form part of the mutual agreement for transportation, else the plaintiff cannot afterwards claim to have it enter as an element into the computation of damages.^ But, subject to this duty on the customer's part, he may recover for special damage where the special responsibility was properly and seasonably brought home to the carrier so as to form part of the original contract.2 And there are certain special damages which 1 Hadley v. Baxendale, 9 Ex. 341 ; Great Western R. v. Redmayne, L. R. 1 C. P. 329 ; Woodger v. Great West- era R., L. R. 2 C. P. 318 ; 54 Ark. 22 ; Chicago R. v. Hale, 83 111. 3G0, and cases cited. In U. S. Express Co. V. Root, 47 Micli. 231, this rule was applied where a concert singer claimed that by reason of delay in receiving a package of posters, which were sent by express, the arrange- ments for her performance were cancelled. In Mather v. American Express Co., 138 Mass. 65, damages for the carrier's loss of an architect's plans were confined to replacing them ; the consequent delay in con- structing a house constituting no ele- ment of indemnity, where the carrier had no notice of the contents or in- tended use of the package. Injury to the plaintiff's business, by reason of non-dolivery, is too remote for con- sideration, per se, in assessing dam- ages. Baltimore R. v. Pumphrey, 59 Md. 390. And unless a carrier has been notified of the urgent necessity for prompt carriage, his negligent delay renders him liable only for the usual and ordinary damages. 62 Tex. 639. As to damage in loss of samples, see 19 Q. B. D. 30. Where damages are merely nomi- nal, only nominal damages will be awarded. See 1 Woods, 131, as to a carrier's misdelivery to one who de- livered promptly to the right party. Where by bad stowage the article is wholly spoiled for commercial pur- poses, the carrier is liable accord- ingly ; as by placing sacks of salt near powdered arsenic. 16 Blatchf. 516. If a vessel capsizes before sailing and injures goods thereby, the carrier ought not to make a peremptory sale without consulting the owner. Abb. Adm. 215 ; supra, § 404. 2 lb. See British Columbia Saw- mill Co. V. Nettleship, L. R. 3 C. P. 499 ; Cutting v. Grand Trunk R., 13 Allen, 381 ; Deming v. Railroad, 48 N. H. 455 ; 31 Kan. 385 ; Grindle v. Eastern Express Co., 67 Me. 317. Speculative profits, peculiar to a plaintiff's business and unknown to the carrier, should not be reckoned. Bazin v. Steamship Co., 3 Wall. Jr. 229. And see 75 Ga. 746 ; 48 Ark. 602. 601 § 585 THE LAW OP BAILMENTS. [PART VI. without special notice to the carrier may be deemed inci- dental to his undertaking.^ Certain articles, as, for instance, wearing-apparel and fam- ily relics, are not fairly compensated by a rule of damages which is deduced from the computation of market rates.^ Thus, the measure of damages for loss of a family portrait is the actual value of the portrait to the plaintiff.^ § 584. The Same Subject. — Where the carrier pays or set- tles with the owner as for a total loss of the goods transported, the property therein becomes in law and conscience trans- ferred to him, and inures to his benefit.^ So, too, where the carrier is sued for damage to the goods, his proper allowance for freight is a fair offset ; and if he settles, as for a total loss or conversion of goods which have disappeared, he ought to have his full recompense deducted.^ § 585. Remedies for Negligence or Misconduct in Final Deliv- ery. — III. Where the carrier acts negligently or wrongfully in delivering the goods over after his transit is completed. What has been said under the preceding subdivision of this chapter may furnish the guiding principles where a remedy is sought in the present instance. Any complaint against the carrier for injury to the goods while on the transit and also after the transit has ended, under one continuous possession, states one and the same continuous cause of action.^ So, too, may the failure of the carrier to deliver goods on demand be treated as a breach of his original contract, even though the ^ Thus, where cattle are transported ' Green v. Boston & Lowell R., for breeding purposes, death or the 128 Mass. 221. And here it may be miscarriage of animals already preg- shown that the portrait was the only nant, which is caused by the carrier's one, and cannot be replaced. lb. careless collision, may be deemed * Hagerstown Bank v. Adams Ex- an incidental damage of such trans- press Co., 45 Penn. St. 419. portation. New York R. v. Estill, ^ jjass. Trust Co. u. Fitchburg R., 147U. S. 591. And see as to loss of 143 Mass. 318; Miami Co. u. Port crude turpentine from negligent de- Royal R., 38 S. C. 78. livery of a still-worm. 77 Ga. 412. As to the customer's set-off, etc, 2 Denver R. v. Frame, 6 Col. 382. against the carrier, see § 534. Cf. 61 Tex. 550. For this rule, as « Armstrong v. Chicago R., 45 applied to lost baggage, see jwst, Part Minn. 85. VII. c. 4. 602 CHAP. VIII.] COMMON CARRIERS. § 586 loss occurred while they were stored after arrival.^ But tlie rule itself may have a peculiar application: as in the case where the goods arrive safel}', but the carrier neglects his duty in respect of notifying or trying to find the consignee, and meanwhile they spoil or depreciate in market value ;''^ or where he unreasonably delays or refuses to make such deliv- ery as his undertaking bound him to make,'' or makes a mis- delivery.* So may a carrier who has performed his public duty be held responsible on the footing of a warehouseman or lesser bailee.^ That payment of freight is due, on the one hand, when the goods reach their destination, and a delivery to the proper party on the other, so that neither party can demand priority of performance, we have already seen ; ^ and hence that as- sumpsit for the carrier's breach of contract may lie where the consignee has put him in the wrong, or even trover, as for an act of conversion.' But replevin may sometimes be the more convenient means of getting possession of the goods, and determining the true title, where the carrier wrongfully re- fuses to give up the goods ; ^ which form of action, however, is not in theory well applied to the mere unjust detention of goods received and held on a contract.^ A carrier's conversion renders him absolutely liable for the safety of the goods, as one no longer a rigrhtful bailee.^'' § 586. The Same Subject; Effect of Acceptance. — An ac- ceptance of goods in whole or in part, by the owner, short of the place of delivery originally intended, bars his action 1 Wilson r. California R., 94 Cal. ^ See Anderson r. North-Eastern 1G6. R., 9 W. R. 519. 2 Zinn V. New Jersey Steamboat ^ See supra, §§ 552, 553. Co., 49 N. Y. 442. ' lb. 8 See Chicago R. v. Stanbro, 87 s pyer v. Grand Trunk R., 42 Vt. 111. 195. 441 ; svpra, § 552 ; Boston R. v. * Supra, § 490. For the measure Brown, 15 Gray, 22.3. of damages, where the carrier wrong- 'See Abbott Law Diet. " Re- fully refused delivery, see 4 Fed. R. plevin." 548. And see Mass. Trust Co. v. " Richmond R. v. Benson, 86 Ga. Fitchburg R., 14.3 Mass. 318; 1 203. Woods, 131. 603 § 588 THE LAW OF BAILMENTS. [PART VI. against the carrier for damage or loss thereto if subsequently occasioned ; but such acceptance constitutes no bar to his action for their inexcusable loss or damage if occasioned pre- viously.^ And, in general, the mere acceptance of goods by the consignee or owner, or any lawful retaking of the same from the carrier by the proper party before or at the time and place when the transit is completed, does not estop him from claiming damages ; nor does his payment of freight or sub- mission to a judgment therefor ;2 for nothing short of a re- lease, on his part, or full satisfaction, can thus operate upon his right of action.^ § 587. Recovery of Extortionate or Illegal Charges. — Where the carrier makes extortionate or illegal charges, either in advance of carriage or at the termination of the transit, the party entitled to due performance, who pays the same under protest, may sue for the unlawful excess in an action for money had and received.^ Indeed, it is held that the injured party need not even have paid under protest, so long as he did not voluntarily submit to the extortion.^ But a bill in equity to recover overcharges is not maintainable.^ § 588. Conflict of Laws in Pursuit of Remedies. — In the pur- suit of remedies, by or against a carrier, one may be con- fronted by a conflict of laws of different States or countries. When a contract is made in one State or country to transport 1 Bowman v. Teall, 23 "Wend. Bristol K., 1 B. & S. 112. See Wil- 306 ; Lowe v. Moss. 12 111. 477 ; Cox son v. Harry, 32 Penn. St. 270. V. Peterson, 30 Ala. 608; Atkisson ^ Heiserman v. Burlington R., 63 V. Castle Garden, 28 Mo. 124. Iowa, 732. Cf. 100 N. Y. 194, where 2 Schwinger v. Raymond, 83 N. Y. payment is made without objection. 192. See, for English and American legis- 3 lb. And see supra, c. 6. One lation as to unfair and excessive may pay freight and sue for damages, charges, etc., supra, §§ 375, 485, or set up his damages by way of ^ Not even though several com- counter-claim in an action to recover panies are thus liable. Scott v. Erie the freight, or he may bring a cross- R., 34 N. J. Eq. 354. If a carrier action. Schwinger v. Raymond, 83 charges extortionately and refuses N. Y. 192. to deliver, the consignee who tenders * Great Western R. v. Sutton, freight money is not bound to keep L. R. 4 H. L. Cas. 226 ; Garton v. his tender good. East Tennessee R. V. Hunt, 15 Lea, 261. 604 CHAP. VIII.] COMMON CARRIERS. § 588 goods over a line extending through two or more States or countries, and loss or injury occurs, it is held that the rights of the parties will be governed by the laws of the State or country where the loss or injury happened.^ But as a general rule, a personal contract is supposed to have been entered into with reference to the law of the place where made ; and if formalities are there requisite to give it validity, those for- malities must have been observed; the law of the place of contract determines the right.^ On the other hand, the law of the place where the action is brought generally regulates the remedy ; and hence prescribes the modes of proof by which the terms of the contract are made known to the court, as w^ell as the form of the action by which it shall be enforced.^ But the law of the place of performance must frequently determine the mode of fulfilling such a contract, and the measure of liability for its breach.* ^ Barter v. Wheeler, 49 N. II. 9 ; cision in effect nullified the law of Gray v. Jackson, 51 N. H. 9. the State where the contract was ^ Milwaukee R. v. Smith, 74 111. made. See also Gott v. Dinsmore, 197; Fairchild v. Philadelphia R., Ill Mass. 45. 148 Penn. St. 527. * Brown v. Camden R., 83 Penn. 3 Colt, J., in Hoadley v. Northern St. 31G. A contract which limits Trans. Co., 115 Mass. 304. In this the carrier's liability, must, if valid case, the forum of the remedy was where made, be upheld in the State held to determine what should be where the loss occurred. 82 Iowa, evidence of the assent of the shipper 477. to a bill of lading; though this de- 605 § 590 THE LAW OF BAILMENTS. [PART VI. CHAPTER IX. CONNECTING CARRIERS. § 589. Topic to be here considered. — A topic which in- volves at this day problems of great intricacy remains for a special investigation. The law of connecting carriers absorbs the principles set forth in our preceding chapters, and then leads us into a deeper labyrinth, where the aspect of liability presented is that of two or more adjoining lines engaged in some continuous transportation of goods and chattels. What reciprocal rights and responsibilities as between carrier and customer pertain peculiarly to this connecting and continuous transportation, this chapter will consider ; and we may pre- mise that American States have formulated independent rules under this head so greatly at variance with one another and with English precedent as seriously to embarrass the private individual who seeks redress for loss or injury. By the pro- cess, however, of lease and consolidation during the past few years, this problem, with others, has sought its own practical solution, through the combination of connecting inland car- riers by railway and steamer into trunk lines of lessening number and increasing magnitude, so as to supplant by a single responsible and economical management the control which was formerly diffused among various companies inde- pendent of one another. For while a monopoly badly directed is a sure curse to the community, a well-directed one may prove no less a blessing ; and in taking our chances between the two we gain at least the advantage of concentrating the public vigilance upon more definite objects.^ § 590. Nature of Carriage by Connecting Routes ; Principle of Partnership or Mutual Agency. — The nature of this carriage 1 See chapter 10, as to the new national regulation of this subject. 606 CHAP. IX.] COMMON CARKIERS. § 590 by connecting routes brings natural principles into view asso- ciated with the responsible calling of a connnon carrier. We have seen that the responsible party who undertakes the busi- ness of transportation must always be considered ; tliat it is the person or persons having possession, control, and author- ity in the bailment performance, with whom a consignor deals, and whose functions should be distinguished from the mere agent, officer, or employ^ who receipts for the goods and transports them in this subordinate capacity ; and that this responsible common carrier, though employing many agents or servants, may be an individual, a partnership, or a company.^ Now the doctrine of connecting carriers, in the new and enormous business traffic by land and water to which steam transportation has given rise during this nineteenth century, extends the general doctrines of partnership and agency, which courts, English and American, applied to stage-coach- ing arrangements, more simple but similar, some eiglity or a hundred years ago.^ At the present day, where railroad and other steam carriers connect on a continuous route, the doc- trine of agency supplements that of partnership in determining the nature and limits of each carrier's liability. We may as- sume that if a carrier company which owns, by consolidation, or is the responsible lessee of various connecting carriage routes undertakes a transportation, this company is essentially the only carrier for the entire distance. Or, again, if there be a partnership of carriers, — a relation less strictly to be affirmed of companies than of individuals, — the partners are liable togetlier by reason of their community in traffic. But once more, to take the status of the case as usually presented, the doctrine of agency supplements that of partnership for a through carriage. And here the carrier Avho receives goods and chattels for some point beyond his own terminus takes the property (1) as a principal who employs the connecting carriers as his own agents, and tlius makes himself responsi- ble for the whole distance ; or (2) as the agent of himself and » Supra, §§ 359-305. 1 Stark. 272 ; Fairchild v. Slocum, 2 Supra, § 3G4 ; Waland v. Elkins, 19 Wend. 329 ; s. c. 7 Hill, 292. 607 § 591 THE LAW OF BAILMENTS. [PART VI. the connecting carriers, namely, so as to be principal and re- sponsible bailee for his own route only ; each connecting carrier being in like manner a principal and responsible bailee for his share of the journey. Some one may, without being a responsible carrier at all, offer himself as an agent of various connecting carriers who must severally answer for losses on their own lines ; being thus a mere forwarder and no carrier. § 591. The Same Subject; how held out to the Public, the Main Consideration. — The main consideration in determining the true status of a connecting carrier, as among the foregoing theories, is this : how did the carrier hold himself out, or per- mit himself to be held out, to the public ? And this is a consideration which fundamentally obtains whether of the partnership or agency relation. For though a dormant or secret partner or an undisclosed principal, when discovered, may be sued by an injured party, it is a familiar principle that one who offers or allows himself to be offered as a partner or principal must abide the consequences, and cannot shield him- self against the claims of those who contracted upon the faith of such offer by setting up any private and secret arrangements with the parties who used his name, by way of disputing or modifying his open risks. For such arrangements avail only as among the parties themselves and those in privity with the arrangement. Inasmuch as an undisclosed principal or a secret partner, who was such in point of fact, is liable to the public on gen- eral principle, because of his community of interest, an ar- rangement between connecting carriers in the nature of a partnership or a mutual agency may be shown to charge a carrier for losses which occur outside his own route, and for which he assumed no direct or positive relation towards the customer. But while arrangements of this kind are some- times exposed in the courts, more especially for confirming a liability which other evidence tended to fasten immediately upon such a carrier, as of a party held out in a measure for the undertaking by his own permission, they are treated with 608 CHAP. IX.] COMMON CARRIERS. § 592 disfavor where the carrier afforded no such reliance to the customer when the transportation was undertaken.^ Such private arrangement, or, indeed, any special contract by one carrier to transport over other lines must, at all events, be estaljlished by proof. And what the law favors in all such controversies is liability, ilrst of all, for a loss occasioned on one's own route, and while the goods were in one's own pos- session ; next, liability on another, and especially the receiv- ing route, when a through liability was clearly assumed by such carrier. § bO'2. The Same Subject ; Partnership Arrangements. — Thus, the company on whose line a loss occurs may be sued on the ground that the receiving company which contracted for the through carriage of the cliattels was, if not in the full sense a partner, at least its agent, duly empowered, on its behalf, to make a binding agreement.^ But where the ar- rangement between several connecting railways is, in effect, that goods to be carried over the whole route shall be deliv- ered by each to the next succeeding company, and that each company so receiving shall pay the preceding company the carriage charges already due, and tlie last one shall collect the whole from the consignee, this, it is held, will not make the last company liable on receiving the goods and paying the charges of its predecessors, for an injury done to the goods before it received them.^ Here, however, appears no partner- 1 See Insurance Co. v. Railroad &c. R., 99 Mass. 220. And see Wil- Cc, 14 Otto, 14G ; Stewart v. Terro son v. Harry, 32 Penn. St. 270 ; Haute R., 1 McCr. 312; Aigen v. Schneider v. Evans, 25 "Wis. 241; Boston & Maine R., 132 Mass. 423 ; Hunt v. New York R., 1 Hilt. 228. Whitworth v. Erie R., 87 N. Y. 413 ; Where each company by the mutual St. Paul R. V. Minnef^polis R., 20 arrangement bore the expenses of Minn. 213 ; 21 Fed. R. 25. its own route and of all transporta- 2 Gill 17. Manchester, &c. R., L. R. tion over it, and a division, upon tho 8 Q. B. 180 ; Swift v. Steamship Co., basis of distance, of the aggregate 100 X. Y. 200 ; Pratt v. Ogdensburg pay for the entire route was stipu- R., 102 Mass. 557 ; Barters. Wheeler, lated, this was held not to make 49 N. Y. 9 ; Railroad Co. v. Pratt, 22 these companies partners inter sese, Wall. 123. nor partners as to third persons. ■5 Darling v. Boston & Worcester Insurance Co. v. Railroad Co., 14 R., 11 Allen, 295 ; Gass v. New York, Otto, 140. 39 609 § 593 THE LAW OF BAILMENTS. [PART VI. ship, no agreement for a community of profits in the entire carriage ; for, were there such, the arrangement might be treated as rendering both the receiving company and the company causing the loss liable for a loss occurring anywhere on the transit, and perhaps any and all of the carriers.^ And it may be generally stated that where carriers associate to- gether, without taking a common name or entering into a close community of profits, but with the purpose merely of transporting through freights and dividing the receipts in pre- scribed proportions according to distance, they do not con- stitute a partnership, nor are they jointly liable for loss or injury occurring to the goods transported.^ Not even the advertisement of the connecting carriers as forming a line under a common name and the employment of a common agent will sufficiently charge them as partners to the public.^ But where several carrier companies having connecting lines between two points form an association under a speci- fied name, for the carriage of goods from one point to the other, and their agent duly authorized receives goods and gives a bill of lading in the name of that association, they are partners, so far as the customer is concerned, and may be held liable jointly and severally for any loss occurring in the transportation ; * supposing, of course, no special terms in the bailment impose a different liability. On the whole this oner- ous partnership of railroads is not readily affirmed. § 593. Through Contract may be made ; Ultra Vires not pre- sumed. — Railway and other transportation companies have 1 Fitchburg & Worcester R. v. ^ citj^ens' Ins. Co. v. Kountz Line, Hanna, 6 Gray, 539; Champion v. 4 Woods, 268. Here there was no Bostwick, 18 Wend. 175 ; Fairchild community in profits or losses, nor V. Slocum, 19 Wend. 329 ; Mont- common use of vehicles, and the gomery R. v. Moore, 51 Ala. 394. bill of lading issued was in the name 2 Insurance Co. v. Railroad Co., of the associated carriers alone. 14 Otto, 146 ; Hot Springs R. v. * Block v. Fitchburg R., 139 Mass. Trippe, 42 Ark. 465 ; Darling v. 308 ; Hill Man. Co. v. Boston & Low- Boston & Worcester R., 11 Allen, ell R., 104 Mass. 122. And see Milne 295. And see Wehmann v. Minne- v. Douglass, 4 McCr. 368 ; also 4 Mo. apolis R., 58 Minn. 22; St. Louis App. 35. R. V. Neel, 56 Ark. 279. 610 CHAP. IX.] COMMON CARRIERS. § 593 undoubtedly at the present day the power, unless forbidden by their charters, to contract for transportation for an entire distance, beyond their own routes, and over any connecting lines. Such is the well-settled rule, both in the United States and in England.^ In such a case the company is liable in all other respects upon the other lines as upon its own ; and the public has a right to assume that the contracting company has made all the arrangements necessary to the proper fulfd- ment of the obligations it thus assumes.^ Carriers, to speak more generally, whether natural or legal persons, may so bind themselves to deliver goods and chattels beyond the strict limits of their line as only to exonerate themselves by a safe carriage through the entire journey.^ Nor is such a contract when made by a chartered company to be presumed \iltra vires. Corporations are supposed to contract within their just powers ; and the doctrine of ultra vircs^ when invoked for or against a corporation, should not be allowed to prevail where it would defeat the ends of justice or work a legal wrong. When, therefore, a contract is not on its face necessarily beyond the scope of the powers of the corporation by which it was made, it will be presumed valid until the contrary be proved.^ 1 Muschamp v. Lancaster R., 8 < Mr. Justice Swaj'ne, in Railway M. & W. 421 ; Bristol R. v. Collins, Co. v. McCarthy, 6 Otto, 258 ; Union 7 H. L. 194; Gill v. INIanchester R., Water Co. v. Fluming Co., 22 Cal. L. R. 8 Q. B. 186; 7 H. & N. 986; 620; Morris R. v. Railroad Co., 29 Railroad Co. v. Pratt, 22 Wall. 123, N. J. Eq. 542 ; Whitney Arms Co. and cases cited ; Weed v. Railway v. Barlow, 6-3 N. Y. 62 ; Wilby v. Co., 19 Wend. 534; Knight v. Port- West Cornwall R., 2 H. & N. 703; land R., 56 Me. 234 ; Buffett v. Troy 54 Penn. St. 77 ; Perkins v. Portland R., 40 N. Y. 168; Southwestern R. R., 47 Me. 573; Clyde v. Hubbard, V. Thornton, 71 Ga. 61. 88 Penn. St. 358 ; McCluer v. Man- 2 lb. ; Mr. Justice Swayne, in Rail- Chester R., 13 Gray, 124. An ena- way Co. V. IMcCarthy, 6 Otto, 258. bling .statute may be found in some ' Railroad Co. v. Androscoggin States in aid of this right. Burtis v. Mills, 22 Wall. 594; Lock Co. u. Rail- Buffalo R., 24 N. Y. 269. And see road, 48 N. H. 339; Hill Manuf. Co. McCluer v. Manchester R., 13 Gray, V. Boston & Lowell R., 104 Mass. 124. The former disposition in Con- 122 ; Noyes v. Rutland R., 27 Vt. necticut was to deny such right to a 110; Baltimore Steamboat Co. v. chartered railway ; but tiio later cases Brown, 64 Penn. St. 77. do not appear to justify this narrow 611 § 594 THE LAW OF BAILMENTS. [PAET YI. As we shall presently see, the only question here of great consequence relates to the circumstances which shall evince this tlirough undertaking on the carrier's part; and here, unfortunately, the English and American authorities are quite inharmonious. § 594. Principles of Liability for Loss stated. — The caseS, English and American, appear fairly in accord upon the gen- eral principles of liability for loss, as applied to connecting carriers. 1. If the connecting carriers undertake the trans- portation of goods for a customer in the close relation of a mutual agency with joint principals or a partnership, the receiving company or general agent makes a contract which binds all jointly and severally, for any loss or injury which may occur on the route ; and in case of loss or injury, the customer may sue accordingly .^ 2. If the receiving carrier agrees to carry the goods through to their destination, and beyond his own route, this carrier is to be treated by the customer like a principal who employs his own agents ; hence, for a loss or injury thus occurring the customer should sue him ; such carrier being assumed to have his own remedy over against the delinquent carrier, and to undertake towards the public to transport in the capacity of common carrier for the entire distance.^ 3. But wdiere the receiving carrier, either for himself alone, or as the mere agent of other principals connected with him in the carriage, undertakes the transportation, he is liable only for his own route as common carrier, and for safe storage policy. Converse v. Norwich Trans, v. Pratt, 22 Wall. 123 ; McCluer v. Co., 33 Conn. 166, commenting upon Manchester K., 13 Gray, 124. Hood V. New York & New Haven Legislation sometimes aids, or K., 22 Conn. 1. rather declares, the same doctrine. In Burtis v. Buffalo R., 24 N. Y. 45 N. Y. 524. 269, the principle of the text is ad- ^ See Blackburn, J., in Gill v. mitted to apply to connecting roads Manchester R. , L. R. 8 Q. B. 186 ; extending beyond the limits of the supra, § 592. State. And such, agreeably to the ^ Southwestern R. v. Thornton, necessities of traffic, is the general 71 Ga. 61. We shall presently see rule of our States. Lindley v. Rich- that this contract is more readily in- mond R., 88 N. C. 547; Railroad Co. ferred in England than America. Post, §§ 596-600, and cases cited. 612 CHAr. IX.] COMMON CAKIUERS. § 596 and due delivery to the next carrier in turn ; in other words, he is a mere forwarder, except for his own portion of the journey.^ S 595. Confusion of Authority relates to Proof and Presump- tion concerning the Actual Engagement. — There is, however, much confusion and discordance to be found in the decisions under connecting carriers, for the reason that proof and pre- sumptions are applied differently to determine which, in a given case, was the carrier's actual engagement to his cus- tomer ; whether, in point of fact, there was a partnership or mutual agency, or an undertaking to be a through carrier, or simply a forwarder beyond one's own route. For, plainly enough, a carrier may by special contract with his customer overcome the presumption that his undertaking was upon one footing rather than another, and may modify considerably the usual liabilities of any such capacity. The proof which overcomes the usual presumption, and establishes a special contract relation, may be oral or written, direct or circum- stantial. But what proof shall suffice, and what shall be the usual presumption in the absence of countervailing proof, we must now inquire. § 596. English Presumption favors the Idea of a Through Undertaking. — Upon the issue of presumptions and proof thus presented, English and American authorities have long been at variance. In England, whose railroad system is snug and compact, inheriting to a remarkable degree the traditions of stage-coach conveyance, the disposition has been, from the first, to regard the company which receives a parcel and books it for a certain destination, as a carrier, by implication, for the whole distance.^ This, in a leading case, decided not long after the introduction of steam inland locomotion, was pro- nounced the rule, notwithstanding payment in advance for 1 Insurance Co. v. Railroad Co., 2 Muschamp v. Lancaster H., 8 M. 14 Otto, 146 ; post, § 597 ; Darling v. & W. 421 ; Coxou v. Great Western Boston & Worcester R., 11 Allen, R., 5 H. & N. 274; Bristol & Exeter 295 ; Sherman v. Hudson River R., R. v. Collins, 7 II. L. 194. 64 N. Y. 254 ; Brintuall v. Saratoga R., 32 Vt. 665. 613 § 597 THE LAW or BAILMENTS. [PAKT VI. the carriage had been declined by the booking company, whose route was well known to extend only part way to the final destination, and the loss of the goods occurred at a point beyond, which was traversed by a connecting railway. For, as the court observed, the carrier, by receiving the parcel to carry, whether beyond or within the limits of his own route, and not positively limiting his responsibility, undQi'took, primd facie, to carry the parcel to its destination.^ And the House of Lords has gone so far in this direction as to insist, in a stubbornly contested case carried up on final appeal, that where the contract for carriage is made thus exclusively with the first company, the owner cannot sue any of the subsequent companies on the route for their miscarriage. ^ Here we discover, then, a strong disposition to favor our second principle of liability where the carriage of goods is undertaken over connecting routes ; so that the receiving car- rier appears in England the party actually bound to see that freight accepted for a certain point is duly delivered at the place of destination. § 597. American Presumption favors Idea of a For'warder's Undertaking. — In America, on the other hand, where railways transcend State limits, and bring distant cities into closer communion by cutting paths through intermediate forests and over prairies, where it must often be an inconvenience to sue the first carrier alone, and where, in fact, this sort of extended transportation is novel and sui generis, the more obvious dis- position has been to regard each of several successive com- panies, where no special undertaking appears to the contrary, 1 Muschamp v. Lancaster R., 8 M. ceives goods, marked or otherwise 6 W. 421. directed to a place beyond the carri- 2 Bristol & Exeter R. v. Collins, er's own line, this affords prima /aci'e 7 H. L. 194, on appeal, reversing Col- evidence of a contract to carry the lins V. Bristol & Exeter R., 1 H. & N. goods through, notwithstanding pay- 517 ; which reversed s. c. 11 Ex. 790 ; ment of through freight was not ac- Myltoni). Midland R., 4 H. & N. 615 ; cepted by such carrier, nor proof 5 H. & N. 274. Cf. Gill v. Manches- afforded that he had any business ter R., L. R. 8 Q. B. 156. connection with the parties beyond The English rule then is that, his own line, ■where a railway or other carrier re- 614 CHAP. IX.] COMMON CARRIERS. § 597 as liable in the common-carrier capacity only for the space of its own route, and intending beyond this no more than safe storage, and due delivery to the next carrier in succession.^ More particulaily does the railway which receives the goods marked to some point beyond its own line find immunity against the subsequent miscarriage of a connecting company where nothing like a partnership or agency relation is shown to exist between the two, and the first railway neither took pay for carriage of the goods beyond its own terminus, nor agreed to send them through on its own responsibility .^ The simple receipt of goods so marked will not, then, jjrtw(?/afie import a promise to carry them to their final destination, according to our leading State authorities.^ This doctrine, we may add, has received the approval of the Supreme Court of the United States in repeated instances.* The preponderance of authority in this country favors, there- fore, the presumption that each carrier in a continuous trans- portation is only a forwarder beyond his own line ; that the receiving carrier is no more than the agent of others succeed- ing him in the carriage.^ 1 Van Santvoord v. St. John, 6 ^ Cutting v. Conn. River R., 1 Hill, 157 ; Converse v. Norwich Trans. Gray, 502 ; Quimby v. Vauderbilt, 17 Co., 33 Conn. 106 ; Nutting v. Conn. N. Y. 306 ; Lowell Wire Fence Co. v. River R., 1 Gray, 502 ; Farmers' Sargent, 8 Allen, 189. Bank v. Chainplain Trans. Co., 18 Vt. ^ See Burroughs v. Norwich & 131; 23 Vt. 180; Railroad Co. v. Worcester II., 100 Mass. 26; Lock Berry, 68 Penn. St. 272 ; 88 N. C. Co. v. Railroad, 48 N. H. 339, and 547 ; 19 S. C. 353 ; 43 Mich. 609 ; authorities cited ; 51 N. H. 9 ; 76 Knight V. Providence R., 13 R. I. Tex. 195. 572; 19 Ohio St. 221; Rawson v. •* Insurance Co. i?. Railroad Co., 14 Holland, 59 N. Y. 611 ; McMillan v. Otto, 146 ; Railroad Co. v. Man. Co., Michigan Southern R., 16 Mich. 80 ; 16 Wall. 318 ; Railroad Co. v. Pratt, Schneider v. Evans, 25 Wis. 241 ; 22 Wall. 123. Merrick V. Gordon, 20 N. Y. 93 ; Mont- "In such cases it is the duty of gomery, &c. R. v. Moore, 51 Ala. 394 ; the carrier, in the absence of any Sherman v. Hudson River R., 64 N. Y. special contract [express or implied] 254 ; Perkins v. Portland R., 47 Me. to carry safely to the end of his line 573; Brintnall v. Saratoga, &c. R., and to deliver to the next carrier 32 Vt.665 ; Crawford v. Southern R., in the route beyond." Mr. Ju.stice 51 Miss. 222 ; Lawrence v. Winona Davis, in Railroad Co. v. Man. Co., R., 15 Minn. 390; 53 Kans. 157 ; 86 supra. Va. 248. 6 In other words, our third prin- 615 § 699 THE LAW OF BAILMENTS. [PAET VI. § 598. The Same Subject ; Exceptions stated. — There are, however, American decisions in the highest courts of some States, which harmonize more closely with the English doc- trine in this respect,^ and regard the mere receipt of goods destined beyond one's own route as tantamount to a through undertaking for common carriage in the absence of an express disclaimer by the receiving carrier. And, it should be ob- served, our present contention is for a, prinid facie case only; which, by the showing of attendant circumstances, or usage, might be so readily overcome, in a particular case, that doubt- less some explicit disavowal of responsibility beyond one's own route, in the contract of transportation, is always pru- dent wherever one carrier receives goods, to be sent by con- necting lines beyond his own terminus, each carrier of whom is to transport on his separate risk.^ Under English or American presumptions, that most onerous principle of partnership, or joint and several liability in a con- necting carriage, the first above stated, finds the most disfavor, and requires the strictest proof. § 599. American Rule favors suing the Carrier -who occa- sioned the Loss. — We may add that while English courts have pronounced the receiving carrier exclusively liable for a loss over the whole route,^ no such rigid adherence to legal con- ciple of liability is the favored one ^^^^^ ^^ ^he extent of his own route, in the United States. See stipra, and for the safe storage and deliveiy § ^^*' to the next carrier, is in itself so just 1 Kyle V. Laurens R., 10 Rich. ^nd reasonable that we do not hesi- 882 ; Illinois Central R. v. Copeland, ^^te to sive it our sanction." Mr. 2i 111. 332 ; Rome R. v. Sullivan, 25 justice Davis, in Railroad Co. v. Man. Ga. 228; 74 111. 197; Mulligan v. Co., 16 Wall. 318. Illinois Central R., 36 Iowa, 181; « Supra, § 596. But this is proba- East Tennessee R. v. Rogers, 6 bly because one may more conven- Heisk. 143 ; Mobile R. v. Copeland, iently rely upon the receiving carrier 63 Ala. 219 ; 38 Ga. 37 ; Halliday v. exclusively in that country, where St. Louis R., 74 Mo. 159 ; 79 Iowa, inland carriage is within a small 627 ; 160 111. 648. and compact jurisdiction, than in the 2 " It is unfortunate for the inter- United States ; for, where railways ests of commerce that there is any amalgamate, or a joint or partner- diversity of opinion on such a sub- ship arrangement between carriers is ject, e.specially in this country ; but shown clearly to exist, or the receiv- the rule that holds the carrier only ing company may be pronounced an 616 CHAP. IX.] COMMON CARRIERS. § 600 sistency is favored in this country. On the contrary, the car- rier company which in point of fact can be shown to have occasioned the loss or injury is suable by the customer, as American courts have ruled, even though the first carrier may by his sufficient and express contract have assumed the transportation risks for the entire distance. And just as an innocent and non-contracting carrier is, on the one hand, shielded if possible, so, on the other, is the disposition strong to hold a connecting carrier answerable for his own negligence.^ § GOO. Special Contract to carry through, how shown. — By special contract, unquestionably, a carrier may, in America, as well as in England, assume to transport beyond his own limits ; ^ and such a contract, it is generally admitted, is inferable from circumstances independently of an express stipulation.^ Thus it may be established by the terms of a through way-bill, or the charge of a specific price for trans- portation over the whole route.* Any written document given duly to the consignor by way of receipt, and as an ex- pression of the carriage terms, bears upon this question ; the force and meaning of such documents come frequently before the court for construction ; and writings furnish not only evi- dence, but the best evidence, of what the contract really was. But material surrounding circumstances should be submitted as part of the case to a jury ; and where there is competent autliorized a^ent contracting on be- default the loss or damage actually half of itself and another as principal happened." Perley, C. J., in Lock connecting carriers to carry goods Co. v. Railroad, 48 N. H. 339. And thronah, the owner of goods is not, ^^^ ^^^ ^^'- '^'*°- in Great Britain, debarred from pur- ^ Sitpra, § 593, and cases cited, suing the carrier company which oc- ^ See Crawford v. Southern R., 51 casioned the loss. Gill v. Manchester Miss. 222 ; Cutts v. Brainerd. 42 Vt. R., L. R. 8Q. B. 15fi. 4r)(> ; Najac v. Boston & Lowell R., 7 1 See Aigen v. Boston & Maine Allen, 329; Lock Co. v. Railroad, 48 R., 132 Mass. 423, per ntriam ; Rack- N. H. 339 ; Gray v. Jackson, 51 N. H. ard V. Taylor, .35 Ark. 402. " I have 9, 24. not met with an American case in * Railroad Co. v. Pratt, 22 Wall, which the rule has been pressed to 123 ; Cincinnati R. w. Spratt, 2 Duv. the extent of holding that the owner 4, 8, per Robertson, J. ; Evansville cannot come on any carrier by whose R. v. Marsh, 57 Ind. 505. 617 §601 THE LAW Oi^ BAILMENTS. [part VI. evidence on which such jury may lawfully find the existence of the through contract alleged, the court ought not to deter- mine the issue by its own arbitrary construction of particular writings.^ Usage and the general business course of the receiving carrier may be shown as tending to establish on his part the assumption of a through liability .^ § 001. The Same Subject. — The acts and admissions of such corporate agents and officers as usually attend to freight may fairly bind the company in all undertakings of this character.^ And it is adjudged that a company which has held itself out in such a manner, and for so long a time, as a common carrier to a place beyond its own ter- minus, that the corporators may be presumed to have knowingly assented thereto, is estopped to deny the validity of a through contract for carriage entered into by its usual agent; whether on the ground that the charter does not expressly give the company power to make such a contract, 1 My rick v. Michigan Central R., 107 U. S. 102 ; 14 Wall. 484 ; Rail- road Co. V. Pratt, 22 Wall. 123. Receipt of the entire pay, by the receiving carrier, affords a fair pre- sumption of an entire contract. Rail- road Co. V. Pratt, 22 Wall. 123. Receiving part of the shipment on the connecting road for the custo- mer's ovs^n convenience is an inci- dental circumstance, and does not affect the through contract. Rail- road Co. V. Pratt, 22 Wall. 123. In construing documents of car- riage, the whole language and tenor of the instrument should be fairly considered. Such words as " trans- port " or " carry " (which are equiva- lent) are distinct from the idea of "forwarding." 22 Wall. 123. And see Myrick v. Michigan Central R., 107 U. S. 102 ; Orttv. Minneapolis R., 36 Minn. 396 ; Harris v. Grand Trunk R., 15 R. I. 371. East Tennessee R. v. 618 Rogers, 6 Heisk. 143, goes so far as to assert that any contract to " forwai'd" goods to a certain point beyond one's route signifies to transport them with the risks of common carrier ; relying upon Cutts V. Brainerd, 42 Vt. 466, where, however, the proof of such intention was more specific, and the words used were to " forward and deliver." That a carrier who stipu- lates for through liability becomes liable for misdelivery by the con- necting carrier to whom he has de- livered the goods, see Clyde v. Hubbard, 88 Penn. St. 358. Liability for carriage over a con- necting route is not to be inferred, but must be proved by satisfactory evidence. 24 Fed. R. 509. 2 Lowenburg v. Jones, 56 Miss. 688. 3 See Noyes v. Rutland R., 27 Vt. 110 ; 2 Redfield Railways, § 163. CHAP. IX.] COMMON CARRIERS. § G02 or that the agent was not duly empowered.^ So a depot agent who receives and forwards freight can, in the absence of special instructions made known to the public, bind his company to send through merchandise ; "^ yet a cautious ship- per will scrutinize such agent's authority, unless it can be reasonably inferred from previous dealings, or the company has held itself out for business to such points.^ While a company may thus render itself responsible to the customer beyond its limits, it cannot, of course, bind compa- nies owning the connecting roads, without in some manner procuring their consent or acquiescence thereto.* § 602. The Same Subject; Effect of a Through Receipt in Connection with Other Circumstances. — The New Hampshire rule, founded upon an exhaustive review of the cases, appears to be that while the mere acceptance of goods marked beyond one's terminus should import by itself no absolute undertak- ing to be responsible for the whole journey, this is a circum- stance which, with the other facts in a given case, may be weighed by the jury ; '^ which, in a measure supported by many of the other decisions, should perhaps be pronounced the most rational doctrine of the three we have stated, though not the most exact of application. The carrier's receipt of goods directed beyond his own route may charge him accordingly, even in States which deny the presumption favored by the English courts, when other circumstances concur to fasten upon him the intent of send- ing the goods through on his sole undertaking with the 1 Perkins v. Portland, &c. R., 47 &c. R. v. Northern Line Packet Co., Me. 573 ; supra, § 598. 70 111. 217 ; Newell v. Smith, 49 Vt. 2 Watson V. Memphis R., 9 Heisk. 255. 255. As to a railroad agent's verbal 8 Grover Sewing Machine Co. v. agreement that goods shall be sent Missouri Pacific R., 70 Mo. 672, re- farther than the bill of lading speci- quires express proof of authority, in fies, see 34 Hun, 07. order to make such an agent's con- ^ See the very learned opinion of tract binding, unless this reasonable Perley, C. J., in Lock Co. v. Rail- inference can be made. road, 48 N. H. 339 ; Gray v. Jackson, * See Rank of Kentucky v. Adams 51 N. H. 9, 24. Express Co., 93 U. S. 174 ; Chicago 619 § 603 THE LAW OF BAILMENTS. [PART VL owner. Receiving with the goods thus directed freight- money in advance for the whole distance should strongly manifest such an intent ; ^ and the transportation methods of the connecting roads, the manner in which their through business is held out to the public, to one another, and to the particular customer, bear forcibly upon the issue thus pre- sented, of the receiving carrier's liability for goods beyond his own line, according as the bailment must justly have con- templated; which issue circumstances, as well as positive stipulation, may in good reason resolve. ^ § 603. Special Contract may exclude a Through Liability. — On the other hand, since it is no part of a common carrier's obligation to carry goods on his own risk beyond his terminus, so may he, by special agreement, lawfully stipulate, on receiv- ing property for a distant destination, that he shall not be liable as common carrier beyond his own route, — a most convenient means, doubtless, of countervailing these trouble- some presumptions, and making the limits of one's own undertaking specific.^ And railways and steamships not 1 Illinois Central R. v. Copeland, Converse v. Norwich Trans. Co., 33 24 111. 332 ; Weed v. Saratoga R., 19 Conn. 166, citing previous decisions Wend. 534 ; Adams Express Co. v. of that State ; Burroughs v. Norwich Wilson, 81 111. 143 ; Baltimore Steam- & Worcester R., 100 Mass. 26, and boat Co. V. Brown, 54 Penn. St. 77. cases cited. And see supra, § 600 ; Even in the leading case of Mus- Central R. v. Georgia Exchange, 91 champ V. Lancaster R., 8 M. & W. Ga. 389. 421, the consignee's offer in advance Allowing, therefore, for the dif- of freight-money to the terminus was ferences of presumj)tion and cir- not declined by the carrier in any cumstautial proof, the rule of a such manner as denied his right to connecting carrier's liability appears be paid for the continuous transpor- to be according to the fundamental tation. Such evidence is not con- rules already stated, supra, § 594. elusive. 68 Miss. 14. The methods To these the reader's attention is of receiving payment or of entering once more directed, charges should be scrutinized as to ^ Fowles v. Great Western R., 7 meaning. 87 Me. 299. Ex. 699 ; Shiff v. New York Central 2 Hill Manuf. Co. v. Boston & R., 23 N. Y. Supr. 278 ; Mulligan v. Lowell R., 104 Mass. 122; Champion Illinois Central R., 36 111. 181; V. Bostwick, 18 Wend. 176 ; Fitch- United States Express Co. v. Haines, burg & Worcester R. v. Hanna, 6 67 111. 127 ; Detroit, &c. R. v. Farm- Gray, 539 ; Morse v. Brainerd, 41 ers', &c. Bank, 20 Wis. 122 ; Berg Vt. 550; 68 Iowa, 363. But see i?. Atchison R., 30 Kan. 561 ; 7 Daly, 620 CHAP. TX.] COMMON CARRIERS. § 604 uncommonly, in these clays, issue their tickets, way-bills, receipts, or other documents for transportation over con- tinuous lines, so expressed as clearly to indicate wliether the receiving carrier engages to send the goods through, and thus hold himself responsible as carrier for the entire distance, with a duty of final delivery at the point of destination, or so that each successive carrier shall be responsible only for losses occurring on his own route, and before compliance with the duty of delivering to the next carrier in oider.^ And thus by special contract or reservation does the receiv- ing carrier fortify the usual presumptions in his favor, where the presumption is that of an undertaking as forwarder be- yond his own route, since independent connecting carriers may provide for a distinct and independent responsibility, each for his own line. § 604. Special Contracts of Connecting Carriers in General, Special Exemptions, etc. — To speak generally, the stipulations of connecting carriers, by way of specially modifying the usual risks or bailment performance, take effect upon the usual conditions applicable to common carriers who seek to modify their legal duties in corresponding respects. Tlius, the stipulation itself must conform to public policy ; ^ and it must be suitably and seasonably brought to the customer's 456 ; 89 N. C. 311. Even though But though a carrier should stipu- a through rate of freight be given, late against responsibility for dam- the express disclaimer of through age beyond his own line, his failure, liability in the bill of lading is not Avithout suificient excuse, to send by negatived thereby. McEacheran v. the line or route or in the cars prom- Michigan R., 101 Mich. 264. ised, renders him still liable for dam- 1 lb. See Erie v. Lockwood, 28 age or delay ; for this is a deviation Ohio St. 358. No carrier can be from the terms of the bailment, compelled to give a bill of lading Galveston R. v. Allison, 50 Tex. 1!»3 ; making him responsible for goods Levy v. Louisville R., 35 La. Ann. beyond his own route. 73 Ala. 308. 615 ; Georgia R. v. Cole, 68 Ga. 623. 2 See c. 5. If a carrier contracts to .send through The special stipulation for a con- by a certain line by a given time, he tinuous carriage that the company in is liable for losses caused by delays whose possession the goods are at the over a connecting road. 66 Cal. time of loss or damage shall alone 92. be liable, is reasonable and valid. 89 N. C. 311 ; § 603. 621 § 605 THE LAW OF BAILMENTS. [PART VI. knowledge ; ^ while, as we have seen, a bill of lading binds by its express and reasonable terms, although the shipper fails to read the document.^ Where the freight contract is for through transportation, but not otherwise, each connecting carrier, as a rule, will be entitled to the benefits and exemptions of the contract made by the shipper and the first carrier.^ Thus, an exemption made by one carrier on behalf of himself and the connecting carriers for loss by " accidental fire " is available to each and all carriers concerned, wherever the fire may have occurred.* But one receiving goods as a connecting carrier cannot, as such, claim the benefit of an express limitation of risks for which the first carrier stipulated with the consignor on his own behalf and for his own advantage and protection only.