l4«» M *wl» 4 l U »»»'l«>*«*1f*f*' UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY CASES ON THE LAW OF CARRIERS SELECTED FROM DECISIONS OF ENGLISH AND AMERICAN COURTS BY FREDERICK' GREEN PROFESSOR OF LAW, UNIVERSITY OF ILLINOIS AMERICAN CASEBOOK SERIES JAMES BROWN SCOTT GENERAL EDITOR ST. PAUL WEST PUBLISHING COMPANY 1910 r Copyright, 1910 BY WEST PUBLISHING COMPANY (Gbeex, Law Cabb.) THE AMERICAN CASEBOOK SERIES For years past the science of law has been taught by lectures, the use of text-books and more recently by the detailed study, in the class-room, of selected cases. Each method has its advocates, but it is generally agreed that the lecture system should be discarded because in it the lecturer does the work and the student is either a willing receptacle or offers a passive resistance. It is not too much to say that the lecture system is doomed. Instruction by the means of text-books as a supplement or sub- stitute for the formal lecture has made its formal entry into the educa- tional world and obtains widely ; but the system is faulty and must pass away as the exclusive means of studying and teaching law. It is an improvement on the formal lecture in that the student works, but if it cannot be said that he works to no purpose, it is a fact that he works from the wrong end. The rule is learned without the reason, or both rule and reason are stated in the abstract as the resultant rather than as the process. If we forget the rule \xe cannot solve the problem; if we have learned to solve the problem it is a simple matter to formulate a rule of our own. The text-book method may strengthen the mem- ory; it may not train the mind, nor does it necessarily strengthen it. A text, if it be short, is at best a summary, and a summary presup- poses previous knowledge. If, however, law be considered as a science rather than a collection of arbitrary rules and regulations, it follows that it should be studied as a science. Thus to state the problem is to solve it ; the laboratory method has displaced the lecture, and the text yields to the actual experiment. The law reports are in more senses than one books of experiments, and, by studying the actual case, the student co-operates with the judge and works out the conclusion however complicated the facts or the principles involved. A study of cases arranged his- torically develops the knowledge of the law, and each case is seen to be not an isolated fact but a necessary link in the chain of develop- ment. The study of the case is clearly the most practical method, for the student already does in his undergraduate days what he must do all his life; it is curiously the most theoretical and the most prac- tical. For a discussion of the case in all its parts develops analysis, the comparison of many cases establishes a general principle, and (iu) iV PREFACE. the arrangement and classification of principles dealing with a sub- ject make the law on that subject. In this way traimng and knowledge, the means and the end of legal study, go hand and hand. The obvious advantages of the study of law by means of selected cases make its universal adoption a mere question of time. The only serious objections made to the case method are that it takes too much time to give a student the requisite knowledge of the sub- ject in this way and that the system loses sight of the difference be- tween the preparation of the student and the lifelong training of the lawyer. Many collections of cases seem open to these objections, for they are so bulky that it is impossible to cover a particular sub- ject with them in the time ordinarily allotted to it in the class. In this way the student discusses only a part of a subject. His knowl- edge is thorough as far as it goes, but it is incomplete and frag- mentary. The knowledge of the subject as a whole is deliberately sacrificed to training in a part of the subject. It would seem axiomatic that the size of the casebook should cor- respond in general to the amount of time at the disposal of instructor and student. As the time element is, in most cases, a nonexpansive quantity, it necessarily follows that, if only a half to two-thirds of the cases in the present collections can be discussed in class, the pres- ent casebooks are a third to a half too long. From a purely practical and economic standpoint it is a mistake to ask students to pay for 1,200 pages when they can only use 600, and it must be remembered that in many schools, and with many students in all schools, the mat- ter of the cost of casebooks is important. Therefore, for purely practical reasons, it is believed that there is a demand for casebooks physically adapted and intended for use as a whole in the class-room. But aside from this, as has been said, the existing plan sacrifices knowledge to training. It is not denied that training is important, nor that for a law student, considering the small amount of actual knowledge the school can hope to give him in comparison with the vast and daily growing body of the law, it is more important than mere knowledge. It is, however, confidently asserted that knowledge is, after all, not unimportant, and that, in the inevitable compromise between training and knowledge, the present casebooks not only de- vote too little attention relatively to the inculcation of knowledge, but that they sacrifice unnecessarily knowledge to training. It is be- lieved that a greater effort should be made to cover the general prin- ciples of a given subject in the time allotted, even at the expense of a considerable sacrifice of detail. But in this proposed readjustment of the means to the end, the fundamental fact cannot be overlooked that law is a developing science and that its present can only be un- derstood through the medium of its past. It is recognized as im- perative that a sufficient number of cases be given under each topic PREFACE. V treated to afford a basis for comparison and discrimination ; to show the development of the law of the particular topic under discussion ; and to afford the mental training for which the case system neces- sarily stands. To take a familiar, illustration: If it is proposed to include in a casebook on Criminal Law one case on abortion, one on libel, two on perjury, one on larceny from an office, and if in order to do this it is necessary to limit the number of cases on specific intent to such a degree as to leave too few on this topic to develop it fully and to furnish the student with training, then the subjects of abor- tion, libel, perjury, and larceny from an office should be wholly omit- ted. The student must needs acquire an adequate knowledge of these subjects, but the training already had in the underlying principles of criminal law will render the acquisition of this knowledge compara- tively easy. The exercise of a wise discretion would treat fundamen- tals thoroughly : principle should not yield to detail. Impressed by the excellence of the case system as a means of legal education, but convinced that no satisfactory adjustment of the con- flict between training and knowledge under existing time restrictions has yet been found, the General Editor takes pleasure in announcing a series of scholarly casebooks, prepared with special reference to the needs and limitations of the class-room, on the fundamental sub- jects of legal education, which, through a judicious rearrangement of emphasis, shall provide adequate training combined with a thor- ough knowledge of the general principles of the subject. The collec- tion will develop the law historically and scientifically; English cases will give the origin and development of the law in England ; Ameri- can cases will trace its expansion and modification in America; notes and annotations will suggest phases omitted in the printed case. Cumulative references will be avoided, for the footnote may not hope to rival the digest. The law will thus be presented as an organic growth, and the neces- sary connection between the past and the present will be obvious. The importance and difficulty of the subject as well as the time that can properly be devoted to it will be carefully considered so that each book may be completed within the time allotted to the particular sub- ject. It is equally obvious that somic subjects are treated at too great length, and that a less important subject demands briefer treatment. A small book for a small subject. In 'this way it will be alike possible for teacher and class to com- plete each book instead of skimming it or neglecting whole sections ; and more subjects may be elected by the student if presented in short- er form based upon the relative importance of the subject and the time allotted to its mastery. Training and knowledge go hand in hand, and Training and Knowl- edge are the kevnotes of the series. Vi PREFACE. If it be granted tliat all. or nearly all, the studies required for ad- mission to the bar should be studied in course by every student — and the soundness of this contention can hardly be seriously doubted — it follows necessarily that the preparation and publication of collections of cases exactly adapted to the purpose would be a genuine and by no means unimportant service to the cause of legal education. And this result can best be obtained by the preparation of a systematic series of cascbookb constructed upon a uniform plan under the super- vision of an editor in chief. For the basis of calculation the hour has been taken as the unit. The General Editor's personal experience, supplemented by the experience of others in the class-room, leads to the belief that approximately a book of 400 pages may be covered by the average student in half a year of two hours a week ; that a book of 600 pages may be discussed in class in three hours for half a year; that a book of 800 pages may be completed by the student in two hours a week throughout the year ; and a class may reasonably hope to master a volume of 1,000 pages in a year of three hours a week. The general rule will be subject to some modifications in connection with particular topics on due con- sideration of their relative importance and difficulty, and the time ordinarily allotted to them in the law school curriculum. The following subjects are deemed essential in that a knowledge of them (with the exception of International Law and General Juris- prudence) is universally required for admission to the bar: Administrative Law. Insurance. Agency. International Law. Bills and Notes. Jurisprudence. Carriers. ^Mortgages. Contracts. Partnership. Corporations. Personal Property, including Constitutional Law. the Law of Bailment. Criminal Law. ~, , _ . ( 1st Year. ^ . . , n , Real Property. J. 2d Crimmal Procedure. ^ 1 3d Common-Law Pleading. Public Corporations. Conflict of Laws. Quasi Contracts. Code Pleading. Sales. Damages. Suretyship. Domestic Relations. Torts. Equity. Trusts. Equity Pleading. Wills and Administration. Evidence. International Law is included in the list of essentials from its in- trinsic importance in our system of law. As its principles are sim.ple in comparison with municipal law, as their application is less technical, PREFACE. VU and as the cases are generally interesting, it is thought that the book may be larger than otherwise would be the case. As an introduction to the series a book of Selections on General Jurisprudence of about 500 pages is deemed essential to completeness. The preparation of the casebooks has been intrusted to experienced and well-known teachers of the various subjects included, so that the experience of the class-room and the needs of the students will fur- nish a sound basis of selection. While a further list is contemplated of usual but relatively less im- portant subjects as tested by the requirements for admission to the bar, no announcement of them is made at present. The following gentlemen of standing and repute in the profession are at present actively engaged in the preparation of the various case- books on the indicated subjects : George W. Kirchwey, Dean of the Columbia University, School of Law. Subject, Real Property. Nathan Abbott, Professor of Law, Columbia University. (Formerly Dean of the Stanford University Law School.) Subject, Per- sonal Property. Frank Irvine, Dean of the Cornell University School of Law. Sub- ject, Evidence. Harry S. Richards, Dean of the University of Wisconsin School of Law. Subject, Corporations. James Parker Hall, Dean of the University of Chicago School of Law. Subject, Constitutional Law. William R. Vance, Dean of the George Washington University Law School. Subject, Insurance. Charles M. Hepburn, Professor of Law, University of Indiana. Sub- ject, Torts. William E. Mikell, Professor of Law, University of Pennsylvania. Subjects, Criminal Law and Criminal Procedure. George P. Costigan, Jr., Professor of Law, Northwestern University Law School. Subject, Wills and Administration. Floyd R. Mechem, Professor of Law, Chicago University. Subject, Damages. (Co-author with Barry Gilbert.) Barry Gilbert, Professor of Law, University of IlHnois. Subject, Damages. (Co-author with Floyd R. Mechem.) Thaddeus D. Kenneson, Professor of Law, University of New York. Subject, Trusts. Charles Thaddeus Terry, Professor of Law, Columbia University. Subject, Contracts. viii PREFACE. Albert M. Kales, Professor of Law, Northwestern University. Sub- ject, Persons. Edwin C. Goddard, Professor of Law, University of :\Iichigan. Sub- ject, Agency. Howard L. Smith, Professor of Law, University of Wisconsin. Sub- ject, Bills and Notes. (Co-author with Wm. Underhill jMoore.) \Vm, Underhill Moore, Professor of Law, University of Wisconsin. Subject, Bills and Notes. (Co-author with Howard L. Smith.) Edward S. Thurston. Professor of Law, George \\'ashington Univer- sity. Subject, Quasi Contracts. Crawford D. Hening, Professor of Law, University of Pennsylvania. Subject, Suretyship. Clarke B. Whittier, Professor of Law, University of Chicago. Sub- ject, Pleading. Eugene A. Gilmore, Professor of Law, University of Wisconsin. Subject, Partnership. Joshua R. Clark, Jr.. Assistant Professor of Law, George Washington University. Subject, Mortgages. Ernst Freund, Professor of Law, University of Chicago. Subject, Administrative Lazv. Frederick Green, Professor of Law, University of Illinois. Subject, Carriers. Ernest G. Lorenzen, Professor of Law, George Washington Univer- , sity. Subject, Conflict of Lazvs. William C. Dennis, Professor of Law, George Washington University. Subject, Public Corporations. James Brown Scott, Professor of Law, George Washington Univer- sity; formerly Professor of Law, Columbia University, New York City. Subjects, International Lazv; General Jurisprudence; Equity. James Brown Scott, Washington, D. C, July, 1010. General Editor. Following are the books of the Series now published, or in press : Administrative Law Damages Bills and Notes Partnership Carriers Suretyship Conflict of Laws Trusts Criminal Law Wills and Administration Criminal Procedure The translations of passages from medieval sea laws, printed in this collection, are taken from the work published by Sir Travers Twiss under the title of The Black Book of the Admiralty, ]\Ionumenta Jurid- ica, London, Longman & Co., etc. The editor is indebted to Joseph H. Iglehart, Esq., of the Indiana bar for the selection of some of the cases in Part V. (is)* TABLE OF CONTENTS PART I. Introductory Topics. CHAPTER I. Section Page The Liability of a Bailee tob Loss or Damage to the Article Bailed 1 CHAPTER II. The Obligation of a Common Carrier. 1. Duty to serve 16 2. Liability for damage or loss 17 CHAPTER HI. What is Carriage 19 CHAPTER IV. What is a Common Carrier , . , 34 TART II. The Carrier's Undertaking. chapter i. The Conduct of Transportation. 1. Dispatch 42 2. Continuity 47 3. Route 50 4. Effect of deviation 59 5. Seaworthiness 67 6. Care of goods and passengers 73 7. Transportation not within the contract of carriage 88 I. Without acceptance. .* 88 II. Ignorance, mistake, and fraud 95 CHAPTER IL Excuses for Failure to Transport and Deliver 113 Green Caeb. (xi) Xii TABLE OF CONTENTS. CHAPTER III. TuE Completion of the Carrier's Uxdeutaicing. Section Page 1. Place and manner of tender to consignee 135 2. To whom delivery slipuld be made 151 CHAPTER IV. Who mat SiE FOR Breach of the Cakkier's Undeutakixg 176 CHAPTER V. Rights of a Holder of a Bill of Lading 1S2 CHAPTER VI. Tickets , 202 CHAPTER VII. Liability where Several Persons are Concerned in Carriage. 1. With whom is the contract of carriage 229 2. Delegation of carrier's duty 24G I. Liability of the carrier who delegates 24G II. Liability of the person delegated 251 3. Presumption as to circumstances of damage 255 PART III. The Obligation of the Shipper, chapter i. Freight. 1. VTho Is liable for freight 257 2. When freight is earned 202 3. Lien for freight 284 CHAPTER II. Character of Goods 296 CHAPTER IIL Dispatch and Demurrage 298 CHAPTER IV. Compens/^tion for Extraordinary Services 307 / TABLE OF CONTENTS. XUl PART IV. The Exceptional Liability of a Common Carrier. CHAPTER I. Section Page Liability foe Damage or Loss in the Caeriage of Goods 312 CHAPTER IL Liability for Injury to Passengers 326 CHAPTER III. Cases not within the Rule of Exceptional Liability in the Carriage of Goods. 1. Act of God 345 2. Act of the public enemy 306 3. Quality of the thing carried 358 4. Act of the shipper 367 5. Delay 374 6. Gratuitous carriage 379 7. Articles not in the carrier's custody 384 CHAPTER IV. Limitation of Liability. 1. Limitation of liability by notice 395 2. Limitation of liability by consent 407 3. Limitation of liability by statute 472 CHAPTER V. Duration of Liability. 1. WHen liability begins 482 2. WEen liability ends 496 PART V. The Common Carrier's Duty to Serve. CHAPTER I. Extent of Obligation to Serve XIV TABLE OF CONTENTS. CHAPTER II. Page Adequacy of Sebvice 540 CHAPTER III. Chaboes fob Service 559 CHAPTER IV. EkjuALixr OF Service 574 APPENDIX. In the Matter of Bills of Lading 595 TABLE OF CASES i[CASES CITED IX FOOTNOTES ARE INDICATED BY ITALICS. WHERE SMALL CAPITALS ARE USED, THE CASE IS REFERRED TO IN THE TEXT] Page Acatos V. Bui-ns 297 Adams Exp. Co. v. Daruell 496 Adams v. New Jersey Steamboat Co 390 Ailcen v. Southern R. Co 207 Allen V. Maine Cent. R. Co 123 Ailing V, Boston & A. R. Co 105 American, Etc., Exp. Co. v. Milk 168 Ajierican Exp. Co. v. Fletcher 169 American Exp. Co. v. Perkins .... 370 Amies v. Stevens 345 Anchor Line v. Dater 414 Anderson v. Owners of The San Roman 45 Anonymous 285 Asfar & Co. v. Blundell 276 Assicurazioni Genei'ali v. S. S. Bessie Morris Co 127 Aston V. Heaven 326 Atchison, etc., R. Co. v. Roach... 244 Atchison, T. & S. F. R. Co. v. Par- ry 82 Auerbach v. New York Cent. & H. R. R. Co 202 Bailey v. Hudson R. R. Co 151 Baker v. Boston & M. R, Co 542 Baltimore & O. S. W. R. Co. v. VoiGT 452 Bank of Kentucky v. Adams Exp. Co 388 Bank op Kentucky v. Adams Exp. Co 253 Bank of Orange v. Brown 321 Barker v. Hodgson 117 Barney v. The D. R. Martin 537 Baughman v. Louisville, etc., R. Co 458 Beard v. St. Louis, A. & T. H. R. Co 362 Green Cabb. (xv) Page Beck V. Evans 77 Bedford-Bowling Green Stone Co. V. Oman 546 Bell V. Indianapolis, C. & D. R, Co 251 Bell V. Pidgeon 34 Bennett v. Button 525 Bills of Lading, In re 595 Birley v. Gladstone 301 Birmingham Ry., Light & Power Co. V. McDonqugh 553 Bitterman v. Louisville & N. R. Co 211 Blair v. Erie R. Co 406 Bland V. Adams Exp. Co 356 Block V. Fitchburg R. Co 245 Boering v. Chesapeake Beach R. Co 404 Boggs V. Martin 285 Bosworth V. Union R. Co 331 Boi/ce V. Anderson 359 Braithwaite v. Power 271 Branch v. Wilmington & W. R. Co 540 BltETHERTON V. WOOD 324 Briggs V. Boston & L. R. Co 291 British d Foreign Marine Ins. Co. V. Southern Pac. Co 270 Britten v. Great Northern R. Co. 101 Brown v. Harris 283 Brunswick & W. R. Co. v. Moore 522 Buckland v. Adams Exp. Co... 19, 244> Burghall v. Howard 122 Burns v. Boston Elevated R, Co.. . 403 Busscy V. Mississippi Valley Transp. Co 27^ Butler V, Murray 129 Cahill V. London d- X. W. R. Co. 106 Caledonia, The 67 XVI TABLE OF CASES. Page California Powder Works v. At- lantic A P. R. Co 536 Camuex & Amboy Co. v. Blkke 350 Canada Soiitberu R. Co. v. Inter- national Bridge Co 5G0 Cargo ex Argos 30S Carr v. Lancashire, etc., R. Co... 439 Cau V. Texas & P. R. Co 433 Central of Georgia R. Co. v. Hall 462 Central of Georgia R. Co. v. Hall 352 Central R. Co. of New Jersey v. MacCartney 259 Chesapeake S. 8. Co. v. Merch- ants' Nat. Bank 190 Chicago, etc., R. Co. v. Pullman Car Co 532 Chicago, R. I. & P. R. Co. v. Hand- ler 13, 4.52 Chicago & A. R. Co. v. Mulford. , 240 Chicago & A. R. Co. v. Thomp- son 370 Chicago & E. I. R. Co. v. Jennings 493 Cliristie v. Griggs 327 Citizens' Bank v. Nantucket Steamboat Co 229 City of Norwicb, The 474 Claiborne v. Missouri, etc., Co.... 89 Clark V. Burns 389 Clark V. Masters 262 Coggs V. Bernard 8, 317 CoiiN V. Davidson 70 Colonel Ledyard, The 365 C-OM. V. FiTCHBURG R. Co 547 Condran v, Chicago, M. & St. P. R. Co 110 Congar v. Chicago & N. W. Ry. Co. 367 Consulate of the Sea 50, 62, 67, 73, 284 Consulate of the Sea 59, 97, 276, 299, 315 Conger v. Hudson R. R. Co 374 Cork Distilleries Co. v. Great Southern, etc., Co 1.50 Ckagin v. X. Y. C. R. R. Co 4.38 Craker v, Chicago & X. W. R. Co. 77 Creamer v. West End St. R. Co.. . 520 Crocker v. .Tackson 63 Crommeliu v. New York & H. R, Co 305 CuNDT V. Lindsay 1(H Cutler V. Winsor 230 Dalton's Adm'r v. Louisville & N. R. Co 89 Davis V. Garrett 60 Page Delaware, The 420 Digest 282, 310 Denver, etc., Co. v. Hill 293 Dohbin v. Michigan Cent. R. Co . . 151 Dodge V. Boston & B. S. S. Co.. . . 517 Dorr V. New Jersey Steam Nav. Co 407 Douglas Co. v. Minnesota, etc., R. Co 4G4 Duchemin v. Boston Elevated R. Co 494 Duff v. Budd 171 Dunbar v. Boston, Etc., R. Corp 171 Duulap v. International Steam- boat Co 102 Dwight V. Brewster 34 Edmunds v. Merchants', Etc., Co 171 Edwards v. Manufacturers' Bldg. Co 29 Eliza, The 43 Eliza Lines, The 273 Ellis V. Willard 191 Engesether v. Great Northern R. Co 469 Esposito V. Bowden 116 Evans v. Fitchburg R. Co 358 Everett v. Southern Exp. Co 97 Express Cases 528 Fairbank & Co. v. Cincinnati... . 435 Farley v. Lavary 31 Faucher v. Wilson 37 Finn v. Western Railroad Corp.. . 176 First Nat. Bank of Greenfield v. Marietta & C. R. Co 92 Fisher v. Clisbce 386 Flint & P. M. R. Co. v. Weir 14 Fonseca v. Cuuard S. S. Co 418 Forles v. Boston & L. R. Co 156 Ford V. Mitchell 88 Forsee v. Alabama Great South- ern R. Co 554 Forward v. Pittard 318 Frederick v. Marquette, H. & O. R. Co 21.5 Friend v. Woods 346 Frith v. Barker 280 Galena & C. U. R. Co. v. Rae 539 Garrison v. United Rys. & Elec- tric Co 206 TABLE OF CASES. XVll Page Gibbon v. Paynlon 97 Gibbon v. Paynton 457 Gibson v. Culver 135 Gibson v. Sturyc 282 Gillespie v. St. Louis, etc., R. Co. 352, 356 Gillespie v. Thompson 364 GJceson v. Virginia Midland Ry.. . 352 Glendarroch, The 442 Glyn Mills d Co. v. East & West India Dock Co 187 Gratitudine, The 132 Gray v. Carr 304 Great Western R. Co. v. Bunch. . 389 Green v. Milwaukee & St. P. R. Co 483 Griswold v. New York Ins. Co.. .. 274 Grosvenor v. Neiv York Cent. R. Co 491 Chilf, C. & S. F. R. Co. V. Levi.. 377 Hadji, The 465 Hadley v. Clarke 113 Hale V, New Jersey Steam Nav. Co n Hardenberg v. St. Paul, M. & M. R. Co 86 Hardy v. American Exp. Co 144 Harp V. Southern R. Co 212 Harrington v. McShane 39 Hart T. Chicago & N. W. R. Co.. . 368 Hart V. Pennsylvania R. Co 454 Hawkins v. Front Street Cable Ry. Co 337 Eayne v. Union St. R. Co 80 Hays v. Pennsylvania Co 576 Hegeman v. Western R. Corp 246 Hilton Lumber Co. v. Atlantic Coast Line R. Co 579 Hollister v. Nowlen 395 Honeyman v. Oregon & C. R. Co. 40 Hoover v. Pennsylvania R. Go... 581 Howell v. Railroad Co 393 Hufford V. Grand Rapids & I. R. Co 218 Hutchins v. Pennsylvania R. Co. 421 Idaho, The 119 Illinois Cent. R. Co. v. Allen 534 Illinois Cent. R. Co. v. Craiy 4a3 Illinois Cent. R. Co. v. O'Keefe. . . 90 Indianapolis St. R. Co. v. Wilson 220 Ingate v. Christie 36 Interstate Commerce Commission V. Chicago G. W. Ry 593 Green Carr.— b Page Interstate Commerce Commission V. Louisville & N. R. Co .591 Interstate Commerce Commission V. Louisville & N. R. Co .590 Ionic, The 374 Jackson v. Rogers 16 .Jackson v. Union Marine Ins. Co. 115 ■Jackson Architectural Iron Works V. Hurlbut 38 Jackson Electric Ry., Light & Power Co. v. Lowry ,552 Jameson v. Sweeney 298 Jaminet v. American Storage & Moving Co 6 Jarrett v. Great Northern R. Co. 142 Jerome v. Stnith 214 Jesson V. Solly 300 J. J. Douglas Co. v. Minnesota, etc., R. Co 464 Johnson v. Dominion Exp. Co 538 Jones V. Newiwrt News & M. V. Co 547 June V. Railroad Co 493 Kcnrig v. Eggleston 96 Kensington, The 450 Keokuk Northern Line Packet Co. V. True 518 Kinney v. Central R. Co 453 Kirkland v. Dinsmoi-e 418 Klauber v. American E.rp. Co 373 Knox V. Rives 380 KoPiTOFF V. Wilson 69 Lamb v. Camden & A. R. & Trausp. Co 439 Lane v. Cotton 16, 315 Lasker v. Third Ave. R. Co 50 Laus of Oleron 299 Laws of Oleron 58, 129, 131 Laws of Wisbuy 51, 284 Leduc & Co. V. Ward 52 Leer V. Yates 301 Lemon v. Chanslor 381 Lesinsky v. Great Western Dis- patch 144 Lewis V. Houston Electric Co 491 Lewis V. New York Sleeping Car Co 82 Libby v. Gage 277 Lilley v. Doubleday 62 Lines, The Eliza 273 Lister v. Lancashire & Y. R. Co.. . 363 Little V. Boston & M. R. R 95 XV lU TABLE OF CASES. Page Ivondon & N. W. R. Co. v. Bartlett 149 Loraine v. Pittsburg, etc., It. Co. 528 Loudouu V. Eighth Ave. K. Co 340 Ixiuisville, X. A. & C. IL Co. v. II»'ill>rin 143 Ix.uisville. N. O. & T. R. Co. v. Patterson 85 Ixmisville & N. II. Co. v. Ilartwell 153 Louisville & N. U. Co. v. Klyiium 47 Louisville & N. It. Co. v. Meyer . . 425 Louisville d IS!. R. Co. v. Odil 58 Louisiana & N. W. K. Co. v. Cruuipler 328 Lovett v. Hobls 384 McCai-thy v. Louisville d- A'. R. Co 374 McEntee v. New Jersey Steam- boat Co 140 M'Kean v. McI vor 100 McKce V. Oucn 392 McMillan v. Michigan Southern & N. I. R. Co 411 Marrow v. Great Western R. Co. 99 Madan v. Sherard 415 Maddock v. American Sugar Re- fining Co 200 Mann v. White River Log & Boom- ing Co 23 Marshal's Case 357 Martha. The 149 Menzell v, Chicago & X. W. R. Co. 4.34 Mcrritt v. Enrle 3.52 Merritt v. Old Colony & N. R. Co. 482 Michigan Cent. R. Co. v. Hale... 410 Miller v. Mansfield 307 Miller V. Steam ^av. Co 352 Missouri Pac. Ry. v. Larahee Mills .528 Mueller r. Young 2G5 Mollog. De Jure Martimo 51 Monnier v. Xew York Cent. & II. R. R. Co 55G Moore v. Xew York, X. II. & II. R. Co 255 Morningstar v. Louisville & X. R. Co 204 Morrison v. McFadden 353 Morse v. Slue 313 :Moses V. Boston & M. R. Co 505 Muschanip v. Lancaster & P. J. R. Co 232 Jlynard v. Syracuse, B. & X. Y. R. Co 43G Myrick v. Michigan Cent. R. Co. 236 Page Xational Bank of Commerce v. Chicago, B. & X. R. Co 192 Xational Xewark Banking Co. v. Delaware, L. & W. R. Co 100 Xeattie, The 25 Xebraska Meal Mills v. St. Louis S. W. R. Co 155 Xew Brunswick Steamboat Co. v. Tiers 349 Xew Jersey Stelam Nav. Co. v. Mercuaxts' Bank 436 Xew I'ork Cent. R. Co. v. Ix)ck- wood 445 New York, N. H. & H. R. R. v. In- terstate Commerce Commission 591 Xicholls V. More 257 N. K. Fairbanks d Co. v. Cincin- nati, etc., R. Co 435 yobeVs Explosives Co. v. Jenkins 116 Xortheru Pac. R. Co. v. Adams... 451 Xorthern Pac. R. Co. v. Wash- ington 547 Xorton V. Consolidated R. Co 223 Xorway Plains Co. v. Boston & M. R. R 500 Xotara v. Henderson 73 Oakley v. Portsmouth 346 O'Malley v. Great Xorthern R. Co. 459 Oppenheimer v. United States Exp. Co 400 Orange Count]/ Bank v. Broicn.. 97 Ouimit V. Henshaw 510 Pacific Exp. Co. V. Shearer 167 Packard v. Earle 138 Packard v. Taylor 251 Parker v. Xorth German Lloyd S. S. Co 393 Parker v. North German Lloyd S. S. Co '. 22 Parsons r. Monteath 352 Pennsylvania R. Co. v. Fries 352 People v. Xew York, L. E. & W. R. Co 548 Phelps, James & Co. v. Hill..., 55 Phelps V. Windsor Steamboat Co. 249 Pierce v. Milwaukee & St. P. R. Co 382 Pierce v. Winsor 296 Pine Bluff, etc., R. Co. v. McKen- zie 486 Pingree v. Detroit. L. & N. R. Co. 124 Pittsburgh, Ft. W. & C. R. Co. v. Hazen 378 TABLE OF CASES. XIX Page Pope V. Farmers' Union Sz Milling Co 5 Pbatt v. Railway Co 515 Price v. Oswego. Etc., R. Co.... 170 Proprietors of the Trent Xav. v. Wood 317 r-iiUman Co. v. Reed 214 Queen of the Pacific, The 468 Railroad Co. v. Boi/lr 92 Ralli V. Troop 1.33 Ratzer v. Burlington. C. R. & N. R- Co 1S8 Readhead v. Railroad Co 71 Read v. Spaukliug 64 Revised Statutes of the United States 472 Richardson v. Goddard 139 Ritchie v. Atkixsox 280 Robertson v. Old Colony R. Co. . . 27 Roberts v. Turner 21 Robinson v. Baker 288 Robinson v. Knights 279 Rodocanachi, Sons & Co. v. Mil- burn Bros 430 Ross V. Troy & B. R. Co 371 Row V. PiCKFORD 503 Runyon v. Central R. Co. of yew Jersey 102 Ryan v. Missouri, K. & T. R. Co. 442 St, Joseph & W. R. Co. v. Wheeler 106 St. Louis. A. & T. H. R. Co. v. Montgomery 486 St. Louis S. W. R. Co. of Texas v. Bryant 524 Samuel v. Cheney 163 Savona, The 115 Scofield V. Lake Shore & M. S. R. Co 574 Scothorn v. South Staffordshire R. Co 148 Scotland, The 476 Shelton v. Merchants' Dispatch Transp. Co 422 Silvia. The 479 Singer v. Merchants' Despatch Transp. Co 172 Skinner v. Upshaw 285 Sleoi>er v. Pennsylvania R. Co. . . . 209 Smith v. Shepherd 350 Southcote's Case 379 Page Southern Exp. Co. v. Caldwell . . . 466 Southern Exp. Co. v. Dickson. .. . 151 Southern Exp. Co. v. Van Meter 170 Southern Pac. Co. v. Bartine. . . 567 Southern R. Co. v. Adams 468 Southern R. Co. v. Jones 458 South & North Alabama R. Co. v Hen lein 465 State V. Central Vermont R. Co... 581 State V. Reed 533 State V. Texas d P. R. Co 586 Steele v. McTyer 39 Steele V. Southern R. Co 330 Stuai-t V. Crawley 373 Sullivan v. Seattle El. Co 84 Table of Amalfi 73 Tate V. Yazoo & M. V. R. Co 484 Taylor v. Great Northern R. Co. . . 42 Texas & P. R. Co. v. Abilene Cot- ton Oil Co 559 Texas & P. R. Co. v. Clayton 512 Texas & P. R. Co. v. Interstate Commerce Commission 587 Texas & P. R. Co. v. Jones 80 Thompson v. Chicago & A. R. Co. 469 Thompson v. Dominy 182 Thorpe V. New York Cent. & H. R. R. Co 247 Tibblts V. Rock Island & P. R. Co. 197 Tift V. Southern R. Co 561 Tindall v. Taylor 273 Toledo, W. & W. R. Co. v. Brooks 108 Tower v. Utica & S. R. Co 388 Tracy v. Wood 12 Tweedie Trading Co. v. Jas. P. McDonald Co 117 Tyly V. Alorrice 97 Union Exp. Co. v. Graham 373 United States ex rel. Pitcairn Coal Co. v. Baltimore & O. R. Co 582 United States v. Freight Ass'n 5^>4 Van Blarcom v. Central R. Co. of New Jersey 333 Tincent v. Chichi go rf- A. R. Co.. .. 545 Vlierboom v. Chapman 268 Wade V. Wheeler 487 Walker v. Jackson 99 Walters v. Detroit United R. Co. 510 XX TABLE OF CASES. Page Wrnn, In re 503 W«'Uster V. Fitchburg R. Co 480 Wehmann v. Miuueapolis, St. P. & S. S. M. R. Co 431 Wtiii(/art r. I'uUuian Co 389 West Cliester & l\ R. Co. v. Miles 550 Western Transp. Co. v. Iloyt 266 \Vhcclcr V. Occar.ic Steam Nav. Co 472 Wichita Sav. Bank v. Atchison, T. & S. F. R. Co 183 Wight V. U. S 590 Willett V. I'll iUips 279 Page WiUiams v. Oregon Short TAne R. Co 384 Williams v. Spokane Falls & N. R. Co 336 Witheck v. Holland 498 Woodlife's Case 312 Wooster V. Tarr 258 Wyckoff V. Queens County Ferry Co 386 Young V. Leary 1 Zeccardi v. Yonkers, etc., R. Co.. . 520 CASES ON THE LAW OF CARRIERS PART I INTRODUCTORY TOPICS CHAPTER I THE LIABILITY OF A BAILEE FOR DAMAGE TO THE ARTICLE BAILED YOUNG V. LEARY. (Court of Appeals of New York, 1802. 135 X. Y. 5G9, 32 N. E. 607.) Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made Novem- ber 5, 1891, which affirmed a judgment in favor of plaintiff entered upon the report of a referee. This was an action upon a guaranty. The facts so far as material are stated in the opinion. Peckham, J.^ The questions in this case arise out of a charter par- ty^ executed on the 17th of October, 1884, by the Washburn Steam- boat Company and one McKay, for whom the defendant became surety. The company on the day mentioned let, and McKay hired, the steam propeller called the Alicia A. Washburn, of which the company was the owner, for the term of 12 months from October 17, 18S4-, to be employed in lawful trade between Key West and other points on the West Florida coast, on the terms and conditions mentioned in the char- 1 Parts of the opinion are omitted. 2 "Charter party (charta partita; i. e., a deed of writing divided) is all one in the civil law with an indenture at the common law." Molloy, De Jure Maritime, book II, c. 4, § 4. Green Cabe. — 1 2 INTRODUCTORY Torics. (Part 1 ter party. Among other provisions thereof was one by which IMcKay agreed * * * that on the termination of the charter he would "deliver the said steam propeller to the Washburn Steamboat Company, or their legal representatives, in New York harbor, in the same good condition as she is now in, ordinary wear and tear excepted." * * * The vessel was burned at sea in January, 188G. * * * The remaining obligation of ^NIcKay under this charter party is con- tained in that provision by which he agreed, in the language already quoted, to deliver the vessel to the company in New York harbor. It has been claimed on the part of the plaintiff in the courts below, and it is now urged here, that this promise to deliver was on its face an absolute and unconditional one, and a failure to fulfill it would not be excused by the entire destruction of the vessel before breach, and without fault on the part of the charterer. It is true that the vessel was not destroyed at the time when by the terms of the original prom- ise McKay had bound himself to deliver it in New York harbor. The question is whether the contract to deliver was absolute, and only to be complied with by an actual delivery within the time agreed upon, or whether a destruction of the thing hired, before breach, and with- out the fault of him who hired it. would not absolve the latter from his contract. If it would, there is the further question whether the facts herein do not show a waiver of the contract to deliver at the specified date, and an implied extension of the time for such delivery, and the destruction of the vessel within the time thus extended, with- out the fault of the hirer ; or, at least, whether the facts proved were not enough to permit a finding of the fact of such waiver and exten- sion. The case of Harmony v. Bingham, 12 N. Y. 99, 62 Am. Dec. 142,' is one of the leading cases of that class which must have controlled the judgment of the courts below in the case at bar. It was there reit- erated, as a principle well founded in the law of contracts, that inevi- table accident or any unforeseen contingency, not within the control of the party promising, was no defense to an action founded upon the express promise to do the thing and a failure of performance. An act of God, it was said, would excuse a party from performing a duty created by law, but not where such party had unconditionally engaged by express contract to perform. It is argued that here is an express promise to deliver this vessel in the harbor of New York, and, as the promise was not fulfilled, the promisor is liable, and hence the liabil- ity of the defendant as his surety. We do not think that the law ap- plicable to the class of cases of which that of Harmony v. Bingham, supra, is a conspicuous example, applies here. The contract in this case comes, as it seems to us, under another class, which relates to the hiring for use of the thing hired, and where an express contract is made to redeliver the article hired upon the de- termination of the term of hiring. Even in such cases of express con- tract, there is implied a condition of the continued existence of the Ch. 1) LIABILITY OF BAILEE FOR DAMAGE. 3 thing which is the subject of the contract; and if it perish without any fault of the hirer, so that redelivery becomes impossible, the hirer is excused. If a horse be delivered to one under an express promise to redeliver when demanded, and the horse die before demand and without fault on the part of the bailee, he is excused. Williams v. Lloyd, W. Jones, 179 ; Sparrov/ v. Sowgate, Id. 29. Mr. S. Martin Leake, in his Digest of the Law of Contracts (at page 706), says : "The authorities establish the principle that where, from the nature of the contract, it appears that the parties must, from the beginning, have known that it could not be fulfilled, unless when the time for the fulfillment of the contract arrived, some particular speci- fied thing continued to exist, so that when entering into the contract they must have contemplated such continued existence as the founda- tion of what was to be done, then, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, the contract be- comes impossible from the perishing of the thing without the default of the contractor." Several cases are referred to in support of this proposition. Among them are those in the note to Hall v. Wright, 96 E. C. L. 745, at side of page 747, El. Bl. & El. 746; Taylor v. Caldwell, 3 Best & S. 836, 113 E. C. L. 826. Blackburn, J., says, in last case, that the implica- tion in an express contract of this nature, that the thing itself shall be in existence when the person is called upon to fulfill his contract, tends to further the great object of making the legal construction such as to fulfill the intention of the parties to the contract ; for in the course of affairs men in making such contracts in general would, if it were brought to their minds, say that there should be such a condition. See, also, Appleby v. Myers, L. R. 2 C. P. 651, per Blackburn, J., 658. There is no question that a party can, if he so please, bind himself to deliver notwithstanding the thing may perish which he contracts to deliver. He does not thus bind himself by the' use of the ordinary language as contained in this charter party. The above cases show this to be true. When language like that found in this agreement is used, the con- dition of continued existence is implied, and as thus interpreted it creates nothing more of an obligation than that which the law raises without any such promise. Wlien language is used which does no more than express in terms the same obligation which the law raises from the facts of the transaction itself, the party using the language is no further bound than he would have been without it. So it was held in the case of Ames v. Belden, 17 Barb. 513, where the defendant was sued for its value for not returning a steamboat ac- cording to the condition of the charter party by which defendant agreed to return the same at the expiration of the term in as good condition 4 INTRODUCTORY TOPICS. (Part 1 as it then was, excepting ordinary use and wear. The court said the lan.qnage must be held to have reference to the ordinary obHgation of such a bailee to return the article hired, and defendant was exempt if before the time arrived the article had been destroyed without his fault. This is only another way of saying that an obligation expressed in such language carries with it an implied condition that the article to be re- turned shall be in existence at the time when the obligation to return arises, and, if in the mean time it has been destroyed without the de- fault of the promisor, he is not bound by his contract thus expressed. The case is thus entirely supported by th6 cases above cited. To the same eflfect is the case of Hyland v. Paul, 33 Barb. 241. The same principle has been held operative in covenants or agree- ments contained in leases of real estate which included buildings, and where the lessee has agreed to deliver possession of the same at the expiration of the lease in the same condition as at the date of the lease, natural wear and tear excepted. This obligation is subject to the im- plied condition that the building shall be in existence at the end of the term, and, if before that time it was burned down without the default of the tenant, he is held not liable under his contract. Warner v. Hitch- ins, 5 Barb. 66G ; Mcintosh v. Lown, 49 Barb. 550, at 555 ; 1 Wood, Landl. & Ten. (2d Ed.) 811, 813, notes; 1 Tayl. Landl. & Ten. (8th Ed.) § 3G0, latter part of section. It is otherwise if the lessee has cove- nanted to repair or rebuild. Mcintosh v. Lown, supra; Phillips v. Stevens, 16 Mass. 238. It seems to me as if authorities are not required upon the proposi- tion that, in a contract containing the ordinary language providing for redelivery, an implication of continued existence of the thing to be re- turned is to be made; for, to again quote the language used by Mr. Justice Blackburn in Taylor v. Caldwell, supra : "In the course of af- fairs, men in making such contracts in general would, if it were brought to their minds, say that such should be the condition." There is noth- ing in the other portions of the charter party which afifects in any way, to the detriment of the defendant, this particular question. * * * No question arises in this record as to where lies the burden of proof as to the loss of the vessel and its cause.^ The case was tried and de- cided upon a different theory, and without reference to the question of burden of proof. It is not, therefore, necessary to now discuss it. For the reasons already given, the judgment should be reversed, and a new trial granted, with costs to abide the event. All concur. Judgment reversed. 8 As to the burden of proof, see Lamb v. Camden Co., post, p. 440; CTaflin V. Meyer, 75 N. Y. 2G0, 31 Am. Rep. 467 (187S) ; Knights v. Piella, 111 Mich. 9, GO N. W. 92, 6G Am. St. Rep. 375 (1S9G) ; 3 Am. & Eug. Eucy. of Law {2d Ed.) 7.30. Ch. 1) LIABILITY OF BAILEE FOR DAMAGE. POPE V. FARMERS' UNION & MILLING CO. (Supreme Court of California, 1900. 130 Cal. 139, 62 Pac. 384, 53 L. R. A. 673, 80 Am. St. Rep. 87.) Appeal from a jtidgment of the superior court of San Joaquin coun- ty and from an order denying a new trial. Henshaw, J. Plaintiff sued to recover from defendant the value of certain wheat deposited under the terms of the following written contract: "Stockton, Cal, July hi, 1897. Received of Mrs. L. C. Pope, in the Eureka warehouse, situated on Levee street, Stockton, the following described merchandise, which we agree to deliver (dam- age by the elements excepted), upon the surrender of this certificate and payment of charges, twenty-seven hundred seventy-six sacks wheat, weighing three hundred eighty-three thousand one hundred forty-six pounds. Rates of storage, seventy-five cents per ton for the season ending June 1, 1898. 2,776 sacks wheat, weighing 383,146. Room 6, pile No. 67. Mark : X. C. P.' " The complaint alleged a demand upon the defendant for the return of the wheat, and its failure to comply therewith. The answer of de- fendant did not deny the existence of the contract, but pleaded that, through no negligence upon its part, the major portion of the wheat was destroyed by fire, and the rest of it so badly damaged as to be of small value, and offered to restore to plaintiff the damaged wheat in its possession, and the value of such portion of the damaged wheat as it had already sold. Under these pleadings, a trial was had before a jury. The plaintiff rested her case without the introduction of any evidence. The evidence for the defense, which was admitted without any objection by plaintiff, showed that the warehouse was destroyed by fire, and that the fire was of incendiary origin. The court instructed the jury, generally, that plaintiff could not recover if it were not shown that defendant was negligent. Verdict passed for defendant, judg- ment in its favor followed the verdict, and from that judgment, and from an order denying her a new trial, plaintiff appeals. By its written contract, defendant promised absolutely to return the wheat to plaintiff upon surrender of the certificate, "damage by the elements excepted." "Damage by the elements" is the equivalent of the phrase "act of God." Polack v. Pioche, 35 Cal. 416, 95 Am. Dec. 115 ; Chidester v. Ditch Co., 59 Cal. 202 ; Fay v. Improvement Co., 93 Cal. 253, 261, 26 Pac. 1099, 28 Pac. 943, 16 L. R. A. 188, 27 Am. St. Rep. 198. As no effort was made by defendant to reform this con- tract in any way, it must stand, so far as this case is concerned, ex- actly as it was written ; and, so construing it, it is open to but one in- terpretation, namely, that defendant's liability to return the wheat was absolute, unless it was prevented from so doing by the act of God. Under this construction of the contract, it was no defense for defend- ant to say, or to show, that the wheat was destroyed without negli- 6 INTRODUCTORY TOPICS. (Part 1 gence upon its part. It was incumbent upon it to show that the wheat was in fact destroyed or damaged by the elements. The evidence which it adduced tended merely to prove that the fire was of incendi- ary origin, and thus absolutely to negative the idea that the destruc- tion of the grain was caused by the act of God. The judgment and order are therefore reversed, and the cause remanded. Tkmple and McFarland, J J., concurred. Hearing in bank denied. JAMINET v. AMERICAN STORAGE & ^lOVING CO. (St. Louis Court of Appeals, 1904. 100 Mo. App. 257, 84 S. W. lliS.) GooDE, J.* Action against defendant for the destruction of a mirror and the partial destruction of a portrait of the plaintiff while the de- fendant was moving the plaintiff's household goods from a residence on Laclede avenue, in the city of St. Louis, to one on Gates avenue. * * * For the plaintiff the court instructed the jury that if they found the defendant's agent agreed with the plaintiff well and safely to move and carry her household furniture and goods between the re- spective residences, and deliver them in as good condition as when received, and that a painting and a mirror, or either of them, were in- jured or destroyed while in the defendant's possession, the verdict should be for the plaintiff. The court refused instructions requested by the defendant of the following purport: * * * That the defend- ant was charged with only reasonable care in handling the portrait — that is, such care as prudent men use in carrying on their business — and, if defendant's servants handled it with that degree of care, the defendant was not responsible. * * * " The important inquiry is as to the extent of the appellant's under- taking, and the legal duty incumbent on it in consequence thereof. What did the appellant agree to do ? There is a principle of law which may be stated in general terms as follows : When a party, by an ab- solute agreement, imposes the duty on himself of performing an act, he is not relieved of liability on his obligation by a subsequent event which renders performance impossible. Davis' Adm'r v. Smith, 15 Mo. 467; Harrison v. R. R., 74 Mo. 364, 41 Am. Rep. 318; Beatie V. Coal Co., 56 Mo. App. 230. * * * But is the rule mentioned the proper test of the appellant's liability? Liability on its part as a common carrier was excluded. It stands, therefore, as a private carrier (locatio mercium vehendarum) or bailee for hire, subject only to the duties and responsibilities of such a bailee, unless by agreement it assumed additional ones. Now, what are the usual duties and obligations of such a bailee? To give the care, skill, and diligence to the effort to safely carry and redeliver the bailed * Parts of the opinion are omitted. Ch. 1) LIABILITY OF BAILEE FOR DAMAGE. 7 property to the bailor that are commonly given by men in the same employment. Such a carrier, like other bailees for hire, is only re- sponsible for losses occasioned either by his own or his servants' neg- ligence. Story, Bailments (9th Ed.) art. 4, § 457; Hutchinson, Car- riers (2d Ed.) 37; United States v. Power, 6 Mont. 271, 13 Pac. 639; White V. Bascom, 28 Vt. 268; Varble v. Bigley, 14 Bush (Ky.) 698, 29 Am, Rep. 435. It follows from the above doctrine and authorities that the appel- lant was not bound at all events to deliver the respondent's goods, in- cluding the portrait, in an undamaged state, at her new home, by force of its general obligation as a private carrier for hire ; and could have become thus bound only by a special term in the contract between the parties, by some definite stipulation or warranty superadding to the ordinary duty and responsibility of a private carrier a responsibility akin to that resting on a common carrier. Prima facie, the appellant was liable, as the portrait was bailed to it in good condition and was returned damaged. But the proof is that the damage happened with- out the fault of appellant's servants, and in a way that no man could have foreseen or prevented. That makes a good excuse for a bailee not bound by a special undertaking. Claflin v. Meyer, 75 N. Y. 260, 31 Am. Rep. 467 ; Stewart v. Stone, 127 N. Y. 500, 28 N. E. 595, 14 L. R. A. 215 ; Mills v. Gilbreth, 47 Me. 320, 74 Am. Dec. 487. But it is contended the appellant stipulated specially for the safe carriage and redelivery of respondent's property in as good condition as when received by it. As to the latter words ("as good condition as when received by it"), we find no testimony that they or their equiva- lent were uttered by the parties when negotiating the contract, and in leaving the jury to find there was a contract containing them the instruction to the jury went beyond the evidence. The most that was testified to against the appellant was that its manager agreed to move and deliver the goods safely, and to be responsible for them. * * * Can it fairly be said, on any aspect of the evidence, that appellant contracted against injury by the malicious act of a third person? Was the scope of its agreement larger than the ordinary undertaking of a person who assumes to move valuable property; that is, an undertak- ing to exercise skill and care? To our minds, the respondent's own testimony furnishes a conclusive answer to this inquiry. She swore the appellant's manager, Langdale, with whom she made the contract, said he was responsible, "and would move them [the goods] with care, and deliver them safely." Plainly, the only undertaking by Langdale, to be gathered from that statement, was for the careful moving and safe delivery of the property; that is, he assumed responsibility for care in moving and for safe delivery as far as appellant's servants were concerned, not for the safety of the goods in any event, includ- ing the chance of malicious destruction by an outsider. * * * In our judgment, no broader contract is justly deducible from what passed between the parties than the ordinary one of a bailment for 8 INTRODUCTORY TOPICS. (Part X hire; the undertaking of a private carrier to use care and skill. There was no warranty against every loss, and no thought in the mind of either party of such a loss as happened, or of any loss from extrane- ous causes. The true meaning and obligation of the undertaking the testimony goes to show the appellant company assumed has been ex- pounded by judges in considered cases, and by commentators, too. In Story on Bailments (section 457), after the statement that a private carrier will be held liable for any loss within the scope of his contract, this statement follows : "But even an express undertaking by a private person to carry goods safely and securely is but an undertaking to carry them safely and securely, free from any negligence of himself or his servants; and it does not insure the safety of the goods against losses by thieves, or any taking by force." * * * It is patent on the face of the conversation between appellant's man- ager, Langdale, and the respondent and her daughter, which conver- sation formed the contract between the parties, that the respondent was solicitous about the care and skill with which her goods would be handled, and Langdale was assuring her on that point. Nothing was shown which fairly can be interpreted, in the hght of similar cases, as an assumption by Langdale of any risk of loss or injury to the goods from the unsuspected malice of a stranger, or of any risk except from the neglect or lack of skill of appellant's servants. The portrait was injured solely by the mischievous act of a boy who chanced to go by while the picture was being prepared for safe carriage in the appel- lant's van. We hold that the appellant was not responsible for that loss on the showing made. No question has been presented on this appeal as to appellant's re- sponsibility for the mirror. It was erroneous, we think, to refuse the instruction requested by the appellant that it was charged with reasonable care in handling and removing the oil portrait, as that was the true test of its duty. The judgment is reversed, and the cause remanded. All concur.' COGGS V. BERNARD. (Court of Queen's Bench, Trinity Term, 1703. 2 Ld. Raym. 909.) Action on the case. Holt, C. J.® The case is shortly this. This defendant undertakes to remove goods from one cellar to another, and there lay them down safely ; and he managed them so negligently, that for want of care in him some of the goods were spoiled. LTpon not guilty pleaded, there 6 See, also, Standard Brewery v. Malting Co., 171 111. G02, 49 X. E. 507 (1S9S). 6 The statement of facts, the opinions of Gould, Powys, and Powell, JJ, and parts of the opinion of Holt, C. J., are omitted. Ch. 1) LIABILITY OF BAILEE FOR DAMAGE. 9 has been a verdict for the plaintiff, and that upon full evidence, the cause being tried before me at Guildhall. There has been a motion in arrest of judgment, that the declaration is insufficient because the de- fendant is neither laid to be a common porter, nor that he is to have any reward for his labor, so that the defendant is not chargeable by his trade, and a private person cannot be charged in an action with- out a reward. I have had a great consideration of this case; and because some of the books make the action lie upon the reward, and some upon the promise, at first I made a great question whether this declaration was good. But upon consideration, as this declaration is, I think the ac- tion wall well lie. In order to show the grounds upon which a man shall be charged with goods put into his custody, I must show the sev- eral sorts of bailments. And there are six sorts of bailments. The first sort of bailment is, a bare naked bailment of goods, de- livered by one man to another to keep for the use of the bailor ; and this I call a "depositum," and it is that sort of bailment which is men- tioned in Southcote's Case, 4 Rep. 83b. The second sort is, when goods or chattels that are useful are lent a friend gratis, to be used by him; and this is called "commodatum,'.' because the thing is to be restored in specie. The third sort is, when goods are left with the bailee to be used by him for hire ; this is called "locatio et conductio," and the lender is called "locator," and the borrower "conductor." The fourth sort is, when goods or chattels are delivered to another as a pawn, to be a security to him for money borrowed of him by the bailor ; and this is called in Latin, "vadium," and in English, a "pawn" or a "pledge." The fifth sort is, when goods or chattels are delivered to be car- ried, or something is to be done about them for a reward to be paid by the person who delivers them to the bailee, who is to do the thing about them. The sixth sort is, when there is a delivery of goods or chattels to somebody who is to carry them, or do something about them gratis, without any reward for such his work or carriage, which is this pres- ent case. I mention these things, not so much that they are all of them so necessary in order to maintain the proposition which is to be proved, as to clear the reason of the obligation which is upon persons in cases of trust. As to the first sort, where a man takes goods in his custody to keep for the use of the bailor, I shall consider for what things such a bailee is answerable. He is not answerable if they are stole without any fault in him, neither will a common neglect make him chargeable, but he must be guilty of some gross neglect. * * * For if he keeps the goods bailed to him but as he keeps his own, though he keeps his 10 INTRODUCTORY TOPICS. (Part 1 own but negligently, yet he is not chargeable for them ; for the keep- ing them as he keeps his own is an argument of his honesty. * * * As to the second sort of bailment, viz. commodatum, or lending gratis, the borrower is bound to the strictest care and diligence to keep the goods, so as to restore them back again to the lender ; because the bailee has a benefit by the use of them, so as if the bailee be guilty of the least neglect he will be answerable, * * * As to the fifth sort of bailment, viz. a delivery to carry or other- wise manage, for a reward to be paid to the bailee, those cases are of two sorts ; either a delivery to one that exercises a public employment, or a delivery to a private person. First, if it be to a person of the first sort, and he is to have a reward, he is bound to answer for the goods at all events. * * * As to the sixth sort of bailment, it is to be taken, that the bailee is to have no reward for his pains, but yet that by his ill management the goods are spoiled. Secondly, it is to be understood, that there was a neglect in the management. But thirdly, if it had appeared that the mischief happened by any person that met the cart in the way, the bailee had not been chargeable. As if a drunken man had come by in the streets, and had pierced the cask of brandy ; in this case the de- fendant had not been answerable for it, because he was to have noth- ing for his pains. Then the bailee having undertaken to manage the goods, and having managed them ill, and so by his neglect a damage has happened to the bailor, which is the case in question, what will you call this? In Bracton, lib. 3. 100, it is called "mandatum." It is an obligation which arises ex mandato. It is what we call in English an acting by commission. And if a man acts by commission for another gratis, and in the executing his commission behaves himself neg- ligently, he is answerable. Vinnius, in his commentaries upon Jus- tinian, lib. 3. tit. 27, 684, defines mandatum to be contractus quo ali- quid gratuito gerendum committitur et accipitur. This undertaking obliges the undertaker to a diligent management. * * * The reasons are, first, because, in such a case, a neglect is a deceit to the bailor. For, when he entrusts the bailee upon his undertaking to be careful, he has put a fraud upon the plaintifif by being negligent, his pretense of care being the persuasion that induced the plaintifif to trust him. And a breach of a trust undertaken voluntarily will be a good ground for an action. * * * But, secondly, it is objected, that there is no consideration to ground this promise upon, and therefore the undertaking is but nudum pac- tum. But to this I answer, that the owner's trusting him with the goods is a sufficient consideration to oblige him to a careful manage- ment. Indeed if the agreement had been executory, to carry these brandies from the one place to the other such a day, the defendant had not been bound to carry them. But this is a dififerent case, few as- sumpsit does not only signify a future agreement, but in such a case Ch. 1) LIABILITY OF BAILEE FOR DAMAGE. 11 as this it signifies an actual entry upon the thing and taking the trust upon himself J And if a man will do that, and miscarries in the per- formance of his trust, an action will lie against him for that, though nobody could have compelled him to do the thing. The 19 Hen. VI, 49, and the other cases cited by my brothers, show that this is the difference. But in the 11 Hen. IV, 33, this difference is clearly put, and that is the only case concerning this matter which has not been cited by my brothers. There the action was brought against a carpenter, for that he had undertaken to build the plaintiff a house within such a time, and had not done it, and it was adjudged the action would not lie.^ But there the question was put to the court. What if he had built the house unskillfully ? and it is agreed in that case an action would have lain. There has been a question made, If I deliver goods to A., and in consideration thereof he promise to re- deliver them, if an action will lie for not redelivering them; and in Riches & Brigges, Yelv. 4, judgment was given that the action would lie. But that judgment was afterwards reversed; and, according to that reversal, there was judgment afterwards entered for the defend- ant in the like case. Pickas v. Guile, Yelv. 128. But those cases were grumbled at; and the reversal of that judg- ment in Yelv. 4, was said by the judges to be a bad resolution; and the contrary to that reversal was afterwards most solemnly adjudged in Steer v. Scoble, 2 Cro. 667, Tr. 21 Jac. I, in the King's Bench, and that judgment affirmed upon a w^rit of error. And yet there is no benefit to the defendant, nor no consideration in that case, but the having the money in his possession, and being trusted with it, and yet that was held to be a good consideration. And so a bare being trusted with another man's goods must be taken to be a sufficient considera- tion, if the bailee once enter upon the trust, and take the goods into hi-s possession. The declaration in the case of Mors v. Slue [post, p. 313] was drawn by the greatest drawer in England in that time; and in that declaration, as it was always in all such cases, it was thought most prudent to put in that a reward was to be paid for the carriage. And so it has been usual to put it in the writ, where the suit is by original. I have said thus much in this case, because it is of great consequence that the law should be settled in this point ; but I don't know whether I may have settled it, or may not rather have unsettled it. But how- ever that happen, I have stirred these points, which wiser heads in time may settle. And judgment was given for the plaintiff. 7 See Professor James Barr Ames. The History of Assumpsit, 2 Harv. Law Rev. 1, 5. 8 See The History of Assumpsit, supra, at page 10. 12 INTRODUCTORY TOPICSi (Part 1 TRACY V. WOOD. (Circuit Court, D. Rhode Island, 1822. 3 Mason, 132, Fed. Cas. No. 14.130.) Assumpsit for negligence in losing 7641/^ doubloons, intrusted to defendant, a money broker, to be carried gratuitously from New York to Boston. Defendant put the coins, which were in two bags, into a valise with money of his own, brought the valise in the evening aboard a steamboat which was to start the next morning, and left it in a berth in the forward cabin. He then went to a theater, and on his return slept in the middle cabin. In the morning one of the bags was gone. Defendant left the valise on a table in the cabin for a few mo- ments while he went on deck to send information of the loss to the plaintiff, the loss then being known to a large number of passengers. When he came back the second bag was gone. Many other circum- stances were proved. Story, Circuit Justice,* after summing up the facts, said : I agree to the law as laid down at the bar, that in cases of bailees without re- ward, they are liable only for gross negligence. Such are depositaries, or persons receiving deposits without reward for their care ; and man- dataries, or persons receiving goods to carry from one place to an- other without reward. The latter is the predicament of the defend- ant. He undertook to carry the gold in question for the plaintiff, gra- tuitously, from New York to Providence, and he is not responsible un- less he has been guilty of gross negligence. * * * The language of the books, as to what constitutes gross negligence, or not, is sometimes loose and inaccurate from the general manner in which propositions are stated. When it is said, that gross negligence is equivalent to fraud, it is not meant, that it cannot exist without fraud. There may be very gross negligence in cases where there is no pre- tence that the party has been guilty of fraud; though certainly such negligence is often presumptive of fraud. * * * It appears to me, that the true way of considering cases of this na- ture, is, to consider whether the party has omitted that care which bailees, without 'hire, or mandataries of ordinary prudence usually take of property of this nature. If he has, then it constitutes a case of gross negligence. The question is not whether he has omitted that care, which very prudent persons usually take of their own property, for the omission of that would be but slight negligence: nor whether he has omitted that care which prudent persons ordinarily take of their own property, for that would be but ordinary negligence. But whether there be a want of that care, which men of common sense, however inattentive, usually take, or ought to be presumed to take of their prop- erty, for that is gross negligence. The contract of bailees without re- ward is not merely for good faith, but for such case as persons of com- • The statement has been rewritten, and parts of the opinion omitted. Ch. 1) LIABILITY OF BAILEE FOR DAMAGE. 13 mon prudence in their situation usually bestow upon such property. If they omit such care, it is gross negligence. The present is a case of a mandatary of money. Such property is by all persons, negligent as well as prudent, guarded with much greater care than common property. The defendant is a broker, accustomed to the use and transportation of money, and it must be presumed he is a person of ordinary diligence. He kept his own money in the same valise ; and took no better care of it than of the plaintiff's. Still if the jury are of opinion, that he omitted to take that reasonable care of the gold which bailees without reward in his situation usually take, or which he himself usually took of such property, under such circum- stances, he has been guilty of gross negligence.^" A^erdict for the plaintiffs for $5,700, the amount of one bag of the gold; for the defendant as to the other bag. 10 See, also. Nelson v. MacKintosh, 1 Starkie. 237 (1816) ; .Jenkins v. Mot- low, 1 Sneed (Tenn.) 248. 60 Am. Dec. 154 (1853) ; Foster v. Essex Bank, 17 Mass. 479, 9 Am. Dec. 168 (1821) ; Knowles v. Atlantic R. Co., 38 Me. 55, 61 Am. Dec. 234 (1854): Clark v. Eastern R. Co., 139 Mass. 423, 1 N. B. 128 (1885) ; Prof. J. H. Beale, Gratuitous Undertakings, 5 Harvard Law Rev. 222. "The word 'culpa' nearly coincides in meaning with the English law term 'negligence.' It was formerly thought that three degrees of culpa or neg- ligence were recognized by the Roman law. These were the culpa lata, the culpa letns, and the culpa levissima — gross , negligence, negligence, and slight negligence. Lord Holt brought this theory into the English law, by his opin- ion in Coggs V. Bernard [ante, p. 8]. In his essay on Bailments, Sir Wil- liam Jones adopted it from Pothier, and from the case of Coggs v. Bernard, and brought it into great prominence. Mr. Justice Story also gave his countenance to the theory. * * * The doctrine of three degrees fails in reconciling those tests of the Roman law, to which, if correct, it should be applicable. The terms — lata, latior ; levis, levior, levissima; diligens, diligen- tissimus; exacta, exactissima — where they occur in the Corpus Juris, are now considered simply as variations of style, used without a thought of the distinctions which the commentators endeavored to found upon them. According to the now established opinion, the Roman law in most cases re- quired of a person the conduct of a prudent man — diligentla diligentis patris fa^mnlias (the care of a prudent person who is sui juris). In a few cases, as. for instance, in suits between partners, the defendant might show in defense that he conducted the partnership affairs with as much care as he used about his own ; it being his partner's loss if he chose to enter into that relation with a careless man." N. St. J. Green, note to Story on Agency (8th Ed.) § 1,84. In Chicago, R. I. & P. Ry. Co. v. Hamler, 215 111. 525, 74 N. E. 705, 1 L. R. A. (N. S.) 674, 106 Am. St. Rep. 187 (1905), it was held that a contract exempting a railroad from liability to a Pullman porter for negligent injury was valid, though the negligence were gross. Cartwright, C. J., said: "We are of opinion that no distinction as to the rights of the parties can be founded upon speculation as to different degrees of mere negligence, and that the trial court erred in instructing the jury to find for the plaintiff if they concluded that the defendant was guilty of gross negligence. Formerly this court, in expounding the doctrine of comparative negligence, classified negligence into three degrees, as slight, ordinary, and gross; but that doctrine was long ago abolished, and, while negligence may since that time have been alluded to in opinions as gross or slight, no weight has been given to the question and no liability has been based on any distinction in degrees unless the negligence was willful or intentional, where it assumes an entirely different character from that of negligence in its ordinary meaning. In negligence merely there is no intention to do a wrongful act or omit the performance 14 INTRODUCTORY TOPICS. (Part 1 FLINT & P. ^I. RY. CO. v. WEIR. (Supreme Court of Michigan, 1S77. 37 Mich. Ill, 26 Am. Rep. 499.) Assumpsit. Defendant brings error, CooLEY, C. J.^^ The manner in which this case is submitted makes the record present substantially this question: Whether in the court below there was any evidence tending to prove the plaintiff's case? * * * The evidence was put into the case by stipulation, and in the main the facts are undisputed. It appears that the plaintiff took passage upon the cars of the defendant from Detroit to Saginaw, and that he had with him a trunk, which he avers contained the articles of personal property described in the declaration. This trunk has been lost, but whether through any fault of the railway company is in dispute. It is, however, shown by the plaintiff himself that both he and his trunk were being carried, not for hire and reward, but gratuitously. There was consequently no contract for carriage by the railway company, and this action, which is in assumpsit, cannot be maintained. Nolton V. Western R. Corp., 15 N. Y. 444, 446, 69 Am. Dec. 623.12 There can be no question that a railway company which receives property for gratuitous carriage assumes, like any other gratuitous bailee, certain duties in respect to it, and that a suit will lie for a fail- ure to perform these duties. * * * The gratuitous bailee must not be reckless. He must observe such care as may reasonably be re- quired of him under the circumstances ; but it is not the same care which is required of the bailee who, for his own profit, assumes the duty. This is elementary, and is so reasonable that it requires no dis- cussion. When care is bargained for and compensated, something is expected and is demandable beyond what can be required of him who undertakes a merely gratuitous favor. * * * of a duty. * * ♦ One of the reasons given by the courts for disregarding supposed distinctions in degrees of negligence is the inability to give the terms 'slight.' 'ordinary.' and 'gross' any definite meaning and the impractica- bility of applying any rule based on the supposed distinction. It is clear that negligence cannot be divided into slight, ordinary, and gross by definite lines, so that a jury may understand the limits of each and assign each case to its owai department. * * * In Wilson v. Brett, 11 Mees. & W. 113 (1843), It was held that there is no legal difference between negligence and gross negligence, that it is the same thing with the addition of a vituperative epithet, and that the question in any case is whether there was culpable negligence. * ♦ * It will be found that the words 'slight,' 'ordinary,' and 'gross.' as applied to negligence, are not used in the decisions with the same meaning or any definite and well understood meaning." See, also. Milwaukee & St. P. Ry. Co. v. Arms. 91 U. S. 489, 23 L. Ed. 374 (1S75) ; Griffith v. Zipperwick, 28 Ohio St. 388 (1876) ; Rideout v. AVinnebago Trac. Co., 123 Wis. 2f)7. 101 N. W. 672, 69 L. R, A. 601 (1904) ; The Three Degrees of Negligence. 8 Am. Law Rev. 649. 11 Parts of the opinion are omitted. 12 But see Coggs v. Bernard, ante. p. 8: McCaulev v. Davidson. 10 Minn. 418, Gil. 335 (I860) ; Pollock on Contracts, 178 ; 2 Harvard Law Rev. 6 ; 5 Harvard Law Rev. 224. Ch. 1) LIABILITY OF BAILEE FOR DAMAGE. 15 But as the plaintiff has brought his action, not in tort, but upon contract, there can be no recovery under his declaration, and the extent of the duty which, under the circumstances, was imposed upon the railway company becomes immaterial. The judgment must be reversed, with costs, but as the facts are not embodied in a finding by the circuit judge, so as to permit of our entering final judgment in this court, a new trial must be ordered. 16 INTRODUCTORY TOPICS. (Part 1 CHAPTER II THE OBLIGATION OF A COMMON CARRIER SECTION 1.— DUTY TO SERVE JACKSON V. ROGERS. (Court of King's Bench, Micli. Term, 1683. 2 Show. 327.) Action on the case, for that whereas the defendant is a common car- rier from London to Lymmington et abinde retrorsum, and setting it forth as the custom of England, that he is bound to carry goods, and that the plaintiff brought him such a pack, he refused to carry them, though offered his hire. And held by Jefferirs, C. J., that the action is maintainable, as well as it is against an innkeeper for refusing a guest, or a smith on the road who refuses to shoe my horse, being tendered satisfaction for the same. Note, that it was alleged and proved that he had convenience to carry the same ; and the plaintiff had a verdict. Holt, C. J.,^ in LANE v. COTTON, 12 Mod. 472 (1701) : "* * * Wherever any subject takes upon himself a public trust for the rest of his fellow subjects, he is eo ipso bound to serve the subject in all the things that are within the reach and comprehension of such an of- fice, under pain of an action against him; and for that see Kehvay 50. If on the road a shoe falls off my horse, and I come to a smith to have one put on, and the smith refuse to do it, an action will lie against him, because he has made profession of a trade which is for the pub- lic good, and has thereby exposed and vested an interest of himself in all the king's subjects that will employ him in the way of trade. If an innkeeper refuse to entertain a guest, where the house is not full, an action will lie against him: and so against a carrier, if his horses be not loaded, and he refuse to take a packet proper to be taken by a carrier; and I have known such actions maintained, though the cases are not reported. * * * If the inn be full or the carrier's horses 1 The action was against the Postmaster General for the loss of a letter stolen in the post office. Lord Holt dissented from a decision in favor of the defendant Ch. 2) THE OBLIGATION OF A COMMON CARRIER. 17 loaden, the action would not He for such refusal, but one that has made profession of a public employment, is bound to the utmost extent of that employment to serve the public. Sure then where it is a public employment created by law, the obligation is the greater; as if the sheriff refuse a writ, an action will lie against him, because the law charges him with an employment for the conveniency and good of the public." SECTION 2.— LIABILITY FOR DAMAGE OR LOSS^ HALE V. NEW JERSEY STEAM NAVIGATION CO. (Supreme Court of Connecticut, 1843. 15 Conn. 539, 39 Am. Dec. 398.) Williams, C. J.^ This suit was brought for two carriages, ship- ped on board the Lexington, against the defendants, as common car- riers, to be transported in said boat for hire, from New York to Bos- ton or Providence. The boat and goods were destroyed by fire in the sound ; and a verdict being given for the plaintiff, the defendants ex- cepted to the charge,* and claimed : 1. That they were not common carriers, nor subject to the rules that govern common carriers. It was long since settled, that any man, undertaking for hire to carry the goods of all persons indif- ferently, from place to place, is a common carrier ; Gisbourn v. Hurst, 1 Salk. 249. Common carriers, says Judge Kent, consist of two dis- tinct classes of men, viz., inland carriers by land or water, and car- riers by sea, and in the aggregate body are included the owners of stage coaches, who carry goods, as well as passengers, for hire, wag- oners, teamsters, cartmen, the masters and owners of ships, vessels and all water craft, including steam vessels, and steam towboats be- longing to internal, as well as coasting and foreign navigation, lighter- men, and ferrymen. 2 Kent's Com. (2d Ed.) 598. And there is no difference between a land and a water carrier. Proprietors of Trent Navigation v. Wood, 3 Esp. Cas. 127; Elliott v. Rossell, 10 Johns. (N. Y.) 7, 6 Am. Dec. 306; Story on Bail. 319, 323. - For a common carrier's liability for injury to passengers, see part IV, cliapter II, post, pp. 326-344. 3 The statement of facts and parts of the opinion are omitted. * The court charged the jury "that * * * those persons, who undertalie generally to transport goods for hire, for all persons indifferently, and deliver them at a place appointed, are deemed common carriers, whether by sea or land, through the Sound or on rivers, in ships or steamboats. Common carriers are liable for goods received to transport and deliver, if not delivei'ed, ex- cept the loss arise from the act of God, or the public enemies. By the act of God is meant something in opposition to the act of man — something super- human." Green Cabb. — 2 18 INTKODUCTOKY TOPICS. (Part 1 But it is said the rule established is a harsh one, and ought not to be extended. Chancellor Kent takes a very different view of it. He speaks of it as a great principle of public policy, which has proved to be of eminent value to the morals and commerce of the nation (2d vol. GO^) ; and with similar views, this court has said, we are not dissatis- fied witli the reasons which originated the responsibility of common carriers, and believe they apply, with peculiar force, at this day, and in this country, as it respects carriers by water, more especially upon which element a spirit of dangerous adventure has grown up, which disregards the safety, not of property merely, but of human life (Cros- by V. Fitch, 12 Conn. 419, 31 Am. Dec. 745). And while we are not called upon to extend the principle, we can not yield to the argument that common carriers are not to be responsible when the loss arises from the producing agent of the propelling power. If the defendants are common carriers, the question must be merely what are the liabilities of common carriers? The answer is, for all losses, even inevitable accidents, except they arise from the act of God, or the pubHc enemy. Forward v. Pittard, 1 T. R. 34 [post, p. 318] ; Coggs V. Bernard, 2 Ld. Raym. 918 [post, p. 317]. And by the act of God is meant, something superhuman, or something in opposition to the act of man. Forward v. Pittard, 1 T. R. 33. In all cases except of that description, the carriers warrant the safe delivery of the goods (per Kent, C. J., Elliott v. Rossell, 10 Johns. [N. Y.] 7, 6 Am. Dec. 306); and masters and owners of vessels are liable as common carriers, as well at sea as in port. * * * But it is said, there is no case where the liability is extended to fire on the high seas. If the principle covers such cases, then it is to be supposed the reason such cases are not to be found, is that they have not occurred, or v/ere not contested. If the carrier is subjected for the loss of goods burnt on land, where he was in no fault, we see no rea- son for exempting the carrier at sea, under similar circumstances. We apprehend a rule of policy. Lord Mansfield says, in the case alluded to, to prevent litigation, collusion, and the necessity of going into circum- stances impossible to be unraveled, the law presumes against the car- riers. He is in the nature of an insurer. Every reason here given applies as well to the owners of a steamboat as to the wagoner, whose carriage was burnt without his fault, in the barn where he placed it — • the same danger of collusion, of litigation, and the same difficulty in unraveling circumstances. If the policy of the law requires that one shall be an insurer, we think the same policy requires that the other should also be so treated. And if it be true that trade will regulate itself when the rule is understood, compensation will be made, not only in proportion to the labor, but to the risk. And in a recent case in New York, steamboat owners are treated as other common carriers. Powell et al. v. Alyers, 26 Wend. 591. * * * New trial not to be granted. Ch. 3) WHAT IS CARRIAGE. 19 CHAPTER III WHAT IS CARRIAGE BUCKLAND v. ADA^IS EXPRESS CO. (Supreme Judicial Court of Massacliusetts, 1867. 97 Mass. 124, 93 Am. Dec. 68.) Contract to recover the value of a case of pistols. In the superior court judgment was entered for the plaintiffs on agreed facts; and the defendants appealed to this court. BiGELOW, C. J.^ We are unable to see any valid reason for the suggestion that the defendants are not to be regarded as common car- riers. The name or style under which they assume to carry on their business is wholly immaterial. The real nature of their occupation and of the legal duties and obligations which it imposes on them is to be ascertained from a consideration of the kind of service which they hold themselves out to the public as ready to render to those who may have occasion to employ them. Upon this point there is no room for doubt. They exercise the employment of receiving, carrying, and de- livering goods, wares, and merchandise for hire on behalf of all per- sons who may see fit to require their services. In this capacity they take property from the custody of the owner, assume entire posses- sion and control of it, transport it from place to place, and deliver it at a point of destination to some consignee or agent there authorized to receive it. The statement embraces all the elements essential to constitute the relation of common carriers on the part of the defend- ants towards the persons who employ them. Dwight v. Brewster, 1 Pick. 50, .53. 11 Am. Dec. 13.3 [post, p. 34] ; Lowell Wire Fence Co. v. Sargent, 8 Allen, 189; 2 Redfield on Railways, 1-lG. But it is urged in behalf of the defendants that they ought not to be held to the strict liability of common carriers, for the reason that the contract of carriage is essentially modified by the peculiar mode in which the defendants undertake the performance of the service. The main ground on which this argument rests is, that persons exer- cising the employment of express carriers or messengers over rail- roads and by steamboats cannot, from the very nature of the case, exercise any care or control over the means of transportation which they are obliged to adopt ; that the carriages and boats in which the merchandise intrusted to them is placed, and the agents or servants by whom they are managed, are not selected by them nor subject to their direction or supervision ; and that the rules of the common law, regulating the duties and liabilities of carriers, having been adapted 1 Parts of ttie statement of facts and of the opinion are omitted. 