^ For one of several connecting carriers may limit the risks of transportation while the goods are in his own custody alone.® And where the connecting carrier makes a new and different contract on his own behalf, the former contract is not pre- sumed to inure to his benefit.'^ 8 605. Intermediate Carrier not in Default is not Liable. — An intermediate carrier in a continuous line, who has made no contract with the customer and is not in actual default, cannot be held liable to consignor or consignee, for the negli- gence, extortion, or misconduct of other carriers, whatever may be his liability to the contracting carrier.^ 1 See, as to a special notice printed preceding and subsequent carriers on the baclc of a receipt, which was on the route. deemed insufficient to bind the ship- ^ Bancroft v. Merchants' Desp. per, Railroad Co. v. Man. Co., 16 Trans. Co., 47 Iowa, 262 ; Taylor v. Wall. 318. Little Rock R., 39 Ark. 168 ; 120 2 Phiferv. Carolina R., 89N.C.311 ; Ind. 73. Jones V. Cincinnati R., 89 Ala. 376. 6 55 Mich. 218. See 91 Ala. 340 ; 8 See Scott, C. J., in Merchants' 94 Ga. 471. Despatch Co. v. Bolles, 80 III. 473 ; '^ Browning v. Goodrich Co., 78 50 Ark. 397. Wis. 391. 4 Whitworth v. Erie R., 87 N. Y. 8 Hill v. Burlington R., 60 Iowa, 413. In Railroad Co. v. Androscog- 196. Unless, perhaps, some partner- gin Mills, 22 Wall. 594, the bill of ship or mutual agency relation can lading was given by a railroad be shown to charge him more closely, company on behalf of itself and Supra, §§ 690-592. 622 CHAP. IX.] COMMON' CARRIERS. § 606 § G06. Presumption in Case of Loss or Injury. — Tlie fair presumption, in case of a loss or injury discovered when arri- val was due over connecting roads, is that the loss occurred through the fault of the last carrier. Were this otherwise, the owner of property who is compelled to sue the company occasioning the loss could seldom establish his case in proof.^ Thus, it is held that, where three successive carriers ship cloth in a box, and, upon delivery at the point of destination, and examination by the consignee, the box is found to have been opened, a number of pieces abstracted, and the cover fastened down again, a jury may presume, in absence of evidence to the contrary, that the box remained unopened until it came into the last carrier's possession.^ This presumption, however, best avails under that Ameri- can rule, elsewhere stated,^ which protects the receiving carrier; thereby compelling the customer, under any other theory, to search far and wide through different States, it may 1 Laughlin v. Chicago R., 28 Wis. 204 ; Memphis R. v. HoUoway, 9 Baxt. 188 ; Leo v. St. Paul R., 30 Minn. 438. 2 lb. And see supra, § 4.39 ; Brintnall v. Saratoga R., 32 Vt. 6(35 ; Smith v. New York Central R., 43 Barb. 225, affirmed on appeal, but not reported, 41 N. Y. 620 (index) ; Southern Express Co. v. Hess, 53 Ala. 19 ; 78 Tex. 372. The court sensibly observes by Dixon, C. J., in Laughlin v. Chicago R., supra, 209, while admitting the poverty of precedents on this point : "If there were no redress in such case, it would no longer be the boast of our law that there is no wrong without its remedy, and the strict liability of common carriers, when- ever two or more are associated in the transportation or connected in the line or route, would be at an end. It would be far more in har- mony with the rules of the common law respecting such liability, that any or all of the carriers so associ- ated, or whose lines or routes con- nect, and who have liad possession of the goods, should be held liable, at the option of the owner or con- signee in such cases, than that none of them should be. . . . The diffi- culties, nay, even impossibilities, by which owners would be beset, if put to the task of ascertaining where their packages or boxes were broken open and contents plundered when in transit over our long routes, are well known, and are illustrated by the facts of this case." See also as to lost baggage. Savan- nah R. V. Mclnto.sh, 73 Ga. 5.32. That the customer must prove good condition when the goods were deliv- ered to the first carrier is of course requisite. 1 111. App. 480; snpra, c. 8. The last carrier may, if sued, show that the loss did not occur on his line. 9 Baxt. 188. * Supra, § 697. 623 § GOT THE LAW OF BAILMENTS. [PART VI. be, for the company through whose delinquency the mischief was in fact occasioned. Under the English presumption so onerous a necessity is avoided by the rule which places the responsibility once and for all upon the receiving carrier ; ^ and there are States which, pursuing that same rule (or possi- bly without doing so), deny to the customer any right to hold the last carrier liable, or any carrier later than the first and contracting one ; unless, at all events, he can allege and prove that such carrier was actually the delinquent one, or else can establish such community of interest in the trans- portation as to constitute a partnership or mutual agency of these companies towards the public.^ S 607. Liability of Connecting Carriers towards One Another. — Where the receiving carrier or any other carrier who did not in fact cause the loss is made responsible to the customer for the loss or injury suffered, his remedy over against the connecting carrier or carriers depends mainly upon the pri- vate arrangement which exists between them. Usually some full and explicit contract will be found to determine this lia- bility of carriers inter sese, whether by way of partnership or mutual agency or on the basis of a less intimate arrangement. On general principle, however, the first carrier or principal transporter who is held answerable to the public may in such a case sue, on his own behalf, the connecting carrier through whose delinquency or default a loss occurred, just as other 1 Supra, § 596. transit. Eva,ns v. Atlanta E., 56 Ga. 2 See sttpra, § 598 ; 21 S. C. 35 ; 498 ; 81 Ga. 522. Atchison R. v. Roach, 35 Kan. 740 ; The company which is sued for Chicago R. v. Fahey, 52 111. 81. In loss may by the agent of a connect- order to hold the last carrier liable, ing road, with the aid of entries in the plaintiff must prove that the the books of such road, prove deliv- goods were in a good condition ery thereto in good order. 66 Ga. 39. when delivered to him. Marquette Usually each carrier receipts for the R. V. Kirkwood, 45 Mich. 51. The goods in succession ; and such re- Michigan rule is admitted to differ ceipt as "in good order and condi- from that of Wisconsin in this respect, tion" should, if given by the final Some local statutes undertake to carrier, raise a strong presumption define which company in a connect- that he was liable for loss or injury, ing line of railways shall be held See 67 Miss. 35. liable for a loss occurring on the 624 CHAP. IX.] COMMON CARRIERS. § 608 principals may their own sulmrdinates ; but lie cannot hold connecting carriers who are ])lameless thus answerable merely because of the connection.^ § 608. Commencement of Connecting Carrier's Risk. — Hav- ing discussed the main (question of liability, it remains to no- tice a few other points of inquiry under the law of connecting carriers. And, first, as to when the risk of a connecting carrier commences. The fundamental doctrine of bailment delivery here applies ; and we may state generally that this carrier's liability as such commences when the goods are de- livered to him or his authorized agent for immediate trans- portation and accepted accordingly ; or, to come closer to the point, that the succeeding carrier's risk attaches upon his receipt and acceptance of goods from his predecessor to trans- port the same without awaiting further orders. What favors the idea of an acceptance as for immediate transportation more especially in this instance is, that the consignor or owner unless notified is necessarily debarred from handling the goods for himself, but must leave the connecting carriers to arrange the transfer of delivery with one another, trusting that some carrier's risk is attached throughout the jour- ney without intermission. An}'^ mode of acceptance, even though it were a deposit without notice, to which the carrier who receives has agreed or bound himself, fixes his liability .^ And it would appear, that the receiving carrier's lesser risk as warehouseman goes rather to the disadvantage of his predecessor than the shipper of the goods ; since it would be unfair to permit the customer to be sacrificed between the continuous parties who are per- forming their public vocation together without his interven- tion. But what shall constitute for fixing liability as between these carriers a deposit with the new carrier for the purpose of transportation onward, without further orders, it is some- 1 Chicago R. v. Northern Line 2 24 Conn. 354 ; 33 ib. 106 ; Pratt Packet Co., 70 111. 217; Smith v. v. Railway Co., 90 U. S. 43 ; Alabama Foran, 43 Conn. 244. See also Pow- R. v. Mount Vernon Co., 84 Ala. 173. hatan Co. r. Appomattox R., 24 How. 247. Cf. supra, §§ 590-592. 40 625 § 609 THE LAW OF BAILMENTS. [PAET VI. times difficult upon the peculiar facts to decide. In Massa- chusetts it is held that where goods are delivered by one company to another to be forwarded, and the mutual practice is not to put them on a new transit until a bill of expenses incurred on the previous line is given, the new carrier is no more than a warehouseman while he waits for such docu- ment.^ In New York the same point appears to have been decided the other way ; though perhaps only by way of em- phasizing the need of more than the receiving company's own regulations to justify its delay in this particular.^ Custom at different times and in different sections of the country may of course vary. Delivery by one of the connecting carriers, not for storage, however, but solely for transportation onward, there being nothing to wait for, will render the new carrier, whenever he accepts the goods, instantly liable to the full extent of his public capacity ; ^ and if the liability of the succeeding carrier attaches, the liability of his predecessor is discharged,^ subject to the presumptions and special undertakings already set forth. § 609. Termination of Connecting Carrier's Risk. — If the later receiving carrier in a continuous transportation be not liable, then his predecessor should be. As to delivering suffi- ciently and discharging one's own carriage risk in such cases, the general rule adopted by the courts of this country makes it the duty of such a carrier, in the absence of any special con- 1 Judson V. Western R., 4 Allen, 8 Pratt v. Railway Co., 90 U. S. 520. Here the companies transported 43 ; Cincinnati R. v. Spratt, 2 Duv. in succession, but without a close 4 ; Story Bailm. § 536 ; Converse v. connection of traffic. A railroad Norwich Trans. Co., 33 Conn. 166; company receiving goods from a con- Rogers v. Wheeler, 52 N. Y. 262 ; 59 necting road ought to transport forth- N. Y. 34, 611. with ; it has no right to detain on * Pratt v. Railway Co., supra ; the ground that its own regulations O'Neil v. N. Y. Central R., 60 N. Y. require the receipt of a bill of back 138. charges which has not been fur- " Boycotting " is not an excuse for nished. Dunham v. Boston & Maine refusing to accept goods from a boy- R., 70 Me. 164. cotted road. 34 Fed. 244, 481. 2 Michaels v. New York R., 30 N. Y. 564. 626 CHAP. IX.] COMMON CARRIERS. § 609 tract to the contrary, to carry to the end of his line, and then deliver to the next carrier in the route beyond,' agreeably to the presumption that he has undertaken as forwarder, to be so far responsible but not farther. And the opinion which bests supports the common-law policy pronounces the carrier in such a case so far bound to deliver or attempt delivering to the connecting carrier, that he cannot discharge himself of his carriage responsibility by merely storing the goods in his depot at the end of his own route.^ But there are circumstances under which the intermediate carrier should be held liable as warehouseman only; as where he has given notice, and afforded the next carrier reasonable 1 Railroad Co. v. Manuf. Co., 10 Wall. 318 ; Condon v. Marquette R., 55 Mich. 218 ; McDonald v. Western R., 34 N. Y. 497 ; Mills v. Michigan Central R., 45 N. Y. 022 ; Conkey v. Milwaukee R., 31 Wis. 619, overrul- ing Wood V. Milwaukee R., 27 Wis. 541 ; Rawson v. Holland, 59 N. Y. 611 ; Lawi-ence v. Winona R., 15 Minn. 390 ; Merchants' Despatch Co. V. Bolles, 80 111. 473. The doctrine of Massachusetts and other States, referred to snpi-a, § 513, which per- mits railways to terminate the car- riage liability by unloading and storing the goods (which States like New York strongly oppose), may be thought in conflict with the state- ment of the text. But it does not follow that the same doctrine applies to connecting carriers and a con- signee. See Gray, C. J., in Rice v. Hart, 118 Mass. 201, 208. See, how- ever, Denny v. New York Central R., 13 Gray, 481, 487 ; Judson v. West- ern R., 4 Allen, 520, 523. ' 2 ^\g ^ij- Justice Davis observes, with much prudence of expre.ssion, in Railroad Co. v. Manuf. Co., 10 Wall. 318, 325 : " If there be a neces- sity for storage it will be considered a mere accessory to the transporta- tion, and not as changing the nature of the bailment. It is very clear that the simple deposit of the goods by the carrier in his depot, unaccom- panied by any act indicating an in- tention to renounce the obligation of a carrier, will not change or modify even his liability. It may be, that circumstances may arise after the goods have reached the depot which would justify the carrier in ware- housing them, but if he had rea- sonable grounds to anticipate the occurrence of these adverse circum- stances wlien lie received the goods, he cannot, by storing them, cliange his relation towards them." And see McDonald v. Western R., 34 N. Y. 497; Bancrofts. Merchants' Despatch Co., 47 Iowa, 262. In 14 Blatchf. 9, a railway receipt was held no spe- cial contract modifying these terms. Condon v. Marquette R., 55 Mich. 218, per Cooley, C. J., contirms strongly this doctrine, and holds the preceding carrier liable who has given no notice nor tendered to the next, even though, in pursuance of custom, he stores the goods in a ware- house of his own, from which the next carrier is in the habit of taking freight at his own convenience. And see 50 Conn. 137. 627 § 610 THE LAW OF BAILMENTS. [PAET VI. opportunity to take the goods away, and, on the latter's failure to do so, or refusal to accept, has stored and plainly renounced the relation of carrier towards them ; ^ and, per- haps, too, in the case of a break in the line of transit, referable to act of God or a public enemy, which renders it impossible for the goods to be promptly forwarded; pro- vided the carrier clearly manifests the intent to absolve himself and acts with becoming discretion.^ Yet it is held that where a railway transports, whose successor in the line is a steam inland vessel, the reasonable time requisite to discharge the railway as carrier does not expire before the propeller has opportunity, in the ordinary course of busi- ness, to receive the freight ; ^ also, that a railway company does not discharge itself by placing the freight in that portion of its warehouse appropriated to goods for the connecting carrier, from which that carrier is wont, with- out notice or request, to take the goods once a day,* or at convenience.^ 8 610. Compensation of Connecting Carriers ; Back Freight or Charges. — Each carrier in a connecting line is entitled to his own reasonable or stipulated recompense ; besides which, a liberal standard of reimbursement avails as to back freight or charges upon the goods. Were carriers to transport in succession without any through arrangement, each might de- mand his pay in advance or else hold the goods by his lien at his own journey's end ; and the owner, in consequence, would have to employ some one at each terminus to settle charges and put the goods on their course.^ Hence the present busi- 1 Goold V. Chapin, 20 N. Y. 259 ; pomattox R., 24 How. 247, as to the McDonald v. Western R., 34 N. Y. remedy of one carrier against another 497. under such circumstances ; 88 Ala. 2 See Dixon, C. J., in Conkey v. 443. Milwaukee R., 31 Wis. 619. ^ Q^e of several connecting carri- 3 Mills V. Michigan Central R., 45 ers need not pay back charges unless N. Y. 622. he chooses, even though it is custom- 4 Conkey u. Milwaukee R., 31 Wis. ary to do so. 22 Fed. R. 32, 404. 619. Unless such refusal is based upon an 5 Condon U.Marquette R., 55 Mich, unlawful discrimination. lb. Pre- 218. And see Powhatan Co. v. Ap- 628 CHAP. IX.] COMMON CARRIERS. § GIO ness usage, founded on general convenience and necessity, for each succeeding carrier to pay his predecessor's charges in turn, as the owner's agent, and perform his own transportation. In this capacity of agent the connecting carrier ought not to advance for pLainly erroneous and extortionate back cliarges, nor make such charges himself.^ Nor shoukl he pa}^ the preceding carrier in reckless disregard of loss or injury which is brought to his notice. But as to any intermediate damage done the goods, it is sufficient that such a party acts in good faith and with the diligence to be expected of an ordinarily prudent man, were he present and acting for himself; and, receiving goods in apparent good order, as described in the previous bill of lading, or else using rea- sonable exertions to ascertain how they became damaged, he does not forfeit his lien and right of compensation for his charges and those of his predecessors which he has advanced, provided his own transportation were performed with due diligence and despatch.^ As he is not obliged to open a package and test the nature, condition, or quality of its con- tents, but may trust to appearances, it happens not unfre- quently that a connecting carrier is justified in paying preceding charges where he could not have recovered for his own.^ A guaranty of through rates is sometimes given by the re- ceiving or contracting carrier, for his customer's convenience, and by way of indemnity against unusual, uncertain, or extor- tionate charges on the route .^ payment under code may be re- owner requests another carrier to quired. 104 N. C. 658. bring them thence to their destina- 1 Travis v. Thompson, 37 Barb, tion, this latter carrier acquires a 236. Cf. Vaughan v. Providence K., lien for his own freight and the back 13 K. I. 578. charges which he has to pay before '- Knight V. Providence R., 13 K. I. he can get the goods. Vaughan v. 572 ; Bissel v. Price, 16 111. 408, 414 ; Providence R., 13 R. 1. 578. Semble, Monteith v. Kirkpatrick, 3 Blatchf. that unless this carrier had been di- 279 ; Bowman v. Hilton, 11 Ohio, 303. rected to dispute the overcharges for 8 Knight V. Providence R., supra, missending the goods, he miglit pay Where, through the error of some without asking for instructions on intermediate carrier, the goods are that point, sent to a place off the route, and the * "Vaughan v. Providence R., 13 G-J9 § 611 THE LAW OF BAILMENTS. [PART VI. Where the first of several connecting railway companies, while stipulating against responsibility beyond his own line, makes a guaranty that the cost of transportation to a distant point beyond his own route shall not exceed a certain sum less than the usual aggregate of charges, and this without any knowledge or notice of the guaranty by any of the connecting roads, and without their authority to give it, each succeeding company after the first may charge and pay preceding charges at the usual rates; and the last carrier or the final ware- houseman will have a lien on the goods for the total amount accordingly ; for the shipper's remedy in such case must be against the first carrier on the guaranty.^ § 611. Notice of Default, etc., in a Continuous Transportation. — Where a connecting carrier defaults or refuses compli- ance with the contracting carrier's engagement, notice is proper, and often imperative, for the due protection of others concerned. Thus, if a connecting carrier to whom the goods are consigned refuses to receive them, the preceding carrier should promptly notify his own bailor and predecessor, and the receiving and contracting carrier should with reasonable despatch notify his customer ; ^ and particularly should the customer receive due notice of some prospective inability of which the first carrier becomes cognizant in good season.^ And a carrier whose contract expressly limits his responsi- bility to safe carriage over his own road and delivery to the connecting carrier, and to a guaranty of the through rate, is entitled to notice if the later carrier refuses to recognize such rate.* R. I. 578 ; Tardos v. Chicago R., 35 consignee. Lowenburg v. Jones, 56 La. Ann. 15. Miss. 688. 1 Sclineider v. Evans, 25 Wis. 241 ; 2 10 Mo. App. 134. 106 N. C. 207 ; 25 S. C. 249. Whether, 3 Notice to the first carrier that the if the other carriers had known of connecting line, owing to a blockade sucli guaranty, the legal result would of freight, cannot receive and trans- have been different, qucere. See also port the goods, will not relieve the Wells V. Thomas, 27 Mo. 17 ; cases first from liability for damages caused supra. by the delay, if he fails to notify the The value of an article lost by a shipper. Petersen v. Case, 21 Fed. prior carrier cannot be recouf)ed in R. 885. a suit by the last carrier against the * In the absence of such notice, no 630 CHAP. IX.] COMMON CARRIERS. § (jll Notice by the customer of some prior extortion or default charges the carrier who conducts himself afterwards in disre- gard thereof. Thus, if a consignee notifies the carrier that a lot of goods which is being sent by instalments is damaged and orders him to transport no more, the carrier should cease receiving and paying back freights upon such property.^ A carrier who receives under special instructions of impor- tance shoula transmit such instructions with the goods.^ And a carrier who receives goods from another carrier, knowing that a through contract has been made and the price of trans- portation paid in advance, can assert no lien on the goods for transporting over his own line.^ damages can be demanded beyond the shipper unauthorized and inadmis- difference between the rate agreed sible, the succeeding carrier should upon and the rate demanded ; his refuse to receive on such terms, rather guaranty being strictly construed, than transport silently and then claim Tardos v. Chicago II., 35 La. Ann. 15. to hold the goods for recompense on 1 Knight V. Providence li., 13 his own terms. R. I. 572. 2 xorth V. Transportation Co., 146 So, too, semble, if notice comes Mass. 315. that the receiving carrier had con- ^ Marsh v. Union Pacific R., 3 sented to terms of carriage with the McCr. 250. 631 § 611 a THE LAW OF BAILMENTS. [PAET VL CHAPTER X. INTER-STATE COMMERCE ACT. § 611 a. Origin and Purpose of Inter-State Commerce Act of 1887. — The immense inland development of the common carrier business in America after our civil war, with exten- sions of railroad facilities which employed enormous capital into the more remote regions of interior settlement, led several of these United States to establish a local railroad board of commissioners for gathering statistics of the busi- ness, compelling railway returns, hearing private complaints, investigating the cause of accidents, supervising freight and passage tariffs under legislative direction, and exercising on behalf of the public generally a considerable control over these powerful corporations so as to prevent recklessness and abuse. Some State legislatures inclined, moreover, to fix the maximum rates which inland common carriers might charge their customers. But when the Supreme Court of the United States decided presently that all such State regula- tion must be confined to a carrier business strictly local, that it began and ended with the limits of the particular State, and could not extend to a continuous transportation which railway companies conducted beyond such boundaries to some other State, territory, or foreign country, without in- fringing upon the constitutional sovereignty of the United States over all inter-State and foreign commerce,^ Congress promptly intervened with a statute of corresponding tenor to apply the same general policy of supervision by com- missioners wherever national jurisdiction extended. The legislation of 1887, known as the " Inter-State Com- 1 Wabash R. ■;;. Illinois, 118 U. S. obstructions of this Federal power, 557 (1886). And see, as to riotous Debs, Be, 158 U. S. 564. 632 CHAP. X.] COMMON CARRIERS. §011 a merce Act," establishes accordingly for tlie whole Union, by- way of first experiment, a uniform regulation of the common inland carriage of persons and property wholly by railroad or partly by railroad and partly by water, wherever a continu- ous transportation, inter-State or foreign, is contemplated. Unjust discrimination and preference in such business is strictly forbidden to the carrier, certain abuses of tariff and competition are guarded against, and a Boai'd of Commis- sioners is established on the part of the United States, to gather and compile general railway statistics, to re([uire railway reports, to revise schedules of railway recompense, to investigate the complaints of customers and make inqui- sition into the conduct of all such carriage business, and, with the aid of the Federal courts, to hold carriers in all such transportation to the fair performance of their respec- tive public duties. In general, a policy which States still widely maintain for local transportation by rail, Congress has now established for all inter-State and foreign traffic of the same description.^ 1 Act Feb. 4, 1887, c. 104, 24 Stat. 379. In this important statute the language of the EngHsh Traffic Act is to some extent employed. 145 U. S. 2G:3. The original act of 1887 to regu- late commerce may be briefly ana- lyzed. § 1 defines specifically the operation of the act to inter-State (or territorial) and foreign commerce, embracing the continuous carriage or shipment of passengers or propeily ■wholly by railroad or partly by rail- road and partly by water, under a common control. See 30 Fed. 807 ; 66 Fed. 025. § 2 prohibits unjust discrimination byway of special rate, rebate, drawback, or other device, and whether direct or indirect. § .3 forbids undue or unreasonable prefer- ence. § 4 forbids the '' long and short haul" system of rate except as spe- cially permitted by the Commission. § 5 prohibits all pooling contracts or combinations. § (3. Schedules of rates are to be publicly posted by the carrier, with no advance except upon notice, and such schedules must be adhered to. (Posting is for public information and not as an essential for establishing rates. 50 Fed. 21.) Schedules are to be filed witii Com- mission ; and the courts may inter- pose with mandamus or injunction. § 7. No device shall prevent a con- tinuous carriage under the act. § 8. Any carrier liable under this act may be sued by the parties injured. § 9. Persons claiming damage may com- plain to Commission or proceed in Federal court ; compulsion of testi- mony, etc. § 10. Corporate officer, etc., who wilfully violates this act, may be prosecuted for a fine. § 11 establishes an Inter-State Commerce Commission of five persons; how ap- 633 § Gil 6 THE LAW OF BAILMENTS. [PART VI. The general purpose of this comprehensive Federal enact- ment was to promote and facilitate railway commerce by the adoption of regulations ; to make charges for transportation just and reasonable ; and to forbid undue and unreasonable preferences or discriminations. Congress had in view the whole field of United States commerce (except commerce wholly within a State), as well that between the States and territories as that going to or coming from foreign countries. The use of railroads as the chief modern instrumentality of inland commerce has induced such legislation ; and while railroads are from the very nature of the case monopolies, with their immense outlay and power of eminent domain, and may generate, unless well-regulated, some of the evils which naturally accompany monopolies, it should not be supposed that an existing branch of commerce so valuable to the investors and to the general public, was meant to be forbidden, destroyed, or unfairly crippled by the law-making power of Federal government. And again it should be borne in mind that the present legislation is experimental and fairly subject to such corrections as experience may in time suggest.^ § 611 b. Inter-State Commerce Commission. — The Inter- pointed ; term of oflBce ; removal for required from railway carriers and a inefficiency, malfeasance, etc. No uniform system of accounts. § 21. more than three to be of the same Report of Commission to be made political party. Each commissioner yearly with tabulated information, must be pecuniarily disinterested, etc. § 22. Exceptions from this act stated, § 12. Authority of Commission to with reservation of former remedies, make inquisition, etc. ; Circuit Court etc. § 23 appropriates for the pur- remedy in case of contumacy. § 13. poses of the act, during first fiscal Complaints to Commission to be in- year. § 24. When the provisions of vestigated. §§ 14, 15* Eeport of find- this act shall take effect, ings by Commission, and notice to i Texas R. v. Commission, 162 violating carrier, etc. §16. Recourse U. S. 197, 212, 233. "Subject to of Commission to Circuit Court in the two leading prohibitions that case of disobedience. § 17. Conduct their charges shall not be unjust of proceedings by Commission, etc. or unreasonable, and that they shall § 18. Salaries ($7500 each) and allow- not unjustly discriminate, so as to ances of commissioners ; secretary of give undue preference or disadvan- the board. § 19. Commission sits in tage to persons or traffic similarly Washington, but may hold special circumstanced, the act to regulate session or prosecute inquiries else- commerce leaves common carriers where. § 20. Annual reports to be as they were at the common law, 634 CHAP. X.] COMMON CAIIKIEKS. § Gil 6 State Commerce Commission, created under this act of 1887 as a board of live persons who are paid highly honorable sal- aries and hold by a plan of rotation for six years each, exer- cises the general supervision of railroads as provided by Congress, with or without intervention and assistance from the United States courts as the case may require. This Inter-State Commerce Commission is a body corporate on behalf of the national public, having an official seal and with legal capacity to become a party plaintiff or defendant in the Federal courts.^ As for the powers of this Commission, they are not very clearly defined in the act nor is its method of procedure distinctly outlined. But Congress has not given the Commission legislative powers, nor can it exercise au- thority beyond the obvious purposes and directions of the statute. Thus, it cannot fix rates of traffic in advance.^ A valid complaint may be made to the Commission, based on some railway's mode of treating inter-State or foreign traffic ; but apparently, without such complaint this board cannot impose penalties, nor can it of its own motion promulgate arbitrary decrees or general orders imposing obedience. When asked to find a railway guilty of disregarding the en- actment of Congress, this Commission must not shut itself up to regard solely the complaints of shippers, or one class of the community, but must consider all the other facts and circumstances of the given case ; as, for instance, the welfare and advantage of the common carrier in securing special forms of traffic, and the interest of the public and of the great body of consumers and recipients in having that traffic obtained.^ free to make special contracts look- 37 ; cited with approval in 1G2 U. S. ing to the increase of their business, 197 ; 74 Fed. 716. to classify their traffic, to adjust ^ Texas R. v. Commission, 1G2 and apportion their rates so as to U. S. 197, 204 ; 145 U. S. 204 ; act meet the necessities of commerce, of 1887. and generally to manage their im- ^ Cincinnati R. v. Commission, portant interests upon the same prin- 1G2 U. S. 184; 74 Fed. 784. ciples which are regarded as sound, ^ Texas K. v. Commission, 1G2 and adopted in other trades and pur- U. S. 197, 218. " It is self-evident suits." Mr. Justice Jackson, 43 Fed. that many cases may and do arise 635 § 611 C THE LAW OF BAILMENTS. [PART VI. Inquisition by this Commission, with process of subpoena for its proper ascertainment of the facts in a given case, is strengthened by hiter legislation ; ^ and absolute immunity being now secured by statute against further prosecution, State or Federal, for the offence to which a question relates, a witness cannot refuse to answer before the Commission on the constitutional ground that such answer would tend to criminate hira.^ Circuit courts of the United States use their process in aid of inquiries before the Commission, upon judicial principles, and with due reservation to every indi- vidual of his constitutional rights, but any judgment rendered in court is not simply ancillary to the Commission, but of full and independent judicial effect.^ On the other hand, no erroneous order of the Commission shall be judicially en- forced ; * but in the Federal court the cause may be tried and determined anew.^ § 611c. Discriminations and Preferences, etc. — The princi- ple upon which discrimination and preference among patrons are forbidden in inter-State and foreign carriage of goods by this act of 1887 is substantially the same as previously ap- plied by England and various American States in legisla- tion.^ Charges for traffic must not be unjust or unreasonable, nor must undue preference or disadvantage be given to per- sons or traffic similarly circumstanced. But all circumstances and conditions which reasonably apply to the situation must be considered in each individual case. Where, for instance, a railroad carrier procures from abroad, by steamship connec- tions, through traffic advantageous to the American public where, although the object of the ^ Inter-State Commerce Commis- carriers is to secure the traffic for sion v. Brumson, 154 U. S. 447. their own purposes and upon their * Inter-State Commerce Commis- own lines, yet, nevertheless, the very sion v. Lehigh Valley Co., 74 Fed. fact that they seek, by the charges 784. they make, to secure it, operates in ^ 56 Fed. 925. the interests of the public." Mr. ^ Supra, §§ 374-376. "Unjust Justice Shiras, ib. and unreasonable " charge, discrimi- 1 Act Feb. 11, 1893, c. 83. nation, preference, or advantage. 2 Brown v. Walker, 161 U. S. 711. Act 1887. And see Act March 2, 1889, c. 382. 636 CHAP, X.] COMMON CARRIERS. § 611 C? by modified through rates which otherwise would not have occurred, it makes no " unjust discrimination " in taking its fro raid share of such tlirough rates.^ It is not all discrimi- nations or preferences that fall within the statute inhibition ; but only such as are unjust or unreasonable.^ Rebates or drawbacks by way of preference violate the language and spirit of the enactment here as elsewhere. But such rebate or unlawful discrimination does not vitiate and make void a bill of lading or exempt the carrier from his liabilities under tlie contract of carriaere.^ § 611 (/. Pooling Earnings, etc. — To reduce competition among railways transporting between the same points, it had become not unusual to make traffic arrangements for "pool- ing " or dividing as from some common fund the net earn- ings of the competing roads. Such transactions were in 1887 deemed sinister to the public welfare and against good policy, and hence the Inter-State Commerce Act in a national sense forbade them, as some States had already attempted. Rail- road companies have since contended that unrestrained com- petition in their carriage business is an injury, rather than a benefit, whether to themselves or their customers, and that all such pooling prohibition by a legislature inflicts serious injury ; but Congress as yet refuses to modify its positive provisions on that subject.* ^loreover, under a recent ruling of the Supreme Court, in construction of another Congres- 1 Texas R. v. Commission, 162 Commission, 74 Fed. 803. And see U. S. 197. 74 Fed. 784. 2 The fair difference between The application of the common wholesale and retail cannot here be law to inter-State commerce in re- ignored ; as where, for a party of ten spect of unreasonable charges is Con- or more, reduced rates are given on sidered in 58 Fed. 858. Inter-State passenger tickets. Inter-State Com- carriers are not compelled to offer merce Commission v. Baltimore R., equal facilities to all connecting car- 145 U. S. 263. For a carrier to pro- riers. Little Rock R. v. St. Louis tect himself against a physical disad- R., 63 Fed. 775; 11 C. C. A. 417. vantage he is under in relation to And see § 380 as to equal express rivals, is not an unlawful discrimina- facilities. tion, if there be no colorable device ^ Merchants Press Co. v. Insur- to evade the statute. Detroit R. v. ance Co., 151 U. S. 368. * See act of 1887, § 5. 637 § Gil e THE LAW OF BAILMENTS. [PART VI. sional enactment against trusts, it becomes doubtful whether joint traffic contracts between carriers of any kind have at present any legal validity.^ § 611 e. Long and Short Haul Provisions. — Another im- portant prohibition of the act of 1887 relates to that addi- tional mode of reducing railroad competition in contempo- rary vogue, known and described as the "long and short haul." Carriers competing for traffic between distant points so sharply as to reduce their through rates, would sometimes make up for such sacrifice by fixing rates equivalent or pro- portionally much higher to intermediate points on their respective routes, to which such competition could not ex- tend. But the Inter-State Commerce Act expressly de- clares it unlawful to charge or receive any greater compen- sation in the aggregate for transportation under similar conditions and circumstances, for a shorter than for a longer distance over the same line, in the same direction, the shorter being included in the longer distance.^ This prohibition, however, which railways have in vain protested against as another injury to their traffic, finds opportunity for evasion, it would appear, according to the latest decisions ; for it is held that two carriers may use the same road while each has its separate " line," and that, without violation of this " long and short haul " clause of the statutes, one company which leases trackage rights to another may graduate its own tariff for the longer distance, while the other line makes independent rates for the shorter distance.^ So is it held with connecting roads which form essentially a new line to the farther point.'* 1 See 166 U. S. 290 (1897). discrimination. Parsons v. Chicago 2 Act of 1887, § 4. The Commis- R., 63 Fed. 903. Competition may sion is specially empowered to allow be a justifying circumstance for dif- exceptions in special cases. lb. ference between long and short haul 3 Inter-State Commerce Commis- rates. 31 Fed. 315. sion V. Cincinnati R., 56 Fed. (C. C.) * Chicago R. v. Osborne, 10 U. S. 925. The Supreme Court of the App. 430, by Mr. Justice Brewer. United States has not yet passed The prohibitory clauses of the act upon this important question. The just considered appear too indefi- fact that a local rate is higher than nite and uncertain in expression to the corresponding part of a joint found a criminal conviction^ upon, through rate does not prove unlawful 52 Fed. 917. See § 10 of act. 638 CHAr. I.] CARRIERS OF PASSENGERS. § 612 PART VII. CAREIERS OF PASSENGERS. CHAPTER I. MATTERS PRELIlVnNARY TO THE JOURNEY. § 612. Carriage of Passengers no Bailment, but a Correspond- ing Relation. — It is not to be pretended at this day that, di- rectly considered, the carriage of passengers, or, indeed, of human beings, is in the legal sense what the law denominates a bailment; though formerly the principle of distinction ap- pears not to have been clearly apprehended.^ But indirectly, and with incidental reference to the passenger's baggage, there is unquestionably a bailment ; and a bailment subject, as we shall sufficiently show, to the general law of common car- riers, and the assumption of an extraordinary risk on the part of the public transporter.^ It is only in an age comparatively modern that the public transportation of persons from place to place, on hire, has in England and America called for the intervention of courts and the unfolding of legal principles ; ^ but the conveniences afforded on a large scale, first by mail coaches, and next by steam railways, for inland transit, be- sides those means of safe, speedy, and comfortable water transit by packet, vessel, and steamship, which, in the new era of invention, so steadily improve, have elevated the juris- 1 Supra, §§ 331, 341. at our law, where a person sued to 2 See c. 4, post. recover damages done him as a pas- 8 White V. Boulton, Peake, 81, senger. And see Augell Carriers, tried in 1791, before Lord Kenyon, § 621. appears to be the first recorded case 639 § 614 THE LAW OF BAILMENTS. [PART VII. prudence of passenger carriage to an importance which it could never attain so long as the business itself was asso- ciated with humble ferrymen and watermen, or with the wasfoner who Ofave the foot-traveller an occasional lift while pursuing, on his own behalf, a more profitable vocation. Inasmuch as the carriage of passengers has now become, not only a highly important and lucrative vocation, but one, moreover, which engages to a very great extent the same organizations, the same aggregate of capital, and the same means of locomotion, as are employed in the carriage of freight, the present pursuit is very closely allied to that which we have just treated at length. And while, indirectly, the carrier of passengers is in our law a common carrier and a bailee, he is directly entitled to consideration in any work on bailments, because in so many respects the service of carrying human beings closely corresponds to that of carrying goods and chattels, in legal principle ; and the decisions furnish legal analogies of much advantage to the student of bailment law, while in the points of unlikeness the very contrast is impressive. § 613. Topics for Preliminary Discussion in this Chapter. — Matters preliminary to the journey may separately be dis- cussed under the following heads : 1. Who are Carriers of Passengers. 2. Who are Passengers. 3. Obligation to re- ceive for carriage. 4. Passage tickets and fares. 5. Right of action against the carrier for his inexcusable refusal or failure to receive. 6. Legislation concerning fares and the carrier's obligation to receive. § 614. Who are Carriers of Passengers. — 1. Let US con- sider who are Carriers of Passengers. This relation, like that of freight-carrier, may be either public or private, though the law deals chiefly with the former class ; applying to its mem- bers the general style of carriers of passengers. The carrier of passengers, that is, the public carrier, may be (1) a carrier by land, or (2) a carrier by water ; but the practical differ- ence between these two classes, in respect of the carrier's rights and obligations, is rather one of detail than principle ; 640 CHAP. I.] CARRIERS OF PASSENGERS. § 614 and this difference we shall take occasion to notice as we proceed.^ The proprietors of stage-coaches, hacks, passenger wagons, cabs, and omnibuses, who hold themselves out to the public for the general conveyance, under their own drivers, of per- sons from place to place, are familiar instances of public carriers of passengers by land. To this class belong also railway companies, the most extensive carriers of passengers, as well as of freight, known to modern times ; and these sometimes perform their vocation as horse-railways, though most commonly propelled by steam, the means of locomotion entering as an essential element into the character of the public vocation itself.^ Among the recognized public carriers of passengers by water are ships and vessels, particularly packet ships, steamships, steamboats, ferries, and, to some extent, the humbler boatmen or bargemen ; and this, as the case may be, whether the propelling means offered be steam, as used for side-wheel craft and what are called propellers, or sails, or, for short distances, oars and human exertion.^ It is obvious, from this list, that the public carrier of passengers, whether by land or sea, is not necessarily a carrier of pas- sengers only, apart from freight, nor of passengers having baggage. One is not forced into the position of carrier for passengers by permitting persons to travel free occasionally in connec- tion with some private pursuit of freight transportation.* ^ Supra, §§ 331, 332. And see, ing-car to be under the management as to hackmen. Lemon v. Chanslor, of the company running the train 68 Mo. 340. and recover for injuries accordingly. 2 Supra, §§ 351-353. And see, as Penn. Co. v. Roy, 102 U. S. 451 ; to street railways. Holly v. Atlanta Cleveland R. v. Walrath, .38 Ohio St. Street R., 7 Rep. 460. Street-rail- 461 ; Thorpe r. N. Y. Central R., 76 ways (1887) are beginning to use N. Y. 402. cable or electric power in some * Supra, §§ 354, 355. cities. * See Wade v. Lumber Co., 74 While a sleeping-car company is Fed. 617. See Louisiana con-stitu- not strictly liable on the footing of tion, ib., which declares all railways innkeeper or common carrier, a pas- common carriers, senger may generally assume a sleep- 41 641 § G15 THE LAW OF BAILMENTS. [PART VII. § 615. The Responsible Transporter considered ; Connect- ing Carriers, etc. — But, in general, the rules discussed else- where as to what parties shall be deemed the responsible public transporters engaged in a public vocation apply here also,i though under certain qualifications which we now proceed to point out. Where through-passage tickets are sold over the routes of connecting carriers, the principles which we discussed with reference to the carriage of goods come into operation. Doubtless the carrier company which sells the ticket may by contract, express or implied, bind itself to be responsible for the entire route. But, as the better authorities appear to view the rule, the sale of the through ticket, and receipt of the through-passage fare, is not conclusive on this point, and less so, indeed, as concerns the person of a passenger than his baggage or general freight ; and the assumption of a partner- ship or mutual agency as to the passenger's own safe car- riage, free from personal injury, or that the selling carrier sets himself forth as a principal, employing agents for that purpose, is less admissible, with respect to the passenger's personal carriage, than the theory that the carrier selling the ticket acts, in this respect only, as the agent of connecting carriers.^ The special undertaking on this point should be gathered in any case from the circumstances ; and the safer course, in selling through tickets, is to have them printed so as to show clearly whether or not the first carrier intends that each carrier shall be liable, concerning the passenger's safety, for his own route alone.^ 1 Supra, §§ 356-365. K., 114 Mass. 44, affirms the theory 2 2 Redfield Railways, § 201, and of the text in a case where a sort cases cited ; Blake v. Great Western of partnership arrangement between R., 7 H. & N. 987 ; Knight v. Port- railway companies appeared as to land R., 56 Me. 234; Nashville R. v. the proceeds of sales of passenger Sprayberry, 9 Heisk. 852 ; Sprague tickets, and refused to hold the sell- V. Smith, 29 Vt. 421 ; Ellsworth v. ing company liable for injuiy to Tartt, 26 Ala. 733. And see the the passenger on a connecting road, recent English case of Foulkes v. notwithstanding a ticket was sold Metropolitan R., 4 C. P. D. 267, and through, with coupons invalid if de- authorities cited passim ; 5 C. P. D. tached. And see 35 Hun, 29. 157 ; cases infra. Hartan v. Eastern ^ See supra, Part VI. c. 9 ; Burke 642 CHAP. I.] CARRIERS OF PASSENGERS. § 61G § 61G. The Same Subject. — Upon this important point there are not, as j^et, very clear or harmonious conclusions reached by the decisions. We shall elsewhere see that the liability of the carrier who sells the through ticket over connecting lines is not unwillingly conceded in the instance of lost baggage, which follows closely the principle applied to the undertaking for transporting general freight.^ Where, again, the selling company is sued in damages simply as for breach of contract, — because of a failure, for instance, to have the passenger transported with his baggage to the place of destination for the recompense agreed upon, or for so transporting without the promised means or facilities, that the passenger was un- reasonably delayed, — the liability is likewise admitted.^ And if the defence set up is such as seeks to throw the blame upon a connecting carrier irresponsible at law, and such a one as the passenger would not have been likely to trust, apart from the confidence which the first carrier's sale of a through ticket invited, this might go, perhaps, towards favoring a suit against the first carrier as partner or principal.^ But, as to V. South Eastern R., 5 C. P. D. 1. On the other hand, the disposition But such expressions are not always must be to hold to its obligation as found serviceable. Railroad Co. v. concerns the public a company of Harris, 12 Wall. 65 (where, however, the connecting line whose permis- there was a unity of ownership, sion has been given to the sale of despite the expression of the ticket through tickets over its road, aud to coupons). regard the first company not merely A railroad company issuing as a principal employing its own through tickets beyond its own agents, and alone suable by the pur- line for through recompense cannot chaser of the ticket, but in effect the specially exempt itself from liability agent of the road which capriciously except for its own route, in any refuses to honor the ticket. Penn. such sense as to relieve it from R. v. Connell, 112 111. 205. the contract obligation to send the * Post, c. 4 ; Illinois Central R. v. passenger through. Central R. v. Copeland, 24 111. 332 ; supra, Part Combs, 70 Ga. 533. Nor is such VI. c. 9. contract duty to be varied by leases ^ Quimby v. Vanderbilt, 17 N. Y. and agreements with connecting 300 ; Williams v. Vanderbilt, 28 roads of which the passenger had N. Y. 217 ; Van Buskirk v. Roberts, no notice. Little v. Dusenberry, 46 31 N. Y. 661 ; Carter v. Peck, 4 N. J. L. 614. And see as to bag- Sneed, 203 ; Central R. v. Combs, gage, Railroad Co. v. Campbell, 36 70 Ga. 633. Ohio St. 647 ; post, c. 4 ; Atchison 8 van Buskirk v. Roberts, supra. V. Roach, 35 Kan. 740. 643 § 617 THE LAW OF BAILMENTS. [PART VII. actions for injury to life or limb because of the negligence or misconduct of a connecting carrier and those in his employ, our law manifests reluctance to holding the carrier responsi- ble whose connection with the injury consists only in selling the through ticket, and who neither caused the injury nor was conveying the passenger when the injury was sustained.^ In support of the preference which even the English cases appear to manifest for holding the connecting carrier liable who causes actual injury to the person of a passenger, instead of the carrier who has merely sold and received payment for the through ticket, unlike the case of baggage or general freight, two strong considerations concur: 1. That the cir- cumstances of receiving a bodily injury render it quite natural to supply evidence establishing blame on the part of the car- rier at that time performing the service. 2. That inflicting bodily injury may be fairly regarded as tortious, rather than a breach of contract ; and, on a familiar principle, even the agents or servants of another are suable on their tortious acts, as being outside the scope of a conferred authority .^ I 617. Responsible Transporter further considered ; Con- nected Facilities, etc. — Carriers of passengers may likewise have a close connection with reference to the use of the same depots, stations, or tracks. And here the inclination is to require each carrier to look after the safety and comfort of his own passengers, consistently with his public undertaking to do so. Thus, in the case of railroad companies using a common passenger depot and common tracks of approach and departure, it is held that, though these should belong, in fact, to one of the companies alone, the depot and tracks, when used in common at the point of connection, may be considered the depot and track of each relatively to its own operations and business ; and that the one company must protect its own passengers, who are not themselves at fault. And see Railroad Co. v. Harris, 12 where this subject is well discussed ; Wall. 65. Austin v. Great Western R., L. R. 1 Supra, § 615, and cases cited. 2 Q. B. 442 ; Great Western R. v. 2 See on this latter point, Foulkes Blake, 7 H. & N. 987. V. Metropolitan R., 4 C. P. D. 267, 644 CHAP. I.] CARRIERS OF PASSENGERS. § 618 against injury from the trains of the other company ; though for negligence, exclusively of the other company, while its own passenger was out of his proper place, the responsibility would be different.^ And the general rule appears to be that, if the carrier plainly undertakes to carry his passenger to a certain point, he undertakes that the intermediate means employed for that purpose, such as a ferry-boat to cross a stream, or tracks of another road used to run upon, shall be in due order, and just as fit for transportation as though they were his own for the time being.^ There is, however, some seeming discrepancy in the authori- ties in this respect. Where one railway used rightfully the tracks of another, and a collision occurred because of the negligence of the company owning the tracks in disobeying signals, it was recently held in England that the innocent company could not be sued for injuries sustained in conse- quence by one of its own passengers.^ And some American authorities, too, decline to hold a railway company responsi- ble, which rightfully runs cars upon another railroad, so far as the passenger's injury proves to have been occasioned without its own fault, but by the misconduct or negligence of operatives of that road entirely out of its own control.* All this, however, only confirms the theory that where pas- senger injury is the issue, the culpable carrier is the proper one to sue, and not others having business association with such carrier who were non-contributors to the wrong.^ § 618. The Same Subject; Control of the Transportation. — A passenger on a construction train run by contractors who 1 Central R. v. Perry, 58 Ga. 4G1. Ex. 1.37 ; dLstinguishing Great West- And see Foulkes v. Metropolitan R., em R. v. Blake, 7 H. & N. 987 ; 4 C. P. D. 267. Thomas v. Rliymney R., L. R. 5 2 Great Western R. v. Blake, 7 Q. B. 226 ; L. R. 6 Q. B. 26G. H. & N. 987 ; Thoma.s v. Rhyniney * Sprague v. Smith, 29 Vt. 421. R., L. R. 5 Q. B. 226 ; L. R. 6 Q. B. 6 See 3 McCr. 208. A passenger 260 ; McLean v. Burbank, 11 Minn, who receives damage by reason of a 277 ; John v. Bacon, L. R. 5 C. P. collision, for which two carriers are 4.37 ; Railroad Co. v. Barron, 6 to blame, may recover against either Wall. 90. or both. Tompkins v. R. (Col.), 19 « Wright V. Midland R., L. R. 8 Rep. 70. 645 § 618 THE LAW OF BAILMENTS. [PAET YII. are building the road cannot hold the contractors liable as public carriers of passengers ; ^ nor, on the other hand, the company not yet operating the road.^ But, though a carrier convey while the motive power is supplied by the State and under State agents, or others, in fact, operate for a whole or part of the distance, his contract obligation towards the passenger he transports may render him nevertheless imme- diately answerable ; ^ nor is it for such carrier to set up a void lease or ultra vires in avoidance of his own responsibility voluntarily assumed.* In general, an ordinary passenger, who pays, without deduction, the regular fare, shall not readily be assumed to have consented that the carrier's lia- bility shall be shifted upon others, or that the responsibilities shall be other than the law prescribes.^ Where, on the other hand, one railway company receives upon its track the cars of another company, places them under the control of its agents and servants, and draws them by its locomotive, over its own road, to their place of desti- nation, it is held to have assumed toward the passengers thus accepted the relation of common carriers of passengers, with the liabilities incidental to that relation.^ The obligation thus created is, at all events, that of one who is bound to provide, after the usual standard applicable to passenger-car- riers, means and facilities suitable to the transportation ; and the practical effect to render the carrier, whose negligence or misconduct causes the mischief, liable to the passenger, 1 Shoemaker v. Kingsbury, 12 solvent railroad may be sued in his "Wall. 369. representative character when the 2 Kansas R. v. Fitzsimmons, 18 passenger is injured. Little v. Du- Kans. 34, and cases cited. senberry, 46 N. J. L. 614 ; 108 U. S. 8 Peters v. Rylands, 20 Penn. St. 188. 497. 6 See White v. Fitchburg R., 136 4 Feital v. Middlesex R., 109 Mass. Mass. 321, where the passenger in a 398. And see Daniel v. Metropoli- car of one company was allowed to tan R., L. R. 5 H. L. 45. A street- sue it for the carelessness of the car company cannot exempt itself brakeman of another company, while from injury to passengers, by show- coupling the cars of the two roads, lug that its tracks were located by ^ Schopman v. Boston & Worces- authority of the city. (Md.) 5 Atl, ter R., 9 Cush. 24. 346. A receiver in charge of an in- 646 CHAP. I.] CARRIERS OF PASSENGERS. § 620 whatever be his remedy as concerns the company with which he contracted for a through transportation.^ For it does not necessarily follow that because tlie injured passenger may seek redress against one company, he cannot, at his election, hold the other responsible instead, especially if that other be the carrier who commits the injury. § 619. Conclusion as to the Responsible Transporter. — Per- haps, on the whole, these perplexing questions may be best solved by reference to that fundamental principle so often applied in the bailment of goods, which recognizes the crea- tion of an agency for purposes incidental to performing the transportation, whether by virtue of special contract or one's public undertaking ; but limits such agency to fulfilling those requirements which constitute a due performance of the prin- cipal transporter's obligation, and, beyond making the prin- cipal broadly answerable for his servant's or subordinate's performance of the duty intrusted to him, refuses to recog- nize an agency extending to the commission of positive wrong. The conclusion would then be that injury directly resulting from the commission of a tort must be visited upon the wrong-doer or the contributor to that wrong ; and not upon the principal contracting party by mere virtue of his contract; while it would be otherwise, where simply the con- tract of transportation was broken, as, for instance, through the refusal of a connecting carrier to recognize the purchased ticket, or in case of transportation without the promised means or facilities, or with unreasonable delay and annoy- ance. Here is a principle, frequently recognized, though, it must be confessed, not applied without producing some con- fusion ; and yet, if it produce less confusion than before, it is worth marking. § 620. "Who are Passengers. — 2. The direct obligations of a passenger-carrier attach with peculiar reference to passen- gers, notwithstanding a duty, doubtless, rests upon every such party, on grounds of general humanity and respect for the rights of others, to so perform the transportation service as 1 lb. Aud see White v. Norfolk Co., 115 N. C. 631. 647 § C)20 THE LAW OF BAILMENTS. [PAET VII. not wantonly or carelessly to be an aggressor towards third persons, whether such third persons be on or off the vehicle. A passenger, in the legal sense, is no trespasser upon the carrier, but one who has rightfully taken a place in a public conveyance, or has been otherwise accepted, for the purpose of being transported from one place to another.^ The obli- gations of the carrier to receive and carry passengers safely will be found, by analogy of the common law, to be graded considerably according to the expectation of a recompense from the particular individual transported ; so that the im- portant issue will often be raised whether the passenger was a free passenger or one for the payment of fare; this 'issue having a bearing upon the question, not only of liability for one's baggage, but, in a much narrower sense, of liability for the person himself. Penal statutes, independently of the carrier's own contract, may render it important to determine whether one is a " pas- senger " or a mere trespasser, or, once more, a servant or employ^ of the passenger-carrier. A person on a vehicle or train travelling as passengers usually travel may be presumed a passenger.2 One who is employed on hire or for his per- quisites, to perform certain duties in connection with the transportation, may be pronounced a servant of the carrier ; but where one pays the carrier, instead, for his travel and the privilege of transacting a business of his own on the con- veyance, such as selling popped-corn, books, or papers, or keeping a bar or restaurant for the convenience of general travellers, even though he is to perform certain convenient functions besides, as part of the consideration, like serving iced water, or taking charge of express matter, he is rather to be held a passenger allowed to exercise special privileges under a special contract.^ A minor child may be a passen- ger.* Express agents or mail agents may be transported 1 See Bouv. Diet. " Passenger." 108 Mass. 7; Yeomans v. Contra 2 Louisville E. v. Thompson, 107 Costa Steam Nav. Co., 44 Cal. 71. Ind. 442. * (Mo.) 2 S. W. 315; (Mass.) 8 3 Commonwealth v. Vermont R., N. E. 875. 648 CHAP. I.] CARRIERS OF PASSENGERS. § G21 free, or upon special terms of favor ; so may a seller of news- papers or refreshments ; ^ and so, too, may season-ticket pas- sengers, and the holders generally of free passes ; and yet these are properly denominated passengers.^ But where one steals a free ride, or, without the knowledge and consent of the carrier or his proper agent, goes on board with tlie intent of travelling without payment, or fraudulently uses another person's pass, or passes by mistake for one entitled to go free when he was not such, he is not a passenger, but rather a trespasser.^ Even if the conductor or other eraployd of the carrier allows him to travel free or takes a perquisite for the ride, he should not be concluded a passenger, especially if riding where passengers have no right to be, or paying to one not entitled to collect fares.* § 621. The Same Subject. — The character of the convey- ance may affect such an issue, especially in the case of rail- way-carrier companies, which habitually run freight trains and passenger trains separately. Where a railway once ad- mits a practice of conveying passengers for hire on its freight trains, especially if some fair sort of accommodation like a caboose is afforded them, the company may incur the rela- 1 Griswold v. N. Y. R., 53 Conn, construing local statute; 95 N. Y. 371 ; 92 Va. 34. 502 ; 79 Tex. 371. 2 Hammond v. North-Eastern R., As to whether one injured was a 6 S. C. 130 ; Steamboat New World passenger or servant, see Texas R. v. V. King, 16 How. 469 ; Great North- Scott, 64 Tex. 549. em R. V. Harrison, 10 Ex. 376. As ^ Union Pacific R. v. Nichols, 8 to the rights of free passengers, see Kans. 505; Planz v. Boston R., 157 c. 2. A drover travelling on a rail- Mass. 377 ; 45 Minn. 268. And see ■way in charge of animals, on a free Toledo R. v. Beggs, 85 111. 80 ; pass, is in effect a passenger for hire. Muehlhausen v. St. Louis R., 91 Mo. Little Rock R. v. Miles, 40 Ark. 298 ; 332. Maslin v. Baltimore R., 14 W. Va. * Rucker v. Missouri Pacific R., 180 ; 160 111. 40. But cf. 17 Fed. R. 01 Tex. 499 ; Higgins v. Cherokee 671 ; 64 Wis. 447 ; Camden R. v. R., 73 Ga. 149 ; § 621 ; 153 Mass. Bausch (Penn.), 7 Atl. 731. And as 188 ; 61 Minn. 296. As to the duty to one not bon(l fide travelling thus, owing by a carrier to one who goes see Gardner v. New Haven R., 51 aboard simply to help an infirm per- Conn. 143. A route or mail-agent in son to her place, see 55 Ark. 428. the employ of the United States is a Assistance thus rendered by a car- " passenger " while travelling in pur- rier's employ^ might dispense with Buance of duty. 96 Penn. St. 256, that of such third party. lb. 649 § G21 THE LAW OF BAILMENTS. [PART VII. tion towards an individual who in good faith takes passage in such a car, intending to pay the fare ; for any restriction of this sort of permitted transit to particular trains is so out of course that some notice thereof ought to be brought home to the party.^ And doubtless one may by due authority be accepted as passenger on a freight train,^ or even a con- struction train,^ or a hand car,^ notwithstanding the carrier's private orders on the subject. But where the company has not in fact admitted any such practice, and its responsible managers forbid it, one who rides free in a caboose on a freight train, afforded for employes only, or in some other unauthorized and unsafe place for passengers, cannot claim that the passenger relation existed, even though the conduc- tor of the train or some other employe invited him to ride.^ There may be special circumstances, such as hauling the private cars of a circus, where the transportation contract repels the idea that a passenger relation was created.^ The case becomes more complex when the instance is that of one lawfully a passenger, who passes to a place in the vehicle or on the train where passengers are never presum- ably permitted to ride, and the more so when the agent in charge of the carriage gave no sanction to his act; as, for instance, if a steamship passenger should, without due per- mission, climb into the rigging, or one by railway ride upon the locomotive, and there receive an injury. And whether such a party be regarded as not a passenger pro Jidc vice, and not rather (since the logic of the case permits it) a negligent contributor to his own injury, it would appear that, to a considerable extent, the carrier could fairly set 1 Lucas V. Milwaukee R., 33 Wis. Eaton v. Delaware R., 57 N. Y. 382 ; 41 ; 2 Redfield Railways, 216-234. Higgins v. Cherokee R., 73 Ga. 149 ; 2 Ohio & Mississippi R. v. Dicker- Powers v. Boston & Maine R., 153 son, 59 Ind. 317, and cases cited ; 64 Mass. 188; Perkins v. Chicago R., Tex. 529. 60 Miss. 726. 3 St. Joseph R. V. Wheeler, 35 ^ Robertson v. Old Colony R., 156 Kan. 185. Mass. 525. 4 64 Tex. 144. 5 Lygo V. Newbold, 9 Ex. 302 ; 650 CHAP, r.] CARRIERS OF PASSENGERS. § G21 up such act in his own exoneration.^ But on the more favor- able showing that the party was merely in a part of the vehicle or on a car of the train where his ticket did not properly allow him to remain, and yet suitable enough for his safe conveyance, one could claim to be a full piussenger, the more so if the conductor knowingly permitted him to stay there ; ^ though not, even here, so as to free the case wholly from the same consideration of contributory negli- gence ; while such a ride without the carrier's due permis- sion and knowledge must always obstruct his right of action to recover for injuries which would not have occurred had he been in his proper place.^ One who has his ticket, and is present to take the car or other vehicle at the starting-place, is a passenger, though he may not have actually entered the vehicle ; for the passenger status takes effect from the time when the carrier has ac- cepted the party, so to speak, for present transportation.* More than this, it is held that there may be an acceptance of a party as passenger before even the ticket is bought or the fare paid; as where an omnibus-driver (whose fare is usually payable after customers enter the vehicle) pulls up in response to the signal of a person in the street, who wishes to ride.^ One may be an accepted passenger while bond fide waiting for the vehicle or entering or leaving it ; ^ or a paying pas- 1 See Robertson v. New York R., as to the carrier's liability, where 22 Barb. 91 ; Chicago R. v. Michie, the subject is more suitably dis- 83 111. 427 ; Higgins v. Hannibal R., cussed at length. 36 Mo. 418 ; Little Rock R. v. Miles, ^ Kentucky Central R. v. Thomas, 40 Ark. 298 ; Rucker v. Missouri 79 Ky. 160. Pacific R., 61 Tex. 499. One who * See Central R. v. Perry, 58 Ga. rides on an engine with due permis- 461. And see Packet Co. v. Clough, sion is not debarred from suing for 20 Wall. 628. his personal injury. 17 Fed. R. 071. ^ Brien v. Bennett, 8 C. & P. 224. But a station agent is not the proper This principle is not readily extended person to give permission to ride on to street railways. Creamer v. West top of a car, those in charge of the End R., 156 Mass. 320 ; Donovan v. train knowing nothing about it. 40 Hartford R., 05 Conn. 201. Ark. 298. « 136 Mass. 552 ; 98 N. Y. 494 ; 2 Dunn V. Grand Trunk R., 58 McDonough v. Metropolitan R., 137 Me. 187; Creed v. Penn. R., 86 Mass. 210 ; Smith v. St. Paul R., 32 Penn. St. 139. See next chapter Minn. 1. 651 § 623 THE LAW OF BAILMENTS. [PART VII. senger without necessarily paying in advance ; ^ but he is not a passenger before he offers himself for carriage.^ § 622. Obligation to receive for Carriage. — 3. With respect to one's obligation to receive for carriage, the carrier of pas- sengers is bound, according to his means and methods, as held out to the public, to receive all fit persons who may choose to apply and are ready and Avilling to pay for the transportation ; the ground of this obligation being, not a mere private contract, at one's own choice, but the fact that the passenger-carrier sets up, like an innkeeper or common carrier of goods, to exercise a common public employment for compensation.^ To the means, the methods, and the requirement of a recompense, apply quite closely the rules, with their qualifications, which were set forth under the head of Common Carriers.^ Thus, a free selection of patrons is not permitted the carrier of passengers ; but all who require a passage must be received, so long as the carrier has room and there is no legal excuse for refusing the particular party .^ It is not a lawful excuse that the carrier runs his coach or cars in connection with another carrier who extends the line to a certain place, and has agreed with such carrier not to receive passengers who come from that place, generally or on certain days, unless they come by his conveyance ; ^ for this would be to pursue a public vocation with respect of persons. § 623. The Same Subject ; Accommodations ; Suitable Per- sons, etc. — But the obligation to receive has qualifications, as 1 Nashville E. «. Messino.l Sneed,- * Supra, §§373-381. Even a 220. sleeping-car company has no right 2 Webster v. Fitchburg R., 161 to discriminate in selling its vacant Mass. 298. Wherever passengers berths. Nevin v. Pullman Car Co., are usually allowed to board the 106 111. 222. train, one may become a full passen- ^ Bennett v. Button, 10 N. H. 481 ; ger by entering there. Dewire v. Bretherton v. Wood, 3 Brod. & B. Boston R., 148 Mass. 348. 54; Massiter v. Cooper, 4 Esp. 260; 3 Story Bailm. § 591 ; Bretherton Tarbell v. Central R., 34 Cal. 616. V. Wood, 3 Brod. & B. 54 ; Jencks ^ Bennett v. Dutton, 10 N. H. V. Coleman, 2 Sumner, 221. See 481. Benett v. Peninsular Co., 6 C. B. 775. 652 CHAP. I.] CARRIERS OF PASSENGERS. § 623 our statement indicates, and analogous, indeed, to those ob- served in treating of common carriers of goods. The carrier of passengers may stop receiving when his vehicle is full, nor need he accept passengers to travel by other modes of con- veyance or other vehicles, or upon different journeys, with different stopping-places and at different times, from what he holds himself out as ready to furnish or perform.^ One whose vocation extends to both passengers and freight, like a rail- way carrier, is not bound to carry freight on passenger velii- cles or by passenger trains, nor passengers on freight vehicles or by freight trains ; but he may regulate fairly for himself how the double duty shall be performed.^ Nor can a carrier be compelled to take passengers on Sunday.^ We have ob- served, however, that a carrier may waive his rights in these and kindred respects ; and where, as is now so usual, passage- tickets are sold or given out in advance without any express proviso as to there being room, the undertaking assumed on the carrier's part is to furnish room to all who have tickets ; this principle applying generally to the unqualified reception of passage-fares by the carrier or his proper agent, though manifestly most appropriate to railway travelling, where cars are so constantly attached to each train, not by advance com- putation, but according to the number of persons who may present themselves at the time advertised.* A passenger who has thus paid his fare is entitled to due accommodation, es- peciall}^ if he is to go a long distance ; if accommodation can be made, the carrier's servants are bound to provide it for him on request ; ^ and if he finds the ordinary cars of . his train full, he cannot be treated as a trespasser when he goes 1 Supra, §§ 373-381. R., 8 E. L. & Eq. 362 ; IG Jur. 196. 2 Arnold v. Illinois Central R., 83 A carrier by ferry-boat, who pro- Ill. 273, 280, and cases cited. vides the number of scats demanded 8 AValsh V. Chicago R., 42 Wis. by the average travel, is not remiss 23. Though he may waive his right in duty if persons are sometimes in this respect very considerably, without seats. Burton v. Ferry Co., Feital v. Middlesex R., 109 Mass. 114 U. S. 474. 398 ; Carroll v. Staten Island R. , 68 ^ As where other passengers were N. Y. 126. using more seats than they were en- * See Hawcroft v. Great Northern titled to. 69 Miss. 421. 653 § 623 THE LAW OF BAILMENTS. [PART VII. into a drawing-room car, ladies'car, or other higher-priced or special conveyance, under the same management, for the par- ticular transportation, there to remain until there is a vacant seat for him in the ordinary cars ; ^ though he is not justified in exposing himself carelessly and needlessly to danger where he has no seat.'^ The contract embodied in the sale of a ticket may of course limit one's right of accommodation to some particular trip or train. The carrier of passengers is only bound to accept and carry- persons who are suitable ; a qualification in his favor which must be very guardedly observed, partly with a view to his per- sonal advantage, but more for making the journey reasonably convenient, comfortable, and decent for the public. For in- stance, transportation and admission to the carrier's " premises may be refused to one who seeks to avail himself of such opportunity so as to injure the carrier's own business by solic- iting patronage for a rival line ; ^ for while the carrier may not subject his passengers to an oppressive monopoly, it appears well conceded that he has the right to keep to himself the legitimate advantages of his position, such as establishing an exclusive agency for the delivery of the passengers' bag- gage contained on board the car or vessel, giving some other carrier the monopoly of his connecting patronage, or furnish- ing a refreshment-table, as a convenience to those he trans- ports, and a source of special profit to himself.* Again, the carrier is not obliged to accept one who is openly at the time or even habitually drunk, gross in his behavior or obscene in his language, lewd, noisy, or quarrelsome, so as to become a public annoyance to the other patrons ; ^ though discrimina- tion among persons for merely habitual and not actual and 1 Thorpe v. N. Y. Central R., 76 v. Oyster Bay Steamboat Co., 67 N. Y. 402 ; Davis v. Kansas City R., N. Y. 301 ; The Martin, 11 Blatchf. 53 Mo. 317 ; Bass v. Chicago R., 36 233. Wis. 450. See further, post. * lb. 2 Camden R. v. Hoosey, 99 Penn. 6 See Story Bailm. § 591 a ; Mr. St. 492. Justice Story in Jencks v. Coleman, 8 Jencks v. Coleman, 2 Sumn. 221, 2 Sumn. 221, 224, 225 ; 33 Kan. 543. 224 ; Story Bailm. § 591 a ; Barney 654 CHAP. I.] CARRIERS OF TASSENGERS. § 624 present misbehavior of this sort must of course involve a per- ilous responsibility in these days, when travelling has become so universal. Nor is the carrier obliged to receive as passen- gers notorious thieves, pickpockets, gamblers, or other crimi- nals, nor fugitives from justice, nor persons infected with contagious diseases ; since respect for the laws, and the vital interests of the carrier himself and the general passengers, besides, demand the exclusion — and where life and health would be imperilled, the imperative exclusion — of all such per- sons.^ Yet, in all instances like these, acceptance of the fare from any one is so far a waiver of the carrier's right to refuse admission that the carrier ought carefully to refuse selling tickets to such persons, and to exclude them if they attempt to enter the vehicle without tickets; he should at least refund readily whatever may have been paid for passage on their behalf; and if, inadvertently, such a person is admitted with- out some previous notice that his transportation is forbidden, the carrier incurs the risk of a suit where he ejects him after- wards, especially if no previous offer be made to refund whatever fare the party may have paid, and the ground of ejection is simply that of habitual, and not present offence.^ § 624. Carrier's Reasonable Rules as to Accommodation. — Closely associated with this qualification of the obligation to receive is the carrier's right of making and enforcing Avhole- some and reasonable regulations as to accommodation on behalf of himself and those he transports. Thus, the passenger-car- rier by railway may, it is held, set apart, in the first instance, a special " ladies' car " for women who travel alone or with their male relatives or friends ; and this to the extent of forcibly removing any male who enters the car unaccom- 1 See Dundy, J., in Thurston v. take a man on board, as an ofiBcer Union Pacific R., 4 Dill. .321. But who has him under arrest, see 87 Mo. as to fugitives from justice, see Pear- 422. '* Non-union" workmen are not son V. Duaue, 4 Wall. 605, — a case to be excluded from travelling upon of exceptional circumstances. any suggestion that they are uiipopu- 2 Putnam v. BVoadway R., 55 N. Y. lar. Chicago R. v. Pillsbury, 123 108 ; Thurston v. Union Pacific R., 111. 9. 4 Dill. 321. As to permitting one to 656 § 624 THE LAW OF BAILMENTS. [PART VII. paniecl by a female ; ^ and saloons, drawing-rooms, and state- rooms on a steamer or other passenger vessel may doubtless be set apart for a similar purpose. As to the right of exclud- ing persons of color from certain cars or vehicles, or confining them to a particular car or a particular quarter when travel- ling, judicial opinion in this country has fluctuated somewhat with the vicissitudes of public opinion regarding the interest- ing question of negro rights ; nor inconsistently so, since the reasonableness of a carrier's regulations at any period or place ought not to be tested regardless of social prejudice and prevailing manners among the travelling public. Yet the more intelligent opinion of this day denies utterly the right to exclude negroes from travelling by the usual facili- ties, and hestitates to shut persons, decent and respectable in appearance, character, and behavior, off by themselves, or to deny them comforts they can pay for, merely because of their color.'^ And it is rightly held that the simple fact that a car or saloon is designated for use by "ladies," or "females," or "women," does not warrant the carrier's refusal of its privileges to a black lady, female, or woman, who occupies the fair general footing of a passenger.^ To speak more generally, distinctions in the means of transportation furnished, on considerations not of sex but of social caste, appear more openly admissible in England and European countries than in America, where such distinctions are averse to the spirit of our institutions ; and yet of late years, particularly in railway travel, there has been a grow- ing disposition manifested to run special drawing-room car trains, and furnish such special quarters and special facilities as practically to adopt and establish in the United States the 1 Peck V. New York Central R., Turner v. North Beach R., 34 Cal. 70 N. Y. 587 ; Putnam v. Broadway 594 ; "West Chester R. v. IMiles, 55 R., 55 N. Y. 108, and cases cited; Penn.St. 209 ; Chicago R. v. Williams, Bass V. Chicago R., 36 Wis. 450; 55 111. 185 ; Decuir ». Benson, 27 La. Chicago R. v. Williams, 55 111. 185. Ann. 1 ; Britton i). Atlanta R., 88 N. C. A fortiori, if the man was sent po- 536. litely to another car. 94 N. C. 318. ^ Chicago R. v. Williams, 55 111. 2 See Day v. Owen, 5 Mich. 520 ; 185. 656 CHAP. I.] CARRIERS OF PASSENGERS. § (JJo foreign fashion of travelling by first class and second-class cars. The only rational ground for maintaining such dis- tinctions, so far as they are rational at all, must, to citizens of a free republic, appear this : that a gradation of passage rates justifies a gradation of accommodations ; but that every pub- lic carrier of passengers should afford reasonable and safe facilities for all who pay their fares and travel. The carrier has no right to provide for the comfort of one sex, or of the higher-price passengers, to the neglect of the other sex, or of those who pay the ordinary rates.^ And, whatever the car- rier's regulations, they must be neither unreasonable nor unreasonably enforced.^ § 625. Passage Tickets and Fares. — 4. Next, to touch upon a topic greatly developed by recent cases, namely, passage tickets and fares. As a further qualification of the passenger- carrier's obligation to receive for carriage is that right which the law concedes to all who exercise a public calling, of re- quiring due recompense ; and while, on the one hand, such a carrier can demand no extortionate or unreasonable reward from any one such as might amount to a practical exclusion or hindrance from travel, he may unquestionably require to be paid his reasonable charges, and paid, too, in advance.^ As compared with the modern practice among common car- riers of goods, there are three aspects in which that among common carriers of passengers appears strikingly different : 1. The passenger-carrier usually receives his recompense from the patron or customer in advance, occasionally on the way, and only very seldom at the termination of the transit , and that greatest of inland transporters, the railway carrier, commonly discriminates thus between travelling patrons and the consignors of freight. 2. The passenger-carrier has little to do with variable tariffs of rates, such as, computed 1 See supra, § 622. fully discussed in the next chap- 2 Jennings v. Great Northern K., ter. L. R. 1 Q. B. 7. The subject of the » Story Bailm. § 003 ; Angdl Car- carrier's rules and regulations, in riers, §§ 525, 530. 000 ; Ker v. Moun- their wider bearings, will be more tain, 1 Esp. 27; 11 Neb. 177; cases post. 42 G57 § 626 THE LAW OF BAILMENTS. [PAIIT VII. ad valorem or pro raid, might render the particular recom- pense in a case difficult to adjust ; still less, with special charges of transit against the customer. He commonly grades his accommodations and facilities, however, on a well-considered scale of prices, leaving the passenger to select and pay according to choice ; he discounts, too, his rates to season-ticket holders or purchasers by the quantity, or on a round trip, while allowing others to travel on terms of marked favor, or even free. 3. The almost universal use of passage- tickets in such transactions, which are issued before the jour- ney, and serve on the way as the voucher of the passenger's right to be in the vehicle, virtually concedes (subject to their own special limitations and those of passes granted to special individuals only) that the bearer's fare has been already paid the carrier, and that, whoever such party may be, the right to exclude on any ground is waived, and he is accepted as a passenger subject to the limitations of such ticket, with the usual rights and subject to the usual rules. A party, then, who has once paid his passage-fare, and can produce his proper ticket, is not, as a rule, to be treated differ- ently from other passengers of the same class, nor refused admission to the cars or vehicle ; but if good cause really exist for his immediate exclusion, which the carrier ought, in justice to himself, and out of regard to the other passengers, to insist upon, the fare must, at all events, be tendered back or refunded ; and damages against the carrier for his breach of contract to carry, after the usual mode, to the journey's end ought, under such circumstances, to be heavy where the exclusion is without justice and good reason,^ especially if the party while not actually misbehaving is excluded in a contemptuous, insulting, and scandalous manner. ^ § 626. The Same Subject ; Reasonableness of Fares, etc. — In prescribing rates of carriage, the carrier of passengers, 1 See Chicago R. v. Williams, 54 ^ Coppin v. Braithwaite, 8 Jur, 111. 185 ; Thurston v. Union Pacific 875, Ex. ; Angell Carriers, § 532. R., 4 Dill. 321 ; Pearson v. Duane, And see next chapter, as to eject- 4 Wall. 606. ing passengers. 658 CHAP. I.] CARKIERS OF PASSENGERS. § 627 when unrestrained by statute, may charge whatever lie pleases, provided the charge be not extortionate, oppressive, or un- reasonable ; nor, as it would appear, is the charge made to one passenger conclusive of what should be made to another, since the common law requires, not tliat all should be charged alike, but that none should be charged unreasonably high.^ But public policy tends to the view that the grant of anything like a monopoly of carriage facilities to individuals or a class ought to be discountenanced ; and wliile equality of rates for the same facilities must always appear reasonable, inequality is evidence of unreasonableness. ^ § 627. Contract evinced by Ticket, etc. — Further than this, the modern ticket system is fundamentally one of special con- tract, and subject to the special-contract rules we have else- where detailed, in most leading respects ; though some cases prefer to treat the ticket as a mere token or voucher, showing that one has paid his fare and is entitled to a passage as indi- cated ; 2 and certainly it is not evidence of a contract in any such sense as to comprehend and conclude the actual terms of passage, and merge all other parol or written arrange- ments in point.* As construed in the light of custom the 1 Supra, §§ 374, 375. usage or a special contract with the 2 lb. And see § C'D, post. party himself ; or from special state- ** Elmore v. Sands, 54 N. Y. 512, ments made by the carrier or by his 615, and cases cited, per Earl, C. proper agents, whether by way of * Van Buskirk v. Roberts, 31 N. Y. extension or waiver of the usual con- 661 ; Quimby v. Vanderbilt, 17 N. Y. ditions. To quote from the language 306. of a recent case: "As either party It is seldom, if ever, that a mere may prove terms of the contract, not ticket professes to contain all the expressed upon the ticket, so either essential terms of the understand- party may prove the acceptance, or ing between passenger and carrier ; rejection, or waiver of any terms though it may establish this under- thereon indorsed. The ticket is not standing in various particulars, in- a written contract signed by the par- cluding the qualifications in respect ties. It is, at most, evidence of some of baggage liability. The full agree- existing contract for a passage be- ment as to passage is derived largely tween two places named, and that from schedules which give the time- the holder has paid the fare de- tables, etc., and general rules, so far raanded." Danforth, J., in Burn- as these are brought before the pub- ham v. Grand Trunk R., 63 Me. '298, lie, and may fulfil the requirement of 301. And see, supra, §§ 466-474. 659 § 627 THE LAW OF BAILMENTS. [PART VII. language of the usual passenger-ticket, however briefly ex- pressed, indicates the terminus of the particular journey, and imports a promise on the carrier's part to take the passenger, or presumably the bearer, through with the usual despatch and facilities, and by the usual means, subject to the usual qualifications permitted by law, from the starting-place to the point of destination. Custom among carriers or legis- lation may come in aid or control of the terms of this charac- ter to expand or expound them. Nor is it unusual for the carrier's posters, advertisements, or circulars to indicate to the public the schedule of fares, as well as the time-table, besides other material points of information of special inter- est to travellers. One who buys his ticket relying upon its terms and upon the published schedule, as he has a right to do, accepts, in fact, the benefits of the carrier's public offer, and can claim all the reasonable advantages of such special contract.^ As to disadvantages, the passenger in general may be held bound by his knowledge and assent to the special terms, so far as reasonable facilities and means of conveyance are concerned ; though, as we shall see hereafter, it is not so certain that the carrier may thereby relax the duty he owes, of carrying human beings with due care of life and health ; for, even as to passengers carried free, the carrier is not fairly regarded as discharging himself of his general ob- ligation in that respect. ^ In this confined sense, however, the passenger cannot plead, as it would appear, that he did not read what his ticket plainly stated ; ^ and a reasonable and customary rule of carriage, independently of his actual knowledge or assent, might be held to bind him as a passenger.* 1 See Denton v. Great Northern R., 3 Allen, 18 ; Angell Carriers, R., 5 E. & B. 860 ; Sears v. Eastern § 529 ; Steamboat New World v. R., 14 Allen, 433, 436; Hobbs v. King, 16 How. 469; Gillenwater v. London R., L. R. 10 Q. B. Ill; Madison R., 5 Ind. 339 ; 108 Mass. 7. Le Blanche v. London R., 1 C. P. D. 3 Boston & Lowell R. v. Proctor, 286 ; 8 E. L. & Eq. .362. 1 Allen, 267 ; § 628. 2 See next c. ; Todd v. Old Colony * See State v. Goold, 53 Me. 279 ; 660 CHAP. I.] CAllKIEKS OF TASSENGERS. § G28 A ticket with special stipulations is in the nature of an express contract so far as such stipulations are reasonable and conform to good policy, provided at all events the i)assenger knew seasonably or ought to have known seasonably that they were expressed. § G28. The Same Subject; Differing Rates import Differing Facilities. — Facilities and means oi passenger transportation are, in fact, regulated constantly by a difference of rates ; and the passenger who agrees to go at the lesser fare may have to accept the lesser conveniences. Ordinary rates of fare imply that the passenger shall be carried with the ordinary facilities in the choice of vehicle, time of starting, rapidity of journey, means of conveyance, and choice of seats. ^ Adults and chil- dren, who may be charged differently, are ordinarily accepted together upon such an understanding ; for the basis of such difference in rates is a difference in age and development ; ^ though it seems not unreasonable on street-cars, or for short distances, to prescribe lesser facilities as to seats, for chil- dren who pay the lesser rates, than for grown people. Season- ticket holders, or those who purchase tickets by the quantity or round-trip tickets, may be presumed entitled to the usual facilities ; though special conditions are sometimes found to accompany such reduction of rates. ^ In England and Euro- pean countries are cars of the first class, second class, and so on ; the inferior car being furnished less luxuriously for the lesser fare ; a custom which, though little prevalent in Ameri- can railway travelling, so far as the gradation is directly con- cerned, finds an indirect following in the recent establishment of " palace " and " drawing-room " cars, where special rates Northern R. v. Page, 22 Barb. 130. L. R. 2 Q. B. 442. An adult pas- But as to the inconclusiveness of senger may be treated as responsible tickets, and the uncertain acceptance for the fare of a cliild under his by the passenger of their special quali- charge. Philadelphia 11. v. Iloetlich, fications, so far as relates to baggage 62 Md. 300. liability, see ;)os^ c. 4. And see Rich- ^ Hce Woodard v. Eastern Coun- ardson v. Rowntree, [1894] App. 217. ties R., 1 B. & S. 977, Am. ed. ; 105 1 See Davis i'. Kansas City R., 63 Penn. St. 142 ; Ripley v. New Jersey Mo. 317. R., 31 N. J. 388. As to a condition 2 Austin V. Great Western R., contained in a season-ticket, requir- ed § 628 THE LAW OF BAILMENTS. [PAIIT VII. are demanded.^ In travel by water, too, state-rooms are graded or made a special charge in like manner as compared with berths. The natural and reasonable admission of all such distinc- tions as these is to establish a special contract between the carrier and his patrons, express or implied, whereby the party i^aying the higher rates travels with more seclusion and com- fort, and perhaps may be privileged to go on special and limited trains, or at unusual times. And there may be, in corresponding manner, special limited tickets, issued at re- duced rates, for particular trips only, or a continuous passage ; and by such terms the purchaser is bound. ^ But the terms of the special undertaking, not well established already by usage or legislation, must be brought home to the passenger by ticket or otherwise ; and where limited railway tickets are intended to restrict the holders to particular trains, and nevertheless purport on their face to entitle one to passage on any regular trains, the passenger cannot be excluded from the ordinary facilities and the usual trains, who believed himself entitled thereto ; for general notice by poster ought, as American cases rule, to be brought seasonably to the particular passenger's ing its surrender or else the forfeiture Georgia Southern R. v. Bigelow, 68 of deposit- money, see Cooper t). Lou- Ga. 219; 11 Mo. App. 463; 6Q Cal. don R., 4 Ex. D. 88. 191. And wliere a limited ticket ex- 1 See Pullman Palace Car Co. v. pires on a Sunday, and the carrier Reed, 75 111. 125 ; Pullman Palace runs no train that day, he is bound Car Co. V. Smith, 73 111. 360 ; supra, to carry the passenger next day. 43 § 624 ; 55 Ark. 134. Ark. 629. 2 A reduced-rate ticket, limited in A reduced-rate ticket may be time on its face, cannot be used after limited so as to be used only by a the time expires. Pennington v. Phil- particular individual or individuals ; adelphia R., 62 Mo. 95. Even if the and this is usually the case with carrier were at fault and conse- season or mileage tickets, which are quently responsible for preventing so expressed as not to be transferable its full use, it does not follow that at pleasure. Limited tickets some- the ticket itself must be honored in times require the buyer to be identi- disregard of its terms. 41 Ohio St. fied and have the ticket stamped for 276. Cf. 43 Ark. 529. But a ticket the return passage. See 17 Fed. R. whose use expires on a certain day is 880 ; 23 Fed. R. 326 ; 73 Ga. 356 ; 158 good if one begins his journey before Penn. St. 302 ; 42 La. Ann. 880. All midnight on that day. Auerbach such limitations, if intended, should V. N. Y. Central R., 89 N. Y. 281; be expressed, 662 CHAP. I.] CARRIERS OF PASSENGERS. § G29 attention, in order to bind him to the qualifications chiimed by tlie currier.^ General advertisements do not vary the plainly express terms of the ticket itself. ^ And in the absence of terms rendering a ticket unassignable it passes by delivery.^ Mileage books are often purchasable at this day for railway use with similar effect as tickets, and their rea- sonable terms are l)inding.* § 629. Special Restrictions of Carriage by Ticket, etc. — Among the special qualifications contained in a passage-ticket, which have been ruled admissible, is this : that the ticket is " good for this trip only," or for the day dated ; in the sense, of course, that the passenger shall have fair opportunity to reach his destination accordingl3^^ And the same doctrine may be affirmed of coupon-tickets given over connecting routes, to enable one to travel beyond the terminus of the first carrier.** But the usual fair understanding as to tickets, notwithstanding they happen to be dated, seems to be that the passenger, while not entitled to break a journey, may commence and finish it at a later day, if hot unreasonably late after its purchase, and provided no special cause appear for a different interpretation of the carriage undertaking ; in 1 Maroney v. Old Colony R., 100 3 McCr. 249; Carstens v. Northera Mass. 153. A round-trip ticket fol- K., 45 Minn. 53. lows this rule ; for round-trip tickets * The holder of a mileage book are presumed to be good until used, cannot dictate from what part of in absence of a special stipulation to the book the conductor shall de- the contrary in the ticket or actual tach coupons. 88 Me. 578. Nor notice to the buyer at the time of insist upon detaching the coupons, the purchase. Pennsylvania 11. v. 82 Va. 250. Nor present detached Spicker, 105 Penn. St. 142. coupons without the book. Boston Conditions on a ticket, as to fare, R. v. Chipman, 14G Mass. 107. travel, etc., which are plainly ex- ^ State v. Overton, 4 Zab. 435 ; pre.ssed and in view of the rates Cleveland R. v. Bartram, 11 Ohio charged are not unreasonable, bind St. 457; .Johnson v. Concord It., 46 the passenger ; he cannot say that N. H. 213 ; Cheney v. Boston & he did not read the ticket. 73 Ga. Maine R., 11 Met. 121 ; Elmore v. 356; 11 Phila. 597; 158 Penn. St. Sands, 54 N. Y. 512, a positive au- 302 ; 1 Allen, 267. thority in point ; Dietrich v. Penn. 2 Howard v. Chicago R., 61 Miss. R., 71 Penn. St. 432. 194. 6 Boston &■ Lowell R. v. Proctor, 8 Speucer v. Lovejoy, 96 Ga. 057 ; 1 Allen, 207 ; Shedd v. Troy & Bos- ton R., 40 Vt. 88 ; supra, §§ 615-618. 663 § 630 THE LAW OF BAILMENTS. [PAIIT VII, other words, that a fare-ticket sold upon no special limited contract, and for the ordinary accommodations in the vehicle, without selection of place, is good for a continuous passage until used.^ A ticket entitles one to travel between the stations named, but no farther.^ So, if a railway ticket reads " Portland to Boston," this, it is held, does not allow one to travel from Boston to Portland, but only, according to its tenor, from Portland to Boston.^ A "drover's pass " ticket for use on freight trains with stock cannot be used on a pas- senger train.'* Limitations, in point of time or trips, upon the use of passenger-tickets, if plainly expressed, are commonly sustained by the courts as reasonable ; more especially where the tickets themselves are issued on especially favorable terms of fare, as in the case of excursion or round-trip, commutation and season tickets ; ^ though such limitations should never be so narrow as to deny, practically, the full right of passage they profess to confei\ nor understood in the sense that the carrier may profit by his own default or duty, to his patron's detriment.^ § 630. The Same Subject; Reasonable Rules as to Tickets. — Reasonable rules as to passage-fare may be imposed by the carrier in his interests or those of the general public ; but not unreasonable rules. Thus, he may issue tickets which do ^ See Pier v. Finch, 24 Barb. 514. Where the carrier controls both a 2 Great Western R. v. Pocock, 41 direct and a circuitous route between L. T. 415. two points, it may more naturally 3 Keeley v. Boston & Maine R., be assumed that a restriction con- 67 Me. 163. And see Coleman v. fines the passenger upon a through New York R., 106 Mass. 160; 24 ticket to the direct route than to the Am. Reports, 22, Thompson's note, circuitous one. See Bennett v. New Semhle, if the ticket read, as is not York Central R., 69 N. Y. 594. uncommon, "Portland & Boston," ^ Littjg Rock R. r. Dean, 43 Ark. no such restriction upon the direc- 529. But see Pennsylvania Co. v. tion of travel could be inferred. Hine, 41 Ohio St. 270. * Tliorp t;. Concord R., 61 Vt. 378. A round -trip ticket which ex- 5 Hill V. Syracuse R., 63 N. Y. pressly requires to be stamped and 101 ; Lillis v. St. Louis R., 64 Mo. signed by ticket agent at place of 404 ; Powell v. Pittsburg R. , 25 Ohio destination before it can be received St. 70 ; McEIroy v. Railroad, 7 Phil, on return passage must be reason- 206. And see Thompson's valuable ably complied with. Boylan v. Hot note, 24 Am. Reports, 22. Springs R., 132 U. S. 146. 