20 INTRODUCTORY TOPICS. (Part 1 to a different mode of conducting business, by which the carrier was enabled to select his own servants and vehicles and to exercise a per- sonal care and oversight of them, are wholly inapplicable to a contract of carriage by which it is understood between the parties that the serv- ice is to be performed, in part, at least, by means of agencies over which the carrier can exercise no management or control whatever. But this argument, though specious, is unsound. Its fallacy con- sists in the assumption that at common law, in the absence of any ex- press stipulation, the contract with an owner or consignor of goods de- livered to a carrier for transportation necessarily implies that they are to be carried by the party with whom the contract is made, or by serv- ants or agents under his immediate direction and control. But such is not the undertaking of the carrier. The essence of the contract is that the goods are to be carried to their destination unless the fulfil- ment of this undertaking is prevented by the act of God or the public enemy. This, indeed, is the whole contract, whether the goods are carried by land or water, by the carrier himself or by agents employed by him. The contract does not imply a personal trust, which can be executed only by the contracting party himself or under his super- vision b}^ agents and means of transportation directly and absolutely within his control. Long before the discovery of steam power, a car- rier who undertook to convey merchandise from one point to another was authorized to perform the service through agents exercising an .independent employment, which they carried on by the use of their own vehicles and under the exclusive care of their own servants. It certainly never was supposed that a person who agreed to carry goods from one place to another by means of wagons or stages could escape liability for the safe carriage of the property over any part of the designated route by showing that a loss happened at a time when the goods were placed by him in vehicles which he did not own, or which were under the charge of agents whom he did not select or control. The truth is that the particular mode or agency by which the service is to be performed does not enter into the contract of carriage with the owner or consignor. The liability of the carrier at common law continues during the transportation over the entire route or distance over which he has agreed to carry the property intrusted to him. And there is no good reason for making any distinction in the nature and extent of this liability attaching to carriers, as between those who un- dertake to transport property by the use of the modern methods of conveyance, and those who performed a like service in the modes formerly in use. If a person assumes to do the business of a common carrier, he can, if he sees fit, confine it within such limits that it may be done under his personal care and supervision or by agents whom he can select and control. But if he undertakes to extend it further, he must either restrict his liability by a special contract or bear the responsibility which the law affixes to the species of contract into Ch. 3) WHAT IS CARRIAGE. 21 which he voluntarily enters. There is certainly no hardship in this, because he is bound to take no greater risk than that which is imposed by law on those whom he employs as his agents to fulfil the contracts into which he has entered. It is not denied that in the present case the goods were lost or destroyed while they were being carried over a portion of the route embraced in the contract with the plaintiffs, and before they had reached the point to which the defendants had agreed to carry them. It is not a case where the agreement between the parties was that the merchandise was to be delivered over by the defendants to other car- riers at an intermediate point, thence to be transported over an inde- pendent route to the point of destination without further agency on the part of the defendants. The stipulation was that the defendants should carry the property from the place where they received it to the point where it was to be delivered into the hands of the consignee. The loss happened before the defendants had fulfilled their prom- ise. * * * Judgment for the plaintiffs. ROBERTS V. TURNER. (Supreme Court of Judicature of New York, 1814. 12 Johns. 232.) This was an action on the case, against the defendant, as a common carrier. The defendant resided at Utica, and pursued the business of for- warding merchandise and produce from Utica to Schenectady and Albany. The ordinary course of this business is, for the forwarder to receive the merchandise or produce at his store, and send it by the boatman, who transports goods on the Mohawk river, or by wagon to Schenectady or Albany, for which he is paid at a certain rate per barrel, etc. ; and his compensation consists in the difference between the sum which he is obliged to pay for transportation, and that which he receives from the owner of the goods. The defendant received from the plaintiff, who resided in Caze- novia, in Madison county, by Aldrich, his agent, twelve barrels of pot ashes, to be forwarded to Albany, to Trotter; the ashes were put on board a boat, to be carried down the Mohawk to Schenectady, and whilst proceeding down the river, the boat ran against a bridge and sunk, and the ashes were thereby lost. The defendant's price for forwarding goods to Schenectady was twelve shillings per barrel, and the price which he had agreed to pay for the transporting the goods in question to that place was eleven shillings ; the defendant had no interest in the freight of the goods, and was not concerned as an owner in the boats employed in the car- riage of merchandise. 22 INTRODUCTORY TOPICS. (Part 1 The judge being- of the opinion that the testimony did not make out the defendant to be a common carrier, nonsuited the plaintiff ; and a motion was made to set aside the nonsuit. Spencer, ].- On the fullest reflection, I perceive no grounds for changing the opinion expressed at the circuit. The defendant is in no sense a common carrier, either from the nature of his business, or any community of interest with the carrier. Aldrich, who, as the agent of tlie plaintiff, delivered the ashes in question to the defendant, states the defendant to be a forwarder of merchandise and produce from Utica to Schenectady and x\lbany; and that he delivered the ashes, with instructions from the plaintiff to send them to Colonel Trotter. The case of a carrier stands upon peculiar grounds. He is held responsible as an insurer of the goods, to prevent combinations, chi- canery, and fraud. To extend this rigorous law to persons standing in the defendant's situation, it seems to me, would be unjust and un- reasonable. The plaintiff knew, or might have known (for his agent knew), that the defendant had no interest in the freight of the goods, owned no part of the boats employed in the carriage of goods, and that his only business in relation to the carriage of goods consisted in forwarding them. That a person thus circumstanced should be deemed an insurer of goods forwarded by him, an insurer too, without reward, would, in my judgment, be not only without a precedent, but against all legal principles. Lord Kenyon, in treating of the liability of a car- rier (Hyde v. Navigation Co., 5 T. R. 394), makes this the criterion to determine his character: Whether, at the time when the accident hap- pened, the goods were in the custody of the defendants as common carriers. In Garside v. The Proprietors of the Trent and Mersey Navigation, 1 T. R. 581, the defendants, who were common carriers, undertook to carry goods from Stoneport to Manchester, and from" thence to be forwarded to Stockport. The goods arrived at IManches- ter, and were put into the defendants' warehouse, and burnt up before an opportunity arrived to forward them. Lord Kenyon held, the de- fendants' character of carriers ceased when the goods were put into the warehouse. This case is an authority for saying that the responsi- bilities of a common carrier and forwarder of goods rest on very dif- ferent principles. In the present case, the defendant performed his whole undertak- ing; he gave the ashes in charge to an experienced and faithful boat- man. * * * Motion denied.^ 2 Part of the opinion is omitted. 3 For the uudertalcing of a forwarder, see Hutchinss v. Ladd, 16 Mich. 493 (1808); Northern K. Co. v. Fitchburg R. Co., G Allen, 254 (1S(J3); Staunard v. Prince. 64 N. Y. 300 (1876). Compare Lee v. Fidelity Co., 51 Wash. 208, 98 Pac. 658 (1908). In Parker v. No. Ger. Lloyd S. S. Co., 71 App. Div. 16, 76 N. Y. Supp. 806 (1902), plaintiff, arriving at Bremen on defendant's steamer from New Yorlj, Ch. 3) WHAT IS CARRIAGE. 23 MANN V. WHITE RIVER LOG & BOOMING CO. (Supreme Court of Michigan, 1S81. 46 Mich. 38, 8 N. W. 550, 41 Am. Rep. 141.) Assumpsit on common and special counts. Plaintiff brings error. Campbell, J. Plaintiff sued defendant for not delivering part of a quantity of logs which the company had in charge to deliver at White Lake, after running them down from their place of reception on White river. As the case was passed upon by the jury they neces- sarily found that there had been no fault or negligence in defendant, and the only question before us is whether defendant was a common carrier, and liable at all events, except for the risks of a public enemy or inevitable casualty. The duty undertaken by the defendant was in accordance with its statutory power to drive, run, raft and boom logs in White river for any person having logs to float down the stream, and the case shows that the work of all kinds was done at regular rates, and for all alike. The dispute, therefore, is narrowed down to the single question whether the handling of logs, as managed by the log-driving and boom- ing companies, is properly to be treated as common carriage. It is admitted to be like common carriage in the universality of the duty, and by statute a lien is given for charges, not only on the specific logs for charges on each, but on a part to secure the whole charges. Comp. Laws, § 2788. The statute moreover gives a special remedy to enforce the lien. It also contemplates, by the section just referred to, that it is only in the absence of express contract that a uniform rate is provided for. These rights resemble in important respects the rights of common carriers. But the statute contains no declaration that the companies wanted his trunl^s sent to England. Defendant gave him a receipt worded in part as follows: "North German Lloyd Baggage Department, Bremen. Re- ceived from S. S. Grosser Kurfiirst two trunks for transfer by slow freight to Charles N. Parker, via London. 18 Waterloo street, Hove-Brighton." Defend- ant delivered the trunks to an express company to be carried to Brighton, but they were burned on the way. Hirschberg. J., said: "The transportation of the plaintiff and his baggage on the defendant's steamer was complete when they reached Bremen, and the further engagement as to the trunks was a eon- tract to forward them by slow freight, which the defendant fulfilled when it 'transferred' them In the usual and customary way to a reliable express company for that purpose." "Whether the defendant used the term 'carry' or 'transport' or 'forward' the goods from New York to Louisville is wholly immaterial, so long as he un- dertook the reception of the goods here and their delivery there. His duty embracec everything necessary to be done to accomplish a delivery of the goods at the place designated, and the compensation stipulated for the con- tract was an expressed equivalent for the whole service. Whether the de- fendant used his own means of transportation in the service to be performed, or made his own private arrangements with others to perform the actual transportation, did not affect his relation to the owners of the goods with whom he had agreed to receive and deliver them." Woodruff, J., in Read v S[)auidii!g (N. Y.) 5 Bosw. 3!>5, 404 (.IboU) printed on another p-iiit. post, p. 64. 24 INTRODUCTORY TOPICS. (Part 1 shall be so treated, and the whole matter is left to be determined by legal analogies. When we look at the business done, it will be found to resemble in some respects the business of carriage, and in some respects it is like different business, while in most things it is peculiar and subject to its own conditions. It has one peculiarity in which it differs entirely from common carriage, which was held by this court in Fitch v. Newberry, 1 Doug. 1, 40 Am. Dec. 33, to create no rights against property not voluntarily entrusted to the carrier. One important part of the com- pensated business of these companies includes the temporary control of logs interfering with the free running of the body of logs in the stream. Comp. Laws, § 2793. The peculiarity which is most apparent is that there is no carriage whatever either in vehicles or by application of motive power, unless in some emergency. The logs of various owners are usually, as they were in the present case, set floating promiscuously, and only sorted and separated when the run is as to some portion at least substantially completed. The logs are floated down the streams by the force of the current, sometimes aided by dams and flooding, and if it were not for the risk of jams, no interference to any great extent would be needed. The chief work of the companies when running and driving logs is to see that they are kept in the way of floating down stream, and not allowed to accumulate in jams and obstruct the floatage. And it is to prevent this that the compulsory powers are exercised. It is manifest that this kind of service differs very much from the possession and transfer of articles which are always in custody and which could not be moved except by the vehicles of the carrier. Among the somewhat fanciful reasons given for the peculiar duties and respon- sibilities of common carriers, we cannot always determine how far any of them actually operated in shaping the legal rules. But it is dan- gerous to run after supposed analogies and extend peculiar rules to new cases substantially different from the old. Courts have no doubt settled the law of common carriers as applying to all classes of car- riage, however free from most of the special risks and temptations which were relied on to uphold the ancient doctrines. But when it is sought to extend the rules outside of the carrying business altogether, we should not do this unless on very plain reasons of fitness. Taking heed to give no excessive force to resemblances, we may find, nevertheless, some other duties which are at least quite as analogous as carriage. Drovers — or, as the common law calls them, agisters — perform functions not unlike those of log drivers. Their animals move themselves, while logs are moved by the stream, and the beasts have a species of intelligence, while logs and currents move unconsciously. Yet the chief business of the men in charge of both is to prevent the property from straying or stopping, and to guide it where it belongs. No one regards drovers as carriers. Angell on Carriers, §§ 24, 53; Story on Bailments, § 443. The entire absence of any motive power, Ch. 3) WHAT IS CARRIAGE. 25 and the function of guiding and regulating things which move them- selves or are moved by some independent force, make it impossible to treat these classes of business as carriage in fact, and it is difficult to see how, if involving no carriage, there is any propriety in calling them carriage. There is always hardship and often wrong in holding persons liable for what they have done their best to avoid. While we are bound to respect established rules, we cannot wisely extend them beyond their reasonable application. We think the court below decided correctly that the extreme liabilities of common carriers did not apply to de- fendants. The judgment must be affirmed, with costs. THE NEAFFIE. (Circuit Court, D. Louisiana, 1870. 1 Abb. 465, Fed. Cas. Xo. 10,06.3.) Woods, Circuit Judge.* The case was this: On May 28, 1866, the steam tug Neaffie undertook to tow a flat or barge laden with hay from Jefferson City to the flatboat wharf in the city of New Orleans — a distance of three or four miles. She made fast to the flat and towed her down the stream to said wharf, the master and crew of the flat remaining aboard of her. As she was about landing the flat, the latter collided with another flat made fast to the wharf. In a short time aft- er the collision, the flat towed by the Neaffie sunk. The damage sus- tained by the sinking of the flat is agreed to be thirty-one hundred and fifty dollars. * * * ]\To witness speaks of any act done or omitted showing want of skill or care on the part of the Neaffie. Under this state of facts the Neaffie cannot be held liable for the damage suffered by the flat and cargo, unless she is made responsible as a comm.on carrier. The business of the Neaffie, as the evidence shows, is to tow flats and other water craft from one point to another in and about the harbor of the city of New Orleans. The hire for her services varies according to the bargain made at the time the service is rendered. A common carrier is often defined to be : "One who undertakes for hire to transport the goods of such as choose to employ him from point to point." This definition is very broad, and in its application to facts is subject to certain limitations. A better and more precise defi- nition is : "One who offers to carry goods for any person between certain termini or on a certain route, and who is bound to carry for all who tender him goods and the price of carriage." Was the Neaffie a common carrier under either of these definitions? Chief Justice Marshall, in Boyce v. Anderson, 2 Pet. (27 U. S.) 150, * Part of the opinion is omitted. 26 INTRODUCTORY TOPICS. (Part 1 7 L. Ed. 379 [post, p. 359, note 11], says: "The law applicable to com- mon carriers is one of great rigor. Though to the extent to which it has been carried, and in cases to which it has been applied, we admit its necessity and its policy, we do not think it ought to be carried further or applied to new cases." So unless the case of steam tugs towing boats and their cargoes can be brought strictly within the definition of common carriers, I am not disposed to apply to them the great rigor of the law applicable to common carriers. Can it be said that the tugboats plying in the harbor of New Or- leans undertake to transport the goods found on the water craft which they take in tow? It appears to me that it is the boat in which the goods are put that undertakes to transport them. The tug only fur- nishes the motive power. It is like the case of the owner of a wagon laden with merchandise hiring another to hitch his horses to the wagon to draw it from one point to another, the owner of the wagon riding in it, and having charge of the goods. In such a case, could it be claimed with any show of reason that the owner of the team was a common carrier? The reason of the law which imposes upon the common carrier such rigorous responsibility fails in such a case. The tugboats plying in New Orleans harbor do not receive the property into their custody, nor do they exercise any control over it other than such as results from the towing of the boat in which it is laden. They neither employ the master and hands of the boat towed, nor do they exercise any authority over them beyond that of occa- sionally requiring their aid in governing the flotilla. The boat, goods and other property remain in charge and care of the master and hands of the boat towed. In case of loss by fire or robbery, without any actual default on the part of the master or crew of the towboat, it can be hardly contended they would be answerable, and yet carriers would be answerable for such loss. That towboats are not common carriers has been held in the fol- lowing cases: Caton v. Rumney, 13 Wend. (N. Y.) 387; Alexander V. Greene, 3 Hill (N. Y.) 9; Wells v. Steam Nav. Co., 2 N. Y. 201; Pennsylvania, D. & ]\Id. Steam Nav. Co. v. Dandridge, 8 Gill. & J. (Md.) 248, 29 Am. Dec. 543; Leonard v. Hendrickson, 18 Pa. 40, 55 Am. Dec. 587. In Vanderslice v. The Superior, Fed. Cas. No. 16,843, Mr. Justice Kane held a steam towboat liable as a common carrier ; but when the case came before the circuit court, Mr. Justice Grier said he could not assent to the doctrine. I am aware that a contrary doctrine has been applied by the supreme court of Louisiana to steam tugs towing between the city of New Or- leans and the mouth of the Mississippi river. These towboats are distinguishable from those plying in the harbor of New Orleans ; but if it were otherwise, I think the weight of authority and reason is with those who hold towboats not to be common carriers. Holding, then, that the Neaflfie was not a common carrier, and that Ch. 3) WHAT IS CARRIAGE. 27 she was bound only for ordinary diligence and care, and that the tes- timony shows such diHgence and care on the part of the master of the Neaffie, it follows that the libel must be dismissed at the costs of the libelant. The cross libel of claimants, not being supported by any proof, is also dismissed. Libels dismissed." ROBERTSON v. OLD COLONY R. CO. (Supreme Judicial Court of Massachusetts, 1S92. 156 Mass. 52.5, 31 N. E. 650, 32 Am. St. Rep. 482.) Tort for personal injuries. Trial before Bishop, J., who reported the case for the determination of this court. '^ Lathrop, J. Unless the defendant was under a common law or statutory obligation to carry the plaintiff in the manner he was car- 5 In The Steamer Webb, 14 Wall. 406. 414. 20 L. Ed. 774 (1871), Strong, J., said: 'It must be conceded that an engagement to tow does not Impose either an obligation to insure, or the liability of common carriers. * * * The con- tract requires no more than that he who undertaljes to tow shall carry out his undertaking with that degree of caution and skill which prudent naviga- tors usually employ in similar services." In The Minnehaha, 1 Lush. 335, 347 (1861), Lord Kingsdown said: "When a steamboat engages to tow a vessel for a certain remuneration from one point to another, she does not warrant that she will be able to do so, and will do so under all circumstances and at all hazards ; but she does engage that she will U'se her best endeavors for that purpose, and will bring to the task competent skill, and such a crew, tackle and equipments as are reasonably to be expected in a vessel of her class. She may be prevented from fulfilling her contract by a vis major, by accidents w'hich were not contemplated, and which may ren- der the fulfillment of her contract impossible, and in such case, by the gen- eral rule of law, she is relieved of her obligations." It was held accordingly that the' tug was entitled to a salvage reward for rescuing the tow from ex- traordinary sea perils by incurring risks and making exertions not within the scope of her engagement to tow. A carrier, however, is not entitled to sal- vage for rescuing his cargo from extraordinarv sea perils. The Aguan (D. C.) 48 Fed. 320 (1891) ; The C. P. Minch, 73 Fed. 8-59. 20 C. C. A. 70 (1896). Under the ordinary contract of towage, a tug is not a carrier, even though it has exclu.'Jive possession of the tow. Brown v. Clegg. 63 Pa. 51, 3 Am. Rep. 522 (1870): The D. Xewcomb (D. C.) 16 Fed. 274 (1883), semble : The A. R. Robinson (D. C.) 57 Fed. 667 (189.3) ; Knapp v. McCaffrey, 178 111. 107, .52 N. E. 898. 69 Am. St. Rep. 290 (1899), semble. But if the owner of tug makes a contract of carriage, he is liable as a carrier, though the transportation is by agreement performed by towing. The Northern Belle, 9 Wall. 526, 19 L. Ed. 746 (1869) ; Hibernia Ins. Co. v. St. Louis Trans. Co., 120 U. S. 166, 7 Sup. Ct. 5.50. .30 L. Ed. 621 (1887); The Nettie Quill (D. C.) 124 Fed. 667 (1903); Bassett v. Aberdeen, etc., Co., 120 Ky. 728. 88 S. W. 318 (190.5). In Bussey v. Mississippi Valley Trans. Co., 24 La. Ann. 165, 13 Am. Rep. 120 (1872), the defendants, owners of the steamboat Bee, gave a bill of lading at St. Louis for one barge loaded with hay and corn "in apparent good order in tow of the good steamboat Bee and barges, * * * to be delivered without delay in like good order (the dangers of navigation, fire, explosion, and collision ex- cepted) to Bussey & Co., at New Orleans, La., on levee or wharfboat, he or they paying freight at the rate annexed." Howe, J., said: "We must think that in all reason the liability of the defendants, under such circumstances, should be precisely the same as if, the barge being much smaller, it had been carried, cargo and all, on the deck of their tug." G The statement of facts is abridged. 28 INTRODUCTORY TOPICS. (Part 1 ried at the time of the accident, it did not stand towards him in the relation of a common carrier, and the plaintiff cannot recover. The only right which the plaintiff had to be on the train was by virtue of a contract which the defendant had made with the proprietors of a circus whose servant the plaintiff was. By the terms of this contract, the defendant agreed to haul certain cars belonging to the circus pro- prietors, according to a schedule of time fixed by the agreement, by which the work was to be done at 18 different times, and nearly all of it at night. The price to be paid was a gross sum, stated in the agree- ment to be less than the regular rates of the defendant for such serv- ice. The proprietors agreed, at their own expense, and under their own supervision, and without responsibility on the part of the defend- ant, to load and unload the cars, "to exonerate and save harmless" the defendant "from any and all claims for damages to persons and prop- erty during the transportation aforesaid, however occurring," and to "assume all risk of accident from any cause." The plaintiff's evidence tended to show that the injury occurred by one of the cars running off the track by reason of its trucks not being in proper condition, and contended that that fact was evidence that proper inspection of the trucks by the defendant would have revealed their condition, and that the defendant was bound to make such in- spection. We need not consider whether the offer of proof was suffi- cient, if it was the duty of the defendant to inspect the cars, for we are of opinion that it was not its' duty to inspect the cars. The de- fendant had no control over the condition of the cars, and no power to interfere with them. The contract was simply to haul the cars as they were. This contract the defendant had the right to make, as it was under no obligation to draw the cars as a common carrier. Coup v. Railway Co., 5G Mich. Ill, 22 N. W. 215, 56 Am. Rep. 374. The ruling of the judge below was right; and, according to the terms of the report, there must be judgment on the verdict for the defendant. So ordered.'^ 7 In Coup v. Railway Co., cited above. Campbell, J., speakinj!: of a contract like that in tbe principal case, said: "It Is a misnomer to speak of such an arrangement as an agreement for carriage at all. It is substantially similar to tbe business of towing vessels, which has never been treated as carriage. It is. although on a larger scale, analogous to the business of furnishing horses and drivers to private carriages. Whatever may be the liability to third per- sons who are injured by carriages or trains, the carriage owner cannot hold the persons he employs to draw his vehicles as carriers."' In Clough V. Grand Trunk W. R. Co., l.-w Fed. 81. 85 C. C. A. 1. 11 L. R. A. (N. S.) 446. (1907). Lurton, J., said: "The engine and train were under the con- trol of servants of the railway company, but under a contract by which they became, for the purpose of moving this train, the special servants acting under orders and directions and in behalf of the circus company. ♦ * * We see no illegality in a railway company permitting a use of its tracks by another which does not substantially disable It from the usual and ordinarj- perform- ance of its corporate duties to the public. * * * This train under this contract was, at the time, being run or operated by the special servants of the Ch. 3) WHAT IS CARRIAGE. 29 EDWARDS V. MANUFACTURERS' BLDG. CO. (Supreme Court of Rhode Island, 1905. 27 R. I. 248, 61 Atl. 64G, 2 L. R. A. [N. S.] 744, 114 Am. St. Rep. 37.) Trespass on the case for negligence. Douglas, C. J.^ The plaintiff was an employe of one of the de- fendant's tenants, and was injured by the falling of an elevator which the defendant maintained and operated in its building for the use of its tenants and their employes and customers. After verdict for the plaintiff, the defendant brings its petition for a new trial, founded up- :on the allegations that the verdict is against the evidence, that the presiding justice erred in refusing to charge the jury as requested by the defendant, and that the damages were excessive. The defendant's requests which were refused, and to which excep- tions were taken, were: "(1) The owner of a building containing a passenger elevator therein operated by such owner is not a common carrier, and not an insurer of the safety of persons using the elevator. (2) If the jury find that the defendant used reasonable care and pru- dence in the construction, maintenance, and operation of the elevator, the verdict should be for the defendant." * * * We think the first and second requests should have been granted. A landlord who maintains an elevator in his private building is not a common carrier, and a common carrier is not an insurer of the safety of passengers. And it seems to us unreasonable to say that such a landlord is to be held to the same degree of care which the law im- poses upon a common carrier. The charge of the court was based upon the case of Alarker v. IMitchell (C. C.) 54 Fed. 637, which holds that the liability of a land- lord maintaining an elevator and that of a common carrier of pas- sengers are the same ; that the standard for both is the highest degree of care which human foresight can suggest. This case is supported by Goodsell V. Taylor, 41 Minn. 207, 42 N. W. 873, 4 L. R. A. 673, 16 circus company, and their acts were the acts of that contractor, and not the acts of the railway company." A railroad company, which receives cars from a connecting carrier for trans- portation over its line, presumably takes them for carriage, and in absence of special contract is liable for damage to the cars themselves, as well as to their contents, though free from negligence. Pa. R. Co. v. New Jersey, etc., Co.. 27 N. .T. Law, 100 (18.58); Vt. & Mass. R. Co. v. Fitchburg R. Co., 14 Allen (Mass.) 402, 92 Am. Dec. 785 (1S07) ; Peoria, etc., Co. v. Chicago, etc., R. Co., 109 111. 135, 50 Am. Rep. 605 (1884) ; Mo. Pac. Ry. Co. v. Chicago & A. Co. (C. C.) 25 Fed. 317 (1885). It is otherwise where the railroad has by contract the use of the cars. St. Paul, etc.. R. Co. v. Minneapolis, etc., Co., 26 Minn. 243, 2 N. W. 700, 37 Am. Rep. 404 (1879). Or undertakes merely to give its services in switching them. Texas & Pac. Ry. Co. v. Henson (Tex. Civ. App.) 121 S. W. 1127 (19(>9). A terminal company, which contracts with a railroad to haul passenger trains over the terminal company's track, does not become a car- rier of passengers. Keep v. Indianapolis, etc., R. Co. (C. C.) 9 Fed. 625 (1881). s Parts of the opinion are omitted. 30 INTRODUCTOKY TOPICS. (Part 1 Am. St. Rep. TOO, and Treadwell v. Whittier, 80 Cal. 574, 23 Pac. 266, 5 L. R. A. 498, 13 Am. St. Rep. 175. And the United States Court of Appeals confirmed the decision in Mitchell v. Marker, 62 Fed. 139, 10 C. C. A. 306, 25 L. R. A. 33, where the court say : "We see no distinction in principle between the degree of care required from a carrier of passengers horizontally by means of railway cars or stagecoaches and one who carries them vertically by means of a pas- senger elevator. The degree of care required from carriers by rail- way or stagecoach is the highest degree. Neither is an insurer, but in regard to each care short of the highest degree becomes not ordinary care, but absolute negligence." These cases seem to have been gen- erally followed. Edwards v. Burke, 36 Wash. 107, 78 Pac. 610. We cannot assent to the reasoning on which they rely. It is true that whether a common carrier operates a stagecoach, a railway on the surface of the ground, or a railway up a mountain side, the law subjects him to a certain rule of responsibility; but the rule is im- posed not on account of the danger of the journey, but because of his relation to the public. If a private person transports a friend in his coach or in his automobile, he is liable only for want of ordinary care, though the danger may be the same as in traveling by public coach or by railway. The duty of a landlord towards those who en- ter upon his premises by implied invitation is to exercise reasonable care for their safety, and we see no reason for modifying the rule when he introduces and operates an elevator. He is not, Hke a com- mon carrier, a servant of the public. His relations and duties are with a limited number of persons who have contracted with him for the use of his premises, and others who have business with his ten- ants. The doctrine of the cases cited above is examined and re- pudiated by the New York Court of Appeals in Griffen v. IManice, 166 N. Y. 197, 59 N. E. 925, 52 E. R. A. 922, 82 Am. St. Rep. 630, decided in 1901. * * * As the defendant must have been prejudiced by the erroneous state- ments of the measure of its duty, a new trial must be granted, and it is unnecessary for us to comment upon the evidence presented. The petition is granted, and the cause is remanded to the common pleas division for further proceedings. Ch. 3) WHAT IS CARRIAGE. 31 FARLEY V. LA VARY. (Court of Appeals of Kentucky, 1900. 107 Ky. o23, 54 S. W. 840, 47 L. R. A. 383.) White, J.® This action was brought by appellee for damages for the destruction of certain household goods. The allegations of the pe- tition are that appellant, doing business as the Farley Transfer Com- pany, contracted, for hire, to carry these household goods from Lex- ington to Nicholasville, and that while the goods were in the posses- sion of appellant they were destroyed by reason of the negligence of the servants and employes of appellant in charge of the wagon. It is alleged that appellant is engaged in the business of, and is, a common carrier. The damage claimed is $500. The answer denied that appellant was a common carrier at all ; admitted a contract with appellee to haul by wagon her household goods from Lexington to Nicholasville, and admitted that while in transit certain of the goods were destroyed by fire, and other articles damaged, but denied that by reason thereof appellee was damaged to the extent of $500, or in any sum exceeding $250. The answer fur- ther pleaded that the destruction and damage to the goods by fire were without fault on his part, and denied that the fire was caused by the negligence of any of his servants. The issue was tried before a jury, who returned a verdict for $400 for appellee. Judgment was entered accordingly, and from that judg- ment this appeal is prosecuted. The facts proven on the trial without material controversy are that appellant, doing business as the Farley Transfer Company, had a num- ber of vehicles running in the city of Lexington, all duly and regularly licensed to haul for hire ; that in such business he hauled for any and all persons, and goods and merchandise of all kinds ; that he hauled in the city and about the city, to the fair grounds, and other places. There was no dispute as to the contract with appellee to haul the household goods, nor of the fact of damage. As the cause of the fire, there was some proof that the driver was smoking; and, unless the fire caught from his pipe or cigar, it is unexplained how it originated. The proof as to the amount of the loss is conflicting. * * * If appellant was a common carrier in carrying these goods, his lia- bility stands admitted; for he nowhere pleads that the damage was caused by the act of God, the public enemy, or the inherent quality of the goods. We are of opinion that by the evidence of appellant him- self it is shown that he was a common carrier within the limits of the city of Lexington. He admits that he hauled for all or any persons, and had obtained a license so to do. Being a common carrier, appel- lant could have been compelled to haul for appellee within the terri- 9 Parts of the opinion are omitted. ;J2 INTRODUCTORY TOPICS. (Part 1 tory in which he was engaged, but she could not have compelled him to go outside his territorial limit. In this case, however, he contracted to go beyond his territory. Applying the facts to a railroad, we should say he agreed to go be- yond the end of his line. It has repeatedly been held that, while a railroad cannot be compelled to accept and agree to carry goods to points beyond its line, yet it might do so. If the carrier contracted to convey beyond its line, it would be liable as a common carrier for the whole distance. * * * There appears to us no error in the record. The judgment is therefore affirmed, with damages.^" 10 Ace. Robertson v. Kennedy, 2 Dana, 430, 26 Am. Dec. 4GG (1S.34) ; Jackson Arch. Iron Works v. Hurlbut. post, p. 38. note. Compare Armfield v, Humph- rey, 12 111. App. 90 (18S2); Williams v. O'Daniels, 3.^; Tex. .542 (1872); Gurley T.\\rmstead, 148 Mass. 207, 19 N, E. 389. 2 L. R, A. 80, 12 Am. St. Rep. 555 (1889). Receivers operating a railroad are common carriers, and, where not exempt from suit as otticers of the court, are liable for nonnegliseut loss of goods. Blumenthal v. Braiuerd. 38 Vt. 402, 91 Am. Dec. 3.50 (1S6G) ; Paige v. Smith, 99 Mass. 395 (1868). Trustees for bondholders operating a railroad after fore- closure are common carriers. Rogers v. Wheeler, 43 N. Y. ,598 (1871). A j)ilot is not a carrier, though in charge of the navigation of the ship. The Tom Lysle (D. C.) 48 Fed. 690 (1891). A master of a vessel, who hires seamen, navigates his ship, and signs bills of lading so as to be personally liable to shippers of cargo as a common carrier, is not liable as a carrier to his employer; and, though the latter has had to pay shipiters for damage to cargo, he has no remedy against the master, un- less the loss was due to the master's fault. Mepham v. Biessel, 9 Wall. 370, 19 L. Ed. 677 (1869), atfirming Bissell v. Mepham, 1 Woolw. 225, Fed. Cas. No. 1,450 (1868). A ceinal company is not a carrier, if it does not operate the boats which pass over it. Watts v. Canal Co.. 64 Ga. 88, 37 Am. Rep. .53 (1879). Nor is one who maintains a toll bridge. Grigsby v. Chappell, 5 Rich. (S. C.) 443 (1852) ; Keutuckv Bridge Co. v. Louisville & N. R. Co. (C. C.) 37 Fed. 567, 616. 2 E. R. A. 2.S9 (1889). Piihlic hackmen are generally treated as carriers. Lemon v. Chan.slor, 68 Mo. 340, 30 Am. Rep. 799 (1878) ; Bonce v. Railwav Co.. .53 Iowa, 278, 5 N. W. 177, 36 Am. Rep. 221 (1880). But see Ross v. Hill, 2 C. B. 877 (1846); Brown v. N. Y., etc., R. Co.. 75 Hun. 3.55, 27 N. Y. Supp. 69, 71 (1894). As to keepers of livery stables, see Siegrist v. Arnot. 86 Mo. 200, 56 Am. Rep. 424 (188.5) ; Pavne v. Halstead, 44 111. App. 97 (1892) ; Erickson v. Barber, 83 Iowa, 367, 49 N. W. 838 (1891); Stanley v. Steele, 77 Conn. 688, 60 Atl. 640, 69 L. R. A. 561 (1905) ; Copeland v. Draper, 157 Mass. 558, 32 N. E. 944, 19 L. R. A. 283. 34 Am. St. Rep. 314 (1893). DiMrUt messenger eompanies have been held not to be carriers, on the ground that they merelv furnished messeusers whom their customers might employ. Haskell v. Boston D. M. Co.. 190 Mass. 189. 76 N. E. 215. 2 L. R. A. (X. S.) 1091. 112 Am. St. Rep. 324 (1906); Hirsh v. Am. Dist. Tel. Co., 112 App. Div. 265, 98 N. Y. Supp. 371 (1906). But in Am. Dist. Tel. Co. v. Walker. 72 Md. 454. 20 Atl. 1, 20 Am. St. Rep. 479 (1890), where a messenger was employed to drive horses to a stable, it was held that the jury were .ius- titied in finding that the company undertook to do the driving through their servant, so as to be liable for injury to the horses by his negligence. And in Sanford v. Am. Dist. Tel. Co., 13 Misc. Rep. 88, 34 n' Y. Supp. 144 (189.5), a^d Gilman v. Postal Tel. Co., 48 Misc. Rep. 372. 95 N. Y. Supp. 504 (1905), com- panies wliose boys carried parcels were considered to be common carriers. Railroads and others transporting the mail act. not as carriers, but as per- sons in goverimient service, and are not liable to owners of lost letters. Fos- ter V. Metts, 55 Miss. 77, 30 Am. Rep. 504 (1877); Central R. Co. v. Lampley, Ch. 3) WHAT IS CARRTAGE. 33 76 Ala. 357, 52 Am. Rep. 344 (1SS4), at least in the absence of fault ; German St. Bk. V. Minneapolis, etc., Co., 113 Fed. 414 (1901) ; Boston Ins. Co. v. Chi- cago, etc., R. Co., 118 Iowa, 423, 92 N. W. 88, 59 L. R. A. 796 (1902). Telegraph companies. In Fowler v. Western Union Co., 80 Me. 381, 387, 15 Atl. 29, 30. 6 Am. St. Rep. 211 (1888). Foster, J., said: "It is now perfectly well settled, by the great weight of judicial authority, that although telegraph companies are engaged in what may appropriately be termed a public employ- ment, and are therefore bound to transmit, for all persons, messages preseutetl to them for that purpose, they are not common carriers in the strict sense of the term. They do not insure absolutely the safe and accurate transmission of messages as against all contingencies, but they are bound to transmit them with care and diligence adequate to the business which they undertake, and for any failure in such care and diligence they become responsible." And in Primrose v. Western Union Co., 154 U. S. 1, 14, 14 Sup. Ct. 1098, 1101, 38 L. Ed. 883 (1894), Gray, J., said: "The carrier has the actual and manual possession of the goods ; the Identity of the goods which he receives with those Avhich he delivers can hardly be mistaken ; their value can be easily estimated, and may be ascertained by inquiry of the consignor, and the car- rier's compensation fixed accordingly: and his liability in damages is measured by the value of the goods. But telegraph companies are not bailees in any sense. They are intrusted with nothing but an order or message, which is not to be carried in the form or characters in which it is received, but is to be translated and transmitted through different symbols by means of elec- tricity, and is peculiarly liable to mistakes. The message cannot be the sub- ject of embezzlement ; it is of no intrinsic value ; its importance cannot be estimated, except by the sender, and often cannot be disclosed by him without danger of defeating his purpose ; it may be wholly valueless, if not forwarded immediately ; and the measure of damages, for a failure to transmit or deliver it, has no relation to any value of the message itself, except as such value may be disclosed by the message, or be agreed between the sender and the company." A sleeping car company is neither a carrier nor an innkeeper. Pullman, etc., Co. V. Gavin, 93 Tenn. 53, 23 S. W. 70, 21 L. R, A. 298, 42 Am. St. Rep. 902 (1893). It does not imdertake that its cars will nui to destination. Calhoun V. Pullman, etc., Co. (C. C.) 149 Fed. 546 (1906). But it does undertake that they usually do so run, Pullman, etc., Co. v. King, 99 Fed. 380, 39 O. O. A. 573 (1900). As to its duty to protect its passengers, see post, p. 82, note. Green Oaee. — 3 34 INTRODUCTORY TOPICS. (Part 1 CHAPTER IV WHAT IS A COMMON CARRIER Parker, C. J., in DWIGHT v. BREWSTER, 1 Pick. (Mass.) 50, 11 Am. Dec. 133 (1822): On the second count, which charges the de- fendants as common carriers, we think the facts proved are sufficient to constitute them such. Packages were usually taken in the stage- coach for transportation ; large packages were entered in the book kept for the proprietors, and compensation taken for their use. That the principal business was to carry the mail and passengers is no reason why the proprietors should not be common carriers of merchandise, etc. A common carrier is one who undertakes, for hire or reward, to transport the goods of such as choose to employ him from place to place. This may be carried on at the same time with other business. The instruction of the judge in this particular, that the practice of tak- ing parcels for hire, to be conveyed in the stagecoach, constituted the defendants common carriers, we think was right. BELL V. PIDGEON. (District Court, E. D. New York, ISSl. 5 Fed. R. 634.) In Admiralty. Benedict, J.^ This action is brought to recover the value of a quan- tity of chalk lost while being transported through the East River upon a vessel called Scow No. 1, owned by the defendant. The occupa- tion of the defendant is that of a dock and bridge builder. In his business he had occasion to transport dirt and stones, and for that pur- pose he owned and used several scows — flats constructed solely to car- ry rough matter upon their decks, and moved by means of tugs. The defendant employed these scows for the most part in his own business, but he sometimes chartered a scow to other parties by the day or the month. He was not in the carrying trade, and was not in the habit of transporting any cargo except his own. His scows, when employed by him, were used solely to transport his own articles in his own busi- ness ; when chartered to others, any transporting done by means of them was done at the expense of the charterer. In the present instance the libelant applied to the defendant to carry for him a quantity of chalk from alongside the ship Ruby, in the North River, to Newtown creek, at so much per ton. The employment was 1 Parts of the opinion are omitted. Ch. 4) WHAT IS A COMMON CAERIEB. 35 accepted, and, in pursuance thereof, about 200 tons of chalk were there- after laden on Scow Xo. 1 to be transported on the deck thereof through the East River to Xewtown creek. The method of loading the chalk upon deck was in accordance with the understanding of the par- ties, and no fault is shown either in regard to the quantity of chalk taken on board the scow, or in regard to the method of stowing it. When loaded the scow was taken in tow by a tug belonging to the de- fendant, and proceeded on her way to Xewtown creek. While passing up the river three large sound steamers were met about off Grand street, coming down the stream nearly abreast. The tug, with the scow upon a hawser astern, was about in the middle of the river, going at half speed. As the steamers approached, the tug blew her whistle several times, and when they came nearer the pilot waved his hat to call their attention ; he also stopped his engine. One of the steamers passed the scow to port, and two on the starboard. On passing they went so near and at such speed as to create a swell, which broke over the scow and caused her to roll so that she dumped all the chalk into the river. There was room for the steamers to have passed at a greater distance, and they might have reduced their speed, in either of which cases the swell would not have been dangerous. * * * As no negligence on the part of the defendant or his agents has been shown, the damage in question might no doubt be held to have arisen from a peril of the seas, within the meaning of the ordinary exception of a bill of lading. But the defendant's contract contained no exception. It was an unqualified contract to transport and deliver ; and, if it was made by the defendant in the capacity of a common car- rier, his responsibility was that which the law, upon grounds of pub- lic polic}', has attached to every common carrier, namely, that of an insurer against all loss or damage, unless caused by act of God or of the public enemy. The decision of the case turns, therefore, as I view it, upon the question whether the defendant was transporting this chalk in the ca- pacity of a common carrier. "To constitute one a common carrier, he must make that a regular and constant business ; or, at all events, he must for the time hold himself ready to carr)' for all persons indef- initely who choose to employ him." Redfield on Carriers, 15. * * * In the present case the defendant did not hold himself out as ready to transport the goods of others. The proof is that he did no more than to use his scows in his own business, or to let them to others to be used in their business. Upon the facts of this case, I am, therefore, of the opinion that the defendant's occupation was not that of a common carrier, and that his relation to the chalk in question was simply that of bailee for hire. This being so, in the absence of negligence he is not liable for the loss in question, unless it be also held here, as was held in Xugent v. Smith, 3 Asp. M. L. C. 87, L. R. 1 C. P. D. 19, 26-33, that every shipowner who carries goods on board his ship for hire, is, in the absence of ex- 36 INTRODUCTORY TOPICS. (Part 1 press stipulation to the contrary, by reason of his acceptance of the g:oods, liable as an insurer, except as against the act of God or the public enemy. The same position was taken by Brett, J., in the Liver Alkali Works V. Johnson, 2 Asp. M. L. C. 337, L. R. 9 Ex. 338, 344, but it does not seem to have been the opinion of the court in that case ; and upon the appeal in Nugent v. Smith it was distinctly, and I think successfully, challenged by the Chief Justice. 3 Asp. M.L. C. 198, h. R. 1 C. P. D. 423, 427-434. No American case that I know of has so extended the rule applicable to common carriers; and I think it will be found im- possible to apply so rigorous a rule to the transportation business of this country. - Upon these grounds I am of opinion that the libel must be dismissed. INGATE V. CHRISTIE. (Court of Queen's Beucb, 1850. 3 Carr. & K. 61.) At nisi prius. Assumpsit. The declaration stated, that the defendant agreed to carry lOU cases of figs from a wharf to a ship, and that by the negli- gence of the defendant's servants the figs were lost. Plea : Non as- sumpsit. "^ It was proved that, on the 14th of February, 1850, the defendant was employed by the plaintiffs, who are merchants, to take 100 cases of figs in his lighter from Mills' Wharf, in Thames street, to the Mag- net steamer, which lay in the River Thames, and that as the figs were on board the lighter, which was proceeding with them to the Magnet, the lighter was run down by the Menai steamer and the figs all lost. It was proved that the defendant had a counting house with his name and the word "lighterman" on the doorposts of it, and that he carried goods in his lighters from the wharves to the ships for anybody who employed him, and that the defendant was a lighterman and not a wharfinger. Alderson, B. Everybody who undertakes to carry for any one who asks him, is a common carrier. The criterion is, whether he carries for particular persons only, or whether he carries for every one. If a 2 Ace. Lamb v. Parkman, 1 Spr. 343. Fed. Cas. No. 8,020 (1857), semble; Gage V. Tirrell, 9 Allen (Mass.) 209, 309 (1864). semble; Allen v. Sackrider, 37 N. Y. 341 (1867) ; Sumner v. Caswell (D. C.) 20 Fed. 249 (1SS4), semble; The Dau (D. C.) 40 Fed. 091 (1889). But see Molloy, De Jure Maritime, bk. II, c. 2, §§ 2, 8 ; Carver, Carriage by Sea, §§ 4, 5 ; 2 Select Pleas in the Court of Admiralty, l.xxxi: Morse v. Slue, post, p. 333; Boucher v. Lawson. Lee's Hardwicke, 194, 199 (173.->) ; Baxter's Leather Co. v. Royal Mail Co., [1908] 2 K. B. 626 ; Tur- ney v. Wilson, 7 Yerg. (Teun.) 340, 27 Am. Dec. 515 (1835); Moss v. Bettis, 4 Heisk. (Tenn.) 661, 13 Am. Rep. 1 (1871). And compare The Commander in Chief, 1 Wall. 43, 51, 17 L. Ed. 609 (1863) ; McClure v. Hammond, 1 Bay (S. 0.) 99, 1 Am. Dec. 598 (1790). Ch, 4) WHAT IS A COMMON CARRIER. 37 man holds himself out to do it for every one who asks him, he is a com- mon carrier ; but if he does not do it for every one, but carries for you and me only, that is matter of special contract. Here we have a per- son with a counting house, "lighterman" painted at his door, and he offers to carry for every one. Wise, for the defendant: Does your Lordship think that the defend- ant is a common carrier? * * * Jn the case of Brind v. Dale, 8 C. & P. 207, Lord Abinger, C. B., intimated that in his opinion a town carman was not a common carrier, although he took chance jobs from any one, much as a lighterman does ; and so in the case of Ross v. Hill, 2 C. B. 877, the Court of Common Pleas considered that a cab owner was not a common carrier; and from the case of Coggs v. Ber- nard, 2 Ld. Raymond, 909 [post, p. 317], and the older authorities, it appears that a common carrier is one who carries goods from one town to another. * * * Alderson, b. * * * There may be cases on all sides, but I will' adhere to principle if I can. If a person holds himself out to carry goods for every one as a business, and he thus carries from the wharves to the ships in harbor, he is a common carrier, and if the defendant is a common carrier he is liable here. There must be a verdict for the plaintiff. FAUCHER V. WILSON. (Supreme Court of New Hampshire, 1895. G8 N. H. 338. 38 Atl. 1002, 39 L. R. A. 431.) Case against the defendant as a common carrier of goods, for the loss of a hogshead of molasses. Facts found by the court. The defendant was engaged in the business of trucking goods for hire from the railway freight station in Manchester to different stores in the city. On one of the warmest days in the summer of 1891, he transported a hogshead of molasses from the freight station to the plaintiff's store, on Elm street, a distance of a little over half a mile. By reason of the fermentation of the molasses, the hogshead burst while being unloaded. The plaintiff's loss was not caused by any want of ordinary care on the part of the defendant. Each party moved for judgment in his favor. Chase, J. It is not found that the defendant was a common car- rier. The finding that he was engaged in the business of trucking goods for hire from the railway freight station to different stores in the city lacks the distinguishing characteristic of a common car- rier, namely, the holding of oneself out as ready "to carry at reason- able rates such commodities as are in his line of business, for all persons who offer them, as early as his means will allow." [Citing authorities.] The inference from this finding is as strong, to say the least, that the defendant's business was limited to trucking for par- 38 INTRODUCTORY TOPICS. (Part 1 ticular customers at prices fixed in each case by special contract, as it is that he held himself out as ready to truck for the public indis- criminately, at reasonable prices. If such was the character of his business, he was not an insurer of the plaintiff's goods (there being no special contract of insurance), and was only bound to exercise ordi- nary care in respect to them. If the defendant was a common carrier, he is not liable for the plaintiff's loss, since it happened from the operation of natural laws, which a common carrier does not insure against.^ [Citing authori- ties.] In Farrar v. Adams, 1 Bull. N. P. 69, it is said that "if an ac- tion were brought against a carrier for negligently driving his cart, so that a pipe of wine was burst, and was lost, it would be good evi- dence for the defendant that the wine was upon the ferment, and, when the pipe burst, he was driving gently." It being found that the plaintiff's loss was not due to any want of ordinary care on the part of the defendant, there must be judgment for the defendant.* 3 For this subject, see post, p. 353 et seii. 4 Aec. Bassett v. Aberdeen, etc., Co., 120 Ky. 728. 88 S. W. 318 (lOOo) ; Var- ble V. Bigley, 14 Bush (Ky.) 698. 20 Am. Rep. 435 (1879). See. also. Meisner v. Detroit Co., 154 Mich. 545, 118 N. W. 14, 19 L. R. A. (N. S.) 872 (1908), steam- boat company carrvinj? passengers to its amusement park. In Jackson* Architectural Iron Works v. Hurlbut, 158 N. Y. 34. 37. 52 X. E. GG5, 0(50. 70 Am. St. Rep. 432 (1899), O'Brien, J., said: "The defendants adver- tised themselves as general truckmen, their particular specialty being the mov- ing of heavy machinery. They kept and maintained for this purpose a large number of trucks and horses, and the necessary help for the prosecution of this business. On this state of facts there was no legal error in the refusal of the learned trial judge to instruct the jury that the defendants were not com- mon carriers. Truckmen, wagoners, cartmen, and porters, who undertake to carry goods for hire as a common emploj-ment in a city, or from one town to another, are common carriers. It is not necessary that the exclusive busi- ness of the parties shall be carrying. Where a person whose principal pur- suit is farming solicits goods to be carried to the market town in his wagon on certain occasions, he makes himself a common carrier for those wlio employ him. The circumstance that the defendants had no re.£rular tariff of charges for their work, but that a special price was fixed by agreement, does not change the relation. The necessity for a different charge in each case arises, of course, out of the difference in labor in handling articles of great bulk. The charge in each case may he proportioned to the risk assumed, and commen- surate with the carrier's responsibility as such. A common carrier is one who, by virtue of his calling, undertakes, for compensation, to transport personal property from one place to another for all such as may choose to emplo.v him ; and every one who undertakes to carry for compensation the goods of all per- sons indifferently, is, as to liability, to be deemed a common carrier." Compare Farley v Lavary, ante, p. 31, and cases cited in note thereto. See, also, Gordon v. Hutchinson, 1 Watts & S. (Pa.) 285, 37 Am. Dec. 464 aS41) ; Samms v. Stewart. 20 Ohio, 69, 55 Am. Dec. 445 (1851) : Fish v. Clark, 49 N. Y, 122 (1872) ; Hastings Ex. Co. v. Chicago, 135 111. App. 268 (1907). Though a shipowner makes it his business to carry cargoes for the best freights he can obtain, and uses his vessel for no other purpose, he is not necessjirily a common carrier. See Lamb v. Parkman, 1 Spr. 343, Fed. Cas. No. 8,020 (1857); The Dan (D. C.) 40 Fed. 691 (1889) ; Liver Alkali Co. v. Johnson, L. R. 7 Ex. 267 (1874). Compare Hahl v. Laux, 42 Tex. Civ. App. 182, 93 S. W. 1080 (1906); Hill v. Scott, [1895] 2 Q. B. 371. In Nugent v. Smith, L. R. 1 C. P. D. 19, 28 (1875), Brett, J., said: "A ship- owner who puts his ship into a broker's hands to procure a charter does not hold himself out to carry for the first person who offers. Neither does a mas- Ch. 4) WHAT IS A COMMON CARRIER. 39 HARRINGTON v. McSHANE (Supreme Court of Pennsylvania, 1834. 2 Watts, 443, 27 Am. Dec. 289.) Writ of error. The trial court charged the jury that if they be- Heved the evidence the defendants were Hable. Defendants assign this instruction as error. Sergeant, J.^ It appears by the evidence that it is the usage on the Western waters for steamboat owners, in addition to the business of carrying goods, to act as factors, to make sales and returns, with- out being paid any other consideration than the freight, and that the defendants, by their agent Hyatt, who was also part owner in the boat, received the plaintiff's flour to transport to Louisville and sell, in con- sideration of being paid a certain freight per barrel. The flour was taken there and sold, and the money which it produced was in the boat on its return up the river, separated from other moneys, and was destroyed by a fire which consumed the boat and its contents. This fire was the result of accident, without any neglect of the defend- ants or the master and crew ; the latter having used every possible exertion to rescue the money from the flames. * * * The question of the defendant's responsibility in the present case depends on the character in which they held the money when the loss occurred. If they were merely factors, they are not responsible; if they were carriers, the reverse must be the case. Had the flour been lost on the descending voyage by a similar accident, there could be no doubt whatever of the defendants' liability; they were certainly transporting it in the character of carriers. On their arrival at the port of destination and landing the flour there, this character ceased and the duty of factor commenced. When the flour was sold, and the specific money, the proceeds of sale, separated from other moneys ter who in a foreign port advertises that he is ready to enter into charters. The shipowner or master has a right to consider the credit and responsibility of the proposed charterer, and to reject his proposal if it be thought expe- dient. One who puts up his ship as a general ship does, by so doing, by the ordinary understanding of shipowners and merchants, hold himself out as ready to carry all reasonable goods brought to him. And so does a ship- owner who runs a line of ships from ports to ports, habitually carrying all goods brought to him." In Steele v. McTyer, 31 Ala. 667, 674, 70 Am. Dec. 516 (l'8.58). there was evi- dence that the flatboats in which cotton was carried down the river to market were broken up for lumber at the end of a single trip. Walker. J., said: "If the appellants built or procured a flatboat, with which to carry cotton down the Cahaba river and thence to Mobile, though only for a single trip, and held themselves out as reiidy and willing to carry cotton on their boat for the people generally who wished to send their cotton to Mobile, then they would be common carriers. * * * if the appellants, having engagetl a part of the loading for the boat, held themselves out as ready to carry for any per- son or persons to the extent of the remaining capacity of the boat, then they would be liable as common carriers to such persons as availed themselves of such offer of their services to the public generally as carriers. These ques- tions, under the proof, should have been left to the jury." 5 The statement of facts has been rewritten, and part of the opinion omitted. 40 INTRODUCTORY TOPICS. (Part 1 in the defendants' hands and set apart for the plaintiffs, was on its return to them by the same boat, the character of carrier reattached. The return of the proceeds by the same vessel is within the scope of the receipt and of the usage of trade as proved, and the freight paid may be deemed to liave been fixed with a view to the whole course of the trade, embracing a reward for all the duties of transportation, sale and return. If the defendants, instead of bringing the money home in their own vessel, had sent it on freight by another, there would have been ta the plaintiffs the responsibility of a carrier, and there ought not to be less if they chose to bring it themselves. If they had mixed the money up with their own, they would have no excuse for nonpayment. The defendants can be relieved from responsibility only by holding that the character of carrier never existed between these parties at all, or that, if it existed on the descending voyage, it ceased at its termination, and that of factor began and continued during the as- cending voyage. But if the defendants bring back in the same ves- sel other property, the proceeds of the shipment, whether specific money or goods, they do so as carriers, and not merely as factors. See Story on Bailm. 350. In the cases of Kemp v. Coughtry, 11 Johns, (N. Y.) 107, and Emery v. Hersey, 4 Greenl. (Me.) 407, 16 Am. Dec. 268, the points involved in the present case were discussed, and received the same determination. Judgment affirmed. HONEYMAN v. OREGON & C. R. CO. (Supreme Court of Oregon, 1886. 13 Or. 352, 10 Pac. G28, 57 Am. Rep. 20.) Lord, J.® This is an action brought by the plaintiff against the de- fendant as a common carrier to recover damages for the alleged kill- ing of a dog delivered to the defendant to be transported by its rail- way from Portland to North Yamhill. * * * Issue being taken by the reply, a jury was impaneled and sworn, and, after hearing the evidence of the plaintiff, the defendant moved the court for a non- suit upon the ground that the plaintiff had failed to prove a cause sufficient to be submitted to the jury. The motion for nonsuit was allowed, and judgment was rendered against the plaintiff, from which this appeal was taken. * * * The evidence submitted and included in the bill of exceptions does not prove the duty or undertaking as alleged. The facts disclose that the defendant did not hold itself out as a common carrier of dogs, or assume their transportation in that character, but that the defendant expressly refused to accept hire and furnish tickets for their trans- « Parts of the opinion are omitted. Ch. 4) WHAT IS A COMMON CARRIER, 41 portation. The evidence shows that when the party having in charge the dogs applied to the ticket agent of the defendant for transporta- tion for himself and dogs the agent refused tickets for the dogs, and referred him to the baggage master, who told him, "You know the rules about dogs;" but, as an accommodation, consented to take the dogs in his car, and promised to look after them, for which he received two dollars. These circumstances do not show that it was the business of the defendant to carry dogs, or to receive pay for their transportation, but that, as a matter of accommodation to a passenger, it permitted the baggage master, after the party was notified of the rules, to carry them in his car, and to accept pay for his care of them. It is true, as Mr. Justice Bradley said : "A common carrier may, undoubtedly, become a private carrier, or a bailee for hire, when, as a matter of accommodation, or special engagement, he undertakes to carry something which it is not his business to carry." Railroad Co. V. Lockwood, 17 Wall. 357 [post, pp. 445, 446], Even in this view, if the arrangement, under the circumstances, made with the baggage mas- ter, may be construed to have any binding effect upon the defendant, the defendant can only be charged as a private carrier, or bailee, who undertook to carry what the facts show was not its business to carry, as a matter of accommodation, under a special arrangement. In such a case, as Isham, J., said, "the relation is changed from a common carrier to a private carrier, and when such is the effect of the special agreement, they are not liable as common carriers; neither can they be declared against as such. It is possible there has been a breach of that express contract, and the plaintiff is, perhaps, entitled to damages for the injuries he has sustained; but the action should have been brought on that contract, or for a breach of duty arising out of it, and not on the duty and obligation imposed on common carriers."^ Kimball v. Rutland R. Co., 26 Vt. 249, 62 Am. Dec. 567. The complaint must set out the facts of the undertaking or duty as it is. A plaintiff cannot declare upon one undertaking, duty, or obligation, and recover upon another. So that in any view of the facts, as presented by this record, there would seem to be no error^ and the judgment must be affirmed.'^ 7 See, also, Chicago, etc., Co. v. Wallace, 66 Fed. 506, 14 O. C. A. 257, 30 L. R. A. 161 (1895), transportation of circus. PART II THE CARRIER'S UNDERTAKING CHAPTER I THE CONDUCT OF TRANSPORTATION SECTION 1.— DISPATCH TAYLOR V. GREAT NORTHERN RY. CO. (Court of Common Pleas, 1866. L. R. 1 C. P. 385.) Appeal from the county court of Lincolnshire. The action was brought to recover the sum, amongst others, of i4 16s. 6d., for damage sustained by the plaintiff in consequence of a delay in the delivery of three hampers of poultry, which he had sent by the defendants' rail- way for the early London market. There was no special contract made by the defendants to deliver the goods in time for any particu- lar market. The delay was wholly occasioned by an accident which occurred on the defendants' line between Hitchin and London, to a train of the Midland Railway Company, who have running powers over that portion of the defendants' line. The accident resulted sole- ly from the negligence of the servants of the Midland Railway Com- pany. The county court judge decided in favor of the plaintiff on the ground that as the Midland Railway Company used the said railway by the permission of the defendants, the latter were responsible for delay caused by the negligence of the servants of the former com- pany, and, therefore, that the delivery in this case was not within a reasonable time. The defendants having appealed from this decision, Erle, C. J. I am of opinion that our judgment should be for the defendants. I think a common carrier's duty to deliver safely has nothing to do with the time of delivery; that is a matter of contract, and when, as in the present case, there is no express contract there is an implied contract to deliver within a reasonable time, and that I take to mean a time within which the carrier can deliver, using all reasonable exertions. The ground upon which the decision went (42) Ch. 1) THE CONDUCT OF TRANSPORTATION. 43 against the defendants was that, as the Alidland Railway Company used the Great Northern hne by the defendants' permission, the de- fendants were responsible for a delay caused by the Midland Com- pany on their Great Northern line. But in so deciding I think the county court judge took an erroneous view of the relations between the two companies. The legislature have declared by many acts that it is for the public advantage that railway companies should have run- ning powers over each other's lines, and it has specially declared it to be so in the case of the present agreement, which is confirmed by 23 Vict. c. 67. The Midland Railway Company, therefore, were not merely using the line by the defendants' permission but were exer- cising a statutory right, and the defendants were not responsible for their acts. Byi.es, J. I am of the same opinion. The first duty of a common carrier is to carry the goods safely, and the second to deliver them, and it would be very hard to oblige a carrier, in case of any obstruc- tion, to risk the safety of the goods in order to prevent delay. His duty is to deliver the goods within a reasonable time, which is a term implied by law in the contract to deliver ; as Tindal, C. J., puts it, when he says, "the duty to deliver within a reasonable time being merely a term ingrafted by legal application upon a promise or duty to deliver generally." Raphael v. Pickford, 5 M. & G., at page 558. My Brother Hayes treats ordinary and reasonable time as meaning the same thing, but I think reasonable time means a reasonable time looking at all the circumstances of the case. The delay in this case was an accident, as far as the defendants were concerned, entirely beyond their control, and therefore I think they are not liable. Judgment for the defendants.^ THE ELIZA. (District Court, D. Maine, 1847. 2 Ware, 318, Fed. Cas. No. 4,348.) This was a libel filed against the schooner Eliza, for the breach of d parol contract for the transportation of a quantity of lumber from the port of Saco to New York. The libel was filed on the 4th of Feb- ruary, and the contract was entered into on the last day of November. or the first of December. The cargo was put on board, December 1st, while the schooner lay at the upper ferry, and she then dropped down to the lower ferry to avoid being detained by the ice, which began to be made in the river. She lay there, without proceeding on her voy- age, to the time of the filing of the libel, and in fact continues there to 1 Keating and Montague Smith, J.I., delivered concurring opinions. Ace. Conger v. Hudson 11. Co.. G Duer (N. Y.) 37.5 (18.j7), post. p. 374; Viclvsburg. etc.. Co. v. Ragsdale, 4G Miss. 4.=>8 (1872) ; Brown, J., in Tlie Cale- donia, 157 U. S. 124, 140-144, 15 Sup. Ct. 537, 39 L. Ed. 644 (1895) and cases cited. 44 THE carrier's UNDERTAKING. (Part 2 this time, with the carg-o on board. The schooner, though a small ves- sel, was proved to be in a good condition and every way fit for the voyage, though at that season of the year the voyage is one of con- siderable danger. She is now ready for sea and is said to be about sailing on the voyage. The libel was for damage for not proceeding on the voyage within a reasonable time. Ware, District Judge.- The fact, that a contract of affreightment w^as made and the cargo taken on board in pursuance of the contract is admitted. The controversy is, what were the terms of the contract? The libellant contends that it was a contract in the ordinary and usual terms of such engagements, to receive the cargo on board and to pro- ceed on the voyage without unnecessary delay. The owners allege that it was conditional; that it was to receive the cargo on board where the schooner lay, and drop down to the lower ferry, and then to proceed on the voyage as soon as a master and crew could be ob- tained to navigate her; the vessel being small, and the voyage at that season being hazardous, that their engagement to perform the voyage was made subject to the condition that a master and crew could be obtained, and that they have made all reasonable efforts to- procure a master and have not been able to succeed. It is proved that they applied to several masters to take charge of the vessel, who all, for various reasons, declined; but not particularly on account of the dangers of the voyage. * * * The conclusion to which I am brought by the evidence is, that the contract was not made dependent on a condition that a master and crew could be found, but that it w^as, as charged in the libel, in the or- dinary form, that the vessel should proceed on her voyage without un- necessary delay. It is true that every engagement to perform a future act is, in one sense, conditional. If it becomes impossible by any event not imputable to the party who is bound to perform it, unless he as- sumes the risk of all contingencies, he is excused. The law com- pels no one to impossibilities. Poth. Oblig. 148 ; 6 TouU. 227. Those events called accidents of major force, or fortuitous events, or the acts of God, always constitute an implied condition, in every engagement, for a future act. If the vessel had been burnt by an accidental fire, or destroyed by a tempest, this would have been a valid excuse. But the difficulty of obtaining a master and crew is not one of those contin- gencies implied in a contract of affreightment, to excuse a nonperform- ance of the contract. It is not unusual for an owner to engage a ves- sel for a voyage before he has engaged a master, and a crew is rarely engaged until the voyage is determined upon and the vessel nearly ready for sea. These contingencies the owner takes on himself. I do not mean to say that the difficulty of obtaining a master and crew to navigate a vessel may not be such as to amount to an impossibility, and thus come within the class of fortuitous events that will excuse- 2 Part of the opinion is omitted. ■Ch, 1) THE CONDCCT OF TRANSPORTATION. 45 a party from performing his engagement. But the circumstances must be very extraordinary to amount to a justification. It is proved by the testimony, that the owner made efforts to obtain a master. Five different persons were applied to without success. But others might have been found, if not in Saco, in some of the neighboring towns. And I do not think that any such extreme case is proved, as will excuse the owner from his engagement, under the notion that it has become impossible by a fortuitous event or an accident of major force. Decree for libelant.' ANDERSON v. OWNERS OF THE SAN ROMAN. (Privy Council, 1873. L. R. 5 P. C. 301.) Mellish, L. J. The only question which their Lordships have to de- termine in this case is whether a German vessel called the San Roman ivas justified in staying at Valparaiso from the 23d of September, 1870, up to the 23d of December in the same year, on account of the alleged risk of capture in consequence of the war which then existed between France and Germany, this being a claim of the English char- terers to recover compensation on account of what they allege to be an unreasonable delay. The learned judge in the court below has laid down that "an apprehension of capture founded on circumstances calculated to affect the mind of a master of ordinary courage, judg- ment, and experience, would justify delay," and their Lordships are of opinion that that is a correct statement of the law of England. It has been admitted in the argument of the appellants that it is unnec- essary to determine whether this case ought to be decided according to the law of England or according to the law of Germany, because there is no practical distinction on the subject in the law of the two countries. Therefore the question their Lordships have to determine is entirely a question of fact, namely, whether the German master had during that time such an apprehension of capture founded on circumstances calculated to aft"ect his mind — he being a man of ordinary courage, judgment, and experience — as would justify delay; and their Lord- ships agree with the learned judge in the court below that there was a sufficient risk of capture to justify this delay. This is not a case where the master has refused to perform the 3 "Knowing the difficulty of transportation, being informed of a then exist- ing press of business, aware of the probability of an' inability to promptly handle and transport freight, a carrier cannot accept and receipt for freight for transportation, and then plead in excuse and extenuation of its delay a condition of affairs of which it was at the time advised." Truly, J., in Yazoo & M. V. R. Co. V. Blum Co., 88 Miss. 380, 40 South. 748. 10 L. R. A. (X. S.) 432 (1906). Ace. Railroad Co. v. Manufacturing Co., 16 Wall. 318, 21 L. Ed. 297 (1872). 46 THE carrier's UNDERTAKING. (Part 2 contract at all. No doubt, if the voyage had been abandoned, then it would have been necessary to shew that he had been actualh prevent- ed from performing it; but this is merely a question whether there was a reasonable cause for delay. The evidence on the subject really is that it was reported at Val- paraiso, and generally known, that French vessels of war were con- tinually, during the months, at any rate, of September and October, and for a pa'-t of November, sailing in and out of the harbor of \'al- paraiso, Valparaiso being the great harbor on that coast; and if French vessels intended to capture German vessels, they were more likely to find prizes coming out of \'alparaiso than from any other harbor on the coast. There is one particular ship that seems to have come in and gone out, and in ten days more to have come in again. It appears to their Lordships that the German captain in \^alparaiso could come to no other reasonable conclusion than that the principal object of these French war vessels, of which at one time there were as many as five in \'alparaiso, must have been to capture German vessels. Besides that, it appears that the newspapers at Valparaiso published reports, correct or incorrect, of captures that had actually taken place; and, in addition to that, it appears that the master went and consulted the consul of his own nation, and the consul advised him, in the strongest language — in fact, almost ordered him — not to go, and told him that, if he would go, he must give him a certificate that he had received due warning against leaving Valparaiso. There were other German ships in that harbor, some loaded and some unloaded, and the captains of all of them came to the conclusion that it would be improper and unsafe to leave \"alparaiso at that time. It also appears that the master was far from being a person who waited to the last to leave when the French vessels had for a time departed, but that he was among the first who went to the consul and required his papers for the purpose of leaving. Therefore there is nothing to show that he was at all neglecting or wishing to violate his duty towards the owners of the cargo. Their Lordships agree with what was said before in the judgment in the case of The Teu- tonia, L. R. 4 P. C. 171,'* that the owner of an English cargo on board a foreign ship cannot expect that the foreign master of the foreign ship will take greater precautions with respect to his goods, or will 4 In this case Lord Justice Mellish said: " * * * If the cargo had beeu a Prussian cargo, it would have been exposed to the same danger as the ship from entering the port at Dunkirk, and it appears to their Lordships that, when an English merchant ships goods on board a foreign ship, he can- not expect that the master will act in any respect differently towards his cargo than he would towards a cargo shipped by one of his own country, and that it cannot be contended that the master is deprived of the right of taking reasonable and prudent steps for the preservation of his ship, because, from the accident of the cargo not belonging to his own nation, the cargo is not exposed to the same danger as the ship." Ch. 1) THE CONDUCT OF TRANSPORTATION. 47 run greater risk in their defense, than he would with respect to goods of his own nation. If their Lordships were to look upon this case as a case in which the cargo was German as well as the ship, or a case in which both ship and cargo belonged to the same person, and then were to ask the question, Would a man of reasonable prudence, under such circumstances, have set sail or waited? it appears to their Lord- ships most clearly that a man of reasonable prudence would have waited. Then, when it is remembered that the owner of the cargo is an Englishman, it must be a matter of mere guess whether the cargo would have arrived in England sooner than it did if it had started before, because, in the first place, there would be great risk of cap- ture; and secondly, whether the vessel were captured or not, the German ship, during the whole of that voyage from A^alparaiso to Cork or Falmouth, and then from Cork or Falmouth to its port of dis- charge, would have been justified in taking reasonable precautions to avoid French vessels. Then, if the ship were captured, nobody could tell how long it would have been kept before it was sent to France for the purpose of being condemned, or how long it would have taken before the cargo arrived. Therefore it is by no means cer- tain that if the master had gone to sea before he did the cargo would have arrived any sooner. Then, with regard to the last part of the delay — that after the 13th of November — nobody could tell for a time whether the last French vessel would come back, or whether it was cruising about. The delay between the 11th and the 23d of December is too short a delay to be a matter of any importance, yet that appears to be accounted for by his being engaged in procuring money to pay his expenses. On the whole, their Lordships are of opinion that the judgment of the court below is perfectly right, and they will humbly advise Her iMajesty that this appeal ought to be dismissed with costs. SECTION 2.— CONTINUITY LOUISVILLE & N. R. CO. v. KLY^IAN. (Supreme Court of Tennessee, 1902. 108 Teiin. 304, 67 S. AY. 472. 56 L. R. A. 769, 91 Am. St. Rep. 755.) Caldwell, J.^ The line of the Henderson Division of the Louis- ville & Nashville Railroad Company, running north and south, crosses the line of its Memphis Division, which runs east and west, at Gu- thrie, Ky. Russellville, Ky., is on the former line, east of the inter- section; and Nashville, Tenn., is on the latter line, south of the inter- 6 Parts of the opinion have been omitted. 