664 CHAP. I.] CARRIERS OF PASSENGERS. § G30 not permit the passenger to stop over at pleasure ; for it is both reasonable and customary to discriminate between through and local fares, so as to charge higher pro ratd for the distance travelled in the latter case than in the former ; ^ and quick transit is advantageous to through passengers be- sides. So may the carrier charge an additional rate where tickets are not purchased before the passenger goes on board the train or vehicle ;'^ for it is not only a convenience in keep- ing his accounts, but a great safeguard against fraud, that the fare be taken by the carrier's agents specially appointed for that purpose ; though this presupposes, in consistency, that the passenger is allowed such opportunity to purchase beforehand.^ Passengers may have to show their tickets when going aboard.* The passenger, too, may be required to exhibit his ticket whenever called upon by the carrier, or 1 State V. Campbell, 32 N. J. 309 ; Cheney v. Boston & Maine R., 11 Met. 121 ; Breen v. Texas R., 50 Tex. 43 ; McClure v. Philadelphia R., 34 Md. 532 ; Oil Creek R. v. Clark, 72 Penn. St. 231. 2 Ililliard v. Goold, 34 N. II. 230 ; State V. Goold, 53 Me. 279 ; Chicago R. I'. Parks, 18 111. 400 ; Cleveland R. V. Bartram, 11 Ohio St. 457 ; State V. Chovin, 7 Iowa, 204 ; Swan V. Manchester R., 132 Mass. 116; 39 Minn. 0. 8 See St. Louis & Alton R. v. South, 43 111. 17G; Nellis v. New York R., 30 N. Y. 505; Chicago R. V. Parks, 18 111. 4G0 ; Crocker v. New London R., 24 Conn. 249; Jef- fersonville R. v. Rogers, 28 Ind. 1 ; 134 Ind. 100. But it should be ob- served that, in fact, the allowance of a cheaper rate where tickets are pur- chased in advance may be by way only of abating or di.scounting the regular fare ; which puts the ques- tion of charging on board the vehicle rather differently. See Crocker v. New London R., and State v. Goold, supra. The rule of discount only where tickets are bought at the sta- tion is a reasonable one, and may be enforced on the train. Cincinnati R. V. Skillman, 39 Ohio St. 444. And the general rule appears to be, in this connection, that the ticket- seller is not bound to keep his office open after the advertised time for the train or vehicle to leave. Swan V. Manchester R., 132 Mass. 116. In New York, however, a local statute requires ticket-offices at rail- way stations to be kept open a pre- scribed time before the train leaves, lb. A passenger who linds the ticket- office clo.sod when he seasonably pre- sents himself to purchase, cannot be required by the conductor to pay an unreasonable extra sum for his pas- sage. 26 W. Va. 800. The practice on some roads is for the conductor to charge extra and give a drawback ticket presentable at any ticket-office. * As in passing through the gate to the track at a railway station. 44 Minn. 433. But where the gate- man excludes one with a proper ticket, the carrier is liable. Balti- more R. V. Carr, 71 Md. 135. 6G5 § 630 THE LAW OF BAILMENTS. [PAET VII. by his proper representative ; such as the clerk of a steam- boat, the driver of a coach, or the conductor of a railway train ; ^ for this is taking a suitable precaution against impo- sition. So, too, on this and other grounds of convenience, is the rule a reasonable one which compels the passenger to surrender his ticket on the way, and take a conductor's check or voucher, or perhaps, indeed, no voucher at all, whether the object be to enable him to stop over or uot.^ Or the restric- tion upon through coupon-tickets over connecting roads, that the passenger must not stop over, except at the places designated on each coupon ; ^ or, as it would appear, that he must not stop over at all (unless the journey be unreasonably long and fatiguing if one may not break it), or that the cou- pons shall be worthless if detached ; ^ since this guards dis- creetly the privilege accorded to the passenger of making the through trip upon one moderate fare.^ But all regulations concerning fare must be not only rea- sonable of themselves, but interpreted in a reasonable manner as between carrier and passenger. Hence, whatever might be a conductor's or clerk's usual right to take up tickets on 1 Woodard v. Eastern Counties L. 449 ; 39 Ohio St. 375. But some K., 1 B. & S. 977, Am. ed. ; Ripley States recognize a general right of V. New Jersey R., 31 N. J. 388; stop-over on coupons, unless a spe- Baltimore & Ohio R. v. Blocher, 27 cial stipulation is made to the con- Md. 277 ; Hibbard v. New York & trary. 72 Me. 388 ; 96 Ga. 637. Erie R., 15 N. Y. 455; 97 Mich. 439. Stop-over formalities are not usu- And see, as to enforcing this rule ally known to a passenger, who against commutation or season-ticket may rely upon information given holders, Downs v. New York R., 36 him by the ticket-seller or the course Conn. 287 ; 57 N. J. L. 703. of the conductor who permitted the 2 Northern R. v. Page, 22 Barb, stop, if the ticket states nothing. See 130 ; Beebe v. Ayres, 28 Barb. 575. New York R. v. Winter, 143 U. S. 60. 3 See § 629. One who buys a limited ticket * Hartan v. Eastern R., 114 Mass. is bound not to take advantage of 44. Usually, coupon-tickets are ex- an opportunity to evade its terms, pressed so as to require a continuous 88 N. C. 526. If it entitles one to journey between two points named ride only on a certain through train on each coupon. 43 Ark. 529. which does not stop at an intermedi- 5 See Jerome v. Smith, 48 Vt. 230. ate station, the passenger who is car- Tickets for continuous passage do ried beyond may have to pay fare not import a right to stop over and for the additional distance. 11 Lea, then resume the' journey. 42 N. J. 533. 666 CHAP. I.] CARKIEUS OF PASSENGERS. § G31 the journey, it is held that the conductor on a train ought not iu reason to deprive the passenger of his ticket while much of the transit continues unperformed, so as to leave the latter party without any voucher showing his right to travel, and that under such circumstances the demand to surrender may be refused.^ Nor should the rule that the passenger produce his ticket whenever recjuircd be enforced regardless of com- mon sense and the conduct of the carrier and his servants rendering such production impossible ; ^ and the carelessness of the carrier's conductor, as in substituting an unsuitable check for the ticket, cannot absolve the carrier from his legal obligation of giving a passage upon the terms and with the privileges actually stipulated.^ Nor ought a traveller, when asked to produce his ticket, be denied a reasonable time to find it ; and this, particularly when the conductor or other agent demanding it knows that the passenger is no tres- passer.* In short, the reasonableness of all such regulations and their interpretation is usually a question of law for the court to determine.^ § 681. Special Instances; Lost Tickets; Travelling without Tickets, etc. — If the passenger claims to have lost his ticket, and this is a transferable one such as the finder might ride with, he must, if required, pay his fare over ; and so, too, where the driver or conductor could not, by dispensing with 1 State V. Thompson, 20 N. H. not the tickets were excused from 250 ; 63 Md. 201. But of. Vedder producing them. V. Fellows, 20 N. Y. 126. ^ Palmer v. Railroad, 3 S. C 580 ; 2 See Baltimore & Ohio R. v. 64 Md. 63. Blocher, 27 Md. 277; Dearden v. * Maples v. New York R., 38 Conn. Townsend, L. R. 1 Q. B. 10. In 667. Indulgence should be shown Jennings v. Great Northern R., L. R. to the old and decrepit, who are 1 Q. B. 7, a passenger bought tickets ignorant of travelling, if their con- fer himself and others of his house- duct indicates good faith. Louisville hold to go by a particular railway R. v. Fleming, 14 Lea, 128. And train, and the train was divided in see Clark v. Wilmington R., 91 N. C. two while he held all the tickets and 506. the other members were in a differ- ^ See Jennings t>. Great Northern ent car, so that the party got sepa- R., L. R. 1 Q. B. 7 ; Vedder i;. Fel- rated. It was held, under the lows, 20 N. Y. 120. circumstances, that those who had 607 § G32 THE LAW OF BAILMENTS. [PAllT VII. such repayment, relieve himself from pecuniary accountabil- ity to the principal who employs him.^ But in other cases of loss, our courts incline to indulge the passenger, on the ground that the carrier has once received the actual consid- eration of the passage, and ought not to demand more if evi- dence be adduced of the fact.^ Where the carrier's rule, as promulgated, forbids passen- gers from being conveyed at all who have not first purchased their tickets (a rule which appears so out of course that one would hesitate to apply it rigidly to any traveller by an ordi- nary passenger conveyance, who commences his journey with- out being aware of it), this does not justify excluding a passenger who is ready and willing to pay his fare to the conductor, or other proper person in charge, when the carrier himself failed to furnish reasonable facilities for purchasing tickets in advance at the place of departure. ^ § 632. Special Instances ; Improper Tickets. — If the pas- senger, when his fare is demanded, produces a ticket having a hole punched in it, or otherwise defaced in such a manner as commonly indicates that it has been used and cancelled, or shows a pass restricted by its terms to some other person, the presumption arises that he is trying to evade his just fare, and unless he explains himself, or tenders promptly what is owing, he may be treated as an intruder.^ And the same 1 Jerome v. Smith, 48 Vt. 230 ; not be defrauded by the ticket being Townsend v. New York Central R., in the hands of another, he should 56 N. Y. 295; [1896] 1 Q. B. 256. have the berth." And see Maples 2 In Pullman Palace Car Co. v. v. New York R., 38 Conn. 557. Reed, 75 111. 125, this indulgence ^ Illinois Central R. v. Johnson, was accorded to one who had pur- 67 111. 312. And see 82 Tex. 527. chased his ticket for a berth in a * Terre Haute R. v. Vanatta, 21 sleeping-car. " We think the better 111. 188 ; Beebe v. Ayres, 28 Barb, rule is," observes Scholfield, J., "to 275. For the English rule, see Dear- require that, where the proof is clear den v. Townsend, L. R. 1 Q. B. 10 ; and satisfactory, as it was in the McCarthy v. Dublin R., Irish Rep. present case, that the applicant for 3 C. L. 511 ; Austin v. Great West- the berth has bought his ticket, but ern R., L. R. 2 Q. B. 442, where a has lost it, and it is limited to the mother travelled without paying her particular berth and trip, and the young child's fare. Offering a coun- circumstances are such that it is terfeit bill for fare is no payment or reasonably certain the company can- tender of fare, and it should be re- 668 CHAP. I.] CARRIERS OF PASSENGERS. § G33 may be affirmed of one who attempts to use the detached coupon or return portion of a ticket plainly issued, as its terms indicate, so as not to have been transferable to hini.^ But a reasonable ex[)lanation, and compliance with the de- mand of a regular fare, ought to shut out controv'ersy on such points. And as to torn or defaced tickets, the fault of the passenger is material to their rightful non-acceptance, where they were genuine.^ § 633. Enforcement of Fares by Conductor, etc. — The con- ductor or other directing agent of the carrier on the journey is expected to enforce the usual and customary rules respect- ing the payment of fares. And, as between the conductor and passenger on a railway train, the passenger's ticket, or the conductor's own substituted check, or some regular pass, must usually be deemed positive evidence of the passen- ger's right to travel at the time and place, and must be pro- duced whenever reasonably called for ; ^ in the absence of which a conductor is not to blame if he collect fare. A car- rier of passengers maybe shown to have waived his own usual terms of limitation, by appropriate acts and a continuous practice.* But the conductor's mere permission to a passen- ger at other times to ride on an expired or unsuitable ticket, not brought home to the management so as to charge the carrier with the practice as a sanctioned one, cannot be set up on the passenger's behalf so as to excuse him on a par- ticular occasion from paying the regular fare or suffering exclusion.^ Nor, of course, can the acts of other agents or parties who are charged wath no duty respecting tickets or the collection of fares be deemed to vary the express terms of the contract between the passenger and the carrier himself.^ fused. Memphis R. v. Chastine, 64 * Burnham v. Grand Trunk R., 63 Miss. 50.3. Me. 298. 1 Langdon v. Howells, 4 Q. B. D. 6 Sherman i'. Chicago R., 40 Iowa, .337. 45. 2 See Rouser v. North R., 97 Mich. « See Wakefield v. South Boston 565 ; 125 Ind. 229. R., 117 Mass. 544 ; Wentz v. Erie R., 8 Frederick v. Marquette R., 37 10 N. Y. Supr. 241 ; Breen r. Texas Mich. 342 : supra, § 630. 669 § G34 THE LAW OF BAILMENTS. [PART VII. Of the conductor's or captain's right to eject for the non- payment of one's proper fare, we shall speak in the next chapter ; this right no doubt existing within prudent limits, though it should not be exercised with needless severity nor needlessly exercised at all.^ A conductor has no right to accept a regular fare tendered him, and then exclude the passenger for not paying the additional sum charged those who fail to procure tickets before they go on board ; ^ nor ought he to insist upon taking up the ticket tendered him by a passenger from whom he exacts a full fare, because of such ticket's invalidity.^ But he may rightfully de- mand the regular fare from any passenger who presents an invalid ticket, and refuse to recognize such ticket alto- gether.* § 634. Whether Aggrieved Passenger may refuse Fare, etc. — So strongly favored in respect of his accommodations is the passenger who has purchased a regular ticket, that the opinion is sometimes intimated that he may not only go into special cars or saloons and sit down there while his own car or saloon is too crowded to afford him a place, but he may even refuse to surrender his ticket until his demand for a seat is complied with.^ But, whatever his course, he must abide consistently by it ; and if, under such circumstances, a proper seat be afterwards procured, and he takes it, he can- not then claim to keep the ticket instead and pay fare for only the remaining distance.^ Even when he is ejected for refusing his fare for want of a seat, it is held that he cannot recover damages for the ejection, but only for breach of con- tract to furnish a seat.'' A passenger may decline to leave the train or vehicle, if E., 50 Tex. 43 ; McClure v. Philadel- full fare where no ticket at all has phia R., 34 Md. 532. been purchased. 1 See next chapter. ^ Supra, § 623 ; Davis v. Kansas 2Du Laurans v. St. Paul R., 15 City R., 53 Mo. 317. Minn. 49. e Davis v. Kansas City R., 53 Mo. 3 Vankirk v. Pennsylvania R., 76 317. Penn. St. 66 ; 14 Neb. 110. ^ gt. Louis R. v. Leigh, 45 Ark. * And of course he may collect 368. ■ 670 CIIAl'. T.] CARRIERS OF PASSENGERS. § G36 rightly on board, notwithstanding the conductor or directing agent of the journey refuses to recognize his ticket.^ § G35. Ticket-seller's Representations, ho-wr far binding. — The regular ticket-seller of a railway or other carrier binds the company, generally speaking, by his representations to the purchaser which are not plainly contradicted by other obvious proof of the carrier's intention ; and a traveller may rely with more confidence upon his assurance concerning fares and tickets, and the contract obligations they import, than that of any conductor.^ If such authorized agent sells a ticket as good when it is not, and the conductor refuses to honor it, the carrier may be held liable ; ^ and more than this (as it has been latel}' ruled), where a passenger who buys a railroad ticket of the authorized agent, believing in good faith that it is genuine and issued rightfully, tells the con- ductor of the train so, the latter is bound to take such facts as true, without regard to any words, figures, or marks which may appear upon the ticket.* § 636. Aggrieved Passenger's Right of Action ; Damages, etc. — 5. Next, to consider the right of action against the car- rier for his inexcusable refusal or failure to receive. The carrier's inexcusable refusal to carry or admit to the premises of transportation may be actionable, even though unaccom- panied by personal violence ; for the party excluded need not wait to be maltreated, nor try to force his way into the vehicle, in order to avail himself of the carrier's breach of ^ Hufford V. Grand Rapids R., 53 until differently informed, upon what Mich. 118. ticket agents or train agents tell them 2 Murdock v. Boston & Albany as to the stoppage of trains ; not, R., 1.S7 Mass. 293; 24 Hun, 51 ; 91 however, in disregard of other rea- Ga. 513. In Petrie v. Ponn. R., 42 sonable means of information. Lake N. J. L. 449, the mere permission of Shore R. v. Pierce, 47 Mich. 277. As a first conductor was hold insufficient to sales of railroad tickets by un- to confer the right to stop over on a authorized agents, see 100 Penn. St. ticket which was given for continu- 269. ous passage. ■* And the ejection of a passenger 8 lb. But as to the unauthorized under such circumstances is visited sale of tickets by the ticket agent, cf. upon the company in damages as for 53 Tex. 564. an assault. Hufford v. Grand Rapids So may railway pa-ssengers rely, R., 53 Mich. 118. 671 § 636 THE LAW OF BAILMENTS. [PART VII. contract or of public duty. But where the carrier or his ser- vant, by use of artifice or a false statement, induces such party not to persist in his attempt to be carried as a passen- ger, this, it would appear, does not in law amount to a refusal so as to render the carrier liable.^ And it would appear that the party who is confronted by the refusal of the carrier or his servant to admit him, ought to exhibit his ticket if he has one, or tender the fare if it has not already been paid as evidence of his right to be considered a full passenger, or one who is at all events ready to become one ; though his obliga- tion to do this might, to be sure, be somewhat affected by the manner and circumstances of the carrier's refusal.^ Similar considerations applj'- to the case of a passenger's exclusion from the vehicle after he has entered it ; which topic, however, we reserve for the next chapter. If, from any cause, the transportation is prevented for which one has paid his passage-money in advance, he may, at all events, recover the money back as for a failure of the con- sideration which induced such payment.^ A company selling a ticket over another road not within its control must refund the money paid if acceptance of the ticket is refused, accord- ing to its proper terms ; ■* and should the conductor on its own road, through some mistake or default imputable to the carrier and his agents and not to the passenger, fail to honor a ticket which was duly bought and is duly presented, an action as for breach of contract will lie ; or for tort with corresponding damages, if the passenger was put off the train, besides, or treated with other indignity.^ But whether the passenger 1 See Marshall z). Matson, 15 L.T. * Hudson v. Kansas Pacific R., N. s. 514, per Bramwell, B. But in 3 McCr. 249. Any holder of the this case it appeared doubtful whether ticket may sue, if the passenger, such refusal would have been inex- though not the original purchaser of cusable. See chapter 3, post. the ticket. lb. Otherwise, if the 2 See Commonwealth v. Power, ticket was by its terms not transfer- 7 Met. 596 ; Harris v. Stevens, 31 able. 4 Sawyer, 114. Vt. 79. s Palmer v. Railroad, 3 S. C. 580. 3 Brown v. Harris, 2 Gray, 359 ; In Philadelphia R. v. Rice, 64 Md. 63, Cope V. Dodd, 13 Penn. St. 33 ; 112 the passenger bought a round-trip 111. 295, ticket, and the first conductor by 672 CHAP. I.] CARRIERS OF PASSENGERS. § 037 thus aggrieved sues in contract or tortwise, the full measure of his damages is the amount of fare demanded to carry him to his destination, where his own misbehavior invited his expul- sion. ^ A breach of contract to transport on the carrier's part fairly entitles the passenger to go to his destination by the best available means and then recover damages sufficient to make him whole.^ Exemplary damages, however, are rarely given for mere breaches of this kind without open misconduct on the carrier's part; but the actual damages sustained, if any be shown, otherwise nominal damages.^ § 637. Legislation as to Fares and Duty to receive. — 6. Lastly, to speak of legislation concerning fares and the carrier's obligation to receive. Legislation may be found to regulate the matter of reasonable fares, as well as the num- ber of persons to be taken in a particular vehicle for carriage. The safety and comfort of the travelling public require that passenger vessels, cars, stages, and other vehicles, transport- ing a large number of people at a time, shall not be over- crowded ; and our license and inspection laws with especial regard to water carriage usually aim, under penalties, to se- cure this as one of their most desirable objects.* Reasonable facilities for transportation are likewise demanded under various statutes ; ^ independently of which the carrier who finds himself with more persons on hand entitled to transpor- tation, who have already bought their tickets, than he can safely accommodate on the vehicle provided, ought at once to provide another for accommodating the overplus, or else stand mistake punched the return coupon, take passage by a different vessel, and then rectified his error by an And see next chapter, expedient which the returning con- ^ Goins v. Western R., 68 Ga. 190. ductor would not recognize. And * See English Acts 2 & 3 Will. IV. see 88 Ind. 381. c. 120 ; 2 & 3 Vict. c. 60, § 2 ; Fisher 1 Hall V. Memphis R., 15 Fed. R. Harrison Dig. 1614, 1015 (Am. ed. 57. 1879) ; U. S. Rev. Sts. §§ 4252-4289. 2 See The Zenobia, Abb. Adm. Statutes are found rt'quiring rail- 80, where one advanced half the ways to furnish suitable cars, etc. passage-money to go by a vessel 61 Wis. 596. which sailed without him previous ^ Railway and Canal Traffic Act, to the time appointed and without 1854, 17 & 18 Vict. c. 31 ; Fisher his knowledge, so that he had to Harrison Dig. 1015 (Am. ed. 1879). 43 673 § 637 THE LAW OF BAILMENTS. [PART VII. to the damage he occasions by not transporting as he agreed to do. With respect of fares, the English Railway and Canal Traffic Act 17 & 18 Vict. c. 31, and various special acts of that country applicable to railway and other conveyances, aim to establish equality and reasonableness of rates in passenger traffic as well as for the transportation of goods ; ^ and such carrier companies are not only forbidden to give any undue or unreasonable preference in favor of particular persons or companies, or to subject others to any undue or unreasonable prejudice or disadvantage in any respect, but are in various instances forbidden to charge at more than a specified tariff of rates for carrying passengers of different classes.^ Fares and tolls, too, are regulated by various local acts in the United States ; ^ and the right of penal action against the carrier for his extortionate or oppressive charges is some- times given as affording ampler indemnity to the aggrieved party and better subserving the policy of government than an action in assumpsit as for money had and received which has been paid under protest."* Nor is it deemed uncon- stitutional for a State legislature, under a reserved power to alter or amend the charter granted to a certain passenger- carrier company, to fix such fares or toUs.^ But States have no right to impose oppressive and burdensome charges upon passengers under other pretexts ; as, for instance, requiring " head-money " from ocean immigrants ; ^ and the regulation 1 See supra, §§ 484, 485. ^ parker v. Metropolitan R., 109 2 See Acts 17 & 18 Vict, c. 31, Mass. 506. § 2 ; 21 & 22 Vict. c. 75, § 1 ; Fisher e Henderson v. New York, 92 U. S. Harrison Dig. 1615, 1618 (Am. ed. 259 ; Chy Lung v. Freeman, 92 U. S. 1879) ; Caterliam v. London R., 1 275. C. B. N. s. 410. See also U. S. Act 8 Vict. c. 20, § 103, expressly Inter-State Commerce Act (1887); provides for the case of travellers § 611 d. intending to evade the payment of 2 Parker v. Metropolitan R. , 109 their fares, making that fraudulent Mass. 506. intention the gist and essential in- * See Smith V. Chicago R., 43 Wis. gredient of the offence. Dearden v. 486. And see Railroad Co. v. Fuller, Townsend, L. R. 1 Q. B. 10. And 17 Wall. 560; Railroad Co. v. Rich- see Barry v. Midland R., Irish Rep. mond, 19 Wall. 584. 1 C. L. 130 ; McCarthy v. Dublin R., 674 CHAP. I.] CARRIERS OF PASSENGERS. § 637 of commerce, inter-State or foreign, belongs to the United States.^ The preferences thus forbidden by statute being simply such as are undue or unreasonable, it is fair enough to allow reduced rates where many purchase tickets together as one party .^ Irish Rep. 3 C. L. 511; Austin v. ^ See Passenger Cases, 7 How. 283; Great Western R., L. K. 2 Q. B. Part VI. c. 10. U2. 2 145 u. S. 203. 675 § 639 THE LAW OF BAILMENTS. [PAET VII. CHAPTER II. DUTIES AND EIGHTS INCIDENTAL TO THE JOURNEY. § 638. General Duties of Carrier -with Reference to the Jour- ney. — I. Before considering the liability of the passenger-car- rier for injuring or killing a passenger he carries, let us dwell upon his general duties with reference to the journey. The general duties of the passenger-carrier with reference to the journey comprehend the entire period from the accept- ance of a particular passenger for transportation to safely bestowing him at the journey's end ; and an injury to his person, such as calls for judicial intervention, may have reference to his breach of obligation at any intermediate point or at one of the termini. Legal negligence by the carrier may consist either in the omission of a duty or the active commission of a fault. §639. The Same Subject ; Suitable Depot; Means of Ingress, etc. — 1. The carrier ought to have a suitable depot or place for receiving passengers according to the usual custom of his profession ; and in providing means, both of ingress to the car or vehicle, and egress therefrom, such as platforms, planks, gangways, and drops, there must be nothing improper, unusual, or carelessly constructed or adapted, whereby a pas- senger, using ordinary circumspection, is likely to be endan- gered.^ The usual conveniences for entering and alighting 1 Longmore v. Great "Western R., injuries done by a workman who is 19 C. B. N. s. 183 ; Foulkes v. Metro- making repairs in the depot, tlie car- politan R., 4 C. P. D. 267 ; John v. rier is to respond personally. "Wei- Bacon, L. R. 5 C. P. 437 ; Le Baron fare v. Brighton R., L. R. 4 Q. B. V. East Boston Ferry Co., 11 Allen, 693. As to insufficient lights, cf. 60 312; 37 La. Ann. 648, 694; Joy v. Miss. 442; 34 La. Ann. 777. See Winnisimmet Co., 114 Mass. 63. also Jordan v. New York R., 165 See Grafter v. Metropolitan R., L. R. Mass. 346. As to accumulation of 1 C. P. 300. But qiicere whether, for ice and snow on car platforms during 676 CHAP. II.] CARRIERS OF PASSENGERS. § 639 must be in place and kept in reasonably safe and good condition while used.^ And in regulating the entrance and exit of trains or vehicles, and the departure and admission of passengers generally, such rules of precaution must be observed by the carrier as great prudence and a due regard for human safety may suggest.^ Reasonable regulations may be prescribed and enforced concerning the use of the passenger-depot by the general pub- lic ; and this, whether we regard the carrier in this capacity or as the owner of the premises. Hackmen, inn-porters, newspaper-vendors, and others whose pursuit is disconnected with the duty which the carrier owes to his patrons, must comply with his rules of admission upon the premises, so as to annoy neither the carrier nor his passengers.^ As to the passengers themselves, it may be both prudent and right to keep them in waiting-rooms excluded from the platform until a storm, see 111 N. Y. 488. To allow a hole to remain long in the railway platform is negligence. 80 Ky. 82. And a railway permitting mail-bags to be thrown on a platform while the train is running at full speed is liable to one who is injured while waiting as passenger for his own train. Snow V. Fitchburg R., 136 Mass. 662 ; Car- penter V. Boston & Albany R., 97 N. Y. 494. See also c. 3, post, as to suitable modes of egress for a depart- ing passenger. Damage remotely connected with the carrier's own breach of duty, as where one while in a railway depot is bitten by a dog who happens to run in there, is not readily visited upon the carrier. Smith v. Great Eastern R., L. R. 2 C. P. 4. 1 Foy V. London R., 18 C. B. n. s. 225. But cf. Murch v. Concord R., 9 Fost. 9. And see, as to passenger- carriers by water, Packet Co. v. Clough, 20 Wall. 628; Julien v. Steamer Wade Hampton, 27 La. Ann. 377. As to street-car companies, see 153 Penn. St. 152. How far the carrier or his em- ployes may be bound to assist pas- sengers on board or off the vehicle depends upon circumstances. AUen- der V. Chicago R., 43 Iowa, 276. A passenger is careless if he tries to get on board a railway train after it starts, according to Paulitsch v. N. Y. Central R., 102 N. Y. 280 (three judges diss.). Cf. Perry v. Central R., 66 Ga. 746. As to care- lessly shutting the entrance gate on an elevated road, see 53 N. Y. Super. 91, 260. 2 See Martin v. Great Northern R., 16 C. B. 179 ; Central R. v. Perry, 58 Ga. 461 ; AVarren v. Fitchburg R., 8 Allen, 227 ; Wheelock v. Boston & Albany R., 105 Mass. 203 ; McDon- ald V. Chicago R., 26 Iowa, 124; Knight V. Portland R., 56 Me. 234; Angell Carriers, § 521, 5th ed., La- throp's note ; Chicago R. v. Dewey, 26 111. 255. The carrier's duties in these respects are found chiefly as- serted in the instance of railways. lb. 8 Commonwealth v. Power, 7 Met. 596. 677 § 64:0 THE LAW OF BAILMENTS. [PAET YII. the car or vehicle is ready to receive them. Into any railway station house, while it is kept open, the public have a general license to enter ; but they must not misconduct there ; and, moreover, this is a license revocable as to any and all persons who are neither officers nor employes of the company, nor have legitimate business there, growing out of the operation of the road. A person thus present must, upon request made by the company's agent in charge of the depot, explain satis- factorily his purpose in remaining there, or else leave the premises at once.^ A passenger-carrier is not bound to re- ceive his patrons into the depot unreasonably long before the journey is to commence, nor to permit even these to stay without first procuring the requisite tickets, if the means of procuring them be at hand.^ Persons unworthy of accept- ance as passengers, and all riotous, turbulent, and disorderly characters, ought to be kept out of such premises altogether ; though if an improper party be once accepted as a passenger, the carrier cannot with freedom proceed to treat him as a tres- passer or eject him, on the score of habitual misbehavior alone.^ § 640. Suitable Means and Appliances for the Transportation. — 2. The passenger-carrier is bound to have all means and appliances highly suitable to the transportation. There is here no undertaking implied that the vessel, car, or vehicle shall be, in all respects, perfect for its purpose, or, in other 1 Barker v. Midland R., 18 C. B. who there seek repose, as to the 46 ; Harris v. Stevens, 31 Vt. 79 ; peace and quiet of the vicinity, as Commonwealth v. Power, 7 Met. 601. to repress and prohibit all disorderly 2 lb. And see Hall v. Power, 12 conduct therein ; and of course he Met. 482. has a right, and is bound, to exclude 8 See Commonwealth v. Power, from his premises all disorderly per- 7 Met. 596 ; Hall v. Power, 12 Met. sons, and all persons not conforming 482. In Commonwealth v. Power, to regulations necessary and proper supra, p. 601, it is observed by Shaw, to secure such quiet and good order." C. J. : "An owner of a steamboat or The station and means of ingress railroad, in this respect, is in a con- should be reasonably guarded against dition somewhat similar to that of an undue crowds and vicious and an- innkeeper, whose premises are open noying persons ; but an extra police, to all guests. Yet he is not only em- against unexpected dangers a.nd an- powered, but he is bound, so to regu- noyances, cannot be insisted on. See late his house, as well with regard to 77 Ala. 591 ; Cannon v. Midland R., the peace and comfort of his guests, 6 L. R. Ir. 199. 678 CHAP. II.] CARRIERS OF PASSENGERS. § 640 words, free from all defects likely to cause peril, such as the utmost skill, care, and foresight could not have detected. But seaworthiness or roadworthiness is here implied, as it would appear, to the extent of providing vehicles of suitable kind and condition, with all the skill, diligence, and foresight consistent with the nature and extent of the business.^ Simi- lar considerations apply to the other means connected with conveyance, as, for instance, to the horses and harness em- ployed for travelling by hack or stage-coach ; ^ or to the road-beds, switches, tracks, and other equipments of a mod- ern railway ;^ or to the rigging, small boats, smoke-stacks, and other usual articles and apparatus found upon steamboats or other vessels which carry passengers ; or to the engines, fuel, water, and machinery for steam locomotion.* Since there is no absolute warranty on liis part against defects, the carrier of passengers cannot be blamed for an injury caused, without actual fault, by the breaking of an axle through some latent defect ; ^ nor where a switch breaks through some defect that the most careful inspection would not have detected ; ^ nor where, under like conditions, a rail 1 Readhead v. Midland R., L. R. L. R. 4 Q. B. 379 ; Taylor v. Grand 2 Q. B. 412; L. R. 4 Q. B. 379; Trunk R., 48 N. H. 304 ; McKlroy r. Wright V. Midland R., L. R. 8 Ex. Nashua & Lowell R., 4 Cash. 400. 137, 140 ; Hyman v. Nye, 6 Q. B. D. * Simmons v. New Bedford Steara- 685. boat Co., 97 Mass. 301 ; Swarthout * Bremner v. "Williams, 1 C. & P. v. New Jersey Steamboat Co., 48 414 ; Christie v. Griggs, 2 Camp. 79 ; N. Y. 209 ; Carroll v. Staten Island Story Bailm. §§592,693; Angell R., 58 N. Y. 120. Carriers, §534; Stokes v. Salton- ^ Readhead v. Midland R., L. R. stall, 13 Pet. 181 ; Peck v. Neil, 2 Q. B. 412 ; L. R. 4 Q. B. 379 ; In- 3 McLean, 22; Stockton v. Frey, galls v. Bills, 9 Met. 1, a leading 4 Gill, 400 ; Ingalls v. Bills, 9 Met. 1 ; authority, where the question is Farisli v. Reigle, 11 Gratt. 097; Fair- carefully di.scussed by Hubbard, J. child V. California Stage Co., 13 Cal. Contrarj' to this view is the New 699 ; U. S. Dig. 1st Series, Carriers, York case of Alden v. New York 340. And see Simson v. London Central R., 26 N. Y. 102 ; since, Omnibus Co., L. R. 8 C. P. 390, however, fairly repudiated in Mc- where a kicking horse was not prop- Padden v. New- York Central R., 44 erly secured. N. Y. 478. And see Hegeman v. 3 Great Western R. v. Braid, Western R., 3 Kern. 9. 1 Moore P. C. n. s. 101 ; Readhead « Ladd v. Now Bedford R., 119 V. Midland R., L. R. 2 Q. B. 412; Mass. 412. 679 § 641 THE LAW OF BAILMENTS. [PART VII. breaks or becomes displaced;^ nor where the injury was caused by some malicious stranger, without any negligence of the carrier ; ^ nor, of course, where vis major, like a severe frost, or violent storm or flood, occasions the breaking or dis- placing in question ; and the accident was through no fault of the carrier.^ § 641. The Same Subject. — But the existence of the latent defect presupposes that the carrier has faithfully performed his duty of inspection. According to some authorities, ex- amination ought to be made previous to each journey ; * but this statement was made with reference to horse and stage conveyance ; and prevailing custom and the mode of convey- ance may have much to do with determining the method and frequency of such inspection in modern transportation, where that examination which the utmost diligence, prudence, and foresight should exact must needs be by different agents and at different times and places. Official inspectors are pro- vided for vessels, upon whose certificate the carrier ought to be allowed to place some reliance, irrespective of examination by his own agents. In railway travelling an intermediate inspection of the cars is often made at way-stations ; but such examination is necessarily hasty, if the train is to proceed on due time, and in justice it can hardly be a minute one ; ^ other more general modes of careful inspection, however, as to tracks, bridges, road-beds, and rolling stock should be scrupu- lously observed.^ As to the carrier's duty of adopting new inventions and 1 Taylor v. Grand Trunk R., 48 apply safeguards or avoid undue ex- N. H. 304 ; Pittsburgh R. v. Williams, posure after vis major operated, so 74 Ind. 462. that the carrier's own knowledge 2 Deyo V. N. Y. Central R., 34 charged him. Louisville R. w. Thomp- N. Y. 9. son, 107 Ind. 442. 3 McPadden v. New York Central * Story Bailm. § 592. And see R., 44 N. Y. 278 ; Frink v. Potter, 17 Sharp v. Grey, 9 Ring. 457. 111. 406 ; Ellet v. St. Louis R., 76 Mo. ^ gee Richardson v. Great Eastern 518. Otherwise, semble, if the en- R., 1 C. P. D. 342, reversing s. c. gineer had reason to suspect the L. R. 10 C. P. 486. danger and omitted due precautions. ^ See Louisville R. v. Snider, 117 76 Mo. 518. Or if there was fair Ind. 435. opportunity to inspect properly and 680 CHAP, ir.] CARRIERS OF PASSENGERS. § G42 improvements, every new and possible preventive against ac- cident need not be taken. Thus it has been held, in the case of a ferry, that the company is not bound, as a matter of law, to provide a new and expensive "drop," although other com- panies use such a contrivance.^ But for using defective car- riages and appliances the passenger-carrier is held responsible, irrespective of their manufacture or ownership ; and, as a rule, he must discard whatever is insecure or ill-adapted to the times, and, so far as the general duty of extreme care on his part requires, keep pace with science and modern improve- ments.2 Nor can the want of pecuniary means justify the carrier's negligence in this respect ; for when he cannot afford to transport passengers after the standard the law demands for their safety, he should rather cease transporting them altogether.^ § 042. Suitable Provision for Safety and Comfort in Trans- portation. — 3. The passenger-carrier is bound to transport with reasonable provision for the safety, comfort, and security of the passengers. Many of the considerations which were adduced with respect to the conveyance of goods will here apply.** That the passenger should be provided with a place is a rule duly enforced, as we have shown, though with more especial reference to those who carry a long distance.^ But while the passenger ought to take his proper place, and not sit where it would be unsafe to travel, the carrier is not freed from responsibility for exercising due care towards one who occupies an unusual but not ordinarily an unsafe place ; ^ and, as to unsafe places, the carrier should not knowingly permit the passenger to ride there at all.'^ In loading the car, vessel, or other vehicle, the passenger- 1 Le Barron v. East Boston Ferry * Supra, §§ 401-404. Co., 11 Allen, 312; Meier v. Tenn. ^ Supra, § 623. R., 64 Penn. St. 225. « Keith v. Pinkham, 43 Me. 501. 2 lb. ; Hegenian v. Western R., ^ But the passenger's own care- 3 Kern. 9 ; St. Louis R. v. Valirius, lessness might defeat his action 56 Ind. 511 ; 27 Fed. R. 724. against the carrier, as will presently 3 See Taylor v. Grand Trunk R., be seen. 48 N. H. 304. 681 § G43 THE LAW OF BAILMENTS. [PAIIT VII. carrier must dispose his passengers so as to promote their reasonable comfort and safety ; and under no circumstances is he permitted to overload either with passengers or their baggage, for this invites danger.^ Where a long continuous transportation is by land, ac- commodation for regular meals and refreshment should be provided the passengers, which duty is usually fulfilled by stopping a reasonable time at convenient stations ; though saloon and refreshment cars are sometimes attached to rail- way trains.^ In water transportation, where the means of stopping are not convenient, passengers ought, on any transit of length, to have the means of procuring meals on board.^ Accommodations for sleeping, too, should, in this latter case, be provided ; and one who travels by night on a steamer without paying specially for a state-room may properly expect a berth .4 § 643. The Same Subject ; maintaining Order on Board. — The carrier of passengers is bound to exercise the utmost vigilance and care in maintaining order, and guarding the passengers against violence, from whatsoever source arising, which might reasonably be anticipated or expected in view of the number and character of the persons on board and all the other attendant circumstances of the transportation.^ Hence, if a company of soldiers be received on board a steamship, 1 Story Bailm. § 594 ; Aston v. dations are subject to reasonable Heaven, 2 Esp. 533 ; Farish v. rules ; and, as for meals, officers of Reigle, 11 Gratt. 697 ; Derwort v. the vessel may have their own table Loomer, 21 Conn. 246 ; 161 111. 190 ; apart from passengers. Ellis v. Nar- 149 N. Y. 336. Statutes which spe- ragansett Steamship Co., Ill Mass. cially regulate and limit the number 146. The master of a vessel has no of passengers to be taken on board a right to put a passenger on short vessel cannot be disregarded with allowance by way of some petty dis- impunity. See Story Bailm. § 612 ; cipline. Abb. Adm. 242. U. S. Rev. Sts. §§ 4252-4289 ; supra, * TheOriflamme, 3 Sawyer (U. S)., § 637. 397. 2 Peniston v. Chicago R., 34 La. ^ gge Shipman, J., in Flint v. Ann. 777. Norwich Trans. Co., 6 Blatchf. 158; 3 Ellis V. Narragansett Steamship s. c. 34 Conn. 554 ; Norwich Trans. Co., Ill Mass. 146 ; Bryant v. Rich, Co. v. Flint, 13 Wall. 3. 106 Mass. 180. But these accommo- 682 CHAP. II.] CARRIERS OF PASSENGERS. § 643 even though Government has in a measure compelled their conveyance, the safety of other passengers accepted in the ordinary course by the carrier must be respected with ex- ceeding solicitude.^ Disorderly scuffles, scandalous and im- moral conduct, fights, brawls, personal insult and annoyance, and all wanton disregard of reasonable rules of transporta- tion which are designed to promote the general comfort and security, must be firmly repressed by the carrier and his ser- vants, who should not be wanting in great vigilance and care to prevent disturbance.^ And, that the carrier's servants need not be over-timorous in enforcing the rules of decency and good order, it is but fair to hold that a person who is so far intoxicated that, by act or speech, he is becoming decidedly offensive or annoying to other persons, may be expelled from the car or vehicle, even before he has actually assaulted or insulted any one ; provided this be done with as much human- ity and consideration as the circumstances permit.^ Misbe- havior, indeed, or insanity, or loathsome disease, may be manifested in an impersonal manner, so as to annoy, dis- commode, or endanger the safety of other passengers, with- out being directed against a particular individual ; though we are not to suppose that one regularly accepted as a pas- senger can be expelled merely for previous misbehavior.'* 1 lb. Cf. McClenaghan v. Brock, dresses insulting remarks to his fel- 5 Rich. 17. low-passengers, provided he remains 2 New Orleans K. v. Burke, 53 quiet and inoffensive after being Miss. 200 ; White v. McDonough, 3 admonished by the conductor. Any Sawyer, 311; 22 Fed. R. 413; 23 conductor may disarm and confine a Fed. R. 637. passenger who is dangerous while in ' See Vinton v. Middlesex R., 11 delirium tremens. 22 Fed. R. 413. Allen, .304, where such expulsion was Or may have him expelled and handed held justifiable in the instance of a over to the public authorities. Atch- journey upon a street railway. And ison R. v. Weber, 33 Kan. 543. see Murphy v. Union R., 118 Mass. If a passenger on shipboard proves 228 ; Railroad v. Valleley, 32 Ohio to have small-pox or other infectious St. 345 ; 87 Me. 387. disease, it is right for the captain to Yet, on this point of dealing with isolate him, having due regard to the drunken men, Putnam v. Broadway patient's comfort and welfare. 10 R., 56 N. Y. 108, holds that a street- Ben. 512. car conductor is not bound to eject * See Mr. Ju.stice Davis in Pear- an intoxicated passenger who ad- son v. Duane, 4 Wall. C05 ; Coppin 683 § G44: THE LAW OF BAILMENTS. [PAET VII. But in general, the carrier's liability for disorderly out- breaks or other dangerous exposure of an unusual kind depends greatly upon his efforts and his means of antici- pating and guarding against the consequences.^ So, if the passenger-carrier was overpowered by a crowd, too great and coming too suddenly for the usual precautions to suffice against them, he should not be responsible for his in- ability to repress disturbance and violence among them ; since no passenger-carrier is bound to provide a police force against such unexpected emergencies. But a lack of vigilance in admitting such persons, or of prudence and bravery in deal- ing with them, ought not to be manifested on his part to the detriment and danger of other passengers ; and where a railway-conductor, after admitting such persons, leaves them in a car to riot and annoy, and proceeds on the journey, going into another part of the train, when he might prudently switch the car off or stop the train and have the offenders summarily dealt with, the carrier cannot expect to stand exonerated.^ Nor is a carrier justified in disregarding dangers against which he was amply warned, and in failing to protect his patrons accordingly. The conductor of a railway-train or captain of a steamboat should be the conservator of order and good morals ; and the appeal of an aggrieved passenger for protection against the violence or annoyance of others on board ought not to go unheeded.^ § 644. The Same Subject ; Good Treatment by Carrier's Ser- vants. — Nor is it only good treatment from fellow-passengers and from strangers coming upon the car, vessel, or vehicle V. Braithwaite, 8 Jut. 875 ; supra, R. v. Pillow, 76 Penn. St. 510. See §§ 623, 625. Putnam v. Broadway R. , 55 N. Y. 1 Felton V. Chicago R., 29 N. W. 108. Where a passenger is in danger 618. of assault, the conductor should either 2 Pittsburg R. v. Hinds, 53 Penn. try to protect him where he is or have St. 512. See Weeks v. New York him go where he will be secure. 88 Central R., 72 N. Y. 50. And, as to N. C. 536. As to the carrier's duty street railways, see Holly u. Atlanta in carrying "non-union" workmen Street R. (Ga.), 7 Rep. 460. and others at the peril of having the 3 New Orleans R. v. Burke, 53 train mobbed, see Chicago R. v. Miss. 200 ; 4 Mackey, 111 ; Pittsburg Pillsbury, 123 111. 9. 684 CHAP. II.] CARRIERS OF PASSENGERS. § 644 that each passenger is entitled to, but he sliould be well treated by the passenger-carrier himself and all whom such carrier employs in and about the vehicle in the course of the journey. If the general doctrine of master and servant may be said to apply here, it applies with a very strong bias against the master, even where the servant's acts appear to be ag- gressive, wanton, malicious, and, so to speak, such as one's strict contract of service or agency does not readil}^ ini[)ly.^ Such is the general construction, so long as the offensive words and acts of a conductor, brakeman, porter, steward, waiter, or other such servant complained of, were said or committed in the usual line of duty ; while, for instance, scrutinizing tickets and determining the right to travel, excluding offenders and trespassers, and enforcing, or professing to enforce, the car- rier's rules aboard the vehicle ; and this, whether the trans- portation of passengers be b}^ land or water.^ If the carrier knowingly retains the servant who is guilty of misconduct towards the passenger, all the more clearly does he, b}' his sanction, make the wrongful act his own.^ Yet, in some ex- treme instances of wanton injury by the carrier's servant, the usual doctrine of agency or service has been maintained, that, for wrongful acts committed beyond the scope of employ- ment, the servant is as much a stranger to the carrier not contributing to the wrong as any third person.* Elsewhere 1 See the able opinion in Pendle- 21 Oliio St. 518 ; Bryant v. Kicli, lOG ton V. Kinsley, 3 Cliff. 410, per Mr. Mass. 180, where the aggressors on a Justice Clifford, and cases cited ; steamboat were the steward and Gasway v. Atlanta R., 58 Ga. 210 ; table-waiters ; Jackson v. Second Angell CaiTiers, 5th ed. §572, and Avenue R., 47 N. Y, 274; 43 La. Lathrop's note. Ann. 34 ; 80 Ga. 312. 2 Moore v. Metropolitan 11., L. 11. ^ Gasway v. Atlanta R., 58 Ga. 8 Q. B. 36 ; Bay ley v. Manchester 216 ; Goddard v. Grand Trunk R., R., L. R. 7 C. P. 415 ; L. R. 8 C. P. 67 Me. 202. 148 ; Pendleton v. Kinsley, 3 Cliff. * Little Miami R. v. Wotmore, 19 416, the case of a transportation by Ohio St. 110; Isaacs v. Third Ave- water; Goddard v. Grand Trunk R., nue R., 47 N. Y. 122, where astreet- 57 Me. 202 ; Hanson u. European R., railway conductor pushec'. a lady 62 Me. 83; McKinley v. Chicago R., passenger off the car while the car 44 Iowa, 314 ; Sherley v. Billings, 8 was in motion. But, even thus, on Bush, 147; Moore v. Fitchburg R., ordinary principle, the master, as it 4 Gray, 465 ; Passenger R. v. Young, seems, must not have contributed to 685 § G44 THE LAW OF BAILMENTS. [PART VII. the carrier's full liability for servants is asserted.^ But at all events, for an injury to the passenger by the carrier's servant under circumstances which absolve the latter from all blame, the carrier cannot be sued in damages.^ Nor should the pas- senger by misconduct provoke the offence complained of.^ The carrier's servants ought to be trustw^orthy, capable, and skilled in the performance of the several duties assigned them. Thus, only careful drivers of reasonable skill and good habits should be employed in journeying by stage-coach or hack ; * while those who drive on horse-railways ought to understand the peculiar modes of guiding animals in such conveyances, and keep alert in stopping to take and leave pas- sengers ; and these considerations apply likewise to an om- nibus-driver. Engineers, conductors, switchmen, brakemen, and all others employed in railway locomotion, must be com- petent for their several duties ; on board a vessel, the officers and crew must each understand well the duties of his post ; and all responsible employes should be temperate and sound- minded while on duty.^ In general the passenger-carrier is bound by the acts of his servants and subordinates in the course of their employment, as for his own, and must answer for their negligent or unskilful performance ; and this, whether the carrier be a person or a corporation.^ the injury by his own culpable negli- lany, 30 Tex. 479 ; Stockton v. Frey, gence or misconduct. See stipra, 4 Gill, 406 ; Farish v. Reigle, 11 §§ 19, 30, 108. Gratt. 697 ; Angell Carriers, §§ 540, Words of provocation alone will 541. not justify such servant's assault ^ Angell Carriers, §§ 540, 541. upon a passenger ; but otherwise ^ See Story Bailm. § 596 ; Angell with a menace of violence, and espe- Carriers, 5th ed. §§ 572-579, and cially of death. 142 U. S. 18. Latbrop's notes ; Tebbutt v. Bristol 1 Dwindle u.N.Y. Central R., 120 K., L. R. 6 Q. B. 73; Waland v. N. Y. 117. Cf. §§ 429, 430, as to Elkins, 1 Stark. 272 ; Stockton v. goods. Frey, 4 Gill, 406 ; § 644. 2 New Orleans R. v. Jope, 142 For negligence and misconduct the U. S. 18. master, as well as the owners of a 3 42 Fed. 787. vessel, may be held responsible. * Stokes V. Saltonstall, 13 Pet. White v. McDonough, 3 Sawyer, 181 ; Tuller v. Talbot, 23 111. 357 ; 311. Frink v. Coe, 4 Greene (Iowa), 555 ; One partner in such carriage may Story Bailm. § 593 ; Sawyer v. Du- likewise, on the usual doctrine of 686 CHAP. II.] CARRIERS OF PASSENGERS. § 645 § G45. The Same Subject ; Care iu Conducting the Transpor- tation. — There are certain duties to be observed on the road and in the course of active carriage which no carrier who per- forms with a just sense of his public obligations can afford to neglect. These vary, of course, with the nature of the jour- ney and the means of transportation. A coachman or hack- man, for instance, must handle his reins well, and guide his animals skilfully, obey the rules of the road, turn out for other vehicles, give due warning of dangerous obstacles, i^ur- sue his journey at a fair pace without racing or driving rap- idly over dark and dangerous places, use lights by night, and, in short, exercise at all times a sound and reasonable discre- tion to avoid danfjers and difficulties.^ The rules of the road are quite commonly regulated by statute ; in America, each party is expected to bear or keep to the right in meeting, while it is known to be the reverse in England ; and one who drives must look out not to run down foot-passengers who are crossing the highway .^ These rules yield somewhat to cir- cumstances, and come in aid of that coolness and good judg- ment which for safe driving are always indispensable.^ The carriage of passengers by steam involves the employ- ment of various special precautions against accident. On a railway the tracks must be kept clear and in safe condition ; switches must be in good order and properly adjusted ; a sys- tem of signals must be established, especially at intersecting tracks, wliich the engineer and those in charge are bound to regard ; the progress of approaching trains must be watched, partnership, be held liable for the Nashville R. v. Messino, 1 Sneed, negligence of another. Many of our 220 ; Stokes v. Saltonstall, 13 Pet. earlier cases relating to stage part- 181 ; Angell Carriers, §§ 543-547 ; nerships, which are now somewhat Dudley v. Smith, 1 Camp. 1(>7. obsolete, are set out at length in 2 Story Bailui. §§ 599, oOfla ; Ken- Angell Carriers, §§ 580-589. nard v. Burton, 25 Me. 39. 1 Crofts V. Waterhnuse, 3 Ring. 3 n,. And see Angell Carriers, 321 ; Wordsworth v. Willan, 5 Esp. §§ 549-556 ; Lovejoy v. Dolan, 10 273 ; Story Bailm. § 598, and cases Cush. 495. To leave the horses in cited ; Parish v. Reigle, 11 Gratt. the road unfastened and unattended 097 ; Laing v. Colder, 8 Penn. St. 479 ; is carelessness iu the driver. 66 McKinney v. Neil, 1 McLean, 540 ; Tex. 205. 687 § 646 THE LAW OF BAILMENTS. [PART VII. and any disarrangement of time-tables, through obstruction or otherwise, noted, in order that collision may be avoided ; signals of danger must be prescribed and used in time of need ; the whistle, the bell, the head-lights, the brakes, must be in good order and well managed ; engineers, firemen, and brakemen, as well as the conductor, must be each at his post ; railway crossings must be watched, and their gates or guards suitably constructed; nor must animals or obstructions be run over heedlessly, nor broken tracks or dangerous places be jumped, nor the train be recklessly driven, whereby those on board receive injury.^ In these and various other kindred respects the carrier is bound, according to custom and pre- vailing modes of business, to exert the utmost practicable care, diligence, and foresight; and it is the same, whether the object be to provide against the negligence and miscon- duct of the company's servants, or the negligence and mis- conduct of any stranger.^ Where there is special danger the passengers should be duly warned. § 646. The Same Subject. — Passenger-carriers by water must observe the usual rules which admiralty or legislation has promulgated. Thus, in order to lessen the dangers of collision, certain rules of navigation are established, which cannot be transgressed without rendering the offending vessel strictly liable for all disastrous consequences. These rules, which relate chiefly to the use of lights and fog signals in dark and foul weather, and to the method of steering and the pre- cautions needful for observance when approaching other ves- sels, may be fully studied in general works on admiralty and shipping.^ There is a law of the road, so to speak, on the 1 Buxton V. North-Eastern R., 3 gtory Bailm. §§605-612, and L. R. 3 Q. B. 549 ; McElroy v. Nashua cases cited ; 1 Pars. Shipp. 548 ; & Lowell R., 4 Cash. 400 ; Tyrrell v. Maude & Poll. Shipp. 3d ed. 449-465 ; Eastern R., Ill Mass. 546 ; Sullivan The Galatea, 92 U. S. Supr. 439 ; 25 V. Philadelphia R., 30 Penn. St. 234. & 26 Vict. c. 63, and Orders in Coun- 2 See Gray, J., in Simmons v. cil, Jan. 9, 1863 ; U. S. Rev. Sts. New Bedford Steamboat Co., 9T §42-33; Angell Carriers, 5th ed. Mass. 368 ; Pittsburg R. v. Hinds, 53 §§ 633-670. Penn. St. 512 ; Eaton v. Boston & Lowell R., 11 Allen, 500. 688 CHAP. II.] CARRIERS OF PASSENGERS. § 047 ocean highway, wliich sailing-vessels and steamers must ob- serve reciprocally and with reference to oihers of their own denomination.^ Canal-boats, and ferries, too, and boats or small craft, engaged in inland or coasting transportation of freight or passengers, may be found subjected to wholesome requirements of a similar character.^ In all instances of pub- lic carriage by water, the general principles of legal respon- sibility are those applicable to land-carriers, with only such modifications as naturally result from employing a different and peculiar means of transportation.-^ § G47. The Same Subject. — The powerful agency of steam in transportation calls for the employment of engineers skilful and well trained in its use, — a class of men whose service in driving our modern railway-trains demands, in other respects, quite a high order of intelligence, besides steady habits and a courageous disposition. Steam and tlie use of steam machin- ery for propelling vessels invite special danger to passengers, which the inspection acts of Congress aim in a measure to avert. Where, because of the carrier's remissness, or his disregard of such legislation, injury occurs, whether it be through the use of improper machinery and boilers, or reck- less or unskilful management, so that scalding steam escapes, or the boiler bursts, the carrier should strictly respond;* and, in general, carriers who use steam should use the ut- 1 Story Bailm. § 611 ft, and cases U. S. Supr., per Mr. Justice Clif- cited; The Carroll, 8 Wall. 302 ; The ford; U. S. Rev. Sts. §§4281-4289. City of Brooklyn, 1 P. D. 270; The The prevailing tendency, too, is, in Sea Gull, 23 Wall. 165; The Free England, to relieve ship-owners from State, 91 U. S. 200. liability for collisions which occur 2 See Farnsworth v. Groot, 6 Cow. without fault or privity on their 698 ; Story Bailm, § 606 ; Angell Car- part ; as in case the pilot is solely riers, §§ 630, 637. to blame. The Obey, L. R. 1 Add. 8 In case of colli.sion caused by & Ecc. 102 ; The Velasquez, L. R. the fault of one vessel, the modern 1 P. C. 494. See The Merrimac, 14 English and American rule renders Wall. 199. the owners of the offending vessel ■» Carroll v. Staten Island R., 58 liable to the extent of their interest N. Y. 126 ; U. S. Rev. Sts. §§ 4399- in the ship and freight. Walker v. 4500; Angell Carriers, § 629 ; Steam- Transportation Co., 3 Wall. 159; boat. New World v. King, 16 How. Story Bailm. § 608 d ; The Atlas, 93 409. 44 689 § 648 THE LAW OF BAILMENTS. [PART VII. most care and diligence to avert personal injury from this cause.^ Precautions needful for the more important methods of transit are frequently prescribed by statute, and must be fol- lowed accordingly, or the carrier will be culpably negligent. But, as it has been well observed, compliance with positive statute regulations does not exempt the carrier from responsi- bility for neglect to observe all other reasonable precautions.^ Thus, the inspection of the boiler and machinery of a passenger- steamer, and the certificate of the inspector that they fulfil the requirements imposed by act of Congress, do not, of them- selves, impair the common-law right of action by persons injured through the carrier's negligent or unskilful manage- ment.^ Nor does it sufficiently exonerate a railway carrier from liability for injury caused at a railway crossing, that a sign was put up and the bell rung, as an act of legislation required.* As to the rate of speed, the carrier may usually fix this for himself, provided that the risks of the travelling public be not unduly increased.^ § 648. Duty to carry -without Unreasonable Deviation or De- lay. — 4. The passenger-carrier is bound to proceed to the place of destination by the agreed or customary route without unreasonable deviation or delay. Hence, in the place and time of starting, modern railway companies, steamers, and other leading classes of carriers are bound by their published schedules and time-tables ; ^ these, and their posters and ad- vertisements generally, being in the nature of a public offer 1 See Philadelphia R. v. Derby, See Augusta E. v. McElmurry, 24 14 How. 482, 486. Ga. 75. 2 Simmons v. New Bedford Steam- ^ Indianapolis R. v. Hall, 106 111. boat Co., 97 Mass. 368, per Gray, 371. J. 6 Hobbs V. London R., L. R. 10 s Swarthout v. New Jersey Steam- Q. B. Ill ; Denton v. Great Northern boat Co., 48 N. Y. 209. R., 5 E. & B. 860 ; Angell Carriers, * Bradley v. Boston & Maine R., §527 a; Sears v. Eastern R., 14 2 Cush. 539; Carpue v. London R., Allen, 433; Le Blanche v. London 5 Q. B. 747 ; Angell Carriers, § 540 ; R., 1 C. P. D. 286. As to deviation Galena R. v. Loomis, 13 111. 548 ; by a stage-driver, see McKinney v. Payne v. Chicago R., 44 Iowa, 236. Neil, 1 McLean, 540. 690 CHAP. II.] CARRIERS OF PASSENGERS. § 649 wliicli patrons and passengers are understood to accept.^ There may likewise be special representations of this char- acter to bind the carrier to an individual passenger as by a special undertaking.^ And so momentous becomes this duty, both with reference to enabling a passenger to save time and meet his own engagements at his journey's end, and (as con- cerns particular modes of transportation) for guarding against collision and disaster on the way, that certain classes of car- riers, railway companies more especially, are liable to suit for damages, if they do not run according to their official time-tables. The duty applies with reference both to going over the whole route within the prescribed time, and mak- ing intermediate stops for the purpose of putting off or taking aboard passengers at specified times and specified way places.^ Upon large transporters of passengers, like railway companies, there appears, in fact, to rest a public duty of giving some sort of public notice of the running times ; which duty is commensurate with supplying such needful information that travellers of ordinary intelligence may, by reasonable care and caution, conform themselves to its terms.* § 649. The Same Subject ; Published Time-Tables, etc. — The publication of time-tables indicates, however, no more than a reasonable conformity thereto and reasonable diligence, sub- ject to those possible casualties and mishaps against which ordinary skill and prudence on the carrier's part are unavail- ing.5 Nor is the case an unusual one where delay or devia- 1 Heim v. M'Caughan, 32 Miss. ^ Le Blanche v. London R., 1 C. 17. P. D. 28G; Gordon v. Manchester R., 2 Hobbs V. London R., and other 52 N. H. 97 ; McClary v. Sioiix City cases supra. R. , 3 Neb. 44 ; Savannah R. v. 8 Hobbs V. London R., L. R. 10 Bonaud, 58 Ga. 180. In the matter Q. B. Ill ; Heirn v. M'Caughan, 32 of running precisely on time, courts Miss. 17 ; Chicago R. v. George, 19 incline to be lenient to the carrier, 111. 510. unless disaster appears plainly due * See Page v. New York Central to his fault in this respect. Artz v. R., 6 Duer, 523 ; Barkers. New York Chicago R., 44 Iowa, 284 ; Campbell Central R., 24 N. Y. 599 ; 8 E. L. & v. Chicago R., 45 Iowa, 76 ; State v. Eq. 362. Philadelphia R., 47 Md. 76. 691 § 650 THE LAW OF BAILMENTS. [PAET VIZ. tion would be excusable and highly proper : the main concern being to transport at all events with sedulous regard to life and limb; and one disarrangement, excusable of itself, in- volving many delays, particularly where the transportation, as by railway, is upon fixed tracks and attended with pecul- iar dangers and difficulties. Further than this, it is to be understood that the published time-table may be changed by the carrier upon giving reason- able notice ; and knowledge of this change, brought actually home to a party in advance of his becoming a passenger, ought, in general, to bind him. But, in order to make the change safely as to the public, such change of time should be as publicly made as the original announcement; and hence a railway schedule, published without open limitation or reser- vation as to the length of time it shall continue in force, is insufficiently changed by mere handbills to that effect posted in the depot and cars.^ We are to note, also, that a carrier's undertaking to run at a certain time is not usually to be inferred from tickets or the language of a ticket-agent, but rather from time-tables and a public schedule.^ Nor is the mere statement, by the carrier or his servant, of the usual time required for running through, an absolute promise to carry the person through in that time.^ § 650. The Same Subject ; Passenger's Remedies for Breach of Duty. — Upon the failure to start or run the conveyance ac- cording to the carrier's undertaking is founded the passenger's action to recover such damages as he may have sustained in con- sequence, so far as the damage be the natural and justly fore- seen consequences of the carrier's breach of contract.* Under 1 Sears v. Eastern R., 14 Allen, 2 jjurst v. Great Western R., 19 433. Usage to this effect, though C. B. n. s. 310; Pittsburgh R. v. pursued by the company several Nuzum, 50 Ind. 141. See Chicago years, cannot justify this practice. R. v. George, 19 111. 510. lb. That general restrictive notices ^ strohn v. Detroit R., 23 Wis. by a carrier are not favored in this 126. country by way of establishing spe- * Denton v. Great Northern R., cial contracts, see supra, § 627. 5 E. & B. 860 ; Hobbs v. London R., 692 CHAP. II.] CARRIERS OF TASSEXGERS. § 651 strong circumstances, the passenger suffering by the carrier's unreasonable detention and viohition of duty may choose an- other conveyance, or even, upon notice of his grievance, when a railway passenger, engage a special train to carry hira through ; but this concession of the law appears to be upon the suggestion that, where the carrier fails to do of his own motion what he was bound to do, the passenger may do it for him at liis cost ; ^ and the passenger as a rule should simply go by the best available means to his destination. It is cer- tainly more natural and just for the carrier, when a contin- gency arises where his own vehicle or car is found unable to perform the transit with due despatch and facility, to make his own transfer of the passengers, in order that his contract be performed towards them with as little loss to himself as may consist with justice to their interests ; otherwise, at dis- cretion, to proceed himself to the journey's end, with no more delay or deviation than he can reasonably help.^ A collision or injury occasioned proximately by running in disregard of time-tables renders the carrier liable for his negligence.^ § 651. Carrier's Duty as to Changes, "Way-Statioirs, etc. — A passenger-carrier ought to have changes of convej'ance and the names of way-stations so made known to passengers, by audible announcement or otherwise, and make such reason- able stops, that way passengers may change, or get off and on. L. R. 10 Q. B. Ill ; Hamlin r. Great tracts on behalf of himself and con- Northern R., 1 H. & N. 408 ; Sears v. necting carriers to send the passenger Eastern R., 14 Allen, 433 ; Thomp- through to a given destination ; and son r. New Orleans R., 50 Miss. 315. for damages resulting from the uon- And see The Zenobia, Abb. Adm. 80. performance or negligent perform- 1 See Le Blanche v. London R., ance of connecting carriers as to 1 C. P. D. 280. time, place, methods, and facilities, 2 Williams u. Vanderbilt, 28 N. Y. the passenger who has purchased 217. As to a common carrier's justi- his ticket under such an agreement liable deviation and delay, and the may sue accordinglj-. (S'?(;)m, §§015- duty of "transshipment," see, gener- 617 ; Quimby v. Vanderbilt, 17 N. Y. ally, suprn, §§ 367, 408. 306 ; Carter v. Peck, 4 Sneed, 203 ; 8 Chicago R. v. George, 19 111. Van Buskirk v. Roberts, 31 N. Y. 510. 601. The obligations we have consid- It is tortious for a passenger- ered apply to the carrier who con- carrier to carry off the passenger's 693 § 652 THE LAW OF BAILMENTS. [PART VII. according to their respective rights in the premises.^ But the carrier may prescribe and enforce reasonable rules to protect his interests against permitting passengers to get carelessly on or off, or to stop over.^ Nor is a railway carrier bound to put off or take on passengers, except at the regular stations.^ Passengers for more distant points have no right to get off and on the vehicle at intermediate stations ; but the universal and convenient practice of permitting this as to coaches, rail- ways, and steamers is not illegal, especially if the stop be a considerable one ; and the carrier ought to have his facilities suitable, and give such reasonable notice before starting again, that the passenger, if not actually delinquent, may resume his proper place.* § 652. Carrier's Liability for injuring a Passenger, — II. Now, to consider the liability of a passenger-carrier for injuring or killing a passenger he carries. Our examination of the car- rier's duties with reference to the journey indicates that, while the law may not be perfectly explicit, the standard of liability is set very high, — not so high as that of the common carrier of goods, who by the common law is reckoned an in- surer, except for act of God, act of public enemy, and act of customer or of public authority ; nor yet so low as that of ordinary bailees of goods for hire ; but (if resembling any bailee of chattels at all) most nearly analogous to that of a bailee for his sole benefit, who must bestow " great diligence " and is held to answer for what is termed " slight negligence." ^ Carriers of passengers do not warrant the safety of passengers, baggage against his assent, while 2 gee Breen v. Texas R., 50 Tex. deliberately refusing to carry the 43. If transfers are made, the car- passenger himself, according to con- rier undertaking to transport through tract. Holmes v. Doane, ?> Gray, 328. should pay due regard to supplying 1 Fuller r. NaugatuckR., 21 Conn. whatever transfer checks or tickets 558 ; Story Bailm. § 597 ; Penn. may be needful. 70 Ga. 368. Railroad v. Kilgore, 32 Penn. St. 3 Pittsburgh R. v. Nuzum, 50 Ind. 292 ; Southern R. v. Kendrick, 40 141. Miss. 374 ; Barker v. New York Gen- * State v. Grand Trunk R., 58 Me. tral R., 24 N. Y. 599 ; Thompson v. 170 ; Keokuk Packet Co. v. True, 88 New Orleans R., 50 Miss. 315 ; To- 111. 008. ledo R. V. Baddeley, 54 111. 19. See s Supra, §§ 15, 72. next chapter. 694 CHAP. II.] CARRIEPwS OF PASSENGERS. § 652 but they are held to the " highest " or the " utmost " degree of practicable care under the circumstances presented ; and to this standard a pliilantluoplc age must adhere.^ On the whole, the present liability, Avhich is fixed by public policy from considerations of humanity which can neither be wholly established nor wholly restrained by special contract, and for which the payment of fare should not constitute the considera- tion of safe transportation in any such sense as to exclude the law's protection of all who journey, may be in general defined as follows : The carrier of passengers must use the utmost forethought, care, and diligence towards the human beings travelling under his charge, consistently with the nature and extent of the business lie pursues ; and for the injurious consequences of even slight, or as some cases would say the slightest, neglect on the part of himself or his servants, he is, in this sense, liable, though not as one whose vocation imports a warrant of absolute safet}', or of indemnity against those disasters which the exercise of due forethought, care, and diligence on his part fails to avert.^ And for the personal damage which ensues to the passenger from wanton, malicious, and wrongful misbehavior on the part of the carrier, the carrier must strictly respond, if personally at fault ; and gen- erally, too, if the wrong were that of a carrier's servant act- ing in the course and scope of employment.^ In all such cases the question is one of proximate and direct cause of injury. 1 See ruling objected to as too Keokuk Packet Co. v. True, 88 111. strong in 141 Mass. 31, and 70 Mo. 608 ; 60 Tex. 205 ; 97 Mo. 647 ; 32 282 ; and as not strong enough in W. Va. 370. And see Story Bailm. 6Q. B. D. 685. " Strict diligence " §§ 590, 601; Waland v. Elkins, 1 is a correct statement. 93 Ala. 514. Stark. 272 ; Stockton v. Frcy, 4 Gill, 2 This statement, with its limita- 400; Clark v. Eighth Avenue K., 30 tions, is supported by most of the N. Y. 135 ; 92 Va. 400. authorities already cited, passim, in ^ Supra, § 644. See, more par- the course of this chapter. See, ticularly, Pendleton v. Kinsley, 3 more particularly, Ingalls t\ Bills, 9 Cliff. 416 ; Gasway v. Atlanta K., 58 Met. 1; Kcadhead v. Midland K., Ga. 210; 4 McCr. 371. Evidence L. R. 2 Q. B. 412 ; L. K. 4 Q. B. that one deported himself as con- 379 ; Philadelphia & Reading R. v. ductor or brakeman, etc., may justify Derby, 14 How. 408 ; Steamboat the conclusion that he was such. New World v. King, 10 How, 409 ; (Ark.) 2 S. W. 783. 695 §652 THE LAW OF BAILMENTS. [part vir. Where the injury in question was proximately occasioned by act of God or the public enemy,i or even by accident and misfortune in the lesser sense above implied, and without his own fault, the carrier is certainly absolved from liability. And reason and common justice demonstrate, too, that the carrier is exonerated when the proximate and moving cause of the injury was the act of the injured passenger himself; since the rule is general that no one can charge another in damages for negligently injuring him, where he himself failed to exercise due and reasonable care in the premises.^ But 1 See Sawyer v. Hannibal R., 37 Mo. 240 ; Story Bailin. § 602 ; Mc- Padden v. New York Central R.. 44 N. Y. 278. As in the sudden weak- ening of the track by a violent storm or freshet. Ellet v. St. Louis R., 76 Mo. 518. Or where a bridge gives way under like circumstances and before there is opportunity to guard against consequences. (Ind.) 8 N. E. 18; supra, §§640, 641. '■^ Gee V. Metropolitan R., L. R. 8 Q. B. 161 ; Todd v. Old Colony R., 7 Allen, 207 ; Railroad Co. v. Aspell, 23 Penn. St. 147 ; Pittsburg R. v. McClurg, 56 Penn. St. 294 ; Whee- lock V. Boston & Albany R., 105 Mass. 203; Higgins v. Hannibal R., 36 Mo. 418; 95 Ga. 736. The application of this doctrine occasions some very nice distinctions concerning contributory negligence in our later cases. 1. Thus, one who rides upon a train, or in a car, or upon the part of a vehicle, where, as a passenger, he is not duly in place, has been allowed to recover for an injury there sustained ; this, however, usually upon a state of facts showing some or all of such circumstances as, that it was a place which, per se, is not dangerous or unusual for passengers, or that the conductor or other person in charge silently or expressly permitted the 696 person to stay, knowing he was there, or that the action of the pas- senger only remotely occasioned the injury, or that the carrier's negli- gence was gross as compared with his own. See Jacobus v. St. Paul R., 20 Minn. 125; Caldwell v. Murphy, 1 Duer, 233 ; Spooner v. Brooklyn City R., 54 N. Y. 230; Creed v. Penn. R., 86 Penn. St. 139 ; Dunn V. Grand Trunk R., 58 Me. 187 ; Lucas v. Milwaukee R., 33 Wis. 41 ; Meesel v. Lynn R., 8 Allen, 234, as to riding on the platform of a horse-car ; Spofford v. Harlow, 3 Allen, 176 ; Angell Carriers, 5th ed. § 559 and Lathrop's note. But where a party rides upon a caboose solely used for other purposes, or a locomotive, or travels in some other plainly dangerous place, not intended for passengers at all, the inclination is against permitting the injured party to recover ; more especially if he is a trespasser and no passenger ; or if the company's proper official sanction was never given to riding in such a place ; or if the injury be directly traceable to exposing one's self to the peculiar hazards of such a place. See supra, § 621 ; Eaton v. Delaware R., 57 N. Y. 382 ; Union Pacific R. v. Nichols, 8 Kans. 505 ; 84 Me. 203. But cf. Whitehead v. St. Louis R., 99 Mo. 263. And it CHAP. 11.] CARRIERS OF PASSENGERS. § G52 due and reasonable care on the passenger's part need not be expressly and positively proved ; for the law will infer it seems fair, at least, to expect from the passenger in such cases an ex- ertion of care and diligence com- mensurate uniler the circumstances with the special exposure. Where the conductor had no knowledge and gave no consent, it cannot be con- tended tliat he ought to have discov- ered and ordered the passenger out. Kentucky Central R. v. Thomas, 79 Ky. IGO; 84 Me. 203. Nor is a station ageut the proper person to give such autliority to ride, apart from those in charge of the train. Little Rock v. Miles, 40 Ark. 298. Carriers should, however, be espe- cially careful not to knowingly per- mit young children to ride in dangerous places. See Brennan v. Fair Haven R., 45 Conn. 284. As to distinguishing between paying and non-paying passengers in this respect, see post. Generally speak- ing, a passenger who might ride in a le.ss dangerous place cannot excuse him.self for riding where it is far more dangerous, on the plea that he had no seat. 99 Penn. St. 492. And see Goodwin v. Boston R., 84 Me. 203 ; 30 Fla. 1. Riding upon the platform of a car in a fast-mov- ing train is carelessness. 84 Me. 203. But as to a street-car it might be different. 2. As to projecting one's head, arm, or body out of a car window, or doing other imprudent acts. It would be a passenger's own fault if he kept his arm thrust clear out of a railway car window ; for there is always danger from quickly pas.s- ing trains and obstructions of vari- ous kinds on a railway ; the same in a le.s.ser degree might be apprehended in any inland convej'^ance moving too rapidly for due warning of approach- ing objects. Injuries thus occasioned are due to tiie pa.ssenger's own negli- gence. And in some cases the slight- est voluntary projection of one's arm, head, or elbow out of the car window is deemed careless so as to defeat the right of recovery. Pittsburg R. V. Andrews, 39 Md. 329 ; Todd v. Old Colony R., 3 Allen, 18 ; 7 Allen, 207; Pittsburg R. v. McClurg, 56 Penn. St. 294 ; Louisville R. v. Sick- ings, 5 Bush, 1, and cases cited. And see as to upper compartment of a street-car (Md.), 5 Atl. 346. But in others, a slight projection of this sort is not taken to be conclusive against the passenger. For the duty of the carrier to journey sufficiently clear of all such obstacles, and con- struct and locate his tracks, build- ings, bridges, and cars accordingly, is deemed paramount ; so that his failure in these respects would be negligence so proximate or so gross in comparison with that of the pa.ssen- ger as not to defeat the latter' s right to recover. See Barton v. St. Louis R., 52 Mo. 253; Chicago R. v. Pon- drom, 51 111. 333 ; New Jersey R. v. Kennard, 21 Penn. St. 203 ; overruled in Pittsburg R. v. McClurg, sttpra. And more so if the arm, etc., does not protrude but merely rests on the sill. Carrico v. West Virginia R., 35 W. Va. 389. And it must, of course, be admitted, that an obstruction so close as to crash in the window, or break the car, or otherwise damage one sitting with his elbow, head, and person inside, imputes no careless- ness to the passenger, but rather puts the onus upon the carrier. 3. In moving about the vehicle, passing from one car into another, shutting windows or doors, or trying to regulate matters for his own com- 697 §652 THE LAW OF BAILMENTS. [part VII. where there is no appearance of fault, either positive or nega- tive, on his part, in the circumstances under which the injury was received.^ And it would appear that, if the carrier sub- stantially cause the disaster by his own fault, a slight aber- ration or confusion of mind on the part of the passenger at the instant of peril ought not to be turned to the advantage of the real offender, so as to relieve him of responsibility for the calamity .2 fort, the passenger might, by his carelessness, exonerate the carrier from liability. Adams v. Lanca- shire R., L. R. 4 C. P. 739. But on the other hand, if the carrier's fasten- ings be insecure, and the passenger's act not an unreasonable one, the blame of the accident should fairly rest upon the carrier. Gee v. Metro- politan R., L. R. 8 Q. B. 161. And see Louisville R. v. Kelly, 92 Ind. 371, where a passenger was jostled carelessly by a brakeman, while go- ing into a forward car to find a seat as the conductor had directed. 4. Intoxication of the passenger, contributing to his injury, may de- bar him from recovering against the carrier. But intoxication which does not contribute to the injury will not prevent him from maintaining his action. Maguire v. Middlesex R., 115 Mass. 239. 6. Carelessly trying to get off or on a moving train or vehicle is another obstacle to recovery by the injured passenger. Perry v. Central R., GQ Ga. 746 ; 67 Ga. 306 ; 88 Ga. 4.36 Mitchell V. Chicago R., 51 Mich. 236 75 Mo. 185, 475; 102 N. Y. 280 165 Mass. 522 ; 87 Me. 406. And in walking on a station platform, along the tracks or the pier, the passenger is bound to ordinary prudence. 20 S. C. 219. Some cases rule strictly against the passenger; while others reasonably assert that attempting to get off or on a moving train is not 698 negligence per se. See 119 Ind. 542. Often in such cases the special facts may be material to the issue of con- tributory negligence. See 162 Mass. 326; 145 N. Y. 508; 153 111. 131; 147 U. S. 571 ; 85 Ala. 600. Intentional fraud in travelling on a ticket which the passenger had no right to use is held to debar one from recovering for personal injury sus- tained, if the carrier was not grossly at fault. Toledo R. v. Beggs, 85 111. 80. But cf. Louisville R. v. Thomp- son, 107 Ind. 442. As to furnishing surgeons of ordinary skill, etc., where injury occurs, see 18 Fed. R. 221. 1 Mayo V. Boston & Maine R., 104 Mass. 137 ; Steves v. Oswego R., 18 N. Y. 422. But see Deyo v. New York Central R., 34 N. Y. 9. 2 This doctrine is applied as be- tween colliding vessels. The Carroll, 8 Wall. 302 ; The Falcon, 19 Wall. 75. Nor is leaping from a stage or other vehicle at the critical moment of danger visited harshly upon a pas- senger ; though to so leap or get on or off the vehicle merely to avoid being carried beyond his stopping- place, or other lesser reason, might not be excusable. Stokes v. Salton- stall, 13 Pet. 181 ; South-Western R. V. Paulk, 24 Ga. 356 ; Frink v. Pot- ter, 17 111. 406 ; Angell Carriers, § 547 ; Caswell v. Boston & Worces- ter R., 98 Mass. 194; Damont v. New Orleans R., 9 La. Ann. 441. Cf. Railroad Co. v. Aspell, 23 Penn. CHAP. II.] ' CAKRIERS OF PAS3EXGERS. § 653 § G53. The Same Subject ; Burden of Proof, etc. — It has long been usual to assert the rule regarding the onus probanJi quite strongly against the carrier, by way of favoring the right of passengers who are damaged or injured in the course of transportation.^ But later cases incline to put it more im- partially ; and, according to the better opinion, the presump- tion of culpable default in the carrier arises only when the passenger appears to have been injured because of a defect in the vehicle or the machinery, apparatus, equipments, and appliances used, including the track of a railway and the locomotive power, or by a want of due foresight, care, or dili- gence in those employed, or by any other thing with reference to himself or third parties, which the carrier can and ought to control as part of his duty to carry the passengers safely ;2 or where actual misconduct of the carrier or his servants, within the limits already noticed, is manifested.^ Even thus the presumption is not conclusive ; but the carrier may relieve himself by showing that the injury arose from some accident or misfortune which the utmost skill and diligence could not prevent ; or that the passenger was to blame ; or, perhaps, that the actual misconduct of a so-called servant was such as ought not to charge the carrier personally.* St. 147 ; Nelson v. Atlantic R., 68 Mo. R., 64 Penn. St. 225, per Agnew, J., 593, and other cases cited post, § G02. where this rule is very clearly stated ; As to the responsible carrier or Colt, J., in Feital v. Middlesex R., carriers thus liable to suit, see supra, 109 Mass. 398 ; Curtis v. Rochester §§015-019. And see, as to injury R., 18 N. Y. 534; Pittsburg R. v. sustained in a sleeping-car, Cleve- Pillow, 70 Penn. St. 510. land R. v. Walrath, 38 Ohio St. 401. ^ gee Readhead v. Midland R., L. For the rule of damages see § 004, R. 2 Q. B. 412 ; L. R. 4 Q. B. 379; post. Meier v. Pennsylvania R., 04 Penn. 1 Story Bailm. § 001 a, and cases St. 225; Welfare v. London R., L. R. cited; Christie v. Griggs, 2 Camp. 4 Q. B. 093; liegeman v. Western 79; Stokes v. Saltonstall, 13 Pet. R., 3 Kern. 9; Ingalls v. Bills, 9 181 ; Ware v. Gay, 11 Pick. 100 ; Met. 1 ; McPadden v. New York Carpue v. London R., 5 Q. B. 747 ; Central R., 44 N. Y. 478 ; Le Barron 95 N. Y. 502. V. East Boston Ferry Co., 11 Allen, 2 Daniel v. Metropolitan R., L. R. 312 ; Parish v. Ileigle, 11 Gratt. 097. 3 C. P. 210 ; Bovill, C. J., in Simson Where the facts are undisputed, the V. London Omnibus Co., L. R. 8 question of proximate cause is for C. P. 390 ; Story Bailm. § 601 a, and the court. 70 Mo. 288. note, 9th ed. ; Meier v. Pennsylvania * See Little Miami R. v. Wetmore, G9U § 654 THE LAW OF BAILMENTS. [PART VII. § 654. Carrier's Liability for causing Death. — As for causing the passenger's cleatli, passenger-carriers seem not to have been, at the common law, liable to an action ; for the tlieory of the common law is, that the right to sue for a personal injury is personal to the party receiving it, and that the death of one human being cannot be complained of as an injury to another. Hence, the personal representative, surviving hus- band or widow, or next of kin, could formerly maintain no such action ; ^ nor, even though the local statute permitted actions for personal injury to survive, did this avail where the death was instantaneous, so that the injured party died without a right of personal action.^ But modern legislation in England and America corrects this hardship by supplying a remedy which proves salutary both for relieving the dis- tressed family and keeping the carrier to the due performance of his duty. The inclination of these statutes appears to be to set apart the amount of damages recoverable, as a fund for the exclusive benefit of those entitled in case of intestacy, without regard to the will of the deceased ; ^ and the amount of damages recoverable is limited usually to a sum fixed, but otherwise liberally awarded at the discretion of the jury.* 19 Ohio St. 110; Isaacs v. Third 90 ; Railway Co. v. AVbitton, 13 Wall. Avenue R., 47 N. Y. 122; sujn-a, 270. See South Carolina R. u. Nix, § 644. 68 Ga. 572, where it was doubtful by 1 Carey v. Berkshire R., 1 Cush. which of two trains the passenger 475 ; Conn. Mut. Life Ins, Co. v. was killed. New York, &c. R., 25 Conn. 265; A novel question has been raised Hubgh V. New Orleans R., 6 La. in England, but is not yet fully Ann. 495 ; Eden v. Lexington R., 14 answered, whether one action cannot B. Mon. 204 ; Metcalf, J., in Palfrey be brought, under such a statute, to V. Portland R. , 4 Allen, 56. recover as for the injury caused the 2 Shaw, C. J., in Kearney v. Bos- widow, next of kin, etc., by the death ton & Worcester R., 9 Cush. 108. of the party; and another for dam- But if the person lives after the acci- age to the personal estate of de- dent, though remaining insensible, ceased, as for medical bills, loss of the action survives. Bancroft v. business, etc. Judgment and satis- Boston, t&c. R., 11 Allen, 34. faction in the former suit is held not 3 Railroad Co. v. Barron, 5 Wall. to bar the latter suit ; but, as to 90 ; Chicago R. v. Morris, 26 111. granting the additional damages, 400. qucere. See Leggott v. Great North- * Railroad Co. v. Barron, 5 Wall. ern R., 1 Q, B. D. 599 ; questioning 700 CHAP. II.] CARRIERS OF PASSENGERS. § G56 § 655. Whether Special Contract affects Liability for Injury, etc. — III. Whether special contract and sjjecial circum- stances may diminish the passenger-carrier's liability for the personal safety of those he conveys. The point is somewhat novel in its present application ; but, upon the -whole, there seems a disinclination in the courts, particularly those of America, to permitting the carrier to regulate his momentous responsibility for life and limb at pleasure, however it might be with reducing his common-law liability for general freight or a passenger's baggage. Public policy is less flexible and yielding, where it comes to fixing the terms of human convey- ance, than it appeared when only senseless goods and chattels were concerned ; nor can it be affirmed, as a general proposi- tion, that the carriage of passengers may, by the most explicit understanding between the public transporter and his cus- tomer, be brought down even so slightly as to leave the former analogous, in legal responsibility, to an ordinary bailee for hire. At all events a carrier's special contract of immunity from the consequences of culpable negligence by his servants must be clearly and unequivocally expressed ; ^ as well as brought home properly to the passenger.^ § 656. The Same Subject; Travellers on Free Pass, etc. — This issue is chiefly raised in the later decisions resjjecting Bradshaw v. Lancashire R., L. R. 10 statutes for causing death is prose- C. P. 180. And see Angell Carriers, cuted in the form of an indictment §§503-001. against the carrier; and here the But the injured person's accord same general principles of law and and satisfaction for the injury during evidence are applicable as in civil his lifetime bars the statute action actions for damages. See State v. on behalf of widow, kindred, etc., Grand Trunk R., 58 Me. 176 ; Corn- though he should die of the injury monwealth v. Metropolitan R., 107 afterwards. Read v. Great Eastern Mass. 236. R., L. R. 3 Q. B. 555. Nor can per- i Kenney v. N. Y. Central R., 125 sonal representatives sue, where the N. Y. 422 (case of an express mes- decea.sed, had he survived, would not senger). have been entitled to recover. Haigh ^ jiow far a ticket may sufficiently V. Packet Co., 62 L. J. 640 ; § 656, establish such exceptions, see §§ 627, post. 656. The action sometimes directed by 701 § 656 THE LAW OF BAILMENTS. [PART VII. " drovers' passes," where persons are taken free in charge of the animals they wish transported, and upon railway trains which are naturally better adapted for the freight than their living owners. Here appears a marked distinction between the English and American cases, upon much the same difference of bias. In England it is decided, but in the lower tribunals only, that any person who travels on a drover's pass in charge of animals travels at his own risk of personal safety ; this on the supposition that the passenger-carrier may, by special contract, divest himself of liability ; ^ and in that country even paying passengers have been subjected to like conditions em- bodied in the tickets they purchase.^ The same rule as to drovers has been announced, too, in New York ; though at a period when corresponding stipulations for the carriage of goods were more favored than they have been of later years .^ The inference is, that any passenger who travels free on a special understanding, as evinced by his ticket or otherwise, that he assumes all risks of injury to his person, relieves the carrier of liability accordingly ; and thus, in fact, has it been decided in New York and certain other States.* But the safer rule, and that which a broader appreciation of the public welfare seems to favor, is to the contrary ; and the best-supported American doctrine, which is fortified by the powerful sanction of the Supreme Court of the United States, views all these distinctions between free and paying 1 McCawley v. Furness R., L. R. 407 ; "Wells v. New York Central R., 8 Q. B. 57; Gallin v. London R., 24 N. Y. 181. Both of these are rail- L. R. 10 Q. B. 212. way cases. Aliter, in New York, as 2 Even, semble, though the effect to government mail-agents. Seybolt be to put the risk of life and limb v. N. Y. R., 95 N. Y. 562. And see upon the passenger, despite the car- Betts v. Farmers' Loan Co., 21 Wis. rier's negligence. Haigh v. Packet 80, where the rule, however, is ap- Co., 52 L. J. 640, the case of a steam- plied to damaged animals rather ship passenger. than to the drover who accompanied 8 Bissell V. New York Central R., them. In Connecticut and Massachu- 25 N. Y. 442. See also Poucher v. setts the rule of the text is applied. New York Central R., 49 N. Y. 263, 51 Conn. 143 ; Griswold v. N. Y. R., where the facts were quite excep- 53 Conn. 371 ; Quimby v. Boston & tional. Maine R., 150 Mass. 365 ; 147 Mass. * Kinney v. Central R., 32 N. J. 255. 702 CHAP. II.] CARRIERS OF PASSENGERS. §057 passengers as unsound. According to this view of the car- rier's liability there is an obligation imposed by public law which is superior to and independent of all private agreement ; and whether it be upon a drover's pass, or any other free or limited ticket, whether upon expressed terms of restriction or otherwise, the carrier cannot shield himself from the con- sequences of his negligence ; but towards all passengers the utmost care and diligence must be used, and the standard of duty must be according to the consequences that might ensue from carelessness.^ § 657. General Conclusion as to Passengers ; Trespassers contrasted. — We conclude that, at all events, where noth- ing special is stipulated to the contrary, one who is lawfully carried, even though he rides free, and who is not a mere trespasser, is entitled to recover damages if injured by the carrier's negligence.^ And an ordinary passenger, who paj's the regular fare without deduction, ought not to be denied his legal rights on any mere inference that he has waived them ; while it is certain that no such waiver can be extorted from him as the condition of his carriage.^ We need hardly 1 See Indianapolis Tl. v. Horst, 93 U. S. 291 ; Railroad Co. v.. Lock- wood, 17 Wall. .'357, where there is an exhaustive review of the " special- contract" cases relative to a carrier's liability ; Pennsylvania R. v. Hender- son, 51 Penn. St. 315 ; Cleveland R. V. Curran, 19 Ohio St. 1 ; 17 Fed. R. 671 ; Ohio R. v. Nickless, 71 Ind. 271 ; 40 Ark. 298 ; 14 W. Va. 180. These cases relate to "drovers' passes." As to more general cases of gratuitous transportation, see Philadelphia R. v. Derby, 14 How. 4G8 ; Steamboat New World v. King, 16 Plow. 469; Todd v. Old Colony R., .3 Allen, 18 ; Pennsylvania R. v. Butler, 57 Penn. St. 335 ; Great Northern R. v. Harrison, 10 Ex. 376 ; Graham v. Pacific R., 66 Mo. 536. And .see Ohio & Mississippi R. v. Muhling, 30 111. 9 ; Austin v. Great Western R., L. R. 2 Q. B. 442, per Cockburn, C. J. ; Story Bailm. § 690, 9th ed., and note ; Gulf R. v. Mc- Gown, 65 Tex. 640. See author's article on this subject, 26 Am. Law Review, 212. 2 lb. And see Packet Co. v. Clough, 20 Wall. 528 ; Wilton v. Middlesex R., 107 Mass. 108; Rose V. Des Moines Valley R., 39 Iowa, 246 ; Brennan v. Fair Haven R., 45 Conn. 284 ; Robertson v. New York R., 22 Barb. 91 ; Blair v. Erie R., 66 N. Y. 313 ; Nashville R. r. Messino, 1 Sneed, 220. That which purports to be a free pass may be nevertheless given for consideration ; in which respect one might show himself not estopped by the special terms of his ticket. Rail- way Co. V. Stevens, 95 U. S. 655. « See Elliott v. Western R., 58 703 § 658 THE LAW OF BAILMENTS. [part VII. repeat, however, that where one rides, without the carrier's knowledge and assent, in unusual and unsafe places, or travels whether by abuse of his own pass or fraudulently on another ticket, so as to evade fare and not be in the just sense a passenger, his right of action, or at least his recovery of damages as for injury by the carrier, is likely to be defeated.^ § 658. Carrier's Right of Ejection. — IV. In pursuance of his rights, and his general duty as well, the passenger-carrier, or his representative, may eject from tlie car or vehicle per- sons on board who wrongfully refuse to pay their fares, or present void tickets and insist unreasonably upon having them accepted for carriage, or who misbehave and violate wholesome regulations for promoting the general comfort and security of those on board ; or who are mere intruders, having no right on board.^ But, with respect more particu- Ga. 454. One travelling for a con- siderable distance is presumed right- fully on board. (Ind.) 8 N. E. 18. A drover travelling by railway on a free pass may be in effect a passenger for hire. /S'?(pra, § 620. At all events, he is not to be concluded by a con- tract which the owner of animals signs after the accident. 64 Wis. 447. 1 Supra, §§ 620, 621. Towards trespassers or strangers who are careless the carrier is liable only for gross, wilful, or wanton negligence. Carrico v. West Virginia R., 35 W. Va. 389. 2 For the usual circumstances under which such ejection is proper, see supra, §§ 625, 643. And see Chicago R. v. Flagg, 43 111. 364; Vinton v. Middlesex R., 11 Allen, 304; Breen v. Texas & Pacific R., 50 Tex. 43 ; Angell Carriers, 5th ed. § 609, and Lathrop's note ; O'Brien V. Boston & Worcester R., 15 Gray, 20. One who is properly expelled for refusing to pay fare does not re- gain the right to re-enter by tender- ing it. See State v. Campbell, 32 704 N. J. 309 ; Hibbard v. New York R., 15 N. Y. 455. Nor to renew his ride by simply purchasing a ticket onward from the station at which he was ejected, his back fare not having been paid. Swan v. Manchester R., 132 Mass. 116. Whether if the train has been specially stopped to put him off, he can retain a right to re- main by then offering his fare, see Cincinnati R. v. Skillman, 39 Ohio St. 444 ; contra, South Cai'olina R. V. Nix, 68 Ga. 572. But the better au- thorities among the latest are averse to needless ejectment for mere non- payment of fare ; and hold that where a fractious passenger by rail tenders his fare before actual ejectment, changing his mind at the last mo- ment, or where some one else offers to pay the fare for him, the conductor has no right to refuse it and to eject him. O'Brien v. N. Y. Central R., 80 N. Y. 236 ; South Carolina R. v. Nix, supra; 18 Fed. R. 155; Texas R. V. Bond, 62 Tex. 442 ; Pease v. Delaware R., 101 N. Y. 367. This at all events, where the train was stopped at a regular station, and others were CHAP. II.] CAIIRIEIIS OF PASSENGERS. § G58 larly to those once accepted tis passengers, this dangerous discretion must be prudently exercised. Where the issue relates merely to one's proper fare and the passenger is not violent and abusive, the conductor should allow him every op[)ortunity to pay or explain before resorting to harsh meas- ures ; nor at any time should the carrier fail in judgment and forbearance or eject for his own revenge and to giatify an ill temper. And, in general, the carrier or his representa- tive should not needlessly abuse the person ejected, in lan- guage or acts; nor subject him to wanton indignity; nor use more force than is needful ; nor eject him at such a place or in such a manner as carelessly or wantonly to endanger him ill life or limb ; ^ nor, of course, eject without good not inconvenienced by some stoppage for tlie sole purpose of ejectment, and the right to remain was not for- feited by such passenger's own wilful abuse and misbehavior. Cf. 15 Fed. It. 57, where the passenger wrangled, and so misbehaved as to invite ejec- tion. But not perhaps where the train had been specially stopped be- fore the fare was tendered. 