48 THE carrier's undertaking. (Part 2 section. Passengers going from one of these points to the other must cliange cars and have some delay at Guthrie, the place of intersection. August 10, 1898, the plaintiff, Solomon Klyman, took passage at Rus- sellville for Nashville; and, while awaiting the Nashville bound train at Guthrie, he received a message calling him in the opposite direc- tion, to ]\Iadisonville, Ky., whence he went to Louisville, Ky., and thence to Russellville, and on to Guthrie again by the same route as before. After this, on August 29th of same year, he boarded the train at Guthrie and resumed his journey to Nashville. The con- ductor challenged his ticket, and, upon his refusal to pay fare, stopped the train, and was in the act of forcibly ejecting him, wdien a fellow passenger paid his fare for him, and he was carried safely to his desti- nation. A few moments after his fare was paid he exhibited a large amount of money, and repaid the gentleman who had kindly ad- vanced the fare for him. This suit was brought to recover damages for the attempted ejection; verdict and judgment were rendered for ^150 in the plaintiff's favor, and the defendant appealed in error. The trial judge took the plaintiff's view, and charged the jury as follows : "That if the plaintiff purchased a ticket at Guthrie for Nash- ville, and paid full fare for it, or if he purchased it at Russellville for Nashville, via Guthrie, as the road ran, at the full fare, that he was entitled to transportation from Russellville or from Guthrie to Nash- ville upon the same, no matter when presented; and if the defendant company, through its conductor, refused to accept the same for pas- sage from Guthrie to Nashville when offered and presented by plaintiff and the conductor thereupon proceeded to eject, or attempted to eject, the plaintiff from the train, such action on his part was contrary to law, and that defendant would be liable for such." This instruction, when applied, as it must be, to the facts and con- tentions heretofore recited, is erroneous in its alternative supposition. The ticket was not good for transportation to Nashville when present- ed, if issued in ordinary form at Russellville, and used to Guthrie 19 days previously. Such a ticket, if issued, was good only for a con- tinuous passage from Russellville to Nashville by such connection as was made by the company's trains at Guthrie; and the plaintiff, having elected, if he did, to begin his journey on the day of issuance, was legally bound to finish it by the first suitable train from Guthrie after his arrival there. The contract indicated by such a ticket was, in the absence of an agreement to the contrary, an entirety; and, when performance was once commenced, both passenger and carrier were legally obliged to continue it until completed. The contract operated on both alike. It gave the passenger no more power to break his journey into parts against the company's will than it gave the company to do the same thing against his will. It gave neither the right of severance and piecemeal performance without the consent of the other, and no consent is shown or claimed. Ch. 1) THE CONDUCT OF TRANSPORTATION. 49 The purchase of a full-rate, through ticket from Russellville to Nashville, if made by the plaintiff, entitled him, under the authority of Railroad Co. v. Turner, 100 Tenn. 214, 47 S. W. 223, to elect when he would begin his journey ; but it did not entitle him, under that or any other authority of which we are aware, to subdivide his journey at will, or, when started, to go otherwise than continuously from ini- tial point to ultimate destination. The law impHes the right of an election between times for embarkation from the very sale of such a ticket; and it likewise, for a similar reason, implies the duty of con- tinuous passage, from the very fact of its commencement. As the sale of such a ticket, nothing else being said, affords an inference that the purchaser may start when he pleases, so his starting, without an agreement to the contrary, affords an inference that he will go direct- ly to the end of his journey. The company must receive him upon its regular train whenever he sees fit to start, and, having started, he must make a continuous passage; no agreement to the contrary hav- ing been made in either instance. These rights and duties lie at the foundation of the contract, and are reciprocal. Only a few of the many authorities upon the subject will be cited. * =!< * It is due to say that we are not dealing in this case with a coupon ticket, in respect of which, as a whole, the rule is different; allowing, as it does, as many breaches in the journey, or as many stop-overs, as there are coupons. Of such a ticket, each coupon is said to stand as a separate ticket between its own initial and ultimate points ; and passage upon any particular coupon, when begun, is re- quired to continue to its end, unless otherwise agreed. The authori- ties upon the use of the coupon ticket illustrate and re-enforce the doctrine herein applied to the case in hand. * * * Reverse and remand. ° 6 Ace. Chenev v. B. & M. Co., 11 Mete. (Mass.) 121, 4.5 Am. Dec. 190 (1846) ; State V. Overton. 24 X. J. Law, 4.3.J, 61 Am. Dec. 671 (1854); Cleveland, etc.. R. Co. V. Bartram, 11 Ohio St. 457 (1860) ; Stone v. Chicago, etc., R. Co., 47 Iowa. 82, 29 Am. Rep. 4.58 (1877) ; Pa. R. Co. v. Parry, 55 N. J. Law, 551, 27 Atl. 914, 22 L. R. A. 251, 39 Am. St. Rep. 654 (1893). changing, en route, to faster train; Ash ton v. Lancashire, etc., Ry. Co., [1904] 2 K. B. 313; Bastable V. Metcalfe, [1906] 2 K. B. 288. A passenger who can get no seat may, it seems, leave the train at the next station without paying fare, but if he gets a seat at such station he is not entitled to ride further, except on paying fare from the starting point. Davis v. Kan. City, etc., Ry. Co.. .53 Mo. 317, 14 Am. Rep. 457 (1873). A passenger ejected for not paying fare may not resume his journey on paying fare for the rest of the way. Pennington v. Phil., etc., R. Co., 62 Md. 95 (1883). Compare Choctaw, O. & G. R. Co. v. Hill. 110 Tenn. 396, 75 S. W. 9(>3 (1903), where employe, ordered to leave train for disobej-ing orders, was held entitled to travel as passenger on paying fare for the rest of the way. And see cases collected in 28 L. R. A. 773, note ; Beale & Wyman, R. R. Rate Reg. §§ 671-680. Where a through fare is greater than the sum of the local fares, it has been held that a common carrier is not obliged to receive separate local fares in payment for through transportation. Gt. Xo. Rv. Co. v. Palmer, [1895] 1 Q. B. 862; London & N. W. Ry. Co. v. Hinchcliffe. [1903] 2 K. B. 32. Contra, Kan. City So. Ry. Co. v. Brooks, 84 Ark. 233, 105 S. W. 93 (1907). Green Cabr. — 4 50 THE carrier's UNDERTAKING. (Part 2 LASKER V. THIRD AVE. R. CO. (City Court of New York. General Term, 1899. 27 Misc. Rep. 824, 57 N. T. Supp. 395.) McCarthy, J. The plaintiff voluntarily took passage in one of the open cars of the defendant. Subsequently, because of a cold, and of the sudden change in the weather, the plaintiff left said first car, and boarded a closed car — one immediately in the rear of the same, and attached thereto. The conductor of the latter car then demanded from plaintiff his fare, which plaintiff refused, for the reason that he had already paid a fare to the conductor in charge of the first, or open, car. Because of this refusal he was ejected from the last car; hence this action. The demand of the conductor in charge of the closed car for plain- tiff's fare was just and reasonable. The plaintiff had voluntarily chosen to take passage in the open car. If, for reasons satisfactory to himself, and for his own interest, he subsequently wished to take passage in one of defendant's closed cars, he thus made himself a new passenger, and defendant has the right to require him to pay the usual fare. The refusal of plaintiff to pay said fare entitled de- fendant's servant to use necessary physical force to eject plaintiff from the car. In our judgment no unnecessary force or violence was used. Finding there was no error, judgment is affirmed, with costs.'^ / SECTION 3.— ROUTE CONSULATE OF THE SEA, c. 56: "Further the managing owner of the ship or vessel cannot and ought not to enter into a port without the assent of the merchant, and if he has entered when the merchant is afraid of something, all the damage which the merchant incurs the ship is bound to make good, and the ship's clerk ought to make an entry of it, whether or not the ship be moored to the shore. But nevertheless, if the managing owner of the ship is in want of any necessaries, he ought to tell the merchant that he cannot navigate the vessel because he requires new apparel or to repair or to careen his vessel, and thereupon the merchant ought to enter the port, pro- vided that the mate and mariners affirm their knowledge of the fact by their oaths. * * * " ® 7 Compare Birmingham, etc., Co. v. McDonough, post, p. 553. 8 The Consulate of the Sea "was probably a compilation made by private persons ; but whoever may have been the authors of it, and at whatever pre- cise point of time the Consolato may have been compiled, it is certain that it became the common law of all the commercial powers of Europe. The Ch. 1) THE CONDUCT OF TRANSPORTATION. 51 LAWS OF WISBY, art. LIU: "U a ship freighted for one port, enters another, the master, together with two or three of his chief mariners, ought to clear themselves upon oath, that it was by con- straint and necessity that they went out of their way. * * * " ® MOLLOY, DE JURE MARITIMO, bk. II, c. IV, § 10 (1676): "If the ship puts into any other port than what she was freighted to, the Master shall answer Damage to the Merchant ; but if forced in by Storm or by Enemy, or Pirates, he then must sail to the Port condi- tioned at his own Costs." marine laws of Italy, Spain. France, and England -were greatly affected by its influence; and it formed the basis of subsequent maritime ordinances. * * * It is undoubtedly the most authentic and venerable monument extant of the commercial usages of the Middle Ages, and especially among the peoples who were concerned in the various branches of the Mediterranean trade." 3 Kent, Commentaries. 10, 11. "It is not too bold a conjecture to suppose from the circumstance that explanations are for the most part given at the end of each chapter of the reasons for which 'the chapter was made.' or of the object principally kept in view when the chapter was drawn up, that the 'Customs of the Sea,' in the form in which they have come down to us in the Book of the Consulate of 1494, are a digest of the constitutions made from time to time on maritime matters by the Prud'hommes of the Sea at Barcelona. Their true character is avowed in the opening words of the first chapter: 'These are the good con- stitutions and good customs in matters of the sea which the wise men who have navigated the world have handed down to our ancestors, and which make up the book of the Science of Good Customs.' That there were writ- ten 'customs of the sea', which the Consuls of the Sea were authorized to observe at a period long antecedent to the Barcelonese ordinance of 14;i'3, may be inferred from certain passages in the Valencian regulations, which, as al- ready observed, were drawn up between A. D. 1336 and A. D. 1343. A provision is found in chapter xli of those regulations to this effect: 'The sentences of the consuls and the decisions of the judges shall be rendered in conformity with the written customs of the sea, according as it is declared in the different chapters of them, and in case where the customs of the sea shall declare nothing, according to the counsel of the prud'hommes of the sea.' And it had been already provided by a previous diploma of Peter III of Aragon, by which the consular jurisdiction was first established in Valencia in 1283, that the Consuls of the Sea should determine all contracts and dis- putes between 'men of the sea' and mariners, according to the custom of the sea, as had been customary at Barcelona." Sir Travers Twiss, Black Book of the Admiralty, vol. II, p. Ixv. 9 "The opinion that the Sea Laws, which form the first division of the so- called Maritime Law of Wisbuy, are the oldest Sea Laws of Wisbuy, and that the second and third divisions (articles 40 et seq.) of that collection of Sea Laws are of Flemish and Dutch origin respectively, which were introduced at Wisbuy and in other ports of the Baltic in the fourteenth century, whilst the first division had been adopted in the thirteenth century at Wisbuy itself in the common assembly of the associated Shipmasters and Merchants of Wis- buy and of Lubec, is far more reasonable than the popular opinion." Sir Travers Twiss, Black Book of the Admiralty, vol. IV, p. Ixxiv. "This general reception of the Wisbuy Sea Laws can only be attributed to the fact that they were regarded as bringing together in a very trustworthy form the ancient usages and customs of the merchants and mariners of the Northern and of the Western Seas. Id. p. Ixxxvi. 52 THE carrier's undertaking. (Part 2 LEDUC & CO. V. WARD. (Court of Appeal, 1888. 20 Q. B. D. 475.) Appeal by the defendants from the judgment of Denman, J., at the trial without a jury. The action was by indorsees of bill of lading against shipowners for nondelivery of goods, and the facts were in substance as follows : The plaintiffs had purchased goods from merchants abroad to be ship- ped from a foreign port. The payment of the price was to be made in exchange for shipping documents, and, the price of the goods hav- ing been paid, the bill of lading, signed by the defendants' captain upon the shipment of the goods, had been indorsed to the plaintiffs. The ship was a general ship. The bill of lading as far as material was as follows : "Shipped in apparent good order and condition on the steamship Austria, now lying in the port of Fiume, and bound for Dunkirk, with liberty to call at any ports in any order, and to deviate for the purpose of saving life or property; 3,123 bags of rape seed, being marked and numbered as per margin, and to be delivered in the like good order and condi- tion at the aforesaid port of Dunkirk unto order or assigns." Then followed the usual clause excepting perils of the sea, etc. The vessel, instead of proceeding direct to Dunkirk, sailed for Glas- gow and was lost, with her cargo, near Ailsa Craig, off the mouth of the Clyde, by perils of the sea.^*' * * * Gainsford Bruce, Q. C, and Lawson Walton (Finlay, Q. C, with them), for the defendants: * * * The liberty given to call at any ports in any order is against the notion that the terms of the bill of lading import a contract for a direct voyage. It would be very absurd that the ship should be able to go to Gibraltar and then back again to some port near Fiume, as she undoubtedly might under this clause, and yet could not go out of her way as far as Glasgow. * * * [Fry, L. J. On the face of the bill of lading no other enterprise is shown but a' voyage from Fiume to Dunkirk. The contention for the defendants must, it would appear, go the length of saying that the ship may go to any port in the world.] If it be necessary to go that length, that is the natural meaning of the words. C. Russell, Q. C, and Gorell Barnes, for the plaintiffs: * * * The clause giving liberty to call at any port in any order must be construed as subject to the limitation that they must be ports within 10 There was evidence that the shippers kuew when they shipped the cargo that the vessel was intended to proceed to Glasgow, but the court held that under the Bills of Lading Act such knowledge could not affect the obligation of the carrier toward indorsees of the bills of lading. So much of the state- ment of facts, of the argument of counsel, and of Lord Esher's opinion as re- lates to this point has been omitted. Concurring opinions of Fry and of Lopes, L. JJ., have also been omitted. Ch. 1) THE CONDUCT OF TRANSPORTATION. 53 the scope of the adventure on which the ship by the terms of the bill of lading is engaged. It cannot be that Glasgow, which, to and fro, would be somewhere about 1,200 miles out of the course from Fiume to Dunkirk, is within that liberty. Lord Esher, M. R. In this case the plaintiffs, the owners of goods shipped on board the defendants' ship, sue for nondelivery of the goods at Dunkirk in accordance with the terms of the bill of lading. The defense is that the delivery of the goods was prevented by perils of the sea. To that the plaintiffs reply that the goods were not lost by reason of any perils excepted by the bill of lading, because they were lost at a time when the defendants were committing a breach of their contract by deviating from the voyage provided for by the bill of lading. * * * If the counsel for the defendants was right in his argument that there is no contract for any particular voyage in the bill of lading, just conceive what a state of things, in a business point of view, would result. The object of the carriage of the goods from port to port is that they may be sold or otherwise dealt with at the place of destina- tion ; and the person who wants them at that place for sale or use there acts upon the assumption that they will arrive there at or about a certain time in the ordinary course of a voyage there from the port of shipment. If the argument for the defendants were correct, he could not tell at what time he could calculate on having them. The indorsee of a bill of lading could not tell when he was likely to receive the goods. Business could not be carried on upon those terms. Again, with regard to the insurance of goods, similar difficulties" would arise. How could the goods be insured, if it was not known for what voyage they were to be insured? To suppose that there is no contract for a particular voyage in the bill of lading seems to me to be to disregard the whole course of mercantile business. It is ob- viously a most important part of the contract of carriage by sea that the route by which the goods are to be brought should be determined ; and accordingly it seems to me to be provided for in the bill of lad- ing. The ordinary form of bill of lading states that the goods are shipped on such a ship lying in the port of shipment and bound for the port of destination, and if the ship is to go to other places between those ports the names of them are inserted. Those terms appear to me to describe a voyage, and, such being the description of the voyage, what is the true effect of the document with regard to the voyage so described? A bill of lading is a common mercantile document, which has been used for hundreds of years, and I think that business men and courts of law have always interpreted it in one way, namely, that, if the only voyage mentioned is from the port of shipment to the port of destina- tion, it must be a voyage on the ordinary track by sea of the voyage from the one place to the other. So here, if the description of the 54 THE carrier's undertaking. (Part 2 voyage had been merely from Fiume to Dunkirk, I think the contract would have been a voyage on the ordinary sea track of a voyage from Fiume to Dunkirk, and any departure from that track in the absence of necessity would be a deviation. Of course when I speak of the ordinary sea track I do not mean an exact line, for it would neces- sarily vary somewhat according to circumstances ; the ordinary track for sailing vessels would vary according to the wind ; the ordinary track for a steamer, again, might be different from that for a sailing vessel ; I mean the ordinary track of such a voyage according to a reasonable construction of the term. In the present case liberty is given to call at any ports in any order. It was argued that that clause gives liberty to call at any port in the world. Here, again, it is a question of the construction of a mercan- tile expression used in a mercantile document, and I think as such the term can have but one meaning, namely, that the ports, liberty to call at which is intended to be given, must be ports which are sub- stantially ports which will be passed on the named voyage. Of course such a term must entitle the vessel to go somewhat out of the ordinary track by sea of the named voyage, for going into the port of call in itself would involve that. To "call" at a port is a well-known sea term ; it means to call for the purposes of business, generally to take in or unload cargo, or to receive orders ; it must mean that the ves- sel may stop at the port of call for a time, or else the liberty to call would be idle. I believe the term has always been interpreted to mean that the ship may call at such ports as would naturally and usually be ports of call on the voyage named. If the stipulation were only that she might call at any ports, the invariable construction has been that she would only be entitled to call at such ports in their geograph- ical order; and therefore the words "in any order" are frequently added, but in any case it appears to me that the ports must be ports substantially on the course of the voyage. It follows that, when the defendants' ship went off the ordinary track of a voyage from Fiume to Dunkirk to a port not on the course of that voyage, such as Glasgow, there was a deviation, and she was then on a voyage different from that contracted for to which the ex- cepted perils clause did not apply; and therefore the shipowners are responsible for the loss of the goods. ^^ * * * 11 Ace. Gl.vnn v. Margetson. [1893] A. C. 351 (oranges shipped at Malaga for Liverpool "with liberty to proceed and stay at any port or ports in any rota- tion in the Mediterranean" damaged by delay caused by proceeding to a Med- iterranean port out of the course of a voyage to Liverpool). "On the trial he [plaintiff] produced written evidence of the contract to transport, to wit, the bill of lading. This contract, however, contained no lim- itation as to the route to be taken by the vessel. It was simply a contract that the barley was to be 'delivered at the port of Baltimore in good order, the dangers of the seas excepted.' This authorized the carrier to take either of several customary and usual routes. Such is the legal effect of the contract. Its effect was the same as if the provision had been inserted in the contract, Ch. 1) THE CONDUCT OF TRANSPORTATION. 55 PHELPS, JAMES & CO. v. HILL. (Court of Appeal. [1891] 1 Q. B, 605.) Action for failure to deliver according to the contract of carriage a quantity of tin plates shipped by plaintiffs on defendants' vessel at Swansea, to be transported to New York, collision, perils of the sea, and other perils mentioned in the bill of lading excepted. At a trial before a special jury it appeared that the vessel carried cargo for many other shippers, that in consequence of damage received in bad weather at sea the vessel put into Queenstown, that repairs to the vessel were necessary to enable her to continue her voyage, and that after temporary refitting at Queenstown the master, by orders from his owners, but without communication with the owners of cargo, sailed for Bristol for repairs, and that the vessel was sunk in collision shortly before reaching Bristol and the cargo damaged. Repairs might have been made at Swansea, which was on the way from Queenstown to Bristol, and sixty miles nearer than Bristol. The chief reason for going to Bristol was that the ship owners had a yard of their own there, in which the ship could be repaired more cheaply and quickly than anywhere else. The trial judge left to the jury the question whether the master exercised the discretion of a reasonable man in the interest of ship and cargo in going to Bristol instead of Swansea. The jury found that there was no deviation, and judg- ment was entered for defendants. Plaintiffs moved, on grounds which appear in the opinion, to set aside the verdict and judgment and to enter a judgment for them. LiNDLEY, L. J.^" The voyage being fixed by the contract of af- freightment, it is the duty of the master to proceed to the port of de- livery without delay, and without any unnecessary departure from the direct and usual course. But circumstances may arise which ren- der it necessary to depart from this usual course, and tempestuous weather, injuring the ship and rendering it necessary to put into that the carrier was at liberty to taler may be made, and will be justifiable, as, for instance, forwarding perishable freight by rail when a storm prevents a boat from pro- ceeding upon its voyage. But, where the goods can be properly cared for and held until the shipper can be communic-ated with, the carrier will not be jus- tified in selecting another route, without notice to him and instructions from him. * ♦ * It clearly apiiears in this case that the plaintiffs could have easily been consulted by letter or wire, and their instructions taken, when it was found that the route selected was closed at Evansville. and the shipment safely held in the meantime ; and, failing to do this, the defendant road must be held to be liable for any injury resulting upon the substituted route. It also clearly appears that the freight was not of such perishable nature as to necessitate tlie immediate transshipment, without notice to plaintiff, to an- other route, in order to prevent their loss." Wilkes, J., in Louisville & Nash- ville R. Co. V. Odil, 96 Tenn. 61. 3.3 S. W. 611, 54 Am. St. Rep. S20 (ISO*!). Ace. Fisher v. Boston & M. R. Co., 99 Me. 338, 59 Atl. 532, 68 L. R. A. 390, 105 Am. St. Rep. 2S3 (1904). A carrier is not justified in changing his route merely to avoid delay. Crosby v. Fitch. 12 Conn. 410, 31 Am. Dec. 745 (1838). channel obstructed by ice; Hand v. Baynes. 4 Whart. (Pa.) 204, 33 Am. Dec. 54 (1839), locks in canal out of order. Conversely, he may justify a delay, though it might have been avoided by change of route. Broadwell v. Butler, 6 McLean, 296, Fed. Cas. No. 1.910 (1854) waiting thirty days for high water in the Ohio river; Bennett v. Byram. 38 Miss. 20, 75 Am. Dec. 90 (1859), waiting six months for high water. Even though the bill of lading gives the carrier a right to forward by another route, available, but more expensive. Empire Transportation Co. v. Wallace. 68 Pa. 302, 8 Am. Rep. 178 (1871). And in case of disaster to a car- rying vessel, the carrier may detain the cargo for repairs to the vessel in- stead of transshipping It. The Strathdon (D. C.) 89 Fed. 374. 380 (1898). Transhipment. — "A ship departs from Bordeaux or elsewhere; it hapi)€ns sometimes that she is lost, and they save the most that they can of the wines and the other goods. The merchants and the master are in great dispute, and the merchants claim from the master to have their gomls. They may well have them, paying their freight for such part of the voj-age as the ship has made, if it pleases the master. And if the master wishes, he may proi)erly re- pair his ship, if she is in a state to be speedily repaired ; and if not, he may hire another ship to complete the voyage, and the master shall have his freight for as much of the cargo as has been saved in any manner. And this is the judgment in this case." The Charter of Oleron of the Judgments of the Sea. art. 4 (eleventh or twelfth century). "That the Rolls of Oleron were received as law in the maritime courts of England after 12 Edward III is clear from the language of a judgment given by the mayor and bailiffs of the city of Bristol, and certified by them to the Lord Chancellor. In this judgment the law and custom of Oleron (lex et consuetudo de Oleron) are recited as founding the obligation of the master of a ship to protect the cargo from tresjiass on the part of the crew, and sen- tence was given in accordance with that law in favor of the plaintiff." Sir Travers Twiss, Black Book of the Admiralty, vol. I, p. Ixii. "The Judgments of the Sea * * * have been accepted as a common maritime law in every country which borders on the Atlantic Ocean or on the North Sea, whilst the kings of Castile gave them the authority of law in Ch. 1) THE CONDUCT OF TRANSPORTATION. 59 SECTION 4.— EFFECT OF DEVIATION CONSULATE OF THE SEA, c. 165 : "If a merchant or mariner or any one else, who accepts a commission for a given voyage or to a known place, loses all that which is committed to his charge without any fault on his part, he is not bound to replace anything nor to com- pensate him who has entrusted him with the commission.^* But nev- ertheless, if the said commissioner shall carry the goods committed to his charge upon another voyage or to another place from that which was agreed upon with him who entrusted the commission to him, if the goods entrusted to him are lost, the commissioner is bound to make good everything to him who has entrusted him with the commission, since he has carried the goods to another place and upon another voy- age which had not been agreed upon. * * * " Chapter 166 : "If * * * an occasion for reprisals arises, or for an embargo of the authorities, or armed ships of the enemy come there, * * * the commissioners may arrange with the managing owner of the ship or vessel in which they are to go to another place where they have no fear of the circumstances above mentioned ; * * * provided it be to preserve the goods * * * and for no other reason, and this should be done without any fraud." Chapter 167 : * ■ * * "And accordingly our predecessors of old- en time saw and adjudged that managing owners of ships or vessels who * * * carried commissions from others, ought not to be in a worse condition than another commissioner, * * * Neverthe- less, if. there be in his ship goods of merchants, and there be no one in charge of them, and the managing owner of the ship has no com- mission respecting them, further than that he ought to deliver them to their ports in the Mediterranean, and the trading cities of the Baltic incor- porated their provisions into their own maritime law." Id. vol. II, p. xlvii. "On pent tres lescitimement attriluier. ainsi que Tout fait sir Travers Twiss et le professeur hollandaig Pols, la paternite de ces ju.sements de la mer aux juges de la mer d'Oleron, qu'on y vole des sentences rendues dans des proces i-^els ou des declarations sur le droit, fruit d'nne lona^ue exi>erience. et con- signees par ces hommes rompus aux affaires maritimes dans nn registre ou sur des roles pour en perpotuer la memoire." Desjardins, Introduction Historique a I'etude du Droit Commercial Maritime, p. 33. Consulate of the Sea, c. 4(5: "If a managing owner of a ship or vessel shall be in any place, and shall accept on freight goods of merchants to carry to another place, which place shall have been agreed upon between the said' managing owner and the merchants, he is under the necessity of convey- ing the goods to the place, to which he has agreed with and promised to the merchants to carry them, in his own ship. And if the managing owner of the ship shall put them on board of another ship or vessel without the consent or knowledge of the merchants, although tliat ship or vessel may be larger or bet- ter than his own, if the goods shall be lost or shall be spoilt, or he to whom the 14 Compare Woodlife's Case, post, p. 312. 60 THE carrier's UNDERTAKING. (Part 2 some person in the port where' he ought to discharge, if the conditions above said exist so that he dare not enter the port, the managing owner of the ship or vessel ought not to carry them afterwards to an- other port, since he has no commission to enable him to sell them, con- sequently he ought to restore them to those merchants who delivered them to him. And if the managing owner of the ship or vessel car- ries them to another port, and the goods are lost, the managing owner of the ship or vessel is bound to replace and make good the whole of them." DAVIS V. GARRETT. (Court of Common Pleas, Trinity Term, 1830. 6 Bing. 716.) The declaration stated that plaintiff at the special instance and re- quest of defendant delivered to defendant on board the vessel Safety, and defendant received, a certain quantity of lime to be carried upon said vessel from Bewly Cliff to Regent's Canal, the act of God, the king's enemies, fire and all and every other dangers and accidents of the seas, rivers and navigation excepted, for certain reasonable re- ward; that the vessel sailed on the intended voyage with the lime on board, and that it then became the duty of the defendant to carry said lime to Regent's Canal, the perils above mentioned excepted, by the direct, usual and customary way, course and passage, without any voluntary and unnecessary deviation or departure from or delay or hindrance in the same, but that defendant, though not prevented by any of the excepted matters, did not so carry the lime, but by John Town, his master and agent, without the knowledge and against the will of the plaintiff, voluntarily and unnecessarily deviated and depart- ed and navigated the vessel from and out of such usual and customary course, to wit to East Swade and to Whitstable Bay, and delayed the vessel for twenty four hours, and that by reason of such deviation and delay she was out of her course and was exposed to a great storm, and thereby wrecked and the lime destroyed to plaintiff's damage. At the trial before Tindal, C. J., it appeared that the master of the defendant's barge had deviated from the usual and customary course of the voyage mentioned in the declaration, without any justifiable cause; and that afterwards, and whilst such barge was out of her course, in consequence of violent and tempestuous weather, the sea communicated with the lime, which thereby became heated, and the barge caught fire ; and the master was compelled, for the preservation of himself and the crew, to run the barge on shore, where both the lime and the barge were entirely lost. goods belong shall sustain any loss or incur any expense, the managing owner of the ship is bound to make compensation for the goods which shall be lost, and all the interest which he to whom the goods belong may h.ave incurred,, and he shall be believed on his oath." Ch. 1) THE CONDUCT OF TRANSPORTATION. 61 A verdict having been found for the plaintiff, Taddy, Serjt., obtained a rule nisi for a new trial, or to arrest the judgment, on the ground, first, that the deviation by the master of the barge was not a cause of the loss of the lime sufficiently proximate to entitle the plaintiff to recover, inasmuch as the loss might have been occasioned by the same tempest if the barge had proceeded in her direct course ; and, secondly, that the declaration contained no alle- gation of any undertaking on the part of the defendant to carry the lime directly from Dewly Cliff to the Regent's Canal, an allegation which, it was contended on the authority of Max v. Roberts, 12 East, 89, was essential to the plaintiff's recovery. TiXDAL, C. J.'^ * * * As to the first point. * * * the ob- jection taken is that there is no natural or necessary connection be- tween the wrong of the master in taking the barge out of its proper course and the loss itself; for that the same loss might have been occasioned by the very same tempest, if the barge had proceeded in her direct course. But if this argument were to prevail, the deviation of the master, which is undoubtedly a ground of action against the owner, would never, or only under very peculiar circumstances, entitle the plain- tiff to recover. For if a ship is captured in the course of deviation, no one can be certain that she might not have been captured if in her proper course. And yet, in Parker v. James, 4 Campb. 112, where the ship was captured whilst in the act of deviation, no such ground of defense was even suggested. Or, again, if the ship strikes against a rock, or perishes by storm in the one course, no one can predicate that she might not equally have struck upon another rock, or met with the same or another storm if pursuing her right and ordinary voyage. The same answer might be attempted to an action against a defend- ant who had, by mistake, forwarded a parcel by the wrong convey- ance, and a loss had thereby ensued; and yet the defendant in that case would undoubtedly be liable. But we think the real answer to the objection is, that no wrong- doer can be allowed to apportion or qualify his own wrong ; and that as a loss has actually happened whilst his wrongful act was in oper- ation and force, and which is attributable to his wrongful act, he can- not set up as an answer to the action the bare possibility of a loss, if his wrongful act had never been done. It might admit of a different construction if he could show, not only that the same loss might have happened, but that it must have happened if the act complained of had not been done ; but there is no evidence to that extent in the pres- ent case. Upon the objection taken in arrest of judgment, * * * we can- not but think that the law does imply a duty in the owner of a vessel, 15 The statement has been shortened, and parts of the opinion omitted. 62 THE carrier's undertaking. (^Part 2 whether a general ship or hired for the special purpose of the voyage, to proceed without unnecessary deviation in the usual and customary course. We therefore think the rule should be discharged, and that judg- ment should be given for the plaintiff. Rule discharged.^® CONSULATE OF THE SEA, c. 49: "* * * If the said managing owner of a ship shall make the said agreement or promise [to tow another vessel] without the knowledge and assent of the mer- chants who shall be on board the ship or shall intend to put or shall have put goods on board, if any accident supervenes the merchants are not responsible for anything. On the contrary, if the said merchants sustain any damage * * * the said managing owner of the ship is bound to make full restitution, even if the ship shall have to be sold. * * *" 16 In Lilley v. Donbleday. 7 Q. B. D. 510 (1881). an action against a ware- houseman for loss by fire, Grove, J., said: "The defendant was entrusted with the goods for a particular purpose and to keep them in a particular place. He took them to another, and must be responsible for what took place there. The only exception I see to this general rule is where the destruction of the goods must take place as inevitably at one place as at the other. If a bailee elects to deal with the property entrusted to him in a way not authorized by the bailor, he takes upon himself the risks of so doing, except where the risk is independent of his acts and inherent in the property itself. That proposi- tion is fully supported by the case of Davis v. Garrett, which contains very little that is not applicable to this case." See, also, note in 26 L. R. A. 366 on liability of one who drives a hired horse beyond the place agreed. A mere deviation, though willful and without ex- cuse, does not constitute a conversion. So. Pac. Co. v. Booth (Tex. Civ. App.> 39 S. W. 585 (1807) ; and see an article by Professor G. L. Clark on The Test of Conversion, 21 Harv. Law llev. 408, 410. *A carrier guilty of unexcused departure from the agreed route or method of transportation is liable for loss, though from a cause excepted in the bill of lading. Merrick v. Webster, 3 Mich. 268 (1854), goods carried by steamer Instead of sailing vessel; Bazin v. S. S. Co., Fed. Cas. No. 1.1.52 (1857); Good- rich V. Thompson, 44 N. Y. 324 (1871), by another vessel than that named; Maghee v. Camden R. Co., 45 N. Y. 514, 6 Am. Rep. 124 (1871), by water in- stead of by rail ; The Delaware, post, p. 426. on deck instead of below ; Robin- son V. Merchants' Despatch, 45 Iowa, 470 (1877), breach of contract to carry without transfer to cars of another company: Chicago, etc., Co. v. Dunlap, 71 Kan. 67, 80 P. 34 (1905), goods inadvertently carried beyond destination, agreement as to value held unenforceable. But see Foster v. Gt. Western Ry. Co., [1904] 2 K. B. 306. In Joseph Thorley, Ltd., v. Orchis S. S. Co.. [1907] 1 K. B. 660, a deviation during the voyage was held to render inapplicable an exemption from liability for negligence in discharging at destination. In Internationale Guano en Superphosphaatwerken v. ;MacAndrew, [1909] 2 K. B. 360, deviation increased damage due to unfitness of the cargo for a long voyage. No recovery was permitted for so much of the damage, though it happened during deviation, as would have happened in the same way with- out deviation. Ch. 1) THE CONDUCT OF TRANSPORTATION. 63 CROCKER V. JACKSON. (District Court. D. Massachusetts, 1847. 1 Spr. 141, Fed. Cas. No. 3,398.) This was a libel, on behalf of the owners of the bark La Grange, against the respondent, a consignee of part of the cargo, to recover a contribution for damage sustained by the voluntary stranding of that vessel, near Provincetown. during a gale. The respondent was in- sured by the Merchants' Insurance Company, and the defense was made in their behalf. The defense principally relied upon was that La Grange had previously committed a deviation, in going out of her course, to speak, and then taking in tow, a vessel in distress. SpraguE. District Judge, ^^ in delivering his opinion, said, in sub- stance: Delay to save life is not a deviation; but delay merely to save property, is. * * * In this case, when the brig was seen in distress, it was the duty of the La Grange to run down to her, to ascertain whether the persons on board needed relief; and upon learning that they did, she was bound to take the necessary measures to afford it; and this constitutes no deviation. As the sea and wind were such, that the crew of the brig could not be transferred to the La Grange, and both vessels were fast drifting out of their course, the taking of the brig in tow was the prop- er mode of relief. The only serious question is, whether the towing was continued too long. It is urged in behalf of the respondents, that the object of the captain of the La Grange was pecuniary gain, by earning salvage. But the crew of the brig needed assistance, and it must be presumed that the master was also actuated by a desire to afford them relief. Now there being a double motive, to relieve distress and to save prop- erty, does not render the delay a deviation, nor impair the merit of the act. The law, so far from discouraging the union of these motives, enhances the amount of salvage compensation, where the saving of property is accompanied by relief to passengers or crew. But if this towing was continued after it had ceased to be necessary to relieve the distress of the crew, and merely to save property, then it was a deviation ; but I am not satisfied that it was so continued. * * * We should not look at the conduct of a master, in such cases, with a jealous scrutiny, nor give such a construction to doubtful acts, as would admonish him that, in order to be safe from judicial condemna- tion, he must harden his heart, and stint the measure of relief to dan- ger and distress. The humanity and morals of the seas require a more liberal doctrine. 17 The statement has been shortened, and parts of the opinion have been omitted. €4 THE carrier's undertakinq. (Part 2 Being of opinion that there was no deviation, I have no occasion to consider the question made at the bar, as to what would have been its effect. Decree for the hbelants, for $195.77, damages and costs.^^ READ V. SPAULDING. (Superior Court of City of New Yorli, 1859. 5 Bos. 395.) This was an action against defendant as a common carrier doing business under the name of Spaulding's Express Freight Line to re- cover for damage to goods injured while in course of transportation by an unprecedented flood. The material facts were agreed upon by the parties at the trial, and the court directed a verdict for plaintiff. Defendant excepted to the action of the court in directing a verdict, and to its refusal to nonsuit the plaintiff. The exceptions were argued at General Term. Woodruff, J.^^ * * * 'pj^g goods, in all consisting of eigh- ty-six cases, were delivered to the defendant on the 27th day of Jan- uary, 1857, to be carried and delivered to the plaintiff at Louisville. Eighty-one of these cases were carried and delivered within twelve ■or fourteen days after they were received in New York ; that is to say, they reached Louisville on the 8th or 10th of February. It was the duty of the defendant to deliver all the goods within a reasonable time, and according to the usual course of business over the route by which they were to be transported. There is nothing in this case to indicate that the eighty-one cases which were so delivered were forwarded with any extraordinary or unusual speed, but the proof is that from ten to fifteen days is the usual time of conveyance. The presumption is, therefore, that if the defendant had performed liis duty the five cases, which are the subject of controversy, would have reached Louisville at or about the same time with the others. But these five cases were brought from the depot of the Western Railroad to the depot of the Central Railroad, at Albany, on Saturday, the 7th of February, when, as before suggested, they ought to have been at or near their destination, Louisville, Kentucky. Whether this delay arose from the detention of the goods in New York, or at the depot of the Western Railroad, or at any intermediate point, is not stated. Nor is any explanation of the cause of delay given or attempt- ed; while it is agreed that freight cars run daily from New York to Albany on the road by which these goods were to leave New York. If any explanation of this delay could be given, it was the duty of the 18 See. also, Scaramanga v. Stamp, 5 C. P. D. 295 (1880). In that case Bramwell, L. J., said: "It is always justifiable to make away witli property in order to save life. Mouse's Case, 12 Rep. 03." And see post, p. 481, note. 19 The statement has been rewritten, and parts of the opinion have been omitted. Ch. 1) THE CONDUCT OF TRANSPORTATION. 65 defendant to give it. Enough was shown to cast the burden of proof upon him. He had undertaken to carry, and the delay was, prima fa- cie, not only unreasonable, but apparently the result of gross negli- gence and want of attention, either in not beginning the carriage in due time or in delaying the progress of the goods after the transpor- tation was begun. It is not for the defendant to require that the plain- tiffs should show the cause of the delay. The resirlt is that the defendant was grossly negligent in the per- formance of his duty ; this delay was a breach of his contract to carry and deliver within a reasonable time; and while so in fault, the goods in his charge were, in the night of Sunday, the 8th, or on the morning of the 9th of February, reached and injured by the extraordinary flood already mentioned. But the defendant insists that, if the defendant was in fault in re- spect of the delay which had occurred, he is, nevertheless, not liable for the damage complained of; that, in such case, though the carrier be liable for delay, he is only liable for the immediate consequences of delay : by which he is understood to claim that he is liable only for such damages as the plaintiffs sustained irrespective of the injury to the goods by being wet in the flood at Albany; and, therefore, his damages are to be ascertained by assuming, for the purposes of the assessment, that the goods arrived safely, though not until long after the time wben they should have been delivered. This claim rests upon the ground that the delay was not the proxi- mate cause of the injury. "Causa proxima non remota spectatur." The delay certainly did not cause the flood. But we think that the defendant cannot find protection in this view of his responsibility. His unexcused neglect of duty did expose the goods to the peril ; and when the defendant was found in actual fault, he lost the protection from liability by inevitable accident which the law extends to the car- rier in the due performance of his undertaking. From the moment his faulty negligence began, he became an insurer against the conse- quence which might result therefrom, whether ordinary or extraordi- nary. It is true that, in Morrison v. Davis, 20 Pa. 171, 57 Am. Dec. 695 [reported in the district court under the name of Morrison v. ]\IcFad- den, post, p. 353], where goods carried in a canal boat were injured by the wrecking of the boat caused by an extraordinary flood, it was held that the carriers were not rendered liable merely by the fact that, when the boat was started on its voyage, one of the horses attached to it was lame, and that, in consequence thereof, such delay occurred as pre- vented the boat from passing the place where the accident happened, beyond which place it would have been safe. In considering the ques- tion, the court liken the carrier to an insurer against loss by perils of the seas, who are said to be not liable for a loss immediately arising from another cause, although, by perils of the sea, the ship had sus- Green Cake.— 5 66 THE carriek's undertaking. (Part 2 tained an injury without which the loss would not have taken place. Possibly a question might be suggested whether, in that case, the mere fact that one of the horses was lame was enough to charge the defendants; but it must be conceded that, in the view taken by the court, the case is strikingly like the present. We are, nevertheless, constrained to say that, in so far as the principle of the decision tends to exonerate the present defendant, we cannot give it our assent. A common carrier, in order to claim exemption from hability for damage done to goods in his hands in course of transportation, though injured by what is deemed the act of God, must be without fault him- self. His act or neglect must not concur and contribute to the injury. If he departs from the line of duty and violates his contract, and while thus in fault, and in consequence of that fault, the goods are injured by the act of God, which would not otherwise have caused damage, he is not protected. The defendant was bound to deliver the goods in a sound condition. If prevented by the act of God, he is excused ; but if his own miscon- duct contributed to the injury by exposing the goods needlessly or im- properly to the peril, his excuse fails. All ordinary perils from even the act of God he was, even while engaged in the faithful performance of his duty, bound to foresee and guard against by the exercise of a care and diligence proportioned to the danger. He was not bound to anticipate and guard against extraordinary perils which human fore- sight would not anticipate ; but it was his duty to do nothing which should expose the goods to any perils which would not arise in the proper and diligent prosecution of the journey which he had under- taken. And if he, by needless delay, subjected the goods to damage, from whatever cause concurring or cooperating therein, he is liable. This we believe to be in accordance with sound policy, just in its operation, and sustained by the weight of authority. Thus, if a carrier by water deviates from his voyage and the ship and goods are lost, he is liable, although the loss was by a peril of the sea. He is not at liberty improperly to encounter mischief, even from such a cause. In principle, it can make no difference whether his de- viation is intentional or negligent; it is sufficient that he is in fault, and that subjects him to liability. So, where a carrier by land deviated from the direct and principal route, and the goods were lost by a cause which might, had he been without fault, have excused him on the score of inevitable accident, he was held liable because the loss happened in consequence of his own improper conduct; he had no right so to deviate. * * * The plaintiff should have judgment on the verdict. Ordered ac- cordingly.^" 2 Affirmed 30 N. Y. 630, 86 Am. Dec. 426 (1864). Delay in the prosecution of a voyage may be such that, like a deviation from tie course of the voyage, it discharges underwriters. "The single point before the court is whether there has not been what is Ch, 1) THE CONDUCT OF TRANSPORTATION, 67 SECTION 5.— SEAWORTHINESS. CONSULATE OF THE SEA, c. 23: If goods be damaged by rats, and there is no cat on board the ship, the managing owner of the ship ought to make compensation ; but it has not been declared in the case where a ship has had cats on board in the place where she was laden, and after she had sailed away the said cats have died, and the rats have damaged the goods before the ship has arrived at a place where they could procure cats; if the managing owner of the ship shall buy cats and put them on board as soon as they arrive at a place, where they can find them for sale or as a gift or can get them on board in any manner, he is not bound to make good the said losses for they have not happened through his default. THE CALEDONIA. (Supreme Court of the United States. 1895. 157 U. S. 124, 15 Sup. Ct. 537, 39 L. Ed. 644.) This was an appeal from a decree of the Circuit Court affirming a decree of the District Court against the steamship Caledonia in a suit in admiralty brought by a shipper of cattle to recover damages equivalent to a deviation, whetlier the risli has not been varied, no matter whether the rislc lias or has not been thereby increased." Lord Mansfield, in Hartley v. Bupgin, 1 Park. Ins. 513 (1781), quoted by Tindal, C. J., in Mount V. Larkins. 8 Bing. 108 (1831). "Unquestionably, an idle waste of time, after a vessel has completed the purposes for which she entered a port, is a deviation which discharges the underwriters." ^larshall, C. J., in Oliver v. Maryland Ins. Co., 7 Cranch, 487, 3 L. Ed. 414 (1813). "The assured has no right to substitute a different voyage for that which is insured, and can only recover for a loss sustained while the ship is prosecut- ing the voyage named "in the policy ; and if she has deviated prior to the loss, she is not then prosecuting the voyage for which she was insured. Whenever, therefore, she departs from the route, or delays in the prosecution of it, it is Incumbent on the assured to show that the departure was caused by neces- sity, or that the delay at a port named in the policy was reasonable luider the circumstances in order to accomplish the objects of the voyage." Endicott, J., in Amsinck v. American Ins. Co., 129 Mass. 185 (1880). "If a master shall weigh anchor, and stand out to his voyage after the time covenanted or agreed on for his departure, if any damage happens at sea after that time, he shall refund and make good all such misfortune." Molloy, De Jure Maritime, bk. II, e. 4. § 6. The following cases hold that willful delay, like deviation, renders a car- rier liable even for loss by act of God: Michaels v. N. Y. Cent. R. Co., 30 N. Y. 564, 86 Am. Dec. 415 (1864) ; Bibb Broom Corn Co. v. Atchison, etc., R. Co., 94 Minn. 269, 102 N. W. 709, 69 L. R. A. 509, 110 Am. St. Rep. 361 (1905); Green-Wheeler Shoe Co. v. Chicago, etc., R. Co., 130 Iowa, 126, 106 N. W. 498, 5 L. R. A. (N. S.) 882 (1906) hegligent delay; Alabama Gt. So. R. Co. V. Quarles, 40 South. 120, 145 Ala. 436, 5 L. R. A. (N. S.) 867, 117 Am. St. 68 THE carrier's undertaking. (Part 2 caused by the prolongation of the voyage due to the breaking of the vessel's shaft at sea. The Circuit Court found that libelant, at Boston, shipped cattle on board the Caledonia, employed as a common carrier, to be transported to Deptford, a voyage usually of about thirteen days. When nine days out, the propeller shaft broke, because it had been weakened by heavy seas on previous voyages. At the time of leaving Boston, it was in fact unfit for the voyage, and the vessel was unsea- worthy in consequence. No defect in the shaft was visible or could have been detected by usual and reasonable means if the shaft had been taken out and examined. No negligence of the carrier was proved. Because of the breaking of the shaft, the voyage was prolonged to twenty-five days, the cattle were put on short allowance of food and .landed in an emaciated condition. The libelant, as the carrier knew, shipped his cattle for the purpose of selling them on arrival. Because of the delay they sold for $7,850 less than they would otherwise have brought. Half of this loss was due to their shrinkage in weight; half to a fall in the price of cattle during the delay. The Circuit Court held the steamship liable for the entire loss be- cause of her unseaworthiness. Fuller, C. J.=^^ In The Edwin I. Morrison, 153 U. S. 199, 210, 14 Sup. Ct. 823, 38 L. Ed. G88, the language of Mr. Justice Gray, deliv- ering the opinion of the Circuit Court in the present case, was quoted Rep. 54 (190G); Ala. Ot. So. R. Co. v. Elliott 150 Ala. 381, 43 South. 738, 9 L. R. A. (N. S.) 12G4. 124 Am. St. Rep. 172 (1907) ; Wabash R. Co. v. Sharpe. 76 Neb. 424, 107 N. W. 7.58, 124 Am. St. Rep. 823 (1906). To the same effect are Cassilav v. Young, 4 B. Mon. (Ky.) 265. 39 Am. Dec. 505 (1843) : Wald v. Pittsburg, etc.. R. Co., 162 111. 545, 44 N. E. 8SS, 35 L. R. A. 356. 53 Am. St. Rep. 332 (1896) ; The Citta di Messina (D. C.) 169 Fed. 472 (1909). Contra: International, etc., R. Co. v. Bergman (Tex. Civ. App.) 64 S. W. 999 (1901); Gulf, etc., Rv. Co. v. Darbv, 28 Tex. Civ. App. 229, 67 S. W. 129 (1902); Hunt V. Mo., K. & T. Ry. Co. (Tex. Civ. App.) 74 S. W. 69 (1903) ; Herring v. Chesapeake & W. R. Co.. 101 Ya. 778. 45 S. E. 322 (1903) ; ^Sloffatt Com. Co. v. Union Pac. R. Co., 113 Mo. App. 544. 88 S. W. 117 (190.5) ; Empire State Cattle Co. T. Atchison, etc., R. Co. (C. C.) 135 Fed. 1.35 (1905); Rodgers v. Mo. Pac. Ry. Co., 75 Kan. 222, 88 Pac. 885, 10 L. R. A. (N. S.) 658. 121 Am. St. Rep. 416 (1907). See, also. Denny v. N. Y. Cent. R. Co.. 13 Gray (Mass.) 481, 74 Am. Dec. 645 (1859); Railroad Co. v. Reeves, 10 Wall. 176, 19 L. Ed. 909 (1869); Morrison v. Davis, post, p. 355, note. That willful delay, like deviation, invalidates exemptions in a bill of lading was held in Condict v. Grand Trunk R. Co., 54 N. Y. 500 (1873) ; Herusheim v. Newport News, etc., Co., 35 S. W. 1115, 18 Ky. Law Rep. 227 (1896) ; Louis- ville & N. R. Co. V. Gidley, 119 Ala. 523. 24 South. 753 (1898). Contra: Hoad- ley V. Northern Trans. Co., 115 Mass. 304, 15 Am. Rep. 106 (1874) ; Davis v. Central Vt. R. Co., 66 Vt. 290. 29 Atl. 313, 44 Am. St. Rep. 8.52 (1893). And see Reid V. Evansville R. Co., 10 Ind. App. 385. 35 N. E. 703, 53 Am. St. Rep. 391 (1893); Yazoo R. Co. v. Millsaps, 76 Miss. 85.5, 25 South. 672, 71 Am. St. Rep. 543 (1899) ; Extinguisher Co. v. Railroad, 137 N. C. 278, 49 S. E. 208 (1904). For discussions of the subject, see Hutchinson on Carriers (3d Ed.) §§ 297- 308; MeClain, C. J., in Green-Wheeler Shoe Co. v. Chicago, etc., R. Co., 130 Iowa. 123, 106 N. W. 498. 5 L. R. A. (N. S.) 882 (1900), cited supra ; Rodgers v. Mo. Pac. Ry. Co., cited supra. , 21 The statement of facts has been rewritten, and parts of the opinions •omitted. Ch. 1) THE CONDUCT OF TRANSPORTATION. 69 with approval, to this effect : "In every contract for the carriage of goods by sea, unless otherwise expressly stipulated, there is a war- ranty on the part of the shipowner that the ship is seaworthy at the time of beginning her voyage, and not merely that he does not know her to be unseaworthy, or that he has used his best efforts to make her seaworthy. The warranty is absolute that the ship is, or shall be, in fact seaworthy at that time, and does not depend on his knowledge or ignorance, his care or negligence." After renewed consideration of the subject, in the light of the able arguments presented at the bar, we see no reason to doubt the correct- ness of the rule thus enunciated. The proposition that the warranty of seaworthiness exists by impli- cation in all contracts for sea carriage we do not understand to be de- nied ; but it is insisted that the warranty is not absolute, and does not cover latent defects not ordinarily susceptible of detection. If this were so, the obligation resting on the shipowner would be, not that the ship should be fit, but that he had honestly done his best to make her so. We cannot concur in this view. In our opinion, the shipowner's undertaking is not merely that he will do and has done his best to make the ship fit, but that the ship is really fit to undergo the perils of the sea and other incidental risks to which she must be exposed in the course of the voyage ; and, this being so. that undertaking is not discharged because the want of fit- ness is the result of latent defects. The necessity of this conclusion is made obvious when we consider the settled rule in respect of insurance, for it is clear that the under- taking as to seaworthiness of the shipowner to the shipper is coexten- sive with that of the shipper to his insurer. That rule is thus given by Parsons (1 Mar. Ins. 367) : "Every per- son who proposes to any insurers to insure his ship against sea perils, during a certain voyage, impliedly warrants that his ship is, in every respect, in a suitable condition to proceed and continue on that voyage, and to encounter all common perils and dangers with safety. * * * This warranty is strictly a condition precedent to the obligation of in- surance; if it be not performed, the policy does not attach; and, if this condition be broken at the inception of the risk, in any way what- ever and from any cause whatever, there is no contract of insurance, the poHcv being wholly void." In Kopitoff V. Wilson, 1 Q. B. D. 3:7, 379. 381, although, as there was no necessity to consider the law as to latent defects, whether such defects would constitute an exception cannot be said to have been pass- ed on, the general rule was laid down as we have stated it, and the ex- istence of the warranty in question on the part of a shipowner was asserted with reference to his character as such, and not as existing only in those cases in which he is also acting as a carrier. That was an action in which the plaintiff sought to recover damages for the loss of a large number of weighty iron armor plates and bolts, one of the 70 THE carrier's UNDERTAKING. (Part 2 plates having broken loose and gone through the side of the ship, which, in consequence, went down in deep water and was totally lost with all her cargo. The case was tried before Blackburn, J., who told the jury as matter of law that the shipowner warranted the fitness of his ship when she sailed, and not merely that he had honestly and in good faith endeavored to make her fit, and left the following questions to the jury: "Was the vessel at the time of her sailing in a state, as regards the stowing and receiving of these plates, reasonably fit to en- counter the ordinary perils that might be expected on a voyage at that season from Hull to Cronstadt? Second. If she was not in a fit state, was the loss that happened caused by that unfitness?" The rule for new trial was discharged in view of the warranty by implication that the ship was in a condition to perform the voyage then about to be undertaken, and Field, J., among other things, said: "It appears to us, also, that there are good grounds in reason and common sense for holding such to be the law. It is well and firmly established that in every marine policy the assured comes under an implied war- ranty of seaworthiness to his assurer, and, if we were to hold that he has not the benefit of a similar implication in a contract which he makes with a shipowner for the carriage of his goods, the consequence would be that he would lose that complete indemnity against risk and loss which it is the object and purpose to give him by the two con- tracts taken together. Holding as we now do, the result is that the merchant, by his contract with the shipowner, having become entitled to have a ship to carry his goods warranted fit for that purpose, and to meet and struggle against the perils of the sea, is, by his contract of assurance, protected against the damage arising from such perils act- ing upon a seaworthy ship." This was the view expressed by Mr. Justice Brown, then District Judge, in The Eugene Vesta (D. C.) 28 Fed. 762, T63, in which he said : "There can be no doubt that there is an implied warranty on the part of the carrier that his vessel shall be seaworthy, not only when she begins to take cargo on board, but when she breaks ground for the voyage. The theory of the law is that the implied warranty of sea- worthiness shall protect the owner of the cargo until his policy of in- surance commences to run ; and, as it is well settled that the risk under the policy attaches only from the time the vessel breaks ground, this is fixed as the point up to which the warranty of seaworthiness extends." And the case of Cohn v. Davidson, 2 Q. B. D. 455, 461, was cited, where it appeared that the ship was not in fact seaworthy at the time she set sail, but that as she was found to be seaworthy at the time she com- menced to take cargo, she must have received the damage in the course of loading; and Field, J., observed that "no degree of seaworthiness for the voyage at any time anterior to the commencement of the risk will be of any avail to the assured, unless that seaworthiness existed at the time of sailing from the port of loading. As, therefore, the mer- chant in a case like the present would not be entitled to recover against Ch. 1) THE CONDUCT OF TRANSPORTATION. 71 his underwriter by reason of the breach of warranty in saiHng in an unsea worthy ship, it would follow that, if the warranty to be implied on the part of the shipowner is to be exhausted by his having the ship seaworthy at an anterior period, the merchant would lose that complete indemnity, by means of the two contracts taken together, which it is the universal habit and practice of mercantile men to endeavor to se- cure." 22 * * * It is urged that doubt is thrown upon the doctrine by the reasoning in Readhead v. Railroad Co., L. R. 4 Q. B. 379, L. R. 2 Q. B. 412. There a passenger sought to charge a common carrier for an injury occasioned by the breaking of an axle by reason of a hidden flaw ; and the court of exchequer chamber held that a contract made by a gen- eral carrier of passengers for hire with a passenger is to take due care (including in that term the use of skill and foresight) to carry the passenger safely, and is not a warranty that the carriage in which he travels shall be free from all defects likely to cause peril, although those defects were such that no skill, care, or foresight could have de- tected their existence. But the court was careful to point out the broad distinction between the liabilities of common carriers of goods and of passengers, and in the case at bar the shipowner was not only liable as such, but as a common carrier, and subject to the responsibil- ities of that relation. That case was decided in 18G9, and those of The Glenfruin [10 Prob. Div. 103] and The Laertes [13 Prob. Div. 187] in 1885 and 1887 ; yet the latter rulings seem to have been accepted without ques- tion, and were certainly unaffected by any attempt to apply a rule in respect of roadworthiness in the carriage of passengers by a railroad to the warranty of seaworthiness in the carriage of goods by a ship. In our judgment, the circuit court rightly held that the warranty was absolute ; that the Caledonia was unseaworthy when she left port ; and that that was the cause of the damage to libelant's cattle.^* * * * Decree affirmed. Brown, J., with whom concurred Harlan and Brewer, JJ. (dis- senting). * * * Conceding, for the purposes of this case, that under the stringent rule laid down by this court in Richelieu & O. Nav. Co. V. Boston Marine Ins. Co., 136 U. S. 408, 428, 10 Sup. Ct. 934, 34 L. Ed. 398, and The Edwin I. Morrison, 153 U. S. 199, 14 Sup. Ct. 823, 38 L. Ed. 688, the carrier is bound to respond for any loss of or direct damage to goods in consequence of a breach of his implied warranty of seaworthiness, whether such unseaworthiness were known or unknown, discoverable or undiscoverable, it does not necessarily follow that he is subject to the same measure of liability 2 2 The learned judge here reviewed other authorities. 23 The rest of the opinion deals with the provisions of the bill of lading, which are construed as not intended to affect liability fer unseaworthiness, and with the question of damages. 72 THE carrier's undertaking. (Part 2 for damages occasioned by mere delay in making the voyage within the usual time. All the cases cited in the opinion of the court are those wherein either the ship or the cargo has suffered loss or direct damage by rea- son of her unseaworthiness at the commencement of the voyage. Both in this court and in the court below the case is treated as one involv- ing the liability of the carrier as an insurer of the goods in question. The authorities, however, make a clear distinction between the loss of or direct damage to goods on account of unseaworthiness and the con- sequences of mere delay. In the one case the contract is to deliver the goods at all events, the acts of God and the perils of the sea alone ex- cepted. In the other, it is to use all reasonable exertions to carry the goods to the port of destination within the usual time. * * * As it is admitted in this case that the delay was occasioned by a de- fect in the ship, which could not have been discovered by the ordinary methods of inspection, it seems to me clear that the carrier should not be held responsible. If it be said that the damages in this case were the direct consequences of the breach of warranty of seaworthiness, the reply is that for such damages the ship is not responsible, provided her owner has used due diligence to make her seaworthy, although, if the goods had been lost or destroyed, he would have been liable as insurer.^* * * * 2 4 An insured cargo owner is not completely protected by ttie warranty of seawortliiness. for unseaworthiness vitiates a policy of insurance, though it has no connection with the loss. London Assurance v. Companhia de Moagens, 167 U. S. 149, 1G7, 17 Sup. Ct. 785, 42 L. Ed. 113 (1807). But it renders the carrier liable only for a loss to which it contributes as a cause. Hart v. Allen, 2 Watts (Pa.) 114 (1833); The Planter, 2 Woods, 490, Fed. Cas, No. 11,207a (1874). There is no warranty of seaworthiness in the maritime carriage of passen- gers. The Nederland, 7 Fed. 926 (1881) ; nor does a carrier of passengers or of goods warrant the fitness of vehicles for carriage by land. See Readhead V. Midland Ry. Co.. L. R. 4 Q. B. 379, 383 (1869) ; Ingalls v. Bills, 9 Mete. (Mass.) 1, 43 Am. Dec. 346 (1845). The warranty of seaworthiness exists, though the ship is a private carrier. The Planter, 2 Woods, 490, Fed. Cas. No. 11,207a (1874). It extends to equip- ment. A vessel may be unseaworthy for lack of a comjtetent crow. The Giles Loring (D. C.) 48 Fed. 463 (1890). It is not confined to the fitness of the ves- sel to make the voyage in safety to herself. She is unseaworthy, if her con- dition is likely to damage her cargo. Thus a vessel carrying meat may be unseaworthy because of defect in her refrigerating apparatus. The South- wark, 191 U. S. 1, 24 Sup. Ct. 1, 48 L. Ed. 65 (1903). But it seems that the warranty is not of absolute fitness, and that a vessel is seaworthy, when com- petent persons who knew her condition would, according to existing knowl- edge and usages, deem her fit for the voyage, although subsequent experience would recommend additional precautions. The Titan ia (D. C.) 19 Fed. 101 (1883). Ch. 1) THE CONDUCT OF TRANSPORTATION. 73^ SECTION 6.— CARE OF GOODS AND PASSENGERS TABLE OF AAIALFI, art. 44: The master of a ship is bound, whenever he loses anything out of the ship, * =■' * to run and ex- ert himself to the utmost of his power to recover the whole of that which he has lost. CONSULATE OF THE SEA, c. 16: If you wish to know what are the duties of the managing owner of a ship or vessel towards the merchants you may learn it here. The managing owner of a ship is bound to protect and guard the merchants and the passengers -^ and every person who sails in the ship, equally whether he be of high or low degree, and to assist him to the utmost of his power against all men, and to defend him against corsairs and all persons who would do him harm. Besides the managing owner of the ship is bound to keep from harm all his goods and effects, and to protect and guard them as above said. And he ought to make the ship's mate and the officers of the forecastle and the part owners and the mariners and all those who receive wages from the ship swear that they will help to save and guard the merchants and their effects and the eff'ects of all on board the ship to the utmost of their power ; still further that they will not disclose the secrets of any one, nor provoke a dispute, nor commit a theft, nor make a quarrel against any of the above-mentioned persons ; and further that they will not take ashore nor put on board anything by night or by day, which the ship's mate or the man of the watch does not know of. NOTARA V. HENDERSON. (Court of Exchequer Chamber, 1872. L. R. 7 Q. B. 22.".) WiLLES, J.-^ This is an action by the shippers of beans on board a steamship called the Trojan, for a voyage from Alexandria to Glas- gow, against the shipowners, for an alleged neglect of the master to take reasonable care of the beans by drying them at Liverpool, into which port the vessel was driven for repairs, by an accident of the sea, from the direct and proximate effect of which the beans were wetted, and from the remote effects of which, for want of drying, they were further seriously damaged. * * * The shippers do not claim in 2 5 "The term 'passenger' includes all who ought to pay freight for their persons apart from their merchandise." Consulate of the Sea, c. 1. 2 6 Parts of the opinion are omitted. 74 THE carrier's undertaking. (Part 2 respect of the damage necessarily caused by the colHsion and its un- avoidable results, but only for the estimated aggravation of that dam- age by reason of nothing having been done in the way of drying to arrest or mitigate decomposition, and for that amount (£666 Is. od.) they obtained judgment in the Court of Queen's Bench. Upon that juflgment the shipowners have assigned error, alleging that they were entitled to retain and take on the beans in their wet state, and were not bound to do anything to check the damage occa- sioned by the collision. * * * That a duty to take care of the goods generally exists cannot be doubted; and the question raised is, whether it extends to incurring expense and trouble in preserving the cargo from destruction or seri- ous deterioration from the consequences of sea accident, for which originally the shipowners were not liable, by unshipping and drying it, where that is a reasonable and ordinary course to take, and would cer- tainly have been adopted by the shippers if the whole adventure had been under their control and at their risk. It is remarkable that, upon a question so familiar to persons conver- sant with maritime affairs, and which has so constantly to be consid- ered from another point of view in settling claims upon policies of in- surance, the reported authorities in this country, so far as regards the mutual rights and liabilities of shipper and shipowner, should be so rare. The only case in which it was much discussed is that of Tron- son V. Dent, 8 Moo. P. C. 419. [The learned judge then considered that case.] * * * The existence of such duty to take active measures for the preserva- tion of the cargo from loss or deterioration in case of accidents is, however, distinctly recognized in the maritime law in one important particular — wherein it follows the civil law, which, though it be not recognized as jus commune, either here or abroad, in mercantile or maritime affairs (see Balcasseroni, Leggi del Cambio, 31), has been the source of many valuable rules — namely, that the master may incur expense for the preservation of the cargo, and may charge such ex- pense against the owner of the cargo in the form of particular aver- age.^^ This maritime right is, in one point of view, analogous to that of salvage, and it may be urged that the services in respect of which it is rendered should, as in the case of salvage, be looked upon as op- tional and not obligatory. There is, however, this marked distinction : That the master, as representing the shipowner, has the charge of the goods under contract for the joint benefit of the shipowner and ship- per, and falls within the class of persons who are under obligation to take care of and preserve the goods as bailees. (Pothier, Obligations, art. 142, and NantisSement, art. 29 et seq., and as to extraordinary expenses, articles 60, 61 ; and also under the special head of care im- posed upon masters, Louages Maritimes, Charte-partie, art. 31.) This 2 7 See note to Cargo ex Argos, post, p. 311, Ch. 1) THE CONDUCT OF TRANSPORTATION. 75 obligation on the part of the master has been commonly recognized, both in respect of preserving goods on board in a state of safety by pumping, ventilation, and other proper means, and of saving goods which by accident have been exposed to danger. Thus, even in case of wreck, it is laid down, in a work on sea laws, approved by Lord Stowell (The Neptune, 1 Hagg. Adm., at page 232), that the master "ought to preserve the most valuable goods first, and by attention and presence of mind endeavor to lessen the evil; and save, or help to save, as much as possible." Jacobsen, book 2, c. I, p. 112. * * * There are unquestionably cases in which the exercise of such a duty would be incumbent upon the master, as representing the owners of the ship and for their interest. As, for instance, in the case of a per- ishable cargo so damaged by salt water that it could not, in its exist- ing state, be taken forward in specie to the port of discharge, so as to earn the freight, but which could, at an expense considerably less than the freight, be dried and carried on. In such a case, to earn the freight, it might be for the interest of the owner of the ship to save the cargo by drying. To sell it, or abandon it, would give no right to freight pro rata against the owner of the cargo,-'* nor any right to recover against the underwriter upon freight. Mordy v. Jones, 4 B, & C. 394, recognized in Philpott v. Swan, 11 C. B. (N. S.) at page 9g]^ * * * In such a case, if the process were also for the benefit of the owner of the cargo, the expenses would have fallen, according to the ordinary practice, upon the cargo as particular average. It is clear, therefore, that there are cases in which it is the duty of the master to save and dry the cargo, even as between him and his owner, though the expense of his performing that duty fall upon the cargo saved. Can it be that this duty of taking care of the cargo by active measures, if necessary, at the expense of the cargo, is owing only to the shipowner, or that it is other than a duty to take reasonable care of the cargo, both in its sound state and in arresting the damage to which it has become liable by accidents of the sea, for the benefit of all who are concerned in the adventure? In the result it appears to us that the duty of the master, in this re- spect, is not, like the authority to tranship, a power for the benefit of the shipowner only to secure his freight (De Cuadra v. Swan, 16 C. B. [N. S.] 772), but a duty imposed upon the master, as representing the shipowner, to take reasonable care of the goods intrusted to him, not merely in doing what is necessary to preserve them on board the ship during the ordinary incidents of the voyage, but also in taking reason- able measures to check and arrest their loss, destruction, or deteriora- tion, by reason of accidents, for the necessary efifects of which there is, by reason of the exception in the bill of lading, no original liability. 2 8 For the right to freight on goods not carried to destination, see post, p. 28S, note. 76 THE carrier's undertaking. (Part 2 The exception in the bill of lading was relied upon in this court as completely exonerating the shipowner; but it is now thoroughly set- tled that it only exempts him from the absolute liability of a common carrier, and not from the consequences of the want of reasonable skill, diligence, and care, which want is popularly described as "gross neg- ligence." * * * For these reasons we think the shipowners are answerable for the conduct of the master, in point of law, if, in point of fact, he was guilty of a want of reasonable care of the goods in not drying them at Liverpool. This raises, in the end, the question of fact, whether there was a breach of the duty thus affirmed, a question which, though properly one for a jury, we are, under the power given in the special case to draw inferences of fact, and the thirty-second section of the Common Law Procedure Act, 1854, bound to determine. It is obvious that the proper answer must depend upon the circumstances of each particular case, and that the question, whether active special measures ought to have been taken to preserve the cargo from growing damage by acci- dent, is not determined simply by showing damage done and suggest- ing measures which might have been taken to prevent it. A fair al- lowance ought to be made for the difficulties in which the master may be involved. The performance of such a duty, whether it be for the joint benefit of the shipowner and the shipper, or for the benefit of the shipper only, could not be excused by reason of insignificant delay not amounting to deviation ; and there are many cases of reasonable delay in ports of call, for purposes connected with the voyage though not necessary for its completion, which do not amount to deviation. It could not be insisted upon if a deviation were involved. The place,, the season, the extent of the deterioration, the opportunity and means at hand, the interests of other persons concerned in the adventure, whom it might be unfair to delay for the sake of the part of the cargo in peril; in short, all circumstances afifecting risk, trouble, delay, and inconvenience, must be taken into account. Nor ought it to be for- gotten that the master is to exercise a discretionary power, and that his acts are not to be censured because of an unfortunate result, un- less it can be affirmatively made out that he has been guilty of a breach of duty. * * * The facts stated are all in favor of the conclusion that the beans might have been dried, during an insignificant delay, at a moderate expense, which there would have been no difficulty in providing from or upon the credit of the shippers ; and no circumstance is stated to show any special risk, trouble, inconvenience, or other objection. The master thought proper, as he was entitled to do, to reject the offer of the shippers to take the beans out of his hands upon terms not unrea- sonable, and insisted, as he was entitled to do, upon keeping them in pledge for the future freight ; and having done so, he thought proper to reship and replace a large part of them and to put to sea with. •Ch. 1) THE CONDUCT OF TRANSPORTATION. 77 them in a state in which no prudent or reasonable man would have shipped or put to sea with them, taking the risk of their arriving at Glasgow just in the state of beans, so as to carry full freight for the shipowners, but largely deteriorated by the fermentation during the transit. We thus agree with the court below, that the duty exists in law, and that, under the circumstances, the breach of duty is sufficiently made out in fact, and that the defendants, as shipowners, are liable in damages. The judgment of the Court of Queen's Bench must therefore be •affirmed. Judgment affirmed.-^ CRAKER V. CHICAGO & N. W. RY. CO. (Supreme Court of Wisconsin, 1875. 36 Wis. 657, 17 Am. Rep. 501.) Appeal from the circuit court for Sauk county. Action for insulting, violent and abusive acts alleged to have been •done to the plaintifif by the conductor of one of defendant's trains while plaintiff was a passenger on such train. Answer, a general de- nial. * * * The court refused a nonsuit, and instructed the jury, in substance, that if plaintiff, whilst a passenger as above stated, was abused, in- sulted or ill-treated by the conductor of the train, defendant was li- able to her for such injury as might be found from the evidence to have been inflicted. * * ^ Defendant requested the court to in- struct the jury, that upon the evidence plaintiff was not entitled to recover, "the acts of the conductor complained of not having been 20 See. also. Sfeamlmnt Lvnx v. K'wg. 12 Mo. 272. 