88 Ga. 529 ; 104 N. C. 312. Some local stat- utes forbid ejectment on a railway except at regular stations. Nor has the carrier the right to accept one's fare or take up his ticket and then eject him for non-payment of proper fare ; nor even to eject the passen- ger, and then return the money or ticket to him ; but he should return the money or ticket before ejecting at all. Supra, § G33 ; Bland v. Southern Pacific R., 55 Cal. 570. A passenger may be expelled for refus- ing to pay the fare of a minor under his charge, thougli paying his own fare. (52 Md. 300. Even though passage might be refused in an im- proper place, unnecessary violence is not excusable. 72 Ga. 202. But allowance should be made for any one who appears a bond fide passen- ger with bis proper fare, whose age, ignorance, disability, or other good cause prevents a prompt comiiliance with the conductor's demand. 14 Lea, 128 ; 91 N. C. 500. That the carrier may with far more freedom expel those who en- danger the safety and comfort of other passengers by outrageous con- duct, intoxication, infectious disease, etc., see supra, §§ 043, 044. Here expulsion is for the general benefit of those who are travelling, while as to mere non-payment only the carrier and the particular passenger are in- terested. 1 Coleman v. New York R., 100 Mass. 100 ; State v. Ross, 2 Dutch. 224 ; Higgins v. Watervliet Turnpike Co., 46 N. Y. 23. Ejection while a railway train is in motion would be dangerous ; but as to a horse-railroad, such ejection appears not so posi- tively dangerous. Cf. Sanford t>. Eighth Avenue R., 23 N. Y. 343; Murphy v. Union R., 118 Mass. 228 ; 67 Ga. 306. But as to proximate cause of injury, see Railroad v. Valleley, .32 Ohio St. .345. Legisla- tion sometimes forbids the ejection of railway passengers, in certain 45 705 658 THE LAW OF BAILMENTS. [part vn. cause. Repeated misbehavior after a warning strengthens the right to eject for such a cause.^ Where the conductor of a train, captain of a steamboat, or other representative of the passenger-carrier, who is charged with enforcing the rules and resorting to this disagreeable extremity, abuses his authority in any such respect, the car- rier himself may commonly be held answerable in damages to the person aggrieved ; ^ while the servant is liable to criminal prosecution besides.^ A wrongful ejectment may be resisted and wrongful passage-money refused ; and the fact that the passenger aggrieved does resist will not prevent him from recovering damages against the carrier.* A needless arrest, with removal from the car, and false imprisonment besides, renders a carrier still more strongly liable.^ And wrongful expulsion is good foundation for a suit against the carrier, even though the passenger leaves as ordered without making physical resistance or compelling violence.^ instances, except at regular stations. See 29 Vt. 160 ; 43 111. 420 ; 45 Ark. 524. But the common-law rule does not treat this as always essential. lb.; McClure v. Philadelphia R., 34 Ind. 532. 1 Robinson v. Rockland R., 87 Me. 387. 2 See supra, § 644 ; Moore v. Met- ropolitan R., L. R. 8 Q. B. 36 ; Jen- nings V. Great Northern R., L. R. 1 Q. B. 7; Elliott v. Western R., 58 Ga. 454 ; Stephen v. Smith, 29 Vt. 160 ; Hanson v. European R., 62 Me. 84 ; Atlantic & Great Western R. v. Dunn, 19 Ohio St. 162 ; Townsend V. N. Y. Central R., 56 N. Y. 295; Passenger R. v. Young, 21 Ohio St. 618 ; Jackson v. Second Avenue R., 47 N. Y. 274. If the conductor orders a passenger to leave the train while it is in motion, the company cannot set up in defence the passen- ger's negligence in obeying so im- 706 proper an order. Southwestern R. V. Singleton, 67 Ga. 306. For an instance of outrageous and threat- ening conduct by a conductor, see 4 McCr. 371. Arrest of a passenger is by local statute permitted in certain cases, besides ejectment. (Mass.) 8 N. E. 875 ; (Tenn.) 1 S. W. 280. A brake- man or other employe of the carrier may be shown to be the usual agent for ejecting, so as to bind the carrier. St. Louis R. V. Hendricks, 48 Ark. 177. 3 State V. Ross, 2 Dutch. 224. * English V. Delaware Canal Co., 66 N. Y. 454 ; Hufford v. Grand Rapids R., 53 Mich. 118. ^ Atchison R. v. Henry, 55 Kan. 715. 6 Consolidated Co. v. Taborn, 58 N. J. 1 ; Central R. v. Roberts, 91 Ga. 513. As to carelessly jumping to avoid ejection, see 37 W Va. 297. CHAP, in.] CARRIERS OF PASSENGERS. § 660 CHAPTER III. TERMINATION OF THE JOURNEY. § 659. How One's Journey may prematurely end. — As We have already seen, a passenger's journey may terminate pre- maturely in his ejection or expulsion from the car, vessel, or other vehicle ; ^ or perhaps in some personal accident or mis- fortune ; 2 in either of which events the law and facts must decide whether carrier or passenger should bear the loss. § 660. Journey naturally ends at Place of Destination; vrhere to stop. — But in the natural course, the journey properly terminates, so that the carrier shall discharge himself of re- sponsibility, when the place is reached to which he undertook to make conveyance, and the passenger is properly landed there, unless, indeed, the passenger has chosen to stop short of such destination, and leave the vehicle. Custom and mutual agreement must determine what this place shall be ; whether, as in the instance of a hackney coachman, at the passenger's own door; or, again, where the carriage is by omnibus or street-car, at such place on the route as the pas- senger shall elect ; or, once more, to take the case by far the most familiar of all, at the station, depot, or landing-place where the rail-car, steamboat, or other vehicle makes its usual stop to leave passengers.^ The undertaking may have been to leave the passenger at the end of the carrier's route ; or at some way-place ; or perhaps to send him through to some point by means of carriers performing in succession ; or, once more, so as to leave him to his own choice. But, whatever the undertaking, express or implied, to this in its just intent, the carrier and his passenger remain mutually 1 Supra, § 658. » See Story Bailra. § 600. 2 Stq)ra, §§ 652-654. § 661 THE LAAV OF BAILMENTS. [PART VII. bound ; subject, of course, to mutual waiver and a right for cause to consider the obligation on either side as sooner re- scinded.^ And the common understanding is that the pas- senger shall be carried through, not only safely and securely, as to life and limb (under the conditions already dilated upon), but without unreasonable delay and according to the usual or the prescribed means.^ The usual or the prescribed place of stopping cannot be varied at the will of the carrier, even for prudential reasons, for the contract obligation is upon him ; though, if full per- formance be prevented by some overpowering cause, the cir- cumstances would not be disregarded. Thus, an English stage-driver has been required to land his passenger in the inn-yard, and not outside the gateway;^ and a railway train ought commonly to discharge at the station, and not along the line at a point beyond or short of it.* The passenger re- lation usually ceases when the passenger has left the car- riage ; ^ but circumstances connected with the station or landing-place may extend it somewhat farther as to certain kinds of carriage.^ § 661. Opportunity to alight ; Proper Landing-place, etc. — At the proper station or landing-place for his passengers, the carrier should give time and a fair opportunity for all to alight ; and to this end the vehicle should come to a full stop and so remain while the landing goes on. To manage such landing so that passengers cannot safely get on or off is neg- ligence. Under some circumstances the name of the place should be announced.'^ Calling out the station is in effect an 1 See Ker v. Mountain, 1 Esp. 27. •* New Orleans R. v. Hurst, 36 A carrier need not stop except at Miss. 660 ; Southern R. v. Kendrick, regular stopping-places, unless ex- 40 Miss. 374. And see, as to a car- pressly contracting to do so. Plott rier by steamboat, Porter v. Steam- V. Chicago R., 63 Wis. 511. Aliter, boat New England, 17 Mo. 290. where reasonable rules or the con- ^ Creamer v. West End R., 156 tract with the passenger obliges the Mass. 320 ; 48 Minn. 378. carrier to do so. Hull v. East Line ^ See 146 Mass. 241. R,, 66 Tex. 619. "^ A carrier is not liable in damages 2 Supra, § 648. for carrying a sick and drowsy pas- 8 Dudley v. Smith, 1 Camp. 167. senger past his destination, though 708 CHAP. III.] CARRIERS OF PASSENGERS. § 662 invitation to alight, though not so as to dispense with average heed and intelligence on the passenger's part.^ Reasonable arrangements, too, should be made to enable passengers to leave the carrier's premises in safety ; thus, railways should have suitable platforms in proper condition, and of proper construction, and keep its tracks clear; steamships should have good gangway-planks, securely placed ; ^ and, in general, lights should be shown to dispel darkness and guide the pas- senger, where his footing would otherwise be insecure, and the utmost care taken not to invite or mislead those alight- ing into places where they are likely to be injured.^ In short, for the carrier's failure to use very great precaution and care at the point of disembarking, he may be regarded answerable, either on the general ground of his negligence, or because his contract to carry through safely has not yet been discharged.* § 662. Passenger's Duty in Landing. — So, too, is the pas- senger bound to use the arrangements thus duly provided for him, and be ordinarily careful in getting out and away from the station or landing-place, as he cannot hold the carrier liable for an injury otherwise. Thus, a railway passenger is not justified in jumping from the train while it is in motion, even though the carrier was negligent, whether in carrying him past the station or in starting before he had due oppor- the conductor promised as a favor to v. Clough, 20 Wall. 528 ; 49 Mich, wake him up and failed to do so. 370. Sevier v. Vicksburg R., 61 Miss. 8; s Bridges v. North London E., Nunn V. Georgia R., 71 Ga. 710; L. R. 7 H. L. 213; Foy v. London Nichols V. Chicago R., 90 Mich. 203. R., 18 C. B. n. s. 225; Weller v. Conductors, with their more respou- London R., L. R. 9 C. P. 126 ; Ilobbs sible duties, cannot be expected to v. London R., L. R. 10 Q. B. Ill ; charge their minds with concerns of 119 Ind. 583 ; 124 Penn. St. 427 ; this sort. lb. But where the pas- Vicksburg R. v. Howe, 52 Miss. 202. senger fare is accepted with notice See supra, § 651, as to the carrier's at what station the passenger wishes duty when he lands passengers at a to stop, the carrier should stop ac- way-station. See also supra, § 639, cordingly. 57 Fed. 481. as to suitable modes of ingress where 1 Mitchell V. Chicago R., 51 Mich, one goes on board. 236. ^ John v. Bacon, L. R. 5 C. P. 2 See Heirn v. McCaughan, 32 437 ; Keokuk Packet Co. v. True, 88 Miss. 17 ; 35 Hun, 590 ; -John v. 111. 608. And see 160 111. 636. Bacon, L. R. 5 C. P. 437 ; Packet Co. 709 § 663 THE LAW OF BAILMENTS. [PART VII. tunity to land ; ^ if he alight knowingly on the opposite side of the track instead of at the platform, he risks the conse- quences ; ^ for a departing passenger in general should exercise ordinary prudence both in landing and in leaving the station.^ S 663. Final Compensation, Surrender of Ticket, etc. — The compensation of a passenger-carrier is rarely deferred to the completion of his undertaking ; but it is customary on long routes, as part of our modern system, not to take tickets up until at or near the journey's end ; the passenger being bound, meantime, not only to show the voucher of his right to travel whenever required, but to finally surrender it at the proper time.* And where, as is quite customary on steamboats, the passenger is not asked to produce his ticket at all until the vehicle reaches its landing, he ought to have it ready to sur- render before he passes out.^ When one of choice goes be- yond the station named in his ticket he must expect to pay additional fare.^ If one cannot produce his ticket, as they are thus being collected while passengers leave the vehicle, he has no right to keep others waiting, or divert the attention of the ticket- taker; but the carrier may properly make him step aside and wait long enough for a reasonable inquiry to be made into the circumstances.''' If the passenger cannot then justify the non-production of his ticket, the amount of his fare may be demanded on the spot.^ Needless violence towards the passenger would, however, be unjustifiable on the usual prin- ^ Nelson V.Atlantic R., 68 Mo. s The adjustment of blame in such 593 ; Railroad Co. v. Aspell, 23 Penn. cases is often difficult. See Renne- St. 147 ; 9 La. Ann. 441 ; Lucas v. ker v. South Carolina R., 20 S. 0. New Bedford R., 6 Gray, 64 ; Straus 219; Brassell v. N. Y. Central R., V. Kansas City R., 75 Mo. 185. 84 N. Y. 241 ; 75 Mo. 475 ; Keefe v. 2 Pennsylvania R. v. Zebe, 37 Boston R., 142 Mass. 251, and cases Penn. St. 420. See also Lewis v. cited. * Supra, § 625. London R., L. R. 9 Q. B. 66 ; Robson ^ Standish v. Narragansett Steam- V. North-Eastern R., L. R. 10 Q. B. ship Co., Ill Mass. 512. 271 ; Siner v. Great Western R., « Great Western R. v. Pocock, 41 L. R. 3 Ex. 150; L. R. 4 Ex. 117. L. T. 415. It is not negligence per se to leave a '' Standish v. Narragansett Steam- railway car by the rear. (Mich.) 18 ship Co., Ill Mass. 512. N. W. 381. Cf. 148 Mass. 207. 8 ib. 710 CHAP. III.] CARRIERS OF PASSENGERS. § 664 ciples ; and whatever the statute which might justify calling a policeman and handing a cheat over to justice, to be dealt with as a criminal, the carrier cannot imprison a party on his vehicle for non-payment of his fare, nor even seize his articles of wearing-ap[)arel or personal use for the purpose of compelling satisfaction.^ § GG4. Remedies of Passenger in General ; Damages. — The action of the passenger against his carrier is usually based upon some one or more of the grievances we have already sufficiently considered. Where the party offering himself is unjustly refused transportation, he should sue in case, as for violation of the carrier's public duty ; or for breach of con- tract at discretion, if his ticket is dishonored by the carrier.^ Where, however, after being once accepted, he is injured in person or unlawfully expelled, the grievance may be viewed as a tort, generally but not always to be sued upon in case, or as a breach of contract for carriage, where the action should be laid in assumpsit.^ The distinctions in practice between the two forms of action have already been treated in the common carriage of goods and chattels or the strict bail- ment ; * and it is outside the scope of this work to treat of them specially in this new connection, further tlian to refer the reader to the authorities." 1 Ramsden v. Boston & Albany R., ^ gee 2 Redfield Railways, § 109 ; 104 Mass. 117. Rut doubtless the Angell Carriers, §§ 590-()U8, and carrier may detain baggage left in cases cited; 2 Greenl. Ev. § 222 his own custody for the unpaid fare et seq. ; and general works on Prac- lawfully due him from the owner, tice and Damages. And see Roberts See next chapter. v. Graham, (5 Wall. 578 ; cases cited 2 Supra, § 036, and cases cited ; in these chapters relative to the Heirn v. McCaughan, 32 Miss. 17. passenger-carrier's duties in each 8 Angell Carriers, §§ 590, 591; particular instance, passim. Insults supra, §§ 052, 058. If the circum- for injuries, caused by the carrier's stances of a passenger's expulsion negligence, the substance of the issue involved arre.st and various indigni- may be proved, though not described ties, such facts, if admissible, are with full particulars in the declara- better shown in a suit as for tort tion. (Ind.) 8 N. E. 18. It should than where the action is laid in con- be constantly borne in mind, how- tract. Murdock v. Boston & Albany ever, that the carrier is only to be R., 133 Mass. 15. sued for damage where his fault is * Supra, Part VI. c. 8. the proximate cause of injury. Thus, 711 § 664 THE LAW OF BAILMENTS. [PART VII. The rule of damages is practically applied with much re- gard to circumstances and the appearance of blame on either side; and for wanton, unprovoked, and aggravated miscon- duct or reckless negligence on the part of the carrier or his servants, producing bodily injury, juries are apt to award large punitive or exemplary damages, which courts, not un- influenced by a sense of humanity, decline to set aside ; ^ though, as a general rule, the passenger who is injured by the fault of the carrier, especially if the carrier's servant acted in perfect good faith and without needless severity, has no right to ask punitive damages, but only such as may afford him due compensation by way of indemnity .^ Ii^jury to one's feelings and the indignity of a harsh and unlawful expulsion are to be considered in estimating damages.^ If the passenger was himself in fault, as by angry altercation with the conductor so as to disturb the peace of others on board, he is not likely to recover punitive damages at all ; * nor in any event, dam- ages which were the remote, unforeseen, and indirect conse- quences of the grievance alleged against the carrier.^ for the malpractice of a surgeon pru- carrier's default, may have received dently called in after an accident, it on an "accident insurance policy," is not the carrier but the surgeon because of such injury, cannot affect who should be sued. 18 Fed. R. 221. his claim for damages upon the car- And see 76 Mo. 288. rier ; for the right to insurance money 1 Hanson v. European R., 62 Me. arises out of quite a different con- 84 ; Atlantic R. v. Dunn, 19 Ohio St. tract. Bradburn v. Great Western 162; Chicago R. v. Flagg, 43 111. 364 ; R., L. R. 10 Ex. 1. The same may Palmer v. Railroad, 3 S. C. 580. Cf . be said, semble, of a widow or kin- Hagan v. Providence R., 3 R. I. 88 ; dred who are paid on a life-insurance 70 Ga. 368; 63 Iowa, 417. policy in case the injured passenger 2 Milwaukee & St. Paul R. v. dies of the injury inflicted by the Arms, 91 U. S. 489, where the pas- carrier. senger-carrier authorities are amply ^ See 46 N. J. L. 198 ; 47 N. J. L. cited on the question of damages ; 548. Pullman Palace Car Co. v. Reed, 75 * 15 Fed. R. § 57 ; siqva, § 636. 111. 125; Townsend v. New York 6 4 Col. 344; 114 U. S. 474; 14 Central R., 56 N. Y. 295 ; Cincinnati Lea, 128. For examples of admis- R.v. Cole, 29 Ohio St. 126 ; 11 Lea, 98. sible circumstances, such as illness What the passenger, who brings caused from the exposure, see Cin- his action against the carrier for cinnati R. v. Eaton, 94 Ind. 474 ; 62 bodily injuries received through the Tex. 380 ; 62 Wis. 367. 712 CHAP. IV.] CARRIERS OF PASSENGERS. § 666 CHAPTER IV. TRANSPORTATION OF BAGGAGE. § 665. Baggage Transportation Incidental to Carriage of the Passenger. — Baggage transportation presents in the common law some unique features. No contract is made for carrying such property, as in the case of ordinary freight ; but the duty of conveying the passenger's baggage as common carrier is incidental to the differently graded duty of conveying the passenger himself.^ There is no tariff of rates, no special payment to be demanded of the owner ; but one who pays his personal fare to a passenger-carrier is entitled (within limits to be presently noticed) to have his baggage taken likewise without extra charge.^ And for baggage, as for the freight which one takes upon direct hire, the responsibility assumed is that of common carrier ; while, on the other hand, the relation out of which grows the present indirect bailment, is that of passenger-carrier sim})l3\ § GGC). The Same Subject; Vocation of Innkeeper com- pared. — We may say, then, that there is a bailment in respect of baggage, but none, to speak precisely, so far as the pas- senger himself is concerned. A like distinction avails as be- tween the guest of an innkeeper and the j^ersonal property brought by that guest into the inn. Here, as in the case of the innkeeper, we find public policy making, b}"" inference, an extraordinary bailee of the party whose vocation thrives by the patronage of travellers ; and this out of considerations of the general welfare. But we must note that the passenger-carrier's incidental liability for his patron's baggage, though so strongly resem- 1 Johnson v. Midland R., 4 Ex. 2 gtory Railm. § 499 ; Angell Car- 367, 372; Oxlade v. North-Eastern rier.s, §§ 107-110; U. S. Digest, 1st R., 15 C. B. N. s. 680. Series, Carriers, 376 ; cases infra. 713 § 668 THE LAW OF BAILMP:NTS. [part VII. bling that of an innkeeper, presents this striking point of difference, that here it applies to no more property than what travellers ought to take with them on a journey ; whereas there it might embrace whatever a particular traveller had chosen to bring with him. No matter what a bag or trunk may contain, the law will charge the carrier of passengers as an insurer for what may legally be termed " baggage," and nothing else. § 667. What is Baggage or Luggage. — By " baggage," in the legal sense, is meant simply such articles of personal ne- cessity, convenience, comfort, and recreation, as travellers, under the circumstances, may well take on their journey ; ^ or, as the expression goes, "ordinary baggage." The word " luggage " is, perhaps, the more common word used in the mother-country, as synonymous with our American term "baggage." 2 Not only, then, is the kind of property thus carried material, but its quantity, its value, and more especially its suitableness for the purpose of the particular tour, must be taken hito consideration. § 668. The Same Subject. — Trunks, valises, carpet-bags, chests, and the like, with their common travelling contents, may be regarded as ordinary baggage ; but wares and sam- ples, though stowed away in such a receptacle, cannot ; ^ nor can a sample trunk.^ One's own shoes and wearing-apparel are appropriately baggage ; ^ but not a theatrical wardrobe ; and a great quantity of new shoes and stock for shoes, or of cloth, whether wrought into garments or not, is rather to be considered merchandise, and intended for others than for the traveller's personal use and convenience.^ A single watch lib.; Bouv. Diet. "Baggage." * Ailing v. Boston & Albany R., 2 See Brown Law Diet. ; 2 Red- 126 Mass. 121 ; Pennsylvania Co. v. field Railways, § 155. And see Miller, 35 Ohio St. 541 ; 17 Fed. R. 85 Cal. 329. 209. 3 Cahill V. London R., 10 C. B. s Duffy v. Thompson, 4 E. D. N. s. 154; s. c. 13 C. B. n. s. 818; Smith, 178 ; Baltimore Steam Packet Pardee v. Drew, 25 Wend. 459 ; Co. v. Smith, 23 Md. 402. Stimson v. Conn. River R., 97 Mass. ^ Collins v. Boston & Maine R., 10 83 ; Mississippi R. v. Kennedy, 41 Cush. 506. But see Dexter v. Syra- Miss. 671. cuse R., 42 N. Y. 326. 714 CHAP. IV.] CARRIERS OF PASSENGERS. § 668 and articles of personal jewelry have been held part of a traveller's proper baggage ; ^ but quite the reverse as to a quantity of watches, jewelry, or plate, apparently designed for sale and traflic or presents ; ^ or the jewelry of some one else.^ Not only such goods and chattels as are taken by the trav- eller for mere purposes of trade are found thus excluded from common carriage protection as "baggage," but, what may seem harsher, those whose taking, likewise with a view to the journey's end, has solely in view the convenience of the traveller's household, or something else ulterior to the journey itself ; things which are unsuitable, in fact, for use by the way, but only for use when the journey is over. Such, for instance, are the packed bedding and bed-cloth- ing of one who is seeking out some new home ; ^ and his pict- ures and household furniture in general.^ Nor need a child's spring-horse of heavy weight be accepted as baggage.^ And, as the law refuses to gratify a passenger by giving his merchandise and household articles a free trip at the carrier's special risk of dangers, so it disinclines to treat as baggage that which one takes with him for a present to his friend, or to accommodate third parties \vith Avhom the carrier is in no privity, and from whom he is to get no profit." But, while the courts persistently refuse to enhance the carrier's extraordinary risk for the privilege of those who would abuse their opportunities of having things taken with- out extra charge which ought to be paid for as freight, they 1 Brooke v. Pickwick, 4 Bing. 218 ; L. R. 6 Q. B. 612 ; Connolly v. War- Jones V. Voorhees, 10 Ohio, 145 ; ren, 106 Mass. 146. McCormick v. Hudson River R., 4 ^ See Nevins v. Bay State Steam- E. D. Smith, 181 ; Doyle v. Riser, 6 boat Co., 4 Bosw. 226. Ind. 242 ; McGill v. Rowand, 3 Penn. « Hudston v. Midland R., L. R. St. 451 ; American Contract Co. v. 4 Q. B. 306. Cross, 8 Bush, 472. '' Nevins v. Bay State Steamboat 2 Richards v. Westcott, 2 Bosw. Co. , 4 Bosw. 225. The decision in 589; Roll v. Drew, 4 E. D. Smith, Chicago R. v. Boyce, 73 111. 510, 59; Mis.sissippi R. v. Kennedy, 41 rests probably on this ground ; rather Miss. 071. than upon any abstract proposition 8 85 Cal. 329. that a saciiue and muff and silver * Macrow v. Great Western R., napkin rings can be no part of a 715 § 669 THE LAW OF BAILMENTS. [PART VII. accord willingly to passengers who bo)id fide pay their fares a liberal interpretation of the right to carry on the footing of baggage whatever may in a genuine sense be needful or con- venient for one's present journey, though by no means for the journey exclusively. A set of tools of reasonable worth may thus be included in a carpenter's or mechanic's bag- gage ; ^ professional instruments in that of a surgeon ; ^ a manuscript price-list or catalogue for his own use in that of a travelling agent ; ^ books needful for prosecuting his studies in that of a student ; * whatever, in fine, might prove useful and convenient on the way to one of a particular class of travellers, though its chief use be at the journey's end. Even pistols, revolvers, or other weapons, carried for one's defence, and not as merchandise, may be classed as baggage, especially on dangerous routes.^ So, too, as it is held, a sports- man's gun or fishing-tackle carried on a trip for his personal recreation ; ^ an opera-glass ; ^ or under fitting circumstances, and, more especially for invalid travellers, even pillows, bedding, or chairs.^ The legal distinction is not always clearly traceable, perhaps, for circumstances are allowed their due weight in each case. § 669. The Same Subject ; Money, etc. — For money which is included botid fide in the passenger's baggage for his trav- elling expenses and personal use on the journey, not, how- ever, exceeding a reasonable sum, it is now well settled that a passenger-carrier is liable as insurer ; ^ though some earlier gentleman's baggage. And see Dex- 111. 281. But cf. Giles v. Fauntle- ter V. Syracuse R., 42 N. Y. 326. roy, 13 Md. 126. 1 Porter v. Hlldebrand, 14 Penn. ^ Parmelee v. Fischer, 22 111. 212 ; St. 129; Kansas City R. v. Morrison, Angell Carriers, § 115 ; Van Horn v. 34 Kan. 502. Kermit, 4 E. D. Smith, 453. 2 Hannibal R. v. Swift, 12 Wall. ^ Toledo, &c. R. r. Hammond, 23 262. Ind. 379. 3 Gleason v. Goodrich Trans. Co., ^ gee Ouimit v. Henshaw, 35 Vt. .32 Wis. 85 ; Staub v. Kendrick, 121 604 ; Parmelee v. Fischer, 22 111. 212. Ind. 226. 9 Merrill v. Grinnell, 30 N. Y. 594 ; * Hopkins v. Westcott, 6 Blatchf. Duffy v. Thompson, 4 E. D. Smith, (U. S.) 64. 178 ; Jordan v. Fall River R., 5 Cush. 5 Woods V. Devin, 13 111. 746 ; 69 ; Illinois Central R. v. Copeland, Davis V. Southern Michigan R., 22 24 111. 332; Johnson v. Stone, 11 716 CHAP. IV.] CARRIERS OF PASSENGERS. § 669 cases ruled otherwise.^ But money taken by the passenger in large amounts,^ and greater than he can need as a trav- eller, especially if it be intended for some ulterior purpose, as to buy at the place of his destination merchandise, house- hold goods, or (as sometimes held) clothing,^ will fail of the law's safe shelter. Neither money taken by an attorney for his client to meet the contingencies of a lawsuit, nor title deeds, can be classed with baggage ; * nor, in general, money which belongs to some stranger instead of the passenger who is travelling with it.^ As a rule, money which is intended purely for trade, business, or investment, or for transporta- tion, and not for the passenger's own use and convenience, cannot be termed baggage.^ Against holding the passenger-carrier strictly accountable as a common carrier for large sums thus taken, two objec- tions occur : (1) that, for a traveller's personal use and con- venience, a moderate amount should suffice ; (2) that the traveller is himself to blame if he lets large sums, and prop- erty which is exceedingly valuable, go in a closed trunk into the exclusive custody of a bailee, without giving him some means of knowing what great risk he runs. But the conceal- ment of a small sum of money in one's trunk is not such carelessness or misconduct in the passenger as should ex- onerate the carrier ; nor, again, such a concealment of his watch, or of his own jewelry of moderate worth." Humph. 419 ; Michigan Central R. Ohio St. 259 ; "Weeks v. New York, V. Carrow, 73 111. 348; Hutchiugs &c. R., 16 N. Y. Supr. 609. V. Western R., 25 Ga. 61. » Hickox v. Naugatuck R., 31 1 Grant v. Newton, 1 E. D. Smith, Conn. 281. 95 ; Bomar v. Maxwell, 9 Humph. ■* Phelps v. London R. 19 C. B. 621. N. s. 321. - Orange County Bank v. Brown, * Dunlap v. International Steam- 9 Wend. 85 ; Davis v. Michigan R., boat Co., 98 Mass. 371. 22 Hi. 278 ; Doyle v. Riser, 6 Ind. « 85 Cal. 329. 242 ; Yznaga v. Steamboat Rich- "^ Jones v. Voorhecs, 10 Ohio, 358 ; mond, 27 La. Ann. 90; Johnson v. McCormick v. Hudson River R., 4 Stone, 11 Humph. 419; Wliitmore E. D. Smith, 181; Fairfax v. N. Y. V. Steamboat Caroline, 20 Mo. 513; Central R., 73 N. Y. 107. First Nat. Bank v. Marietta R., 20 For so great a sum as §11,250, concealed in a passenger's trunk, the 717 § 671 THE LAW OF BAILMENTS. [PART VII. § 670. The Same Subject ; Value, etc. — In determining the value of articles which one may reasonably take as baggage, the rank and station of the traveller are circumstances worth considering. A steerage passenger's clothing, for instance, would not be costly in comparison with that of some wealthy person travelling on a first-class ticket. To the extent that articles taken by any passenger for his personal use when travelling exceed in quantity and value such as passengers of like station and pursuing like journeys commonly take, they are not baggage in the strict sense. But whether such excess is taken or not is a question of fact for the jury.^ § 671. The Same Subject; Conclusion as to -what is Baggage. — In all this blending of law and fact, much must practically be left to abide the verdict of a jury.^ And, in estimating the kind, quantity, and value of the baggage which is allow- able to the passenger, it is fair to take into view whence he comes, whither he goes, and what is his occupation and social standing. Many of the late cases incline to be very liberal in this respect towards the passenger, to the extent, even, of rendering definitions of " baggage " extremely uncertain.^ carrier is certainly not liable as for 603 ; McGill v. Rowand, 3 Penn. St. baggage. Orange County Bank v. 451 ; Fairfax v. N. Y. Central R., 73 Brown, 9 Wend. 85. In Davis v. N. Y. 167 ; Brock v. Gale, 14 Fla. 523. Michigan R., 22 111. 278, S489 was sin Dexter v. Syracuse, &c. R., considered an unreasonable amount. 42 N. Y. 326, a railway was held Jewelry worth §30,000 should not be chargeable for materials for dresses checked as ordinary baggage. Michi- as well as clothing designed for a gan Central R. v. Carrow, 73 111. family. And it is here observed by 348. But in Jordan u. Fall River R., Smith, J., that the rule would be too 5 Cush. 69, the sum of .$325 taken in strict and narrow for these times, to a traveller's trunk on a short journey confine the baggage risk to such arti- ■was recovered. And Denio, C. J., in cles as the passenger has occasion for Merrill v. Grinnell, 30 N.Y. 594, con- while on his journey, sidered §800 in coin not an excessive A case yet more striking in its amount for an emigrant passenger to application of the rule is presented bring over with his baggage. in N. Y. Central R. v. Fraloff, 100 IN. Y. Central R. v. Fraloff, 100 U. S. 24, the latest leading decision U. S. 24. Cf. as to costly jewelry on the subject. Here the majority which was taken as merchandise, of the justices (Justices Field, Miller, Michigan Central R. v. Carrow, 73 and Strong, diss.), in effect, upheld a 111. 348. verdict against a railroad company to 2 See Ouimit v. Henshaw, 35 Vt. recover, as "baggage," laces valued 718 CHAP. IV.] CARRIERS OF PASSENGERS. § GT2 Moreover, according to the treatment bestowed upon certain articles which the passenger takes with liim, botli carrier and passenger or either may be estopped to deny that they were " baggage." ^ § 672. Nature and Extent of Risk for Baggage ; Common Car- rier Liability. — Now, concerning the nature and extent of that risk Avhich the passenger-carrier incurs with respect to his passenger's baggage. Lord Holt twice declared pointedly that the extraordinary responsibility of common carrier would not attach, unless the baggage was specially paid for.^ And, as the law became well settled in much later times, that for the passenger himself no such extraordinary risk was incurred, jurists began to argue, not without some force, that the car- rier's obligation to convey baggage, being but accessory to carrying the passenger, and a matter of personal convenience to him, ought to be the same in degree.^ But the current of modern decisions, English and American, is decidedly to the contrary; and, whether the conveyance be by horse or steam power, by land or by water, it is now firmly settled that, for a passenger's baggage, the carrier of passengers assumes the full risks of a common carrier ; in other words that he is to be regarded in this particular as an insurer, a carrier of goods, and not a carrier of passengers.* The sum paid for the pas- by a lady passenger at $75,000, for such things, there appears to and by the jury at .$10,000. This have been good reason in leaving is, perhaps, the severest visitation of the jury to pass upon the general loss upon a passenger-carrier which question of its suitableness in value the reports show, in respect of prop- and quality to the person travelling erty transported as a mere incident who suffered loss, to the hired conveyance of the travel- i Hoeger v. Chicago R., G" Wis. ler's person. But the circumstances 100 ; § 673 post. of the case are quite peculiar. The 2 Middleton v. Fowler, 1 Salk. 282 ; laces were in no sense to be regarded Upshare v. Aidee, 1 Comyns. 25. as " merchandise," but were in actual ^ See Pollock, C. B., in Stewart v. use as wearing-apparel by a foreign London R., 3 H. & C. 139. lady of superior rank and wealth ; * Great Western R. v. Goodman, and had money or jewels of this 12 C. B. 313 ; Brooke v. Pick- value been carried in a trunk instead, wick, 4 Bing. 218 ; Cockburn, C. J., the verdict could not have stood, with in Macrow v. Great Western R., any respect for precedents. But the L. R. 6 Q. B. 612, 618; Angell trunk being the natural receptacle Carriers, §§108-112; Story Bailm. 719 § 672 THE LAW OF BAILMENTS. [PAIIT VII. senger's own fare is the carrier's compensation, then, for this incidental but momentous responsibility ; which fare all who travel are presumed to pay, since the carrier has a right to charge it and enforce the collection.^ Nor matters it, pro- vided the fare be paid, whether the traveller himself furnished the money, or others did so on his behalf.^ For baggage of an unreasonable quantity, a carrier may always demand special compensation from the passenger concerned ; but, long before railways were introduced, the practice prevailed, in England and America, of making no charge for baggage unless it exceeded a certain weight.^ A standard of extraordinary responsibility like this must have been erected mainly for the comfort and convenience of the travelling public. Yet the carrier himself goes not un- heeded ; for, not only is his merely incidental risk kept down to what is reasonable in kind, quantity, and value for his patron's baggage, and his legal right recognized to charge for whatever may be in excess, but he can fix the ordinary tariff of passenger fares high enough to afford him ample indemnity for the liability he so incurs ; and it is clear that, were the baggage liability diminished, the public would travel less fre- quently than they do at prevailing rates. By the ticket pur- §499; Hollisteru. Nowlen, 19 Wend, rally to a horse-railway, omnibus, 234 ; Hawkins v. Hoffman, 6 Hill, cab, or hackney coach, whose cus- 586 ; Peixotti v. M'Laughlin, 1 tomers are merely conveyed from Strobh. 468 ; Jones v. Voorhees, street to street. But the character 6 Ohio, .358 ; Hannibal R. v. Swift, of the business pursued is more ma- 12 Wall. 262 ; Merrill v. Grinnell, 30 terial than the nature of the vehicle ; N. Y. 594 ; Dunlap v. International and if the patrons of the carrier are Steamboat Co., 98 Mass. 371.; Smith such as take baggage with them — as V. Boston & Maine R., 44 N. H. .325, for instance, where a hackman or 330 ; N. Y. Central R. v. Fraloff, 100 omnibus owner drives to and from U. S. 24. a railway station — the liability for 1 McGill V. Rowand, 3 Penn. St. baggage is that of a common carrier. 451. See Dibble v. Brown, 12 Ga. 217. 2 Van Horn v. Kermit, 4 E. D. And see supra. Part VI. c. 2 ; Part Smith, 453. VII. c. 1. Semble not as a carrier 3 See Lord Holt, in 1 Comyns, 25. of "baggage," but rather of the The rule of the text applies to all trunk as merchandise, if specially carriers of passengers who travel paid for. § 676. customarily with baggage ; not natu- 720 CHAr. IV.] CARRIERS OF PASSENGERS. § G73 chase or otherwise, there should appear an implied contract for baggage without essential error or imposition.^ § G73. Carrier's Liability for •what is not strictly Baggage. — Some uncertaintj- prevails at our law concerning a passenger- carrier's liability for that which is not properly baggage, and yet has been accepted as though it were, or for the excess over reasonable baggage. Should merchandise be packed into a passenger's trunk, and put on board a train, it may be pre- sumed that the carrier was misled into receiving it, whether the passenger intended to deceive him or not ; and hence that he could claim, to say the least, all the privileges of a gratui- tous and unrewarded bailee.^ And, indeed, a passenger wlio tries to send things through in his closed trunk on a free transit, wliich he knows are not baggage but ought to be paid for as freight, has surely little countenance to ask from a court of justice ; his fraud debars him from recovery. But where the conduct of the passenger was fair and open, and the carrier or his proper agent must have known what he accepted, the case appears different. Here, supposing the passenger-carrier to have received, for a special recompense, what he saw was not baggage, the undertaking he assumes may be regarded as one for carrying such things through as a common carrier : not, perhaps, as a carrier of special baggage, but rather like any other carrier of freight.^ A passenger- carrier may refuse to carry as baggage what is not such ; * and even as to freight he is protected by the sco^ie of his vocation. If, however, the carrier receives that which obviously to him- self is not baggage, but merchandise, and checks it througli without demanding a special payment, nor, on the other hand, refuses to transport it with the passenger at all, how stands the carriage risk ? Simply as that of a carrier without re- ward, we may suppose, if circumstances warrant the inference 1 See 67 Conn. 417. Ailing v. Albany R., 12fi Mass. 121 ; 2 Cahill V. London R., 1-3 C. B. Haines v. Chicago R., 29 Minn. K50. N. 8. 818 ; Collins v. Boston & Maine •'' See § 687. R., 10 Cush. 606 ; 4 Mo. App. 582 ; * 70 Cal. 169. 46 721 § 673 THE LAW OP BAILMENTS. [PAKT VIL of an undertaking to do the passenger a mere favor. And, generally, a carrier becomes, as concerns personal property in his charge, which remains there unaffected by fare or freight, a bailee without recompense ; or, perhaps, if it were put into his vehicle without his knowledge or assent, and so remained, he would be no bailee at all ; and, once more, should the baggage agent and bailor transgress what both knew were plain rules of the company in the transaction, it might be said that the bailment was not to the company but to the baggage agent merely in his personal capacity. But any carrier who knows that he is transporting certain property may silently reserve his right to charge for the service at the end of the jour- ney; and hence the inclination shown, in some late railway precedents of the highest importance, to charge the passenger- carrier to the full extent of a common carrier of freight,^ where he receives from a bonct fide passenger articles which, packed so as not to have the false appearance of baggage, were offered him in good faith and as though to submit the test of baggage to his judgment; both parties being silent with regard to making a charge for the carriage.^ On the other hand, paying extra, as though for one's bag- gage of over-weight, is held not to entitle any passenger's concealed merchandise to go through as paid freight.^ But 1 For railway companies, it is re- ployes, it must be considered to membered, pursue a double vocation, assume, with reference to it, the being both carriers of passengers and liability of common carriers of mer- common carriers of goods and mer- chandise." And he further adds, chandise. that " if property offered with the 2 Great Northern R. v. Shepherd, passenger is not represented to be 8 Ex. 30 ; Hannibal R. v. Swift, 12 baggage, and it is not so packed as Wall. 262, 271 ; Chicago R. v. Conk- to assume that appearance, and it is lin, 32 Kan. 55. In Hannibal R. v. received for transportation on the Swift, Mr. Justice Field uses the fol- passenger train, there is no reason lowing language : " Where a railroad why the carrier shall not be held company receives for transportation, equally responsible for its safe con- in cars which accompany its passen- veyance as if it were placed on the ger trains, property of this character freight train, as undoubtedly he can [i.e. articles which do not consti- make the same charge for its car- tute personal baggage], in relation riage." to which no fraud or concealment is ^ Cincinnati R. v. Marcus, 38 111. practised or attempted upon its em- 722 CHAr. IV.] CARRIERS OF PASSENGERS. §074 wliere one pays freight bond fide for excess of baggage, the carrier who knows the shipment cannot evade his own full duty.i § 674. The Same Subject. — The reconciling principle of these decisions appears this : that the party who thus offers goods for transportation is bound to the observance of honest faith ; ^ but that, exercising such faith, he may throw it upon the carrier to put certain inquiries and to make timely assertion whether articles of doubtful kind or value shall go as baggage or not.'^ Thus is the rule stated by our highest American 210. Cf. Strouss v. Wabash R., 17 Fed. R. 209. 1 Hamburg Co. v. Gattman, 127 111. 598. 2 In the English House of Lords, a passenger who had sought to evade the' rules of a railway, which for- bade merchandise to be carried by passengers without being paid for as such, was not permitted to recover for its loss, notwithstanding a ser- vant of the company, on the journey, had it taken from the passenger car, whither he had brought it, and placed in a baggage car. Belfast R. v. Keys, 9 H. L. 656. And see Cahill v. Lon- don R., 10 C. B. N. s. 154 ; 13 C. B. N. s. 818 ; Smith v. Boston & Maine R., 44 N. H. 325 ; Flint R. v. Weir, 37 Mich. Ill ; Michigan Central R. v. Carrow, 73 III. 348. 8 So far do the courts favor, as against the carrier, a passenger who has practised no concealment or cun- ning artifice, that in one of our State courts, a railroad company was ad- judged strictly liable for the loss of caqDeting which a passenger had de- livered with his trunk to the bag- gage-master of a passenger train, notwithstanding it appeared in proof that no distinct price was asked or offered for its carriage, and the printed rules of the company forbade baggage- masters to receive articles of mer- chandise as baggage. The passenger being ignorant of these rules, it was deemed that acts of the agent within the usual scope of his employment would sufficiently bind the employer regardless of his private instructions. It might be added, however, that the carpeting so readilj' received appears to have been somewhat carelessly looked after, even on the theory of a lesser bailment re.sponsibility ; for the baggage-master, giving the passenger a check for his trunk, a.s.sured him that one check would do for both, and promised to strap the carpeting on the trunk, so that it would go safely. Minder v. Pacific R., 41 Mo. 503. But cf. Michigan Centi-al R. v. Carrow, 73 111. 348, which, together with a recent Massachusetts case, Ailing V. Boston & Albany R., 126 Mass. 121, appears to incline to the view that a passenger who gives his trunk silently to be checked as per- sonal baggage represents by implica- tion that it contains nothing else. But in each case the facts were peculitar. In the Massachusetts case it was claimed that the trunk, which contained samples of merchandise, was accepted by the carrier's agent as a "sample trunk," and that he knew it was such by its appearance. Bat the court held that there was no evidence that he knew this, and, at most, might only have suspected it. 723 § 675 THE LAW OF BAILMENTS. [PART VII. tribunal : if the traveller, by device or artifice, puts off inquiry as to value, and thus imposes on the carrier an extreme re- sponsibility, the loss is his own. But any passenger-carrier has the right to ask the value of the baggage offered ; and where neither legislation nor a special rule or contract of the carrier to the contrary is shown, nor conduct by the passenger misleading the carrier as to the value of the baggage, the mere failure of the passenger unasked to disclose such true value is not of itself a fraud upon the carrier, such as to de- feat recover}'- for a loss.^ There are extreme cases where a carrier may even require a statement of contents before con- senting to receive. 2 On the other hand, where it is not a question of excessive or doubtful baggage, and the carrier has no knowledge as to what was given him in a closed receptacle, the inclination is to exonerate him from a common carrier's risk for what was really no baggage.^ For while the common carrier may ask the value, he is not usually to inquire what a closed package contains, but rather to transport according to appearances and what the customer's conduct imports. And, at all events, the passenger may himself be debarred by his own conduct from claiming in case of loss that the articles carried were not "baggage " but " freight." * § 675. Rule that Passenger and Baggage should go together. — The implied undertaking of the passenger-carrier as to transporting baggage is that passenger and baggage shall go together; since all baggage is taken with reference to the See also Haines v. Chicago R., 29 ler, 35 Ohio St. 541 ; Haines v. Chi- Minn. 160, where the facts were cago R., 29 Minn. 160 ; 52 Kan. 398. similar. Blumenthal v. Maine Central R., 79 1 N. Y. Central R. v. Fraloff, 100 Me. 550, says rather too strongly U. S. 24. that such a bailment is "a legal 2 Norfolk R. u. Irvine, 85 Va. 217. fraud." Cf. 33 Fed. 412. But at 3 Thus is it with trunks which all events there should be no liabil- contain "merchandise samples" or ity here except for slight diligence, jewelry ; for it must be a passenger's Humphreys v. Perry, 148 U. S. 627 ; own fault if he does not know that § 686. this is not, properly speaking, his * jjogger v. Chicago R., 63 Wis. baggage. Ailing v. Albany R., 126 100. Mass. 121 ; Pennsylvania Co. v. Mil- 724 CHAP. IV.] CARRIERS OF PASSENGERS. § 677 wants of a particular journey. The convenience of the trav- elling public, and the carrier's own security against the impo- sition of strangers, alike favor such an understanding. If, then, the passenger has his baggage sent some dnys after his own departure, the carrier, who is not at fault for the delay, may treat it as freight, and charge accordingly ; and upon liis right to do so must depend what degree of liability may exist for a loss occasioned in the course of its transportation.^ Nor ought the carrier, without permission, to send the bag- gage by later trains or a different route, unless in a strong case of necessity.^ We need hardly add that if through the carrier's own fault passenger and baggage become separated, the carrier bears the risk. § 67G. Baggage Express distinguished ; -where Passenger is not taken. — Common carriage liability as for mere baggage is limited to cases where the baggage is carried only as an incident to the passenger's payment of a fare. Where, there- fore, a traveller delivers a trunk to a city baggage express- man, to be transported for hire from the depot to a hotel, or elsewhere, and he takes no personal passage in the conveyance, the expressman is held answerable, not for articles useful and convenient for a journey alone, but for the trunk and entire contents, like an}^ carrier of merchandise.^ § 677. When the Carrier's Liability for Baggage commences. — The delivery of baggage to the carrier of passengers and his acceptance thereof illustrates the doctrine of a previous chapter.* As soon as the passenger-carrier or his baggage- agent accepts the thing from the traveller for present trans- portation, the risk of carrier will properly commence ; not, however, when it comes into his hands to be stored, awaiting 1 Wilson V. Grand Trunk R. , 56 way by giving up the check intrusted Me. 60. But of. Logan v. Pontchar- to him. 42 La. Ann. 696. And see train R., 11 Rob. (La.) 24. 123 N. Y. 36.3. ■•* See Fairfax v. N. Y. Central R., * See Part VI. c. 3, as to the 73 N. Y. 167. common carrier's duty to receive, 3 Parmelee v. Lowitz, 74 111. 116. and what constitutes a bailment of Such baggage expressman must not the property, abet extortionate charges by the rail- 725 § 677 THE LAW OF BAILMENTS. [PAKT VII. the owner's further orders. A strict interpretation of railway rules might seem to require the passenger to buy his fare ticket, show it to the baggage-master, and get from him checks or labels, whose duplicates the carrier must affix to the trunks or packages, as a means of identifying them ; and that all this ought to be done before the passenger can charge the company with acceptance. Yet checking or labelling bag- gage, and the delivery of such tokens to the traveller, whether the fare has been paid or not, by no means concludes the date of acceptance for carriage, which, in point of fact, may have been considerably earlier. In the hurry of loading and start- ing passenger trains, baggage may be accepted off-hand, with- out the pursuance of strict formalities, and even before the passenger has bought his own ticket. Checks afford, doubt- less, the best evidence, in general, of baggage acceptance ; and yet, while some railways, to increase their custom, will send checking agents to the owner's abode, and there make acceptance of baggage and assume full risks, it is not uncom- mon for steamboats, while taking the trunks on board with the passenger, to delay checking, if they check at all, or is- suing a bill of lading, until the boat has left its pier ; so, too, may passengers by land or water be expected, as a matter of convenience, to give up or exchange their checks shortly be- fore some terminus is reached, in expectation of some new and different carriage. Circumstances, then, must determine the date of the delivery and acceptance of baggage, indepen- dently of mere forms. Cases, indeed, have been decided, where acceptance was held to have closed upon the delivery of baggage, hours before the train or vehicle was ready to start. It is now customary and incumbent upon every railway to keep an agent at all important stations, to receive and take charge of the passen- ger's baggage.-' And where this agent receives baggage from a passenger who awaits the train, the presumption naturally arises that he assumes, on behalf of the company, the car- riage, and not the warehouse relation, even though he should 1 Jordan v. Fall River R., 5 Cush. 69. 726 CHAP. IV.] CARRIERS OF PASSENGERS. §678 defer giving a check until later ; and American courts incline to favor the convenience of travellers in this respect, where the issue of acceptance appears in doubt.^ The checking agent's absence from his post cannot, of course, be set up to exonerate the company's acceptance by a temporary substitute, or otherwise.^ § 678. The Same Subject. — There should, however, be an actual or constructive acceptance of the baggage for present transportation by the carrier in all such cases, in order to bind him as insurer.^ And the receipt by a freight-agent, of a person's trunk, to be stored over night, and taken next day to the passenger depot to be checked for transportation, may render the company no more than a custodian, and that only a gratuitous one.* Where, in short, articles constituting bag- gage are received, whose owner does not intend yet to travel, 1 In Hickox v. Naugatuck R., .31 Conn. 281, a railway company was held liable as carrier for a passenger's trunk received for the next train, which was to leave several hours later, though, according to custom, no check was to be given until fif- teen minutes before the train left. In the opinion pronounced by Butler, J., in this case, appears a somewhat misleading statement concerning the custom of checking baggage ; namely, that it can have no efifect upon the character of the delivery. Admitting that a check is in the nature of a re- ceipt, and not the contract, but evi- dence of the ownership, delivery, and identity of the baggage, we should also keep in mind that it is the means, and often the only one, of ascertaining the thing's destination. The presentcase, however, was rightly decided ; for, as the report incident- ally shows, the passenger, when he brought the trunk, told the baggage- ma.ster to what place he wished it sent. But trunks are rarely left with so explicit a direction in advance of being checked ; and for baggage thus received by a railway agent without knowledge of its destination the company ought not to be held to the strict relation of carrier, but rather to that of warehouseman, whose obligation to transport re- mains in suspense until the owner gives further directions. Spade v. Hudson River R., 16 Barb. 383. A railway train which makes many stops is not on precisely the same footing in this respect as a boat which carries all freight, p&ssengers, and baggage between two fixed points. Cf. Camden R. v. Belknap, 21 Wend. 354. For latest English authority, see Bunch V. Great Western R., 17 Q. B. D. 215. 2 Jordan v. Fall River R., 5 Cush. 69 ; Freeman v. Newton, 3 E. D. Smith, 246. And see Fairfax v. New York R., 67 N. Y. 11. 8 Wright V. Caldwell, 3 Mich. 51 ; Butler V. Hudson River R., 3 E. D. Smith, 571 ; Gasway v. Atlanta R., 58 Ga. 216. * Van Gilder v. Chicago R., 44 Iowa, 548. 727 § 679 THE LAW OF BAILMENTS. [PART VII. or may not travel at all, the Lailment being merely on storage for the owner's temporary convenience, the carrier is liable in our law only for gross negligence, should loss or damage be occasioned to the property.^ Where, however, on the other hand, the baggage is received for present transportation and delay in the baggage room is for the carrier's convenience only, the carrier is strictly liable.^ § G79. Reciprocal Duties of Passenger and Carrier as to Receiving. — The carrier and his passenger have reciprocal duties in the bailment of baggage. The one cannot violate his obligations to the public by an arbitrary selection of his patrons, nor refuse to receive the reasonable baggage as inci- dental to the fare of one who rightfully offers himself for the journey as a passenger, and is ready to pay the usual fare in advance ; ^ moreover, it rests upon him to make known his objections seasonably, if any exist, for declining to receive pas- senger or baggage, so as not to force the applicant into any false posture unfairly.* On the other hand, reasonable rules of the carrier must here as elsewhere be complied with ; if baggage is offered, one should be ready to pay his passenger fare in advance ; nor can any passenger require that his trunk, chest, or valise be accepted at an unseasonable time or place, or that more than his proper baggage be taken without extra remuneration. And as the carrier may waive his own rights in such a case, so may the passenger.^ 1 Clark V. Eastern R., 139 Mass. was paid, alleging that the tickets 423, where the trunk was stored in a presented would not pass so much room which contained oil and cotton baggage. The passenger then de- waste, and accidental fire occurred ; manded his trunks, declining to go Little Rock R. v. Hunter, 42 Ark, on the train, but the baggage-master 200 ; Laffrey v. Grummond, 74 Mich, said he had not time to take them 186. out of the car. The baggage was 2 Shaw V. Northern R., 40 Minn, sent without the passengers. These 144. circumstances were found to consti- 3 Supra, c. 1. tute nominally a conversion, the * In McCormick v. Pennsylvania baggage- master's refusal to restore Central R., 80 N. Y. 353, a passen- the trunks being inexcusable. See ger bought tickets for his family, ib. 99 N. Y. 65. The baggage-master would not check ^ Cf. McCormick v. Pennsylvania all the trunks unless an extra charge Central R. , 80 N. Y. 353 ; ib. 99 728 CHAr. IV.] CARRIERS OF PASSENGERS. § G80 Moreover, as in the transportation of goods and merchan- dise for hire, the customer shoukl fasten properly what he offers and have it duly marked, unless, indeed, the carrier's check or label suffices; since otherwise a loss or misdelivery may be chargeable to his own carelessness. He must not practise deception ; and he must, besides, yield possession and control to the carrier in order to make the latter fully liable.i § 680. Bailment of Hand-Baggage ; Mixed Custody. — Cer- tainly no acceptance for reward arises where a passenger delivers as his baggage that which really secretes another's goods, or even his own merchandise.^ But as to yielding custody to the carrier, the rule is a difficult one where the passenger's hand-baggage is concerned. For a passenger's personal apparel and effects, which he retains about his per- son while travelling, a carrier is held to assume no strict responsibility, inasmuch as they are not confided to his keep- ing.3 So is it where loss occurs before the carrier has started, and the baggage has not been intrusted to the carrier or his servant for immediate transportation.* For money which the passenger carries in his pocket, the carrier is not strictly liable.^ Nor for the valise or effects which a traveller by water keeps in his berth and under his exclusive care.^ Upon the point whether a steamboat passenger can hold the steam- boat to a common carrier's risks for articles which he retains N. Y. 65. If the bacrgage-master and thereby save the freight. Miles checks a trunk before the passenger v. Cattle, G Bing. 74;). And see buy.s his ticket, the carrier is liable, Duiilap v. International Steamboat though this course should be contrary Co., 08 Mass. 371. to the company's rule. Lake Shore ^ u, . supra, §§ G73, 074. R, V. Foster, 104 Ind. 203. 3 Tower v. Utica R., 7 Hill, 47 ; 1 See supra, Part VI. c. 3. De- Angell Carriers, §§ 113, 140, 141. livering a parcel to a friend, with * Bcrghcim v. Great Eastern R., instructions to have the common 3 C. P. D. 221. carrier book it to London, leaves ^ Abbott v. Bradstreet, 55 Me. the friend the responsible bailee, in 530. case of loss, if, instead of so doing, ^ Cohen v. Frost, 2 Duer, 335. the latter puts tlie ])arcel into his And see Pullman Palace Car Co. v. own carpet-bag, intending to take it Smith, 73 111. 300. personally on his passage to London, 729 § 682 THE LAW OF BAILMENTS. [PART VII. uiidur his own immediate care in his state-room, authorities do not harmonize.^ In short, it is often assumed that for a passenger's hand-baggage the carrier assumes no responsi- bility ; though one should say rather that there is here a sort of mixed custody, in which both passenger and carrier participate.^ § 081. Common-Law Liability for Baggage stated. — If, then, the liability of a earlier for his passenger's baggage be that of a common carrier, it follows at common law the familiar rule already announced ; so that in case of an accident it might sometimes occur that the carrier would be legally liable for the baggage, though not for loss or injury to the passenger himself ; the standard for the two cases being set differently.^ And it is readily perceived that for such articles as the law pronounces baggage, the public passenger-carrier who once becomes charged with a full bailment delivery from the owner, and acceptance, stands bound to answer wherever a loss or injury occurs thereto, which cannot, by way of excuse, be attributed to act of God, act of public enemies, act of the customer, or act of public authority.^ But any such excuse is of course available in defence.^ § 682. Liability for Hand-Baggage, etc., considered. — But our decisions do not yet make it quite plain how far, for property which is taken in the vehicle by a passenger on the strength of having paid his passage fare, the carrier may incur a bailment liability, when that property is either hand- 1 The carrier is held thus liafele in 453 ; Welch v. Pullman Palace Car Mudgett V. Bay State Steamboat Co., Co. , 1 Sheld. N. Y. Super. 457, 1 Daly (N. Y,), 151; Gore -y. Nor- '-^ Posi, § 682. wich Trans. Co., 2 Daly (N. Y.), 254. s Supra, c. 2. But see, contra, Steamboat Crystal ^ Macrow v. Great Western R., Palace v. Vanderpool, 16 B. Mon. L. R. 6 Q. B. 612, 618 ; Story Bailm. .302 ; Clark v. Burns, 118 Mass. 275 ; § 499 ; Brooke v. Pickwick, 4 Bing. Abbott V. Bradstreet, 55 Me. 530 ; 218 ; Camden & Amboy R. v. Belk- American Steamship Co. v. Bryan, nap, 21 AVend. 354 ; Angell Carriers, 83 Penn. St. 446. The court were §§ 107-116 ; 2 Redfield Railways, equally divided in McKee v. Owen, § 155 ; s^q)ra, §§ 405, 672 ; Dill v. 15 Mich. 115. And see Gleason v. South Carolina R., 7 Rich. 158. Goodrich Trans. Co., 32 Wis. 85 ; * Thus, loss by flood excuses. 147 Van Horn v. Kermit, 4 E. D. Smith, Penn. St. 343. 730 CHAP. IV.] CARKIERS OF PASSENGERS. § 682 baggage which he cares for himself or, because of its kind or value, it falls short of the legal and extraordinary protection of " baggage." ^ The implied undertaking of the carrier towards one who purchases a passage-ticket is, doubtless, to carry the passenger himself, with the lesser liability of a passenger-carrier, and tlie passenger's articles of pei-sonal convenience and necessity for the journey, known as "bag- gage," in the more onerous capacity of common carrier. Here it is rational to assert that, in general, for a passenger's wear- ing-apparel in actual use, his cane, umbrella, shawl, hand- satchel, or whatever else he may have about his person, not committed specially to the baggage servants of the carrier, the latter runs little practical risk ; ^ and the same as to money and valuables, which the passenger takes exclusively, secretly, and unconfidingly on his person, especially if this be of exceeding value ; ^ consequently the passenger, in respect of such property, must naturally bear his own loss. The case seems very much like other cases of a mixed custody else- where dwelt upon.* Now, it seems hardly logical to assert that where one, with the carrier's knowledge and assent, takes articles, like an overcoat, umbrella, valise, or carpet-bag, which might have been committed to the carrier's exclusive custody as baggage, into the car or state-room which he occupies, and places them near his seat, so that he can see, and if need be use them, they are transported in fact with him, and yet in the legal sense were not bailed to the carrier at all. Passengers must have certain of their baggage about them, if the very term " bafffjajxe " subserves its own definition. And the custom of thus depositing baggage is expressly sanctioned by the carrier himself, in numerous modern instances : where, for example, not only a van or baggage car is provided, but racks overhead in the passenger cars ; or, where a posted notice 1 Cohen v. Frost, 2 Duer, 335 ; ^ ib. Abbott V. liradstreet, 55 Me. 530 ; * See Abbott v. Bradstreet, 55 Me. Tower v. Utica R., 7 Hill, 47 ; Au- 530 ; Weeks v. New York R., 72 gell Carriers, §§113, 140; supra, N. Y. 50. §§ 35G-3G1, 680. * § 400. 731 § 683 THE LAW OF BAILMENTS. [PAET VII. announces that passengers may retain their seats by deposit- ing such articles upon them. In a stage-coach, on a hack, and in various other passenger vehicles, all baggage is carried where the passenger may see it, and one values the oppor- tunity of having an eye, as it is said, to the carrier's perform- ance of his own duty. Rather should we say that for such light baggage of which the passenger has control there is a bailment with a mixed custody and a mixed bailment respon- sibility ; that the passenger-carrier assumes by implication his own legal risk of a public vocation towards them, under the qualification that the owner, on his part, and to tlie ex- tent of his own control, shall exercise ordinary care and dili- gence. For, to give a modern application to the law, as defined in one of the English stage-coach cases, "if a man travel in a stage-coach [or other public vehicle] and take his portmanteau with him, though he has his eye upon the port- manteau, yet the carrier is not absolved from his responsi- bility, but will be liable if the portmanteau be lost." ^ § 683. The Same Subject. — Hence, where a passenger's baggage is, at his request, put into the car he properly occu- pies, and stolen while he negligently rides in another car, the careless act of the passenger will be assumed the occasion of the loss, so as of itself sufficiently to excuse the carrier ; for the owner had bound himself by implication to keep up a personal guard and exercise due diligence for the safety of his own effects.^ His careless exposure of valuables contained in a satchel to the gaze of strangers, his blind incredulity, or his foolish non-resistance against thieves who enter the car and seek to victimize him, might in like manner bear in proof against him.^ And, generally speaking, where the passenger keeps articles of baggage exclusively about his person, it may be presumed that whatever loss occurs is excusable to the carrier on the plea of the passenger's own act ; and at all 1 Robinson v. Dunmore, per v. Great Eastern R., 3 C. P. D. Chambre, J., 2 B. & P. 416, 419. 221; Bunch ?;. Great Western R., 17 Cf. Clark v. Burns, 118 Mass. 275. Q. B. D. 215. 2 Talley v. Great Western R., 3 Willes, J., in Talley v. Great L. R, 6 C. P. 44. And see Bergheim Western R., supra. 732 CHAP. IV.] CARRIERS OF PASSENGERS. § 684 events the passenger must suffer for his own carelessness and imprudence.^ Yet the passenger-carrier, as it would appear, remains chargeable as extraordinary bailee on his part, exercising a public vocation, whenever aware, himself or by his suitable agents, that articles of baggage are thus retained near by the passenger on the journey, and where by his own acts and conduct he assents thereto ; so that, if loss should appear without imputing fault to the passenger he must show some good cause of exemption, or else bear the consequences.^ And the proper standard of liability for such cases ap2)ears to be that of common carrier.^ § 684. The Same Subject. — Where, however, baggage is retained in the passenger's secret and exclusive custod}^ of which no notice whatever is brought to the carrier, and no assent to the transportation can be presumed, the carrier ought not, as it seems, to be holden responsible at all ; and more especially if the place of actual deposit selected be unusual, unfit, and such as invites danger. The utter want of a delivery, and of acceptance, actual or constructive, on the carrier's part, might well be alleged here to negative the idea tliat a bailment was created ; though the act of the owner would almost invariably, under such circumstances, excuse the carrier, should loss occur, even upon the theory of a bailment undertaking ; * while, bailment or no bailment, 1 In Whitney v. Pullman Car Co., gage which a passenger hy water 143 Mass. 243, the plaintiff absented keeps in his state-room, see supra, herself from the car at a way-sta- § 680. On the same reasoning as tion for several minutes, leaving her above, it seems illogical to assert that satchel of valuables silently on the the permitted carriage of baggage in window-sill, from which place it was the passenger's state-room is no bail- stolen. And see Henderson v. Louis- ment of baggage to the carrier. ville R., 123 U. S. 61. » Bunch v. Great Western R., 2 See Cockburn, C. J., in Le Con- [1888], 17 Q. B. D. 215 ; aff. 13 App. teur V. London & South- Western R., Cas. 31. L. R. 1 Q. B, 54 ; Butcher v. London * See Glea.son v. Goodrich Trans. R., IOC. B. 13; Richards V. London Co., 32 Wis. 85. And cf., as to a R., 7 C. B. 839. passenger's watch or jewelry on his As to the conflict of authority re- person, Clark v. Burns, 118 Mass. garding a carrier's liability for bag- 276 ; Steamboat Crystal Palace v. 733 § G85 THE LAW OF BAILMENTS [PAET VII. the carrier ought to respond if it were shown that the loss was by his wrong. § 684 a. Loss of Hand-Baggage, etc., in Sleeping-Car. — A passenger in a sleeping-car left his hand-bag while he went to dinner. He did not leave it there carelessly or silently, but spoke to an employ^, who informed him that it would be safe. While he was gone the car was locked and detached. Upon his return he was directed to take his seat in another sleeping-car where he would find his baggage. But only part of his baggage was found there, and he sued the railroad company for its loss. It was held that the jury were war- ranted in finding that his missing bag was lost through the company's negligence ; and that no private arrangement be- tween the company and the proprietor of the first sleeping-car could obstruct his remedy.^ In other instances a sleeping- car company, though no common carrier, strictly speaking, has been held liable for thefts occurring through the failure of the car company to keep a proper watch on the premises by night, or other want of ordinary diligence.^ § 685. Carrier's Rules as to Special Articles, Animals, etc. — While a common carrier may require that trunks and pack- ages delivered him as baggage be properly fastened and secured, he cannot enforce such unreasonable rules in this respect as to transfer to an unwilling passenger his own bur- densome risks. Thus, the regulation of a railway company, Vanderpool, 16 B. Mon. 302 ; Abbott answerable accordingly. To hold a V. Bradstreet, 55 Me. 530. sleeping-car company thus liable, 1 Kinsley v. Lake Shore R., 125 negligence or default must be accord- Mass. 54. And see Carpenter v. ingly proved, and not simply a loss. New York R., 124 N. Y. 53; 16 67 How. (N. Y.) Pr. 154 ; 95 Ga.810. Lea, 380; 72 Iowa, 228 ; 69 Tex. 120. We may add that under the gen- 2 Woodruff Co. V. Diehl, 84 Ind. eral law of torts, and aside from any 474 ; Lewis v. Sleeping-Car Co., 143 breach of contract or strict bailment, Mass. 267 ; Pullman Car v. Martin, one renders himself liable for caus- 92 Ga. 161 ; 28 Neb. 239. In such a ing loss or injury to another who is case the loss occurs where the cus- not in default, by his own negligence tody is mixed, through the defend- or misconduct. As to theft by the ant's want of ordinary care. If not porter, see Pullman Car Co. v. Gavin, liable as common carrier, he is at 93 Tenn. 63 ; 95 Ga. 314. A special all events a bailee for reward and bailment duty thus appears. 734 CHAP. lY.] CARRIERS OF PASSENGERS. § 686 to tlie effect that small articles, like coats, umbrellas, and sticks must either be kept by the passenger in his personal custody, and at his personal risk, or else be specially paid for as freight, is in derogation of the legal riglit of passengers to have their reasonable baggage transported without special charge; and, if such tilings be wrapped up strongly and properly marked, though it be only in a shawl fastened with a strap, the compa.ny is bound to accept and enTry them as baggage. 1 A rule is reasonable which requires all dogs to be carried in a baggage and not a passenger car.^ § 686. Liability for Articles, not Baggage, taken by the Pas- senger. — Once more, where a passenger takes with him things which are outside' the privilege and legal protection of baggage, the manner and circumstances of taking, caring for, and transporting bear considerably on the issue of car- riage responsibility. 1. Things of this ^cind concealed about one's person, as, for instance, valuable securities or a large sum of money, are taken by the passenger, if not with actual intent to impose falsely on the carrier, at all events with insufficient confidence in him to create a bailment obligation. The absence of an offer for bailment, and of all manner of notice that this property was in transit, must have prevented the passenger-carrier from exacting on his behalf the special compensation to which he would be legally entitled as a carrier of freight, and from making such reasonable provi- sion against the dangers of the journey as the increased hazards on his part demanded. ^ There is no inconsistency 1 Munster v. South-Eastem R., 4 8 yirgt Nat. Bank v. Marietta R., C. B. N. s. 676. This supposes that 20 Ohio St. 259 ; Haines v. Chicago the passenger does not transcend R., 29 Minn. 160; 20 Fed. R. 4.30; recognized rules which limit the 61 Fed. 796 ; Henderson v. Louisville weight, dimensions, and value of R., 123 U. S. 01. baggage for every passenger. Weeks v. New York R., 72 N. Y. 2 Kansas City R. v. Higdon, 94 50 (1878), is a singular case. The Ala. 286. But qu. as to requiring plaintiff was a passenger on the fees paid to baggage-master. lb. ; defendants' cars. The car was §§ 689, 690. See as to guns, 66 detached for a moment, near the Tex. 603. terminus, waiting to be finally car- 736 $ 686 THE LAW OF BAILMENTS. [part VIL in saying that, under sucli circumstances, no bailment under- taking has been assumed by the passenger-carrier, and that wliatever liability may exist at all depends upon the general law of torts. 2. But of articles not legally one's baggage, which are given in fact into the passenger-carrier's custody, having the appearance of baggage, and as though they were such, — as, for instance, one's merchandise and valuables, samples, or a friend's property in a trunk, — we cannot so clearly pro- ried into the depot. While it was thus standing some persons entered the car, forcibly assaulted the plain- tiff, and stole from his person bonds of the value of $10,000. He sued to recover the property. On the present appeal the plaintiff's right to recover was put upon the ground that the carrier ought to have pro- tected the person of his passenger from violence ; but this, the court held, was untenable. Nor could the plaintiff recover, as the court also decided, on the supposition that his purchase of a passenger ticket obliged the railway to carry safely this valu- able property, of whose existence its servants had no knowledge. "If the claim of the plaintiff is to be sustained," observed Folger, J., "it must be held that, from the circum- stances of the case, the defendant owed such duty to the plaintiff as that it was an insurer of the safe carriage of his securities, in the mode of carriage adopted by him, and for no greater consideration than the usual price paid by any passenger on its cars, and without knowledge or notice that he had them upon his person." It should be noted that the pas- senger, in this case, had not con- tributed by his negligence to the loss ; this was admitted in the de- cisions, and, in fact, the verdict in the court below (afterwards set aside, 736 and on that issue appealed) was for the plaintiff. Stress was here laid by the court (1) upon the value of the package, so excessive and so alien to the character of ordinary baggage as to render it very doubt- ful whether the passenger-carrier could have been compelled to take charge of it under any circum- stances ; (2) upon the absence of notice of such property to the car- rier. But had the passenger been thus forcibly deprived of his overcoat, his cane, umbrella, or possibly his wallet with needful travelling money, in short, of what we may call "hand- baggage," we much question whether a decision like this would have been righteous. For it might have been contended that towards articles so constantly and needfully carried by a passenger about him, and exposed, most likely, to the sight of the carri- er's servants, who made no objection thereto, the carrier had assumed the duty of a gratuitous bailee, if no more, so as to be chargeable in any case, for gross negligence which occa- sioned their loss. See Jordan v. Fall River R., 5 Cush. 69. Indeed, we should say that towards such " hand- baggage " the carrier incurs the full risk of common carrier, modified, however, by the fact of a mixed cus- tody, as where a drover travels with cattle. CHAP. IV.] CARRIERS OF PASSENGERS. § 68G nounce that, in theory and actual fact, there is no baihnent to the carrier at all. Tliere surely seems to be delivery and acceptance, though it were of a closed receptacle with its contents, or of that which outwardly appeared to be some- thing else. And yet, granting that such a bailment took place, and that the passenger-carrier is by occupation a com- mon carrier likewise, the carrier is here without due oppor- tunity of charging freight upon it, and devoting especial care to its safety, because of the knowledge withheld from him ; and hence his responsibility should be rated no higher than that of a bailee without reward, whose acceptance was ac- cording to false appearances. And, since a passenger may most innocently and naturally have packed into his trunk things serviceable only with reference to his place of destina- tion, saying and doing nothing to put the carrier off his guard, and relying upon an acceptance thereof without ques- tion or proviso, we may conclude it not an irrational pre- sumption that, for such contents of his passenger's closed receptacle as may prove to be literally " baggage," the bailee assumes to be a common carrier, and, as for the rest, a gra- tuitous carrier.^ For if a trunk, checked and accepted by a railway company, is with such gross carelessness placed on a pile in an open baggage car, and left unwatched, that it drops out while the train is in full motion, shall it be said that the company can set up, in total or partial exoneration from liability, that the trunk contains bed-clothes instead of shirts, or money amounting not to ten dollars, but a "thou- sand? Our presumption, then, best comports with the public welfare; and, even thus, the owner's negligent or wilful acts contributing to the injury are clearly available to the carrier in defence, though the latter party be pro- nounced a bailee. 1 See the limitations laid down by Refusal to stop or detain a run- the court in Jordan v. Fall River R., nlng train on account of such losses 5 Cush. GO ; Michigan Central R. v. can hardly be imputed as negligence Carrow, 73 111. 348 ; Ross v. Missouri to a carrier. 123 U. S. 61 ; Cobb v. R., 4 Mo. App. 582 ; Flint R. v. Great Western R., [1894] 419. Weir, 37 Mich. Ill; §674. 47 737 § 687 THE LAW OF BAILMENTS. [PAIIT VII. But the carrier might be fully informed of the contents of such a trunk, and expressly assume towards it by his acts the character of ordinary or exceptional bailee according to the circumstances.-^ § 687. The Same Subject. — 3. Yet, in some decisions, the rule appears to be laid down differently ; and so as to favor rather the presumption that any trunk or package accepted b}^ the passenger-carrier from the passenger is so exclusively accepted for baggage only, that, if it should prove to contain other articles, the carrier, who took it according to appear- ances, shall not, as to these articles, be regarded a bailee at all. The carrier has thus been excused where the package contained merchandise only, and was deceitfully done up or marked; 2 where large sums of mone\^ and valuable secu- rities (which it is by no means certain that a railway or steamboat is bound to carry simply at all), belonging to some third party, were smuggled into the carrier's keeping ; ^ and more particularly when the passenger must have known that he transgressed the carrier's rules, and sought to put an undue risk upon him in making such bailment.* Though the intimation in such cases is frequently that there was no contract, — no bailment undertaking at all, — on the passen- ger-carrier's part, the better reason seems to indicate that a bailment undertaking was assumed, as above, from whose disastrous consequences the imputation to the passenger of bad faith or carelessness, and his failure to give an oppor- tunity of charging and caring for the articles as freight, and the general maxim, moreover, that a common carrier may carry things according to appearances, practically absolve the carrier. 4. But, where articles not baggage are openly confided as 1 As in Pennsylvania Co. v. Mil- boat Co., 98 Mass. 371. And see ler, 35 Ohio St. 541 ; Strouss v. Wa- Sewall v. Allen, 6 Wend. 335 ; supra, bash K., 17 Fed. R. 209. §§ 423, 674. 2 Cahill V. London R., 10 C. B. * Belfast R. v. Keys, 9 H. L. 556 ; N. s. 154. Smith v. Boston & Maine R., 44 N. H. 3 Dunlap V. International Steam- 325 ; § 674. 738 CHAP. IV.] CARRIERS OF PASSENGERS. § G89 such by the passenger, or so consigned to tlie carrier's keep- ing that he must needs have perceived their true character, the better disposition is to charge the carrier wlio makes no objection to receiving them, as on a baihnent undertaking f(jr their conveyance. For here the presumption is justiliable that the carrier consented to become at least a gratuitous bailee ; and some courts have gone even farther, and asserted that such an acceptance by a railway would be that of a common car- rier, inasmuch as the carrier is left at perfect liberty to charge special freight.^ § 688. Carrier may charge Freight for what is not Baggage. — Under any circumstances, a carrier is entitled to charge freight for that which he receives as baggage, and afterwards discovers is not entitled to carriage under that privilege.^ § 689. Special Contract Terms affecting Liability for Baggage. — Special contract terms modifying his liability for baggage may be imposed by the carrier, subject to the conditions else- where discussed : namely, that such terms (1) shall be con- sonant with public policy and (2) seasonably brought to the passenger's knowledge.^ In England, a passenger carrier by w^ater has been granted immunity from liability for the loss of baggage through the captain's negligence, where the plaintiff's passage-ticket con- tained a condition that the vessel-owners would not consider themselves accountable for such property unless a bill of lading was signed therefor ; and the evidence showing that ^ Great Northern R. v. Shepherd, Tickets which are used for pas- 8 Ex. 30 ; 3 E. D. Smith, 671 ; Mia- senger travel are generally hurriedly ter V. Pacific R., 41 Mo. 503 ; Collins bought by those who must hurriedly V. Boston & Maine R., 10 Cush. 506 ; get their baggage taken in charge, Strou.ss V. Wabash R., 17 Fed. 209 ; and find their places. The passen- Perley v. N. Y. Central R., 65 N. Y. ger's main concern is that the docu- 374 ; 60 Ark. 433 ; Glasco v. New ment shall take him to a certain York R., 36 Barb. 557; Sloman v. destination; and neither such tickets Great Western R., 67 N. Y. 208 ; nor baggage checks or tokens, if in- Ilaunibal R. v. Swift, 12 Wall, scribed with special restrictions for 262. baggage liability, would readily at- 2 Rumsey v. North-Eastern R., tract a traveller's attention before he 14 C. B. N. s. 641. had actually bailed his baggage and ' Supra, Part VI. c. 5. started on the journey. 739 § 690 THE LAW OF BAILMENTS. [PAKT ViL no such bill was either offered or demanded.^ Railway car- riers, too, have been allowed to exclude by general notice all liability whatsoever for baggage taken on cheap excursion trains ; and this, notwithstanding the purchaser of a ticket knows nothing of the condition, nor is allowed to keep his trunk under his own control.'^ But if either the land or water carrier of passengers pro- poses special conditions as to accepting baggage, he must afford to the owner a due opportunity of complying with them, so far as action on his part may be needful.^ And it seems not unworthy of suggestion that any interchange of checks or identification of baggage will take place more fitly upon a steamboat than a railway train, after the transit has actually begun. § 690. The Same Subject. — In this country, where common carriers are not permitted by mere legal construction to divest themselves so completely of bailment responsibility as in England, and where, too, legislation less influences the course of precedents,* the cases stop short of such conclusions. They refuse to permit the baggage risk to be shifted wholly upon the traveller who has yielded up the control of his effects ; ^ they discountenance imposing carriage conditions by general notice ; ^ they even decline to pronounce stipulations, 1 Wilton V. Atlantic Steam Nav. the care of baggage unless booked Co., 10 C. B. N. s. 453. and paid for, but failed to show that 2 Stewart v. London R., 3 H. & means for booking were provided. C. 135 ; Rumsey v. North-Eastern R., In Harris v. Great Western R., 14 C. B. N. s. 641. But see § 691. 1 Q. B. D. 515, a passenger was Where baggage on a steamer was charged with notice of conditions destroyed and the passenger had re- concerning baggage which were on ceived a folded ticket with a written the back of his ticket. But see limitation of liability which could contra, Henderson v. Stevenson, L. not be seen until the ticket was un- R. 2 H. L. Sc. 470. folded, a jury was permitted to find * See supra, Part VI, c. 5. that the passenger knew there was ^ Camden & Amboy R. v. Baldauf, writing but did not know what was 16 Penn. St. 67. written. Richardson v. Rountree, ^ Malone v. Boston & Worcester [1894] A. C. 217. R., 12 Gray, 388 ; Nevins v. Bay 3 Great Western R. v. Goodman, State Steamboat Co., 4 Bosw. 225; 12 C. B. 312. Here a railway com- Camden & Amboy R. v. Baldauf, 16 pany disclaimed all responsibility for Penn. St. 67 ; Davidson v. Graham, 740 CHAP. IV.] CARRIERS OF PASSENGERS. § 690 written, stamped, or printed upon the passenger's ticket or baggage token available for the carrier's protection equally with those contained in an ocean bill of lading.^ Limitations printed on tlie back of a ticket or in almost illegible type are of very doubtful efficacy.'^ Conditions as to baggage consist- ent with the relation of a private carrier may, doubtless, be established upon the passenger's knowledge and assent ; and the latter party will be assumed to have consented to such modifying terms as he is made aware of in good season, and does not then refuse to be bound to ; but baggage conditions which are not brought home to him until his journey has actu- ally commenced — as if a railway passenger, not previously notified, should first read the limiting notice of baggage lia- bility, printed on his ticket, after his train has started — will not be held binding upon him.^ Nor do special stipulations which are brought to a traveller's notice by night in a dimly lighted car find favor.^ The mere receipt of a ticket consti- tutes no contract.^ The special conditions most favored by passenger-carriers as to baggage are such as tend to restrict the weight and value thereof, and limit the baggage responsibility accordingly.^ The rules of special contract in freight, both as to policy of 2 Ohio St. 131 ; Jones v. Voorhees, the case of a passenger whose check 10 Ohio, 145. is taken by a baggage transfer ex- 1 Hopkins v. Westcott, 6 Blatchf. press. And see Verner v. Sweitzer, 64 ; Blossom v. Dodd, 43 N. Y. 204. 32 Penn. St. 208. The liability of a railroad company ^ 38 Kan. 45. for loss of a passenger's baggage is ^ See Rawson v. Penn. R., 48 N. Y. not limited by a notice printed on 212. Such a special stipulation as con- the face of his ticket, unless his cerns a steamship passenger (though attention is seasonably called to the the stipulation was not unfair) is notice, or unless circumstances are favored to an extreme in Steers v. such as to make it negligence not to Liverpool Steamship Co., 57 N. Y, 1. read it. 23 Fed. R. 765. And the presumption of assent is 2 Supra, Part "VI. c. 5. put more strongly here than would 8 Rawson v. Penn. R., 48 N. Y. be warranted in the ca.se of railway 212 ; Nevins v. Bay State Steamboat transportation of passengers and bag- Co., 4 Bosw. 225 ; 16 N. Y. Supr. 322. gage. lb. See also Potter r. The Ma- ♦ Lewis V. Sleeping-Car Co., 143 jestic, 60 Fed. 624. A limitation of Mass. 267. In Madan v. Sherard, baggage per passenger to one trunk, 73 N. Y. 329, the rule is applied in or to $100 in value or a defined rea- 741 § 692 THE LA^Y OF BAILMENTS. [PART VII. compelling a hired bailee's vigilance and as to the method of constituting special terms by indirection, should here apply .^ § 691. Legislation affecting Liability for Baggage. — Legisla- tion may likewise affect the conditions of baggage liability. Thus, the baggage of passengers travelling by the modes of conveyance specified by Parliament, must now, according to the latest English decisions, conform to the Railway and Canal Traffic Act ; and hence no such condition will be upheld that is not "just and reasonable," nor unless the passenger sanctions it by his signature.^ There are United States stat- utes which exempt from liability and justify the refusal to receive certain articles of whose value the shipper or passen- ger gives no notice,^ but such legislation is to be reasonably interpreted.'* § 692. When Liability for Baggage terminates, etc. — The liability of a railway or other carrier for the baggage of a passenger lasts, in general, until the passenger has had a rea- sonable opportunity to receive and take charge of it, after it has reached its destination;^ but it terminates upon re-de- livery of the property to the passenger or his substitute in suitable condition.^ Where baggage is unclaimed within a sonable weight, would seem justifi- 3 Ex. D. 153 ; Powell v. Myers, 26 able. See (Cal.) 11 Pac. R. 686. Wend. 591 ; Ouimit v. Henshaw, 35 1 §§ 456-460. Vt. 605 ; Roth v. Buffalo R., 34 N. Y. 2 Act 17 & 18 Vict. c. 31, § 7 ; Act 548 ; Mote v. Chicago, &c. R., 27 31 & 32 Vict. c. 119, § 10 ; Cohen v. Iowa, 22 ; Angell Carriers, §§ 114, South-Eastern R., 1 Ex. D. 217. But 320 ; Chicago, &c. R. v. Boyce, 73 see Stewart v. London & North- 111. 510 ; Louisville, &c. R. v. Mahan, Western R., 3 H. & C. 135, which 8 Bush, 184 ; 4 Mo. App. 582. laid the law down differently in the ^ Hodkinson v. London R., 14 Q. case of a cheap excursion train. See B. D. 228. For unreasonable rule of also Rumsey v. North-Eastern R., delivering baggage see 123 Penn. St. 14 C. B. N. s. 641. And see supra., 140. Part VI. c. 5. For a case where a hack carried ^ U. S. Rev. Sts. § 4281, does not a passenger and his trunk, and the apply to carriers by laud for the bag- facts showed that the passenger gage of passengers. N. Y. Central R. waived a delivery at the house by V. Fraloff, 100 U. S. 24. permitting the trunk to be left on * A carrier's negligence is not the sidewalk, where it was stolen, thereby excused. ^Ylieeler v. Oceanic see Patten v. Johnson, 131 Mass. Co., 125 N. Y. 155. 297. o Patscheider v. Great Western R., 742 CHAP. IV.] CARRIERS OF PASSENGERS. § 692 reasonable time, the cairier should store it in a reasonably- proper and secure place until called for, or otherwise legally disposed of ; * and if he thus assumes the duties of a ware- houseman, with or without compensation, towards it, the bailee is not justilied in placing property of such consequence where it might easily be plundered or spoiled.^ And thus is it, too, Avith property not strictly baggage, towards which the carrier assumes the warehouseman's relation.^ What is a reasonable time within which a passenger should claim baggage is not clearly stated ; nor, as to railways which un- load trunks with despatch, will the risk of insurer be so readily prolonged by inference as in the case of ocean steam- ships ; * but circumstances, such as the day or hour when the passenger and his baggage arrive, and the facilities afforded at the depot for removing the articles promptly, may control the issue.^ A passenger cannot protract the carrier's liability as insurer for his baggage by breaking his own journey, and stopping over, even though this be caused by unexpected ill- ness or injury.^ But if the carrier was to blame, for preventing the passen- ger from reaching his journey's end as soon as his baggage, his risk is extended. And where baggage, through the car- rier's own fault, gets carried past or short of its destination, or in some other way excludes the passenger's reasonable 1 See note 2. v. Mahan, 8 Bush, 184. Jones v. 2 Mote V. Chicago, &c. R., 27 Norwich Transp. Co., 50 Barb. 193, Iowa, 22 ; Bartholomew v. St. Louis, is a case where the arrival was on &c. R., 53 111. 227. Sunday. The inclination of the latest 8 Pennsylvania Co. v. Miller, 35 cases is to require baggage which Ohio St. 541 ; Strouss v. Wabash R., arrives by railway by night or on 17 Fed. R. 209. Sunday to be promptly taken away, * See Roth v. Buffalo R., 34 N. Y. since otherwise the passenger can 548 ; Van Horn v. Kermit, 4 E. D. hold the company only as ware- Smith, 453 ; Nevins v. Bay State houseman. 33 Fed. 412. See 161 Steamboat Co., 4 Bosw. 225. Mass. 67, as to whether the mere 6 As to the duty of promptly re- unloading and storing baggage ends moving one's baggage which arrives the strict liability, as in freight, at night, cf. Roth v. Buffalo R., 34 § 613. And cf. 93 Ga. 801. N. Y. 548, and Cary v. Cleveland R., « Chicago, &c. R. v. Boyce, 73 111. 29 Barb. 35. And .see Ouimit v. Hen- 510. shaw, 35 Vt. 605 ; Louisville, &c. R. 743 § 694 THE LAW OF BAILMENTS. [PART VII, opportunity of taking it at its destination, and is stored at the wrong station, the extraordinary liability of common carrier is not discharged.^ Furthermore a railway or other carrier may, by employing porters at the place of destination, extend the strict liability for the safety of a passenger's bag- gage until it has been safely carried from the transporting vehicle elsewhere.^ The liability incurred for things de- posited or left with the carrier at the end of the transit by a passenger who might have removed them is that of a bailee with or without recompense, according to the cir- cumstances, and is subject to the usual modifications by special contract.^ In railway traffic the carrier stores usu- ally in his own baggage-room ; and where he claims storage charges for delay, his liability becomes that of a bailee for hire, both as to the place and manner of storage. * § 693. Carrier's Right of Lien as to Baggage. — The carrier's right of lien extends, of course, to baggage transported by a passenger, so as to make it secure payment of his unpaid passage-money ; though to detain in this manner the passen- ger, or the clothes he has on his person, would be un- law ful.^ § 694. Burden of Proof •where Baggage is lost or injured. — Consistently with the general rules already laid down as to the burden of proof in case of loss or injury, we may say that where the passenger produces a check, way-bill, receipt, or 1 Toledo, &c. R. v. Hammond, 33 3 gge Van Toll v. South-Eastem Ind. 379 ; Wilson v. Grand Trunk R., R., 12 C. B. n. s. 75 ; Harris v. Great 57 Me. 138. And see Georgia R. v. Western R., 1 Q. B. D. 515 ; Parker Phillips, 93 Ga. 801. v. South-Eastern R., 1 C. P. D. 618 ; 2 Richards v. London R., 7 C. B. Van Gilder v. Chicago R., 44 Iowa, 839 ; Midland R. v. Bromley, 17 C. B. 548 ; National Line S. S. Co. v. 372; Kent v. Midland R., L. R. 10 Smart, 107 Penn. St. 492. Q. B. 1 ; Fisher v. Geddes, 15 La. * Nealand v. Boston & Maine R., Ann. 14. Cf. Hodkinson v. London 161 Mass. 67 ; 81 Tex. 479 ; 115 R., 14 Q. B. D. 228, where the car- N. C. 638. rier in effect delivered to the passen- ^ Wolf v. Summers, 2 Camp. 631 ; ger, who in turn delivered to a porter, Sunbolf v. Alford, 3 M. & W. 248. under whose charge a loss occurred. And see, as to the obligation to re- As to loss through the negligence of fund passage money. Cope v. Dodd, a public porter, see 80 Mo. 185. 744 CHAP. IV.] CARRIERS OF PASSENGERS. § HOo other token from the carrier, and the corresponding oaggage cannot be produced at its destination, this will render the passenger-carrier primd facie liable in his public capacity ; ^ and the burden of showing a previous delivery, or otherwise accounting for its disappearance, rests upon the carrier, even (as it is held) if the passenger fail, within a reasonable time after his baggage is due, to claim it.^ But for hand-baggage or property not exclusively committed to the carrier nor acknoAvledged by any token the burden of proving negli- gence in the bailee is necessarily greater. Where the baggage, when re-delivered, bears marks of injury such as could not probably have occurred save wliile in the carrier's own custody, the passenger-carrier is jyriynd facie chargeable. But if, through mixed custody, a re-deliv- ery, or otherwise, the injury complained of might have oc- curred while the baggage was out of the carrier's custody, the passenger must repel any such imputation in order to make the carrier answerable.^ The facts in such a case are left to the jury.* § 695. Practice in Suits for Lost Baggage. — The passenger is generally the proper person to sue for the loss of his bag- gage.^ But where several travel together as passengers, and all their baggage is contained in a trunk belonging to one of them, who keeps the key and acts as the special bailee of 13 Pcnn. St. 33 ; Brown v. Harris, 2 mon carrier ceases to be liable as Gray, 359. such, he continues responsible as 1 Fairfax v. N. Y. Central R., warehouseman. See supra, § 23. 67 N. Y. 11 ; Burnell v. N. Y. Cen- » Supra, § 578 ; 45 Neb. 760. tral R., 45 N. Y. 184; Atchison Where a former recovery was lim- R. V. Brewer, 20 Kan. 6G9. The ited to the loss of baggage, although possession of such check or token the plaintiff sought to include mer- indicates prima facie a sufficient chandise carried by him at the same bailment to the carrier. Baggage time, for which extra compensation express company's receipt for a was paid, it was held that a second baggage check does not prove re- action lay to recover for the mer- ceipt of the trunk which was chandise. Millard v. Missouri R., 86 checked. 123 N. Y. 303. N. Y. 441. 2 Cases supra ; Matteson v. N. Y. « 125 N. Y. 155. Central R., 76 N. Y. 381. This is on » Supra, Part VI. c. 8. the ground that even where the com- 745 § 696 THE LAW OF BAILMENTS. [PART VII. liis companions, he is permitted to sue the carrier in his own name, if the trunk and contents be lost ; ^ though manifestly he could not thus exclude their several rights of action, if they chose to assert them seasonably, and re- cover each for himself, or, as the evidence might better establish under such circumstances, sue altogether as joint bailors, and avoid subjecting the carrier to a multiplicity of actions.^ The standard of market value does not afford a just crite- rion where wearing-apparel is lost. And a passenger who recovers for lost baggage may fairly claim to be reimbursed according to their just valuation for his own use ; which appears in reasonable accord with the understanding upon which baggage is transported.^ But in fundamental princi- ple damages are not awarded differently for inexcusable loss of baggage than for inexcusable loss of goods taken for freight.* § 696. Connecting Carriers as to Baggage. — The rules else- where considered which apply to connecting lines for goods received in freight apply also to the carriage of baggage beyond the receiving carrier's terminus ; though here the undertaking must be studied with more direct reference to 1 Moran v. Portland Steam Packet who journeys with it, and he must Co., 35 Me. 55. It appeared in this bring suit; nor, in general, does case, though the circumstance was a passenger-carrier undertake com- not relied upon, that the other own- mon-carriage risks of baggage, ex- ers released in this plaintiff's favor. cept for that which accompanies the 2 Metcalfe v. London R., 4 C. B. passenger as rightfully his own bag- N. 8. 