49 Am. Dec. 135 (1848); Chonteaux v. Leech, 18 Pa. 224, 57 Am. Dec. G02 (1852), post, pp. 128, note, 311 note. "Now here it appears that the waggoner was informed more than once of the leakage, after which notice it was a duty he owed to his employers to have the leak examined and stopped at one of the stages where he halted. That beinir so, the carrier became clearly liable on this ground, independently of the otiier point in the case, and therefore I cannot consent to disturb- ing the verdict." Lord Ellenborough. in Beck v. Evans, IG East. 244 (1812). It is a carrier's dutv to break packages when that is necessary for saving the goods. Bird v. Cromwell. 1 :Mo. 59. 13 Am. Dec. 470 (1821). It mav become his duty to sell the goods. " * * * When a cargo on freight is so much injured that, though capable of being carried to the port of destination and there landed, yet. from its present state, it will endanger the safety as well of the ship as of the cargo, or it will become utterly worthless on arrival at the port of destination, it is the duty of the master, exercising a sound discretion for the benefit of all concerned, and especially of the .shippers of the cargo, to land and sell the .^ame at the place where the necessity arises, whether it be the original port of the shipment to which the ship returns, or anv intermediate port at which the ship arrives in the course of the voyage. It would be contrary to common sense and common justice for him to sacri- fice the cargo for the benefit of another party in interest, or to elect the party upon whom the ruin, caused by a common calamity, should fall." Story. J , In Jordan v. Warren Ins. Co., 1 Story, 342, Fed. Cas. No. 7.524 (1840). Ace. ■Cockburn, C. J., in Notara v. Henderson, L. R. 5 Q. B. 346 (1870). 78 THE carrier's undertaking. (Part 2 committed within the scope of his employment or in the performance of any actual or supposed duty"; but the instruction was refused. Plaintiff had a verdict for $1,000 damages; a new trial was de- nied; and defendant appealed from a judgment on the verdict. RvAX, C. J.^° We cannot help thinking that there has been some useless subtlety in the books in the application of the rule respondeat superior, and some unnecessary confusion in the liability of princi- pals for willful and malicious acts of agents. * * * Jn spite of all the learned subtleties of so many cases, the true distinction ought to rest, it appears to us, on the condition whether or not the act of the servant be in the course of his employment, as is virtually recog- nized in Ellis V. Turner (1800) 8 T. R. 531. But we need not pursue the subject. For, however that may be in general, there can be no doubt of it in those employments in which the agent performs a duty of the principal to third persons, as be- tween such third persons and the principal. Because the principal is responsible for the duty, and if he delegate it to an agent, and the agent fail to perform it, it is immaterial whether the failure be acci- dental or willful, in the negligence or in the malice of the agent; the contract of the principal is equally broken in the negligent disregard, or in the malicious violation, of the duty by the agent. * * * The case of Weed v. P. R. Co. (1858) 17 N. Y. 362, 72 Am. Dec. 474, will be found to be a clear and well-reasoned case upon the sub- ject. It was there held that it was no defense to an action against a railroad corporation, for its failure to transport a passenger with proper dispatch, that the delay was the willful act of the conductor in charge of the train. The rule established by that case, as we think with much reason, is that, where the misconduct of the agent causes a breach of the obligation or contract of the principal, there the prin- cipal will be liable in an action, whether such misconduct be willful or malicious, or merely negligent. * * * In Bass v. Railway Co. (1874) 36 Wis. 450, 17 Am. Rep. 495. we had occasion also to consider somewhat the nature of the obligations of railroad companies to their passengers under the contract of car- riage; the "careful transportation" of Railroad Co. v. Finney [10 Wis. 388]. On the authority of such jurists as Story, J., and Shaw, C. J., we likened them to those of innkeepers. And, speaking of female passengers, we said: "To such, the protection which is the natural instinct of manhood towards their sex is specially due by common carriers." In Day v. Owen, 5 Mich. 520, 72 Am. Dec. 62, the du- ties of common carriers are said to "include everything calculated to render the transportation most comfortable and least annoying to passengers." In Nieto v. Clark, 1 Chff. 145, Fed. Cas. No. '10,262, the court says: "In respect to female passengers, the contract pro- ceeds yet further, and includes an implied stipulation that they shall 3 Parts of the statement of facts and of the opinion are omitted. Ch. 1) THE CONDUCT OF TRANSPORTATION. 79 be protected against obscene conduct, lascivious behavior, and every immodest and libidinous approach." Long before, Story, J., had used this comprehensive and beautiful language, worthy of him as jurist and gentleman, in Chamberlain v. Chandler, 3 Alason, 242, Fed. Cas. No. 2,575: "It is a stipulation, not for toleration merely, but for respectful treatment, for that de- cency of demeanor which constitutes the charm of social life, for that attention which mitigates evils without reluctance, and that prompti- tude which administers aid to distress. In respect to females, it pro- ceeds yet farther; it includes an implied stipulation against general obscenity, that immodesty of approach which borders on lascivious- ness, and against that wanton disregard of the feelings which aggra- vates every evil." These things were said, indeed, of passage by water, but they apply equally to passage by railroad. Commonwealth V. Power, 7 Mete. (Mass.) 596, 41 Am. Dec. 465. These were among the duties of the appellant to the respondent, when she went as passenger on its train ; duties which concern public welfare. These were among the duties which the appellant appointed the conductor to perform for it, to the respondent. If another person, officer or passenger or stranger, had attempted the indecent assault which the conductor made upon the respondent, it would have been the duty of the appellant, and of the conductor for the appellant, to pro- tect her. If a person, known by his evil habits and character as likely to attempt such an assault upon the respondent, had been upon the train, it would have been the duty of the appellant, and of the conduc- tor for the appellant, to the respondent, to protect her against the like- lihood. Stephen v. Smith, 29 Vt. 160 ; Railroad Co. v. Hinds, 53 Pa. 512, 91 Am. Dec. 224; Commonwealth v. Power, supra; Xieto v. Clark, supra ; and other cases cited in Bass v. Railway Co., supra. We do not understand it to be denied that if such an assault on the respondent had been attempted by a stranger, and the conductor had neglected to protect her, the appellant would have been liable. But it is denied that the act of the conductor in maliciously doing himself what it was his duty, for the appellant to the respondent, to prevent others from doing, makes the appellant liable. It is contended that, though the principal would be liable for the negligent failure of the agent to fulfill the principal's contract, the principal is not liable for the malicious breach by the agent, of the contract which he was ap- pointed to perform for the principal: as we understand it, that if one hire out his dog to guard sheep against wolves, and the dog sleep while a wolf makes away with a sheep, the owner is liable; but if the dog play wolf and devour the sheep himself, the owner is not liable. The bare statement of the proposition seems a reductio ad absurdum. The radical difficulty in the argument is, that it limits the contract. The carrier's contract is to protect the passenger against all the world; the appellant's construction is, that it was to protect the re- spondent against all the world except the conductor, whom it appoint- 80 THE carrier's UNDERTAKING. (Part 2 €d to protect her: reserving to the shepherd's dog a right to worry the sheep. No subtleties in the books could lead us to sanction so vicious an absurdity. * * * It is enough to say that the appel- lant's contract of careful carriage with the respondent was not kept, was tortiously violated, by the officer appointed by the appellant to keep it. * * * We cannot think that there is a question of the respondent's right to recover against the appellant, for a tort which was a breach of the contract of carriage. We might well rest our decision on principle. But we also think that it is abundantly sanctioned by authority. [Cit- ing cases.] There are cases, even of recent date, which hold the other way. But we think that the great weight of authority and the ten- dency of decision sanction our position. ^= * * The judgment of the court below is affirmed."^ TEXAS & P. RY. CO. v. JONES. (Court of Civil Appeals of Texas, 1897. 39 S. W. 124.) Action by Jessie Jones and another against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant ap- peals. Hunter, J.^- * * * Appellant complains of the following charge, as being upon the weight of the evidence, and as submitting an improper measure of damages, contending that, unless there was bodily injury, no damage could be recovered for mental suffering: "If you find and believe that on or about the 5th day of April, 1892, J. E. Pitzer was the agent of defendant in charge of its station at Millsap; and if you believe that the defendant had and maintained a depot for passengers at said point; and if you believe that the said J. E. Pitzer was the agent of defendant, and in charge of its said 31 See, also, Goddard v. Grand Trunk Ry., 57 Me, 202, 2 Am, Rep. 39 (18G9) ; Chicago, etc., R. Co. v, Flexman, 103 111. 54G. 42 Am. Rep. 33 (18S2) ; Savannah, Fla. & W. Rv. Co. V. Quo. 103 Ga. 12.5, 20 S. E. G07, 40 L. R. A. 483. C>8 Am. St. Rep. So (1897) ; Haver v. Central R. Co., G2 N. J. Law. 282. 41 Atl, 91G. 43 L, R. A. 84, 72 Am. St. Rep. G47 (1898). In Hayne v. Union St. Rv. Co., 189 Mass. iSol, 7G N. E. 219, 3 L. R. A. (N. S.) GOo, 109 Am. St. Rep. G.j.d (1905), a conductor of one of defendant's cars threw a dead hen in sport at the motor- man of another of defendant's cars, as it was passing, hroke a window, and thereby injured the plaintiff, a passenger. Knowlton, C, J., said: "If one of the reasons for the liability is that the servant, through his relation to his master, owes a duty to pi'otect the passenger fx-om injuries by others, and a fortiori from injuries by himself, this duty, so far as it relates to the last branch of the obligation, is not confined to servants the nature of whose serv- ice recpiires them to give personal attention to the passenger in reference to possible injuries from others, but it includes those employed in the general business of transportation, and involves a duty to refrain from doing injury to any of the master's passengers, whether in the special charge of the serv- ant or not." 32 Parts of the opinion are omitted. Ch. 1) THE CONDUCT OF TRAN8PORTATIOX. 81 depot; and if you believe that on said day the plaintiff Jessie Jones was in said depot for the purpose of taking passage on one of the trains of the defendant; if you believe that while the plaintiff was in said depot, waiting to take one of the defendant's trains, the wife of said agent, J. E. Pitzer, did, in the presence and hearing of said J. E. Pitzer, abuse and insult plaintiff Jessie Jones, by charging her, the said Jessie Jones, with being indecent, or with having undressed before men, or with having stolen scissors from the said Mrs. Pitzer ; and if you believe that the said J. E. Pitzer made no effort to protect the plaintiff from such insult; and if you believe that the said J. E. Pitzer could, by the use of reasonable effort, have prevented such insult ; and if you believe that thereby plaintiff Jessie Jones was mortified and humiliated, and that she suffered mental pain or anguish, and that she was thereby made sick, and suffered bodily pain, and was thereby damaged — you will find for the plaintiff such actual damages as she sustained on account of such insult." We are of opinion that the charge is not subject to the objections made. The language re- cited in the charge was plainly abusive and insulting language, and it was not a charge on the weight of evidence for the court to so treat it. On her right to recover damages for mental suffering, we think that it was the duty of the appellant's station agent to protect appellee from insult and abuse from all persons while she was at its station, waiting to become a passenger on its train, whether she received physi- cal injuries or did not. Leach v. Leach, 11 Tex. Civ. x\pp. 699, 33 S. W. 703. * * * This court intimated on a former appeal of this case (29 S. W. 499) that appellee was probably entitled to protection at the time she was abused and insulted, although she had not then bought her ticket; citing Hutch. Carr. § 559. We now hold in accord- ance with that intimation. And we also think that the agents and servants of appellant were bound to legal notice of the fact that she was there with the intention of becoming a passenger, and therefore entitled to the protection which that relation conferred upon her, be- cause of her presence in the waiting room with such intention at the usual time for the assembling of persons at such place for such pur- pose. Id. §§ 554-559. We find no error in the judgment, and it is affirmed. ^^ 3 3 A carrier's duty to use care to keep his passenger from harm is illus- trated bv the following cases: Pittsburgh, etc., R. Co. v. Hinds. 53 Pa. 512, 91 Am. bee. 224 (1867). passengers fighting in car; King v. Railway Co. (C. C.) 22 Fed. 413 (18S4), failure to eject or disarm passenger crazed by drink; Chicago, etc., R. Co. v. Pillsbury. 123 111. 9, 14 N. E. 22. 5 Am. St. Rep. 4S3 (1S87), admitting to car strikebreaker, whose presence was likely to lead to attack by mob ; Richmond & Danville R. Co. v. Jefferson, 89 Ga. 554, IG S. E. 69, 17 L. R. A. 571, 32 Am. St. Rep. 87 (1892), negro passenger made to dance; Lucy V. Railway Co.. 64 Minn. 7, 65 N. W. 944. 31 L. R. A. 551 (1896). woman passenger Insulted : Exton v. Central R. Co. of N. J, 62 N. J. Law, 7, 42 Atl. 486, 56 L. R. A. 508 (1899), cabmen scuffling in front of station; Texas & Pac. Green Cakr. — 6 82 THE carrier's undertaking. (Part 2 ATCHISON, T. & S. F. RY. CO. v. PARRY. (Supreme Court of Kansas, 1903. 07 Kan. 515, 73 Pac. 105.) Cunningham, J.^* Robert Parry was a passenger on the Santa Fe Railway going from Purcell, Ind. T., to Denver, Colo. In mak- ing this journey he was required to change cars at Newton, Kan. As the train approached Newton, and a mile or two south of it, the conductor observed that Parry was ailing with something that looked to him like a fit. He noticed that Parry "was straightened out, and his limbs was stiff and jerking. He was frothing at the mouth, and his eyes looked glaring and starry, just like a man that had a fit." When the train arrived at Newton, Parry seemed to be recovering, but had not entirely regained consciousness, and the conductor was Ry. Co. V. Dick. 26 Tex. Civ. App. 2.^6. 03 R. W. 895 (1001), passenger assaulted after leaving train, but before leaving station ; Texas, etc.. Ry. Co. v. Tarking- ton. 27 Tex. Civ. App. 353, 00 S. W. 137 (liKtl). passenger accused by conductor of dishonestly trying to evade fare ; Bosworth v. Union R. Co., post, p. .331 (1903), street car attacked by mob ; Seawell v. Carolina Central R. Co., 132 N. C. 850, 44 S. E, 010 (1903), passenger waiting to take train pelted with eggs ; Kuhlen v. B. & N. Co., 193 Mass. 341, 79 N. E. 815, 7 L. R. A. (X. S.) 729, 118 Am. St. Rep. 510 (1907). crowding in entering car at station. But a carrier is not liable if unable to anticipate or suppress disorder. Bat- ton v. So. Ala. R. Co.. 77 Ala. 591, 54 Am. Rep. SO (1SS4), indecent language ; Ellinger v. P., W. & B. R. Co., 1.53 Pa. 213, 25 Atl. 1132, 34 Am. St. Rep. 097 (1893), rude jostling by i>nssenger entering car; Madden v. N. C. R. Co., 98 App. Div. 400, 90 N. Y. Supp. 201 (1904), crowd rushing into excursion train ; Counell Y. Chesapeake, etc., Ry. Co., 93 Va. 44, 24 S. E. 407, 32 L. R. A. 792, 57 Am. St. Rep. 7S0 (1890), passenger in sleeping car shot bv robber; Tall v. Steam Packet Co., 90 Md. 248, 44 Atl. l(Mi7. 47 L. R. A. 12*0 (18i>9), shooting affrav between gamblers; Brunswick & Western R. Co. v. Ponder, 117 Ga. 03, 43 S. E. 430, 00 L. R. A. 713, 97 Am. St. Rep. 152 (1903), illegal arrest by officer under claim of authority. And the duty does not exist towards persons not passengers. Houston & Texas Central R. Co. v. Phillio, 90 Tex. 18, 09 S. W. 994, .59 L. R. A. 392, 97 Am. St. Rep. 80S (1!XI2), husband of sick passenger taking her to train. And see Williams v. Pullman Co., 40 La. Ann. .S7, 3 South. 031, 8 Am. St Rep. 512 (1S8S), assault by porter on person entering Pullman car without right. Obligation of Sleeping Cab Compant as to Care of Passengers.— A sleeping car company owes to its passengrt's a duty to guard them with care from harm at the hands of others, and is liable, though the Injury is Inflicted by the willful and wanton act of its servant. In Lewis v. N. Y. Sleeping Car Co., 143 Mass. 267, 9 N. E. 015, 58 Am. Rep. 135 (1887), Morton, C. .T.. said: "A sleeping car company holds itself out to the world as furnishing safe and com- fortable cars, and, when it sells a ticket, it impliedly stipulates to do so. It invites passengers to pay for, and make use of, the cars for sleeping, all par- ties knowing that, during the greater part of the night, the passenger will be asleep, powerless to protect himself or to guard his proi^erty. * * * The law raises the duty on the part of the car company to afford him this pro- tection. While it is not liable as a coimnon carrier, or as an Innholder, yet it is its duty to use reasonable care to guard the passengers from theft, and if, through want of such care, the personal effects of a passenger, such as he might reasonably carry with him. are stolen, the company is liable for it." See, further, as to the liabilitv of sleeping car companies. 21 L. R. A. 289, note; Carriers, 9 Cent. Dig. §§' 1579-1589, 1593-1590, 4 Dec. Dig. §§ 411, 413, 410, 417. 34 Parts of the opinion are omitted. Ch. 1) THE CONDUCT OF TRANSPORTATION. 83 unable to get any response when he tried to converse with him. The conductor called the depot master, who, with the assistance of the porter, removed Parry from the train; the depot master being in- formed by the conductor of the condition of the passenger, and re- quested to take care of him, and see that he was put upon the right train to take him to his destination, which train was to leave in about four hours. After the passenger was removed from the train, he was left in the care of the depot master, the porter going to his other duties. The depot master tried to talk with him, but elicited nothing but groans, mutterings, and unintelligible replies. It seemed, however, that he desired to go his own way without any assistance, so that, after help- ing him on with his coat, he was allowed, after about five or ten min- utes, to take his own course, without further attention, the depot mas- ter supposing that he had been drinking, and desired to go where he could procure liquor. The next seen of him was about four hours after his removal from the train, at a point about five miles south of Newton, where, having lain down upon the railway tracks, he was run over by a south-bound train and killed. The negligence counted upon by the plaintiff, his widow, as a ground for recovery, was that the company failed to exercise a proper degree of caution and care in looking after Parry after he was re- moved from the train in an unconscious and irresponsible condition of mind and body. The jury returned a general verdict in favor of the defendant in error, and also answered special questions submitted to them. =1= * * The railway company insists that the judgment against it was er- roneous, first, because there was no evidence showing any culpable negligence on the part of any of its agents or servants; second, if there was, that such negligence was not the proximate cause of the injury. The principles to which we must look for a solution of these questions are neither novel nor intricate. Parry was a passenger, not only while on the train, but after his arrival at Newton. Through no fault of his, he was in such a condition of mind and body as to be unable to care for himself by reason of the sudden sickness which had overtaken him. The duty of a carrier of passengers under such circumstances was announced in the syllabus in A. T. & S. F. R. Co. v. Weber, 33 Kan. 543, 6 Pac. 877, 52 Am. Rep. 543, in the following language : "Where an unattended passenger, after entering upon a journey, becomes sick and unconscious or insane, it is the duty of the railroad company to remove him from the train, and leave him until he is in a fit condition to resume his journey, or until he shall obtain the necessary assistance to take care of him to the end of his journey. The duty of a railroad company to such a passenger does not end with his removal from the train, but it is bound to the exercise of reasonable and ordinary care in 84 THE carrier's undertaking. (Part 2 temporarily providing for his protection and comfort." The follow- ing language is found in the opinion: "The duty of the railroad com- pany, however, with respect to Weber, did not end with his removal from the train. He was unconscious, and unable to take care of him- self. The company could not leave him upon the platform helpless, exposed, and without care or attention. It was its duty to exercise reasonable care and diligence to make temporary provision for his protection and comfort. As was said by the learned court who tried the cause: 'Of course, the carrier is not required to keep hospitals or nurses for sick or insane passengers ; but when a passenger is found by the carrier to be in such a helpless condition, it is the duty of the carrier to exercise the reasonable and necessary offices of humanity toward him until some suitable provision may be made.' " Whether or not the depot master discharged this duty to its requir- ed measure in this case was a question for the jury to determine. The jury did determine that he possessed the common and ordinary capabilities, judgment, and prudence of men generally, and that at the time he ceased to look after Parry he thought that deceased had suffi- cient strength and consciousness to take care of himself, and did not contemplate that he would wander away into a place of danger. We think, however, that this hardly shows affirmatively that degree of care commensurate with the duty resting upon the company. It is not thus made to appear that reasonable and ordinary care in providing for the safety of the deceased was exercised ; whereas by the general verdict it does appear that such care was not exercised. * * * The judgment will be affirmed.^ ^ 3.- See, also, Croom v. Chicago, etc., Co., ."52 ^linn. 290, 53 N. W. 1128. 18 L. K. A. G02, 38 Am. St. Rep. 557 (1893); Railway Co. v. Salzmau. 52 Ohio St. 5.58. 40 N. E. 891, 49 Am. St. Rep. 745 (1895); Comiolly v. Crescent, etc., Co., 41 La. Ann. 57, 5 South. 259, 6 South. 526, 3 L. R. A. 133, 17 Am. St. Rep. 389 (1896) ; Wells v. N. Y. C. R. Co., 25 App. Div. 365, 49 N. Y. Supp. 510 (1898); 111. Cent. Ry. v. Allen, post, p. 5,34; Horn v. So. Ry., 78 S. C. 67, 58 S. E. 963 (1907), conductor bound to give"' woman incumbered with parcels needed assistance in alighting. But compare Pounder v. N. E. Ry. Co., [1892] 1 Q. B. 385, with which compare Blain v. Railway Co., 5 Out. L. R. 334 (1903). In Sullivan v. Seattle El. Co., 44 Wash. 5:'.. 86 Pac. 786 (1906), defendant permitted an intoxicated passenger to leave its car at night at a regular station, where the station platform, surroundetl with a substantial railing, and the tracks, extended upon a trestle over a lake. He fell into the lake and was drowned. FuUerton, J., said: "A carrier is not obligated to re- ceive a helpless, imbecile, or drunken person as a passenger, when unat- tended ; but, if it does receive him, it must give him such care as will in- sure him a safe passage to some pi'oper destination. It cannot lawfully put him off, or i)ermit him to get off, at a place where there is danger of his perishing or coming to harm, even though such a place would be reasonably safe for one in a normal condition." When a passenger has been made helpless by falling from his train, it seems that it is the railroad's duty to stop the train and take care of him, provided it can be done with due regard to the rights of other passengers. Reed v. Louisville & N. R. Co., 104 Ky. 603. 47 S. W. 591, 48 S. W. 416, 44 L. R. A. 823 (1898). But no such duty exists towards a former passenger, who, having been ejected for misbehavior, falls while attempting to re-enter Ch. 1) THE CONDUCT OF TRANSPORTATION. 85 LOUISVILLE, N. O. & T. R. CO. v. PATTERSON. (Supreme Court of Mississippi, 1893. 69 Miss. 421, 13 South. 697, 22 L. R. A. 259.) Plaintiff, a white man, purchased a first-class ticket over defend- ant's road, and got on its train at Vicksburg, Miss., and went into the coach provided for white passengers having first-class tickets. The train consisted of three coaches for passengers. * * * Some of the passengers were asleep, and occupied two seats, and some of the seats were filled with baggage; but none of the seats were vacant. The plaintiff insisted that the conductor should get him a seat ; but he refused to do so, and told plaintiff to get a seat in the next coach. He went into the next coach, and got a seat ; but the conductor, com- ing in soon after, required him to leave that coach, as it was the car set apart for the colored passengers. Plaintiff then went into the smoker, but soon left it, because the smoke nauseated him, and went to the conductor, and insisted that he would get him a seat, and threat- ened to sue the railroad if he did not. The conductor replied in an angry tone that he could get no seat in there, and he "could sue, and be d d." Plaintiff' then went out on the platform, and remained there until he reached a station, when he got off the train. * * '^^ Plaintiff had a verdict and judgment for $75. Defendant's motion for a new trial was overruled, and it appealed. Woods, J. The appellee paid for a seat in a first-class coach, and was entitled, as matter of right, to have the servants of the railway company who were in charge of the train furnish him such seat, unless a sudden and imusual influx of passengers rendered this imprac- ticable. It is perfectly clear from all the evidence in this case that the conductor in charge of the train could and should have made provision for seating the appellee. It is equally certain that a proper application of the appellee to that effect provoked not only a refusal from the con- ductor, but subjected the audacious passenger to an explosion of pro- fane and contemptuous wrath from that official. That a jury awarded the trivial sum complained of is proof positive that no undue prejudice existed against the corporation. Let the company thank God, and take courage. Affirmed. the train without right. Chesapeake & O. Ry. Co. v. Saulsbury, 112 Ky. 91.j, 66 S. W. 1051. 56 L. R. A. 580 (1902). Compare Cobb v. Gt. W. Ry. Co., [1S94] App. Cas. 419, refusal to delay train to enable passenger to recover stolen money; Henderson v. Louisville, etc., R. Co., 123 U. S. 61, 8 Sup. Ct. 60, 31 L. Ed. 92 (1887), refusal to stop train to recover moiey dropped from car window. 86 THE carrier's undertaking. (Part 2 HARDENBERG v. ST. PAUL, U. & M. RY. CO. (Supreme Court of Minnesota, 1SS8. 39 Minn. 3, 38 N. W. 625, 12 Am. St. Rep. 610.) GiLFiLLAN, C. J. Defendant was a common carrier of passengers for hire, maintaining and operating, for that purpose, a line of railway from IMinneapolis to Wayzata, on Lake Minnetonka. The plaintiff, for the purpose of going from Minneapolis to Wayzata, entered, at the former place, one of defendant's regular passenger trains for the lat- ter place, which immediately started, and, before plaintiff could look through the cars in the train to find a seat, it was going at a high rate of speed. Lipon looking through the train, he could find no seat vacant. At the first opportunity he applied to the conductor to fur- nish him a seat, and the conductor (as we assume, because the seats were all filled) refused to provide him one. The conductor then de- manded his fare, which the plaintiff offered to pay if supplied with a seat, but refused to pay unless supplied with a seat. Up to this the train had made no stop. The conductor then stopped the train, and forcibly put the plaintiff off at a place distant from any dwelling house, more than two miles distant from any flag station, and more than five miles distant from any regular station of defendant. No complaint is made that the conductor, if he had a right to eject plain- tiff, used more than the proper amount of force. The only question is, had the conductor a right, under the circumstances, to put plaintiff off at the place where he did; that is, out in the country, at a distance from any station? In the case of a trespasser on a train — that is, a person wrongfully upon it, as where he enters it intending not to pay the fare, or where he wrongfully refuses to pay the fare when properly demanded — the conductor is not required to put him off at one place rather than an- other, provided he do not wantonly expose him to peril of serious per- sonal injury. With that qualification, he may put him off at a place other than a station, and is not required to consider his mere con- venience. Wyman v. Railroad Co., 34 Minn. 210, 25 N. W. 349. This plaintiff, however, was not wrongfully on the train. It is, in general, the duty of a railroad company to provide sufficient cars to carry all who have occasion to travel on its line of road. As the law does not require unreasonable things, a single instance, or occasional instances, of insufficiency in the amount of means to travel, caused by a rush of travel not reasonably to be expected by the company, would probably be excused ; and the railroad company, like all other com- mon carriers of passengers, must provide those whom it carries with the usual, reasonable accommodations for comfort in traveling, in- cluding seats. This is too well established to need citation of author- ities. Ch. 1) THE CONDUCT OF TRANSPORTATION. 87 When this plaintiff, desiring to take passage to Wayzata, found one of defendant's regular passenger trains about to start for that place, he had a right to enter it, assuming that the defendant had done its duty in providing sufficient and suitable accommodations for all hav- ing occasion to become passengers on the train. The train started, and had reached a high rate of speed, before he learned that there was not sufficient seats. When he learned that he could get no seat, he had a right to elect either to accept such accommodations as were offered and pay the fare, or to refuse to pay the fare unless he could have the accommodations to which a passenger is entitled. If he elected the latter course, then (inasmuch as he was not entitled to the passage, even though no seat was provided him, without paying fare) it was his duty to leave the train on the first reasonable opportunity afforded him. He could not be expected to leave the train while in motion. A reasonable opportunity to leave it, would have been the stopping it in a suitable and reasonable place. As he had a right to refuse to pay fare unless a seat was provided him, he did not become wrongfully on the train by so refusing. He could become a tres- passer only by refusing to leave the train, on a reasonable opportunity being afforded. Such opportunity the defendant was bound to afford unless it chose to carry him without fare. It was the defendant's, not the plaintiff's, fault that a seat was not provided. The case differs from the Wyman Case. For in that case the re- fusal to pay fare was wrongful ; in this, the refusal, unless a seat was provided him, was rightful. In that case the plaintiff, by the refusal, became a trespasser ; in this, he did not. This case is somewhat an- alogous to Maples v. Railroad Co., 38 Conn. 557, 9 Am. Rep. 434, in which it was laid down that a railroad company, having a right to eject from its train one not a trespasser, must do so at some regular station on its road. That is a reasonable rule, and that the decision was in accordance with the general rule was recognized by this court in the Wyman Case. See, also, Gallena v. Railroad Co. (C. C.) 13 Fed. 116. Order reversed.^' 36 The statement of facts is omitted. ^PP also St Louis etc, R. Co. v. Leigh, 45 Ark. 36S, 55 Am. Rep. 558 (lis?) ;'G?kh'm'^r Manhattan Ry. Co 1^9 ^ Y. 337, 43 ^^ E 017 (IS^T For duty to heat car, see Taylor v. Wabash Co. (Mo.) 38 S. ^.304, 42 L. R. A. 110 (189G). 88 THE carrier's undertaking. (Part 2 SECTION 7.— TRANSPORTATION NOT WITHIN THE CONTRACT OF CARRIAGE I. Without Acceptaxcu FORD V. MITCHELL. (Supreme Court of Indiana, 1SG3. 21 Ind. 54.) This was an action against a common carrier by steamboat for failure to deliver a box of dry goods. The issues were submitted to the court who found specially that the plaintiff had caused the box in question together with another box to be placed on board the steam- boat when she was ready to make her trip ; that the boxes were re- ceived by the deck hands in such manner that the proper officers of the boat to receive freight must with reasonable attention and diligence have known of them; and that though the other box was duly de- Hvered, the box sued for was never delivered. Judgment for plain- tiff. Defendant appeals. Davison, J." * * * fhe court do not find that the deck hands were authorized to receive freight, nor does it appear that the box was delivered pursuant to any special contract or usage. But it did, in effect, find that the manner of the reception of the box, by the deck hands, was such, that the officers, whose duty it was to receive goods for transportation, must, if they had exercised reasonable attention, care and diligence, have known that the box was in the boat, and have received it. This finding is not, it seems to us, sufficient to charge the carrier. No special contract or usage, applicable to the case, having been found, it should appear, affirmatively, that he or his agents, for the reception of freight, had been expressly notified of the deposit of the box in his steamboat. This conclusion is fully sustained by the authorities to which we have referred. And, as no such notice has, in this instance, been found by the court, the findings do not support the judgment. * * * Judgment reversed. ^^ 3 7 The statement is based on facts stated in the opinion. Part of the opin- ion has been omitted. 3 8 Compare Siegrist v. Arnot, S(3 Mo. 200, 56 Am. Rep. 424 (1885). Ch. 1) THE CONDUCT OF TRANSPORTATION. 89- DALTON'S ADAI'R v. LOUISVILLE & N. R. CO. (Court of Appeals of Kentucky, 1900. 56 S. W. 6.57, 22 Ky. Law Rep. 97.) HoBSON^ J. Appellant filed this suit to recover of appellee for the loss of the life of his intestate, and, a demurrer having been sustained to his petition and his action dismissed, has appealed to this court. He alleges that his intestate boarded or entered at Glendale, Ky., a train of appellee usually employed in the transportation of freight, and com- monly known as a ''freight train" ; that this train was proceeding southward ; that the fact that his intestate boarded this south-bound train, and was being carried on the train, was well known to appellee's agents and servants in charge of it; that about ten miles south of where he boarded the train, and after it had passed two or more local stations, it collided with another freight train, going north, by reason of the fact that the north-bound train had disobeyed its orders, and failed to stop at a station which it had just passed, where it was ordered by the train dispatcher to take the siding until the south-bound train passed it ; and that in the collision his intestate was killed. As the petition alleges that the train he was on was one that was usually employed in the transportation of freight, and commonly known as a "freight train," containing no averment that it carried passengers, it must be inferred that the train was not one on which passengers were carried ; and as it is averred that plaintiff boarded the train at Glendale, and that the servants of appellee knew he was on the train, and permitted him to remain on it until it passed two local stations, there being no averment that he paid fare or had any right on the train, it must be inferred that he was on a freight train without right, and by the sufferance of appellee's servants in charge of it. It is earnestly insisted for appellant that, notwithstanding this, he may recover, because of the gross negligence of appellee in allowing the two trains to collide. But the trouble with this is that the appellee owed appellant no duty to carry him safely; that he took the risks of the journey when he rode upon its freight train in this way. The only obligation appellant owed to him was not to injure him after knowl- edge of his danger. There is no allegation that anything was omitted which might have been done for the intestate's safety after the danger was discovered, and the court properly sustained a demurrer to the petition. Duff v. Railroad Co., 2 Am. & Eng. Ry. Cas. 1 ; Railroad Co. v. Burnsed, TO' Miss. 437, 12 South. 958, 35 Am. St. Rep. 656 ; Everhart v. Railroad Company. 78 Ind. 292, 41 Am. Rep. 567; Eaton v. Railroad Co., 57 N. Y. 382, 15 Am. Rep. 513; Condran v. Railway Co., 14 C. C. A. 506, 67 Fed. 522, 28 L. R. A. 749, and note; Railroad Co. v. Hailey, 94 Tenn. 383, 29 S. W. 367, 27 L. R. A. 549. Judgment affirmed.^^ 3 9 In Claiborne v. Mo., etc., Co.. 21 Tex. Civ. App. 648. 53 S. W. 837, 57 S. W. 336 (1900), an action by a trespasser, who testified that, while he was- 90 THE CARKIER'S UNDERTAKING. (Part 2 ILLINOIS CENT. R. CO. v. O'KEEFE. (Supreme Court of Illinois, 1897. IGS 111. 115. 48 N. E. 294, 39 L. R. A. 148, Gl Am. St. Rep. G8.) Action on the case by an administratrix to recover for the death of her intestate, O'Keefe. O'Keefe lived at Anna, not far from the railroad. He held a free pass. The evidence showed that one morn- ing, as a vestibuled train was leaving the station, he ran out of his house toward the track and boarded the train after it had left the sta- tion and while it was moving at the rate of three or four miles an hour. He got on at the front platform of the baggage car just be- hind the tender. The vestibule doors at all other car platforms were closed. The conductor, after going through the train from front to rear, came forward to the baggage car to see about the person who had got on the front platform. When the conductor entered the baggage car he saw a freight train coming on the same track, and jumped off through the side door. O'Keefe, still on the platform of the baggage car, was killed in the ensuing collision. The collision was caused by defendant's negligence in the transmission of orders. Cartvvright, J.^° * * * /^j- ^i^g close of the evidence the de- fendant asked the court to instruct the jury that such evidence was not sufficient to authorize a verdict for the plaintiff", and that they should find the defendant not guilty. The instruction was refused, and the defendant excepted. * * * The question is whether these facts fairly tend to establish the relation of passenger and carrier between O'Keefe and the defendant by showing that he had put himself in the care of the defendant as a passenger, and had been expressly or impliedly received and accepted as such by the defendant through any authorized agent. We think that they do not. He did not go upon the train at the station pro- vided for the reception of passengers, and did not take any place provided for the reception, accommodation, or carriage of passen- seen to be climbing over tlie tender and the train was in motion, the engineer negligently caused the engine to lurch forward, so that he was thrown to the ground, it was held that for such negligence the railroad would be lia- ble. Conner, J., said: "The principle that every person shall so use or cause to be used his owu property, and shall so conduct or cause to be conducted his own business, however legitimate, as to not unnecessarily injure another, is sound as matter of universal application. If the engineer in fact saw ap- pellant, and knew of his perilous i:)Osition, if it was one, and Icnew of the dan- ger of causing a sudden jerk or increase in the speed of his engine, consid- erations of humanity dictated that he should at least use ordinary care to avoid the performance of an act that it was alleged he knew would probably result in injury to appellant, even though such act, under ordinary circum- stances, was proper, usual, or customary in the 'proper operation of the train.' " Ace. L. & N. R. Co. v. Kemery's Adm'r, 66 S. W. 20, 23 Ky. Law Rep. 1734 (1902). 4 The statement of facts has been rewritt-en, and parts of the opinions omitted. Ch. 1) THE CONDUCT OF TRANSPORTATION. 91 gers. He did not comply with any of the ordinary customs under which defendant held itself out as ready to receive and carry pas- sengers, or under which they are received or carried. It is said that he no doubt tried to open the baggage car door, and the inference intended is that he tried to put himself in charge of de- fendant as a passenger in a proper place. There is no evidence of the supposed fact, and, if there were, it could make no difference. It will certainly not be claimed that defendant was bound to have the baggage car door open so as to give access to its passenger coaches by way of the baggage car; but, even if that were a wrong to him, he could not become a passenger by attempting to get in that door any more than if he had attempted to open one of the vestibule doors, which was locked, and had failed. He had not put himself in the care of the defendant as a passenger. Of course, the fact that the engineer knew that deceased climbed upon the train would not make him a passenger, since an engineer is not authorized to act for the defendant in such a matter, or to accept passengers. Nor do we think that the mere fact of the conductor knowing that some one had boarded the moving train on the platform between the tender and baggage car, and might still be there, is evidence tending to show that defendant accepted him as a passenger. The conductor did not know who he was, or what he was there for. whether as a passenger or otherwise. As conductor, he performed the usual duties after leaving the station, and had not reached this platform next the tender when the accident occurred. He had done nothing in the mat- ter one way or the other. The train was moving slowly when O'Keefe climbed on, but that fact is only material on the question of negligence on his part in boarding a moving train. The train had left the station, and there would be no difference, so far as creating a relation of passenger and carrier was concerned, whether he got on there or at some other place between stations where the train was moving slowly. Of course, he might have ridden on the platform in safety but for the collision, and so, also, he might on the engine or tender or elsewhere on the train where passengers are not carried. That fact concerns only the ques- tion of negligence, and is not material on the question whether he be- came a passenger. As we have concluded that there was no evidence tending to estab- lish one necessary element for a recovery— that the deceased was a passenger on defendant's train— it follows that for such failure of proof the instruction asked should have been given. The judgments of the appellate court and circuit court are reversed, and the cause is remanded to the circuit court. Reversed and remanded. Carter. J. (dissenting). * * * The jury had the right to find from all the circumstances, including the fact that, after the conductor saw him get on the front end of the baggage car, he went from the other end of that car through the train, taking the fares of passengers, 92 . THE carrier's undertaking. (Part 2 without saying anything to O'Keefe, and without interfering with him in any way, that he did not object to his riding in that way; that is, to find imphed consent on the part of the company. ^' * * *^ FIRST XAT. BANK OF GREENFIELD v. ^lARIETTA & C. R. CO. (Supreme Court of Ohio, 1870. 20 Ohio St. 2.j0, 5 Am. Rep. (j.">r,.) The plaintiff alleged in its petition that it was the owner of a pack- age containing $4,000 in United States notes, which it delivered to its agent, McElroy, to take to Cincinnati, that McElroy for that pur- pose became a passenger in defendant's train with the money on his person ; and that by the defendant's negligence the train was wrecked and burned, McElroy killed, and the money destroyed. On demurrer,, defendant had judgment. Plaintiff filed a petition in error. ScoTT, J.*- If the facts stated in the petition show the defendant to have been guilty of a breach of contract, or derelict in respect to a legal duty, we think the plaintiff's claim cannot be resisted on the ground that the contract was made, not with the plaintiff, but with an agent acting in his own name, or that the supposed duty was owing to the agent and not to his principal. The bank had the same right to send the notes in controversy by McElroy as a special agent, as it would to have carried them over the same road under the same cir- cumstances through its president, cashier, or any other officer; and McElroy had the same right to carry the notes for the bank, as for himself, had they been his property. * * * In the able and elaborate argument of counsel for plaintiff, the riglit to recover is based upon two distinct grounds : 1. That the plaintiff's property being at the time of its destruc- tion where it was lawfully — that is, in the exercise by the plaintiff of a legal right in reference to it — and being, without any fault of the plaintiff, destroyed by the negligence of the defendant, in the manage- ment of its own property, a right of action accrues for the damage, by virtue of the maxim, "sic utere tuo, ut alienum non loedas." 2. That the duty which the defendant, as a common carrier of pas- sengers, owed to IMcElroy to exercise care and skill in transporting 41 See Carrier aud Passenger, by Professor J. H. Beale, 19 Ilarv. Law Rev. 250, 2.5&-2G2. In Railroad v. Bogle, 101 Tenn. 40. 46 S. W. 760 (189S), a passenger on n cattle train, stopped on a siding, left the caboose to look after his cattle. The train moved, and, for fear he could not reach the caboose, he got upon the engine, but jumped off at the order of the engineer and was hurt. It was held that when on the engine he was not entitled to the care due a passenger, aud that no recovery could be had, except for willful, wanton, or intentional in- jury. Compare Whitley v. So. Ry. Co., 122 N. C. 987, 20 S. E. 783 (1898). *2 The statement of facts has been rewritten, and parts of the opiniou omitted. Ch. 1) THE CONDUCT OF TRANSPORTATION. 93 him safely, extends to all articles of value which, at the time, he had lawfully in his possession, or about his person, so as to entitle him, or its owner, in case of injury resulting from a breach of that duty, to recover compensation for the damage done to such property. As to the first of these propositions, we do not call in question the justice or soundness of the maxim upon which it is supposed to rest. The only doubt is as to its proper application to the present case. * * * Damage resulting from the negligence of another will not in all cases constitute a cause of action. Should A. through negli- gence burn his own house, and with it the property of B., placed therein without the knowledge or consent of A., we apprehend B. could not hold A. liable for the loss. We can not, therefore, ignore the fact, that the carrying of the money in defendant's car was an essential element in the circumstances occasioning the loss, nor the fact that it was so carried by a person whose only right to be there was in virtue of his character as a passenger. To ascertain the rights of McElroy as such passenger, and the obligations and liabilities of the defendant as a common carrier, in respect of the property destroyed, necessarily requires a consideration of the second proposition, which bases the right to a recovery on the relation subsisting between Mc- Elroy and the defendant, at the time of the loss, and the duties and ob- ligations which that relation imposed on the defendant. As we have said, the relation subsisting between McElroy and the defendant was that of passenger and common carrier, and it was in virtue of that relation that plaintifif's money was brought into defend- ant's car, and became exposed to the peril which caused its loss. What, then, was the contract between the defendant, as a common car- rier of passengers, and McElroy, and what was the extent of the ob- ligations imposed on the defendant by law, in virtue of that contract? Upon well-settled principles the defendant became bound in con- sideration of the fare paid by McElroy, to use the highest degree of diligence and care in transporting him to his place of destination. And this contract for the carriage of his person necessarily included the wearing apparel which accompanied his person, such reasonable sum of money as might be in good faith carried wth him for the ex- penses of the journey, together with all such articles, to a reasonable extent, at least, as are ordinarily carried or worn upon the person for purposes of personal use, convenience, or ornament; and we agree with counsel for plaintiff that the contract also included the carriage of "his baggage delivered to the defendant as such to be carried, to the extent of an ordinary and reasonable wardrobe for one in his station in life, together with such articles as are usually found in the para- phernalia of a traveler." But the notes for the loss of which this action is brought can nei- ther be regarded as a part of the passenger's baggage, nor as money intended to defray the expenses of the journey. The statements of the petition show that the notes were simply being transmitted, for 94 THE carrier's undertaking. (Part 2 business purposes, from Greenfield to Cincinnati, and were not intended to be used by the passenger for defraying the expenses of his journey or otherwise. The trip may have been undertaken on account of the money, but the money was not carried on account of the trip. Nor was the defendant entrusted with the custody of these notes, or spe- cially charged with any care or oversight in respect to them. They remained in the exclusive custody and control of McElroy. And as they were clearly not included in the contract for the transportation of the passenger and his baggage, and were not subjected to the cus- tody of the carrier, it is difficult to see how he can be held liable for a want of care over them. We do not call in question the right of a passenger to carry about his person for the mere purpose of transportation, large sums of money, or small parcels of great value, without communicating the fact to the carrier, or paying anything for their transportation. But he can only do so at his own risk, in so far as the acts of third per- sons, or even ordinary negligence on the part of the carrier or his serv- ants is concerned. For this secret method of transportation would be a fraud upon the carrier, if he could thereby be subjected to an un- limited liability for the value of parcels never delivered to him for transportation, and of which he has no knowledge, and has therefore no opportunity to demand compensation for the risk incurred. Xo one could reasonably suppose that a liability which might extend indefi- nitely in amount would be gratuitously assumed, even though the dan- ger to be apprehended should arise from the inadvertent negligence of the carrier himself. * * * It is claimed in argument that a common carrier of passengers has no reason to complain if he be held responsible for a loss of property resulting as a direct consequence from the want of that degree of care which the law requires him to exercise toward the persons of his passengers. But in the case of a breach of contract, the delinquent party can only be held liable for such damages as are so far the nat- ural and direct result of the breach that they may reasonably be pre- sumed to have been in the contemplation of the parties when the contract was entered into. Now admitting the breach of contract with AIcElroy, the question is as to the extent of the liability in- curred. It would seem from the petition that the defendant dealt with McElroy only as an ordinary passenger, seeking transportation for himself and ordinary baggage. He could not reasonably suppose that the defendant, by selling him a ticket and agreeing to carry him and his baggage with due care, contemplated incurring a liability in respect to a large sum of money, of which defendant had no knowl- edge, and which he was carrying solely for the purpose of transfer- ring it from one point to another. The case made by the petition is not one in which the plaintiff's property has been destroyed by an act of positive misfeasance in the nature of a forcible trespass. The defendant is not charged with its Ch. 1) THE CONDUCT OF TRANSPORTATION. 95 wilful destruction, nor with such gross negligence as would approxi- mate to wantonness. Both the petition and the argument of counsel proceed upon the theory that any negligence which would render a carrier of passengers liable for personal injury sustained by a pas- senger, will make him, at the same time, liable for all damages re- sulting therefrom to any property which the passenger may have law- fully with him or about his person at the time. The doctrine thus broadly stated is, we think, unsustained by authority, and cannot be maintained upon principle. In effect, it ignores the distinction be- tween the property covered by the contract for transportation and that which is outside of it. * * * Judgment affirmed.'*^ II. Ignorance, AIistake, and Fraud LITTLE V. BOSTON & M. R. R. (Supreme Judicial Court of Maine, 1876. 60 Jle. 239.) Case against the defendants as common carriers, for the loss of a box containing jewelry goods of the alleged value of $1,T00, received by the defendants at Boston, November 28, 1871, marked "H. A. Os- good, Lewiston, Maine." Plea, general issue. The evidence showed that the box declared on, in good order and plainly directed, was delivered in Boston to the plaintiff's, doing busi- ness under the name of the Kennebec & Boston Express, by the New , York express company to whom the plaintiffs paid the expense of 40 cents, the smallness of the charge indicating that it contained goods of ordinary value only; that the plaintiffs delivered it to the defend- ant company in Boston, to be carried with other freight at the rate of $5 per ton; that neither the plaintiffs nor the defendants knew what the box contained ; that the custom of the plaintiffs was to send their valuable articles in a strong chest by an express messenger ; that the charge on this box was 30 cents from Boston to Lewiston ; that if the value had been known it would have been about $2.50 ; that before the freight car arrived at Lewiston the door of it was seen to be off and gone, and when it arrived there this box was missing. The plain- tiffs put into the case the record of a judgment in Androscoggin coun- ty, rendered February 3, 1874, against them in behalf of Henry A. Os- 4 3 Ace Weeks v N. Y.. etc.. R. Co., 72 N. Y. 50, 28 Am. Rep. 104 (1878) : Hen- derson v. Louisville & N. R. Co., 123 U. S. 61, 8 Sup. Ct 60. 31 L. Ed 02 (1887) ; Knierem v N Y. C. R. Co., 109 App. Div. 709, 96 N. Y. Supp. 602 (lOO.j) ; Levins V N Y etc R. Co.. 183 Mass. 17.5, 66 N. E. 803, 97 Am. St. Rep. 434 (1903). money stolen' by railroad iwrter. See, also, Hillis v. Chicago, etc., Co., 72 Iowa, 228, 33 N. W. 643 (1887). 96 THE CARKIER-S UNDERTAKING. (Part 2 good, on a verdict found at the September term in 1872 for $1G95 ; cost taxed $63.77. The case was submitted to the full court, to render such judgment as the law and facts require, and to assess the damages. Appleton, C. J.** * * * fi^Q defendants are common car- riers, and subject to the responsibility and liabilities imposed upon them as such. "The common carrier is responsible for the loss of a box or parcel, though he be ignorant of its contents, or though those ■contents be ever so valuable, unless he make a special acceptance." 2 Kent, Com. 603 ; Sager v. P., S. & P. Railroad, 31 Me. 228, 1 Am. Rep. 659. Such is the general rule ; but if the owner is guilty of fraud or imposition as by fraudulently concealing the value of the par- cel, or in any way leading the carrier to regard it as of little value, he cannot hold him liable for the goods lost. These plaintiffs cannot be deemed guilty of fraud in concealing the value of the box in con- troversy, when its contents were unknown. The freight may depend upon the value of the article to be car- ried. When the article is of extraordinary or unusual value, the carrier would well be entitled to a higher rate of compensation, in- lasmuch as he might be reasonably held to a greater degree of care. The carrier therefore has a right to inquire as to the value of the ar- ticle entrusted to him for carriage, and the owner is bound to answer truly. If he answers falsely, he will be boluid by such answer. But if no inquiries are made, he is not required, in the absence of fraud, to state the value of the goods delivered to the carrier. Phillips v. Earle. 8 Pick. (Mass.) 182; Brook v. Pickwick, 4 Bing. 218. The defendants, however, omitted the precaution to make any inquiry as to value ; and it was for them to do it. Walker v. Jackson, 10 Alees. & W. 168 ; Angell on Carriers, § 264. * * * The defendants' liability is fully established. The measure of dam- age is the value of the goods at the place of delivery. Perkins v. P., S. & P. Railroad, 47 Me. 573, 74 Am. Dec. 507 ; 2 Redfield on Rail- roads (5th Ed.) 198. The plaintiffs show by the records of the court, and by other evidence, that judgments have been rendered against them in the courts of this state for the value of the goods in the box lost by the defendants. We must presume that the damages in those cases were assessed upon legal principles. They will, therefore, with interest, constitute the amount for which judgment must be rendered in favor of these plaintiffs. Judgment for the plaintiffs. ^^ 4* Parts of the opinion are omitted. 45 "The case of Kenrig v. Eggleston, Aleyn, 93, was decided in 1649. The plaintiff delivered a box to the porter of the carrier, saying, 'there was a booli and tobacco in tlie l)ox,' when in truth it contained £100 in money, be- sides. Roll, J., thought the carrier was nevertheless liable for a loss by rob- bery ; 'but in respect of the intended cheat to the carrier, he told the jury they might consider him in damages.' The jury, however, found the whole sum (abating the carriage) for the plaintiff, quod durum videbatui- circum- Ch.l) THE CONDUCT OF TRANSPORTATION. 97 EVERETT V. SOUTHERN EXPRESS CO. (Supreme Court of Georgia, 1S72. 46 Ga. 303.) IMcCay, J.*« * * * The judgment of the court granting the new trial is excepted to ; not the reasons he gave, nor the grounds he put it upon, but the order, decision or judgment of the court, to wit: setting aside the verdict [for plaintiff] and granting a new trial. If that judgment was good and right, for any reason contained in the record, it ought to stand. The judgment is one thing, the reasons stantibus. In Gibbon v. Paynton. 4 Burr. 2298. Lord Mansfield said, this was a case of fraud, and he 'should have agreed in opinion with the circum- stantibus.' In Tyly v. Morrice, Garth. 485, two bags of money sealed up were delivered to the carrier, saying they contained £200, and he gave a receipt for the money. In truth the bags contained £450, and the carrier, having been robbed, paid the £200; and in this action brought to recover the balance, the Chief Justice told the jury that 'since the plaintiffs had taken this course to defraud the carrier of his reward, they should find for the defendant.' And the same point was decided in another action against the same carrier. In Gibbon v. Paynton. 4 Burr. 229S. £100 in money was hid in hay in an old nail bag, which fact the plaintiff concealed from the carrier: and the money having been stolen, the court held that this fraud would discharge the de- fendant. In the case of Orange Co. Bank v. Brown. 9 Wend. TN. Y.] 85 [24 Am. Dec. 129]. the agent of the plaintiffs put $11,000 in bank bills in his trunk, and delivered it to the captain of the steamboat as his baggage. Tlie court held that the term baggage would only include money for the exi>enses of traveling, and not a large sum, as in this case, taken for the mere purpose of transportation ; and it was said that the conduct of the plaintiff's agent was a virtual concealment as to the money, that 'his representation of his trunk and the contents as baggage was not a fair one. and was calculated to deceive the captain.' The owner is not bound to disclose the nature or value of the goods ; but if he is inquired of by the carrier, he must answer truly. Phillips V. Earle, 8 Pick. [Mass.] 182." Bronson, J., in Hollister v. Nowlen, 19 Wend. (N. Y.) 234, 32 Am. Dec. 455 (1838). "If any merchant or merchants contract with any managing owner of a ship or vessel to load ujjon freight certain bales or bundles, or some other certain articles, and the merchants shall place or cause to be placed in those packages, bales, bundles, or chests, or whatever the goods may be, in the midst of one or all of them anything secretly, such as gold, silver, coin, pearls, silk, or other precious goods or merchandise, whatever they may choose, and what may be within those packages, bales, bundles, chests, or other goods, which the.v have inserted secretly in them, they shall not have told or shown when they loaded the ship to the managing owner, or to the mate, or to the watch, or to the ship's clerk of that ship in which they have placed them [there shall be no liability in case of jettison to contribute in general average for the value of the unknown articles]. * * * still more, if those goods or merchandise above mentioned shall be lost by fault of the managing owner of the ship, or the ship's clerk, they are not liable to make any compen- sation to him to whom they belong, except so much as he shall have made it understood when he put the goods on board, because at times there are cer- tain merchants who, if a man were to believe all that they say or make oath to, in case that any package were lost by any of the above causes, would say that in that package they had put valuables that were worth a thousand marks of gold or silver ; and for that reason no one is responsible to a merchant ex- cept for that which at the loading of it he shall have declared to one of the parties above enumerated. * * * " Consulate of the Sea, c. 212. See Rev. St. § 4281 (U. S. Comp. St. 1901, p. 2942), post, p. 472. 46 The statement of facts and part of the opinion are omitted. Green Carb. — 7 98 THE carrier's undertaking. (Part 2 given for it another. It is with the judgment this court has to do. Ought that to be affirmed or reversed? In our judgment this verdict is not sustained by the evidence. This court has in effect decided that very thing, when the case was before it at Milledgeville, in 37 Ga. 688. The evidence there was the same as here, with the single ex- ception that the negro boy who carried the box to the express office now testifies that he did not open the box. The evidence as to the mode in which this valuable pin was put up is the same. The point of that decision was, that the carrier has a right to know the value of the article he is asked to carry, that he may take the better precaution to prevent persons from stealing it from him, or to prevent its loss from carelessness. An article of small value presents few temptations to the thief. The company may safely entrust it to less trustful agents, and take less pains to protect and preserve it. Valuable articles ought to be, and usually are, put in a safe and are delivered by the most trustworthy agents into the hands of the con- signee. And for this extra care and risk a higher price is charged. The proof here shows that a small article of great value was, either designedly or carelessly, put in a common paper box, tied up with a string, and its value, either designedly or carelessly, concealed from the knowledge of the carrier. Wlio knows why? The evidence does not show; but if there was no special design — if the extra charge was not the thing sought to be got rid of, the gross negligence of the con- signor amounts to fraud. It misled the carrier ; it put him off his guard. He had a gem in his custody, a thing to be specially cared for, and he did not know it ; and this want of knowledge was the fault of the consignor. No person of ordinary prudence would send by a messenger a valuable article like this without special notice of its value, and were this defendant an ordinary carrier, we doubt if it would be possible to get a verdict against it on such facts. Unfor- tunately there is not the same carefulness to do only strict justice in cases where rich corporations are parties. But the law knows nei- ther the rich nor the poor as such — justice to both is its rule. We feel ourselves bound by the decision of this court in this case, in any view of it, though we agree that it is right, and would, were the case now first before us, give the same judgment. We think, there- fore, that the verdict ought to have been set aside as illegal. Judg- ment affirmed.*^ *7See, also. So. Ex. Co. v. Wood. 98 Ga. 268. 25 S. E. 436 (1896> ; Bottnm v. Charleston, etc.. Ry. Co.. 72 vS. C. 375. 51 S. E. 98.5. 2 L. R. A. (N. S.) 773, 110 Am. St. Rep. 610 (1905) ; Relf v. Rapp (Pa.) 3 Watts & S. 21, 37 Am. Dec. 528 (1841) ; Hart v. Pa. Co., 112 U. S. 331, 340. 5 Sup. Ct. 151, 28 L. Ed. 717 (1884) ; Oppenheimer v. U. S. Ex. Co., post, p. 400. "The principle upon which the carrier is relieved from liability, under some of the decisions of this court, as already stated, is that there was a fraud upon the carrier; but there is another good reason: The carrier did not un- dertake to carrj' anything hut household goods ; wearing apparel was not in- cluded in the contract ; and hence the carrier was only bound to carry such goods as the shipper represented to be contained in the boxes and bundles. Ch. 1) THE CONDUCT OF TRANSPORTATION. 99 MACROW V. GREAT WESTERN RY. CO. (Court of Queen's Bench, 1871. L. R. 6 Q. B. 612.) CocKBURN, C. J.*8 This was an action brought by the plaintiff for compensation for the loss of luggage lost while traveling as a passenger on the defendants' railway. At the trial before my Brother Blackburn the question turned on how far the articles lost came within the description of ordinary passengers' luggage. A verdict passed for the plaintiff. * * * The plaintiff had recently returned from Canada, with the inten- tion of settling in England, but had not yet provided himself with a home. Amongst other articles which were in the box were six pairs of sheets, six pairs of large blankets, and six large quilts, which had formed part of his household goods in Canada, and which he in- tended to be again part of his household goods when he should have provided himself with a home. * * * By the act of Parliament by which the company is constituted it is provided that passengers by the railway shall be entitled to have a fixed quantity of ordinary luggage, according to their respective classes, conveyed with them free of charge. See 9 & 10 Vict. c. 91, § 63. The question for our decision is whether the articles of bedding hereinbefore referred to can be considered as ordinary passengers' luggage. and which it contracted to carry." Blandford, J., in Charleston, etc., Ry. Co. V. Moore. SO Ga. 522. 5 S. E. 7P.9 (188S). "I -wish, to add here a remark, that when the words 'imposition,' 'deception,' 'fraud' are used. It is because they are found in the boolcs treating on this matter, and not as imputing to the plaintiffs any motive or design inconsistent with complete aiercantile honor and fair dealing. It would be more accordant with the idea meant to be conveyed to use the language suggested by reputable writers on insurance, and to say that a concealment without design is a fail- ure to observe an implied condition that the contract for carriage is free from misrepresentation or concealment. It is proper also to add that while such a concealment, under such a contract as there is in this case, relieves the c-ar- rier from liability for a loss occurring from ordinary negligence, we do not now hold that he* will be thereby thus relieved, where his acts or those of his servants have amounted to a misfeasance or abandonment of his character as carrier." Folger, J., in Magnin v. Dinsmore, 62 N. Y. 35, 20 Am. Rep. 442 (187.0). With the principal case, compare Walker v. Jackson, 10 Mees. & W. 161 (1842), which holds that a ferryman liable for the loss of a carriage given into his custody is not relieved from liability for the loss of boxes of jewelry under its seat by the shippers failure to inform him of their presence. Com- pare, also, Shaw v. Gt. Western Ry. Co., [1S94] 1 Q. B. 373, 380. See, also, Baldwin v. Liverix)ol. etc., Co., 74 N. Y. 12.5. 30 Am. Rep. 277 (1878), carrier entitled to agreed freight only on a box which witliout its knowledge contained bonds worth $1.000,000 ; Smith v. Findley, 34 Kan. 316, 8 Pac. 871 (1885), entitled to extra freight where, under a contract to carry household goods, other goods were shipped for which it had a higher rate; U. S. Ex. Co. V. Koerner, 65 Minn. .540. 68 N. W. 181, 33 L. R. A. 600 (1896). 48 The statement of facts and parts of the opinion have been omitted. 100 THE carrier's undertaking. (Part 2 The impossibility of traveling without the accompaniment of a certain quantity of luggage for the personal comfort and convenience of the traveler has led from the earliest times to the practice on the part of carriers of passengers for hire of carrying, as a matter of course, a reasonable amount of luggage for the accommodation of the passengers, and of considering the remuneration for the car- riage of such luggage as comprehended in the fare paid for the con- veyance of the passenger. Under the older system of traveling by stage coaches, canal boats, or other vessels, the amount of luggage to be thus carried free of charge was commonly made part of the con- tract by express stipulation or notice from the carrier. Under the modern system of railway conveyance, it is fixed and regulated by the various acts of Parliament under which railways have been estab- lished. The provision fixing the amount of luggage which the traveler shall be entitled to take with him free of charge has a twofold object: First, that of securing to the traveler the conveyance of a reasonable amount of luggage; secondly, that of protecting the carrier from all dispute as to the amount of luggage which the passenger may claim to have carried, as well ,as of entitling the former to a proper re- muneration for the carriage of luggage in excess of the quantity thus fixed by statute. Besides thus fixing the quantum of luggage which the passenger shall be entitled to have carried free of charge, the Railway Acts have, in conformity with the practice of carriers under the old system, taken care expressly to limit the right of the passenger to ordinary luggage, which must be taken to mean the personal luggage of the traveler. The conveyance of the personal luggage of the passenger being obviously for his convenience, and, therefore, accessory, as it were, to his conveyance, it may be thought that the liability of the carrier in respect of the safe conveyance of passengers' luggage should have been coextensive only with the liability in respect of the safety of the passenger. The law, however, is now too firmly settled to admit of being shaken, that the liability of common carriers in respect of ar- ticles carried as passengers' luggage is that of carriers of goods as distinguished from that of carriers of passengers; unless, indeed, where the passenger himself takes the personal charge of them, as in Talley v. Great Western Ry. Co., L- R. 6 C. P. 44, in which case other considerations arise. On the other hand, the obligation of a railway company, or other carrier of passengers, to carry the luggage of a passenger being limited lo personal luggage, it follows that it is only in respect of what prop- erly falls under the denomination of personal luggage, or has been accepted by the carrier as such, that the liability to carry safely ir- respectively of negligence, attaches. It is necessary to state the proposition with this qualification; for, Ch, 1) THE CONDUCT OF TRANSPORTATION. 101 as the limitation, both as to the quantity and the character of the kig- gage to be carried, is estabhshed for the protection of the carrier, it follows that in either respect it may be waived by the latter; and, consequently, that if the carrier permits the passenger, either on pay- ment or without payment of an extra charge, to take more than the regulated quantity of luggage, or knowingly permits him to take as personal luggage articles that would not come under that denomina- tion, he will be liable for their loss though not arising from his neg- ligence. [The learned judge here reviewed certain cases.] =1^ * * While the authorities referred to establish that a passenger cannot claim to have carried as ordinary personal luggage articles unconnected with the personal use and convenience of the traveler, or, as in Hud- ston v. Midland Ry. Co., L. R. 4 Q. B. 366, of such a size and shape as that they cannot reasonably be carried as luggage, we hold the true rule to be that whatever the passenger takes with him for his personal use or convenience according to the habits or wants of the particular class to which he belongs, either with reference to the im- mediate necessities, or to the ultimate purpose, of the journey, must be considered as personal luggage. This would include, not only all articles of apparel, whether for use or ornament — leaving the carrier herein to the protection of the Carriers Act, to which, being held to be liable in respect of passengers' luggage as a carrier of goods, he undoubtedly becomes entitled— but also the gun case or the fishing apparatus of the sportsman, the easel of the artist on a sketching tour, or the books of the student, and other articles of an analogous char- acter, the use of which is personal to the traveler, and the taking of which has arisen from the fact of his journeying. On the other hand, the term "ordinary luggage" being thus con- fined to that which is personal to the passenger and carried for his use or convenience, it follows that what is carried for the purposes of business, such as merchandise or the like, or for larger or ulterior purposes, such as articles of furniture or household goods, would not come within the description of ordinary luggage unless accepted as such by the carrier. The articles as to which the question in the present case arises con- sisted of bedding. Now, though we are far from saying that a pair of sheets, or the like, taken by a passenger for his own use on a jour- ney, might not fairly be considered as personal luggage, it appears to us that a quantity of articles of this description, intended, not for the use of the traveler on the journey, but for the use of his house- hold when permanently settled, cannot be held to be so. We are, therefore, of opinion that the rule to reduce the damages in respect' of these articles must be made absolute. Rule absolute.*^ 49 In Britten v. Great Northern Railway Co.. [1899] 1 Q. B. 243. Channell. T said- "It seems to me tliat, overriding it all, in the word 'luggage' there is' involved the idea of a package or something of that sort ; and it seems to 102 THE carrier's UNDERTAKING. (Part 2 DUNLAP V. INTERNATIONAL STEAMBOAT CO. (Supreme Judicial Court of Massachusetts, 1807. 98 Muss. 371.) Actions of tort against a common carrier for loss of a valise taken as baggage, and containing, among other articles, money belonging to each of the plaintiffs. The judge instructed the jury, substantially in accordance with the defendant's request, that for money in the valise in excess of a reason- me that an article which is taken, as it were, loose, as a bicycle is talcen, is subject to rather different considerations. I think that Mr. Russell is right in saying that there must be added to the things which are not luggage things of a si>ecial character, which require special care, and are not packed in this way. There are many small articles, such as musical instruments, for in- stance, or a gun apart from its case, which are sometimes carried by pas- sengers. I do not think that a passenger could require articles of that kind to be taken as luggage, loose and without package, though it may be that a gun in a gun ease packed up would be a ixickage and ordinary luggage. * * * When it is tendered to the company unpacked, it seems to me they are entitled to say, 'This sort of thing is not what we are called upon to carry as personal lug- gage;' and that is, I think, the result of. the case of Macrow v. Great West- ern Railway, L. R. 6 Q. B. 612. I think that is sufficient to justify me in hold- ing that a bicycle is not personal luggage." Ace. Missouri v. Missouri Pac. Ry. Co., 71 Mo. App. 385 (1897). In Runyon v. Central R. Co. of N. J., 61 N. J. Law, 537, 41 Atl. 367, 43 L. R. A. 284, 68 Am. St. Rep. 711 (1S9S). it was held that a railroad may refuse to permit a passenger returning to his home in the suburbs to bring into its pas- senger car a parcel bought in the city and carried in his hand, which he would not be entitled to have carried as baggage, and that a 10-pound package of nails was such a parcel. But it was also held that if it has been usual to permit passengers to carry such parcels, so that they have formed a practice of doing so, the permission can only be withdrawn after reasonable notice. It has been held: That a pair of dueling pistols on an Illinois river steam- boat in 1851 were proper baggage. Woods v. Devin, 13 111. 746, 56 Am. Dec. 483 (18.52). Otherwise as to two revolvers. Chicago, R. I. & P. R. Co. v. Col- lins, 56 111. 212 (1870). And as to a single pistol. Cooney v. Pullman Co., 121 Ala. 368, 25 South. 712, 53 L. R. A. 690 (1899). That material bought in New York for a dress for a passenger's wife was baggage ; otherwise, as to mate- rial for a dress for his landlady. Dexter v. Syracuse R. Co., 42 N. Y. 326, 1 Am. Rep. 527 (1870). That the manuscript books of a student on his way to college were baggage. Hopkins v. Westcott, 6 Blatchf. 64, Fed. Cas. No. 6,692 (1868). But tliat a client's title deeds, taken by his attorney to pro- duce in evidence on a trial, were not "ordinary luggage," under a statute de- fining the passenger's rights. Phelps v. London & N. W. Ry. Co., 19 C. B (N. S.) 321 (1865). That tools of a mechanic are baggage, but only when reasonable in quantity and of a kind usually carried for personal use. Kansas City, etc., R. Co. V. Morrison, 34 Kan. 502, 9 Pac. 225, 55 Am. Rep. 252 (1886): Missouri, etc., Co. v. Meek, 33 Tex. Civ. App. 47, 75 S. W. 317 (1903). That a traveling salesman's catalogue was baggage. Staub v. Kendrick, 121 Ind. 226, 23 N. E. 79. 6 L. R. A. 619 (1889) ; Gleason v. Transportation Co., 32 Wis. 85, 14 Am. Rep. 716 (1873). But that samples used by him in making sales were not. 111. Central R. Co. v. Matthews, 114 Ky. 973, 72 S. W. 302, 60 L. R. A. 846, 102 Am. St. Rep. 316 (1903) ; Kansas Citv, P. & G. R. Co. v. State, 65 Ark. 363, 46 S. W. 421, 41 L. R. A. 333. 67 Am. St. Rep. 933 (1898). For other cases, see Carriers, 9 Cent. Dig. §§ 1520-1528, 4 Dec. Dig. § 391. For the liability of an express company carrying from a railroad station to the owner's residence a trunk containing articles not baggage, see Parmelee V. Lowitz, 74 111. 116, 24 Am. Rep. 276 (1874). Ch. 1) THE CONDUCT OF TRANSPORTATION. 103 able amount for traveling- expenses the defendant would be liable if the valise were lost by its gross negligence or fraudulently ap- propriated by any person in its regi?lar employment while on duty in or about the baggage. The jury gave verdicts for the full value of the property lost. The judge reported the case for revision, the ver- dicts to be set aside, affirmed, or amended as law or justice might require. BiGELOW, C. J.^" * * * On careful consideration of the instruc- tions embraced in the defendants' prayer and those given by the court to the jury, we are led to the conclusion that neither of them con- tained a correct statement of the rules of law applicable to the facts in proof. It was shown at the trial, and on this part of the case there was no controversy between the parties, that there was but a single article of luggage delivered to the defendants; that this was a valise such as is commonly used by travelers for the transportation of wear- ing apparel and other personal effects; that the whole of the contents, except a portion of the money contained in it, belonged to one of the plaintiffs, by whom it was delivered to the defendants' agent ; and that the other plaintifif had no valise or trunk, and no wearing ap- parel or other articles of personal use in his possession or keeping, except such as were on his person when he went on board. In this state of the evidence, the question arises as to the extent of the de- fendants' liability for the loss of the valise. It is conceded that they are responsible in damages to the plaintiff who owned the valise, for the value of the wearing apparel and the other articles of personal use contained in it, and also for such an amount of money therein as was sufficient to defray his traveling expenses on the journey which he had undertaken. The controversy is as to their further liability for the residue of the money contained in the valise. * * * In regard to carriers of passengers, there can be no doubt that per- sons who enter into contracts with them to transport themselves and their luggage, nothing being said as to the contents of the parcels which are delivered for carriage, and these being in the form of trunks or valises such as are commonly used for clothing and other personal effects, represent by implication to the carriers that they contain no articles or property not properly included within this class or de- scription, and such as a traveler may carry with him as part of his luggage, and for which he can hold the carrier responsible under his contract. If other and different articles of greater value are contained in such trunks or valises, it is a disguise of their true nature and value, and operates as an unfair and fraudulent concealment of them which absolves the carriers from liability therefor in case of loss. Nor is this all. In such a case, the owner can prove no contract for the transportation of any articles other than wearing apparel and other 6 The statement of facts has been rewritten, and parts of the opinion omitted. lO-l THE carrier's UNDERTAKING. (Part 2 ordinary personal effects and an amount of money reasonably suf- ficient for the payment of traveling expenses. What is the contract into which the carrier enters when he receives a passenger? It is only to transport him safely, together with such articles and money as are properly contained in the luggage which he brings with him ; but he does not contract to transport anything which he may bring with him in the shape of luggage, when in fact it is not properly such, but merchandise or money which he cannot ask the car- rier to receive in that form. Therefore it is that he cannot be held liable at all, not even for gross negligence, for the loss of any articles not embraced within the contract. He did not agree to receive or transport money beyond a certain amount, or merchandise of any kind ; and he cannot be held liable for any, even the smallest degree of care of that which he did not agree to take into his possession and keeping. ^^ * * * These principles are decisive of the rights of the parties to these actions. The only contracts into which the defendants are shown to have en- tered with the plaintiffs are for the carriage of one of them with his luggage, and of the other without any luggage. To the former they are liable only for the sum found by the jury to be the value of his wearing apparel and personal effects, and for the sum of money con- tained in his valise necessary to defray his traveling expenses. To the other plaintiff they are not liable at all, because he is not shown to have made any contract with them to transport luggage. The money belonging to him in the valise of the first plaintiff cannot be recovered. Of its existence the defendants had no knowledge. It was concealed from them by being put into luggage which was de- livered to and received by them as belonging to one passenger only. It was as such that they agreed to carry it. It was in effect a con- cealment of its real value to put into it a larger amount of money than was sufficient for the expenses of a single passenger. This enhanced the risk assumed by the defendants, without their knowledge. It exposed them to the hazard of incurring, by the loss of the luggage 51 Ace. Great Northern Ry. Co. v. Shepherd. 