807. One cannot, however, by gage. See supra, § 672 ; Becher v. simply getting a trunk accepted by Great Eastern R., L. R. 5 Q. B. 241. a railway passenger-carrier as bag- As to master's right to sue for ser- gage, when he travels, confer upon vant's property on a carriage of the another party not a passenger by the latter, etc., see Meux v. Great AVe.st- same train, any right, in case of loss, ern R., [1895] 2 Q. B. 387. And as to sue as owner for the trunk or for to partnership property, see Penn- any portion of its contents ; not even sylvania R. v. Knight, 58 N. J. 287. though .such traveller be the servant ^ p^irfax v. N. Y. Central R., 73 of the real owner, who travels with- N. Y. 167 ; 38 N. Y. Supr. 341. out baggage by a later train. For * See snpra, §§ 572, 573 ; Mote v. here the baggage is presumably ac- Chicago R., 27 Iowa, 22 ; Brock v. cepted as that of the passenger alone Gale, 14 Fla. 523. 746 CHAP. IV.] CARRIERS OF PASSENGERS. § 696 the contract for transporting the passenger.^ In general, when a [)assenger"s full fare is received at a terminus or way station, and a through ticket announcing no reservation of risks is given him, together with a through check for his baggage, the presumable undertaking of the railway or other carrier is to transport the baggage to the point of destina- tion, notwithstanding the line be made up of different con- necting carriers.^ Thus, the English rule, that a carriage contract is implied for the entire route, operates upon what- ever basfffacre such carrier has booked IhroujTh, althouoh it be beyond his own route.^ In this country, too, it has been held, and not unreasonably, that where a railway sells through tickets, receiving the full fare, and issues through l^aggage checks, for some distant point, the undertaking implied is to carry the baggage through, notwithstanding any intermediate change of cars.^ This is but a fair convenience afforded the travelling public, who may well repose on the assumption that the connecting roads which recognize such tickets and checks have mutually pre-arranged the adjustment of losses and the mutual consequences of miscarriage. Limitations of liability, such as may overcome such a presumption, ought to be brought to the passenger's knowledge;^ and such limita- tions should be reasonable and reasonably adhered to.'' The passenger left thus free to sue the first carrier for loss of his baggage, may sue instead the connecting carrier (as our American courts have sometimes held), provided he establish, in proof, that the latter was privy to the carriage 1 Mytton V. Midland R., 4 H. & N. 8 2 Redfield Railways, § 102 ; Bris- 615 ; Hart v. Rensselaer, &c. R., 4 tol & Exeter R. v. Collins, 7 H. L. Seld. 37; Najac v. Boston & Lowell 194. R., 7 Allen, .329; supra, c. 1. * Illinois Central R. v. Copeland, 2 See Carter v. Peck, 4 Sneed, 203 ; 24 111. 332 ; Hart v. Rensselaer, &c. Illinois Central R. r. Copeland, 24111. R., 4 Seld. 37; Najac v. Boston & 3.''.2 ; Candee v. Pennsylvania R., 21 Lowell R., 7 Allen, 329 ; h'ailroad Wis. 582 ; Lock Co. v. Railroad, 48 Co. v. Campbell, 30 Ohio St. 047 ; 35 N. H. 339, 354 ; 9 Lea, 38. As to the Kan. 740. effect of selling a through ticket for ^ Srtpra, Part VI. c. 9 ; Railroad the passenger's fare without check- Co. v. Campbell, 30 Ohio St. 047. ing the baggage through, see Candee ^ Peterson v. Chicago R., 80 Iowa, V. Pennsylvania R., supra. 92. 747 § 697 THE LAW OF BAILMENTS. [PAKT VII. arrangement, and tliat the baggage actually reached such carrier's custody .^ But this doctrine is not so clearly sanc- tioned in Great Britain,^ and it admits of qualification.^ Some States for convenience permit the passenger whose bag- gage is missing to hold the last carrier presumably liable ; * while others refuse that privilege, unless the passenger can either establish that such carrier actually lost it or that there was such community of interest as to make this carrier part- ner in effect with the negligent carrier.^ Where one buys a ticket over connecting roads, and his baggage is checked to go by the same route, it is wrongful for any intermediate railroad agent to put the baggage, with- out the owner's permission, or some supervening necessity, on a different route. But the new company which, under these circumstances, accepts the trust of taking the property through, becomes liable for the safety of the baggage, if not as a common carrier, at all events like a hired bailee, and, as good reason would assert in a strong case, clothed with those extraordinary bailment risks which the law places upon the wrongful intermeddler.^ For loss where the ticket-selling carrier gave a through check by the wrong route such carrier is liable.^ § 697. Conclusion as to Modern Law of Bailments. — In bringing to a close this Treatise on the Law of Bailments, 1 Hart V. Rensselaer R., 4 Seld. * Savannah R. v. Mcintosh, 73 37 ; Chicago R. v. Fahey, 52 111. 81. Ga. 532 ; 10 Mo. App. 125 ; 38 N. Y. 2 See sripra, §§ 595, 596 ; Bristol Supr. 88. And see § 606. & Exeter R. v. Collins, 7 H. L. 194. ^ 21 S. C. 35 ; Atchison R. v. The English practice of "booking Roach, 35 Kan. 740. through" is peculiar, and the cases ^ Fairfax v. N. Y. Central R., 67 are not all easily reconciled. But in N. Y. 11 ; s. c. 73 N. Y. 167. Where Hooper v. London R., 29 W. R. 241, the connecting carrier gives his check the carrier on whose line the loss in exchange for that of the previous occurred vfas adjudged liable for the carrier, there is primci facie proof baggage. And see 5 C. P. D. 157. that he received the baggage. 39 3 The leading principles to be here Minn. 424. kept in view may be studied under ^ Isaacson v. New York Central Part VL c. 9. And see, as to con- R., 94 N. Y. 278. See 67 Conn. 417. necting carriers of passengers, supra, c. 1. 748 CHAP. IV.] CARRIERS OF PASSENGERS. § 607 we may, perhaps, be permitted to expre.ss the hope that, if the statement of legal principles leaves in many places, es- pecially under the head of Carriers, the impression of inexact- ness, as though rules are honeycombed by exceptions, and one legal doctrine absorbs another, the careful reader who compares the text with the citations will conclude this to indicate, not so much a confusion of thought in the writer himself, as actual uncertainty among the courts thus reported ; whose judges, in the effort to deal equally with suitors and extend familiar rules to the complex and multiform trans- actions of modern life, are already finding it hopeless to compress the close relations of society and business into positive legal maxims. 749 INDEX INDEX. A. Section ACCEPTANCE. See Bailments. ACCESSION 99 ACCIDENT. See Act of God. ACT OF GOD 47, 74, 101, 135, 204, 294, 110-417 See Common Carriers. ACTION, by and against a conimon carrier . 439, 523, 524, 534, 551-554 against a common carrier in detail 478, 555-588 See Common Cakrip:ks, VIII. as to other bailments, see, in general. Bailments. as to proofs in actions, see Evidence. by aggrieved person in respect of passenger carriage . 636, 650, 652, 661 See Passenger Carriers. where baggage is lost or injured 694, 695 AGENT, of bailee in general 19 in gratuitous bailment 30, 53, 59, 68 in ordinary bailments for hire 108, 145-147 in pledge 184, 192, 193, 209 in postal service 270 See Postmasters. ininnkeeping 290,299 See Innkeepers. in common carriage of goods . 844, 357, 358, 385, 429, 430, 455, 470, 491, 523, .572 in connecting carriage of goods 590-607 See Common Cakuieus; Master. in passenger carriage 615, 633, 644, 653, 658 See Passencer Carriers. AGISTOR. See Animals; Hire, Bailments for, I. 48 753 754 INDEX. ANIMALS, Section agistment of 90, 101, 122 use of hired 135, 137, 139-141 See Hire, Bailments for, II. liability and right of innkeeper for . . . 283, 290, 301, 318, 326 as the subject of common carriage 353, 370, 416 destruction by, in the transit 415 carrier's liability, effect of consignor's supervision, etc. 399, 416, 442-444 special contract affecting carrier's liability 451, 479 legislation affecting carrier's liability 486 in passenger carriage 685 ANTICHRESIS 213 See Pledge. APARTMENT-HOUSE 278 See Innkeepers. ATTACHMENT. See Officers. AUTHORITY, PUBLIC 428,498 See Common Carriers. B. BAGGAGE, whether innkeeper is liable for 283, 284 nature of transportation 352, 665-697 mixed custody in transit 442, 680 See Passenger Carriers, IV. BAILMENTS, in general 1 special or temporary character ; the term defined . . . .1,2 who may be bailors and bailees ; under a sale, etc 3 constructive bailees ; captor, intermeddler, etc 3 public officer, sheriff, clerk, pledge-creditor 4, 5 delivery back or over intended ; sale or mutuum distinguished 6-8 grain elevator, admixture in considered 8 bailment relates to personal property 9 whether a branch of contract law 9 history of our bailment jurisprudence 10 Lord Holt and his predecessors ; Coggs v. Bernard ... 10 Sir William Jones and his essay 11 Mr. Justice Story and his treatise 11 later growth of subject ; final comments 12 bailment classification 13 former classification ; Roman terms emi:)loyed 13 classification according to recompense preferable .... 14 INDEX. 7oi) BAILMENTS — conlln ued. See Gratuitous Bailmp:nts; Mutual-Benefit Bailments; Hire; Pledge. Section exceptional bailments for reward 11, 2G5, 2GG See Common Carriers; Innkeki'ers; Postmasters. standard of care and diligence in bailments 15 slight, ordinary, great, etc. ; illustration 1") other tests attempted 10 honesty and good faith required ; criminal accountability . 17 tortious possessor liable absolutely 18 agents or servants in a bailment 10 effect of special contract 20 other cardinal maxims stated 21,22 bailment and contract for bailment distinguished .... 21 compound bailments 21 whether bailor need be owner ; bailee's duty to him ... 22 bailee's title yields only to a superior one 22 hur den of proof in suits against the bailee 23 conclusion as to modern late of bailments 697 See Evidence. BANK, officer of in a bailment 30, 42-44 See Pledge. BENEFIT, See Gratuitous Bailments ; Mutual-Benefit Bailments. RILL OF LADING, how given in pledge 190 in carriage of goods generally 387, 394, 446, 464, 465, 466, 475-477 expressions usual under such documents 446, and n. delivery by carrier under 492 remedies of carrier under such document .... 533, 536, 537 against carrier under such document 570 See Common Carriers. BOARDING-IIOUSE 278, 314-310, 329 See Innkeepers. BORROWER. See Loan for Use. BIIIDGE COMPANIES 353 BROKER 184,233,234 See Pledge. BURDEN OF PROOF. See Evidence. C. CANAL 3.54,3.55 See Common Carriers. 756 INDEX. CAPTOR, Section may be a bailee 3 CARE, standard of 15 See Diligence. CARRIERS, in general 330 private and common carriers distinguished 96, 337 carriers of property and passengers distinguished .... 3il See Common Carkieks ; Passenger Carriers. CAUSE, PROXIMATE AND REMOTE, in cases of loss by common carrier 431-438 injury or death of passenger 652-654 See, in general, Bailments. CHARTER 359-361 See Common Carriers. COLLATERAL SECURITY 164 See Pledge. COLLECT ON DELIVERY, use of expression " C. O. D." 480, 507 See Common Carriers. COMMERCE, INTERSTATE. origin and purpose of act of 1887 611 a Interstate Commerce Commission 611 h discriminations and preferences, etc 611 c pooling earnings, etc 611 (/ long and short haul provisions 611 e COMMODATUM 6-8,65,66 See Loan for Use. COMMON CARRIERS, I. Carriers in General : common carriage a topic of magnitude at this day .... 330 but it is simply a bailment 330 carriers private and public ; common carrier defined . . . 331 carriage may be by land or water 332 English theory of exceptional responsibility; its Roman origin 333 carriage and innkeeper's responsibility to be distinguished 265, 266, 286, 334 Roman and English theories also to be distinguished . . . 334 foundation of exceptional responsibility is public policy . . 335 influence of compensation in this connection 336 private and common carriers for hire distinguished . . . 337 INDEX. i;j( COMMON CARRTERS — ron/Z/iucJ. Section common carriers by land or water follow the same rule of responsibility '{-iS the ancient and modern common cai-rier compared . . 3;50, 310 carriers of personal property here considered ; carriers of passengers distinguished -511 n. Natitke df tiik Common Cauuiek Relation- : essentials of the prexenl relation stated -jIS transportation must be for reward ; presumption of recom- pense 34:}, 344 in pursuance of vocation . . 345, 346 casual occupation, etc 347 carriage between fixed points ; from town to town, etc. . . 348 either a professed vocation or a special occupation should appear 340 w1iat pursuits are to be classed with common carriers 350 carriers by land, wagoners, teamsters, etc 350 modern express and forwarder distinguished 351 carriers of passengers, baggage, and goods; stage-coach, rail- way, etc 352 sleeping-cars ; bridge and turnpike companies, stockj'ards, etc. 353 common carriers by water, bargemen, ferrymen, canal com- panies, ships, steamboats, etc 354', 355 tow-boat pursuit, etc., not included 354, 355 common-carriarje relation attaches to responsible transporter . . 356 responsible bailee as individual, partnership, or company . 356 how agent may become solely responsible 357 scope of an agency which shall bind principal 358 test of responsible employment as against ownership ; lessee, charterer, etc 359 as to express or mail matter 359 a rule applied to railways ; letting, chartering, etc 360 fundamental restraints ; use of motive power, etc 361 case where railway yields partial control 362 operation of railways ; president, trustees, contractors, etc. . 363 partnership responsibility in carrier business 364 connecting carriers ; agency and partnership principles . . 365 what kiihls of projterti/ maij be carried 366 money and valuables, etc 307-369 animals are subjects of common carriage 370 dangerous articles, etc., as subjects of carriage 371 III. "What constitutes Bailment to the Common Carrier : carrier's dutif to receire for transportation 372 duty how far qualified 372 758 INDEX. COMMON CARREERS — continued. Section customei' should offer for hire 373 reasonable hire ; discriminating rates 374-376 duty qualified by carrier's accommodations; reasonable delay 377 scope of vocation 378 carrier may prescribe reasonable rules as to receiving, etc. . 379 undue preference, discrimination, etc., in general .... 380 facilities for express matter 380 carrier's waiver of right to refuse, etc 381 not bound to receive from wrongful parties 382 liability for refusing to receive 383 time when carrier's responsibility commences 384 delivery and acceptance in character of carrier 384 carrier's agent for acceptance, etc 385 place and manner of delivery 386 acceptance, bill of lading, way-bill, receipt, etc 387 effect of usage or special contract in determining delivery . 388 custom of sending to receive freight 389 where carrier is bailee in another preliminary capacity . . 390 acceptance as common carrier, etc 391 carrier need not forward where destination is unknown . . 392 usually loads and stows 393 delivery and acceptance illustrated ; carriage by water, bill of lading, etc 394 further illustration ; carriers by ferry 395 delivery by apparatus, etc 396 duty of consignor in making delivery 397 rule where consignor deceives as to contents 398 consignor should make full delivery 399 theory of mixed responsibility where consignor accompanies the goods in transit 400 IV. Bailment Responsibility of the Common Carrier: general duty of common carrier considered 401 perilous and exceptional responsibility distinguished from actual duty 401 duty as a bailee for hire ; loading, propelling force, vehicles . 402 carrier's duty in transporting 403 case of disaster or delay 404 premature shipment renders liable 404 a legal liability considered ; how far ansicerable as insurer .... 405 only exceptions are act of God, act of public enemy, act of consignor or customer, and act of public authority . . . 405 reason for this severe rule of public policy at our law . 406, 407 INDEX. 759 COMMON CARRIERS — CO»r///Hef/. Section modern rule affocted by legislation, special contract, etc. . . 408 influence of modern insurance as a special pursuit .... 400 Jirtit exception ; luxs or injury hji act of Gud 410 definition of phrase, " natural action of elements " .... 410 loss by fire or explosion 411 effect of strike or impressment 412 hidden obstructions through natural or human agency . . 413 accidents in transportation, collision, etc 414 destruction by animate nature, rats, etc 415 natural decay, waste, wear and tear, etc 41G jettison 417 second exception ; loss or injur;/ Juj j/uhlic enemies 418 phrase defined ; its application 418 acts of mobs, rioters, etc 419 pirates, privateers, etc 420 third exception ; loss or injury bij act of customer 421 packing, loading, selection of place, etc., by customer . . . 422 customer's bad faith ; deception as to contents 423 negligent omission to state contents 424 mixed custody in the transit 425 customer's act must have primarily occasioned the loss . . 426 carrier's own vigilance should not relax 427 fourth exception ; loss or injury by the public authority .... 428 carrier liable for negligence or default of servants .... 429 fraud and misconduct of carrier or his servants inexcusable . 430 proximate and remote cause alicays regarded, tchere excuse is set up 431, 432 illustration of bad stowage, jettison, etc 433 rule further applied to excuses for loss 434 perplexing instances; influence of carrier's contributory neg- ligence 435 English instances stated 436 American instances stated 437 where disaster was inevitable, notwithstanding default . . 438 legal excuses, how set up; presumption, burden of proof, etc 439 carrier not a technical insurer; riglit of insurance companj' . 440 care and diligence is according to circumstances 441 instances of mixed custody considered 412 hand-baggage 442 animals 412-144 instance of ferry transportation 445 expressions in bills of lading; "perils of the sea," etc., 4 10, and n. 760 INDEX. COMMON CARRIERS— continued. V. Usage, Special Contract, and Legislation, affecting Bailment Responsiiulity : Section modern qualifications of carrier's responsibility 447 (1) bailment responsihility affected by usage 448 (2) bailment responsibility affected by special contract 449 English doctrine of contract qualification traced down . . 450 railway and canal traffic act of 1854 ; later English policy, 451, 452 American doctrine of contract qualification .... 453, 454 latest decisions ; rule as to servants . 455 permitted qualifications ; fire, loss by mobs, etc 456 agreed valuation ; time of presenting claims 457 miscellaneous qualifications .... 458 carrier's enlargement of risk by special contract 459 how special contract with carrier is made 460 former practice of giving notices 461 present English rule as to manner of making contract . . . 462 American rule ; general notices not favored ; mutual assent . 463 mutual assent in bills of lading and similar documents . . 464 indirect mutual assent in modern cases ; decisions reconciled 465 character of document; bill of lading, way-bill, receipt, etc. 466, 467 carrier's fairness in making special terms plain 468 seasonableness in announcing special terms . . . 469 whether special terms are made known to the proper party . 470 the sender has acted fairly 471 the special terms have been waived or not .... 472 duly made on carrier's behalf 472 a legal effect of giving document to sender ; sender's option to require full legal risks 473 proof of special contract ; terms written, printed, or oral . 474 bills of lading ; their nature and characteristics 475 master's authority to issue bills of lading 476 rules applied to inland bills of lading 477 loss under special contract ; remedies ; burden of proof, etc. . 478 carriage of animals under special contract 479 use of concise expressions or letters by way of special con- tract 480 rule of proximate cause applies 480 a (3) bailment responsibility affected by legislation 481 cardinal objects of such legislation stated 481 acts reducing ship-owners' risks, etc 482 restraining the transportation of explosives, etc. . . . 483 INDEX. 7G1 COMMON CARRIERS — roN^Hi/^^/. Pppt,„„ i)tiglish carriers' act of 1830; railway and canal traffic act of 1854 484 legislation against unfair rates; as to standard of care, etc. . 485 affecting the carriage of animals 486 VI. Tkkmination of Bailment Respoxsibility : general rules in respect of carriage termination 487 responsihility terminates upon delivery over 487 delays, how far excusable 488 delivery within reasonable time after arrival 489 to the right party 490 to the owner's or consignee's agent, etc 491 under a bill of lading, etc 492 directions of consignor, etc 493 delivery to paramount owner ; good faith requisite . . . 494 carrier's course where doubtful as to the right party . . . 495 where goods are addressed "care of," etc 496 misdelivery through consignor's carelessness, etc 497 failure to deliver because of legal process 498 when stoppage in transitu prevents delivery 499 carrier's duty as to unclaimed or refused property; storage, etc 500 delivery to joint parties, etc 501 what constitutes a complete delivery 502 carrier's duties in unloading, etc 503 methods of unloading; carrier and consignee 501 consignee's right to intercept goods on transit 505 notice without personal delivery, etc 506 undertaking to collect on delivery ; " C. O. D." 507 ratification or waiver on the customer's part 508 much, practical uncertainty in modern rules of delivery .... 509 reasons for this uncertainty ; particular usage, complexity, etc., 509 one may be carrier for transit and simple bailee after arrival, 510 . mode of delivery by vessel; responsibility how divested . . 511 delivery by land carrier ; responsibility how divested . . . 512 conflict of doctrine as to delivery by railway carrier . . . 513 delivery by expressman, etc 514 carrier's obligation to make personal delivery affected by cir- cumstances, contract, etc 515 responsibility as warehouseman further considered .... 516 to forward beyond one's route ; connecting car- riers 517 carrier's duty to deliver properly when receiving from another carrier 518 762 ^ INDEX. COMMON" CAURl'ERS — continued. Section usage, special contract or legislation affecting delivery . . . 519-521 VII. General Rights of Common Carriers : general rights of carrier stated 522 (1) carrier's special property in the thing 523 he may sue stranger for dispossession 523 agents, sub-contractors, etc 523, 524 (2) carrier's right of compensation 525 when and how received 525 recompense, how denoted ; freight ; contract, etc 526 when freight begins ; removal of goods placed on board . . 527 recompense where goods are intercepted by owner .... 528 rule of full freight or none considered 529, 530 freight where delivery is incomplete 531 recompense paid in advance recovered if not earned . . . 532 under bill of lading or special contract .... 533 consignee in general liable for freight; his cross-action for damages 534 consignor is originally liable for freight or recompense . . 535 liability for recompense under a bill of lading . . . 536, 537 reinibui'sement of carrier's expenses ; extoi'tionate charges not allowed 538 charges where sender imposed upon the carrier 539 right to charge demurrage 540 legislative tariff of charges 541 carrier's recompense secured by lien 542 what charges a carrier's lien protects 543 no lien against owner where bailment was wrongful . . . 544 lien, how preserved ; possession necessary 545 not lost by a partial delivery 546 total delivery on stipulation that lien shall continue . . . 547 extension or waiver of lien by special agreement 548 lien for unpaid instalments of freight 549 where damage to goods exceeds recompense 549 a legal effect of carrier's lien ; right to sell 550 carrier may sue for his compensation, etc 551 payment and delivery are concomitant acts 552 mutual rights of carrier and consignee 553 goods shipped as entire not to be treated as in portions . . 554 Yin. Remedies against Common Carriers: leading causes of action against common carrier stated . . 555 (1) for inexcusably refusing to receive 556 usual form of action is case ; pleadings, etc 556 whether mandamus and other remedies will lie 556 INDEX. 763 COMMON CARRIERS — coutinued. Section (2) remedy for inexcusable loss or injury in transportation . . . 557 (a) as to form of action; ex delicto or ex contractu .... 558 action ex delicto ; count in trover, etc 559, 5G0 whether replevin lies 500 a action ex contractu 501 these forms of action compared 562 admiralty proceedings considered 563 (b) as to party plaintiff 564 whether consignor or consignee, etc., should sue . . . 505, 566 test of contract privity 567 general or si^ecial ownership 568 miscellaneous points 569 right under a bill of lading 570 general conclusion as to the party plaintiff 571 (c) as to party defendant 572 master of a vessel 573 corporate carriers, etc 574 (d) as to declaration and pleadings 575 averments material, etc. ; forms of action compared . . 575-577 (e) proof in suits for loss or injury 578, 579 how contents of trunk may be proved, etc 580 sufficiency of evidence 581 (/) damages recoverable for loss or injury 582-584 (3) remedies for negligence or misconduct in Jinal delivery . . . 585 leading principles considered; forms compared 585 effect of acceptance by consignee or owner 586 recovery of extortionate or illegal charges 587 (4) conflict of laws in pursuit of remedies 588 IX. Connecting Carriers : topic to be here considered 589 nature of carriage by connecting routes 590, 617 principle of partnership or mutual agency 590 how held out to the public, the main consideration .... 591 partnership arrangements between carriers 592 through contract may be made ; w//ra r?Vcs not presumed . . 593 principles of liability for loss stated 594 one of three theories suits each case 594 confusion of authority relates to proof and presumption con- cerning the actual engagement 595 English presumption favors idea of a through undertaking . 596 American presumption favors idea of a forwarder's under- taking 597 American presumption ; exceptions stated 598 7G4 INDEX. COMMON CARRIERS — con^/nuerf. Section American rule favors suing the carrier who occasioned the loss 599 special contract to carry through, how shown .... GOO, GOl effect of a through receipt in connection with other circum- stances 602 special contract may exclude a through liability 603 special contracts of connecting carriers in general ; special exemptions, etc 604 intermediate carrier, not in default, is not liable 605 presumption in case of loss or injury 606 liability of connecting carriers towards one another .... 607 commencement and termination of carriage risk 608 when connecting carrier's risk commences 608 terminates 609 compensation of connecting carriers ; hack freight or charges . . 610 guaranty of through rates, etc 610 notice of default, etc., in a continuous transportation 611 in passenger and baggage transportation 617, 650 n, 696 X. Interstate Commerce Act. See Commerce. See Passenger Carriers. COMPOUND BAILMENTS 21 CONFLICT OF LAWS, of State rules as to delivery by railway carrier 513 as to rights and remedies in carriage of goods 588 CONNECTING CARRIERS, in transportation of goods 365, 517, 589-611 passengers 615-619 baggage . . . .- 696 CONSIGNOR AND CONSIGNEE. See Common Carriers. CONTRACT, fundamental rules, how applied 9, 27, 68 special, effect of, in bailments generally 20 gratuitous bailments 51, 77 bailments for hire 106 bailment for hired use 155 pledge 225, 248 of hire, its essentials 88 of pledge 171-188 See Pledge. qualifying innkeeper's liability 809, 310 effect here of custom, usage, etc 311 in delivery to common carrier 388 modifying expressions used in bills of lading, etc. . 446, and n. INDEX. 765 COliiTR ACT— com inueil. Bectlon affecting carrier's builinent responsibility .... 408, 41!>-480 effect of usage in this connection 389, 448 carrier's duty at end of transit affected by usage and special contract 509, 512, 519-521 as affecting carrier's recompense and lien .... 520, 533, 548 connecting carriers 00(M)04 passenger-ticket, contract evinced by G'J7, O'JO special, affecting liability for passenger . . . 029, 051, 055-057 baggage 089, 090 bailment and contract for bailment distinguished 21, 34, 71, 94, 132 CORPORATION. See Agent 30, 180, 279, 350, 303, 574 CRIMINAL, accountability of bailee 17 CUSTOM. See Contkact. D. DAISIAGES. See Action ; Evidence. DELIVERY. See Bailments. DELIVERY-ORDER 117 See Hike, Bailments for. DEMURRAGE 540 DEPOSIT, defined 7, 13, 14, 20 inapt at our law for classification 26 " necessary " at civil law 26, 28 special taken gi-atuitously 7, 30, 42-44 See Gratuitous Bailments. safe-depositaries as hired custodians 90, 103 See Hire, Bailments for. DEPOT 639, 051, 001 See Passenger Carriers. DEVIATION, in bailments generally 17, 18 by hirer or borrower 73, 138-141 by common carrier 403, 488 by passenger carrier 048, 619 DILIGENCE, standard of, in law of bailments 15 slight, ordinary, great 15 other tests attempted, not satisfactory 16 preferable to negligence as a test of comparison 16 See, generally, Bailments. 760 INDEX. Section DOLO PROXIMA 39 DROVER'S PASS 656 See Passenger Carriers. E. EJECTION 658 See Passenger Carriers. ELEVATOR, admixture in grain, whether a bailment 8 ENEMIES, PUBLIC 101, 294, 418-420 See Common Carriers. EVIDENCE, burden of proof generally in suits against the bailee ... 23 hired use 144 loss by innkeepers . . . 299, 300 presumption of recompense in carriage 343, 344 burden of proof in loss by common carrier 439, 478 proof of carrier's special contract, terms oral, written, etc. . 474 in suits against carrier for loss or injury of goods . 578-581 in the case of connecting carriers 594-599, 606 in suits by or on behalf of passengers 653, 654 for lost or injui-ed baggage 671, 694 EXCEPTIONAL BAILMENTS, the public vocation for a recompense 265, 266 elements of public vocation exercised by private persons . 266 a See Common Carriers; Innkeepers; Postmasters. EXPRESS 351, 359 a, 380, 514 See Common Carriers. baggage express ; nature of undertaking 676 F. FACTOR, whether factor can pledge 184 FARE. See Passenger Carriers. FERRY 354, 355, 395, 445, 614 See Common Carriers; Passenger Carriers. FINDER, on land as bailee 28, 46, 101, 122 FIRE 293,411,456 FORWARDER 351, 517, 597 See Common Carriers. INDEX. 7G7 FRAUD, Section honesty and good faith requisite in all bailments .... 17 See, in general, Bailments. FREIGHT ;57;J-;}70, 526-554, GIO, (511c, 088 See Common Caiuuers. G. GRATUITOUS BAILMENTS, either for a bailor's or bailee's sole benefit 14 I. Gratuitous Service auout a Chattel 2i malters preliminary, including delivery 25 nature of undertaking; to take for custody, perform work, or carry 25 division of depositum and mandatum inapt 26 fundamental rules of contract, how applied 27 bailments not strictly upon contract; finding, attaching, stake- holding, etc 28 test of recompense or no recompense 29 servants or agents in such bailments ; bank officers, etc. . . 30 subject-matter; personal property of various kinds .... 31 delivery or holding possession an essential 32, 33 may be to agent or servant ; privity between parties to the bailment 33 whether mere promise or contract for bailment is actionable . 34 non-feasance and misfeasance here distinguished 34 accomplialunent of bailment purpose 35 standard of care and diligence ; slight diligence ; other tests . 35 bailor should select party carefully 35 same diligence as to one's own affords presumption, but no test 36 abstract diligence not considered apart from circumstances . 37 skilful performance, whether requisite 38 honesty and good faith are required 39 liability of bailee illustrated; English and American cases . 40 non-liability of bailee illustrated 41 illustrations of gratuitous special deposits in l»anks . . . 42-44 other illustrations ; finding, attaching, constructive custody, etc 45 liability as concerns skilled performance 46 inevitable accident, act of God, etc., excuses 47 liability for contents of closed receptacle 48 general conclusion as to bailee's liability 49 768 INDEX. GRATUITOUS BAILMENTS — con/nuied Section practice in such suits 50 special contract may modify ; public policy, etc 51 other mutual duties and rights as between the parties ... 52 right to use ; misappropriation 52 incur expense, make sub-contracts, etc 53 rights and duties as to third persons 54 whether bailee has special property, right to sue, etc. ... 54 receiptor under an attachment 54 termination of the bailment 55 how brought about ; full accomplishment or interruption . 55, 56 redelivery or delivery over ; in what condition 57 to whom 58 discretion of stakeholder, officer of court, etc. ; misdelivery . 58 delivery to bailor's agent, successor, representative, etc. . . 59 where adverse claims of title are made 60 effect of death upon the bailment 61 where the bailment is joint or common 62 place of delivery back or over 63 duty of rendering an account 64 II. Gratuitous Loan for Use 65 See Loan for Use. GUARANTY, in bailment for hire 155 in connecting carriage 610, 615 See Warranty. GUEST 280 See Innkeepers. H. HIRE. See Freight, Recompense. HIRE, BAILMENTS FOR, bailments for mutual benefit in general 13, 14, 85 bailments, gratuitous and for hire, compared 85 hiring and letting ; the Roman locatio-conductio 86 classification of ordinary bailments for hire 87 essentials of bailment contract for hire 88 essential of chattel as subject-matter 89 recompense; money, etc 90 mutual assent to a specific accomplishment . . 91 competent parties ; a lawful purpose 92 remedy where bailment was unlawful 92 INDEX. 769 HIRE, BAILMENTS FOR — continued. S,,ci,„„ contract for liire coiiiitared with contract of sale 93 distinguished from baihnent 94 I. Hired Services about a Chattel: classijicatiun ; matters preliininar;/, including delivery . . . . 95, 90 vocations for liire stated; hired custody, hired work, and hired carriage 9(j safe-depositaries, warehousemen, wharfingers, and agistors are hired custodians 9(; •workmen, mechanics, artificers, artisans, are hired to work on a thing 90 private carriers are hired to carry; but common carrier is ex- ceptional 9(j vocation is of secondary consequence here ; bailments com- pounded 97 whether bailment is for hire or gratuitous ; change from one class to the other 98 doctrine of accession ; repairs by workman, etc 99 delivery and acceptance considered 100 accomjdishment of the haUment purpose 101 standard of care and diligence, " ordinary " IQl accidents, etc. ; where bailee will be excused 101 elements which qualify one's liability in such cases . . . 102 ordinary care and diligence illustrated 103 element of skill considered; hired work upon a thing . . 104, 105 special contract terms and usage should be considered . . 106 honesty and good faith requisite ; breach of trust .... 107 rule of agency applied 108 liability of bailee to third persons 109 bailee's right to undisturbed possession 110 right of compensation considered 111-113 how expenses shall be borne 114 hired bailee's rights against third parties; dispossession, etc. 115 whether hired bailee should insure 116 termination of the bailment 117 how terminated ; redelivery or delivery over, etc 117 delivery to paramount owner; adverse claims, etc 118 over, on a change of owners 119 remedy against bailee who is remiss in delivering .... 120 successive bailment duties considered 121 right of lien to secure recompense 122 how lien is lost or secured 123 right to sue for recompense, apart from lien 124 bailee how put in default; domand, tender, cLc 125 49 770 INDEX. HIRE, BAILMENTS TOR — continued. Section means of enforcing lien 126 priority among liens, etc 127 general right of recompense 128 II. Hiked Use of a Chattel: dassijication ; matters preliininarij, inclufVnxg delivery . . .129,130 nature of hired use ; gratuitous loan compared 130 right to use, how understood and limited 131 contract for bailment compared with bailment 132 delivery and acceptance 132 accomplishment of the bailment purpose 133 hirer's duties with reference to the letter 133 measure of care and diligence ; "ordinary" 134 instances where the hirer is excused 135 law of other countries compared 136 rule of liability illustrated ; instance of hired horse . . . 137 elements affecting issue ; nature of thing, character of hirer, etc 138 where the hirer transcends the bailment 139-141 hirer's misappropriation of the thing 142 illegal use ; disregard of Sunday laws, etc. . . . . . . 143 remedies for loss or damage ; proof, etc 144 bailee's responsibility for his sub-users, etc 145, 146 the same subject ; driving by a hirer's servant 147 liability of joint hirers 148 hirer's liability as to third persons 149 rights again.st his letter ; right to use, etc 150 ■whether the letter warrants the enjoyment, etc 151 how expenses shall be borne 152 letter responsible for letting injuriously 153 right of action and damages as against the public .... 154 special contract may affect the hire 155 termination of the hailment 156 how termination is effected 157 hirer's duty of delivery back or over 158, 159 duty of final recompense considered 160, 161 in the innkeeping relation 265, 285, 298, 313 in the common carriage relation 336, 349, 390, 510 HOTEL 277 See Innkeepers. HYPOTHECA 166 See Pledge. INDEX. 771 I. INFANT, _ _ Section in gratuitous bailments 27 in bailments for hire 92, \'-'>'J iu a pledge 171) as concerns innkeepers 299, 318, 32G-^52.S common carriers 570 passenger carriers G2(i, G21 INNKEEPERS, the innkeeper as a bailee for reward ; exceptionally liable 273, 33 1 nature and origin of this exceptional liability 274 civil law rule on this subject 274, n. preliminary points to he considered 275 («) who are innkeepers ; circumstances regarded .... 270 inn, tavern, hotel, restaurant, etc 277 ap.artment-houses, boarding-houses, etc 278 general conclusion as to who are innkeepers 279 innkeeper may be individual, firm, or company 279 (h) who are guests; circumstances considered 280 transients, boarders, etc., distinguished 281 general conclusion 282 (e) what property is embraced under the exceptional bailment 283 rigor of old rule mitigated by modern legislation .... 284 (d) limits of relation ; inn precincts, etc 285 innkeeper's and common carrier's legal responsibility distin- guished 280 Roman law compared on this point 287 innkeeper's common-law responsibility for guest's chattels . . . 288 this standard is exceptionally great ; confusion in cases . . 288 distinction from common carrier's responsibility .... 334 standard of liability at the civil law 289 instances of liability stated; acts of those about the inn . . 290 acts of those from without the inn 291 forcible robbery, riots, etc 292 loss by accidental fire 293 cases of clear immunity 294 liability where actually negligent 295 for animals and things inanimate compared . . . 296 chattels brought within the inn precincts, etc. . 297 when liability of innkeeper ends 298 remedies for loss ; points of practice, proof, etc. . . . 299,300 innkeeper's exoneration at the common law 301 that guest did not confide to innkeeper 302 772 INDEX. INNKEEPERS — continued. Section that chattels were not bailed in capacity of guest .... 303 guest's negligence contributed to loss .... 304, 305 exoneration by reason of excusable loss 306 innkeeper's liability holds, though he be not licensed . . . 307 special qiialijications of innkeeper' s responsibility 308 qualification by special contract 309 reasonable rules, etc 310 custom or usage 311 statute ; modern innkeepers' acts .... 312 liability in a relation different from innkeeper 313 innkeeper an ordinary bailee where public vocation is not exercised 313 innkeeper's liability as to boarders 314 lodging-house and boarding-house relation considered . 315, 316 general duties and rights of innkeepers 317 duties of innkeeper to guest, etc 318, 319 duty as to others on inn premises 320 whether one may select guests, discriminate, etc 321 innkeeper should refuse, where health and safety require . 322 innkeeper's liability for assault upon guest; other injuries, etc 323 other duties of innkeeper ; charges, license, etc 324 rights of innkeeper; rules, etc 325 right of recompense ; lien, etc 326-328 whether boarding-house keepers have lien, etc 329 sleeping-car company no innkeeper 354 passenger carrier of baggage compared with innkeeper . . 666 INSURANCE, by bailees for hire, etc 116, 155 policy enforcement in a pledge 172, 239 in modern times, as special business 409 influence upon common carrier's pursuit 409, 440 carrier, in what sense an insurer 405, 440, 453 effect of carrier's special contract as to insurance .... 458 passenger carrier not an insurer 640, 652 effect of " accident policy " 664, n. INTERMEDDLER, how bound as custodian 3, 18, 28 See Tort. INTERSTATE. See Commerce. INDEX. 773 J. Section JETTISON 417,433,458 See Common Cakrieks, IV. L. LEGISLATION, affecting the pledge transaction 248 qualifying innkeeper's bailment responsibility . . . 284, 312 as to lien for board 329 affecting carrier's legal liability 408, 481-486 duty of delivery . 519-521 English Carriers' Act; Railway and Canal Traffic Act 484, 519-521 prescribing tariff of carriers' charges 541 affecting passenger-fares and duty to receive 637 liability for baggage 691 LENDER. See Loan for Use, LETTING. See Hire, Bailments for, II. LIEN, of hired bailee 122-127 in a pledge 217 n of innkeeper 326-328 of boarding-house keepers, etc., under statute 329 of common carriers of goods 542-550, 610 of passenger carriers, upon baggage 693 LOAN FOR USE, introductory remarks 6-8, 65, 66 loan for use defined ; commodatuyn nnd mututim . . . 6-8,65,66 heads of the present chapter stated 67 matters preliminary, including delivery 68 mutuality, a contract, etc 68, 130 subject-matter of loan ; things non-consnmable, etc. ... 69 period of loan ; precarium; time definite or indefinite ... 70 bailment and contract for bailment; effect of bare promise . 71 accomplishment of bailment purpose 72 "great" diligence required, or more than ordinary .... 72 good faith requisite; no misuse, sale, pledge, deviation, etc. . 73 what is excusable loss or injury 74 more diligence than to one's own no test 75 hypothesis of civilians on this point 75 loss or injury occasioned by third persons 76 bailment affected by special contract 77 borrower's right to use ; incidental expenses, etc 78 774 INDEX. LOAN FOR USE — continued. Section lender's corresponding duties 79 rights of action against third parties 80 termination of the bailment 81 metliod and time of termination 81 borrower's duty to deliver back or over 82 whether borrow^er may detain or charge for expenses ... 83 lender's intervention does not i-elease borrower from liability 84 LOCATIO-CONDUCTIO 13,14,86,87 See Hire, Bailments for. LODGING-HOUSE 278, 314, 316, 329 See Innkeepers. LUGGAGE 667-669 See Baggage. M. MAIL 267-272, 359 a See Postmasters. MANDATUM, defined 13, 14 inapt, at our law, for classification 26 See Gratuitous Bailments. MARGIN 233 See Pledge. MARRIED WOMAN, in gratuitous bailment 27, 68 in bailments for hire 92 as pledgor or pledgee 179 as to innkeeper 318 with reference to common carriers 570 MASTER, of a vessel 367, 404, 476, 573 See Common Carriers. MONEY 367-369, 669 See Common Carriers. MORTGAGE, chattel, compared with pledge 14, 164, 167, 168 Welsh 218 enforcement under a pledge 235 MUTUAL-BENEFIT BAILMENT, ordinary mutual-benefit bailments for hire 85 See Hire, Bailments for. bailment in pledge 162 See Pledge. INDEX. ( ( o MUrUUM, Section a sale rather than baihiient . 6-S, 05, 06 N. NEGLIGENCE, standard of, in law of bailments 15 gross, ordinary, slight 15 other tests attempted 10 not as advantageous for test as diligence 10 See Bailments. NEGOTIABLE INSTRUMENTS . . . 172, 190, 197, 200, 230-238 See Pledge. NEGOTIORUM GESTOR u'S See Intermeddler. 0. OFFICERS, of justice, clerks of courts, sheriffs, etc., as bailees . 4, 5, 28, 45, 54, 101, 221 public officers in general 4, 5 receiptor imder an attachment 54 postmasters and mail-contractors are public officers . . 27(1, 271 attachment by, or custody of law, wliether an excuse to carrier 428, 498 OWNER'S RISK, use of expression, " O. R." 451, 452, 480 See Common Carriers. PARTNERSHIP 180,279,350,304,591,592 See Common Carriers. PASSENGER CARRIERS, I. Matters Premminaky to the Journey: carriage of passengers no bailment, but a corresponding relation 331,341,352,012 topics for preliminary discussion in this chapter 613 (1) n'ho are carriers of passengers 014 carriers by land or water ; stages, railways, vessels, etc. . . 614 the responsil)]t' transporter considered 015 connecting carriers, through tickets, etc 015, 616 776 INDEX. PASSENGER CAUmEUS — continued. Section responsible transporter with connected facilities, etc. . . . 617 control of transportation ; instances 618 conclusion as to the responsible transporter 619 (2) ivho are passengers G20, 621 passengers paying and not paying distinguished from servant of carrier and trespasser 620 effect upon one's status of riding in unusual places .... 621 one may be accepted as passenger before entering the vehicle 621 (3) obligation to receive for carriage 622 a free selection of patrons not permitted 622 accommodations ; suitable persons, etc 623 carrier's reasonable rules as to accommodations 624 (4) passage tickets and fares 625 compensation usually received in advance 625 use of passage-tickets ; modern system stated 625 reasonableness of fare 611 c, 626 nature of the contract evinced by ticket, etc 627 differing rates import differing facilities 628 special restrictions of carriage by ticket, etc 629 reasonable rules as to tickets 630 special instances ; lost tickets ; travelling without ticket, etc. 631 improper tickets 632 enforcement of fares by conductor 633 whether aggrieved passenger may refuse fare, etc 634 ticket-seller's representations, how far binding 635 (5) aggrieved passenger's right of action 636 inexcusable failure of carrier to receive ; what constitutes . 636 form of action ; damages 636 (6) legislation as to fares and duty to receive 637 against overcrowding ; for reasonable facilities, etc 637 as to passenger-fares, tolls, special charges, etc 637 II. Duties and Rights Incidental to the Journey : (1) general duties of carrier with reference to the J ou7mey . . . 638 these duties and their scope stated 638 (a) suitable depot ; means of ingress, etc 639 reasonable regulations respecting use of depot 639 (b) suitable means and appliances for the transportation . . 640 highest care; but no warranty against latent defects . . 640, 641 (c) transportation with reasonable provision for comfort, safety, and -security 642 providing places, loading properly, supplying meals, place for sleeping, etc 642 maintaining order on board, and excluding offensive persons 643 INDEX. ( 1 7 PASSENGER CARRIERS — con/uiu^/. PocUon good treatment by carrier's servants Gil care in conducting the transportation; land carriag*' . . . lislied time-tables, etc 049 passenger's remedies for not transporting as promised . . . 050 duty as to changes, way-stations, etc 051 (^2) UaJiUity of carrier for injuring or killing passenger . . . . 052 liability for injuring passenger; rule stated 052 burden of proof, evidence, etc 053 carrier's liability for causing death 054 (3) u'hether special contract ajfects liability for injury .... 055 disinclination to lay down rule as in bailment of chattels . 055 travellers on free passes, " drovers' passes," etc 050 general conclusion ; trespassers contrasted 057 (4) carrier's right of ejection 058 right to be prudently exercised ; carrier's liability where right is abused 658 III. Termination of the Journey : how one's journey may prematurely end 059 journey naturally ends at place of destination 000 where carrier should stop 000 opportunity to alight ; proper landing-place, etc 001 passenger's duty in landing 002 final compensation, surrender of ticket, etc 603 remedies of passenger in general; damages 604 IV. Tkansportation of Baggage: (1) nature of baggage transportation considered 605 transportation incidental to carriage of the passenger . . . 005 vocation of innkeeper compared 000 what is baggage or luggage 607, 608 money considered as baggage 609 value as an element in baggage ; rank, station, etc 070 conclusion as to what is baggage 671 (2) nature and extent of risk for baggage 672 liability is that of common carrier 072 carrier's liability for what is not strictly baggage .... 073, 074 rule that passenger and baggage should go together ... 075 baggage express distinguished ; where passenger is not taken 070 (3) token the carrier's liability for baggage commences . . . 077, 078 receipt of baggage for immediate transportation, etc. . . 077, 078 reciprocal duties of passenger and carrier as to receiving . 679 bailment of hand-baggage; mixed custody 080 778 INDEX. PASSENGER CARRIERS — continued. Section (4) lialiilUy of carrier for haggoge 681 common-law liability for baggage stated 681 liability for hand-baggage, etc., considered 682-684 loss of hand-baggage, etc., in sleeping-car 684 a carrier's rules as to special articles, animals, etc 685 liability for articles, not baggage, taken by the passenger 686, 687 carrier may charge freight for what is not baggage .... 688 special contract terms affecting liability for baggage . . 689, 690 legislation affecting liability for baggage 691 (5) termination of risk, lien, etc 692 "when liability for baggage terminates 692 carrier's right of lien as to baggage 693 (6) remedies ivhere baggage is lost or injured 694 burden of proof in such cases 694 practice in suits for lost baggage 695 (7) connecting carriers as to baggage 696 PAWN 162, etc. See Pledge. PERILS, of the seas, and other qualifying expressions in bills of lading 446, and n. PERSONAL PROPERTY, bailment relates to 9, 31 PIGNUS 13, 14, 166 See Pledge. PLEDGE, nature of pledge or pawn, as a bailment 13, 14, 162 historical development of the transaction 163 collateral security in this connection 164 use of words pledgor and pledgee 165 Roman ^j;'^nus and /(?/;jo