8 Ex. 30 (1852); Michigran Central R. Co. v. Carrow, 7.3 111. 348, 24 Am. Rep. 248 (1874); Toledo, etc., R. Co. V. Bowler, etc.. Co., 03 Ohio St. 274. .58 N. E. 813 (1900) ; Missouri, K. & T. R. Co. V. Meek, 33 Tex. Civ. App. 47, 75 S. W. 317 (1003). carrier holding as warehouseman; Choctaw, O. & G. R. Co. v. Zwirtz, 13 Okl. 411, 73 Pac. 941 (1908). delay in delivery; Yazoo & M. V. R. Co. v. Georgia, etc., Co., 85 Miss. 7, 37 South. 50O, 67 L. R. A. 646. 107 Am. St. Rep. 265 (1904). delay in delivery ; Mexican Cent. Ry. Co. v. De Rosear (Tex. Civ. App.) 109 S. W. 949 (190S). But see Trouser Co. v. Railroad, 139 N. C. 382, 51 S. E. 973 (190.5). In Great Northern Ry. Co. v. Shepherd, supra, Parke. B., said: "Whether this was done for any fraudulent purpose, it is not necessary to inquire; be- cause, even if there was no fraudulent intent, the plaintiff lias so conducted himself that the company were not aware that he was not carrying luggage, and therefoi-e the loss must be borne bv him." Ace. Pardee v. Drew, 25 Wend. (N.'y.) 459 (1841); Mich. Cent. R. Co. v. Carrow, supra. Compare Wilkinson v. Lancashire, etc., Ry., [1907] 2 K. B. 222. Ch, 1) THE CONDUCT OF TRANSPORTATION. . 10& of one passenger, a heavier liability than they had ever agreed to assume. It is obvious that this was a practical fraud on the defendants. Nor can we see any limit to the amount of liability which might be thus imposed on carriers of passengers, without notice to them, if they can be held to be chargeable in this action beyond the amount of money which one person might properly carry. If a single passenger could carry at their risk the money of another fellow passenger in his own valise or trunk, he might in like manner render them liable, in case of the loss of his luggage, for the money of any number of pas- sengers, however large. ALLING V. BOSTON & A. R. CO. (Supreme Judicial Court of :Miissachnsetts, 1879. 126 Mass. 121, 30 Am. Rep. 667.) Morton, J.^^ * * * The plaintiffs offered to show "that a large part of the defendant's business consisted in transporting a large class of passengers known as commercial travelers, with trunks like this, containing merchandise of great value, and that these trunks are known as sample or merchandise trunks, and are of special construc- tion, and in the course of that business the commercial travelers pur- chase tickets for the ordinary passenger trains and receive checks for their said trunks, and the defendant undertakes to transport the trav- eler and trunk accordingly for the price of the ticket." The court properly rejected this evidence. The same evidence in substance was offered and rejected in Stimson v. Connecticut River Railroad, 98 Mass. 83, 93 Am. Dec. 140. It would undoubtedly be competent for a railroad corporation to agree to transport, at its risk, merchandise by a passenger train for the price of the ticket sold to the passenger. And if the defendant had made such an agreement specially with Kerr, or if it had by no- tice or otherwise made a general agreement that commercial travelers might carry merchandise upon passenger trains at its risk, it might be liable in this action. But the offer of proof does not go far enough to show such an agreement. The fact that commercial travelers or others are accustomed to carry merchandise in passenger trains without paying any more than the usual price of a ticket for a passenger, even if known to the car- riers, will not render them liable for such merchandise. The travelers carry such merchandise at their own risk. The established rule of law which limits the responsibility of the carrier, upon the contract implied by the sale of a ticket to a passenger to the proper personal baggage of such passenger, cannot be annulled, and the liability of the 62 The statement of facts and part of tlae opinion have been omitted. 106 THE carrier's UNDERTAKING. (Part 2 carrier enlarged, without proof of an ag-reement to that effect entered into by the carrier. For these reasons, we are of opinion that, upon the evidence in this case, the jury would not be justified in finding the defendant liable either in contract or tort. Plaintiffs nonsuit.^^ ST. JOSEPH & W. R. CO. v. WHEELER. (Supreme Court of Kansas, 1886. 35 Kau. 185, 10 Pac. 461.) Action by an administrator against a railroad company to recover damages for negligently causing the death of his intestate, a boy named Frank Wheeler. It appeared at the trial that, while defend- ant's construction train with caboose attached was being loaded with earth to be earned to another point on the line for the repair of the roadbed there, Wheeler came up and, learning where the train was going, asked permission to ride. The conductor consented, and Wheeler rode with trainmen in the caboose. He was killed in a colli- sion with a freight train caused by defendant's negligence. Plaintiff had a verdict. Johnston, J.^* (after stating the facts). * * * One of the questions raised is that there was no correspondence between the pleadings and the evidence. The point is made that the plaintiff al- leged that Frank Wheeler was a passenger — a term which it is claimed implied that Frank Wheeler was traveling in a public conveyance by virtue of a contract, express or implied, with the carrier, as the pay- 53 Ace. McKibbin v. Great No. Ry. Co., 7S Minn. 232, 80 N. W. 1052 (1899) ; Illinois Cent. R. Co. v. Mattbews. 114 Ky. 973, 72 S. W. 302, 60 L. R. A. 84(3. 102 Am. St. Rep. 316 (1903). Compare ^icKibbin v. Wis. Cent. Ry., 100 Minn. 270, 110 N. W. 904, 8 L. R, A. (N. S.) 489. 117 Am. St. Rep. 689 (1907). In tbe following cases wbere a baggagemaster, tbough against instructions, received, for transportation as baggage, trunks which he knew to contain mer- chandise, tbe carrier was held liable as for baggage: Central Trust Co. v. Wabash R. Co. (C. C.) 39 Fed. 417 (1889) ; St. Louis S. W. R. Co. v. Berry. 60 Ark. 433, 30 S. W. 764, 28 L. R. A. .501, 46 Am. St. Rep. 212 (1895). And see Hannibal R. R. v. Swift, 12 Wall. 202, 20 L. Ed. 423 (1870) ; Talcott v. Wabash R. R. Co., 159 N. Y. 461. 471. 54 N. B. 1 (1899). It has been held otherwise if the passenger knew of the instructions. Weber Co. v. Chicago, etc., Co.. 113 Iowa. 188, 84 N. W. 1042 (1901). And even if he did not know. Blumantle V. Fitchburg R. Co., 127 Mass. 322, 34 Am. Rep. 376 (1879). In Cahill v. London & N. W. Ry. Co., 13 C. B. (N. S.) 818 (1863) Cockbum, C. J., said: "The question, therefore, comes to this: Was there knowledge on the part of the company that the box which the plaintiff was carrying with him as personal luggage in fact contained merchandise? * * ♦ It is true that the package bore the semblance of a package of merchandise, and it was marked 'Glass.' But many packages which do not contain merchandise are so marked in order to secure their being handled with more than ordinary cau- tion. It is not found ig the case that the company or their servants had any knowledge on the subject ; nor do I think we can assiune it is a legitimate con- clusion from the facts as stated." 5* The statement of facts has been rewritten, and parts of the opinion omitted. Ch. 1) THE CONDUCT OF TRANSPORTATION. 107 ment of fare, or that which is accepted as an equivalent therefor, while the evidence offered showed that he was carried on a train not designed for passengers, that no fare was collected or expected to be paid, and therefore that he did not stand toward the company in the relation of a passenger. This is one sense in which the term is used, but not the only one. It is commonly applied to any one who travels in a convey- ance, or who is carried upon a journey, irrespective of the character of the conveyance or of compensation to the carrier. While the plaintiff alleged that Wheeler was carried as a passenger, he nowhere averred that he was carried for hire, nor can it be said that the petition was framed upon the theory that there was a contract relation between deceased and the company. It was rather upon the theory that he was not a trespasser upon the defendant's train, and it is specially alleged that he was upon the train with the knowledge and consent of the conductor. From this averment it is manifest that the pleader did not rely upon any agreement between the company and Wheeler, and did not intend to hold the company to extraordinary care, as it would be held in carrying persons who were passengers in a strictly legal sense ; but rather, that as Wheeler was upon the train with the consent of the conductor, he was not wrongfully there, and the company owed him the duty of ordinary care. The action was founded upon the neglect of the company and not upon the breach of a contract ; and allegations of the relation which he occupied toward the company are only material for the purpose of determining and fixing the grade of care owing to him by the com- pany. As we interpret the petition, it did not allege that the relation of carrier and passenger existed by reason of an agreement between the deceased and the company, and therefore that there was no sub- stantial variance between the pleadings and the evidence. A series of instructions were prepared by the railroad company and disallowed by the court, and their refusal is assigned as error. Most of them in effect instructed a verdict in favor of the defendant, and asserted that the company cannot be held liable for injury to one who rides upon a construction train with the consent of the conductor, and who is not a passenger in the ordinary sense. They were properly re- fused. We concur with the view of the law taken by the trial judge where he states that : "Under the admitted facts and the evidence in the case, the said Frank Wheeler was not a trespasser upon the defendant's train, al- though he was not in legal contemplation a passenger. A common carrier of passengers is bound to exercise extraordinary care towards its passengers, and is liable for slight negligence, but it does not owe the same degree of care to a person on one of its vehicles or trains, who does not stand in the relation of a passenger. To such persons a carrier owes only the duty of ordinary care, which is that degree of care which persons of ordinary prudence would usually exercise un- der like circumstances." 108 THE carrier's UNDERTAKING. (Part 2 It is contended that Frank Wheeler was an intruder upon the train, for whose injury no habiHty could arise against the company, for two reasons: First, that the conductor had instructions not to carry pas- sengers on the construction train; and second, that from the nature of the business which was being done with the train, and also its equipment, it was apparent that the company did not permit passen- gers to be carried thereon. Neither of these circumstances will de- feat a recovery in this case. It is true the conductor had been in- structed not to allow persons to ride upon his train as passengers, but Frank Wheeler had no knowledge of such instruction. He had asked and obtained permission to ride upon the train. It was within the range of the employment of the conductor to grant such permission. He had entire charge of the train, and was the general agent of the company in the operation of the train. As he was the representative of the company, his act, and the permission given by him, may proper- ly be regarded as the act of the company. If Wheeler had fur- tively entered upon the train, or had ridden after being informed that the rules of the company forbade it, or had obtained permission only from the engineer, brakeman, or some other subordinate employee, the argument made by counsel might apply. * * h- As the charge given fairly presented the law of the case to the jury, the errors assigned will be overruled, and the judgment will be af- firmed. TOLEDO, W. & W. RY. CO. v. BROOKS. (Supreme Court of Uliuois, 1876. 81 111. 24o.) Writ of error to the circuit court of Champaign county. This was an action on the case, by Julia A. Brooks, administra- trix of the estate of William H, Brooks, deceased, against the Toledo, Wabash & Western Railway Company, to recover damages for caus- ing the death of plaintiff's husband and intestate, through negligence. A trial was had, resulting in a verdict and judgment in favor of plain- tiff, for $3166. Walker, J.^^ * * * It is urged that the court erred in refus- ing to give the ninth or some one of the other instructions asked by plaintiff in error, but refused by the court. That instruction asserts that if deceased knew that the regulations of the company prohibited persons from traveling on the road without a ticket or the paying of fare, and if, after being so informed, he went on the train, and by arrangement with the conductor, was traveling without a ticket or pay- ing his fare, deceased, in such case, would not be a passenger, and the company would not be liable for the negligence of their officers. In some form, all these refused instructions present this question. 6 5 Part of the opinion is omitted. Ch. 1) THE CONDUCT OF TRANSPORTATION. 109 Defendant in error insists that this case is governed by that of Ohio & Mississippi Railroad Co. v. MuhUiig, 30 111. 9, 81 Am. Dec. 336. In that case the passenger had been in the employment of the road, and was neither prohibited from getting on the train, nor informed that it was against the rules for him to do so without a ticket or the payment of fare. Again, the company, in that case, seems to have owed the plaintiff for labor, which would have enabled them to deduct the amount of fare from the amount owing him. It was there said, that if a person was lawfully on the train, and injuries ensued from the negligence of the employes of the company, the passenger thus in- jured might recover. On the part of plaintiff in error it is urged that railroad companies, being liable for the want of care of their officers by which passengers suft'er injury, must have the power to make all reasonable regulations for the government of their employes, and the power to enforce them ; that it is a reasonable regulation which prohibits persons from travel- ing upon their roads without purchasing a ticket or paying fare ; that a person going on their road in known violation of such a rule, and by inducing the conductor to violate it, is not lawfully on the road, and the company should not be held responsible for an injury received by such person ; that where a person actively participates in the violation of such a rule intentionally and knowingly, he does not occupy the same relation to the road as had he not known of the rule or not done any act to induce its violation. It is manifest that if a person were stealthily, and wholly without the knowledge of any of the employes of the company, to get upon a train and secrete himself, for the purpose of passing from one place to another, he could not recover if injured. In such a case his wrongful act would bar him from all right to compensation. Then, does the act of the person who knowingly induces the conductor to violate a rule of the company, and prevails upon him to disregard his obliga- tions to fidelity to his employer, to accomplish the same purpose, oc- cupy a different position, or is he entitled to any more rights? He thereby combines with the conductor to wrong and defraud his em- ployer out of the amount of his fare, and for his own profit. In this case the evidence tends strongly to show that both defendant in er- ror and her husband had money more than sufficient to pay their fare to Danville, and a considerable distance beyond that place. If this be true, and defendant in error swears they had, then they were engaged in a deliberate fraud on the company, no less than by false representa- tions to obtain their passage free from Decatur to Danville, and thus defraud the company out of the sum required to pay their fare. In this there is a broad distinction from Muhling's Case, as in that case there was no pretense of fraud or wrong on his part. The court be- low should have given some one of the defendant's instructions which announced the view here expressed. The evidence is not of the character to convince us that the judg- 110 THE carrier's UNDERTAKING. (Pirt 2 ment should stand, notwithstanding the erroneous instructions given or the refusal to give proper instructions. We have no doubt that the erroneous instructions given misled the jury in finding their ver- dict. For the errors indicated, the judgment of the court below must be reversed and the cause remanded. CONDRAN v. CHICAGO, M. & ST. P. RY. CO. (Circuit Court of Appeals, Eighth Circuit, 189.5. 67 Fed. 522, 14 C. C. A. 506, 28 L. R. A. 749.) Plaintiff brings error. Caldwell, C. J.^® The case is stated by Judge Shiras, who tried it in the Circuit Court, in his charge to the jury, as follows: "In the case now on trial before you it appears from the undis- puted evidence in the case that on the evening of June 16, 1891, a pas- senger train on the defendant's line of railway was derailed at or near a bridge crossing the Coon river, not far from the town of Coon Rapids, in this state ; that Henry Condran was on the train when it was derailed, and was instantly killed; that the plaintiff is the administra- trix of his estate, and that she brings this suit to recover the damages caused to the estate of Henry Condran by his death, claiming that the said Henry Condran was a passenger on defendant's train, and that the derailment of the train, and consequent death of said Henry Con- dran, was caused by the negligence of the railway company. * * * If the deceased in fact had money with him, with which he could have paid his fare, but instead of paying the same, he intentionally mis- stated his situation to the conductor, and by false representation in- duced the latter to allow him to remain on the train, then it could not be said that he was rightfully upon the train, but he would be there in fraud of the rights of the company, and the legal relation of carrier and passenger would not in such case exist between him and the com- pany. The company would then owe him no other duty than not to willfully or recklessly injure him, and, as there is no evidence in this case which would justify you in holding that the accident and conse- quent death of Henry Condran was due to recklessness or willful- ness on part of the company, it follows that in case you find that said Condran fraudulently misstated the facts of his situation to the con- ductor, and as a consequence was allowed to remain on the train without paying his fare, then your verdict must be for the defendant. On the other hand, if the deceased had in fact paid his fare, or if, being without means, he fairly stated his condition and situation to the conductor, and the latter, in consideration of the statements made him, permitted Condran to remain on the train, then the relation ex- 6 8 Parts of the statement of facts and opinion are omitted. Ch. 1) THE CONDUCT OF TRANSPORTATION. Ill isting between Conclran and the company would be that of passenger and carrier." The only assignments of error which this court can notice are those which challenge the soundness of this charge. * * * The rule is well settled that where one gets on a passenger train with the deliberate purpose not to pay his fare, and adheres to that purpose, or if, being on the train, and having money with him with which he could pay his fare, he falsely and fraudulently represents to the conductor that he is without means to pay his fare, and by means of such false representations induces the conductor to permit him to remain on the train without paying his fare, the relation of carrier and passenger and the obligations resulting from that relation are not thereby established between him and the company, and the company owes him no other duty than not to willfully or recklessly injure him. Railway Co. v. Brooks, 81 111. 250; Railroad Co. v. Michie, 83 111. 431; Railway Co. v. Beggs, 85 111. 84, 28 Am. Rep. 613; Railroad Co. v. Mehlsack, 131 111. 64, 22 N. E. 812, 19 Am. St. Rep. 17 ; McVeety v. Railway Co., 45 Minn. 269, 47 N. W. 809. 11 L. R. A. 174, 22 Am. St. Rep. 728; Robertson v. Railway Co., 22 Barb. (N. Y.) 91; Rail- way Co. V. Nichols, 8 Kan. 505, 12 Am. Rep. 475 ; Prince v. Railroad Co., 64 Tex. 146 ; Railway Co. v. Campbell, 76 Tex. 175, 13 S. W. 19 ; Way V. Railway Co., 64 Iowa. 48, 19 N. W. 828, 52 Am. Rep. 431 ; Id.. 73 Iowa, 463, 35 N. W. 525. The law will do nothing to stimulate and encourage fraud and dis- honesty, and that would be the effect of holding that a railroad com- pany owed to one riding on its train under the conditions named the duties and obligations it owes to a passenger who has honestly paid his fare. Railroad companies are as much entitled to protection against fraud as natural persons. It is a matter of common knowl- edge, of which the court will take judicial notice, and of which the public are bound to take notice, that railroad passenger trains are operated to carry passengers for hire. They are not eleemosynary agencies. It is equally well known that the authority of a railroad conductor does not extend to the carrying of passengers without pay- ment of the regular fare. But, if he had such authority, his assent obtained by the fraudulent means mentioned would confer no rights. One riding on a train by fraud or stealth, without the payment of fare, takes upon himself all the risk of the ride, and if injured by an accident happening to the train, not due to recklessness or willful- ness on the part of the company, he cannot recover. * * * The judgment of the Circuit Court is affirmed." 5 7 In Austin v. Gt. Western Ry. Co., L. R. 2 Q. B. 442 (1867), the carrier charged half fare for children three years old. A passenger who did not know the rule took with her a child of three ; the company let it ride free not knowing its age. The child recovered for negligent injury. In Odell V. N. Y. C. R. Co., 18 App. Div. 12. 45 N. Y. Supp. 464 (1897). a carrier which issued a ticket good for visitors to the purchaser's family was 112 THE carrier's UNDERTAKING. (Part 2 held to owe a duty of care to a person permitted to ride on tlie ticlcet, wliO presented it in good faith, though not a visitor witliin its meaning. In Gary v. Gulf. etc.. R.v. -Co.. 17 Tex. Civ. App. 129. 42 S. W. 576 (1897), a ticket holder who had taken a wrong train by mistake was held to be en- titled to the care due a passenger while the train was stopped to put her off. Where a railroad by its own mistake received and carried baggage checked to go by another route, it was held bound to the exercise of ordinary care, and therefore liable for negligent damage. Fairfax v. N. Y. C. R. Co.. 73 N. Y. 107, 29 Am. Rep. 119 (1878). But where a traveler by steamboat, under a mistaken belief that he was entitled to do so, checked his trunk by a com- peting railroad, which took charge of it supposing it to belong to a railroad passenger, it was held that the railroad was not liable for damage by negli- gence, though gross, because under no duty to take care. Beers v. Boston, etc., Co., 67 Conn. 417. 34 Atl. 541. 32 L. R. A. 535, 52 Am. St. Rep. 293 (1890). Where a man checked his trunk by a railroad over which he had no ticket and did not travel, it was held that the carrier, being a gratuitous bailee, was not liable for nonnegligent loss. Wood v. Me. Cent. R. Co., 98 Me. 98, 56 Atl. 457. 99 Am. St. Rep. 339 (1903). And a like decision was reached where, though he had a ticket and checked his trunk by means of it, he did not intend at any time to travel on the ticket. Marshall v. Pontiac. etc., Co., 126 Mich. 45, 85 N. W. 242, 55 L. R. A. 6.50 (1901). But the carrier has been held liable where the owner had a ticket and intended to use it on a later day. McKibbin V. Wis. Cent. Ry.. 100 Minn. 270, 110 N. W. 964, 8 L. R. A. (N. S.) 489, 117 Am. St. Rep. 689 (1907). And where the carrier knew that the owner did not in- tend to use it at all. Adger v. Blue Ridge Ry. Co., 71 S. G. 213, 50 S. E. 783, 110 Am. St. Rep. 568 (1905). Ch. 2) EXCUSES FOR FAILURE TO TRANSPORT AND DELIVER. 113 CHAPTER II EXCUSES FOR FAILURE TO TRANSPORT AND DELIVER HADLEY V. CLARKE. (Court of King's Bench, Trinity .Term, 1799. 8 Term R. 259.) Assumpsit for breach of a contract of carriage. A verdict was found for the plaintiff, subject to the opinion of the court upon a case stated in which the following facts appeared : In June, 1796, plaintiff shipped goods on board defendants' ship Pomona at Liverpool for a voyage to Leghorn. The ship sailed from Liverpool with goods of the plaintiff and of other shippers, and went to Falmouth to join convoy for the voyage to Leghorn. While she was at Falmouth, the British government, by an order in council of July, 1796, laid an embargo on vessels bound to Leghorn. By an order in council of August, 1796, such vessels were freed from the embargo so far as to permit them to return to their ports of loading and to discharge their cargoes. In June, 1798, defendants notified plaintiff' that unless he chose to have his goods landed at Falmouth, they would be taken to Liverpool and discharged there. In August, 1798, the ship sailed without plaintiff's consent to Liverpool, where by agreement plaintiff' received his goods without prejudice to his right of action. In October, 1798, the embargo was taken off. Lord Kenyon, C. J.i * =i= * It is admitted that an embargo, being imposed during the war, was a legal interruption of the voy- age ; but it would be attended with the most mischievous consequences if a temporary embargo were to put an end to such a contract as this, because, if it were to have that effect, it must also have the effect of putting an end to all contracts for freight and for wages. The dif- ficulty in this case is to draw the line. The defendants contracted with the plaintiff to carry his goods to Leghorn; that contract was certainly obligatory at the time w^hen it was made ; and it must con- tinue-to be binding unless it has since been put an end to. Then, at what time was it put an end to? Was it put an end to during the ship's stay at Falmouth, or immediately after she sailed for Liver- pool? It would afford an argument against the defendants in this particular case that they kept the goods on board during all this time, and thought they were bound by this contract. However I do not de- cide this case on that ground, but on the general ground that a tem- 1 The statement of facts lias been rewritten, and parts of Lord Kenyon's opinion tiave been omitted. Green Carr. — 8 114 THE carrier's UNDERTAKING. (Part 2 porary interruption of a voyage by an embargo, does not put an end to such a contract as this. If this contract were put an end to, it might equally be said that interruptions to a voyage from other causes would also have put an end to it; e. g., a ship being driven out of her course. And yet that was never pretended. Instances of such interruptions frequently occur in voyages from the northwest parts of this kingdom to Ireland ; sometimes ships are driven by the vio- lence of the winds to the ports in Denmark, where they have been obliged to winter. * * * Grose, J. This seems to be a case of peculiar hardship either on the one side or the other, and therefore we must determine it accord- ing to the strict rules of law. This contract was certainly binding on these parties at the time ; and I agree with the defendants' coun- sel that the true meaning of it was, that the defendants were bound to convey the plaintifif's goods within a reasonable time. After the contract was made, an embargo was imposed, which was only a tem- porary restraint, and prevented the ship's performing her voyage at that time; but still the defendants were bound to comply with the terms of the contract as soon as they reasonably could. Even if we consider the embargo to have the same effect as an act of Parliament, still it would only create a temporary restraint, until such time as the King in Council should take off the embargo. Such an act of Parlia- ment would not dissolve, it would only suspend the execution of, the contract; and the embargo cannot have a greater effect. If the em- bargo dissolved the contract, when did the dissolution take place? The mere stating of the question puts an end to all further inquiry. The defendant's counsel could not show at what precise time the contract was dissolved; and if this contract were dissolved by the embargo, it would be followed by the very alarming consequence stated at the bar, that all the contracts between the owner and the mari- ners would also be put an end to. Here, neither of the parties being in fault, the strict law must take place. The defendants have not done that which, by their contract, they were bound to perform ; and, therefore, the plaintiff is entitled to recover the damages which he has sustained by reason of their nonperformance of the contract. Lawrence, J. This is certainly a case of hardship on the defend- ants ; but I do not see any legal grounds on which they can be ex- cused paying the damages which the plaintiff has suffered in con- sequence of their not having performed their engagement. The coun- sel for the defendants were driven to the necessity of introducing into this contract other terms than those which it contains. They contended that the defendants were only bound to fulfill their engage- ment within a reasonable time, and then argued that, as the embargo prevented the completion of the contract within a reasonable time, the defendants were absolved from their engagement altogether; but it was incumbent on the defendants, when they entered into this con- tract, to specify the terms and conditions on which they would en- Ch. 2) EXCCSES FOR FAILURE TO TRANSPORT AND DELIVER. 115 gage to carry the plaintiff's goods to Leghorn. They accordingly did express the terms; and absolutely engaged to carry the goods, "the dangers of the seas only excepted." That therefore, is the only excuse which they can make for not performing the contract. If they had intended that they should be excused for any other cause, they should have introduced such an exception into their contract. In All. 27, this distinction is taken : "Where the law creates a duty or charge, and the party is disabled to perform it, without any de- fault in him, and hath no remedy over, there the law will excuse him ; but when the party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstand- ing any accident by inevitable necessity, because he might have pro- vided against it by his contract." So, in this case, there was one ac- cident against which the defendants provided by their contract : They might also have provided against an embargo ; but we cannot vary the terms of this contract, and the defendants must be bound by the terms of the contract that they have made. Postea to the plaintiff.* 2 See, also, cases cited, ante. p. ns. note. In Jackson v. Union Marine Ins. Co.. L. R. 10 C. P. 125 (1874). a chartered vessel on her way to the port of loading was so damaged by perils of the sea that, as the jury found, "the time necessary for getting the ship off and re- IKiiring her so as to he a cargo-carrj-ing ship was so long as to put an end in a commercial sense to the commercial speculation entered into by the ship- owner and charterers." The charterers refused to load. It was held that the shipowner was entitled to recover from his underwriter for a loss of freight by peril of the sea. since the disaster resulted in putting an end to the charterers' obligation. Bramwell. B.. said: "I understand that the jury have found that the voyage the parties contemplated had become impossible; that a voyage undertaken after the ship was sufficiently repaired would have been a different voyage, not. indeed, different as to the yiorts of loading and discharge, but different as a different adventure — a voyage for which at the time of the charter the plaintiff had not in intention engaged the ship, nor the charterers the cargo ; a voyage as different as though it had been described as intended to be a spring voyage, while the one after the repair would be an autumn voyage. * * * Thus A. enters the service of B.. and is ill and cannot perform his work. No action will lie against him : but B. may hire a fresh servant, and not wait his recovery, if his illness would put an end, in a business sense, to their business engagement, and would frustrate the ob- ject of that engagement. A short illness would not suffice, if consistent with the object they had in view. * * * There is, then, a condition precetlent that the vessel shall arrive in a reasonable time. On failure of this, the con- tract is at au end and the charterers discharged, though they have no cause of action, as the failure arose from an excepted peril. * * * It remains to examine the authorities. The first in date relied on by the defendants is Had- ley V. Clarke. Now, it may safely be said that there the question was wholly different from the present. There was no question in that case as to the per- formance of a condition precedent to be ready at a certain or within a rea- sonable time, or such a time that the voyage in question, the adventure, should be accomplished and not frustrated. That condition had been performetl; the ship had loaded and sailed in due time. * * * Further, in that case there was no finding, nor anything equivalent to a finding, that the objects of the parties were frustrated. This case is therefore in every way distinguish- able." See. also, Stantun v. Richardson. L. R. 7 C. P. 421, 4.32, 483 (1872). In The Savona. [19(i0] P. 252, the carrier had undertaken to transport a cargo of coal "perils of the sea excepted.'' By perils of the sea the coal be- 116 THE carrier's UNDERTAKING. (Part 2 ESPOSITO V. BOWDEN. "(Court of Queen's Bench, Trinity Term, 1S57. 7 EI. & Bl. 763.) WiLLES, J.' The principal question in the case is as to the validity of the plea. It is, in etifect, whether a charter party, made before the late Russian war between an English merchant and a neutral ship- owner, whereby it was agreed that the neutral vessel should proceed to Odessa, a port of Russia, and there load from the freighter's fac- tors a complete cargo of wheat, seed or other grain, and proceed therewith to Falmouth, with usual provisions as to laying days and demurrage, was dissolved by the war between England and Russia, alleged by the charterer in his plea, which is to be taken as true for the purpose of the present discussion, to have broken out before the vessel arrived at Odessa, and to have continued up to and during the came wet and was discharged at a port of refuge. Because of the danger of spontaneous c-ombustion from wet coal on a tropical voyage it could not safely be reshipped without drying it or screening out the small pieces. With the facilities available it was reasonably supposed that the delay and expense of either course would be out of proportion to the value of the coal. The ship- owner was held to have been justified in abandoning the voyage though it shortly afterward proved practicable to send the coal forward. In Nobel's Explosives Co. v. Jenkins, [1S96] 2 Q. B. 320, a steamer carrying goods of different shippers took as part of her cargo explosives shipped un- der a bill of lading by whose terms they were to be delivered at Yokohama, restraint of princes excepted, and subject to the master's right to land them at the nearest safe port if by reason of war Yokohama should be unsafe. During the voyage, war began between China and Japan. When the steamer reached Hong Kong, she was obliged to fly a .red flag, which denoted the pres- ence of explosives. Chinese men of war were near, and, the explosives being subject to seizure as contraband of war, it was likely that if the steamer pro- ceeded she would be stopped and searched. Her master landed the explosives at Hong Kong against the protest of their owner, continued his voyage with- out interruption, and safely delivered the rest of the cargo at Yokohama. In an action for not delivering the explosives, Mathew, J., after expressing an opinion that the clauses of the bill of lading furnished a defense, said: "But, apart from the terms of the bill of lading, it seems to me that the conduct of the captain would be justified by reference to the duty imposed uiwn him to take reasonable care of the goods intrusted to him. Whether he has dis- charged that duty must depend upon the circumstances of each case, and here, if the goods had been carried forward, tliere was every reason to believe that the ship would be detained and the goods of the plaintiff confiscated. In the words of Willes, J., in Notara v. Henderson [ante, p. 7;j]: 'A fair allowance ought to be made for the difficulties in which the master may be involved. * * * The place, the season, * * * the opportunity and means at hand, the interests of other persons concerned in the adventure and whom it might be unfair to delay for the sake of the part of the cargo in peril — in short, all circumstances affecting risk, trouble, delay, and inconvenience — must be taken into account.' I am of opinion that the course taken by the captain in landing the goods and landing them in safe custody was a proper discharge of his duty. It was said that the master was not an agent for the shippers, because they had protested against the discharge of the goods. But, even if this information had reached the captain, it would not have divested him of his original author- ity and discretion as agent in any emergency for the owners of the ship and the other owners of the cargo." Ace. The Styria, 186 U. S. 1, 22 Sup. Ct. 731, 46 U Ed. 1027 (1902), 8 The statement of facts and parts of the opinion have been omitted. Ch. 2) EXCUSES FOR FAILURE TO TRANSPORT AND DELIVER. 117 time when the loading was to have taken place; it being further al- leged in the plea that, from the time war was declared, it became and was impossible for the charterer to perform his agreement without dealing and trading with the Queen's enemies. It is now fully established that, the presumed object of war being as much to cripple the enemy's commerce as to capture his property, a declaration of war imports a prohibition of commercial intercourse and correspondence with the inhabitants of the enemy's country, and that such intercourse, except with the license of the Crown, is ille- prja I ^ ^ ¥ As to the mode of operation of war upon contracts of affreightment, made before, but which remain unexecuted at, the time it is declared, and of which it makes the further execution unlawful or impossible, the authorities establish that the effect is to dissolve the contract, and to absolve both parties from further performance of it. Such was the opinion of Lord Ellenborough, at a time when the question must re- cently have often occurred and been well considered and understood, in Barker v. Hodgson (1814) 3 M. & S. 267, 270, where it was held that the prevalence of an infectious disorder at the port of loading, and consequent prohibition of intercourse by the law of the port, were not sufficient to excuse the charterer from loading; and Lord Ellen- borough, in delivering judgment, said: "The question here is, on which side the burden is to fall. If, indeed, the performance of this covenant had been rendered unlawful by the government of this coun- try, the contract would have been dissolved on both sides, and this defendant, inasmuch as he had been thus compelled to abandon his . contract, would have been excused for the non-performance of it, and not liable to damages. But if in consequence of events which happen at a foreign port, the freighter is prevented from furnishing a loading there, which he has contracted to furnish, the contract is neither dis- solved, nor is he excused for not performing it, but must answer in damages." ^ A similar opinion was expressed by the same eminent judge in Atkinson v. Ritchie (1809) 10 East, 530. Lord Tenterden, also, in his work on Shipping, states the law thus : 4 Ace. Blight V. Page, 3 B. & P. 29.J, note (ISOl), shipment prevented by em- hargo; Sjoerds v. Luscome. 16 East, 201 (1812). shipment prevented by em- bargo: Kirk v. Gibbs, 2G L. .T. Ex. 209 (18.57), permit to ship refused; Jacobs V. Credit Lyonnaise. 12 Q. P.. D. 589 (1884), performance of contract of sale prevented bV prohibition of export ; Benson v. Atwood, 13 Md. 20, 71 Am. Dec. 611 (lSo9). shipment illegal ; Holyoke v. Depew, 2 Ben. 334, Fed. Cas. No. 6,652 (1868). carrier forbidden to load; Tweedie Trading Co. v. Jas. P. McDonald Co. (D. C.) 114 Fed. 985 (1902). charterer prevented from furnishing vessel ■^vith passengers as agreed, because deportation of laborers was forbidden. In the latter case, Adams, .7., said: "The question really is. do the legal acts of the agents of a foreign government, which prevent the full performance of a contract of this character, control the rights of the parties? Contracting par- ties are subject to the contingencies of changes in their own law, and liable to have the execution of their contracts preventetl thereby ; but it is on the ground of illegality not of impossibility. Prevention by the law of a foreign country is not usually deemed an excuse, when the act which was contemplated 118 THE carrier's UNDERTAKING. (Part 2 "Another general rule of law furnishes a dissolution of these con- tracts" (i. e., for the carriage of goods in merchant ships) '"by matter extrinsic. If an agreement be made to do an act lawful at the time of such agreement, but afterwards and before the performance of the act, the performance be rendered unlawful by the government of the country, the agreement is absolutely dissolved. If, therefore, before the commencement of a voyage, war or hostilities should take place between the state to which the ship or cargo belongs, and that to which they are destined, or commerce between them be wholly prohibited, the contract for conveyance is at an end, the merchant must unlade his goods, and the owners find another employment for their ship. And probably the same principles would apply to the same events hap- pening after the commencement and before the completion of the voy- age, although a different rule is laid down in this case by the French ordinance." It may be added that the cases above put by Lord Ten- terden cannot be treated as isolated propositions, but as instances of the general principle of law with which they are prefaced. * * * It is clear that the charterer could maintain no action against the shipowner for refusing to take on board a cargo which the charterer could load only by dealing and trading with the enemy: and, on the other hand, neither ought the shipowner to maintain an action against the charterer for not doing so. This is not an unequal law, because if war had broken out between the Czar and the King of the Two Sicilies, instead of Her Majesty, the vessel would, according to the principles stated above, have been absolved from going to Odessa, and might forthwith have proceeded upon another voyage.^ Even the common principle of reciprocity, therefore, points out that a similar indulgence ought to be allowed to the merchant, when, in consequence of war declared by his sovereign, he is involved in like difficulties. Under such circumstances, in all ordinary cases, the more convenient course for both parties seems to be that both should be at once absolved, so that each, on becoming aware of the fact of a war, the end of which cannot be foreseen, mak- ing the voyage or the shipment presumably illegal for an indefinite pe- riod, may at once be at liberty to engage in another adventure without waiting for the bare possibility of the war coming to an end in suffi- cient time to allow of the contract being fulfilled, or some other op- by the contract was valid in view of the law of the place where it was made, and a fortiori when it was also then valid at the place of performance. See. also, Goslin? v. ni<;siins, 1 Camp. 4.51 (1808), unlawful seizure by rev- enue officers; Evans v. Hutton, 5 Scott's N. R. G70. 12 L. J. C. P. 17 (1842); Spence v. Chodwick, 10 A. & E. 517 (1847). lawful sei/Aire of cargo at port of call ; Finlay v. Liverix)ol, etc., Co., 23 L. T. 2.51 (1870), delivery in pursuance of decree of foreign port of departure. But see So. Ry. Co. v, Heymann, 118 Ga. GIB, 45 S. E. 491 (1903), goods confiscated at destination in another state ; The Asiatic Prince, 108 Fed. 287, 47 C. C. A. 325 (1901), delivery at foreign port of destination to customs officers according to local law ; Pingree v. Detroit, etc., R. Co., post, p. 124, and cases in note. 6 See The Teutonia, cited ante, p. 46, note. Ch. 2) EXCUSES FOR FAILURE TO TRANSPORT AND DELIVER. 119 portunity of lawfully performing the contract perchance arising. The law upon this subject was doubtless made, according to the well- known rule, to meet cases of ordinary^ occurrence, and in times when to permit trading with the enemy even through neutrals was the ex- ception, not the rule. These considerations may explain the origin of the rule authoritatively laid down in the books as to war at once work- ing an absolute dissolution. * * * We therefore reverse the judgment of the court below, and give judgment for the defendant. Judgment reversed.* THE IDAHO. (Supreme Court of the United States, 1876. 93 U. S. 57.5, 23 L. Ed. 978.) Appeal from the Circuit Court of the United States for the Eastern District of New York. The libelants claim damages against the Idaho for the nondelivery of 165 bales of cotton, part of a shipment of 200 bales for Liverpool, made by Thomas W. Mann, and consigned to the order of James Fin- lay & Co. After the shipment, the libelants purchased the cotton from Mann, w^ho indorsed to them the ship's bill of lading therefor. On the arrival of the vessel at Liverpool, 35 bales were delivered to Fin- lay & Co., but the remaining 165 were delivered to Baring Bros. & Co., in pursuance of an order from William J. Porter & Co. of New York. Such a delivery was not in accordance with the stipulations of the bill of lading ; but it is attempted to be justified by the alleged fact that Porter & Co. were the true owners of the cotton, and as such had a right, superior to that of the shippers, to control its delivery. * * * Strong, J.^ In determining the merits of the defense set up in this case, it is necessary to inquire whether the law permits a common carrier to show, as an excuse for nondelivery pursuant to his bill of lading, that he has delivered the goods upon demand to the true own- er. Upon this subject there has been much debate in courts of law, and some contrariety of decision : In Rolle's Abr. 606, tit. "Detinue," it is said: "If the bailee of goods deliver them to him who has the right to them, he is, notwith- standing, chargeable to the bailor, who, in truth, has no right." And for this 9 Henry VI, 58, is cited. And so, if the bailee deliver them to the bailor in such a case, he is said not to be chargeable to the true owmer. Id. 607, for which 7 Henry VI, 23, is cited. The reasons giv- en for such a doctrine, however satisfactory they may have been when 6 Ace. Brown v. Delano, 12 Mass. 370 (181.5). See Bailey v. De Crespigny, L. R. 4 Q. B. 180 (1869) ; The Cargo ex Galam, 33 L. J. Ad. 97, 2 Moo. P. C. (N. S.) 216 (1863). 1 Parts of the statement of facts and of the opinion are omitted. 120 THE carrier's UNDERTAKING. (Part 2 they were announced, can hardly command assent now. It is now everywhere held that, when the true owner has by legal proceedings compelled a delivery to himself of the goods bailed, such delivery is a complete justification for nondelivery, according to the directions of the bailor. Bliven v. Hudson River Railroad Co., 36 N. Y. 403. And so, when the bailee has actually delivered the property to the true owner, having a right to the possession, on his demand, it is a sufficient defence against the claim of the bailor. The decisions are numerous to this effect. King v. Richards, 6 Whart. (Pa.) 418, 37 Am. Dec. 420; Bates v. Stanton, 1 Duer (N. Y.) 79; Hardman v. Wil- cock, 9 Bing. 382 ; Biddle v. Bond, 6 Best & S. 225. If it be said that, by accepting the bailment, the bailee has estopped himself against questioning the right of his bailor, it may be remarked -in answer, that this is assuming what cannot be conceded. Undoubt- edly the contract raises a strong presumption that the bailor is en- titled ; but it is not true that thereby the bailee conclusively admits the right of the principal. His contract is to do with the property committed to him what his principal has directed — to restore it, or to account for it. Cheeseman v. Exall, 6 Exch. 341. And he does ac- count for it when he has yielded it to the claim of one who has right paramount to that of his bailor. If there be any estoppel, it ceases when the bailment on which it is founded is determined by what is equivalent to an eviction by title paramount ; that is, by the reclamation of possession by the true owner. Biddle v. Bond, supra. Nor can it be maintained, as has been argued in the present case, that a carrier can excuse himself for failure to deliver to the order of the shipper, only when the goods have been taken from his posses- sion by legal proceedings, or where the shipper has obtained the goods by fraud from the true owner. It is true that, in some of the cases, fraud of the shipper has appeared; and it has sometimes been thought it is only in such a case, or in a case where legal proceedings have interfered, that the bailee can set up the jus tertii. There is no sub- stantial reason for the opinion. No matter whether the shipper has obtained the possession he gives to the carrier by fraud practiced upon the true owner, or whether he mistakenly supposes he has rights to the property, his relation to his bailee is the same. He cannot confer rights which he does not himself possess; and if he cannot withhold the possession from the true owner, one claiming under him cannot. The modern and best-considered cases treat as a matter of no im- portance the question how the bailor acquired the possession he has delivered to his bailee, and adjudge that, if the bailee has delivered the property to one who had the right to it as the true owner, he may defend himself against any claim of his principal. In the late case of Biddle v. Bond, supra, decided in 1865, it was so decided ; and Black- burn, J., in delivering the opinion of the court, said there was nothing to alter the law on the subject in the circumstance that there was no evidence to show the plaintiff, though a wrongdoer, did not honestly Ch. 2) EXCUSES FOR FAILURE TO TRANSPORT AND DELIVER. 121 believe that he had the right. Said he, the position of the bailee is precisely the same, whether his bailor was honestly mistaken as to the rights of the third person whose title is set up, or fraudulently acting in derogation of them. In Western Transportation Company v. Barber, 56 N. Y. 54-i, the Court of Appeals of New York unanimously asserted the same doc- trine, saying, "The best-decided cases hold that the right of a third person to which the bailee has yielded may be interposed in all cases as a defense to an action brought by a bailor subsequently for the property. When the owner comes and demands his property, he is entitled to its immediate delivery, and it is the duty of the possessor to make it. The law will not adjudge the performance of this duty tortious as against a bailor having no title." The court repudiated any distinction between a case where the bailor was honestly mistaken in believing he had the right, and one where a bailor obtained the pos- session feloniously or by force or fraud ; and we think no such dis- tinction can be made. We do not deny the rule that a bailee cannot avail himself of the title of a third person (though that person be the true owner) for the purpose of keeping the property for himself, nor in any case where he has not yielded to the paramount title. If he could, he might keep for himself goods deposited with him, without any pre- tence of ownership. But if he has performed his legal duty by de- livering the property to its true proprietor, at his demand, he is not answerable to the bailor. And there is no difference in this particu- lar between a common carrier and other bailees. * * * It follows from all we have said that the delivery by the Idaho of the 165 bales, to the order of Porter & Co., was justifiable, and that the libelants have sustained no legal injury. Decree affirmed.^ 8 See Biddle v. Bond, 6 B. & S. 22-5 (186.5). bailee permitted to set up title of third person at whose request lie retained the goods without delivery; Valentine v. Long Island R. Co.. 1S7 N. Y. 121, 79 X. E. S49 (1907). carrier per- mitted to set up its own title; Sedgwick v. Macy. 24 App. Div. 1, 49 N. Y. Supp. 154 (1S97); Merchants' Nat. Bk. v. Bales, 148 Ala. 279, 41 South. 51G (190G) ; Hutchinson on CaiTiers (3d Ed.) § 751. A common carrier who, after de- mand by an owner entitled to possession, delivers instead to the consignee, is guilty of conversion. Wells v. Am. Ex. Co., 55 Wis. 23, 11 N. W. 537. 12 X. W. 441, 42 Am. Rep. 695 (1882) ; Lester v. Del., L. & W. R. Co., 92 Hun, 342, 36 N. Y. Supp. 907 (1895). It has been so held even where the owner was a stranger to the contract of carriage and had failed to avail himself of an op- portunity to replevy the goods. Shellenberg v. Fremont, etc.. Ry. Co., 45 Neb. 487 63 N W. 859, 50 Am. St. Rep. 561 (1895) ; Georgia, etc., Co. v. Haas, 127 Ga. 187, 56 S. E. 313. 119 Am. St. Rep. .327 (1906). And see Wilson v. Anderton IB. & Ad. 4.50 (1830). Contra: Kohn v. Richmond Co., 37 S. C. 1 16 S E 376 24 L. R. A. 100. 34 Am. St. Rep. 726 (1892); Swltzler v. No. Pac. Ry. Co.. 45 Wash. 221, 88 Pac. 137. 12 L. R. A. (N. S.) 2.54. 122 Am. St. Rep. 892 (1907). But a carrier is not liable if without notice of claim by a third person he has delivered to the consignee. Xanson v. .Jacob. 93 :Mo. 331, 6 S W. 246, 3 Am. St. Rep. 531 (1887). Or has settled with the consignee for goods destroyed. Dyer v. Gt. No. Ry. Co., 51 Minn. 345, 53 X. W. 714, 38 122 THE carrier's undertaking. (Part 2 BURGHALL v. HOWARD. (In Guildhall, 1759. 1 H. Bl. 366, note.) One Burghall at London gave an order to Bromley at Liverpool to send him a quantity of cheese. Bromley accordingly shipped a ton of cheese on board a ship there, whereof Howard the defendant was master, who signed a bill of lading to deliver it in good condition to Burghall in London. The ship arrived in the Thames, but Burg- hall having become a bankrupt, the defendant was ordered on behalf of Bromley not to deliver the goods, and accordingly refused, though the freight was tendered. It appeared by the defendant's witnesses that no particular ship was mentioned, whereby the cheese should be sent, in which case the shipper was to be at the risk of the peril of the seas. The action was on the case upon the custom of the realm against the defendant as a carrier. Lord ]\L\nsfield was of opinion that the plaintififs had no founda- tion to recover, and said he had known it several times ruled in chan- cery, that where the consignee becomes a bankrupt, and no part of the price had been paid, that it was lawful for the consignor to seize the goods before they come to the hands of the consignee or his as- signees ; and that this was ruled, not upon principles of equity only, but the laws of property. The plaintiffs were nonsuited.* Am. St. Rep. .506 (lSf)2). Xor though he has notice is he sniilty of conversion bv reasonably detaining the goods for inquiry. Merz v. Chicago & N. W. Ry. Co.. 86 Minn.' .3.3. 90 X. W. 7 (1002). 9 "The right of stoppage in transitu is nothing more than an extension of the right of lien, which by the common law the vendor has. upon the goods, for the price, originally allowed in equity and subsequently adopted as a rule of law. By a bargain and sale without deliverj- the property vests in the ven- dee : but where, by the terms of sale, the price Is to be paid on delivery, the vendor has a right to retain the goods till payment is made, and this right is strictly a lien, a right to detain and hold the goods of another as security for the payment of some debt or performance of some duty. But when the vendor and vendee are at some distance from each other, and the goods are on their way from the vendor to the vendee, or to the place by him appointed for their delivery, if the vendee become insolvent and the vendor can re- possess himself of the goods, before they have reached the hands of the ven- dee or the place of destination, he has a right so to do. and thereby regain his lien. This, however, does not rescind the contract, but only restores the vendor's lien, and it can only take place when the property has vested in the vendee." Shaw, C. J., in Rowley v. Bigelow, 12 Pick. (Mass.) 307, 23 Am. Dec. 607 (1832). "When the price of goods sold on credit is due and unpaid, and the vendee becomes insolvent before obtaining possession of them, the vendor's right to the property is often called a lien, but it is greater than a lien. In the ab- sence of an express power, the lienor usually cannot transfer the title to the property on which the lien exists by a sale of it to one having notice of the extent of his right, but he must proceed by foreclosure. When a vendor rightfully stops goods in transitu, or retains them before transitus has begun, he can. by a sale made on notice to the vendee, vest a purchaser with a goo Term Rep. 48.5. he laid it down as a clear principle that, as be- tween a person who has an equitable lien and a third person who purchases a thing for a valuable consideration and without notice, the prior equitable lien shalf not overreach the title of the vendee. This is founded on plain and ob- vious reason: for he who has bought a thing for a fair and valuable consid- eration, and without notice of any right or claim by any other person, instead of having equity against him, has equity in his favor; and if he have law and equitv both with him. he cannot be beat by a uum who has equal equity only.'' Buller, C. J., in Lickbarrow v. Mason. G East, 20, note (House of ^ The light 'to stop in transitu exists, though the goods are s^ent from seller to buver otherwise than by a carrier. Johnson v. Eveleth. 93 Me. 300, 4o Atl. 35, 48 L. R. A. 50 (1899). logs in possession of log-driviug company. 10 Part of the statement of facts is omitted. 124 THE carrier's undertaking. (Part 2 afterward prove to the carrier their right to stop the goods, when requested by the carrier to do so, has vacated their claim, and released the carrier from liability. But the carrier is not the tribunal to de- termine the rights of the consignor and consignee. Neither of these parties can be required to plead or make proof before the carrier. No man need prove his case to his adversary. It is sufficient if he prove it to the court. The carrier cannot conclusively adjudicate upon his own obligations to either party. He is in the same position as is any man, against whom conflicting claims are made. If, as is alleged here, the circumstances are such that he cannot compel them to interplead, he must inquire for himself, and resist or yield at his peril. ^^ It is reasonable, however, that the person assuming the right to stop goods in transit should act in good faith toward the carrier. He should, if requested, furnish him in due time with reasonable evi- dence of the validity of his claim, though it may not amount to proof. Should the consignor refuse such reasonable information as he may possess, such refusal might be construed as a waiver of his peculiar right, and might justify the carrier, after a reasonable time, in no longer detaining the goods from the consignee. But there was no such refusal here. The plaintiffs sent forward the invoice and their affidavit within a reasonable time. The plaintiffs have now proved their right to stop the goods, and the defendant company, having denied that right without good rea- son, must respond in damages. Judgment for plaintiffs for $176.41, with interest from the date of the writ. PINGREE V. DETROIT, L. & N. R. CO. (Supreme Court of Michigan, 1887. 66 Mich. 143, 33 N. W. 298, 11 Am. St. Rep. 479.) Campbell, C. J.^- This case presents a single question on facts" found. Plaintiffs had a chattel mortgage against Francis M. and Myron C. Butts, which was made on August 4, 1886. The next day the two Butts made a transfer of the property to one Steere. Plaintiffs re- plevied from Steere, and on August 12 shipped the goods by de- fendant's railroad from Edmore, directed to Detroit, taking the usual bill of lading. On the same day, the goods were taken by the sheriff at Stanton, on an attachment against said F. J\I. and M. C. Butts, in favor of John W. Fuller and others. Defendant notified plaintiff's of this seizure. Plaintiffs now sue defendant for not delivering the 11 But see Pool y. Columbia, etc., R. Co., 2.3 S. C. 286 (1885); The E. H. Pray, 27 Fed. 474 (1SS6) ; The Vidette, 34 Fed. 396 (1888). 12 Parts of the disseutiug opinion are omitted. Ch. 2) EXCUSES FOR FAILURE TO TRANSPORT AND DELIVER. 125 goods at Detroit. The question is, whether the seizure by the sheriff exonerated defendant from such dehvery. The court below held that it did. There seems to be a little apparent conflict between the cases on this question, but there can be no doubt where the rule of justice lies. If the carrier could rely against all the world upon the right of the consignor to intrust him with possession, then it would be reasonable to hold him estopped from questioning that title. But there is no authority for such immunity. The true owner may take his property from a carrier as well as from any one else. If a carrier gets property from a person not authorized to direct its shipment, he has been de- •clared by the supreme court of this state to have no lien for his serv'- ices. and no right to retain the property. Fitch v. Xewberry,. 1 Doug. 1, 40 Am. Dec. 33. There is no sense or justice in enabling a consign- or to compel a carrier, at his peril, to defend a title that he knows nothing about, and has no means of defending, unless the consignor gives it to him. In the present case, the attachment was against plain- tiffs' mortgagors, and was regular. It must have been levied on the claim that plaintiffs had no right to the goods. Defendant could not have resisted the seizure without incurring the risk of serious civil, and perhaps criminal, liability; and if plaintiffs' claim is correct, this must have been done at defendant's own risk and expense. This precise question was decided in favor of the carrier in Stiles v. Davis, 1 Black, 101, 17 L. Ed. 33, upon the ground that defendant was not required to resist the sheriff, and could not properly do so. This rule has been adhered to by the United States supreme court, and followed to a considerable extent. It is the only rule compatible with public order. A carrier must otherwise resist the officer, or find some one who will swear out a replevin, which a carrier usually has not knowledge enough to justify. If the carrier cannot call on the consignor to defend, and must tal (1870). "to be delivered to C on payment of freight and presenta- tion of duplicate hereof," delivery made without presentation of original or duplicate bill of lading; Viner v. S. 8. Co.. 50 N. Y. 23 (1872). butter to ship- per's order without bill of lading delivered to recipient of letter saying, "The roll I have sent you to-day you will find of good quality ;" Colgate v. Pa. Co., 102 N. Y. 120, G N. E. 114 (1880), delivery in violation of statute requiring de- livery only on surrender of bill of lading ; AVeyand v. Atch., etc., Ry. Co., 75 Iowa, 580, .39 N. W. 899. 1 L. R. A. 6.50, 9 Am. St. Rep. 504 (1888), delivery to buyer on unindorsed bill of lading "to shipper" sent buyer by way of advice; Louisville, etc., Co. v. Rarkhouse, 100 Ala. 543. 13 South. .534 (1892), delivery to P. on unindorsed bill of lading to C intrusted by C. to P.'s possession : Gates v. C, B. & Q. R. Co.. 42 Neb. 379. 60 N. W. 583 (18!M), goods consigned to shipper's agent held well delivered at agent's direction to buyer. 30 Part of the opinion is omitted. Ch. 3) THE COMPLETION OF THE CARRIER'S UNDERTAKING. 157 lading, and forwarded both to the Tremont National Bank of Boston. On October 24, 1879, Foster & Co. paid to the bank the amount of the draft, and the draft and bill of lading were delivered to them. Im- mediately upon obtaining the draft and bill of lading, Foster & Co. indorsed them to the plaintiffs, as security for an advance then made by the plaintiffs to the full amount of the draft, and they have held them ever since. The corn mentioned in the bill of lading was re- ceived and transported by the defendant, arriving in Boston on Oc- tober 30, 1879. It remained in its cars until December 12, 1879, when by the orders of Foster & Co. it was shipped on board a vessel for Cork, and exported to Ireland. Foster & Co. did not produce and pre- sent to the defendant the bill of lading, but represented that it was in their possession. Upon these facts, it is too clear to admit of any doubt that, by the transfer of the draft and bill of lading by Foster & Co. to the plain- tiffs, the title and property in the corn passed to them. The bill of lading, though not strictly a negotiable instrument, like a bill of ex- change, was the representative of the property itself. It was the means by which the property was put under the power and control of the plaintiffs, and the delivery of it was for most purposes equivalent to an actual delivery of the property itself.'^ The transaction between Foster & Co. and the plaintiffs was not in form or in effect a mortgage, so that, as contended by the defendant, it must be recorded in order to have validity. It was a transfer and delivery of the property. The clear intent of the parties was that the property in the corn should pass to the plaintiffs as security for the advance made by them. Whether they took an absolute title with a liability to account for the proceeds, or a title as pledgees, is not ma- terial, as all the authorities show that they took either a general or a special property in the corn, which entitles them to recover of any one who wrongfully converts it. De Wolf v. Gardner. 12 Cush. 19. 59 Am. Dec. 165; Cairo National Bank v. Crocker, 111 Mass. 1G3 ; Green Bay National Bank v. Dearborn, 115 Mass. 219, 15 Am. Rep. 92; Chicago National Bank v. Bayley, 115 Mass. 228; Hathaway v. Haynes, 124 Mass. 311 ; Gibson v. Stevens. 8 How. 384, 12 L. Ed. 1123; Dows v. National Exchange Bank, 91 U. S. 618, 23 L. Ed. 214. Numerous other cases might be cited. The delivery of the bill of 31 "A cariaro at sea, while in the hauds of the carrier, is necessarily incapable of physical delivery. During this period of transit and voyage, the bill of lad- ing by the law merchant is universally recognized as its symbol, and the in- dorsement and delivery of the bill of lading operates as a symbolical delivery of the cargo. Property in the goods passes by such indorsement and delivery of the bill of lading, whenever it is the intention of the parties that the prop- erty should pass, just as under similar circumstances the property would pass by an actual delivery of the goods. * * * It is a key which in the hands of a rightful ownev is intended to unlock the door of the warehouse, floating or fixed, in which the goods may chance to be." Bowen, L. J., iu Sanders v. Maclean, 11 Q. B. D. 327, 341 (1883). 158 THE carrier's undertaking. (Part 2 lading was in law the delivery of the property itself, and it was not necessary that the plaintiffs should take immediate possession of it upon its arrival, or that they should give notice to the carrier or ware- houseman who held the property. Farmers' & ^Mechanics' National Bank V. Logan, 74 N. Y. 568 ; The Thames, 14 Wall. 98, 20 L. Ed. 804; Meyerstein v. Barber, L. R. 2 C. P. 38, G61 ; Id., L. R. 4 H. L. 317. It is true that the plaintiffs might by their subsequent laches defeat their right to assert their title. If they permitted the property to remain under the control of their assignors, and held them out to the world as having the right to deal with the property, they might be estopped from setting up their title. But the authorities are decisive to the point that, by the transfer from Foster & Co., they took a title as purchasers of the corn which entitles them to maintain this action, unless they have lost the right by their laches, upon proving a conver- sion by the defendant. The next question is whether there was a conversion by the defend- ant. It is settled that any misdelivery of property by a carrier or ware- houseman to a person unauthorized by the owner or person to whom the carrier or warehouseman is bound by his contract to deliver it, is of itself a conversion, which renders the bailee liable in an action of tort in the nature of trover, without regard to the question of his due care or negligence. Hall v. Boston & Worcester Railroad, 14 Allen, 439, 92 Am. Dec. 783. By the bill of lading, and by the waybill which was sent to the defendant in the place of a duplicate bill of lading, the corn was to be delivered to the order of Gallup, Clark & Co. The de- fendant contracted to deliver it to such person as Gallup, Clark & Co. should order, and could not without violating its contract deliver- it to any other person. ^^ By delivering it to Foster & Co., therefore, 32 "The indorsement of the bill of lading is simply a direction of the delivery of the goods. When this indorsement is in blank, the holder of the bill of lad- ing may receive the goods, and his receipt will discharge the shipmaster ; bnt the holder, if it came into his hands casually, without any just title, can ac- quire no property in the goods. A special indorsement defines the person ap- pointed to receive the goods ; his receipt or order would, I conceive, be a suf- ficient discharge to the shipmaster; and in this respect I hold the bill of lad- ing to be assignable." Lord Loughborough, in Lickbarrow v. Mason (Exchequer Chamber, 1790) 1 H. Bl. 357. S.IO. 3fi0. "I am of opinion that a blank indorsement has precisely the same effect that an indorsement to deliver to the plaintiffs would have. * * * j|g ^yjjQ ^^e- livers a bill of lading, indorsed in blank to another, not only puts it in the power of the person to whom it is delivered, but gives him authority to fill it up as he pleases ; and it has the same effect as if it were filled up with an or- der to deliver to him." Buller, J., in Lickbarrow v. Mason, G East, 20 (1793), note. "He [the shipmaster] is a person who has entered Into a contract with the shipper to carry the goods, and to deliver them to the persons named in the bill of lading — m this case Cottam & Co. — or their assigns ; that is, assigns of the bill of lading, not assigns of the goods. And I quite assent to what was said in the argument that this means to Cottam & Co. if they have not assigned the bill of lading, or to the assign if they have. If there were only one part of the bill of lading, the obligation of the master under such a contract would be clear. He would fulfill the contract if he delivered to Cottam & Co. on their Ch. 3) THE COMPLETION OF THE CARRIER'S UNDERTAKING. 159 the defendant became liable for a conversion, unless it shows some valid excuse. Newcomb v. Boston & Lowell Railroad, 115 Mass. 230 ; Alderman v. Eastern Railroad, 115 Mass. 233. The record before us does not show any laches or any act of the plaintiffs which can excuse or justify this misdelivery. They did not hold Foster & Co. out to the world or to the defendant as one entitled to control the property. In- deed, it is admitted that the defendant did not know, until long after the delivery, that the plaintiffs had any connection with the property, or with Foster & Co. The plaintiffs did nothing to mislead the de- fendant. They had the right to rely upon the facts that they held the bill of lading, and that, according to the ordinary course of business, the goods could not be obtained except upon its production. The de- fendant saw fit to deliver them to Foster & Co. without requiring them to produce the bill of lading, relying upon their representation that they were the holders of it. It took the risk of their truthfulness, and cannot now shift that risk upon the plaintiffs, who have done nothing to mislead or deceive the defendant. We are, for these reasons, of opinion that the defendant is liable for the value of the corn described in the first count of the declaration.^''^ In the case of the wheat, there are some facts proved at the trial which lead us to a different result. By the bills of lading and the waybills, the wheat was consigned to John H. Foster & Co. at Boston. The fact that they did not contain the words "or order," or other equivalent words, so as to make them upon the face quasi negotiable, is not important. The bill of lading was yet the representative of the wheat, and its transfer and delivery to the plaintiffs vested in them the title to the property, as against the consignees and their creditors. But the presiding justice of the superior court who heard the case has found as a fact, "that it was the custom of the railroads terminating in Boston to deliver to the consignee goods 'billed straight' as it is termed, that is, billed to a particular person, not to order, when they were satisfied of the identity of the consignee, without requiring the production of the bills of lading, and to rely upon the waybills to de- termine the consignee and the form of the consignment." producing the bill of lading unindorsed. He would also fulfill his contract if he delivered the goods to anv one producing the bill of ladhig with a genuuie m- dorsemeut by Cottam & Co. He would not fulfill his «)ntract if he delivered them to any one else, though, if the person to whom he delivered was really entitled to the possession of the goods, no one might be entitled to recover dam- ages from him for that breach of contract." Lord Blackburn, in Glyu Mills & Co. V. East & West India Dock Co., L. R. 7 App. Cas. 501, GIO (1882). 3 3 Ace The Thames, 14 Wall. 98. 20 L. Ed. 804 (1871) ; Midland Nat. Bk. v. Mo K & T Rv Co., 62 :\Io. App. 581 (1895) ; Southern Ry. Co. v. Atlanta Nat. Bk'' 112 Fed SGI. 50 C. C. A. 558, 56 L. B. A. 546 (1902). See, also, First Nat. Bk" V Northern R. Co.. 58 N. H. 203 (1877) ; Nat. Bk. of Chester v. Atlanta, etc' Rv Co 25 S C 216 (1886) ; No. Pa. R. Co. v. (Commercial Bk., 123 U. S. T>7 8 Sup 'Ct 266, .31 L. Ed. 287 (1887) ; Furmau v. U. P. R. Co.. 106 N. Y. 579 (1887), goods shipped to seller's order with direction to carrier to notify the buyer. IGO THE carrier's undertaking. (Part 2 Under this finding, we must assume that the custom existed, and that the plaintiffs knew or ought to have known of it. It materially affects the relations and rights of the parties. Although it does not affect the question of the title of the plaintiffs as against Foster & Co., it qualifies the duties of the defendant as to the delivery of the wheat. It justified the defendant in delivering it to Foster & Co., the con- signees, at least at any time before notice that the property had been transferred. Under it, there was no laches in not calling for the bill of lading; and, in thus delivering, there was no violation of any of the terms of its contract, express or implied. Such delivery there- fore was not a misdelivery which would amount to a conversion and render the defendant liable to the plaintiffs.^* We are therefore of opinion that the defendant is not liable for the value of the wheat sued for. * * * NATIONAL NEWARK BANKING CO. v. DELAWARE, L. & W. R. CO. (Court of Errors and Appeals of New Jersey, 1904. 70 N. J. Law, 774, 58 Atl. 311, CG L. R. A. .595, 103 Am. St. Rep. 825.) SwAYZE, J.^'' This is an action of trover. As finally presented to the trial court, the controversy was limited to eight cars of grain, which had been consigned to one Archer, trading as A. E. Howe & Co. Archer, in pursuance of a practice continued for several years, had surrendered the bills of lading to Remer, freight agent of the de- fendant at Newark, prior to the arrival of the grain, and had received (in exchange therefor what are called "certified orders." The case turns upon the validity and effect of these certified orders. They were in the following form : "Newark, N. J., Aug. 18th, 1902. Agent D. L. and W. R. R. : On arrival of car oats No. 12043 or its transfer, please deliver same to J. R. Bradner & Son or ourselves or order, on presentation of this order. A. E. Howe & Co. Freight Paid. Invoice No. 47143." Upon surrender of the bill of lading, the cashier in Remer's office stamped across the face of the order the following words : "Car to be delivered on this order same as B_. of L. B. of L. taken up at Newark. John Remer, Agt., per J. H. Bur- rell, Cashier." Archer had contracted to sell the grain in advance of its arrival, and the name of the purchaser was inserted in the order. After the order was stamped by Burrell, Archer drew a draft on the purchaser, and upon these drafts, accompanied by the certified orders indorsed by 3* Compare First Nat. Bk. v. No. Pac. Ry. Co., 2S Wash. 439, 68 Pac. 965 (1902). 35 Parts of the opinion are ouiitted. Ch. 3) THE COMPLETION OF THE CARRIER'S UNDERTAKING. 161 Archer, obtained advances of money from the bank. The practice of issuing these certified orders in Heu of the bills of lading arose from the fact that Archer sold grain by the car load at points along the line of the railroad between Dover and Washington and Newark, and in order to avoid having the grain transported through to Newark, its original destination, the bill of lading was surrendered, and the car transferred, formerly at Dover, but later at Washington, and sent to the station at which it was to be delivered to the customer to whom Archer had agreed to sell it. In August, 1902, Archer absconded. The eight car loads of grain now in question had then been deliv- ered by the railroad company to the purchasers from Archer, upon his written instructions. The bank held the certified orders, and de- manded delivery of the grain, with which demand the railroad com- pany was unable to comply. The terms of the contracts between Arch- er and the purchasers of the grain do not appear, but in each case the sale was of grain en route, and the drafts drawn upon purchasers by Archer were payable upon arrival of the grain, and the fair infer- ence, in the absence of proof to the contrary, is that Archer was to deliver the grain at Newark. The contracts of sale between Archer and the purchasers antedated the arrangement made by Archer with the bank, and the arrangement with the bank antedated the arrival of the grain. A verdict was directed for the plaintift" for the amount advanced on the drafts. * * * There was certainly an agreement between the bank and Archer by which the bank obtained a present right in the grain. Parke, B., in Bryans v. Nix, 4 Meeson & W. 775, at page 790. Whether the title of the bank was absolute, or by way of pledge or mortgage, the ac- tion is maintainable, and the measure of damages, whether the property was special or general, is the value of the goods. Luse v. Jones, 39 N. J. Law, 707, 713. The case presents this situation : A consignee sells goods in ad- vance of arrival, and gives an order for their delivery, which is known to the local freight agent of the carrier, and subsequently orders the carrier to dehver the same goods to another person, and the carrier complies with the later order. * * * The position of the bank is not merely that of the true owner, for it has an order of the consignee for delivery of the grain, and there can be no doubt that the carrier, having in its possession the bill of lading, if it had not already de- livered the grain, must deliver upon that order. The question is whether the carrier is protected by the delivery un- der the later order. Although the duty of the carrier requires a de- livery to the true owner when known, it can hardly be disputed that, in the absence of notice of a third person's rights, the carrier would be justified in delivering to the consignee, who is prima facie entitled to receive the goods; and, if it would be justified in delivering to the consignee, it must "be justified in delivering on the consignee's order. Green Cabb. — 11 1G2 THE carrier's undertaking. (Part 2 The rights of the bank depend upon whether the certified orders were orders for deHvery to the bank, and were known to the railroad com- pany prior to the dehvery to the other purchasers. Those orders, when presented to Remer, directed a dehvery either to the purchaser, or to Archer, or to Archer's order, "on presentation of this order." The very fact that Archer had the orders stamped \vith the words "Car to be dehvered on this order same as B. of L.," and took them away with him, was notice to Remer that some use was to be made of the orders, other than merely to direct a delivery by the railroad com- pany. Had such been the only purpose, it would have been unneces- sary for Archer to have the orders certified or to take them away with him. It would have been enough to leave the bills of lading with the company, and afterwards send such instructions for delivery as Archer actually gave in favor of the subsequent purchasers. By cer- tifying these orders, the agent virtually accepted them. If he was au- thorized to accept for the company, the company became bound by the acceptance. If he was without such authority, still the terms of the orders gave him notice that the grain was no longer deliverable mere- ly to the consignee or upon his order, but was deliverable only upon the presentation of the certified orders. To that condition the con- signee had himself consented, and the railroad company would have been entirely justified in refusing delivery on any other terms. It is true the certified orders did not name the persons who were to receive the goods, but they described them in such a way that no mis- take could be made. The orders amounted to saying: "Deliver the grain to the man who presents this order; it will be either Bradner [or any other purchaser], ourselves, or some one with an order from us." The freight agent, when he indorsed the order, had notice that the grain might not be deliverable to Archer upon its arrival ; he also had notice that it should be delivered to some one who would be iden- tified by the possession of the certified order. Such a method of iden- tification was as safe for the railroad company as an identification by name. The agent knew that the person who would be entitled to receive the grain must answer two descriptions: (1) He must have the certified order; (2) he must be either the purchaser named in the order, the consignee himself, or some one with the order of the con- signee. The bank complied with both terms of the description ; it had the certified order, and the indorsement of Archer thereon. Notice to the freight agent was notice to the railroad company. It was notice to the very person who was charged by the railroad com- pany with the duty of delivering the grain. The bank's right does not rest solely upon a contract made by the freight agent to deliver the grain to the holder of the certified order. Its right depends upon the facts that it was the true owner of the grain, and the holder of the token which the consignee had notified the railroad company was to determine the question to whom the delivery should be made. * * * Ch. 3) THE COMPLETION OF THE CARRIER'S UNDERTAKING. 163 These considerations lead to an affirmance of the judgment. We have not found it necessary to determine whether a certified order issued in exchange for a bill of lading, as yet unaccomplished, is not in effect a substituted bill of lading, as far as the same is a sym- bol of the property and transferable by indorsement, nor whether the course of business of the railroad company did not require an infer- ence of Remer's authority to issue such a document of title. For affirmance — The ChancelIvOR, Fort, Hendrickson, Pitney, SWAYZE, VrEDENBURG. For reversal — Dixon, Garrison, Vroom, Green. ^® SAMUEL V. CHENEY. (Supreme Judicial Court of Massachusetts, 18S3. 135 Mass. 278, 46 Am. Rep. 467.) Tort, against a common carrier, for the conversion of a quantity of cigars. At the trial in the superior court, before Colburn, J., the jury returned a verdict for the defendant; and the plaintiff al- leged exceptions. The facts appear in the opinion. Morton, C. J. The principal facts in this case, regarded in the light most favorable to the plaintiff, are as follows : In June, 1881, a swindler, assuming the name of A. Swannick, sent a letter to the plaintiff asking for a price Hst of cigars, and giving his address as "A. Swannick, P. O. Box 1595, Saratoga Springs, N. Y." The plaintiff replied, addressing his letter accord- ing to this direction. The swindler then sent another letter order- ing a quantity of cigars. The plaintiff forwarded the cigars by the defendant, who is a common carrier, and at the same time sent a letter to the swindler, addressed "A. Swannick, Esq., P. O. Box 1595, Saratoga Springs, N. Y.," notifying him that he had so forwarded the goods. There was at the time in Saratoga Springs a reputable dealer in groceries, liquors, and cigars, named Arthur Swannick, who had his shop at the corner of Ash street and Franklin street, and who issued 36 See. also. The Thames. Fed. Cas. No. l.S.Sr.S (l.^^O) : Td.. 14 Wall. 0'<. 20 Iv Ed 804 (1871) • Gardeu Grove Bank v. Humeston, etc., Co., 67 Iowa, 520, 25 N 'w 761 a885) • Nat. Bk. of Chester v. Atlanta, etc., Ry. Co., 25 S. C. 216 (1886)'- Western, etc., R. Co. v. Ohio Co.. 107 Ga. 512. 33 S. K 821 (1889). As to the liability of a carrier where goods of different owners have be- come mixed, so that he cannot tell them apart, see Bradley v. Dunipace. 1 H. & C 5*^1 (1861) As to his liability where no one can tell them apart, see Spence"v. UnionMarine Ins. Co.. L. R. 3 C. P. 427 (1868). As to his duty where he has given bills of lading for undivided portions of cargo shipped in bulk, a part of which has suffered damage, see Grange & Co. v. Taylor, 20 T. L. R. 386 (1904). 164 THE carrier's undertaking. (Part 2 his cards and held out his name on his signs and otherwise as "A. Swannick." He was in good credit, and was so reported in the books of E. Russell & Co., a well-known mercantile agency, of whom the plaintiff made inquiries before sending the goods. No other A. Swannick appeared in the Saratoga Directory for 1881, or was known to said mercantile agency. But in June, 1881, a man hired a shop at No. 16 Congress street, Saratoga Springs, under the name of A. Swannick, and also hired a box, numbered 1595, in the post office, and used printed letter heads with his name printed as "A. Swannick, P. O. Box 1595." This man wrote the letters to the plaintiff above spoken of, and received the answers sent by the plaintiff. He soon after disappeared. The plaintiff supposed that the letters were written by, and that he was dealing with, Arthur Swannick. He sent the goods by the defendant, the packages being directed, "A. Swannick, Saratoga Springs, N. Y." The defendant carried the packages safely to Saratoga Springs. On July 1st the defendant, by his agent, carried a package of cigars directed to A. Swannick to said Arthur Swannick, who refused to receive it on the ground that he had ordered no cigars. Afterwards, on the arrival of the packages, the value of which is sought to be re- covered in this suit, the defendant carried the same to the shop No. 16 Congress street, and delivered them to the person appearing to be the occupant of the shop, and took receipts signed by him as "A. Swannick." We assume that his real name was not A. Swannick, but that he fraudulently assumed this name in Saratoga Springs and in his deal- ings with the plaintiff. The question whether, under these circumstances, the property in the goods passed to the swindler, so that a bona fide purchaser could hold them against the plaintiff', is one not free from difficulty, and upon which there are conflicting decisions. The recent case of Cundy v. Lindsay, 3 App. Cas. 459, is similar to the case at bar in many of its features; and it w^as there held that there was no sale, that the property did not pass to the swindler, and therefore that the plaintiffs could recover its value of an innocent purchaser.^ ^ That S7 In this case, Lord Cairns, after stating the facts, said: "If that is so, what is the consequence? It is that Blenkarn — the dishonest man, as I call him — was acting here just in the same way as if he had forged the signature of Blenliiron & Co., the respectable firm, to the applications for goods, and as if, when, in return, the goods were forwarded and letters were sent, accom- panying them, he had intercepted the goods and intercepted the letters, and had taken possession of the goods, and of the letters which were addressed to, and intended for, not himself, but the firm of Blenkiron & Co. Now, my Lords, stating the matter shortly in that way, I ask the question: How is it possible to imagine that in that state of things any contract could have arisen between the respondents and Blenkarn, the dishonest man? Of him they knew nothing, and of him they never thought. With him they never intended to deal. Ch. 3) THE COMPLETION OF THE CARRIER'S UNDERTAKING. 165 this case is very near the line is shown by the fact that such eminent judges as Blackburn and Mellor differed from the final decision of the House of Lords. Lindsay v. Cundy, 1 Q. B. D. 348. But it is not necessary to decide this question, because the liability of the defendant as a common carrier does not necessarily turn upon it. The contract of- the carrier is not that he will ascertain who is the owner of the goods and deliver them to him, but that he will deliver the goods according to the directions. If a man sells goods to A., and by mistake directs them to B., the carrier's duty is performed if he delivers them fo B., although the unexpressed intention of the forwarder was that they siiould be delivered to A. If, at the time of this transaction, the man who was in correspon- dence with the plaintiff had been the only man in Saratoga Springs known as, or who called himself, A. Swannick, it cannot be doubted that it would have been the defendant's duty to deliver the goods to him according to the direction, although he was an impostor, who by fraud induced the plaintiff to send the goods to him. Dunbar v. Boston & Providence Railroad, 110 Mass. 26, 14 Am. Rep. 576. The fact that there were two bearing the name made it the duty of the defendant to ascertain which of the two was the one to whom the plaintiff sent the goods. Suppose, upon the arrival of the goods in Saratoga Springs, the impostor had appeared and claimed them; to the demand of the de- fendant upon him to show that he was the man to whom they were sent, he replies, "True, there is another A. Swannick here, but he has nothing to do with this matter; I am the one who ordered and purchased the goods; here is the bill of the goods, and here is the letter notifying me of their consignment to me, addressed to me at my P. O. 'Box, 1595." The defendant would be justified in deliver- ing the goods to him whether he was the owner or not, because he had ascertained that he was the person to whom the plaintiff had sent them. It is true the defendant did not make these inquiries in detail; but if, by a rapid judgment, often necessary in carrying on a large business, he became correctly satisfied that the man to whom he made the delivery was the man to whom the plaintiff sent the goods, his rights and liabilities are the same as if he had pursued the inquiry more minutely. The plaintiff contends that he intended to send the goods to Arthur Swannick. It is equally true that he intended to send them to the person with whom he was in correspondence. We think the more correct statement is, that he intended to send them to the man who ordered and agreed to pay for them, supposing, erroneously, that he was Arthur Swannick. It seems to us that the defendant, in answer Their minds never, even for an instant of time, rested upon him, and as be- tween him and them there was no consensus of mind which could lead to any agreement or any contract whatever." 166 THE carrier's undertaking. (Part 2 to the plaintiff's claim, may well say, we have delivered the goods intrusted to us according to your directions, to the man to whom you sent them, and who, as we were induced to believe by your acts in dealing with him, was the man to whom you intended to send them ; we are guilty of no fault or negligence. The case at bar is in some respects similar to the case of M'Kean V. IMcIvor, L. R. 6 Ex. 36. There the plaintiffs, induced by a ficti- tious order sent to them by one Heddell, an agent of theirs to procure orders, sent goods by the defendants, who were carriers, addressed to ''C. Tait & Co., 71 George Street, Glasgow." There was no such firm as C. Tait & Co., but Heddell had made arrangements to receive the goods, at No. 71 George street. Upon the arrival of the goods, the defendants, in the usual course of business, sent a notice to 71 George street for the consignee to call for the goods, the notice say- ing that it ought to be indorsed so as to operate as a delivery order. Heddell indorsed the notice in the name of "C. Tait & Co.," and sent it to the defendants by a carter, to whom the goods were delivered. It was held that the defendants were not liable, upon the ground that no negligence was shown, and that, having delivered the goods ac- cording to the directions of the plaintiff, they had performed their duty ; and the fact that they delivered to some person to whom the plaintiff did not intend delivery to be made, was not sufficient to make them liable for a conversion. See Heugh v. London & North- western Railroad, L. R. 5 Ex. 51 ; Clough v. London & Northwestern Railroad, L. R. 7 Ex. 26. The cases of Winslow v. Vermont & Massachusetts Railroad, 43 Vt. 700, 1 Am. Rep. 365, American Express Co. v. Fletcher, 25 Ind. 492, and Price v. Oswego & Syracuse Railway, 50 N. Y. 213,-10 Am. Rep. 475, differ widely in their facts from the case at bar, and are distinguishable from it. Upon the facts of this case, we are of opinion that the defendant is not liable, in the absence of any proof of negligence; and there- fore that the rulings at the trial were sufficiently favorable to the plaintiff.^^ Exceptions overruled.^® 3 8 The plaintifif requested the judge to rule that on the facts, which were undisputed and agreed, he was entitled to a verdict. The judge refused so to rule. The plaintiff then requested the judge to rule that, if the jury believed that in shipping these goods the plaintiff intended as the consignee A. Swan- nick, the person who was well rated in the commercial agency books, and that a» Ace. Bush v. St. Louis, etc., Ry. Co., 3 Mo. App. 62 (1870) ; The Drew (D. O.) 15 Fed. 826 (mS3) : Wilson v. Adams Ex. Co., 27 Mo. App. 360 (18.S7). Compare Price v. Oswego, etc., R. Co., 50 N. Y. 213, 10 Am. Rep. 475 (1872), stated post, p. 170; also Sword v. Young, 89 Tenn. 126, 14 S. W. 481, 604 (1890), swindlers using fictitious names ; Oskamp v. So. Ex. Co., 61 Ohio St. 341, 56 N. E. 13 (1899). A carrier has been held liable for delivering to a consignee with reason to know him a swindler. Wilson v. Adams Ex. Co.. 43 Mo. App. 659 (1891) ; Pacific Ex. Co. v. Critzer (Tex. Civ. App.) 42 S. W. 1017 (1897). And see Southern Express Co. v. Dickson, Oi U. S. 549, 24 L. Ed. 285 (1876). Ch. 3) THE COMPLETION OF THE CARRIER'S UNDERTAKING. 167 PACIFIC EXPRESS CO. v. SHEARER. (Supreme Court of Illinois, 189G. 160 111. 215, 43 N. E. 810, 37 L. R. A. 177, 52 Am. St. Rep. 324.) This was an action for misdelivery of a package containing $4,000. The plaintiffs did business at the stockyards in Chicago. Th?y had had dealings with one J. C. Stubblefield, a traveling cattle buyer, and from time to time at his request had advanced him money by draft, letter of credit, or express. Plaintiff's received the following telegram : "Chetopa, Kan.. April 22, 1889. "To W. W. Shearer & Co., Union Stockyards, Chicago : "Express me $4,000 to-day, Chetopa. Answer. "J. C. Stubblefield." The telegram was not sent by the Stubblefield whom plaintiff's knew, but by a swindler who had arrived at Chetopa the day before upon the same train with Stubblefield, and who, under the name of J. C. Stubblefield was stopping there at a hotel. Plaintiff's answered as follows : "Union Stockyards, Chicago, 111., 22. "To J. C. Stubblefield : "Sent monev as ordered to-day. Wire me full particulars on receipt of this. ' W. W. Shearer." This was delivered to the swindler, and he replied : "Chetopa, Kan., 23. "To W. W. Shearer & Co. : "Bought 240 corn fed Texas, top of 300, at $20 a head. "J. C. Stubblefield." April 24th the swindler called at the ofiice of the defendant express company, introduced himself as J. C. Stubblefield, and asked for a package addressed to him. informing the agent correctly that it was from Shearer & Co. and contained $4,000, and in response to a request that he identify himself, producing the telegram he had received and two accounts of sales showing transactions between J. C. Stubblefield and Shearer & Co. He also brought in the landlord of his hotel, who that intent was properly expressed in the address on the packages and that the name of the person to whom delivery was in fact made was not A Swan- nick they must find a verdict for the plaintiff. The judge refused so to rule and 'instructed the jury that, the intent of the plaintiff benig uneommumcated to the defendant, except so far as expressed in the address on the packages, was of itself of no importance ; and that if the delivery was made to a person who was known at Saratoga Springs by that name and no other, that was enough, To far Tthe queSon%f nami affected the legal result. The judge then left the single question to the jury, as to whether the defendant acted neg igently in mSng the delivery he did. instructing them further that, although there was no Question that there was a misdelivery of the goods in suit, the only question was, whether the defendant was guilty of negligence in making this misdelivery. — Rep. 1G8 THE carrier's UNDERTAKI^'G. (Part 2 told the agent that the swindler was known as J. C. Stubblefield, was making a trade for cattle west of the town, and had, as was true, or- dered cattle cars to be in readiness for a shipment to be made that day, and that the cars were ready. The agent then delivered the pack- age to the swindler. The jury were instructed, in effect, that, unless the person to whom delivery was made was in fact J. C. Stubblefield, the defendant was liable, though it had used reasonable diligence to ascertain his identity, and though he was the person in resjx)nse to whose telegram the package was sent. From a judgment for plaintiff, defendant appeals. Craig, C. J.*" * * * It is apparent from the record that the package was delivered to the person in response to whose telegraphic order appellees sent the package, appellees at the time believing such person to be J. C. Stubblefield ; and it is, no doubt, also true that, at the time of delivery, the agent of appellant ascertained that the person who demanded the package, and to whom it was delivered, was the person in response to whose order appellees sent the same, and that appellees treated the order for the money as the order of J. C. Stub- blefield; and it may also be true that the agent used reasonable dili- gence to ascertain the identity of the person who demanded the pack- age before it was delivered. Would these facts relieve the carrier of liability for delivering the package to a person to whom it was not consigned ? In Hutchinson on Carriers, § 344, the rule with reference to deliv- ery is stated as follows : "No circumstance of fraud, imposition, or mistake will excuse the common carrier from responsibility for a delivery to the wrong person. The law exacts of him absolute cer- tainty that the person to whom the delivery is made is the party right- fully entitled to the goods, and puts upon him the entire risk of mis- takes in this respect, no matter from what cause occasioned, however justifiable the delivery may seem to have been, or however satisfactory the circumstances or proof of identity may have been to his mind, and no excuse has ever been allowed for a delivery to a person for whom the goods were not directed or consigned." * * * In American, etc., Exp. Co. v. Milk, 73 111. 224, an action was brought against the company to recover for a package of money de- livered to the company in Du Page county, to be forwarded to Kan- kakee. When the package arrived at its destination, the agent of the company delivered it to a certain person on a forged order of the consignee. It was held that it is the duty of an express company, upon receiving a package of money to be forwarded, to safely carry and deliver it to the consignee, and the only way it can relieve itself from responsibility as a common carrier is by showing performance, or its prevention by the act of God or the public enemy, and that it is 40 The statement of facts has been rewritten, and. parts of the opinion omit- ted. A dissenting opinion by Phillips, J., is also omitted. Ch. 3) THE COMPLETION OF THE CARRIER'S UNDERTAKING. 169 not discharged by delivering the same to another on a forged order of the owner. The same doctrine is announced in American, etc., Exp. Co. V. Wolf, 79 111. 430. The decisions of this court are believed to be in harmony with the law as declared in the text-books and as announced by a large majority of the courts of last resort of the country. The law requires at the hands of the carrier absolute certainty that the person to whom the delivery is made is the real person to whom the goods have been con- signed, and the carrier cannot escape liability on the ground that de- ception, imposition, or fraud may have been resorted to by an im- postor to obtain from the agent of the carrier the goods intrusted to its care.*^ The business interests of the country, as well as the rights of a consignor who pays a liberal price for the transmission of his property, alike demand that the carrier should be held to a strict ac- countability. There are a number of cases in the books where a delivery of goods has been made by the carrier to the wrong person under cir- cumstances not unlike the facts under which the money was delivered here, where the carrier was held liable. In American Exp. Co. v. Fletcher, 25 Ind. 493, a person pretending to be J. O. Riley called on the telegraph operator and agent of the express company and sent a telegram to plaintiff requesting a certain sum of money by express. In a short time, the same agent received by express a package of money addressed to J. O. Riley. The person who had sent the tele- gram for the money called on the agent and operator and demanded the package of money, which was delivered over to him. Subse- quently, it turned out that the person who sent the telegram and to whom the money was delivered was not J. O. Riley, and the express company was held liable for the money. In the decision of the case, the court, among other things, said : "The express undertaking of the appellant was to deliver the package to J. O. Riley in person. The 41 Ace. Cavallaro v. Tex. & Pae. Ry. Co., 110 Cal. 348, 42 Pac. 918, 52 Am. St. Rep. 94 (1895). delivery to imiaersonator of consignee ; Sinsbeimer v. N. Y. Cent. R. Co.. 21 Misc. Rep. 45, 46 N. Y. Supp. 887 (1897), to finder of receipt; Adrian Knitting Co. v. Wabasli Ry. Co., 145 Micli. 323, 108 N. W. 700 (1906), to consignee's former partner hiolding bill of lading; So. Ex. Co. v. B. R. Elec. Co., 12G Ga. 472. 55 S. E. 254 (1906) ; Cane Belt R. Co. v. Peden. etc., Co., 45 Tex. Civ. App. 630, 101 S. W. 528 (1907), to consignee company's director hold- ing bill of lading. Where a consignee cannot be found, or refuses to accept, the carrier, acting as agent for the owner, may store the goods with a warehouseman as bailee for the owner, and is not liable thereafter even for the warehouseman's neg- ligence, at least where the owner has notice. Manhattan Shoe Co. v. C, B. & Q. R. Co., 9 App. Div. 172, 41 N. Y. Supp. 83 (1896). Where a consignee cannot be found, and the carrier holds the goods in his own warehouse for the owner's benefit, whether he is liable for a misdelivery without negligence, see Heugh v. London & N. W. Ry. Co., L. R, 5 Ex. 51 (1870) ; Burnell v. N. Y. Cent. R. Co.. 45 N. Y. 184, 6 Am. Rep. 61 (1871) ; Lake Shore R. Co. V. Hodapp, 83 Pa. 22 (1877) : Security Trust Co. v. Wells, Fargo & Co., 80 N. Y. Supp. 830, 81 App. Div. 426 (1903), aflirmed 178 N. Y. 620, 70 N. E. 1109 (1904) ; 6 Cyc. 473, note ,52. 170 THE carrier's UNDERTAKING. (Part 2 Utmost that the answer alleged was, that the delivery was to another person who pretended to be Riley. He identified himself merely as having so pretended on the day before, by transmitting a telegram in Riley's name. This was no better evidence that his name was Riley than if he had so stated to the express agent or any third person. That the package had been sent in response to a telegram purporting to be from J. O. Riley simply proved that Riley had credit, or some arrangement with the plaintiff to furnish him money, and that the package was sent to him — not that he was the person who sent the dispatch or that anyone pretending to be him was to receive it." Southern Express Co. v. Van Meter, 17 Fla. 783, 35 Am. Rep. 107, is another case in point. There an instruction had been given which was, substantially, that the express company, without reference to the party who may have ordered the money sent or who may have telegraphed for it, was bound to deliver to the plaintiff if it was sent to him and he was the owner. On behalf of the express company, it was insisted that the instruction did not announce a correct rule of law, but the court held otherwise, and said : "This instruction, viewed in reference to the testimony, is nothing more than that a forged tele- gram is no excuse for the delivery to a party not the owner and to whom it was the contract of the carrier to deliver it. * * * Not- withstanding the forged telegram, this carrier, in making a personal delivery, was bound by law to deliver to the person to whom the package was addressed, he being its true owner. It is the settled doctrine of England and this country that there must be an actual delivery to the proper person, * * * and in no other way can the carrier discharge his responsibility, except by proving he has performed such engagement or has been excused from performance, or been prevented by the act of God or a public enemy." See, also, American Exp. Co. v. Stack, 29 Ind. 27. Price V. Oswego, etc., Ry. Co., 50 N. Y. 213, 10 Am. Rep. 475, is an interesting case on the question. There the person who ordered the goods in the name of a fictitious firm, S. H. Wilson & Co., was the same person who received and receipted therefor in the name of such fictitious firm. It seems that the referee found "that the delivery by the carrier was to the same person who made the order for the goods," and he also found, as a conclusion of law, that the delivery to such person, without notice of fraud, relieved the carrier of lia- bility. But the court of appeals reversed the judgment and held the carrier liable, and, among other things, said: "It would hardly be claimed, in case there had been a firm doing business at Oswego un- der the name of S. H. Wilson & Co., a swindler would make himself consignee of goods, or acquire any right whatever thereto, which were in fact consigned to such firm, simply by showing that he had forged an order in the name of the firm directing such consignment. If he would not thereby acquire any right to the goods, delivery to Ch, 3) THP] COMPLETION OF THE CARRIER'S UNDERTAKING. 171 him would not protect the carrier any more than if made to any other person.'' Duff V. Budd, 3 Brod. & B. 177, 7 Eng. Com. L. 399, is also a case in point. There the person who received the goods was the same who ordered them in a fictitious name, but it was held the carrier had no authority to deliver them to such person, and the owner was entitled to recover of the carrier. Dunbar v. Boston, etc., R. Corp., 110 Mass. 26, 14 Am. Rep. 576, and Edmunds v. Merchants', etc., Co., 135 Mass. 283, are relied upon by the appellant to sustain the delivery of the package. In the first case cited, one John F. Gorman called on Dunbar, in Boston, and represented that he was John H. Young, of Providence, Rhode Is- land. He purchased on credit a quantity of goods, and had them consigned to John H. Young, Providence, Rhode Island. Upon the arrival of the goods in Providence, Gorman, who had made the pur- chase in person, presented himself to the carrier, and, as the agent of Young, demanded the goods. The goods having been delivered to him, Dunbar sued the carrier for a misdelivery, but the court held that the action would not lie. The decision, as we understand it, is predicated on the ground that the goods were consigned and delivered to the person who actually, in person, made the purchase under an assumed name. In the other case it appeared that "a swindler, claim- ing to be Edward Pape, of Dayton, Ohio, purchased goods from plain- tiff by personal negotiation. There was a man whose true name was Edward Pape, in Dayton, Ohio — a reputable business man, whom the plaintiff supposed the swindler to be. The goods were delivered by plaintiff to the defendant, to be carried to Dayton and delivered to Edward Pape. The defendant delivered to the swindler." The court held that the carrier was not liable. In the opinion the court said: "The sale was voidable by the plaintiff, but the carrier, by whom they were forwarded, had no duty to inquire into its validity. The person who bought them, and who called himself Edward Pape, owned the goods, and upon their arrival in Dayton had the right to de- mand them of the carrier. In delivering them to him the carrier was guilty of no fault or negligence. It delivered them to the person who bought and owned them, who went by the name of Edward Pape, and thus answered the directions upon the package, and who was the person to whom the plaintiff sent them." There is a marked dis- tinction between these cases and the one under consideration, and they cannot control here. Another case relied upon is Samuel v. Cheney, 135 Mass. 278, 46 Am. Rep. 467 [ante, p. 163]. That case, in its facts, is more like the one under consideration than any that has been cited by appellant, and it seems to sustain the position of appellant. But while we recognize the ability of the court in which the case was decided, we do not regard the rule laid down as the correct one, and we are not inclined to follow it. Some other cases have been cited in the argument of counsel, but it 172 THE carrier's undertaking. (Part 2 will not be necessary to refer to them here. The cases bearing on the question are not entirely harmonious, but the rule adopted in this state and in the courts of many other states, that the carrier is an in- surer for the safe delivery of the goods to the person to whom they are consigned, is, as we think, the only safe rule to be adopted. This rule gives protection to the consignor, who pays his money to the car- rier to transport and deliver goods to the consignee, and at the same time imposes no unreasonable responsibility on the carrier. When money or goods have been delivered to a carrier to be carried and de- livered to a certain named person, when they reach their destination it is the business of the agent of the carrier to deliver to the real per- son to whom they are consigned, and, as said by Hutchinson, no cir- cumstance of fraud, imposition, or mistake will excuse the common carrier from responsibility for a delivery to the wrong person. Where the consignee is unknown to the agent of the carrier, it is his duty to hold the goods until the consignee furnishes ample proof that he is the person to whom the goods were consigned. When Shearer & Co. received a telegram from J. C. Stubblefield, and forwarded a package of money directed to J. C. Stubblefield,^ they supposed and believed the order came from the man with whom they had previously had dealings and with whom they were personally acquainted, and, when they delivered the package to the carrier, it was consigned to him. The fact that an impostor had sent a telegram in the name of J. C. Stubblefield, and a reply to J. C. Stubblefield was returned which was delivered to the impostor, did not authorize the agent of the carrier to deliver the package directed to J. C. Stubble- field to an impostor representing that he was J. C- Stubblefield. Here the package of money was consigned to J. C. Stubblefield, and the carrier was directed to deliver the money to him and to him only. This was not done. The money was never delivered to J. C. Stubble- field, but the agent of the carrier delivered it to an impostor, and for a failure to deliver the package to J. C. Stubblefield the carrier is liable. The judgment of the Appellate Court will be affirmed. *2 SINGER V. MERCHANTS' DESPATCH TRANSP. CO. (Supreme Judicial Court of Massachusetts, 1906. 191 Mass. 449, 77 N. E. 882, 114 Am. St. Rep. 635.) Action in tort and contract for the value of three cases of boots and shoes delivered to the defendant for carriage. The case was tried without a jury, and comes up on facts agreed by the parties and on findings by the trial judge. The plaintiff, Louis Singer of Boston, shipped the goods in question to fill an order from one Guralnik of 42 Ace. American Ex. Co. v. Stack, 29 Ind. 27 (18G7). See, also, Wernwag v. RaUroad Co., 117 Pa. 46, 11 Atl. 868 (1887). Ch. 3) THE COMPLETION OF THE CARRIER'S UNDERTAKING. 173 Springfield, 111. The cases were marked "L. Singer, Springfield, 111." Plaintiff accepted a receipt which provided that the goods should be delivered to L- Singer, Springfield, 111., and might, at the carrier's op- tion, be delivered without the production of the receipt. Plaintiff in- dorsed the receipt and attached it to a draft for the price of the goods, which he sent to Springfield through his bank, with instructions to notify Guralnik. The cases were delivered at Springfield to Lena Singer, who had a shoeshop there. The trial judge found that defendant, in delivering to a person who produced no receipt, was negligent in not making eft'ort to ascertain that she was the person intended by the shipper. LoRiNG, J.^^ The contract of the defendant in the case at bar was to dehver the cases in question to L. Singer, Springfield, III, without requiring the production of a receipt or bill of lading. By accepting the receipt, which states the conditions upon which the property is received, the plaintiff accepted those terms as part of the contract. Grace v. Adams, 100 Mass. 505, 97 Am. Dec. 117, 1 Am. Rep. 131; Hoadley v. Northern Transportation Co., 115 ]\Iass. 301, 15 Am. Rep. 106; Fonseca v. Cunard Steamship Co., 153 Mass. 553, 27 N. E. 665, 12 L. R. A. 340, 25 Am. St. Rep. 660 [post, p. 418]. The receipt in question states on its face that these conditions are to be found on the back. Such a receipt comes within that rule. See in this connection Pemberton Co. v. New York Central Railroad, 104 Mass. 144 ; Doyle V. Fitchburg Railroad, 166 Mass. 492, 44 N. E. 611, 33 E. R. A. 844, 55 Am. St. Rep. 417. By force of this contract between the parties the case at bar is brought within the rule applied on proof of custom in Forbes v. Boston & Lowell Railroad, 133 Mass. 154 [ante, p. 156]. The defendant performed this contract by delivering the goods to L. Singer, Springfield, 111. Whether the consignor in the case at bar meant L. Singer of Boston, Mass., or L. Singer of Springfield, 111., is not material. What a con- signor in fact means if not communicated to the carrier is not material. The rights of the parties depend upon what is communicated to the carrier. Samuel v. Cheney, 135 Mass. 278, 46 Am. Rep. 467 [ante, p. 163]. The carrier in making delivery is bound to follow that direction whatever it may mean under all the circumstances of the case. It is agreed that the Lena Singer to whom the goods were delivered was, before and at the time in question, doing business in Spring- field, 111., under the name of L. Singer, and was so known to the de- fendant's representatives in Springfield; also that she had been re- ceiving goods over the defendant's line "nearly every week, addressed to L. Singer," and that "these cases were marked and billed in the same manner as other goods received at Springfield for said Lena Singer." It does not appear that there was any other E. Singer in Springfield. *3 The statement of facts has been rewritten. 174 THE carrier's undertaking. (Part 2 Under these circumstances we see no ground for saying that the de- fendant did not follow the instructions given to him in delivering the goods to Lena Singer. We cannot accede to the plaintiff's argument that because the de- fendant's agent in Boston had notice of the name of the consignor and consignee being the same he had notice that the goods were to be delivered to the consignor and therefore that L. Singer, Springfield, 111., meant L. Singer of Boston. If any inference ought to have been drawn from this fact we think it was that L. Singer of Springfield was the consignor acting through an agent in making the consign- ment. Neither is it material that "the plaintiff had been doing business in Boston for eleven years, and had been sending goods to Springfield, 111., for about five years prior to November 21, 1900, about six or seven times a year to the same Guralnik, and had always sent his goods ad- dressed in the same way, namely, L. Singer, Springfield, 111., and through the defendant company, and he never had any trouble before this time." The defendant's agent in Springfield was not bound to re- member and was not chargeable with knowledge of these facts. See in this connection Raphael v. Bank of England, 17 C. B. 161 ; Vermilye V. Adams Express Co., 21 Wall. 138, 22 L. Ed. 609 ; Seybel v. Nat. Currency Bank, 54 N. Y. 288, 13 Am. Rep. 583, where it^is held that previous notice of loss to a subsequent purchaser of a negotiable securi- ty does not charge him with knowledge of the facts stated in the notice. Whether this is the law in Alassachusetts was left open in Hinckley v. Union Pacific R. R., 129 Mass. 52, 59, 37 Am. Rep. 297. The issues of negligence on the part of the plaintiff and on the part of the defendant, on which the judge below tried the case, were not the issues on which the rights of the parties in the case at bar depend. Where the instructions as to delivery are doubtful under the circum- stances known to the carrier, he is put on his inquiry, and the question of negligence arises. But the instructions here were not doubtful un- der the circumstances known to the defendant. The judge in the court below apparently acted on Samuel v. Cheney, 135 Mass. 278, 46 Am. Rep. 467. There was ground for arguing that instructions there were doubtful under the circumstances known to the carrier. It is to be observed that the charge to the jury in that case was held to have been "sufficiently favorable to the plaintiff" ; it was not held to have been correct. The conclusion to which we have come is supported by Dunbar v. Boston & Providence R. R., 110 Mass. 26, 14 Am. Rep. 576 ; Samuel V. Cheney, 135 Mass. 278, 46 Am. Rep. 467; McKean v. Mclver. L. R., 6 Ex. 36 [ante. p. 166] ; Stimson v. Jackson, 58 N. H. 138 ; Conley V. Canadian Pacific Ry., 32 Ont. 258; The Drew (D. C.) 15 Fed. 826; Nebraska Meal Mills v. St. Louis Southwestern Ry., 64 Ark. 169, 41 S. W. 810, 38 L. R. A. 358, 62 Am. St. Rep. 183 [ante, p. 155]. Ch. 3) THE COMPLETION OF THE CARRIER'S UNDERTAKING. 175 The plaintiff evidently intended to make the goods shipped security for his draft for the unpaid balance of the purchase money due him. To do that he should have had the goods billed to his own order and then indorsed the bill of lading to the bank discounting his draft. By mistake he billed the goods "straight" and is now seeking to make the defendant liable for his own blunder. In the opinion of a majority of the court the entry must be : Exceptions sustained.** 4 4 Ace. The Drew, 1.5 Fed. 826 (1883). But see Houston, etc., K. Go, v. Adams, 49 Tex. 748, 30 Am. Rep. 116 (1878). 176 THE carrier's undertaking. (Part 2 CHAPTER IV WHO MAY SUE FOR BREACH OF THE CARRIER'S UNDERTAKING FINN V. WESTERN RAILROAD CORPORATION. (Supreme Judicial Court of Massachusetts, 1S73. 112 Mass. 524, 17 Am. Eep. 128.) Contract against the Western Railroad Corporation as a common ■carrier for failure to forward and deliver shingles to Joseph S. Clark at Westfield. The plaintiff, having received from Clark an order for a quantity of shingles, shipped them by canal boat and took from the master a receipt which stated that they were to be delivered to the Western Railroad Company at Greenbush. They were so delivered, arid were there destroyed by fire. The railroad company's agent at Greenbush testified that he refused to receive the shingles except for storage, because he did not know the name or address of the person for whom they were intended. The jury found, however, that he saw the full name and address of Clark upon the bundles, and gave a verdict for plaintiff. Defendant excepted to the court's refusal to give certain instructions based upon the theory that title to the shingles had passed to Clark, and that, if so, plaintiff could not recover. Wells, J.^ The only question argued by the defendant, upon these exceptions, is whether the action for loss of the property can be main- tained by and in behalf of Finn. It is contended that if there was a delivery, with proper directions for the transportation, so as to charge the defendant with responsibility as carrier, then the title in the prop- erty had passed to Clark,' the consignee ; and the right of action for injury to it was in him alone. On the other hand, if proper directions for its transportation had not been given, then the defendant is not liable at all as carrier, according to the former decision in 103 Mass. 283. It is not contended that the defendant is liable as warehouseman. In either aspect of the case, upon this view of the law, no recovery could be had by Finn. The jury having found that the defendant became responsible as carrier, the cas,e is now presented only in that aspect. We think also that the facts, as disclosed by the present bill of exceptions, show that the title to the property had passed to Clark before the loss oc- curred; leaving in Finn at most only a right of stoppage in transitu. The liabilities of a common carrier of goods are various ; and when not controlled by express contract, they spring from his legal obliga- 1 The statement of facts has been rewritten. Ch. 4) WHO MAY SUE FOR BREACH. 177 tions, according to the relations he may sustain to the parties either as employers, or as owners of the property. Prima facie, his contract of service is with the party from whom, directly or indirectly, he receives the goods for carriage; that is, with the consignor. His obligation to carry safely, and deliver to the consignees, subjects him to liabili- ties for any failure therein, which may be enforced by the consignees or by the real owners of the property, by appropriate actions in their own names, independently of the original contract by which the serv- ice was undertaken. Such remedies are not exclusive of the right of the party sending the goods, to have his action upon the contract im- plied from the delivery and receipt of them for carriage. This, in ef- fect, we understand to be the result of the elaborate discussion of the principles applicable to the case in Blanchard v. Page, 8 Gray, 281. That decision may not be precisely in point, as an adjudication, to govern the case now before us; for the reason that there was a written receipt or bill of lading for carriage by water, and the plain- tiffs were acting in the transaction as agents for the owners of the goods ; yet the general principles evolved do apply, and are satisfac- tory to us for the determination of the present case. When carrying goods from seller to purchaser, if there is nothing in the relations of the several parties except what arises from the fact that the seller commits the goods to the carrier as the ordinary and convenient mode of transmission and delivery in execution of the order or agreement of sale, the employment is by the seller, the contract of service is with him, and actions based upon that contract may, if they must not necessarily, be in the name of the consignor. If, however, the purchaser designates the carrier, making him his agent to receive and transmit the goods; or if the sale is complete before delivery to the carrier, and the seller is made the agent of the purchaser in respect to the forwarding of them — a different im- plication would arise, and the contract of service might be held to be with the purchaser. This distinction, we think, must determine wheth- er the right of action vipon the contract of service, implied from the delivery and receipt of goods for carriage, is in the consignor or in the consignee. In the case of Blanchard v. Page the action was main- tained in the name of the consignors, who were merely the agents of the owners in forwarding the goods. But that was explicitly on the ground of the express contract with them, embodied in the receipt or bill of lading. As already suggested, the consignee, by virtue of his right of pos- session, or the purchaser, by virtue of his right of property, may have an action against the carrier for the loss, injury, or detention of the goods, though not party to the original contract. Such action is in tort for the injury resulting from a breach of duty imposed by law upon the carrier; or, in the language of the early cases, upon "the custom of the realm." Green Oakb. — 12 378 THE carrier's undertaking. (Part 2 There are many cases, both in England and in the United States, in which the doctrine appears to be maintained that, except when there is a special contract, a remedy for injury resulting from breach of duty by a carrier can be had only in the name and behalf of some one having an interest in the property at the time of the breach, which is injuriously affected thereby. The rule might well be conceded, if the exceptions were not too restricted. It will hold good in actions of tort, because they are founded upon injury to some interest or right of the plaintiff.- And the cases which support this view are mostly, if not altogether, ac- tions of tort. This is true of the leading early case from which the doctrine is mainly derived, Dawes v. Peck, 8 T. R. 330 ; also of Grif- fith V. Ingledew, 6 Serg. & R. (Pa.) 429, 9 Am. Dec. 444; Green v. Clark, Denio (N. Y.) 497; Id., 13 Barb. (N. Y.) 57; and Id., 13 N. Y. 343 ; and does not appear from the report to be otherwise in Krulder v. Ellison, 47 N. Y. 36, 7 Am. Rep. 402. In discussing the grounds of decision it seems to have been assumed by various judges, as we think, erroneously, that the right of recovery necessarily in- volved the question with whom the original contract of service was made. And the effort to make the inference of law as to that con- tract conform to what was deemed the proper decision as to the right to recover for the injury, has led to some statements of legal infer- ence which appear to us to be somewhat overstrained. Thus in Dawes V. Peck it is said by Lawrence, J., that, in the payment of freight by the consignor, he is to be regarded as the agent of the consignee; that the carrier generally knows nothing of the consignor, but looks to the person to whom the goods are directed. In Freeman v. Birch, 1 Nev. & Man. 420, it is said by Parke, J., "In ordinary cases the vendor employs the carrier as the agent of the vendee." In Green v. Clark, 13 Barb. (N. Y.) 57, it is said by Allen, J., that when the con- signee is the legal owner, or the property vests in him by the delivery to the carrier "it is an inference of law, and not a presumption of fact, that the contract for the safe carriage is between the carrier and consignee, and consequently the latter has the legal right of action." But in the same case in the Court of Appeals (12 N. Y. 343) it was regarded as immaterial by whom the contract was made, and whether 2 It has been held that a consignor without interest in the goods may not maintain an action in tort for breach of duty as common carrier, though a party to the contract of carriage. No. Pac. Ry. Co. v. Lewis, 89 111. App. 30 (1900). But a bailee shipping to his agent may sue in tort. Gt. Western liy. Co. V. McComas, 33 111. 186 (1804) ; U. S. Express Co. v. Council, 84 111. App, 491 (1899) ; Walter v. Ala., etc., Co., 142 Ala. 474, 39 South. 87 (1904). So may one to whom goods are consigned under a contract for sale by him on com- mission. Boston & Me. R. Co. v. Warrior Co., 76 Me. 2.51 (1884); Mo. Pac. R. Co. V. Peru-Van Zandt Co., 73 Kan. 295, 85 Pac. 408, 87 Pac. 80, 6 L. R. A. (N. S.) 1058, 117 Am. St. Rep. 408 (1900). But see Cobb v. I. C. R. Co.. 88 111. 394 (1878). An owner may sue in tort, though neither consignor nor consignee. Fast V. Canton, etc., R. Co., 77 Miss. 498, 27 South. 525 (1899). Ch. 4) WHO MAY SUE FOR BREACH. 179 the plaintiff was consignor or consignee, for the purposes of an action of case for neghgence by which his property was injured. In Griffith v. Ingledew, the dissenting opinion of Gibson, J., assum- ing that the contract of carriage formed the basis of the action, com- bats with great force of reasoning the proposition that a contract wnth the consignee is the legal result of the receipt of goods by a carrier, when no privity with or authority from the consignee is shown, and none professed by the consignor at the time, unless the direction of the goods to the address of the consignee can be taken to be such pro- fession. The whole force and effect of the reasoning in Blanchard v. Page is in the same direction. The ordinary bill of lading or receipt, given to the consignor by the carrier, simply expresses what is the real sig- nificance of the transaction independently of the writing. There is no reason for giving a different interpretation to, or drawing a different inference from, the acts of ' parties, because of a writing which is nothing but a voucher taken to preserve the evidence of those acts. Whatever remedy is sought in contract must necessarily be sought in the name of the party with whom the contract is entered into, whether it be special, that is. express, or implied. The question then is simply this : In the absence of an express agreement, with whom is the carrier's contract of employment and service in respect of goods delivered to him by the seller to convey to the purchaser, when there is no privity or relation of agency between the carrier and the pur- chaser save that which springs from possession of the goods, and the seller has no authority to make a contract for the purchaser except what is to be implied from the agreement of purchase or the order for the goods? The law imposes upon the carrier the duty to transport the goods, allows him a reasonable compensation, and gives him a lien upon the goods for security of its payment. It also implies a promise on the one part to carry and deliver the goods safely, and, on the other, to pay the reasonable compensation. These two promises form the con- tract. Each is the counterpart and the consideration of the other. If the contract of carriage is with the consignee, the reciprocal prom- ise to pay the freight must be his also. Against this inference are the considerations that the seller is acting in his own behalf in making the delivery, and the goods remain his property until the contract with the carrier takes effect. The title of the purchaser does not exist until that contract is made. It follows as a result. The carrier is not agent for either party, but an intermediate, inde- pendent principal. If made an agent of the consignee, his receipt of the goods cuts off the right of stoppage in transitu on the one hand, and satisfies the Statute of Frauds on the other. He has a right to look for his compensation to the party who employs him, unless satis- fied from his lien. The fact that, as between seller and purchaser, the purchaser must ordinarily pay the expenses of transportation as a 3 80 THE carrier's UNDERTAKING. (Part 2 part of the cost of the goods, does not afifect the relations of contract between the carrier and either party. We discover nothing in the nature of the transaction, and we doubt if there is anything in the practice or understanding of the community which will justify the inference that one to whom goods are sent by carrier, without direc- tion or authority from him, other than an agreement of purchase or consignment, is the party who employed the carrier and is bound to pay him ; unless he assumes such liability by receiving the goods sub- ject to the charge. The contract is made when the goods are received by the carrier. If it is then the contract of the consignee, it will not cease to be so, and become the contract of the consignor, by reason of subsequent events. Suppose, then, the seller exercises his right of stoppage in transitu. Is the purchaser still liable to the carrier for the unpaid freight? Suppose the contract of sale to be without writing and within the Statute of Frauds. The contract of the carrier is not with- in the statute, and the authority to the seller to make such contract in behalf of the purchaser need not be in writing. Is the carrier to look to the purchaser or to the seller for the freight? Or does it de- pend upon the contingency whether the contract of sale is affirmed or avoided ? And if affirmed, and the carrier should deliver the goods without insisting on his lien, of whom must he collect it? The au- thorities hold, when the agreement of sale is within the Statute of Frauds, that the contract of the carrier is with the consignor. Coombs v. Bristol & Exeter Railway Co., 3 H. & N. 510 ; Coats v. Chaplin, 3 O. B. 483. We do not think the carrier's contract and right to recover his freight can be made to depend upon what may prove to be the legal effect of the negotiations between consignor and consignee upon the title to the property which is the subject of transportation. His con- tract must arise from the circumstances of his employment. He has a right to look for his compensation to the party who required him to perform the service by causing the goods to be delivered to him for transportation. And that party, unless he is the mere agent of some other, may enforce the contract, and sue for its breach by the carrier. One who forwards goods in execution of an order or agreement for sale is not a mere agent of the purchaser in so doing. He is acting in his own interest and behalf, and his dealings with the carrier are in his own right and upon his own responsibility, unless he has some special authority or directions from the' purchaser, upon which he acts. The plaintiff' in this case is therefore entitled to maintain his ac- tion upon the contract; and we think there 'is no sufficient reason shown to prevent his recovering the full value of the property de- stroyed. If Clark was the owner at the time, and his interest has been in no way satisfied or discharged, the plaintiff will hold the pro- ceeds recovered in trust for his indemnity. Clark might have prose- Ch. 4) WHO MAY SUE FOR BREACH. 181 cuted an action of tort in his own name, and recovered the value of his property lost ; in which event the damages in Finn's suit would have been nominal, or reduced to whatever amount of actual loss he suffered. But it is not pretended that Clark has ever brought any suit or made any claim upon the defendant, although knowing of the pendency of this suit, and having testified as a witness in the same; and all claim by him is long since barred. It is to be pre- sumed that he acquiesces in the recovery by Finn. If there were any doubt upon this point, we might order a new trial upon the question of damages only. As there is none, the judgment must be upon the verdict. Exceptions overruled.^ 3 Ace. Carter v. Graves, 9 Terg. (Tenn.) 446 (1S36) ; I. C. R. Co. v. Schwartz, 13 111. App. 490 (18S.3) ; Carter v. So. Ry. Co., Ill Ga. 38, 36 S. E. 308, .50 L. R. A. 3.j4 (1000) ; Ross v. Chicago, etc., R. Co., 119 Mo. App. 290, 95 S. W. 977 (190G). Contra: Uuiou Pac. R. Co. v. Metcalf, 50 Neb. 4.52, 69 N. W. 961 (1897) ; Butler V. Pittsbiu-g. etc., Ry. Co.. 18 Intl. App. 656, 46 N. E. 92 (1897) ; Frank- furt V. Weir, 40 Misc. Rep. 683, 83 N. Y. Supp. 112 (1903). For other cases, see Carriers, 9 Cent. Dig. §§ 262-269, 4 Dec. Dig. §§ 72, 76. 182 THK carrier's undertaking. (Part 2 CHAPTER V RIGHTS OF A HOLDER OF A BILL OF LADING THOMPSON V. DOMINY. (Court of Exchequer, 1845. 14 Mees. & W. 403.) Assumpsit. The declaration alleged that the defendants were the owners of the ship Julia, the master of which had shipped on board thereof, on account of one Grant, 1,303 barrels of oats, to be carried by the defendants, and safely delivered to Grant or his assigns, he or they paying freight for the same ; that the defendants signed a bill of lading to that effect, and delivered the same to Grant, and that Grant, for a certain sum, indorsed the bill of lading to the plaintiffs. And it alleged that although the defendants had delivered part of the said goods to the plaintiffs, yet that they refused to deliver the residue thereof. The defendants pleaded non assumpserunt, and other pleas, on which nothing now turned. At the trial, before Coleridge, J., at the last spring assizes at Win- chester, it was objected, for the defendants, that the plaintiffs ought to be nonsuited, on the ground that no action was maintainable by the mere indorsee of a bill of lading in his own name, the instrument not being negotiable. The learned judge inclined to that opinion, but re- fused to nonsuit, and, the jury having found a verdict for the plain- tiffs, he reserved leave to the defendants to move to enter a nonsuit. Kinglake, Serjt., having in Easter term last obtained a rule accord- ingly, Greenwood now showed cause. * * * Parke, B. I never heard it argued that a contract was transfera- ble, except by the law merchant, and there is nothing to show that a bill of lading is transferable under any custom of merchants. It trans- fers no more than the property in the goods ; it does not transfer the contract. That is the conclusion to be drawn from the judgment of Tindal, C. J., in delivering the opinion of the Court of Error in San- ders V. Vanzeller, 4 Q. B. 297 ; and Lord Ellenborough appears clearly to have entertained the same view of the question. Alderson, B. I am of the same opinion. This is another instance of the confusion, as Lord Ellenborough in Waring v. Cox, 1 Camp. 369, expresses it, which "has arisen from similitudinous reasoning up- on this subject." Because, in Lickbarrow v. Mason, 3 T. R. 71, a bill of lading was held to be negotiable, it has been contended that that instrument possesses all the properties of a bill of exchange ; but it would lead to absurdity to carry the doctrine to that length. The word Ch. 5) RIGHTS OF A HOLDER OF A BILL OF LADING. 183 "negotiable" was not used in the sense in which it is used as applica- ble to a bill of exchange, but as passing the property in the goods only. RoLFE, B., concurred. Rule absolute.^ WICHITA SAVINGS BANK v. ATCHISON, T. & S. F. R. CO. (Supreme Court of Kansas, 1878. 20 Kan. 519.) HoRTON, C. J.2 * * * On the 4th of September, 1876, Henry Schneider delivered to the railroad company, at Valley Center, a cer- tain lot of wheat which was put into a car to be consigned to his order, or assigns, at St. Louis, Mo. At the time of the delivery of the wheat to the railroad company, the defendant's agent at Valley Center issued and delivered to Schneider two original bills of lading, of the same terms, tenor, and effect, for the wheat, and each of which showed the receipt of 23,000 pounds of wheat, and its consignment to Henry Schneider, or to his order or assigns. There was not more than 33,000 pounds of wheat delivered, covered by the two bills of lading. Schnei- der procured the issue of two original bills of lading, instead of one, upon his statement that he wished one original bill of lading to file in his office as a memorandum of the transaction. Schneider took the two original bills of lading to Wichita, and on September 5th nego- tiated one of them to Messrs. Woodman & Son for a valid considera- tion. On the 6th of September Schneider negotiated the other original bill of lading to the plaintiff, a banking corporation, in the regular course of business, and duly transferred and indorsed the same in writing to the bank. The bank accepted the bill of lading from Schnei- der, and advanced him in good faith the money sued for upon the bill of lading, and wholly relying upon it for security for the advance- ment, and without any knowledge that two bills of lading had been issued for the wheat. The wheat was forwarded to St. Louis by the railroad company, and there delivered to the holder of the bill of lad- ing so negotiated to Messrs. Woodman & Son. The defendant was, at the several dates above named, a railway corporation, and engaged in operating a line of railway from the city of Wichita, by and through the town of Valley Center, and by and through the county of Sedg- wick, in the state of Kansas, to Kansas City, in the state of Missouri, and in carrying and transporting grain and other commodities for hire to St. Louis, Mo. It was the usage and custom of the railroad company, at its station of Valley Center, to issue but one original bill of lading for any one shipment of grain, which "custom was known to 1 In many states the rule of this case has been changed by statutes making bills of lading negotiable, or providing that a real party in interest may sue, or has been avoided by an application of the doctrine of Lawrence v. Fox, 20 N. Y. 208 (1859). The rule does not prevail in admiralty. 2 The statement of facts and parts of the opinion are omitted. 184 THE carrier's undertaking. (Part 2 plaintiff. The agent of the defendant by whom the bills of lading were issued had authority to receive wheat to be transported by the railroad company over its line to St. Louis, ]Mo., and to issue bills of lading therefor; but the company had given the agent no authority to issue more than one original bill of lading for any single shipment. Schneider being worthless, and having absconded, the bank lost the principal part of the amount of its advancement, and thereupon brought this action to recover the amount of its loss. Upon an agreed statement of facts, substantially in accordance with the foregoing, the district court rendered judgment for the defendant. The amount involved in this action is less than $1,000, but the ques- tions in issue are exceedingly important. Our state is a great pro- ducer of grain, large amounts of which seek markets outside of its boundaries. The means of its transportation are mainly limited to railroads, and commercial transactions by our grain dealers extend to millions each year. The great mass of these products, when started to Eastern markets, are purchased and paid for through bills of lad- ing. The custom of grain dealers is to buy of the producer his wheat, corn, barley, etc., then deliver the same to a railroad company for shipment to market. The railroad company issues to the shipper its bill of lading. The shipper takes his bill of lading to a bank, draws a draft upon his commission merchant, or consignee, against the ship- ment, and attaches his bill of lading to the draft.^ Upon the faith of the bill of lading, and without further inquiry, the bank cashes the draft, and the money is thus obtained to pay for the grain purchased, or to repurchase other shipments. In this way the dealer realizes at once the greater value of his consignments, and need not wait for the returns of the sale of his grain to obtain money to make other pur- chases. In this way the dealer, with a small capital, may buy and ship extensively; and, while having a capital of a few hundred dollars only, may buy for cash, and ship grain valued at many thousands. 3 "Under a contract for sale of chattels not specific, the property does not pass to the purchaser, unless there is afterwards au appropriation of the spe- cific chattels to pass under the contract ; that is, unless both parties agree as to the specific chattels in which the property is to pass, and nothing remains to be done in order to pass it. In the case of such a contract the delivery by the vendor to a common carrier * * * is an appropriation sutticieut to pass the property. If, however, the vendor, when shipping the articles which he intends to deliver under the contract, takes the bill of lading to his own order, and does so, not as agent or on behalf of the purchaser, but on his own behalf, it is held that he thereby reserves to himself a power of disposing of the prop- erty, and that consequently there is no filial appropriation, and the property does not on shipment pass to the purchasers. * * * So if the vendor deals with or claims to retain the bill of lading in order to secure the contract price, as when he sends forward the bill of lading with a bill of exchange attached, with directions that the bill of lading is not to be delivered to the purchaser till the acceptance or payment of the bill of exchange, the appropriation is not absolute, but until acceptance of the draft, or payment, or tender of the price, is conditional only, and until such acceptance, or payment, or tender, the property in the goods does not pass to the purchaser." Cotton, L. J., in Mirabita v. Imperial Ottoman Bank, L. R. 3 Ex. 164, 172 (1S7S). Ch. 5) RIGHTS OF A HOLDER OF A BILL OF LADING. 185 This mode of -transacting business is greatly advantageous both to the shipper and producer. It gives the shipper, who is prudent and post- ed as to the markets, ahnost unHmited opportunities for the purchase and shipment of grain, and furnishes a cash market for the producer at his own door. It enables the capitalist and banker to obtain fair rates of interest for the money he has to loan, and insures him, in the w^ay of bills of lading, excellent security. It also furnishes additional business to railroad companies, as it facilitates and increases shipments of produce to the markets. A mode of business so beneficial to so many classes ought to receive the favoring recognition of the law to aid its continuance; and the later decisions have gone very far to strengthen the quasi negotiability of bills of lading, independent of any statutory authority. Mr. Justice Miller said, in ]\IcNeil v. Hill, Woolw. 96, Fed. Cas. No. 8,914: "As civilization has advanced, and commerce extended, new and artificial modes of doing business have superseded the exchanges by barter, and otherwise, which prevail while society is in its earlier and simpler stages. The invention of the bill of exchange is a familiar illustration of this fact. A more modern, but still not recent, invention of like character, for the transfer, without the somewhat cumbersome and often impossible operations of actual delivery of articles of personal property, is the indorsement, or assignment, of bills of lading and warehouse receipts. Instruments of this kind are sui generis. From long use and trade, they have come to have among commercial men a well-understood meaning, and the indorsement or assignment of them as absolutely transfers the general property of the goods and chattels therein named, as would a bill of sale. * * * jf the warehouse- man gives to the party who holds such receipt a false credit, he will not be sufiFered to contradict his statement which he has made in the receipt, so as to injure a party who has been misled by it," The authorities speak of bills of lading passing from successive ven- dor to vendee, and thus become muniments of title of great value. Where one advances money on a bill of lading, or buys the property therein set forth by taking a transfer of such instrument absolutely, the only evidence which he has of the quantity of goods which he has bought, or advanced money on, may be the statement contained in the bill of lading. Indeed, one of the main uses of bills of lading of grain, at this day, is to afford shippers opportunity to obtain advances upon their shipments. When issued, the parties issuing them have the knowledge that they may and probably will be used with commission merchants, or at some iDank, to obtain advances of money. In the most of cases, this result is almost certain to follow. We may say that the bills of lading, covering the shipments in this case, were issued with the expectation that one of the two originals would be hypothe- cated with some banker, commission merchant, or other party, so uni- versally is this practice recognized and adopted. We make these pre- liminary remarks, of the character and usage of bills of lading, as they 186 THE carrier's undertaking. (Part 2 tend to clearly present the questions in controversy, and make, it seems to us, the solution of them easy. In accordance with well-settled rules, the plaintiff, knowing the cus- tom of the defendant to issue only one original bill of lading for any one shipment of grain, having made advances on the faith of the bill of lading issued by the agent of the company within the apparent scope of his authority, was entitled to recover of such defendant all damages resulting to him from the issuance of two original bills of lading for the same grain — or perhaps we might better say, for this false bill of lading — as the defendant was bound by the act of its agent, and therefore estopped from denying it had the grain stated in the bill sued on. When the defendant knew to w^hat uses bills of lading could be and usually were employed, it was guilty of negli- gence in issuing two original bills for the same wheat, in violation of its usual custom. It is true, one was issued, so that Schneider might file it away; but when issued, it should have been marked or designated as a "duplicate," so as to be incapable of being hypothe- cated to defraud those who dealt in such paper. After the wheat shipped by Schneider had been sold to Messrs. Woodman & Son, by transfer of the bill of lading negotiated to them on September 5th, the other bill of lading, transferred to the plaintiff on September 6th, was as worthless and valueless, as if it had been a false bill. Indeed, it was in this respect then false, for it purported to cover certain wheat which it did not represent. The defendant directly afforded Schneider opportunity to commit a fraud upon the plaintiff by issuing the second bill of lading; and its action in this regard was just as harmful to the plaintiff as if it had issued said bill with the intention to defraud the bank, or as if no wheat had been received by it at all. Both of the bills are admitted to be originals, and the company was certainly guilty of culpable negligence. In a late English case, Brett, J., stated the doctrine of estoppel as follows : "If in the transaction itself, which is in dispute, one has led another into the belief of a certain state of facts, by conduct of cul- pable negligence calculated to have that result, and such culpable neg- ligence has been the proximate cause of leading, and has led, the other to act, by mistake, upon such belief, to his prejudice, the second can- not be heard afterward as against the first to show that the state of facts referred to did not exist." Carr v. London Railway, L. R. 10 C. P. 307. * * * Considering the custom of the railroad company, the mode of doing business with bills of lading, the bank was guilty of no negligence in advancing the money to Schneider. The company was guilty of cul- pable negligence, which resulted in the consummation of the fraud. "The representations in the bills were made to any one who in the course of business might think fit to make advances on the faith of them." The bank acted on these representations in good faith. Schneider, who obtained the fruits of this fraud, has fled the state, Ch. 5) RIGHTS OF A HOLDER OF A BILL OF LADING. 187 and is insolvent. The bank, or the railroad company, must suffer. Who, under all the circumstances, ought to bear the loss? The su- perior equity is with the bank. It advanced moneys on certain rep- resentations which were virtually untrue. In this case, is presented every element to constitute an estoppel in pais, within the doctrine that, where one of two innocent persons must suffer by reason of the fraud or misconduct of a third, he by whose act, omission, or negli- gence, such third party was enabled to consummate the fraud, ought to bear the loss. Thus the defendant was liable, and the court below committed error in holding otherwise. We agree with the counsel for the defendant, that a bill of lading is not a negotiable instrument, and with much that is stated in their brief concerning the character of these instruments in general. But most of the decisions referred to by them contain discussions of the negotiability of this class of paper, and are not strictly authority, as the defendant's liability does not depend upon the negotiable character of bills of lading. Probably it would be beneficial to the commercial interests of the state, for the lawmaking power to make these instru- ments negotiable in all the meaning these words imply; but in the absence of such legislation the defendant ought not to have authority to issue bills of lading for grain, and thus put it in the power of the holder thereof to treat with the public on the representation made in them, and then, when money has been advanced on the faith of such statements, by innocent parties dealing in such paper in the regular course of business, contradict the representations of the paper, and thereby injure the persons who have been misled. The principle of estoppel does and ought in such cases to apply. The judgment of the district court will be reversed, and the case re- manded, with instructions to enter judgment for the plaintiff for the amount stated in the agreed statement of facts, with costs. All the justices concurring.* 4 See, also, Coventry v. Gt. East. Ry. Co., 11 Q. B. D. 770 (1SS.3). In Glyn Mills & Co. V. East & West India Dock Co.. 7 App. Cas. 591 (18812). bills of lad- ing were issued in triplicate, each containing the clause, "In witness whereof the master or purser of the said ship hath affirmed to three bills of lading, all of this tenor and date, the one of which bills being accomplished, the others to stand void." The shippers indorsed and delivered one of the bills to the plaintiffs as security for an advance, but afterwards obtained the cargo them- selves bv presenting another unindorsed bill. The dock company was held to be excused for the delivery, because the master to whose duty it had succeeded would have been excused. Lord Blackburn said: "I have never been able to learn why merchants and shipowners continue the practice of making out a bill of lading in parts. I should have thought that, at least since the introduc- tion of quick and regular communication by steamers, and still more since the establishment of the electric telegraph, every purpose would be answered by making one bill of lading only, which should be the sole document of title, and taking as many copies, certified hy the master to be true copies, as it is thought convenient. Those copies would suffice for every legitimate purpose for which the other parts of the bill can now be applied, but could not be used for the Durpose of pretending to be the holder of a bill already parted with. * * * I think, also, that the only reasonable construction to be put upon the clause 188 THE carrier's undertaking. (Part 2 RATZER V. BURLINGTON, C. R. & N. RY. CO. (Supreme Court of Minnesota, 1S9G. G4 Minn. 245, G6 N. W. 988, 58 Am. St. Rep. 530.) Canty, J.^ The ^Morrison Grain & Lumber Company shipped three car loads of oats, two from Britt, and one from Forrest City, Iowa, to New York City. One of these cars was shipped on January 5, and the other two on January 7, 1895. A bill of lading was issued for each car by the initial carrier. In each bill the shipper is named as consignee, with the addition, "Notify John Ratzer;" and the destina- tion named is New York City. The initial carrier transported the cars to Livermore, Iowa, and there delivered them (with proper way- bills, showing New York to be the destination) to the defendant, the next connecting carrier, with whom and a subsequent carrier it had through traffic arrangements. The defendant carried the cars on its line towards their destination until they reached Morrison, Iowa, on January 8th or 9th, and there delivered all of the oats (of the value of $1,336) to the shipper, on its demand, without requiring a surrender or cancellation of the bills of lading. The shipper at this point con- verted the oats to its own use. Within a day or two after the oats were so delivered at Morrison, the shipper indorsed each of the bills of lading, "Deliver to the order of John Ratzer," and signed them. The shipper also drew drafts on said Ratzer, this plaintiff, in favor of the Bank of Reinbeck, for the amount of the purchase price of the oats, attached the drafts to the bills of lading, and delivered all of the same to the bank, who cashed the drafts in good faith, in the regular course of business, relying on the attached bills of lading. The bills of lading were, in the reg- ular course of business, forwarded by the bank to New York, and presented to Ratzer, a commission merchant there, dealing in grain, who on January 14 and 16, 1895, in the regular course of business, paid the drafts in good faith, relying on the attached bills of lading, which he then and there received. If the three cars of oats had contin- ued to New York, their destination, in the usual course of transpor- at tlie end of the bill of lading is that the shipowner stipulates that he shall not be liable on this contract if he bona fide, and without notice or knowledge of anything to make it wrong, delivers to a person producing one part of the bill of lading, designating him — either as being the person named in the bill if it has not been indorsed, or if there be a genuine indorsement as being as- sign — as the person to whom the goods are to be delivered. In that case, as against the shipowner, the other bills are to stand void. Even without that clause I should say that the case falls within the principle laid down as long ago as the reign of James I in Watts v. Ognell, Cro. Jac. 192. 'That depends,' says Willes, J., in De Nieholls v. Saunders, L. R. 5 C. P. 594, 'upon a rule of general jurisprudence, not confined to choses in action, though it seems to have been lost sight of in some recent cases, viz., that if a person enters into a con- tract, and without notice of any assignment fulfills it to the person with whom he made the contract, he is discharged from his obligation.' The equity of this- is obvious." * Parts of the opinion are omitted. Ch. 5) RIGHTS OF A HOLDER OF A BILL OF LADING. 189 tation, they would have arrived there between January 23d and 30th. The shipper, the Morrison Company, is wholly insolvent. Plaintiff brought this action to recover $801.94, the amount so advanced by him on the faith of the bills of lading. The case v/as tried by the court below, without a jury. The court found all of the foregoing facts, and thereon ordered judgment for defendant. From the judgment entered thereon, plaintiff' appeals, and urges, as a ground for reversal, that the judgment is not sustained by the findings of fact. We are of the opinion that, on the facts found, the plaintiff is en- titled to judgment. A vast portion of the produce of this country is moved from the agricultural districts to the commercial centers and the seaboards by the aid of advances made on the 'security of such bills of lading. A well-established custom has grown up in commer- cial circles by which such bills of lading are treated as the symbols of title to the property in transit, are taken as security for money advanced, and indorsed and delivered as a transfer of the property. This is well understood by the railroad companies and every one else. To allow the railroad companies to ignore this custom would be to destroy the custom itself. This would cause great hardship, revolu- tionize business methods, and drive all buyers and shippers of small means out of the business, as they could no longer give ready and available security on commodities in transit, and thereby turn their limited capital sufficiently quickly and often to enable them to do much business. This, in turn, would destroy competition, and leave the business in the hands of a few concerns with unlimited capital. Nei- ther have the railroad companies any right to ignore this custom. On the contrary, it must be held that these companies have been doing business with reference to this custom as much as the shippers them- selves and the consignees, banks, commission merchants, and others who are continually advancing money on the faith of the security of these bills of lading. The effect of this custom, independent of sec- tion 7649, Gen. St. 1894, is to make bills of lading to some extent and for some purposes negotiable, and to give superior rights to inno- cent transferees for value in the usual course of business. * * '•' Respondent contends that the consignee is only obliged to produce the bill of lading, but not to surrender it when receiving the goods; and that as the l^lorrison Company held the bill of lading when the oats were delivered to it in transit, and it did not negotiate the bill of lading until afterwards, the defendant is not liable for so delivering the oats without requiring a surrender of the bill of lading. Whether or not the carrier can compel a surrender of the bill of lading when it delivers the goods it is not necessary here to decide.' If the holder of the bill of lading insists on retaining it as a muniment of title, or for any other purpose, and has a legal right to do so, he can, at least, be required to produce it for cancellation, so that it will cease to be 6 See Dwyer v. Gulf, eta, Ry. Co., 69 Tex. 707, 7 S. W. 504 (1888). 190 THE CAIUUER's UNDERTAKING. (Part 2 on its face a live bill of lading. And, in our opinion, it was the duty of the defendant at least to require this. It is immaterial that these bills of lading were negotiated to the bank and plaintiff after the oats were so delivered to the shipper. The bills were so negotiated before they had become stale, and even a considerable length of time before the oats would, in the ordinary course of transportation, have arrived at New York, their destination. The defendant permitted these bills to remain outstanding, with all the appearances of live, valid bills of lading. There was nothing to put any one dealing with the ^lorrison Company on his guard. * * * It was the duty of the defendant to see that the bills of lading were canceled when it redelivered the oats to the shipper, and its failure to perform that duty enabled the shipper to perpetrate a fraud on the bank and plaintiff. It is a case, for the application of the doctrine of equitable estoppel, that, w^ere one of two innocent persons must suf- fer by reason of the fraud of a third party, he by whose negligent act or omission such third party was enabled to commit the fraud ought to bear the loss. Under this rule, the defendant is estopped from showing that it delivered the goods to the shipper at the intermediate point, and is liable to plaintiff" for failure to deliver them to him at the place of original destination. This disposes of the case. The judgment is reversed, and judgment ordered for plaintiff', pur- suant to this opinion.' T Ace. Union Pac. Ry. Co. v. .Tolmson, 45 Neb, 57. 63 N. "W, 144, 50 Am. St. Rep. 540 (189.5). See Midland Nat. Bk. v. Mo. Tac. Ry. Co.. 132 Mo. 4;t2. 33 S. W. 521, 53 Am. St. Rep. .505 (1895) ; also Pollard v. Reardou, G5 Fed. 848. 852, 13 C, C. A, 171 (1895), sale of goods in transit by one wbom prior purobaser had i>ermitted to retain bill of lading ; Am. Zinc Co. v, Markle Lead Works, 102 Mo. App. 158. 7(! S. W. 6GS (1903), sale by one wbom owner bad permitted to take ont bill of lading. Compare Mercbants' Nat, Bk. v. Baltimore, etc., Co,, 102 Xld. 573, m Atl. 108 (1900). spent bill negotiated by frandnlent alteration. As to tbe liability to a later indorsee of a carrier wbo fails to take up tbe bill of lading on delivery at destination, see Alabama Nat. Bk. v. Mobile & O. Rv. Co., 42 Mo. App. 2s4 (1890) ; Mairs v. Bait. & O. R. Co., 73 App. Div. 265. 76' N. Y. Supp. 8.38 (1902) ; Greenwood Grocery Co. v. Canadian El. Co., 72 S, C. 450, 454, 52 S. R 191, 2 L. R. A. (N. S.) 79, 110 Am. St. Rep. 627 (1905) ; Harttie v. Vicksbnrg, etc., Co., 118 La. 25.3, 42 South. 793 (1!K)7), statutory. See also, Nebraska Meal Mills v. St. Louis S. W. Ry. Co.. ante. p. 155. In Chesapeake S. S. Co. v. Merchants" Nat. Bk., 102 Md. .589. 63 Atl. 113 (1906), bills of lading to shipper's order having the words "Not negotiable" printed on their face, provided: "The surrender of the bills of lading i)rop- erly indorsed shall be required before the delivery of the property at destina- tion." Page, J., said: "We have held in the preceding case that the obligation of the appellant to require the surrender of the bill of lading when the goods are delivered was a provision intended for the protection of all who dealt with the goods. To deliver the goods without such surrender was therefore the ecpiivaleut of a declaration that the goods were still in the carrier's ix)S- session. If, therefore, it had in fact parte (1809). In this case I'hillips, J., said: "A bill of lading is both a receipt and a contract, and the receipt of the goods for carriage is the basis of the contract of carriage. If no goods are received for carriage, there can be nothing on which the contract of carriage can be based, as the duties and obligations of the carrier with respect to the goods must commence with their delivery Ch. 5) RIGHTS OF A HOLDER OF A BILL OF LADING. 199 mentioned, the contents of which were concealed from view. It could not apply to corn in bulk loaded into a car from an elevator. Appellee did not intend to say by its bill of lading that it had received 38,600 pounds of corn, the contents of which were unknown, and it would not be so understood. So far as the provision that weight w'as subject to correction is concerned, a reasonable interpretation must be given to it, such as both parties w^ould naturally give when the shipment was made. Er- rors and mistakes are liable to occur in weighing grain as in other things, and the right to correct such errors was reserved in the con- tract. Appellants had notice of that provision, and anything attributa- ble to such ordinary errors and differences in weighing as might be reasonably expected to occur, might be corrected, but the right must be kept within the reasonable limits of such errors. Appellants, when advancing money on appellee's statement that it had 38,600 pounds of corn, to which they would get title by acquiring the bill of lading, would certainly not anticipate, under the provision for correcting er- rors in weighing, such an unreasonable difference in weight, not at- tributable to ordinary errors of that sort, as would amount to 256 bushels in a car load of corn. Such a difference would be apparent to sight, and it w'ould require no test of weighing to show that it ex- isted. Appellee would have no right, under cover of correction of er- rors in weighing, to account for such a difference as could arise only from gross negligence of its agent. Such obvious difference could not be charged to errors not plainly apparent, and merely due to mis- takes in w^eighing, which would be discovered on again weighing the corn. If appellee could reduce the amount of corn more than one third, there would be no limit to the correcting that might be done.^'^ In our opinion, the holding of the court that appellee could not be made liable for more than the amount of corn delivered, was erro- neous. * * * The judgment will be reversed and the cause re- manded. to him in a manner ttiat puts upon him the exclusive duty of seeing to their safety." In Pollard v. Vinton, 10.5 U. S. 7. 26 L. Ed. 998 (18S1). Miller. J., said: "The receii)t of the goods lies at the foundation of the contract to carry and deliver. If no goods are actually received, there can be no valid contract to carry or to deliver." 15 Compare Miller v. Hannibal, etc., R. Co., 90 N. Y. 430, 43 Am. Rep. 179 (188'^) barrels containing only sawdust shipped as "30 bbls. of eggs, contents unknown"; The Querini Staniphalia (C. C.) 19 Fed. 123 (1883). weight un- known; Alabama Gt. So. R. Co. v. Comm. Mfg. Co., 14ti Ala. 388. 42 South. 406 (1906), "50 bales, weighing 25.000 lbs., contents unknown," where the bales numbered 50, but weighed only 14,000 pounds. 200 THE CARRIEU'S UNDERTAKING. (Part 2 MADDOCK V. AMERICAN SUGAR REFINING CO. (District Court, D. Massachusetts, 1808. 91 Fed. IGG.) Lowell, District Judge. The libelant, who is the owner of the steamship Salamanca, seeks to recover the balance of freight due for the carriage of sugar on the steamship from Cuba to Boston. The re- spondent was the purchaser of the sugar, and seeks to offset against the unpaid balance the value of 37 bags of sugar. The bills of lading, signed by the master of the Salamanca and assigned to the respond- ent, acknowledge the receipt on board the Salamanca of 11,640 bags, and the respondent paid value for this number of bags to the shipper; whereas the respondent contends that only 11,603 bags were delivered to it in Boston. It is admitted, however, that all the bags received on board, whatever the number, were duly delivered. As the case is presented, I have to determine if the vessel is liable for the shortage in the number of bags of sugar set out in the bill of lading, when the bill of lading and the sugar represented by it have passed to a bona fide purchaser. >No fraud is charged against any one — master, owner, shipper, or vendee. The great weight of authority, both in England and in this country, seems to hold that the vessel is not liable in the case above stated. See The Freeman, 18 How. 182, 15 L. Ed. 311 ; Pollard v. Vinton, 105 U. S. 7, 26 L. Ed. 998 ; Railway Co. v. McFadden, 154 U. S. 155, 14 Sup. Ct. 990, 38 L. Ed. 944; Jessel v. Bath, L. R. 2 Exch. 267; Sears v. Wingate, 3 Allen (Mass.) 103; The Loon, 7 Blatchf. 244, Fed. Cas. No. 8,499; Robinson v. Railroad Co. (C. C.) 9 Fed. 129; 1 Pars. Shipp. & Adm. 187; McLachlan, Shipp. 394; Legg. Bills Lad. 62. Several cases in New York to the contrary effect are admittedly opposed to cases which the Supreme Court has cited with entire ap- proval. It is contended, indeed, that though the vessel be not liable for a shortage in weight, upon the ground that it is difficult, if not impossible, to weigh a cargo exactly, yet that the vessel is liable for a shortage in the number of cases or packages or other separate articles, inasmuch as these may be definitely counted. Without discussing if the exact number of more than 10,000 bags of sugar can be ascer- tained more accurately than the weight of a cargo of coal, I find noth- ing in the authorities to support the distinction urged. The decisions above quoted, and many others, are made to rest upon the principle that the master's apparent authority to bind the vessel and its owner does not extend to signing bills of lading for cargo not actually received on board, or, at any rate, delivered into his hands for shipment. I must confess that this reasoning seems to me not altogether satisfactory. I suppose that the statement of the bill of lading signed by the master is evidence of the receipt of the goods mentioned in it, even against the owner and the vessel. See McLean v. Fleming, L. R. 2 H. L. Sc. 128, 130 ; Legg. Bills Lad. 225 ; Ch. 5) RIGHTS OF A HOLDER OF A BILL OF LADING. 201 Pars. Shipp. & Adm. 197. It is hard to see how this can be so, if the master's authority extends only to goods actually received. If his au- thority be so limited, his receipt of the goods must first be proved, in order to show that he is authorized to certify that they have been re- ceived. Perhaps a better reason for the established doctrine may be that a bill of lading is not generally understood to be a representation to whomsoever it may concern that certain articles are in the hands of the carrier, but merely a receipt, which is, indeed, prima facie evi- dence of the facts set out in it, but is also subject to contradiction as against even a bona fide holder thereof. Whatever be the grounds of the doctrine, however, I think it is established too firmly for this court to question it. Decree in accordance with this opinion.'® i« Affirmed 93 Fed. 980, 3G C. C. A. 42 (1899) Ace. Brown v. Powell Coal Co., L. R. 10 C. P. 562 (1875). " * * * It is a mistake to suppose that the in- terests of commerce require that the common carriers of the country shall be- ct)me the insurers or guarantors of merchants who choose to make, in their dealings with others, a convenience of their bills of lading." Hammond, J., in llobinson v. Memphis, etc., R. Co., 9 Fed. 129, 140 (1881). "To hold the ship to such a liability, would be not only in plain contradic- tion of the authorities above cited, hut a plain enlargement and perversion of the ship's business from that of simple transportation, to that of guarantor and insurer against fraud or mistake in the execution of contracts between vendor and vendee for their convenience. That is not the proper business of the ship, or of her officers. The vendor and vendee could not make the ship or her owners responsible for the exact performance of the contract between themselves by means of the ship's tally taken for the purpose merely of giving the receipt in the bills of lading. The shipper plainly could base no conclusive claim upon such a tally ; nor can the consignee, because neither the tally nor the bills of lading were given for the purpose of authorizing payment by the consignee before delivery or without any verification of the ship's count ; nor was the consignee authorized to make use of the tally for such a purpose, ex- cept at his own risk, as regards fraud or mistake. There has long been, no doubt, a recognized tendency in favor of commercial dealings in goods in transit, to which dealings the ship is no party, to make the ship responsible, by the application of the principle of equitable estoppel, for the accuracy of the receipt stated in the bill of lading. This has never been by any acquies- cence or agreement on the part of the carrier. In self-defense and to protect themselves against liabilities which they never intended to assume and for which they have received no corresponding remuneration, masters and ship owners have long been in the habit of inserting various restrictions and ex- ceptions in order to guard against such resiwnsibility." Brown, J., in the Asp- hodel (D. C.) .53 Fed. 835 (1893). ■^Tiere a bill of lading recites that freight has been paid, the carrier is es- topped to contradict the recital as against one who has bought in reliance upon it. Howard v. Tucker, 1 B. & Ad. 712 (1831). 202 . THE carrier's undertaking. (Part 2 CHAPTER VI TICKETS AUERBACH v. NEW YORK CEXT. & H. R. R. CO. (Court of Appeals of Ne\v York, 1SS2. 80 N. Y. 281, 42 Aui. Rep. 290.) Earl^ J. This action was brought by the plaintiff to recover dam- ages for being ejected from one of the defendant's cars while he was riding therein as a passenger He was nonsuited at the trial, and the judgment entered upon the nonsuit was affirmed at the General Term. The material facts of the case are as follows : The plaintiff, being in St. Louis on the 21st day of September, 1877, purchased of the Ohio and Mississippi Railway Company a ticket for a passage from St. Louis over the several railroads men- tioned in coupons annexed to the ticket to the city of New York. It was specified on the ticket that it was "good for one continuous pas- sage to point named on coupon attached" ; that in selling the ticket for passage over other roads the company making the sale acted only as agent for such other roads, and assumed no responsibility beyond its own line ; that the holder of the ticket agreed with the respective com- panies over whose roads he was to be carried to use the same on or before the 26th day of September then instant, and that, if he failed to comply with such agreement, either of the companies might refuse to accept the ticket, or any coupons thereof, and demand the full regu- lar fare which he agreed to pay. He left St. Louis on the day he bought the ticket, and rode to Cincinnati, and there stopped a day. He then rode to Cleveland and stayed there a few hours, and then rode on to Buffalo, reaching there on the 24th, and stopped there a day. Before reaching Buffalo he had used all the coupons except the one entitling him to a passage over the defendant's road from Buffalo to New York. The material part of the language upon that coupon is as follows : "Issued by Ohio and Mississippi Railway on account of New York Central and Hudson River Railroad one first-class passage, Buffalo to New York." Being desirous of stopping at Rochester, the plaintiff purchased a ticket over the defendant's road from Buffalo to Rochester, and upon that ticket rode to Rochester on the 25th, reaching there in the after- noon. He remained there about a day, and in the afternoon of the 26th of September he entered one of the cars upon the defendant's road to complete his passage to the city of New York. He presented his ticket, with the one coupon attached, to the conductor, and it was accepted by him, and was recognized as a proper ticket and punched Ch. 6) TICKETS. 203 several times, until the plaintiff reached Hudson about 3 or 4 o'clock a. m., September 2Tth, when the conductor in charge of the train de- clined to recognize the ticket on the ground that the time had run out, and demanded $3 fare to the city of New York, which the plaintiff declined to pay. The conductor with some force then ejected him from the car. The trial judge nonsuited the plaintiff on the ground that the ticket entitled him to a continuous passage from Buffalo to Xew York, and not from any intermediate point to New York. The General Term affirmed the nonsuit upon the ground that, although the plaintiff com- menced his passage upon the 26th of September, he could not continue it after that date on that ticket. We are of opinion that the plaintiff was improperly nonsuited. The contract at St. Louis, evidenced by the ticket and coupons there sold, was not a contract by any one company or by all the companies named in the coupons jointly for a continuous passage from St. Louis to New York. A separate contract was made for a continuous passage over each of the roads mentioned in the several coupons. Each com- pany through the agent selling the ticket made a contract for a pas- sage over its road, and each company assumed responsibility for the passenger only over its road. No company was liable for any acci- dent or default upon any road but its own. This was so by the very terms of the agreement printed upon the ticket. Hence the defend- ant is not in a position to claim that the plaintiff' was bound to a con- tinuous passage from St. Louis to New York, and it cannot complain of the stoppages at Cincinnati and Cleveland. Hutchinson on Car- riers, § 579; Brooke v. Grand Trunk Railway Co., 15 Mich. 332. But the plaintiff was bound to a continuous passage over the de- fendant's road; that is, the plaintiff could not enter one train of the defendant's cars and then leave it, and subsequently take another train, and complete his journey. He was not, however, bound to commence his passage at Buffalo. He could commence it at Rochester or Al- bany, or any other point between Buffalo and New York, and then make it continuous. The language of the contract and the purpose which may be supposed to have influenced the making of it do not require a construction which would make it imperative upon a pas- senger to enter a train at Buffalo. No possible harm or inconvenience could come to the defendant if the passenger should forego his right to ride from Buffalo and ride only from Rochester or Albany. The purpose was only to secure a continuous passage after the passenger had once entered upon a train. On the 26th of September the plain- tiff having the right to enter a train at Buffalo, it cannot be perceived why he could not. with the same ticket, rightfully enter a train upon the same line at any point nearer to the place of destination.^ 1 Compare Gt. No. Ry. Co. v. Winder, [1892] 2 Q. B. .595, where a passenger using a ticket for a distant station to a nearer point to which the fare was higher was held liable for the difference in fares. 204 THE carrier's undertaking. (Part 2 When the plaintiff entered the train at Rochester on the afternoon of the 26th of September, and presented his ticket, and it was accepted and punched, it was then used within the meaning of the contract. It could then have been taken up. So far as the plaintiff was con- cerned, it had then performed its office. It was thereafter left with him not for his convenience, but under regulations of the defendant for its convenience that it might know that his passage had been paid for. The contract did not specify that the passage should be com- pleted on or before the 2fith, but that the ticket should be used on or before that day, and that it was so used it seems to us is too clear for dispute. - The language printed upon the ticket must be regarded as the lan- guage of the defendant, and if it is of doubtful import the doubt should not be solved to the detriment of the passenger. If it had been intended by the defendant that the passage should be continuous from St. Louis to New York, or that it should actually commence at Buffalo and be continuous to the city of New York, or that the passage should be completed on or before the 26th of September, such intention should have been plainly expressed and not left in such doubt as might and naturally would mislead the passenger. We have carefully examined the authorities to which the learned counsel for the defendant has called our attention, and it is sufficient to say that none of them are in conflict with the views above expressed. The judgment should be reversed and a new trial granted, costs to abide the event.^ MORNINGSTAR v. LOUISVILLE & N. R. CO. (Supreme Court of Alabama, 1902. 135 Ala. 251, 33 South. 156.) Sharpe, J.* Apart from the office it may perform in evidencing the contract of carriage, the chief use of a passenger ticket is to identify the holder as a person who has paid his fare, or has otherwise com- plied with conditions entitling him to carriage, and this use of it is or- 2 "Suppose the Post Office Department were to determine to retire all postage stamps of a certain print, and should notify the public that such stamps could not be used after a certain day. Would any person doubt that a letter mailed with such a stamp at any time before the closing of the mails on the day named would go to its destination, although the transit might take a week or more?" Thompson, J., in Evans v. St. Louis, etc., Ry. Co., 11 Mo. App. 463 (1882). 3 A ticket unlimited as to time is good until the time fixed by the statute of limitations for bringing actions of simple contract has elapsed since its is- sue. See Erie R. Co. v. Littell, 128 Fed. 546, 63 C. C. A. 44 (19(>4). But is not good thereafter. Cassiano v. Galveston, etc., Ry. Co. (Tex. Civ. App.) 82 S. W. 806 (1904). In Keeley v. B. & M. R. Co., 67 Me. 163. 24 Am. Rep. 19 (1878), it was held that a ticket bought in Portland, bearing the words "Port- land to Boston," did not entitle the holder to passage from Boston to Port- land. 4 The statement of facts has been omitted. Ch. 6) TICKETS. 205 -dinarily made when the holder offers himself to be carried; hence, where nothing is expressed to the contrary, a stipulation purporting to limit the use of a ticket to a specified time is construed as fixing that time as the latest for commencing, and not for completing, the jour- ney. Auerbach v. Railroad Co., 89 N. Y. 281, 42 Am. Rep. 290; Lundy V. Railroad Co., 66 Cal. 191, 4 Pac. 1193, 56 x\m. Rep. 100. Accordingly the clause in plaintiff's ticket declaring it "void after i\Iay 20, 1900," implied a stipulation merely for plaintiff's commence- ment of the trip from Pensacola before the expiration of that day. He had a right to assume, and to rely upon the assumption, that de- fendant would conform to its schedule for running trains, and was prevented from entering upon his journey on May 20th only by delay until after midnight of the train scheduled to leave Pensacola at the hour of 11 :20 p. m. of that day. Defendant was not entitled to treat its own default as defeating its obligation to the plaintiff', nor was that obligation discharged by placing him at Flomaton. Defendant operated the road from Flomaton to jNIobile, as well as that from Pensacola to Flomaton, and, having accepted his ticket for passage to the latter place, and having delayed his arrival there until the usually connecting train had gone, it was under the duty to not abandon him, and to aff'ord him opportunity to proceed by another train to Alobile. If, as the evidence tends to show, the plaintiff was duly diligent about attempting to pursue his journey from Flomaton, the conductor of the Mobile train in ejecting him acted not under, but in violation of, the contract of carriage. The ticket did not pur- port to show on its face, or in connection with the fact that plaintiff was journeying late, that any forfeiture had occurred under the time limitation, for the circumstances controlling his right to so travel were not disclosed by the ticket. The conductor, in denying that right, simply risked the company's responsibility upon the existence vel non of facts avoiding such forfeiture. The evidence offered by plaintiff' tended to the establishment of such facts, and should not. as a whole, have been excluded from the jury. Reversed and remanded.^ 5 A passenger who had begun his journey in due season stopped over by- consent of the railroad, and attempted to resume his trip after the time to which his ticlvct was limited had expired. The ticket was held to be invalid. Landers v. Mo., etc.. Co. (Tex. Civ. App.) 50 S. W. 528 (1899). A passenger who began a journey at 9 p. m.. upon a ticket to expire at mid- night, was obliged in Its usual course to change after midnight to a train on another division of the same road. It was held that his ticket entitled him to passage on that train. Cleveland, etc., Ry. Co. v. Kinsley, 27 Ind. App. 135, 60 N. E. 169, 87 Am. St. Rep. 245 (1901). A passenger bought a ticket over connecting lines and Immediately began his jonrney. Because of a wreck, he could not reach the last carrier's line until after' the time to which his ticket was limited had expired. It was held that, if the last carrier had contracted only for carriage over his own line, the ticket had become invalid. It was also held that if he had contracted for through transportation the ticket was still good. Gulf, etc., R. Co. v. 206 THE carrier's undertaking. (Part 2 GARRISON V. UNITED RYS. & ELECTRIC CO. (Supreme Court of Marylaud, 1903. 97 Md. 347, 55 Atl. 371, 99 Am. St. Rep. 4.32.) McSherry, C. J.^ * * * It appears that the appellant, with two friends, boarded a car of the appellee at the corner of Lombard and Carey streets, in Baltimore, about 3 :40 or 3 :45 on the afternoon of ]\Iarch 6, 190L They paid their fares, and asked for transfers to the Wilkins Avenue line going south. The conductor gave the transfers as requested, and punched the date, the hour, 3 :oO, and the transfer point, Gilmor and Lombard streets. The transfers were limited as to the time within which they could be used, and the time thus limited was indicated by the punch marks which the conductor made. It is alleged by the appellant — and for the purposes of this discussion it will be assumed to be true — 'that no car passed south on Wilkins ave- nue until after the time limited for the use of the transfer had ex- pired. * * * In the nature of the case, regard being had to the character and the magnitude of the business of conveying on street cars hundreds of thousands of passengers, it would seem to be a very proper precaution for the company to protect itself against imposition by affixing to the transfers which it is required to issue a limit beyond which they should not be available for use. When thus limited, they are void, and do not entitle the holder to ride on the cars after the expiration of the time specified by the punch marks. The statute makes the transfers good for a continuous ride. That language would seem to exclude the notion that there can be no time limit affixed. A continuous ride does not mean a ride interrupted by a considerable interval of time. If the time within which the transfer may be used expires by reason of the failure of the company to run its cars frequently enough, that fact does not make the transfer good, or authorize a' conductor to honor it. In such circumstances it is the plain duty of the passenger to pay his fare. But he is not without remedy. If, by the company's fault, the transfer expires before the holder has had an opportunity to use it, and in consequence he is required to pay and does pay his fare, he Loonev, 85 Tex. 158, 19 S. W. 1039, 16 It. R. A. 471, 34 Am. St. Rep. 787 (1892). But see, as to the latter point, Pa. Co. v. Hine, 41 Ohio St. 276 (1SS4). Where the last day for using a ticket fell on Sunday, and no trains ran that day, the ticket was held good on the first train on Monday. Little Rock, etc., Co. V. Dean, 43 Ark. 529, 51 Am. Rep. 584 (1884). Where a strike prevented the running of trains until after a ticket had expired, it was held that the holder of the ticket, who had made his intended journey by another railroad, could not use the ticket at his next opportunity after the strike was over. Elliott v. So. Pac. Co., 145 Cal. 441, 79 Pac. 420, 68 L. R. A. 393 (1904). 6 Parts of the opinion are omitted. Ch. 6) TICKETS. 207 would have his action against the company. But if it were held that, in spite of the expiration of the transfer, the conductor was still obliged to accept it, the company would be exposed to flagrant im- position without any means of protecting itself. The transfer, like a railroad company's ticket, is the evidence of the passenger's right to ride. U. Rvs. & E. Co. v. Hardestv, 94 ^Id. 661, 51 Atl. 406, 57 L. R. A. 275 ; W. AI. R. R. Co. v. Stocksdale, 83 Aid. 245, 34 Atl. 880 ; B. & O. R. R. Co. v. Blocher, 27 Md. 277. If the transfer, like the ticket, is void on its face, it is not a token of the holder's right to be transported on the carrier's conveyance. In P. W. & B. R. R. Co. v. Rice, 64 Md. 63, 21 Atl. 97, the hability of the company was placed upon the ground that the ticket was apparently good on its face. This is distinctly pointed out in W. M. R. R. Co. v. Stocksdale, supra. In the case at bar the transfer was void on its face when the appel- lant attempted to use it. It therefore did not entitle him to ride on the Wilkins Avenue car, and the conductor was justified in demand- ing the appellant's fare, and, upon the refusal of the latter to pay, the conductor was warranted in ejecting him. There was, consequently, no error committed in rejecting the appellant's first prayer and in granting the appellee's second prayer. * * * Judgment for defendant affirmed. AIKEX V. SOUTHERN RY. CO. (Supreme Court of Georgia, 1903. 118 Ga. US, 44 S. E. 828, G2 L. R. A. CGG, 98 Am. St. Rep. 107.) Aiken, as administrator of King, sued the defendant railway com- pany, alleging that by selling King tickets for himself and wife it contracted with King for the safe carriage of his wife as a passenger, but by negligently jerking the train as she was about to alight caused her serious injuries, and thereby subjected her husband to expense and to the loss of his wife's services. A demurrer to the petition was sustained, and plaintiff excepted. Cobb, T.t * * * When the petition in the present case is con- strued as a whole, we think it sufficiently appears that the purpose of the pleader was to bring an action on the alleged contract of carriage. So construing it, it is to be determined whether it sets forth a cause of action. Does it sufficiently appear that the railway company en- tered into a contract with King for the safe transportation of his wife ? It is alleged in terms that King contracted with the railway company, but the manner in which the contract was made is also set forth, and from this it is apparent that King made no other contract than one 7 The statement has been written from facts stated in the opinion. Parts of the opinion have been omitted. ■208 THE carrier's undertaking. (Part 2 which would arise from the mere purchase of an ordinary ticket for his wife. The question, therefore, arises whether, when one purchases such a ticket from a railway company for the use of another, and there are no other transactions or negotiations between the purchaser and the company, the contract of carriage is made with the purchaser of the ticket, or with the one who uses the ticket as evidence of a right to passage. While there has been some difference of opinion as to wheth- er a railroad ticket constitutes a contract, by the great weight of au- thority "the ordinary ticket is not a contract, but is evidence of the right to transportation furnished to the passenger in consequence of a contract to carry, and is intended to enable the passenger to secure transportation, under the rules and regulations of the carrier in per- formance of such contract." 6 Cyc. 570. See, also, 25 Am. & Eng. Enc. L. (1st Ed.) 1074; 1 Fetter, Carriers, § 275; Quimby v. Vander- t)ilt, 17 N. Y. 306, 72 Am. Dec. 469 ; McLain's Cas. Car. 57, 222, 663, 682. In Boyd v. Spencer, 103 Ga. 828. 30 S. E. 841, 68 Am. St. Rep. 146, this language was used : "A ticket issued to a passenger by a common carrier does not constitute the contract between the parties unless made so by express agreement. It is in the nature of a receipt for the passage money, and is generally only a token, the purpose of which is to enable the carrier to recognize the bearer as the person entitled to be carried. Any other system by which the business of the carrier would be equally facilitated would answer the same purpose as the ticket system." See, also. Southern Railway Company v. Watson, 110 Ga. 691, 36 S. E. 209. There is nothing alleged in the petition as to the character of the ticket purchased by King for his wife, and it is to be presumed that it was the ordinary ticket indicating the points between which the pas- senger was to be transported. When one purchases an ordinary ticket from the ticket agent of a railway company, and there is no other communication between the purchaser and the company than the ap- plication to the ticket agent for the ticket, the delivery of the ticket, and the payment of the price, the railway company, by the delivery of the ticket under such circumstances, undertakes to safely transport and carry any person who may enter its cars as a passenger having possession of such ticket. In the absence of some express agreement to the contrary, this is the undertaking of the company. If the pur- chaser himself becomes the passenger, he has a right to rely upon the implied contract of safe transportation. On the other hand, if he does not become the passenger, but delivers the ticket to some one else, either for a valuable consideration or gratuitously, the implied obli- gation on the part of the railway company to safely transport arises in favor of him who presents himself as a passenger and tenders the ticket as evidence of his right to passage. In other words, in such a case the contract entered into by the railway company at the time the Ch. 6) TICKETS. 209 ticket is delivered is simply a contract safely to transport whoever may present himself as a passenger holding- the ticket. We do not mean to hold that a husband might not make an express contract with a railway company for the safe transportation of his wife; but it would seem that, where such a contract was claimed, it would be incumbent upon the person setting it up to show that the agent with whom it was made had authority to do so. What we do mean to hold is that the mere purchase of an ordinary ticket by a hus- band for his wife, even though he pays for it, does not constitute a contract between the purchaser and the company for the safe trans- portation of the wife, but the implied contract for safe passage which the law raises from the purchase of the ticket is in favor of the wife, and in her behalf alone can an action be maintained for its breach. Of course, we do not mean to hold that where a railroad company has. undertaken to safely carry a wife, or child, or servant, the husband, or father, or master may not, in an action of tort, recover any damages he sustains on account of injuries received by the wife, child, or serv- ant in consequence of the negligence of the carrier. * * * Judgment affirmed. SLEEPER V. PENNSYLVANIA R. CO. (Supreme Court of Pennsylvania, 18S2. 100 Pa. 259, 45 Am. Dec. 380.) Case, by George W. Sleeper against the Pennsylvania Railroad Company, to recover damages for an illegal ejecting of plaintiff from defendant's train. On the trial the plaintiff testified that on the morning of Alay 8, 1878, he took passage on the defendant's train from New York to Philadelphia and tendered to the conductor in payment of his fare a ticket which he had bought several months before at a place on Broad- way, New York, not a regular agency of the company, but a place where they advertised tickets at reduced rates. He further testified that he paid for the ticket one dollar less than the current rates. The conductor refused to receive the ticket, and upon plaintift"s refusing to pay the fare put him off the train at Elizabeth. The present suit was then brought. The court on motion of defendant awarded a nonsuit, which the court in banc subsequently declined to take oft'. Plaintiff thereupon took this writ, assigning for error the granting of the non- suit and the refusal to take off the same. Mr. Justice Trunkey. The parties agree that this case presents a single question, whether a person purchasing a ticket over the Penn- sylvania Railroad from New York to Philadelphia, from a ticket deal- er who is not an authorized agent of the company, can maintain an action in the courts of this state for the refusal of the company to carry him between these points in return for said ticket. Gbeen Care. — 14 210 THE carrier's UNDERTAKING. (Part 2 By the act of ]\Iay 6, 1863 (P. L. 582), it is made the duty of every railroad company to provide each agent authorized to sell tickets en- titling the holder to travel upon its road, with a certificate attested by the corporate seal and the signature of the officer whose name is signed to the tickets. And any person not possessed of such author- ity, who shall sell, barter, or transfer, for any consideration, the whole or any part of a ticket, or other evidence of the holder's title to travel on any railroad, shall be deemed guilty of a misdemeanor, and shall be liable to be punished by fine and imprisonment. The purchasing and using a ticket from a person who has no authority to sell, is not made an offence. That the plaintifif's ticket, on its face, entitled him to the rights of a passenger between the points named, is unquestioned. The only reason for denying him such right was that he bought from one who sold in violation of the statute in Pennsylvania. It is not said that the vendor in New York is actually guilty of the statutory offence, but that the defendant, being a corporation in Pennsylvania, and the stipulated right of passage being partly in Pennsylvania, her courts will not enforce a contract resting upon acts which the Legislature has declared criminal. The presumption is that the ticket was properly issued by the com- pany, and that the holder had the right to use it. Such tickets are evidence of the holder's title to travel on the railroad. Prior to the statute in Pennsylvania, it was lawful for holders to sell them. The property in them passes by delivery. The act of 1863 confers no right upon a railroad company to question passengers as to when, or where, or how they procured their tickets, or to eject them from the cars upon suspicion that the tickets were sold to them by a person who was not an agent for the company. At common law, which is deemed in force in absence of evidence to the contrary, the contract made by the plaintiff in Xew York was valid. It was executed. X^o part remained to be performed. It vested in him the evidence of title to a passage over the railroad. His act had no savor of illegality or immorality. It was the mere purchase of the obligation of a common carrier, to carry the holder according to its terms. The defendant issued the obligation, received the consideration, and became liable for performance at the date of issue. As tran'^feree, the plaintiff claimed performance. This is the contract which is the basis of the cause of action. It is purposely made so as to entitle the bona fide holder to performance, and for breach to an action in his own name. Let it be assumed that the defendant made the contract in Pennsylvania, it is quite as reasonable to assume that tickets for passengers coming from New York into Pennsylvania were sold in New York. But wherever the contract was made, it is true, as claimed by the defendant, "this action is to enforce not the contract between the ticket scalper and the plaintiff in error, but between the defendant in error and the plaintiff in error." Ch. 6) TICKETS. 211 The sale of the ticket to the plaintiff in New York was lawful. That being an executed contract, there is no question respecting its enforcement. Surely it is not an exception to the rule that contracts, valid by the law of the place where they are made, are generally valid everywhere. Then, as the plaintiff has a valid title to the ticket, the contract between the defendant and himself is valid. Judgment reversed and procedendo awarded.^ 8 In Shankland y. City of Washington, ,5 Pet. 390. 8 L. Ed. IGG (1831), Story, J., said: "As owner and possessor of the whole [lottery] ticket, if he had made sale of the whole, * * * he would have substituted another as possessor and transferee, to whom the original promise of the corporation would then have attached." The transferabilit.v of a ticket is not affected by its being an excursion ticket, or by being sold at a reduced i-ate. or by having lieen used for the out- ward trip, or for any part of the journey for which the carrier to whom it is presented has not contracted. Evans v. St. Louis, etc.. Ky. Co., 11 Mo. App. 463 (18S2), "holder agrees to use on or before date canceled" ; Carsten v. No. Pae. R. Co., 44 Minn. 454. 47 N. W. 49. 9 L. R. A. GS8. 20 Am. St. Rep. .589 (1890) ; Nichols v. So. Pac. Co., 23 Or. 123, 31 Pac. 296, 18 L. R. A. .55, 37 Am. St. Rep. 664 (1892) : The Willamette Valley (D. C.) 71 Fed. 712 (1896). But a right under a single undertaking for continuous carriage is incapable of being divided, and a ticket for such carriage, partly used and then assigned, is invalid in the hands of the assignee. Walker v. Wabash, etc., Ry. Co., 15 Mo. App. 333 (1.S84). Compare Curlander v. Pullman, etc.. Co. (Bait. Super. Ct.) 28 Chicago Legal News, 68, 9 Harv. Law Rev. 354 (1895), right to occupy section in sleeping car. Tickets Expressly Made Nontransferable. — In Bitterman v. Louisville & Nashville R. Co.. 207 U. S. 205, 28 Sup. Ct. 91. 52 L. Ed. 171 (1907), the rail- road company obtained an injunction restraining ticket brokers from dealing in nontransferable round trip tickets. White. J., said: "That the complain- ant had the lawful right to sell nontransferable tickets of the character al- leged in the bill at reduced rates we think is not open to controversy, and that the condition of nontransferability and forfeiture embodied in such tickets was not only binding upon the original purchaser but upon any one who acquired such a ticket and attempted to use the same in violation of its terms is also settled. Mosher v. Railroad Co., 127 U. S. 3!H), 8 Sup. Ct. 1324, 32 L. Ed. 249. See. also, Boylan v. Hot Springs Co., 1.32 U. S. 14(j, 10 Sup. Ct. 50, 33 L. Ed. 290. * * * Any third person acquiring a nontransferable re- duced rate railroad ticket from the original purchaser, being therefore bound by the clause forbidding transfer, and the ticket in the hands of all such persons being subject to forfeiture on an attempt being made to use the same for passage, it may well be questioned whether the purchaser of such ticket acquired anything more than a limited and qualified ownei'ship thereof, and whether the' carrier did not, for the purpose of enforcing the forfeiture, retain a subordinate interest in the ticket amounting to a right of property therein which a court of equity would protect. Board of Trade v. Christie Grain & Stock Co.. 198 U. S. 236, 25 Sup. Ct. &37. 49 L. Ed. 1031, and authorities there cited. See. also, Sperry & Hutchinson Co. v. Mechanics' Clothing Co. (C. C.) 128 Fed. 800. We pass this question, however. becau*!e the want of merit in the contention that the case as made did not disclose the commission of a legal wrong conclusively results from a previous decision of this court. The case is Angle v. Chicago, St. Paul, etc., Ry. Co.. 151 U. S. 1, 14 Sup. Ct. 240, 38 L. Ed. 55, where it was held that an actionable wrong is committed by one who 'maliciously interferes in a contract between two parties and induces one of them to break that contract to the injury of the other.' That this prin- ciple embraces a case like the present — that is, the carrying on of the busi- ness of purchasing and selling nontransferable reduced rate railroad tickets for profit to the injury of the railroad company issuing such tickets — is, we think, clear. It is not necessary that the ingredient of actual malice, in the 212 THE carrier's undertaking. (Part 2 HARP V. SOUTHERN RY. CO. (Supreme Court of Georgia, 1904. 119 Ga. 927, 47 S. E. 206, 100 Am. St. Rep. 212.) Harp, a minor of 16, sued the Southern Railway Company for a wrongful ejectment. He alleges that he bought a ticket entitling him to ride from Atlanta to Topeka Junction, in Upson county, on the line of defendant's road, passing through Clayton; that while on the rear platform of the train an employe of the company asked him how far he was going, whereupon the plaintiff showed him the ticket ; that the employe looked at it and handed it back to the plain- tiff, when the ticket was blown out of plaintiff's hands ; that shortly thereafter the conductor asked the plaintiff for his ticket, and he, in the presence of the employe, explained the circumstances of its loss, the employe corroborating his statement; that notwithstanding this fact the conductor ordered the plaintiff to leave the train, and put his hand on him for the purpose of removing plaintiff from the moving car, and, to prevent being violently ejected, the plaintiff leaped from the car, running at from 10 to 15 miles an hour, about half a mile before reaching Riverdale; that, when plaintiff handed the ticket to the employe, he thought the latter was the conductor; that he was compelled to walk to Atlanta, 14 or 15 miles ; that there were few pas- sengers for Topeka, and that it would have been easy on arriving at Riverdale for the conductor to have telegraphed to Atlanta, and verified petitioner's statement that he had purchased the ticket to the station named ; that petitioner was young and unaccustomed to travel, and did not have sufficient money to pay his fare from Atlanta to Topeka at the time a ticket was demanded ; and that the manner of his ejection was aggravated by the threats and commands of the con- ductor, sfense of personal ill will, should exist to bring this controversy within the doctrine of the Angle case." Defenses Available Against Purciiaser in Good Faith.— In Snyder v. Wolfley, 8 Serg. & R. (Pa.) 328 (1822), a lottery ticliet stolen from the plaintiff thereafter drew a prize. It was held that the plaintiff was entitled to receive the money, but only on giving indemnity against claim by another. Gibson, J., said: "Xow, in the ease before us, the fruits of the ticket were payable to the bearer ; and the defendant could not resist payment of it in the hands of a bona fide holder for valuable consideration, even though it should originally have been stolen." In Frank v. Ingalls, 41 Ohio St. 5G0 (1885), a carrier maintained replevin for a railroad ticket against a purchaser in good faith and for value from one who had obtained it by fraud. In Levinson v. Texas, etc., Ry. Co., 17 Tex. Civ. App. 617, 43 S. W. 901 (1897), a ticket used, but not taken up or canceled, was held invalid in the hands of an innocent purchaser for value. See, also. Walker v. Price. 62 Kan. 327, 62 Pac. 1001. 84 Am. St. Rep. 392 (1900), to the effect that the transferee of a ticket acquires only such right as appears on the face of the ticket, though his transferror's right, unknown to the transferee, was greater. Ch. 6) TICKETS. 213 The defendant demurred generally and specially, on the grounds that there was no cause of action set out; that the petition was du- plicitous; that it was uncertain whether the action was for an illegal eviction, or for an abuse of duty in a lawful eviction. After argu- ment the court passed an order reciting that "the plaintiff admitted that the suit was only for the wrongful expulsion, and that the com- pany had a regulation authorizing conductors to eject passengers who neither paid fare nor produced a ticket," and directing that the general demurrer to the original and amended petition be sustained, and the case dismissed. In plaintift''s brief, he requests that, if the judgment be affirmed, leave be granted him to amend by alleging that the con- ductor failed to demand the cash fare. Lamar, J.^ This suit was for wrongful expulsion, and not for damages inflicted upon the plaintiff as a result of his being compelled to alight from a moving train. The fact that one actually purchased a ticket, and that this was known to the agent who sold it, or to the gatekeeper who examined it, or to employes on the train who saw it, would not relieve the passenger of the obligation to surrender it to the conductor. Tickets vary in their terms. Some are good only on certain trains ; others only on particular dates ; others require valida- tion. The mere fact that the plaintiff has a ticket does not, therefore, necessarily establish his right to be transported on a given train. These matters must be passed on by the conductor, and not by other employes who are not charged with this duty by the company. When -the conductor makes his demand, he is entitled to have the ticket sur- rendered. He cannot be required to hear evidence or investigate the bona fides of the passenger's excuse for its nondelivery, nor to wait until he arrives at the next station, and, by telegraphic correspondence with the selling agent, undertake to verify the correctness of the plaintiff's statement, or determine the character and validity of the ticket sold. It is manifest that such course would necessarily give rise to delay, and seriously interfere with the operation of trains and the rights of the traveling public. Had the plaintiff's money blown out of his hand, it is evident that his misfortune would have to fall upon him- self, and not upon the company. Such loss would not have prevented his lawful eviction. The same result would follow where the ticket itself was lost, for it might have come into the hands of another, and the company might thereby have been compelled to carry two pas- sengers for one fare. Besides, any rule allowing an excuse as a sub- stitute for a ticket would give rise to so much uncertainty and so many possibilities of fraud that the courts have uniformly held that the failure to pay the fare or produce the ticket warrants an evic- tion. In factjthe plaintiff in error concedes the general rule to be that the passenger must produce his ticket, pay his fare, or suffer » Part of the opinion relating to plaintiff's right to amend has been omitted. 214 THE carrier's undertaking. (Part 2 expulsion. He insists, however, that the special circumstances take this case out of the general rule. We fail to find any case warranting such a holding. Those cited by him, including Sloane v. Railroad Co., Ill Cal. 668, 44 Pac. 320, 32 L. R. A. 193, and Scofield v. Penn- sylvania Co., 112 Fed. 855, 50 C. C. A. 553, 56 L. R. A. 224, as well as Pullman P. C. Co. v. Reed, 75 111. 125, 20 Am. Rep. 232, were on facts essentially different. See, on the general subject, L. & N. R. Co. V. Fleming' 14 Lea (Tenn.) 128; Rogers v. Atlantic City R. Co., 57 N. J. Law, 703, 34 Atl. 11; Fetter on Carriers, § 279. Compare Southern Ry. Co. v. De Saussure, 116 Ga. 53, 42 S. E. 479 ; G. S. & F. Ry. Co. V. Asmore, 88 Ga. 529, 15 S. E. 13, 16 L. R. A. 53. Pleadings are to be strictly construed against the pleader. Here it affirmatively appears that plaintiff did not have funds with which to pay the cash fare. * * * There is nothing in the facts here to re- quire the exercise of any discretionary power by this court to permit such amendment. Judgment affirmed.^" 10 Ace. Louisville, etc.. R. Co. v. Fleminsr. 14 T^a (Tenn.) ]2« (1884). ticket lost after being shown at gate and seen by passengers on train : Tex. & P. R. Co. V. Smith. 38 Tex. Civ. App. 4. 84 S. W. 852 (190.5), trunk check offered as proof of having had ticket. And see Nutter v. So. Ry.. 78 S. W. 470. 2.t Ky. Law Rep. 1700 (1004). ticket intrusted to fellow passenger, who was left behind at station ; Crawford v. Cin., etc.. R. Co.. 26 Ohio St. .580 (187.5). owner of lost nontransferable mileage ticket not entitled to be carried, though rail- road refused to replace it: So. Ry. Co. v. De Saussure. 116 Ga. 53. 42 S. E. 479 (1902), railroad, though tendered indemnity, not bound to issue duplicate of lost reduced rate ticket good for so many trips on presentation to con- ductor. Compare Pullman Co. v. Reed, 75 111. 125. 20 Am. Rep. 232 (1874), where a passenger, after showing his sleeping car ticket to the porter who pointed, out his berth, lost the ticket, but obtained from the ticket agent a certificate that he had paid for that berth. Scholfield. J., said: "We think the better rule is to require that, where the proof is clear and satisfactory, as it was in the present case, the applicant for the berth has bought his ticket, but has lost it, and it is limited to a particular lierth and trip, and the circumstances are such that it is reasonably certain the company cannot be defrauded by the ticket being in the hands of another, he should have the berth. * * * lie may purchase for another, or, purchasing for himself, may subsequently change his mind and sell to another. A contest might thus arise between one claiming the berth because he had purchased the ticliet. and another claim- ing it because he was the owner of the ticket, leaving the company to act at its peril in deciding between them." In Jerome v. Smith. 48 Yt. 230, 21 Am. Rep. 125 (1876), a conductor took up a ticket, and "as an equivalent therefor" put a check in the passenger's hatband. It was not a through train, and the passenger had to change to a train in charge of another conductor. There was no evidence that he knew there would be a change of conductors. When called on for his ticket, he could not find his check, and was ejected for refusing to pay fare. It was held that the action of the carrier was justified. Wheeler, J., said: "When the plaintiff bought the ticket at Worcester, with coupons attached, entitling the holder to ride over that part of defendants' road he was riding on when ejected, he did not make any agreement with them or their agents that they would carry him in person over it as carriers agi'ee to carry particular pack- ages over their routes; but he bought what was symbolic evidence of a right that whoever should have it might ride, and what any other person could use as well as he. The title to it, and right to a passage upon it, would pass by mere delivery, and whoever should have it could pay the fare of a passenger Ch. 6) TICKETS. 215 FREDERICK v. MARQUETTE H. & O. R. CO. CSupreme Court of Michigan, 1ST7. 37 Mich. 342, 26 Am. Rep. 531.) IMarston, J.^^ This is an action on the case, brought to recover" damages for being unlawfully ejected and put ofif a train of cars by the conductor of the train. The evidence on the part of the plain- tiff tended to show that on the evening of January 29, 1876, he went to the regular ticket office of the defendant at Ishpeming and asked for a ticket to Marquette, presenting to the agent in charge of the office $1 from which to make payment therefor; that the agent re- ceived the money, handed plaintiff a ticket and some change, retain- ing 65 cents for the ticket, the regular fare to Marquette ; that plain- tiff did not attempt to read what was on his ticket, nor did he count the change received back until next morning, or notice it until then ; that he went on board the train bound for Marquette, and after the train left the station the conductor took up the ticket, giving him no check to indicate his destination, but at the time telling him his ticket was only for ^Morgan; that when the train reached Morgan the con- ductor told the plaintiff' he must get off there or pay more fare ; that if he wanted to go to ^^larquette he must pay 35 cents more. Plain- tiff insisted he had paid his fare and purchased his ticket to ]\Iarquette, and refused to pay the additional fare, w^hereupon he was ejected from the train, etc. On the part of the defendant evidence was given tending to show that the ticket purchased and presented to the conductor was in fact a ticket for Morgan, and not for Marquette. Under the pleadings and charge of the court, other evidence in the case and questions sought to be raised need not be referred to, and as the real gist of the with it by doliverin? it in payment : but the mere fact of bavins had it, with- out having it to deliver in payment on reasonable request, would not entitle any one to the passage, any more than having a sufficient amount of money to'pav the fare with, without paying it, would. * * * But, according to the facts, the conductor did not take the coupon as an equivalent for the full passage, but only for the passage so far as he was to go as conductor, and gave the plaintiff the white check as evidence in lieu of the coupon, more symbolic, but equally effective of the right to a passage the rest of the way. * * * And although it was delivered to him only by placing it in his hat- band, as he did not object, that was as much a delivery to him as placing it in his lap or in his hand would have been, and was sufficient to invest him with the ownership of it, and to bind him to take care of it as his own prop- erty. While he held thai check he had not paid his fare beyond where the conductor was to go, but had what would pay it, or that of any other person, the rest of the way. * * * When he had lost it, the loss was his, and he was situated as he' would have been if the coupon had been returned to him. and he had lost that, and as any one would be who had bought a ticket to an opera or a lecture, or that would entitle the holder of it to any other privilege, and had lost it. Having lost it, he was called upon by the proper conductor to pay his fare. He had not any ticket or check to pay it with, and refused to pay it in money, consequently, there was a refusal to pay it at all, and the conductor rightfully expelled him from the train." 11 Part of the opinion of Marston, J., is omitted. 216 THE carrier's undertaking. (Part 2 action was for the expulsion from the cars by the conductor, the above statement is deemed sufficient to a proper understanding of the case. * * It is within the common knowledge or experience of all travelers that the uniform and perhaps the universal practice is for railroad companies to issue tickets to passengers with the places designated thereon from whence and to which the passenger is to be carried, that these tickets are presented to the conductor or person in charge of the train, and that he accepts unhesitatingly of such tickets as evidence of the contract entered into between the passenger and his principal. It is equally well known that the conductor has but sel- dom, if ever, any other means of ascertaining, within time to be of any avail, the terms of the contract, unless he relies upon the statement of the passenger, contradicted as it would be by the ticket produced, and that even in a very large majority of cases, owing to the amount of business done, the agent in charge of the office, and who sold the ticket, could give but very little, if any, information upon the sub- ject. That this system of issuing tickets, in a very large majority of cases, works well, causing but very little, if any, annoyance to pas- sengers generally, must be admitted. There, of course, will be cases where a passenger who has lost his ticket, or where through mistake ' the wrong ticket had been delivered to him, will be obliged to pay his fare a second time in order to pursue his journey without de- lay, and if unable to do this, as will sometimes be the case, very great delay and injury may result therefrom. Such delay and injury would not be the natural result of the loss of a ticket or breach of the con- tract, but would be, at least in part, in consequence of the pecuniary circumstances of the party. Such cases are exceptional, and however unfortunate the party may be who is so situate, yet we must remem- ber that no human rule has ever yet been devised that would not at times injuriously affect those it was designed to accommodate. This method of purchasing tickets is also of decided advantage to the pub- lic in other respects. It enables them to purchase tickets at times and places deemed suitable, and to avoid thereby the crowds and de- lays they would otherwise be subject to. Were no tickets issued, and each passenger compelled to pay his fare upon the cars, inconvenience and delay would result therefrom, or the officers in charge of the train to collect fares would be increased in numbers to an unreasonable ex- tent, while at fairs and places of public amusement, where tickets are issued and sold entitling the purchaser to admission and a seat, we can see and appreciate the confusion which would exist if no tickets were sold, or if the party presenting the ticket were not upon such occasions to be bound by its terms. How, then, is the conductor to ascertain the contract entered into between the passenger and the railroad company where a ticket is purchased and presented to him? Practically there are but two ways — one, the evidence afforded by the ticket ; the other, the statement of Ch. 6) TICKETS. 217 the passenger contradicted by the ticket. Which should g-overn? In judicial investigations we appreciate the necessity of an obHgation of some kind and the benefit of a cross-examination. At common law^ parties interested were not competent witnesses, and even under our statute the witness is not permitted, in certain cases, to testify as to facts, which, if true, were equally within the knowledge of the op- posite party, and he cannot be procured. Yet here would be an in- vestigation as to the terms of a contract, where no such safeguards could be thrown around it, and where the conductor, at his peril, would have to accept of the mere statement of the interested party. I seri- ously doubt the practical workings of such a method, except for the purpose of encouraging and developing fraud and falsehood, and I doubt if any system could be devised that would so much tend to the disturbance and annoyance of the traveling public generally. There is but one rule which can safely be tolerated with any decent regard to the rights of railroad companies and passengers generally. As be- tween the conductor and passenger, and the right of the latter to travel, the ticket produced must be conclusive evidence, and he must produce it when called upon, as the evidence of his right to the seat he claims. Where a passenger has purchased a ticket and the con- ductor does not carry him according to its terms, or if the company, through the mistake of its agent, has given him the wrong ticket, so that he has been compelled to relinquish his seat, or pay his fare a second time in order to retain it, he would have a remedy against the company for a breach of the contract, but he would have to adopt a declaration differing essentially from the one resorted to in this case. We have not thus far referred to any authorities to sustain the views herein taken. If any are needed, the following, we think, will be found amply sufficient, and we do not 'consider it necessary to analyze or review them: Townsend v. N. Y. C. & H. R. R. R. Co., 56 N. Y. 298, 15 Am. Rep. 419 ; Hibbard v. N. Y. & E. R. R., 15 N. Y. 470; Bennett v. N. Y. C. & H. R. R., 5 Hun (N. Y.) 600; Downs V. N. Y. & N. H. R. R., 36 Conn. 287, 4 Am. Rep. 77; C, B. & O. R. R. V. Griffin, 68 111. 499 ; Pullman P. C. Co. v. Reed, 75 111. 125, 20 Am. Rep. 232 [ante, p. 214, note] ; Shelton v. Lake Shore, etc., Ry. Co., 29 Ohio St. 214. I am of opinion that the judgment should be affirmed, with costs. CooLEY, C. J., concurred. Graves, J. By mistake the company's ticket agent issued and plaintiff accepted a ticket covering a shorter distance than tiiat bar- gained and paid for ; and having ridden under it the distance which it authorized, and refusing to repay for the space beyond, the plaintiff was removed from the cars. This removal may, or may not, have constituted a cause of action, but it is not the cause of action charged. The declaration sets up that plaintiff's ticket was a proper one for the whole distance and 218 THE carrier's undertaking. (Part 2 that he was removed in violation of the right which the ticket made known to the conductor. There was no proof of the case alleged, and I agree therefore in affirming the judgment. Campbell, J. The plaintiff's cause of action in this case was for the failure of the company to carry him to a destination to which he had paid the passage money, and the immediate occasion for his re- moval from the cars was that he was given a wrong ticket, and was not furnished with such a one as the conductor was instructed to recognize as entitling him to the complete carriage. His declaration should have been framed on this theory. Had it been so framed, I am not prepared to say that he may not have had a right of action for more than the difference in the passage money. But as he counted on the failure of the conductor to respect a cor- rect ticket, and it appears that the conductor gave him all the rights which the ticket produced called for, there was no cause of action made out under the declaration, and the rule of damages need not be consid- ered. I concur in affirming the judgment. HUFFORD V. GRAND RAPIDS & I. R. CO. (Supreme Court of Michigan, 1SS7. 64 Mich. G31, 31 N. W. 544, 8 Am. St. Rep. 859.) Sherwood, J.^- In this case the plaintiff sues the defendant for an alleged assault and battery, which he avers was committed upon him on the 19th day of September, 1882, by one of the conductors of the defendant, while he was riding upon one of its trains, without any justification. The case was tried before Judge Montgomery in the Kent circuit by jury, and the plaintiff" tailed to recover, and now brings error. * * * The ticket held by the plaintiff, when purchased by him at IManton, was represented to him by the agent as good to Traverse City. * * * The ticket purchased was part of an excursion ticket, good when first issued for a ride from Sturgis to Traverse City. Aft- er the plaintiff had purchased and paid for the ticket, he observed it did not look like the tickets he had been accustomed to purchase, and thereupon he returned to the ticket office, and asked the agent if it was good, and was informed by the agent it was. He then entered the defendant's passenger coach, and the train moved on for Walton Junction. When the conductor asked for the plaintift''s fare, he delivered to him the ticket he had thus purchased. The conductor told plaintiff' 12 Parts of the opinion have been omitted. Cb. 6) TICKETS. 219 he could not receive it for his fare, whereupon plaintiff informed the conductor that he bought the ticket at Manton of the company's agent, and was informed by him it was good; that he paid the agent for the ticket, and he should not pay his fare again. The conductor then laid his hand upon plaintiff's shoulder, and rang the bell, and told the plaintiff, unless he paid the fare, which was 25 cents, he would put the plaintiff off the train. The plaintiff then under protest paid the fare demanded of him. These facts appear by the record, and are not disputed. Wheth- er or not the ticket had been canceled between Grand Rapids and Walton Junction by conductor's marks w^as a fact contested before the jury, and upon this subject the court charged the jury: "If the ticket had been cancelled between those points, then upon its face it was an invalid ticket, and, when the fact was called to the attention of the plamtiff, he had no longer a right to insist upon being trans- ferred over this line upon that ticket." * * * There seems to be no question but that the plaintiff purchased his ticket of an agent of the company, who had the right to sell the same and receive the plaintiff's money therefor; that the ticket covered the distance between the two stations, and was purchased by the plain- tiff in perfect good faith ; that the ticket was genuine, and was issued by the company, and one which its agent had the right to sell to pas- sengers. The plaintiff had a right to rely upon the statements of the agent that it was good, and entitled him to a ride between the two stations. It was a contract for a ride between the two stations that the defendant's agent had a right to make, and did make, with the plaintiff*. The ticket given by the agent to the plaintiff was the evidence agreed upon by the parties, by which the defendant should thereafter recognize the rights of plaintiff in his contract ; and neither the com- pany nor any of its agents could thereafter be permitted to say the ticket was not such evidence, and conclusive upon the subject. Pas- sengers are not interested in the internal affairs of the companies whose coaches they ride in, nor are they required to know the rules and regulations made by the directors of the company for the con- trol of the action of its agents and the management of its affairs. When the plaintiff told the conductor on the train that he had paid his fare, and stated the amount he paid to the agent wdio gave him the ticket he presented, and told him it was good, it was the duty of the conductor to accept the statement of the plaintiff until he found out it was not true, no matter what the ticket contained in words, figures, or other marks. All sorts of people travel upon the cars; and the regulations and management of the company's business and trains wdiich would not protect the educated and uneducated, the wise and the ignorant, alike, would be unreasonable indeed. On the un- disputed facts in this case, I think the plaintiff' was entitled to go to 220 THE carrier's undertaking. (Part 2 Walton Junction upon the ticket he presented to the conductor. Ma- roney v. Old Colony & N. Ry. Co., 106 Mass. 153, 8 Am. Rep. 305 ; Murdock v. Boston & A. R. Co., 137 Mass. 293, 50 Am. Rep. 307. See this case in 53 Mich. 118, 18 N. W. 580. * * * The judgment must be reversed and a new trial granted.^ ^ INDIANAPOLIS ST. RY. CO. v. WILSON. (Supreme Court of Indiana, 1903. 161 Ind. 153, 66 N. E. 950, 100 Am. St. Rep. 261.) Jordan, J.^* Action by appellee against appellant to recover dam- ages for an unlawful expulsion from one of its street cars. A trial 13 Ace. Murdock v. Boston, etc., R. Co., 137 Mass. 293, 50 Am. Rep. 307 (18S4), ticket sold with statement that in spite of being punched it %Yas valid; Erie K. Co. V. Winter, 143 U. S. 60, 12 Sup. Ct. 356, 36 L. Ed. 71 (1S92), canceled ticket issued as good for stopover ; Kansas City, etc., R. Co. v. Foster, 134 Ala. 244, 32 South. 773, 92 Am. St. Rep. 25 (1902), ticket to Byhalia issued with statement that such a ticket was good to Birmingham ; 111. Cent. R. Co. V. Harper, 83 Miss. 560, 35 South. 704, 64 L. R. A. 283, 102 Am. St. Rep. 469 (1904), ticket sold with statement it was good over either route; Scofield v. Pa. Co., 112 Fed. 855, 50 C. C. A. 553, 56 L. R. A. 224 (1902), ticket sold with statement it was cood for stopover. And see Kansas City, etc., R. Co. v. Little, 66 Kan. 378, 71 Pac. 820, 61 L. R. A. 122, 97 Am. St. Rep. 376 (1903), ticket holder who took a train at direction of ticket seller and brakeman recovered damages for being ejected, though it did not carry passengers or stop at destination. In the following cases the passenger was held to be entitled to ride on a ticket that seemed invalid: So. Pac. Co. v. Bailey (Tex. Civ. App.) 91 S. W. 820 (1906), nontransferable tickets with blanks for description and signature of passenger filled in by description and signature of daughter who bought for herself and mother ; Chicago, etc., R. Co. v. Pendergast, 75 111. App. 133 (1897), ticket "good only for passage of purchaser whose name and description appear in margin," signed to selling agenfs knowledge in assumed name; Erie R. Co. v. Littell, 128 Fed. 546, 63 C. C. A. 44 (1904), defendant company succeeded through foreclosure sale to operation of road formerly owned by Insolvent company, and defendant's agent violated instructions by selling tickets, left on hand, which bore its predecessor's name : Phil. Co. v. Rice, 64 Md. 63, 21 Atl. 97 (1885), previous conductor marked ticket "Canceled by mis- take," the rules requiring him to correct mistakes by the word "Error," sub- scribed by his initials ; Ellsworth v. C, B. & Q. R. Co.. 95 Iowa, 98, 63 N. W. 584, 29 L. R. A. 173 (1895), ticket "good one day from date of sale," stamped bv mistake as sold several days before. Compare Monuier v. N. Y., etc., R. Co., 175 N. Y. 281, 67 N. E. 569, 62 L. R. A. 357, 96 Am. St. Rep. 619 (1903), post, p. 556. In the following cases tickets were held to entitle the holder to carriage, though in appearance doubtful: Laird v. Traction Co.. 166 Pa. 4, 31 Atl. 51 (1895). transfer punched bv mistake at two different hours; Trice v. Ches. & O. Ry. Co., 40 W. Va. 271, 21 S. E. 1022 (1895), mileage ticket good for a year, stamped "Sold March, 1892, to expire March, 1894," the figure 4 being altered from 3 in ink; Northern Cent. Ry. Co. v. O'Connor, 76 Md. 207, 24 Atl. 449, 16 L. R. A. 449, 35 Am. St. Rep. 422 (1892). date illegible ; Wight- man V. Chicago, etc., R. Co., 73 Wis. 169, 40 N. W. 689, 2 L. R. A. 185, 9 Am. St. Rep. 778 (1888), not good if "detached" means "intentionally detached," and a coupon is good though accidentally separated from the body of the ticket. And see Koch v. N. Y. City R. Co.' (Sup.) 95 N. Y. Supp. 559 (1905). 1* Parts of the opinion have been omitted. €h, 6) TICKETS. 221 by jury resulted in appellee being awarded damages, and, over ap- pellant's motion for a new trial, judgment was rendered on the ver- dict of the jury. From this judgment appellant appeals, and the sole question involved is, can the expulsion of appellee by appellant from its car, under the circumstances, be legally justified? * * * It is shown that appellee on the evening of September 23, 1899, took passage upon one of appellant's cars running on and over its Col- lege Avenue line, and upon paying his fare he requested the con- ductor in charge of said car to give him a transfer ticket to the Vir- ginia Avenue line, his destination being a point on the latter line. Up- on his taking passage on one of the cars running on and over the Mrginia Avenue line the conductor in charge of said car demanded fare of appellee, and the latter tendered to said conductor the transfer ticket which he had received from the College Avenue conductor. * * * In punching the transfer ticket in question it appears that the College Avenue conductor had awkwardly used the punch, and, in- stead of plainly indicating that appellee had been transferred to the Virginia Avenue line, he punched out what might be said to be the en- tire space opposite South East street, and also a part of the Virginia Avenue space, the puncture made extending across the line dividing the two spaces, and this, as it seems, gave rise to the controversy between the appellee and the conductor of the Virginia Avenue line; the latter insisting that the ticket indicated that the former had been transferred to the South East Street line, while appellee, on the other hand, insisted that he had requested a transfer to the Virginia Av- enue line, and stated that he believed the ticket indicated such trans- fer. Upon appellee's refusal to pay the additional fare which the con- ductor on the Virginia Avenue Hne demanded, he was forcibly ejected from the car by the conductor and motorman. * * * There is a line of decisions which affirm the rule that the ticket must be considered as conclusive evidence of the passenger's rights, although it may not, in its true sense, express or evidence the contract into which the passenger and the carrier entered. These cases hold that, in the event a ticket is defective, the defects of which are due to the negligence or carelessness of the agent or agents of the car- rier, then, under the circumstances, the expulsion of the holder there- of, upon his refusal to pay the additional fare required, is justified. While, on the other hand, there is another long line of cases which rule to the contrary, and deny the conclusive force of a ticket fur- nished by the carrier to the passenger. The latter cases, in effect, af- firm that the ticket is only the evidence of the contract as made be- tween the passenger and the carrier, and, if it fails to disclose the true contract, its infirmity or fault in this respect must be charged to the carrier, and the latter is liable for the natural consequences resulting by reason of the defects in the ticket due to the negligence of its agents. They affirm the rule that, inasmuch as the passenger is neither required under the law, nor in fact permitted, to print, write, 222 THE carrier's undertaking. (Part 2 or stamp the ticket, or to have anything to do whatever with its prep- aration, this privilege or right being reserved by the carrier to it- self, therefore the passenger has the right to believe or presume, in the absence of notice to the contrary, that the ticket furnished and de- livered to him is a correct expression of the contract as made between him and the carrier. The following authorities or cases decided by the higher courts of other states are adverse to the contention of counsel for appellant in the case at bar. [The citations are omitted.] The extent to which these cases support the doctrine in question and sustain appellee's right to a recovery in this case is that where the passenger is aboard the cars of the carrier without the proper evidence or token of his right of passage, which is due to the mistake or fault of the carrier's agent, and not to the fault of the passenger, then, under such circumstances, the carrier's agent in charge of the train must heed or accept the reasonable explanations of the passen- ger in regard to the ticket in dispute. An examination of the cases pro and con upon the question herein involved convinces us that the weight of authority and the better reason are against the contention of counsel for appellant, and that the right of the appellee to recover under the facts in this appeal is well supported by the decisions of our own, as well as other courts. * * * There can be no sound reason advanced for holding that such a voucher or token, as is a passage ticket in its ordinary form, must be regarded or considered as the exclusive evidence of the passenger's right to be carried, and that the agent of the carrier may, over the reasonable explanations or statements of the passenger in regard to his right to be carried there- on, expel him from the car on which he has taken passage, unless he pays the extra fare demanded, without subjecting the carrier to damages by reason of such expulsion, where the latter, under the circumstances, as between the passenger and the carrier company, is shown to have been wrongful. When the case at bar, under the facts, is tested by the principles affirmed by the authorities to which we have referred, the conclusion which we reach will be found to be amply sustained upon cogent and sound reason. The fact that the wrong of which appellee complains may be said to be due to the combined faults of two of appellant's conductors or agents exerts no material influence over his right to recover, for, under the circumstances, appellant must be presumed to have been present and acting at the time through the agency of the conductor who issued the transfer ticket, and through the agency of the other, who, over the explanations of appellee in regard to the issue of the ticket, refused to accept it, and thereupon expelled him from the car upon which, as shown, he was entitled to be carried. The mistake which the first conductor made in failing plainly to point out or indicate upon the transfer ticket the line to which appel- lee had requested to be transferred in the eye of the law, must be con- sidered as the mistake or fault of the appellant. And the latter must Ch. 6) TICKETS. 223 be treated or regarded as a wrongdoer in not honoring the ticket when it was presented by appellee to the second conductor, and in expelling him from the car, over his explanations in respect to the issue of the ticket. These explanations it should have accepted as true until the contrary was shown. It was certainly as much the duty of the ap- pellant to correct the mistake which it had made in punching the ticket in the first instance when the opportunity to do so was presented to it through the agency of the second conductor, as would have been its duty to have rectified the same had the attention of the first con- ductor been called to the mistake by appellee before he left the Col- lege Avenue car. Consequently there is no force or merit in the con- tention that he should have examined the transfer ticket which he re- ceived before leaving the car, and have presented it to the conductor who issued it, in order that the mistake made by him in punching the ticket might be corrected. We have given the propositions presented in this appeal a patient consideration. All of them lead up to the single question, can the expulsion of appellee, under the circumstances in this case, be justi- fied? As previously indicated, we are constrained to answer this question in the negative. Judgment affirmed.^ ^ NORTON v. CONSOLIDATED RY. CO. (Supreme Court of Errors of Connecticut. 1906. 79 Conn. 109, 63 Atl. 1087, 118 Am. St. Rep. 132.) Hall, J.^® * * * This is an action to recover damages for the alleged tort of the defendant's servant in attempting to forcibly eject the plaintiff from the car, and not for the recovery of damages for a breach of the contract of carriage between the plaintiff and defendant. The defendant justifies the attempted expulsion of the plaintiff upon the ground that the latter unlawfully persisted in remaining and rid- ing ?n the car, without either paying his fare or producing a transfer ticket purporting to entitle him to ride in that car; and that no un- reasonable force was used in the attempt to remove him. As it is found that no unnecessary force was employed, the case must turn upon the question of whether, upon the facts stated, the plaintiff had the right to insist upon being carried upon the transfer ticket which 15 Gillett, J., with whom Monks, J., concurred, delivered a dissenting opin- ion. Ace. O'Rourke v. St. Ry. Co., 103 Tenn. 124, 52 S. W. 872, 46 L. R. A. 614, 76 Am St. Rep. 6.39 (1899) ; Ga. R.v. & EL Co. v. Baker. 125 Ga. .562. 54 S. E. 639 7 L. R. A. (N. S.) 103. 114 Am. St. Rep. 246 (1906) ; CleveLaud City Ry. Co v. Conner, 74 Ohio St. 225, 78 N. E. 376 (1906), but it seems passenger must not be negligent. And see Lawshe v. Tacoma, etc., Co., 29 Wash. 681, 70 Pac. 118, 59 L. R. A. 350 (1902). 16 Parts of the opinion have been omitted. 224 THE carrier's undertaking. (Part 2 he presented, and to forcibly resist the conductor's attempt to expel him. The plaintiff contends that though the transfer check may have been prima facie evidence of a different contract of carriage, yet the facts show that when he paid his fare to the conductor upon the Savin Rock car, and requested of him a transfer to Winchester Avenue, the real undertaking of the defendant was to carry him by a Winchester Ave- nue car, and that having informed the conductor of the Winchester Avenue car of these facts, and of the mistake of the conductor of the Savin Rock car in wrongly punching the transfer, he was entitled to be carried upon the Winchester Avenue car. In the absence of any statutory or other express provision or regulation defining the contract of carriage between electric street railway companies, and the rights of their passengers in cases like the present, they must be ascertained by considering all the circumstances indicating the intention and un- derstanding of both parties including not only what is required for the reasonable safety, convenience and comfort of passengers, but what is reasonably necessary to enable the company to properly perform the functions for which it was created and what the known and reasonable rules of the company are with reference to which the parties are pre- sumed to have contracted. There are certain facts and established rules connected with the op- eration of electric street railways, which in these days are familiar to every person of ordinary intelligence who has occasion to ride on them, and which are to be regarded in determining what the real contract of carriage is in a case like the present one. Among them are these : That the mere payment of the ordinary fare in a street car does not, of itself, as upon a steam railroad, indicate the destina- tion of the passenger, nor suggest that he desires transportation by another line and upon another car; that a passenger upon one line desiring to be transferred to another, operated by the same compa- ny, must pay his cash fare on the first car; that upon such payment he will be carried, in that car, to the point of transfer to the sec- ond line ; that before leaving the first car he must obtain from the con- ductor of it a ticket indicating upon its face his right to take passage upon a car of the second line ; that as to the conductor upon the sec- ond car, the person receiving such transfer ticket enters that car like all other passengers taking the car at that point, and will not be per- mitted to ride unless he either pays his fare or presents a proper transfer ; that it is the office of the conductor of the second car to de- termine the right of the passenger to ride upon that car, and that upon the presentation of a transfer ticket, the ticket itself is the only evi- dence of such right which the conductor can properly accept. In our opinion, the facts fail to show that when, on the Savin Rock car, the plaintiff paid his fare and asked for a transfer to Winchester Avenue, the defendant undertook absolutely to carry him upon a Win- chester Avenue car, even if he failed to either pay his fare, or present Ch, 6) TICKETS. • 225 a proper transfer ticket on that car. They show that the real con- tract of the defendant was to carry the plaintiff, upon the first car, to the proper point of transfer to the second line; to furnish him a proper transfer ticket to entitle him to a passage on a car of the sec- ond line; and to carry him upon that line, upon the presentment of such transfer or the payment of his fare to the conductor of the sec- ond car. Through the carelessness of its servant, in not giving the plaintiff the transfer ticket which he asked for, the defendant failed to perform its contract. For such breach of contract the plaintiff would have been entitled to compensation for the loss or injury, had there been any, which necessarily followed from the defendant's failure to furnish him a proper transfer ticket. His remedy for such breach of contract was not to refuse to pay his fare, and to forcibly resist being expelled from the car. As the transfer ticket which he presented did not even purport to authorize him to ride on a Winchester Avenue car, the conductor of that car, notwithstanding the plaintiff's explanation of the mistake, was justified in refusing to accept it, and in requiring him to pay his fare or leave the car, and after the demands made by the conductor, it became the plaintiff's duty to either pay his fare or peaceably leave the car [citing authorities]. A rule requiring the expulsion from a car of a passenger who re- fuses to either pay his fare or produce a ticket showing his right to ride on such car is a reasonable one (Downs v. New York & N. H. R. Co., 36 Conn. 287, 291, 4 Am. Rep. 77 ; Havens v. Hartford & N. H. R. Co., 28 Conn. 69, 88 ; Townsend v. New York C. & H. R. R. Co., 56 N. Y. 295, 15 Am. Rep. 419 ; Shelton v. Lake Shore & M. S. R. Co., 29 Ohio St. 214), and one which, from the fact that it is so general with carriers, as well as from the facts found in this case, was evidently well known to the plaintiff. In ascertaining whether the plaintiff was entitled to ride on the Winchester Avenue car, it w.as not the duty of the conductor of that car to accept the statement made to him by the plaintiff that the mistake in his transfer was the fault of the conductor of the Savin Rock car. Townsend v. New York C. & H. R. R. Co., 56 N. Y. 295, 15 Am. Rep. 419 ; Downs v. Hartford & N. H. R. Co., 36 Conn. 287, 291, 4 Am. Rep. 77. As between the second conductor and the plaintiff", the transfer ticket was conclusive as to the latter's right to be ^carried as a transferred passenger upon the Winchester Avenue car. "As between the passenger .and the con- ductor of the car in which he is, the terms of the ticket or check are conclusive, and the right to ride upon it on that train is, for the time being, to be determined accordingly." Baldwin on American Railroad Law, p. 292; Mosher v. St. Louis, L M. & S. Ry. Co., 127 U. S. 390, 8 Sup. Ct. 1324. 32 L. Ed. 249 ; Pouilin v. Canadian Pac. Ry. Co., 3 C. C. A. 23, 52 Fed. 197, 17 L. R. A. 800, and cases above cited. There is a conflict of authorities in other jurisdictions upon the questions of the conclusive character of such a ticket, as between the Gkeen Cabk. — 15 226 THE carrier's lndertaking. (Part 2 passenger offering it and the conductor to whom it is presented ; of the terms of the contract of carriage ; and of the right of the passenger to forcibly resist expulsion in cases like the present one. In the case of Indianapolis Street Ry. Co. v. Wilson, IGl Ind. 153, 66 N. E. 950, 67 N. E. 093, 100 Am. St. Rep. 261, decided in 1903, in which the claims of the present plaintiff are sustained by the majority opinion, these questions are very ably discussed and the authorities fully cited upon both sides. In our view the dissenting opinion of Judge Gillett, in which Judge Monks concurred, is sustained by the better reasons and by the greater weight of authority. Our conclusion is that the plaintiff, having by his own wrongful conduct invited the use of force, cannot now complain of the use by the defendant of reasonable force in the attempt to remove him from the car. The trial court erred in holding that the plaintiff was en- titled to substantial damages. There is error, and the case is remanded for the assessment of nom- inal damages. In this opinion the other Judges concurred. ^^ 17 In Bradshaw v. So. Boston Co., 1?,.5 Mass. 407. 46 Am. Rep. 481 (18.S3). and Keen v. Detroit El. Ry., 123 Mich. 247, 81 N. W. 1084. (1900), actions of tort for ejecting a passenger who presented a wrong transfer clieck given liim by the carrier's mistake, the carrier had judgment. And see 20 Harv. Law Rev. 137. The following cases treat a ticket or the sale of a ticket as ordinarily im- porting only an undertaking to accept such ticket in payment of fare accord- ing to the import of the ticket itself, and hold that it imposes no obligation to carry the passenger on a journey for which on its face it is insufficient. Pouilin V. Canadian Pac. Ry. Co., 52 Fed. 197. 3 C. C. A. 23, 17 L. R. A. 800 (1892); Spink v. Louisville, etc., R. Co. (Ky.) .^)2 S. W. 1007 (1899): Brown v. Rapid Ry. Co., 134 Mich. 591. 90 N. W. 925 (1903); Western Md. Rv. Co. v. Schaun, 97 Md. 563, 55 Atl. 701 (1903). See. also, C. B. & Q. R. Co. v. Gritiin, 68 111. 499 (1873) ; Peabody v. Oregon Co.. 21 Or. 121, 26 Pac. 10.^3. 12 L. R. A. 823 (1891) ; Chicago, etc., Co. v. Stratton, 111 111. App. 142 (1903) ; Chase v. Railway Co., 70 Kan. 546, 79 Pac. 153 (1905) ; 1 Harv. Law Rev, 17 ; 9 Harv. Daw Rev. 3.53; 14 Harv. Law Rev. 70. On this theory, a passenger without a ticket is not entitled to be carried, though his not having a ticket is due to the carriei''s default. Townsend v. N. Y. C. R, Co., 56 N. Y. 295, 15 Am. Rep. 419 (1874), ticket taken up with- out giving conductor's check ; Shelton v. Lake Shore Ry. Co.. 29 Ohio St. 214 (1876), commutation ticket taken up before completely used ; McKay v. Ohio R. Co., 34 W. Va. 65, 11 S. E. 737, 9 L. R. A. 132, 26 Am. St. Rep. 913 (1890), conductor took up return coupon on outward trip, outward coupon not good for return trip ; Mahoney v. Detroit Co., 93 Mich. 612, 53 N. W. 793, 18 L. R. A. 335, 32 Am. St. Rep. 528 (1892)? passenger directed to change to another street car without giving him transfer check; Van Dusan v. Gd. Tk. Ry. Co., 97 Mich. 439, 56 N. W. 848, 37 Am. St. Rep. 354 (189.3), where conductor takes up outward coupon of round-trip ticket, without giving check for rest of outward passage, passenger not entitled to continue outward trip on re- turn coupon. But it has been held that a passenger is entitled to ride if the carrier knows that he is entitled to a ticket, which through the carrier's default he has not been able to get. St. Louis, etc., Co. v. Dalby, 19 111. 353 (1857) ; East Tenn. Ry. Co. V. King, 88 Ga. 443, 14 S. E. 708 (1892), conductor ejected, though convinced that former conductor had collected ticket without giving check ; Cherry v. Kansas City R. Co., 52 Mo. App. 499 (1893), ejectment by conductor who had previously withheld stopover check ; Sc-ofield v. Pa. Co., 112 Fed. 855, 50 C. C. A. 553, 56 L. R. A. 224 (1902), stopover check refused. And see Cinn., etc., Ch. 6) TICKETS. 227 Ry. Co. V. Harris, 115 Tenn. 501, 91 S. W. 211, 5 L. R. A. (N. S.) 770 (1005), railroad liable for conductor's insults to passenger holding order for ticket which he had been denied opportunitj' to procure. The following cases treat the purchase of a ticket as the purchase of a right to be carried on condition that the passenger present the ticket issued in token of his right, and hold that the passenger on presenting the ticket, and, if on its face it is insufficient, on giving such evidence of the facts as is available, though it is only his own statement, is entitled to be carried by virtue of the right he has purchased: St. Louis, etc., R. Co. v. Mackie, 71 Tex. 491, 9 S. W. 451, 1 L. R. A. GG7. 10 Am. St. Rep. 706 (1888) ; Alabama, etc., R. Co. V. Holmes, 75 Miss. 371, 23 South. 187 (1898) ; and cases cited in note, page 223. See, also. Yorton v. Milwaukee, etc., Ry. Co., 62 Wis. 367, 21 N. W. 516 (1885) : Ga. Rv. Co. v. Olds, 77 Ga. 673 (1886) ; 111. Cent. R. Co. v. Jackson, 117 Ky. 900, 79 S. W. 1187 (1904). The same result Is reached -where the passenger has been deprived of his ticket by the carrier's act or default. Kansas City R. Co. v. Riley, 68 Miss. 765, 9 South. 443. 13 L. R. A. 38. 24 Am. St. Rep. 309 (1891), outward coupon valid for return passage where conductor mistakenly took up return coupon on outward trip. And see Pittsburg R. Co. v. Hennigh, 39 Ind. 509 (1872), first conductor took up ticket, and second conductor on same train ejected on refusal to pay fare. But one who, by not explaining or by explaining wrongly the mistake in his ticket, leads the conductor to believe it invalid cannot have damages for being compelled to leave the train. Petrie v. Pa. Co., 42 N. J. Law, 449 (1880) ; ^Yhite V. Grand Rapids R. Co., 107 Mich. 681, 65 N. W. 521 (1895) ; Alabama, etc., Co. V. Drummond, 73 Miss. 813, 20 South. 7 (1896). If a passenger is entitled to be carried without further payment of fare, it is a breach of duty to require him to pay fare or leave the train, and if he refuses to pay he may have his damages for being compelled to leave. "If he was rightfully on the train as a passenger, he had the right to refuse to be ejected from it, and to make a sufficient resistance to being put off to denote that he was being removed by compulsion and against his will ; and the fact that, under such circumstances, he was put off the train, was of itself a good cause of action against the company, irrespective of any physical injury he mav have received at that time, or which was caused thereby." Lamar. J., in Erie R. Co. v. Winter, 143 U. S. 60, 12 Sup. Ct. 356, 36 L. Ed. 71 (1S92). And see Smith v. Leo. 92 Hun, 242, 36 N. Y. Supp. 949 (1895). theater ticket. The fact that by yielding to the unwarranted demand he would have avoided expulsion does not limit his damages to the amount of fare demanded. Pa. R. Co. V. Connell, 112 111. 295, 54 Am. Rep. 238 (1884) ; Lexington, etc., Ry. Co. V. Lyons, 104 Ky. 23, 46 S. W. 209 (1898) ; Yorton v. Milwaukee, etc., R. Co 62 Wis 367," 21 N. W. 516 (188.5); St. Louis, etc.. Ry. Co. v. INIackie. 71 Tex. 491, 9 S. W. 451, 1 L. R. A. 667. 10 Am. St. Rep. 766 (1888). But it does not follow, even in the case of a common carrier, that such a passenger has a right to remain which survives his being ordered to leave, if the carrier has a regulation that persons without proper tickets must leave at request or pay fare. "If after this notice he waits for the application of force to remove him, he does so in his own wrong. He invites the use of the force necessary to remove him, and if no more is applied than is necessary to effect the object, he can neither recover against the conductor or company therefor. This is the rule deducible from the analogies of the law. No one has a right to re- sort to force to compel the performance of a contract made with him by an- other" Grover, J., in Townsend v. N. Y. C. R. Co.. .56 N. Y. 295. 15 Am. Rep. 419 (1874) And see Wood v. Leadbitter, 13 ^I. & W. ,S3S (1845). race track ticket ; McCrea v. Marsh, 12 Gray (Mass.) 211, 71 Am. Dec. 745 (1858), theater ticket. Even if the passenger has a right to remain in the train so that forcibly ejecting him is a tort, it does not follow that he is entitled to defend his right by resisting a conductor acting in good faith, and recover damages for injuries incurred in resisting. "A train crowded with passengers, often women and children, is no place for a quarrel or a fight behveen a conductor and a pas- senger, and it would be unwise, and dangerous to the traveling public, to adopt any rule which might encourage a resort to violence on a train of cars. The conductor must have the supervision and control of his train, and a 228 THE CAURIEU'S UNDERTAKING. (Part 2 demand on his part for fare should be obeyed, or the passenger should in a peaceable manner leave the train, and seek redress in the courts, where he will find a complete remetlv for everj' indijinity offered, and for all damages sustained." Craig, J., in Pa. K. Co. v. Conuell. 112 111. 295, 54 Am. Rep. 238 (1884). Ace. Kiley v. Chicago City Ry. Co., 18.9 111. 384, 59 N. E. 794, 52 L. R. A. 626, 82 Am. St. Rep. 460 (1901). And see Mnnnier v. N. Y. C. R. Co. (1903) post, p. 556. Contra: Ellsworth v. C. B. & Q. R. Co., 95 Iowa, 98, 63 X. W. 584, 29 L. R. A. 173 (1895). And see Pine v. St. Paul City Ry. Co., 50 Minn. 144, 52 N. W. 392, 16 L. R. A. 347 (1892). D.^AfAaED AND ALTERED TICKETS. — In the following cases tickets which with- out the holder's fault were in damaged or altereil condition, but still capable of being recognized, were held good: Railroad Co. v. Conley, 6 Ind. App. 9, 32 N. E. 96 (1892), discolored ; Wightman v. Chicago, etc., R. Co., 73 Wis. 169. 40 N. W. 689, 2 L. R. A. 185, 9 Am. St. Rep. 778 (1888). coupon "not good if detached" accidentally separated; Young v. Central Ry. Co., 120 Ga. 25, 47 S. E. 556, 65 L. R. A. 436, 102 Am. St. Rep. 68 (1904), ticket "not good if mu- tilated" accidentally torn in two ; Rouser v. No. Park St. Ry. Co., 97 Mich. 565. 56 N. W. 937 (1893), name of destination torn off by previous conductor. Compare Louisville, etc., R. Co. v. Harris, 9 Lea (Tenn.) ISO, 42 Am. Rep. 668 (1882), coupons "void if detached by any one but the conductor" detached by passenger in conductor's presence; Norfolk <& W. R. Co. v. Wysor, 82 Va. 250 (1886), coupons "void if detached" torn from book by passenger in conductor's presence; B. & M. R. Co. v. Chipman, 146 Mass. 107, 14 N. E. 940, 4 Am. St. Rep. 293 (1888). coupon "not good if detached" presented alone ; Henly v. Delaware, etc., R. Co.. 28 Mire. Rep. 499, 59 N. Y. Supp. 857 (1899), commuta- tion ticket cut down by passenger to fit his card case, so that ticket puncher punched fares inaccurately. Agreements Concerning Validation.— An agreement that a round trip ticket shall not be good for return passage unless stamped at destination by a designated person is valid. Boylan v. Hot Springs R. Co., 132 U. S. 146, 10 Sup. Ct. 50, 33 L. Ed. 290 (1880). Even though such person is unable or un- willing to act. Mosher v. Railroad Co.. 127 U. S. 390, 8 Sup. Ct. 1324, 32 L. Ed. 249 (1888) ; Western Md. R. Co. v. Stocksdale, 83 Md. 245, 34 Atl. 880 (1896). But if a validating agent, who unwarrantably refuses to act is the car- rier's employe, it has been held that the carrier cannot take advantage of the nonfulfillment of the condition. Head v. Ga. Pac. Ry. Co.. 79 Ga. .358. 7 S. E. 217, 11 Am. St. Rep. 434 (1887). agent refused to sign ; No. Pac. R. Co. v. Pauson. 70 Fed. 585, 17 C. C. A. 287, .30 L. R. A. 730 (1895), ticket unstamped by mistake; So. Ry. v. Wood. 114 Ga. 140, 39 S. E. 894, 55 L. R. A. .536 (1901). no agent on hand ; Pittsburgh, etc., Ry. Co. v. Coll, 37 Ind. App. 232, 76 N. E. 816 (1906), passenger not allowed to furnish proof of identity. Contra: Mc- Ghee v. Reynolds, 117 Ala. 413, 23 South. 68 (1897), the only wrong is the re- fusal to validate. Ch. 7) SEVERAL PERSONS CONCERNED IN CARRIAGE. 229 CHAPTER VII LIABILITY WHERE SEVERAL PERSONS ARE CON- CERNED IN CARRIAGE SECTION 1.— WITH WHOM IS THE CONTRACT OF CARRIAGE CITIZENS' BANK v. NANTUCKET STEAMBOAT CO. (Circuit Court, D. Massachusetts, 1841. 2 Stoi-y, 16, Fed. Cas. No. 2,730.) Libel in admiralty. * * * Story, J.i * * * The suit is in substance brought to recover from the steamboat company a sum of money, in bank bills and accounts, be- longing to the Citizens' Bank, which was intrusted by the cashier of the bank to the master of the steamboat, to be carried in the steamboat from the island of Nantucket to the port of New Bedford, across the intermediate sea, which money has been lost, and never duly delivered by the master. * * * The ground of the defense of the company is that, in point of fact, although the transportation of money and bank bills by the master was well known to them, yet it constituted no part of their own business or employment; that they never were, in fact, common carriers of money or bank bills ; that they never held themselves out to the public as such, and never received any compensation therefor; that the mas- ter, in receiving and transporting money and bank bills, acted as the mere private agent of the particular parties, who intrusted the same to him, and not as the agent of the company or by their authority ; that, in truth, he acted as a mere gratuitous bailee or mandatory on all such occasions ; and even if he stipulated for, or received, any hire or com- pensation for such services, he did so, not as the agent of or on ac- count of the company, but on his own private account, as a matter of agency for the particular bailors or mandators. Now, certainly, if these matters are substantially made out by the evidence, they consti- tute a complete defense against the present suit.- * * * 1 The statement of faets and parts of the opinion are omitted. 2 The decree of the District Court dismissing the libel was affirmed. Com- pare Cantling v. Hannibal, etc., R. Co., 54 Mo. 3S.'>, 14 Am. Rep. 476 (1873). rail- road held to be bailee of dog in charge of baggage master, who. as customary,, kept as a perquisite the price charged. 230 THE carrier's undertaking. (Part 2 CUTLER V. WINSOR. (Supreme Judicial Court of Massachusetts, 1828. 6 Pick. 335, 17 Am. Dec. ^o.) Assumpsit against the defendant as owner of the schooner Alex- ander, for certain goods laden on board of her by the plaintiffs at Boston, to be carried to Alexandria, she being then commanded by Jesse Snow. The defense rested upon the ground that Snow was charterer of the vessel, and so constructive owner pro hac vice, when the goods were shipped; and to maintain it the defendant produced the depo- sition of Snow, originally taken on behalf of the plaintiffs, and to which was annexed the written agreement made between Snow and the defendant concerning the use of the vessel. The material part of this agreement is as follows: "The said Capt. Snow, having agreed to take the said schooner Alexander for the purpose of getting employ in the freighting business, doth by these presents promise and oblige himself to victual and man the said schooner, and pay one-half of all port charges and pilotage, etc. And I, the said Winsor, do promise, on my part, to put said schooner in sufficient order for such business, with sails, rigging, and tackling. likewise to pay one-half of the port charges, pilotage, etc., together with eight dollars per month for one man's wages; and it is under- stood that all money or moneys so stocked in said schooner, whether for freight or passage or whatever, shall be equally divided between the said Capt. Snow and Winsor, each party accounting for the above." * * * A verdict was taken for the defendant, subject to the opin- ion of the whole court. Parker, C. J.^ In the case of Reynolds v. Toppan, 15 Mass. 370, 8 Am. Dec. 110, it was determined that the owner of a vessel under charter, the hirer having the whole control of the vessel for the time, to victual and man her and pay over a portion of the net proceeds to the owner for the use of the vessel, was not liable to the shippers of goods on board the vessel, w^hich had been embezzled or otherwise not accounted for by the master. In that case the English authorities cited on the present occasion were duly considered by the court and therefore will not be commented upon ; and in the case of Taggard et al. V. Loring, 16 Mass. 336, 8 Am. Dec. 140, the same principle is rec- ognized, and is applied to a contract of hire of the vessel which existed only in parol. So that the inquiry in the present case can be only wheth- er there exist any circumstances which distinguish it from those which have been thus decided. And first it is insisted that in the cases decided the letting the vessel w^as for a certain determinate period, in one case for six months, and 3 The statement of facts has been abbreviated. Ch. 7) SEVERAL PERSONS CONCERNED IN CARRIAGE. 231 in the other for the season ; whereas in the present case there is no provision for the duration or the termination of the contract. It is not perceived that any difference in regard to the HabiHty of the parties can result from this circumstance, for although the con- tract was determinable at the will of the owner of the vessel, yet, as in other contracts of a similar nature, this right is subject to the qualification that it could not be rescinded while the vessel was actu- ally employed in business pursuant to the contract; so that it was an absolute and indefeasible hiring of the vessel for every voyage she should have undertaken until notice was given by the owner of his intention to discontinue it. The principle of ownership pro hac vice by the hirer would apply to every voyage undertaken by him before he should receive notice from the owner that he chose to terminate the contract. For this we cite no authority, for no case like the present has been found; but it results from the nature of the contract and the rights of the party under it, and is analogous to the case of leases at will of real estate, which cannot be terminated but by mutual consent, unless the lessor gives reasonable notice to quit. It is also thought that the clause in the agreement, wdiich provides that the defendant, the owner, shall be accountable for the wages of one man at $8 per month, constitutes a substantial difference between this and the cases decided ; but, on reflection, we consider this only as a means of ascertaining the charges upon the earnings before a division shall be made between the charterer and the owner. It is no more than if the parties had agreed that the earnings should be divided, except that $8 per month should be deducted from the de- fendant's share. As to the question of copartnership between the defendant and Snow in the employment and earnings of the vessel, we think it can- not be predicated on the facts appearing in this case, any more than in all the cases in which the charter of the vessel was agreed to be paid by a portion of the earnings. Judgment according to verdict.* 4 Instances of charters of demise may he found in Colvin v. Newlierry, 1 CI. & F. 283 (1S.32) ; The Daniel Bvu-ns (D. C.) 52 Feil. l.'iO (1892); The Barnstable. 181 U. S. 40i. 468, 21 Sup. Ct. G84, 45 L. Ed. 954 (1901) ; Auten v. Bennett, 183 N Y 496 76 N E. 609 (1900). See, also, Pitkin v. Brainard, 5 Conn. 451, 13 Am. bee. 79 (182.5) ; The National City, 117 Fed. 822, .55 C. C. A. 44 (1902). In Drinkwater v. The Spartan, 1 Ware, 145, Fed. Cas. No. 4,085 (1828), Ware, J., said: "^There are, however, two kinds of contracts passing under the general name of "charter party." differing from each other very widely in their nature, their provisions, and in their legal effects. In one, the owner lets the use of his ship to freight, he himself retaining the legal possession, and being liable to all the responsibilities of owner. The master is his agent, and the mariners are in his employment, and he is answerable for their conduct. The charterer obtains no right of control over the vessel, but the owner is in fact and in con- templation of law the carrier of whatever goods are conveyed in his ship. In 232 THE carrier's undertaking. (Part 2 MUSCHA-MP V. LANCASTER & P. J. RY. CO. (Court of Exchequer, 1841. 8 Mees. & W. 421.) Case [for the loss of a box alleged to have been delivered to and received by the defendant as a common carrier to be conveyed for hire to the Wheatsheaf, Bartlow]. * * * At the trial before Rolfe, B., at the last assizes at Liverpool, the following facts appeared in evidence: The defendants are the pro- prietors of the Lancaster & Preston Junction Railway, and carry on business on their line between Lancaster and Preston, as common carriers. At Preston the line joins the North Union Railway, which, afterwards unites with the Liverpool & Manchester Railway at Park- side, and that with the Grand Junction Railway. The plaintiff, a stone mason living at Lancaster, had gone into Derbyshire in search of work, leaving his box of tools to be sent after him. His mother accordingly took the box to the railway station at Lancaster, directed to the plaintiff, "to be left at the Wheatsheaf, Bartlow, near Bake- well, Derbyshire" (a place about eight miles wide of the Birming- ham & Derby Junction Railway), and requested the clerk at the sta- tion to book it. In answer to her inquiries, he told her that the box would go in two or three days ; and on her asking whether it would go sooner if the carriage was paid in advance, he inquired whether any one was going with it ; on her answering in the negative, and that the person for whom it was intended w^ould be ready at the other end to receive it, he said the carriage had better be paid for by that person on the receipt of it. It appeared that the box arrived safely at Pres- ton, but was lost after it was despatched from thence by the North Union Railway. Upon these facts the learned judge stated to the jury, in summing up, that where a common carrier takes into his care a parcel directed to a particular place, and does not by positive agreement limit his responsibility to a part only of the distance, that is prima facie evidence of an undertaking on his part to carry the parcel to the place to which it is directed ; and that the same rule ap- plied, although that place were beyond the limits within which he in general professed to carry on his trade of a carrier. The jury found a verdict for the plaintiff, damages £16 Is. the other, the vessel is herself let to hire, and the charterer takes her into his own possession. It is a contract for a lease of the vessel." Instances of charters under which the shipowner retained possession may be found in The Aberfovle. Abb. Adm. 242. Fed. Cas. No. IG (1848): Adams V. Homeyer, 4.5 Mo. 54.5. 100 Am. Dec. 391 (1870) ; The Craigallion (D. C.) 20 Fed. 747 (1884) ; Grimberg v. Columbia, etc., Ass'n, 47 Or. 257, 83 Pac. 194, 114 Am. St. Rep. 927 (liW.j). For the rights and liabilities of those who ship imder an agreement with the charterer upon a vessel whose owner retains pos- session, see Crossman v. Burrill, 179 U. S. 100. 21 Sup. Ct. 38. 45 L. Ed. 106 (1900) ; AVehuer v. Dene S. S. Co.. 2 K. B. 92 (190.5) ; Rosenstein v. Vogemanu. 102 App. Div. 39, 92 N. Y. Supp. SO (1905) ; Id., 184 N. Y. 325, 77 X. E. 625 (1906). Ch. 7) SEVERAL PERSONS CONCERNED IN CARRIAGE, 233- In Easter term, Cresswell obtained a rule nisi for a new trial, on the ground of misdirection. Alartin now showed cause, and contended that there was no mis- direction. * * * Cresswell, Baines, and Burrell, in support of the rule. This is not the case of a conveyance traveling throughout a continuous line, like a coach, for instance, which professes to run from London to York; in such a case parties are not bound to look out for the particular proprietors interested in the different parts of the line. But there it is held out to the public as one line; this is the case of a company- known as the Lancaster & Preston Junction Railway, and holding themselves out to the world as the proprietors of and carriers upon that distinct line of railway only. To hold them liable for the loss of a parcel beyond the limits of their own line would therefore be very unjust. Suppose the case of a known coach from London to- Stamford, and a party delivers to the book-keeper a parcel directed to York, does that prove a contract to carry it to York? [Lord Abinger,. C. B. What would be the undertaking of the carrier in that case?] To carry to Stamford, and forward thence to York. Parties must be assumed to contract in reference to the known mode in which the carrier carries on his business. * * * Lord Abinger, C. B.^ The simple question in this case is, whether the learned judge misdirected the jury in telling them that if the case were stripped of all other circumstances beyond the mere fact of knowledge by the party that the defendants were carriers only from Lancaster to Preston, and if, under such circumstances, they accepted a parcel to be carried on to a more distant place, they were liable for the loss of it, this being evidence whence the jury might infer that they undertook to carry it in safety to that place. I think that in this' proposition there was no misdirection. It is admitted by the defend- ants' counsel that the defendants contract to do something more with the parcel than merely to carry it to Preston; they say the engage- ment is to carry to Preston, and there to deliver it to an agent, who is to carry it further, who is afterwards to be replaced by another, and so on until the end of the journey. Now that is a very elaborate kind of contract; it is in substance giving to the carriers a general power, along the whole line of route, to make at their pleasure fresh contracts, which shall be binding upon the principal who employed them. But if, as it is admitted on both sides, it is clear that something more was meant to be done by the defendants than carrying as far as Preston, is it not for the jury to say what is the contract, and how much more was undertaken to be done by them? Now it certainly might be true that the contract between these parties was such as that suggested by the counsel for the defendants; but other views of 5 Parts of the statement of facts and of the arguments of counsel are omit- ted. 234 THE CAUUIEU'S UNDERTAKING. (Part 2 the case may be suggested quite as probable ; such, for instance, as that these railway companies, though separate in themselves, are in the habit, for their own advantage, of making contracts, of which this was one, to convey goods along the whole line, to the ultimate termi- nus, each of them being agents of the other to carry them forward, and each receiving their share of the profits from the last. The fact that, according to the agreement proved, the carriage was to be paid at the end of the journey, rather confirms the notion that the per- sons who were to carry the goods from Preston to their final destina- tion were under the control of the defendants, who consequently ex- ercised some influence and agency beyond the immediate terminus of their own railway. Is it not then a question for the jury to say what the nature of this contract was ; and is it not as reasonable an inference for them to draw, that the whole was one contract, as the contrary? I hardly think they w^ould be likely to infer so elaborate a contract as that which the defendants' counsel suggests ; namely, that as the line of the defendants' railway terminates at Preston, it is to be presumed that the plaintiff, who intrusted the goods to them, made it part of his bargain that they should employ for him a fresh agent both at that place and at every subsequent change of railway or conveyance, and on each shifting of the goods give such a document to the new agent as should render him responsible. Suppose the owner of goods sent under such circumstances, when he finds they do not come to hand, comes to the railway office and makes a complaint, then, if the defendants' argument in this case be well founded, unless the railway company refuse to supply him with the name of the new agent, they break their contract. It is true that, practically, it might make no great difference to the proprietor of the goods w^hich was the real contract, if their not immediately furnishing him with the name would entitle him to bring an action against them. But the question is, why should the jury infer one of these con- tracts rather than the other? which of the two is the most natural, the most usual, the most probable? Besides, the carriage-money being in this case one undivided sum rather supports the inference, that although these carriers carry only a certain distance with their own vehicles, they make subordinate contracts with the other carriers, and are partners inter se as to the carriage-money — a fact of which the owner of the goods could know nothing ; as he only pays the one en- tire sum at the end of the journey, which they afterwards divide as they please. Not only, therefore, is there some evidence of this being the nature of the contract, but it is the most likely contract under the circumstances; for it is admitted that the defendants undertook to do more than simply to carry the goods from Lancaster to Preston. The whole matter is therefore a question for the jury, to determine wheth- er the contract was on the evidence before them. With respect to the case referred to, of the booking office in London, it only goes to show Ch. 7) SEVERAL PERSONS CONCERNED IN CARRIAGE. 235 that when persons take charge of parcels at such an office they merely make themselves agents to book for the stagecoaches. You go to the office and book a parcel; the effect of this is to make the booker your agent, instead of going to the coach office yourself; and so that he sends the parcel to the proper coach office, and once delivers it there, he has discharged himself; he has nothing to do with the carriage of the goods. In cases like the present, particular circumstances might no doubt be adduced to rebut the inference which, prima facie, must be made, of the defendants having undertaken to carry the goods the whole way. The taking charge of the parcel is not put as conclusive evi- dence of the contract sued on by the plaintiff; it is only prima facie evidence of it; and it is useful and reasonable for the benefit of the public that it should be so considered. It is better that those who undertake the carriage of parcels, for their mutual benefit, should ar- range matters of this kind inter se, and should be taken each to have made the others their agents to carry forward. GuRNEY^ B. I think there is no misdirection in this case, and that the jury might fairly infer that the contract was such as was stated by the learned judge. If the goods were to be carried only in the narrow sense contended for by the defendants, then, if the place of their destination were but three miles beyond Preston, and they were lost on the other side of the railway terminus, the defendants are not to be liable, but the plaintiff is to find out somebody or other who is to be liable in respect of the carriage for those three miles. RoLFE, B. I am of the same opinion, and think the construction we are putting on the agreement is not only consistent with law, but is the only one consistent with common sense and the convenience of mankind. What I told the jury was only this, that if a party brings a parcel to a railway station, which in this respect is just the same as a coach office, knowing at the time that the company only carry to a particular place, and if the railway company receive and book it to another place to which it is directed, prima facie they undertake to carry it to that other place. That was my view at the trial, and noth- ing has occurred to alter my opinion. As to the case which has been put, of a passenger injured on the line of railway beyond that where he was originally booked, I suppose it is put as a reductio ad absurdum; but I do not see the absurdity. If I book my place at Euston Square, and pay to be carried to York, and am injured by negligence of somebody between Euston Square and York, I do not know why I am not to have my remedy against the party who so contracted to carry me to York. But, at all events, in the case of a parcel, any other construction would open the door to incalculable inconveniences. You book a parcel, and on its being lost, you are told that the carrier is responsible only for one portion of the line of road. What would be the answer of the owner of the 236 THE carrier's undertaking. (Part 2 goods? "I know that I booked the parcel at the Golden Cross for Liverpool, and my contract with the carrier was to take it to Liver- pool." All convenience is one way, and there is no authority the other way. Rule discharged.® MYRICK V. MICHIGAN CENT. R. CO. (Supreme Court of the United States, 1882. 107 U. S. 102, 1 Sup. Ct. 423, 27 L. Ed. 325.) Action for breach of contract to carry cattle from Chicago to Phila- delphia and there deliver to shipper's order. The defendant operated a railroad between Chicago and Detroit. Its line connected at Detroit with lines of other companies to Philadelphia. Plaintiff delivered cattle to the defendant for transportation and took a receipt which ran as follows: Michigan Central Railroad Company, Chicago Station, Nov. 7th, 1877. Received from Paris Myrick, in apparent good order, consigned order Paris Myrick (notify J. and W. Blaker, Philadelphia, Pa.): Articles. Two hundred and two (202) cattle Weight or Measure. 240,000 Advance charges, $12.00. INIarked and described as above (con- tents and value otherwise unknown) for transportation by the Michi- gan Central Railroad Company to the warehouse at Wm. Geagan, Agent. On the margin and back of the receipt were a printed notice and rules, the purport of which is stated in the opinion. Defendant car- ried the cattle to Detroit and there delivered them to a connecting carrier for transportation to Philadelphia. They were misdelivered at Philadelphia. The plaintiff had a verdict and judgment. The case comes to this court on writ of error.^ « See this and later English cases reviewed in Gray v. Jackson, 51 N. H. 9, 12-2.3. 12 Am. Rep. 1 (1871). "The proposition that there is evidence for the jury to consider is not iden- tical with the proposition that the evidence, if believed, raises a presumption of fact. The proposition that there is evidence to be considered imports that there may be a presumption of fact. But generally it must be left to the jury to say whether there is one, and in many cases that is the main question which they have to decide." Holmes. J., in Commonwealth v. Briant, 142 Mass. 4G3,. 8 N. E. 338, 56 Am. Rep. 707 (1886). 7 The statement of facts has been rewritten. Cll. 7) SEVERAL PERSONS CONCERNED IN CARRIAGE. 237 Field, J. The principal question presented by the instruction re- quested by the defendant has been elaborately considered and ad- judged by this court. It is only necessary, therefore, to state the con- clusion reached. A railroad company is a carrier of goods for the public, and, as such, is bound to carry safely whatever goods ar'e intrusted to it for transportation, within the course of its business, to the end of its route, and there deposit them in a suitable place for their owners or consignees. If the road of the company connects with other roads, and goods are received for transportation beyond the termination of its own line, there is superadded to its duty as a common carrier that of a forwarder by the connecting line; that is, to deliver safely the goods to such line — the next carrier on the route beyond. This for- warding duty arises from the obligation implied in taking the goods for the point beyond its own line. The common law imposes no greater duty than this. If more is expected from the company re- ceiving the shipment, there must be a special agreement for it. This is the doctrine of this court, although a different rule of liability is adopted in England and in some of the States. As was said in Rail- road Company v. Manufacturing Company: "It is unfortunate for the interests of commerce that there is any diversity of opinion on such a subject, especially in this country; but the rule that holds the car- rier only liable to the extent of his own route, and for the safe stor- age and delivery to the next carrier, is in itself so just and reasonable that we do not hesitate to give it our sanction." 16 Wall. 318, 334, 21 L. Ed. 297. This doctrine was approved in the subsequent case of Railroad Company v. Pratt, although the contract there was to carry through the whole route. 22 Wall. 123, 23 L. Ed. 827. Such a contract may, of course, be made with any one of different connecting lines. There is no objection in law to a contract of the kind, with its attendant liabilities. See, also. Insurance Company v. Railroad Company, 104 U. S. 146, 36 L. Ed. 679. The general doctrine, then, as to transportation by connecting lines, approved by this court, and also by a majority of the state courts amounts to this : that each road, confining itself to its common-law liability, is only bound, in the absence of a special contract, to safely carry over its own route and safely to deliver to the next connecting •carrier, but that any one of the companies may agree that over the whole route its liability shall extend. In the absence of a special agreement to that effect, such liability will not attach, and the agree- ment will not be inferred from doubtful expressions or loose language, "but only from clear and satisfactory evidence. Although a railroad company is not a common carrier of live animals in the same sense 238 THE carrier's undertaking. (Part 2 that it is a carrier of goods, its responsibilities being in many respects different, yet when it undertakes generally to carry such freight it assumes, under similar conditions, the same obligations, so far as the route is concerned over which the freight is to be carried. In the present case the court below held that by its receipt, con- strued in the light of the circumstances under which it was given, the Michigan Central Railroad Company assumed the responsibility of transporting the cattle over the whole route from Chicago to Philadelphia. It did not submit the receipt with evidence of the attendant circumstances to the jury to determine whether such a through contract was made. It ruled that the receipt itself constituted such a contract. In this respect it erred. The receipt does not, on its face, import any bargain to carry the freight through. It does not say that the freight is to be transported to Philadelphia or that it was received for transportation there. It only says that it is consigned to the order of Paris Myrick, and that the Blakers at Philadelphia are to be notified. And, after the description of the property, it adds, "Marked and described as above (contents and value otherwise un- known) for transportation by the Michigan Central Railroad Com- pany to the warehouse at ," leaving the place blank. This blank may have been intended for the insertion of some place on the road of the company, or at its termination. It cannot be assumed by the court, in the absence of evidence on the point, that it was intend- ed for the place of the final destination of the cattle. On the mar- gin of the receipt is the following: "Notice. — See rules of transpor- tation on the back hereof." And among the rules is one declaring that goods consigned to any place off the company's line, or beyond it, would be sent forward by a carrier or freightman, when there are such, in the usual manner, the company acting for that purpose as the agent of the consignor or consignee, and not as carrier; and that the company would not be responsible for any loss, damage, or injury to the property after the same shall have been sent from its warehouse or station. Though this rule, brought to the knowledge of the ship- per, might not limit the liability imposed by a specific through con- tract, yet it would tend to rebut any inference of such a contract from the receipt of the goods marked for a place beyond the road of the company. The doctrine invoked by the plaintiff's counsel against the limitation by contract of the common-law responsibility of carriers has no ap- plication. There is, as already stated, no common-law responsibility devolving upon any carrier to transport goods over other than its own lines, and the laws of Illinois restricting the right to. limit such responsibility do not, therefore, touch the case. Nor was the common- law liability of the defendant corporation enlarged by the fact that a notice of the charges for through transportation was posted in the defendant's station house at Chicago. Such notices are usually found Ch. 7) SEVERAL PERSONS CONCERNED IN CARRIAGE. 239 in stations on lines which connect with other hnes, and they furnish important information to shippers, who naturally desire to know what the charges are for through freight as well as for those over a single line. It would be unfortunate if this information could not be given by a public notice in the station of a company without subjecting that company, if freight is taken by it, to responsibility for the manner in which it is carried on intermediate and connecting lines to the end of the route. Nor was the liability of the company affected by the fact that the notice on the margin of the receipt stated that the ticket given might be "exchanged for a through bill of lading." It would seem to in- dicate that the receipt was not deemed of itself to constitute a through contract. The through bill of lading may also have contained a limi- tation as to the extent of the route over which the company would undertake to carry the cattle. Besides, if weight is to be given to this notice as characterizing the contract made, it must be taken with the rule to which it also calls attention, that the company assumed re- sponsibility only for transportation over its own Hne. It follows from the views expressed that the court below erred in its charge that the ticket or bill of lading was a through contract, whereby the defendant company agreed to transfer the cattle to Phila- delphia, and safely deliver them there to the order of Myrick. Our attention has been called to some decisions of the Supreme Court of Illinois, which would seem to hold that a railroad company which receives goods to carry, marked for a particular destination, though beyond its own line, is prima facie bound to carry them to that place and deliver them there, and that an agreement to that ef- fect is imphed by the reception of goods thus marked. Illinois Cen- tral Railroad Co. v. Frankenberg, 54 111. 88, 5 Am. Rep. 93 ; Illinois Central Railroad Co. v. Johnson, 34 111. 389. Assuming that such is the purport of the decisions, they are not binding upon us. What constitutes a contract of carriage is not a question of local law. upon which the decision of a state court must control. It is a matter of general law, upon which this court will exercise its own judgment. Chicago City v. Robbins, 2 Black, 418, 17 L. Ed. 298; Raifroad Company v. National Bank, 102 U. S. 14, 26 L. Ed. 61 ; Hough v. Railway Company, 100 U. S. 213, 25 L. Ed. 612. If the doctrine of the Supreme Court of Illinois, as to what consti- tutes a contract of carriage over connecting lines of roads, is sound, it ought to govern, not only in Illinois, but in other states; and yet the tribunals of other states, and a majority of them, hold the reverse of the Illinois court, and coincide with the views of this court. Such is the case in Massachusetts. Nutting v. Connecticut River Railroad Co., 1 Gray (Mass.) 502; Burroughs v. Norwich & Worcester Rail- road Co., 100 Mass. 26, 1 Am. Rep. 78. If we are to follow on this 2-iO THE carrier's UNDERTAKING. (Part 2 subject the ruling of the state courts, we should be obliged to give a different interpretation to the same act — the reception of goods marked for a place beyond the road of the company — in different states, holding it to imply one thing in Illinois and another in Massa- chusetts. The judgment must be reversed, and the case remanded for a new trial; and it so ordered.^ CHICAGO & A. R. CO. v. MULFORD. (Supreme Court of Illinois, 189fi. 162 111. 522, 44 N. E. 861, 35 L. R. A. 599.) Cartwright, J. Appellees recovered a judgment of $10,854.60 in the circuit court of Cook county in an action of assumpsit against appellant for the value of certain coupons for passage over the Lake Erie & Western Railway and the Ohio Central Railroad, attached to passenger tickets sold by appellant to appellees. From that judgment an appeal was taken by appellant to the Appellate Court, which affirmed the judgment. The cause was tried before the court without a jury, and at the conclusion of the trial the defendant entered its motion to exclude the evidence for the plaintiffs. The motion was denied, and an excep- tion taken. The motion was in the nature of a demurrer to the evi- dence, and that it was proper and in apt time is not questioned. It admitted all that the evidence proved or tended to prove on the part of the plaintiff's; but, if there was no evidence legally tending to prove a cause of action against the defendant, it should have been sustained. The undisputed evidence tended to prove the following facts : Plaintiffs were railroad ticket brokers, having offices in various cities in the United States. In 1880, Mr. Mulford had charge of their office in Chicago, and Mr. McKenzie of the one in St. Louis. In the fall of that year there was what was called a "rate war," in which defendant was engaged; and tickets were being sold from Kansas City, Mo., to diff'erent points on the Lake Erie & Western Railway for one dollar. The Wabash Railway was selling tickets from Kansas City eastward at nominal rates, thereby taking traffic from the defendant, and also from the Lake Erie & Western. Antic- ipating that the rate war would soon end, the defendant desired, in that event to be able to compete successfully with other companies, and decided to place large blocks of tickets on the market prior to the 8 For cases ace. and contra, see 6 Cyc. 479; Carriers, 9 Cent. Dig. § 781, 4 Dec. Dig. §§ 172, 173 ; 106 Am. St. Rep. 60^612. note. The acceptance from an initial by an intermediate carrier of goods marked for a point beyond his line is not suificient evidence of a contract to carry to destination. Chicago & N. W. R. Co. V. No. Line Packet Co., 70 111. 217 (1873). Ch. 7) SEVERAL PERSONS CONCERNED IN CARRIAGE. 241 anticipated advance of rates. Mr, Mulford was in Indianapolis for the purpose of establishing a ticket office there, when an agent of defendant called upon him, and proposed a sale of tickets from Kan- sas City east, stating that defendant would give plaintiffs rates through to Toledo and Sandusky so low that by adding the local rate they could make a through rate to New York or Boston that would be less than the regular through rate. Thereafter negotiations were carried on, the result of which was that plaintiffs purchased 2,500 tickets for the aggregate sum of $24,957.50, from Kansas City, over defendant's, road, to Bloomington, and from that place over the Lake Erie & West- ern Railway, and a part of them also over the Ohio Central Railroad. These tickets were issued by the defendant under an agreement with the Lake Erie & Western Railway, and by authority from that road. ^ ^ ^ The rate war ended in the spring or summer of 1882. Plaintiffs sold the tickets to their customers, and they were received and honor- ed by the respective roads until June 6, 1885, when, the Lake Erie & Western having been placed in the hands of a receiver, he was or- dered by the United States court for the Southern district of Illinois, the district of Indiana, and the Northern district of Ohio, to refuse to accept for passage over the road any of the tickets in question. Plain- tiff's had sold, prior to that time, about 1,181 tickets, and had on hand about 1,319. After the refusal of the receiver of the Lake Erie & West- ern Railway to honor the tickets, the coupons for that road became worthless, and those for the Ohio Central could not be used because they were first in order, being attached at the head of the ticket. :)c ^ ;j; The question raised by the motion is whether these facts rendered through tickets in the form of coupons which are purchased of the receiver of the Lake Erie & Western to perform the contract. In the English courts it is held that the sale of a ticket by a railroad com- pany over its own and connecting lines is evidence of a contract for through carriage to the destination; and that the company making the sale thereby enters into a contract that renders itself liable for the full journey. In this country the decisions are not harmonious ; but the general rule is stated in the American & English Encyclopedia of Law (volume 25, p. 1085) as follows: "But the doctrine founded in reason, and best supported by the authorities in this country, is that, in the absence of a contract making it responsible, the carrier selling the tickets acts merely as the agent of the other lines, and there is no extra terminal liability; the rights of the passenger, and the duties and responsibilities of the several companies over whose roads he is entitled to passage, being the same as if he had purchased a ticket at the office of each company constituting the through line." The rule is also stated in 2 Redf. R. R. § 201, as follows : "These through tickets in the form of coupons which are purchased of the Green Carb. — 16 242 THE carrier's undertaking. (Part 2 first company, and which entitle the persons holding them to pass over successive roads, with ordinary passenger baggage, sometimes for thousands of miles, in this country, import commonly no contract with the first company to carry such person beyond the line of their own road. They are to be regarded as distinct tickets for each road, sold by the first company, as agent for the others, so far as the passen- ger is concerned," etc. This rule has been adopted by this court. Railroad Co. v. Connell, 112 111. 295, 54 Am. Rep. 238 ; Railroad Co. .V. Dumser, 161 III. 190, 43 N. E. 698. It is insisted that this court, in the case of Railroad Co. v. Copeland, 24 111. 332, 76 Am. Dec. 749, held that a railroad company selling through tickets over its own and other roads became responsible for the carriage of the passenger to the end of the route. That was a suit for the value of the baggage lost, which was checked by the rail- road company from Chicago to St. Louis. A brass check was given for the trunk deliverable at St. Louis, and the company giving the check was held liable. In the subsequent case of Railroad Co. v. Fahey, 53 111. 81, 4 Am. Rep. 587, w^iere a ticket was given for passage over several roads, it was held that the company that lost the baggage would be liable, and that the recognition of the ticket was a recognition of the agency of the road that sold it. In that case the rule as now existing with reference to passengers was recognized with regard to baggage. But a distinction has been made between the liability in the case of baggage and of passengers, and the liability for the loss of baggage has sometimes been held to be the same as in other cases of the car- riage of goods. 2 Redf. R. R. § 201. And there may be reasonable grounds for such a distinction, although the carriage of the baggage is merely incident to that of the passenger. In such cases the railroad company takes the baggage into its own possession and control, and a check is given which may be regarded as a single contract on the part of the company to deliver the goods at the place of destination. Besides, necessity might require such a rule, since any other would im- pose upon the passenger the necessity of looking after his baggage, and examining it at each change from one road to another. It would often be practically impossible to do that, or to prove where or by whose negligence the loss occurred. It is not necessary, in this case, to determine what the rule would be in respect to a loss of baggage, as it is not involved. But it is settled what the contract is in the case of passengers, and. if it is otherwise in the case of baggage, it rests upon some distinction aris- ing out of the nature of the dififerent contracts. If, then, the defend- ant could be held liable as principal, it must be because of some con- tract other than that arising from the mere sale of tickets. The only thing outside of the tickets themselves upon which any claim is based that there was a contract by defendant for carriage over the other Ch. 7) SEVERAL PERSONS CONCERNED IN CARRIAGE. 243 roads consists in the statement made in Indianapolis by the agent of defendant, and given above. This was offered as an inducement to the plaintiffs to buy the tickets, but it had no tendency to alter the contract implied by the law. There was nothing in the statement as to defendant being principal or agent in the transaction, and nothing which could lead plaintiff to suppose that the contract was other than the law would imply. The cheapness of the tickets could not even raise a supposition as to the character in which they were issued or sold. Whatever the price may have been, the plaintiffs knew that the tickets, when issued, would have coupons; and the last one, to be first taken off, would read over the Chicago & Alton, and the next over the Lake Erie & Western, and a part of them would also have coupons over the Ohio Central. They admittedly knew that the Lake Erie & W'estern Railway was an independent line, starting from Bloomington and going to Muncie, Ind., as testified; and that it was not run or managed by the defendant. But it is said that the tickets themselves were such as to render the defendant liable. On the heading of the tickets was the following: "Issued by Chicago & Alton R. R. Good for one first-class passage to station stamped in margin of attached coupon." And it is urged that this makes the ticket a contract to transport the holder over the Lake Erie & Western. The coupons for passage over the Lake Erie & Western contained the following : "Issued by Chicago & Alton R. R. — Lake Erie & Western R. R." At the bottom of the coupon was the following: "Via C. & A., L. E. & W." On the coupons for passage over the Ohio Central Railroad there was : "Issued by Chicago & Alton R. R. & Ohio Central Railroad ;" and on the bottom of the cou- pons : "\ia C. & A., L. E. & W., O. C." The statement on the tick- ets and coupons, "Issued by the Chicago & Alton Railroad," added nothing to the fact. They were so issued to the knowledge of all the parties, and the statement did not tend to show in any manner in what capacity they were so issued. We do not see how the statement, "Good for one first-class passage," affected the contract. Ordinarily, a ticket is a mere token or voucher. Burdick v. People, 149 111. 600, 36 N. E. 948, 24 L. R. A. 152, 41 Am. St. Rep. 329 ; Railroad Co. v. Dumser, supra. It is necessary in any ticket to show what it is for. These tickets were issued for first-class passage from Kansas City to the designated station, and this clause was placed on the tickets to indicate for what purpose they were intended to be used. There were, in addition, .the names of the connecting railroads upon the cou- pons, showing over what roads they were good ; and there was noth- ing upon the tickets regarding the contract which could change the rule or presumption of law. * * * It is urged, however, that the defendant is liable under the rule of law stated, although it incurred no extra terminal responsibility by the sale of tickets. The claim under this head is that defendant under- 244 THE carrier's undertaking. (Part 2 took, in a sale of the tickets, that they should be recognized and hon- ored by the Lake Erie & Western Railway Company as good for transportation over its line. The only way in which the Lake Erie & Western Railway Company could recognize and honor the tickets was by carrying the passengers ; in other words, by performing the con- tract. And this would be making an agent responsible that his prin- cipal should recognize the agency and carry out the contract. That is not the liability of an agent. An agent does impliedly contract that he is an agent, and has authority to do the act. But in this case there is no question that such was the fact. * * * That defendant might have made a contract for the carriage of passengers over the entire line, where its road was a part of the route, is not doubted; but the evidence did not tend to prove that any such contract had been made. It is suggested that the defendant might be liable on the ground of a partnership between it and the Lake Erie & Western. But the evidence does not tend to prove partnership. The fact that each road sells through tickets, taking its own share of the price according to its mileage, does not constitute them partners. 25 Am. & Eng. Enc. Law, p. 1087. And corporations cannot enter into partnership with each other. Bishop v. Preservers' Co., 157 111. 284, 41 N. E. 765, 48 Am. St. Rep. 317. There were other questions in the case, but, as there was no evi- dence tending to prove any contract different from that implied by law, the conclusion that defendant was not liable cannot be escaped^ and the motion of the defendant should have been sustained. The judgments of the appellate and circuit courts will be reversed, and the cause remanded. Reversed and remanded.* 9 Parts of the opinion are omitted.. Ace. Hartan v. Eastern R. Co., 114 Mass. 44 (1873). Compare Chicago & Alton R. Co. V. Dumser, 161 111. 190, 43 N. E. 698 (1896) ; Pa. Co. v. Loftis, 72 Ohio St. 288. 74 N. E. 179. 106 Am. St. Rep. 597 (190.j), tickets boiiRht in re- liance on advertisement of through trip; Hutchins v. Pa. R. Co., 181 N. Y. 186. 73 N. E. 972, 106 Am. St. Rep. 537 (1905), ticket issued in response to request for through transportation ; Talcott v. Wabash R. Co., 159 N. Y. 461. 54 N. E. 1 (1899). sample trunk checked through on payment of excess baggage charge ; held on second trial, not a throusrh contract. 109 App. Div. 491, 96 N. Y. Supp. 548, affirmed 188 N. Y. 608. 81 N. E. 1176 (1907) ; Cheriy v. Kansas City, etc., Ry. Co., 61 Mo. App. 303 (1895), ticket containing no reference to connecting carrier; Central R. Co. v. Combs, 70 Ga. 533, 48 Am. Rep. 582 (1883). In Atchison, etc., R. Co. v. Roach. 35 Kan. 740, 12 Pac. 93, 57 Am. Rep. 199 (1886). .Johnston, J., said: "But where a railroad company .sells a through ticket for a single fai-e over its own and other roads, and checks the baggage of the passenger over the entire route, more is implied, it seems to us, i;han the mere acceptance of the property marked for a destination beyond the terminus of its own line. The sale of a through ticket and the checking of the baggage for the whole distance is some evidence of an undertaking to carry the passenger and baggage to the end of the .iourney." And see Kansas City, etc., R. Co. v. Washington, 74 Ark. 9, 85 S. W. 400, 69 L. R. A. 65, 109 Am. St. Rep. 61 (1905). Ch. 7) SEVERAL PERSON'S COXCERXED IN CARRIAGB. 245 BLOCK V. FITCHBURG R. CO. (Supreme Judicial Court of Massachusetts, 1885. 139 Mass, 308, 1 N. E. 348.) Contract, against the Fitchburg Railroad Company and seven other railroad corporations, described in the writ as "doing business to- gether as a line for the purpose of carrying freight, under the name of 'Erie & North Shore Despatch,' " and having a usual place of busi- ness in Boston. * * * Trial in the superior court before Staples, J., who ordered a verdict for the defendants. The plaintiff alleged exceptions, which appear in the opinion. Morton, C. J.^° The evidence at the trial tended to show that the several defendant corporations formed an association or company, under the name of "The Erie & North Shore Despatch," for the trans- portation of merchandise between Boston and Chicago; that the as- sociation had an agent in Boston who was authorized to receive goods at Boston for transportation over the line to Chicago, and to give bills of lading or contracts for transportation like the one upon which the plaintiff sues; that the plaintiff delivered goods to such agent, and received the bill of lading in suit; and that a part of the goods were lost between Boston and Chicago. By the bill of lading, "The Erie & North Shore Despatch" contracts to carry the goods from Boston by the Fitchburg Railroad, and thence by the Erie & North Shore Despatch to Chicago, and there to deliver them to connecting railroad lines to be forwarded to Denver, their destination. The several rail- road companies which form the association are not named in the contract. It is a single and indivisible contract, by which the Erie & North Shore Despatch Line agrees to carry the goods to Chicago, the freight to be earned upon the delivery there to the connecting line. So far as the question in this case is concerned, it is unlike those cases where a railroad forming one link in a line of connecting roads between two points receives goods to be transported over its line and delivered to the connecting road, in which it has been held in this commonwealth that each railroad in the continuous line is liable only for loss or dam- age happening on its own road. Darling v. Boston & W. R. Co., 11 Allen, 295 ; Gass v. New York, P. & B. R. Co., 99 Mass. 220, 96 Am. Dec. 742; Burroughs v. Norwich & W. R. Co., 100 Mass. 26, 1 Am. Rep. 78; Aigen v. Boston & M. R., 132 Mass. 423. The defendants formed a company, and in its name made a special contract to carry the plaintiff's goods from Boston to Chicago. They are, so far as the plaintiff is concerned, partners, and liable jointly and severally for any loss or damage to his goods between Boston and Chicago, unless they are exempted from liability by the terms of the contract. * * * Exceptions sustained.^^ 10 Parts of the statement of facts and of the opinion are omitted. 11 See, also. Swift v. Pacific Mail S. S. Ck)., 106 N. Y. 206, 12 N. E. 583 (1887) ; Peterson v. Chicago, etc., By. Co., 80 Iowa, 92, 45 N. W. 573 (1890). 246 THE carrier's undertaking. (Part 2 SECTION 2.— DELEGATION OF CARRIER'S DUTY I. Liability of the Carrier Who Delegates BUCKLAND v. ADAMS EXPRESS CO. (Supreme Judicial Court of Massachusetts, 1867. 97 Mass. 124, 93 Am. Dec. OS.) See ante, p. 19, for a report of the case. HEGEMAN v. WESTERN R. CORPORATION. (Court of Appeals of New York, 1855. 13 N. Y. 9, 64 Am. Dec. 517.) The action was brought to recover damages for injuries to the person of the plaintiff, alleged to have been caused by the negligence of the defendant. The cause was tried at the Rensselaer county cir- cuit, held by Justice Win. F. Allen, in October, 1852. The plaintiff proved that the defendant was the proprietor of a railroad extending from Greenbush to Boston ; that in September, 1850, the plaintiff was a passenger on the railroad, having taken the train at Greenbush for Boston, and when near Hinsdale, Mass., an axle of the car in which he was riding broke, and three of the passengers in the car were killed and the plaintiff was seriously and permanently injured. * * * The jury returned a verdict in favor of the plaintiff, and assessed his damages at $9,900. * * * The defendant appealed to this court. * * * Gardiner, C. J.^" * * * f^^Q questions were presented for the consideration of the jury. First, was there a test known to and used by others, and which should have been known to a skillful manu- facturer, by which the concealed defect in the axle of the car could have been detected; and if so, then, secondly, was the injury to the plaintiff the consequence of that imperfection? There was evidence tending to establish these facts, which the jury have found. * * * It was said that carriers of passengers are not insurers. This is true. That they were not required to become smelters of iron, or manufacturers of cars, in the prosecution of their business. This also must be conceded. What the law does require is, that they shall fur- nish a sufficient car to secure the safety of their passengers, by the exercise of the "utmost care and skill in its preparation." They may construct it themselves, or avail themselves of the services of others ; but in either case, they engage that all that well directed skill can do 12 Parts of the statement of facts and of the opinion are omitted. Ch. 7) SEVERAL PERSONS CONCERNED IN CARRIAGE. 247 has been done for the accomplishment of this object. A good reputa- tion upon the part of the builder is very well in itself, but ought not to be accepted by the public, or the law, as a substitute for a good vehicle. What is demanded, and what is undertaken by the corpora- tion, is not merely that the manufacturer had the requisite capacity, but that it was skillfully exercised in the particular instance. If to this extent they are not responsible, there is no security for individu- als or the public. * * * The judgment of the Supreme Court should be affirmed.^ ^ THORPE v. NEW YORK CENT. & H. R. R. CO. (Court of Appeals of New York, 1879. 76 N. T. 402, 32 Am. Rep. 325.) Andrews, J.^* The defendant's counsel, upon the conclusion of the evidence, moved for a nonsuit, on the ground that the porter, by whom the alleged assault was committed, was not the servant of the defend- ant, and that the defendant was not therefore responsible for his acts. 13 Contra, Grand Rapids, etc., R. Co. v. Huntley, 3S Mich. 537, 31 Am. Rep. 321 (1878). And see Nashville, etc., R. Co. v. Jones. 9 Heisk. (Tenn.) 28 (1871). In Mamey v. Scott, [1809] 1 Q. B. 980. an action by a longshoreman against the charterer of a ship for injury received by reason of the defective condition of a fixed ladder leading to the hold, Bigham, J., said: "I think that a man who intends that others shall come upon proi>erty of which he is the occupier for purposes of work or business in which he is interested owes a duty to those who do so come to use reasonable care to see that the property and the ap- pliances upon it which it is intended shall be used in the work are fit for the purpose to which they are to be put, and he does not discharge this duty by merely contracting with competent people to do the work for him. If the parties with whom he so contracts fail to use reasonable care and damage results, the occupier still remains liable. * * * The effect of the author- ities is correctly and clearly stated in Pollock on Torts (5th Ed.) at page 477: 'The duty is founded not on ownership, but on possession— in other words, on the structure being maintained under the control and for the purposes of the person held answerable. It goes beyond the common doctrine of resiwnsibility for servants, for the occupier cannot discharge himself by employing an in- dependent contractor for the maintenance and repair of the structure, how- ever careful he may be in the choice of that contractor. Thus the duty is described as being Impersonal rather than personal. Personal diligence on the part of the occupier and his servants is immaterial. The structure has to be in a reasonably safe condition so far as the exercise of reasonable care and skill can make it so.' And on page 482: 'The possession of any structure to which human beings are intended to commit themselves or their property, animate or inanimate, entails this duty on the occupier, or rather controller. It extends to gangways or stagings in a dock * * * to a temporary stand * * * to carriages traveling on a railway or road * * * to ships.' " Ace. Hynuin v. Nye, [ISSl] 6 Q. B. D. 685, carriage with driver hired at- livery stable. A railroad company is liable to a passenger for injury caused by a defect in a bridge or embankment due to neglect of the contractor who built it. Grote V. Chester, etc.. Ry. Co., 2 Ex. 2.51 (1.848) ; Philadelphia, etc., R. Co. V. Anderson, 94 Pa. 351. 39 Am. Rep. 787 (1880). Or for the defective con- dition of a station or of tracks which it uses, though under the control of another company. Peniston v. Chicago, etc., R. Co., .34 La. Ann. 777, 44 Am. Rep. 444 (1882) ; Buxton v. N. E. Ry. Co., L. R. 3 Q. B. 549 (1868). 1* Part of the opinion is omitted. 248 THE carrier's undertaking. (Part 2 The plaintiff was a passenger on the defendant's train. He entered the cars at Syracuse, with the intention of riding in one of the or- dinary cars to Auburn. He passed through the two ordinary cars attached to the train, and finding no vacant seat passed into the draw- ing room car, and when called upon by the porter to pay the extra charge for a seat in that car, declined to pay the sum demanded, for the reason that he could find no seat elsewhere, but expressed a willing- ness to leave the car, whenever he could get a seat in the other cars. The porter thereupon attempted to eject the plaintiff from the car, and for this assault the action is brought. The proof shows that all the seats in the two ordinary cars were oc- cupied, and that several persons were compelled to stand in the pas- sageway, and others were seated on the woodbox, for want of other accommodation. The ground upon which the motion for nonsuit was made assumes that, under the circumstances, the plaintiff was justi- fied in going into the drawing room car, and that the act of the porter, in attempting to eject him, was an unjustifiable assault, but the claim is made, and the exception to the refusal to nonsuit is sought to be sup- ported, on the ground that the porter was the servant of Wagner, the owner of the drawing room car, and was not, in fact or law, the serv- ant of the defendant. If the right of the plaintiff to maintain this action depends upon the existence of the conventional relation of master and servant, be- tween the defendant and the porter at the time of the transaction in question, the action cannot be maintained. The porter was in fact the servant of Wagner, Wagner employed him, paid him, and could at any time discharge him. His duty was to take charge of the draw- ing room car on the train, assign seats to passengers desiring seats therein, and collect and receive the sums charged therefor. He was instructed by Wagner to remove from the car persons who refused to pay the extra fare, and looking at the contract of employment only, he was, in attempting to remove the plaintiff, acting as Wagner's servant. The general principle is well settled, that to make one person re- sponsible for the negligent or tortious act of another, the relation of principal and agent, or master and servant, must be shown to have existed at the time, and in respect to the transaction between the wrongdoer and the person sought to be charged. * * * The business of running drawing room cars in connection with or- dinary passenger cars has become one of the common incidents of passenger traffic on the leading railroads of the country. These cars are mingled with the other cars of the company, and are open to all who desire to enter them, and who are willing to pay a sum in addi- tion to the ordinary fare, for the special accommodation aft'orded by them. They are put on presumably in the interest of the road. They form a part of the train, and the manner of conducting the business is an invitation by the company to the public to use them, upon the Ch. 7) SEVERAL PERSONS CONCERNED IN CARRIAGE. 249 condition of paying the extra compensation charged. Passengers cannot know what private or special arrangement, if any, exists be- tween the company and third persons, under which this part of the business is conducted, and they have, we think, in taking one of these cars, a right to assume that they are there under a contract with the company, and that the servants in charge of the drawing room cars are its servants. Otherwise there would be two separate contracts in the case of each passenger in these cars, one with the company, and one with Wagner. Sucli a condition of things would involve a con- fusion of rights and obligations, and divide a responsibility which ought to be single and definite. Take the case of a passenger in a drawing room car who should be burned by the negligent upsetting or breaking of a lamp by the porter, or the case of a passenger in a sleeping car, injured by the porter's negligence. Is the passenger, in these or other similar cases which might be supposed, to be turned over, for his remedy, against Wagner, on the ground that the servant who caused the injury was his servant, and not the defendant's? The public interest, and due protection to the rights of passengers, require that the railroad company which is exercising the franchise of opera- ting the road for the carriage of passengers, should be charged with and responsible for the management of the train, and that all persons employed thereon should, as to passengers, be deemed to be the serv- ants of the corporation. * * * Judgment affirmed.^ ^ PHELPS V. WINDSOR STEA:\IB0AT CO. (Supreme Court of North Carolina, 1902. 131 N. C. 12. 42 S. E. 335.) Clark, J. This is an action against the defendant steamboat com- pany, alleging that, while plaintiff was a passenger on one of its boats, by negligence in the loading and operation thereof the boat 15 Ace. Pa. Co. v. Roy. 102 U. S. 451. 26 L. Ed. 141 (ISSO). defective condi- tion of Pullman car aiid negligent conduct of porter; Airey v. Pullman Co.. .50 La. Ann. 648. 23 South. 512 (1898). railroad company liable for porter's failure to awaken passenger in time to get out at destination : New York, etc., R. Co. V. Cromwell, 98 Ya. 227. 35 S. E. 444. 49 L. R. A. 462. 81 Am. St. Rep. 722 (1900). failure of refrigerator car company to ice car ; Louisville & N. R. Co. V. Church. 155 Ala- 329. 40 South. 4.57 (1908). carelessness of porter in- handling table ; also cases in 4 Dec. Dig. Carriers, § 414. A carrier by railroad is liable for negligence in the conduct of its trans- portation, though the negligent person is a servant of a connecting railroad. McElroy v. Nashua, etc.. R. Corp.. 4 Cush. (Mass.) 400, 50 Am. Dec. 194 (1849). If it permits another company to use its tracks, it is liable to its own pas- sengers for injurv caused bv the negligence of that company in running its trains. Railroad Co. v. Barron. 5 Wall. 90, 18 L. Ed. 591 (1866). So if it runs- its trains over the track of another company. Thomas v. Rhymney Ry. Co., L. R. 6 Q. B. 260 (1871) ; Wabash, etc., Ry. Co. v. Peyton, 100 111. 534, 46 Am. Rep. 705 (ia83). Contra: Sprague v. Smith, 29 Yt. 421, 70 Am. Dec. 424 (1857). See Am. Ex. Co. v. Ogles, 36 Tex. Civ. App. 407, 81 S. W. 1023 (1904), express company liable for injury by railroad's negligence to drover accompany- ing shipment of cattle. 250 THE carrier's undertaking. (Part 2 was capsized, and the plaintiff was thrown into the water and in- jured, and her baggage was also damaged. The plaintiff joins in the action the administratrix of one John W. Branning, upon the ground that said Branning was the owner of said vessel, and had leased it to the said steamboat company. It does not appear, nor is it alleged, that he had any connection with the operation of said vessel by the other defendant. His honor properly dismissed the action as to Branning upon the ground that no cause of action is stated against him. Gulzoni v. Ty- ler, 64: Cal. 334, 30 Pac. 981; Shear. & R. Xeg. § 501. In Harden v. Railroad Co., 129 N. C. 351, 40 S. E. 184, 55 L. R. A. 784, 85 Am. St. Rep. 747, and the cases there cited, from Aycock v. Railroad Co., 89 N. C. 321, down to and inclusive of Perry v. Railroad Co., 129 N. C. 333, 40 S. E. 191, and City of Raleigh v. North Carolina R. Co., 129 N. C. 265, 40 S. E. -2 (affirmed since in Smith v. Railroad Co., 130 N. C. 344, 42 S. E. 139), the lessor is held liable, notwithstanding the lease, because a railroad company (the lessor in those cases) was a quasi public corporation, enjoying the use of the right of eminent domain to take private property by condemnation for its right of way "because it is for a public use," and with man}- other special privileges and rights conferred for the public benefit, and it could not be allowed, by merely making a lease, to put off all liability for the manner in which its duties are discharged, while receiving the full benefit for valuable privileges conferred upon it in the shape of rental.^'' This can only be done, as the authorities cited in those cases show, when the legislative power, having had opportunity to look into the solvency of the lessee, has not only authorized the lease, but has ex- pressly released the lessor company from further responsibility. Lo- gan V. Railroad Co., 116 N. C. 940, 21 S. E. 959 ; Anderson v. Rail- road Co., 161 Mo. 411, 61 S. W. 874; and numerous other cases cited in Harden v. Railroad Co., supra.^'^ Were it otherwise, an insolvent lessee could operate the railroad without responsibility to the public or to employes, leaving the lessor, the original corporation, to enjoy the profits of its privileges without any corresponding responsibility in return. ic \Miere a railroad company without legislative authority has permitted its franchises to be exercised by a lessee, it has frequently been held liable for bodily injury attributable to negligence of the lessee in the operation of the road whether the person injured is a passenger, Chicago, etc., R. Co. v. Newell, 212 111. 332, 72 N. E. 416 (1904) ; or a stranger. Muntz v. Algiers, etc.. Co., Ill La. 423, 3.5 South. 624, 64 L. R. A. 222, 100 Am. St. Rep. 49.5 (1903) ; or, in some states, an employe. Chicago & G. T. Ry. Co. v. Hart, 209 111. 414, 70 N. E. 654, 66 L. R. A. 75 (1904). It has been held liable for the lessee's refusal to carrv goods. Central, etc., Rv. Co. v. Morris, 6S Tex. 49. 3 S. W. 457 (1SS7). And for misdelivery, Nat. Blc. v. Atlanta, etc., Rv. Co., 25 S. C. 216 (1S,S6) ; Ga. R. Co. v. Haas, 127 Ga. 187. 56 S. E. 313, 119 Am. St. Rep. 327 (1906), statutory. See 58 Am. St. Rep. 147, note. 17 Ace. Chicago, etc., Ry. Co. v. Hart. 209 111. 414, 70 N. E. 654. 66 L. R. A. 75 (1904). Contra: Moorshead v. United Rvs. Co., 203 Mo. 121, 136-138, 15S- 164, 96 S. W. 261, 100 S. W. 611 (1907), and cases cited. Ch, 7) SEVERAL PERSONS CONCERNED IN CARRIAGE. 251 But nothing in those cases, nor in the reason of the thing-, appUes to the lessor of a steamboat which has received no special privileges or benefits of great value from the state, and who indeed in this in- stance was a private individual. No liability attaches to said Bran- ning because he was president of said company, unless it were alleged and shown that the lease was collusive and colorable only, and a sham to avoid personal liability, and that he had in fact leased his own prop- erty to himself. But. there is no such averment, and in dismissing the action as against his estate, there was no error. BELL V. INDL\NAPOLIS, C. & L. R. CO. (Supreme Court of Indiana, 1876. 53 Ind. 57.) Downey, C. J.^® Suit by the appellant against the appellee for in- juries received by him in being run over by a train of cars of the de- fendant, on or about the 7th day of October, 1872. * * * The only question on appeal to this court is as to the sufficiency of the first paragraph of the answer. [This paragraph had been held good on demurrer.] * * * The substance of the paragraph is that, at the time when the injury was inflicted upon the plaintiff, the railroad, etc., were in the hands and under the control of receivers duly appointed and acting. Is this a sufficient reason why the corporation shall not be held liable for the injury done the plaintiff? Counsel for appellee cite and rely upon Ohio & Miss. R. Co. v. Davis, 23 Ind. 553, 85 Am. Dec. 477. The authority seems to us to be decisive of the question, and to sustain the ruling of the court below. * * * The judgment is affirmed, with costs. ^^ II. Liability of the Person Delegated PACKARD V. TAYLOR. (Supreme Court of Arkansas, ISSO. 35 Ark. 402, 37 Am. Rep. 27.) Eakin, J.^" Taylor, Cleveland & Co., merchants at Pine Bluff, brought this action at law against appellants, Packard & Hammett, 18 Parts of the opinion are omitted. 19 Compare Grand Tower Co. v. Ullman, 89 111. 244 (1878). railroad operated by trustees for bondholders. For the liability of a receiver as a common carrier, see Nichols v. Smith, 115 Mass. 332 (1874) ; McNulta v. Lockridge. 137 111. 270. 27 N. E. 452. 31 Am. St Rep 3G2 (1891). For the railroad'sliability after the receiver's discharge, gee Texas & P. R. Co. v. Huffman, S3 Tex. 286, IS S. W. 741 (1892). 2 Part of the opinion is omitted. 252 THE carrier's rxDERTAKiNQ. (Part 2 owners of the steamboat Lizzie, to charge them for damages to goods which had been deHvered to said steamer at Little Rock, to be trans- ported to Pine Bluff, and which had been injured by the sinking of the steamer in the Arkansas river, before her departure from the wharf. Bills of particulars, describing the goods were filed, and the damage sustained, sufficiently proved. The defenses set up by the answer may be reduced to three : 1. That there was a nonjoinder of proper parties defendant, inas- much as a third party not sued was a third owner of the vessel. This may be disposed of, at once, in passing. Although independently of any statute, it was necessary to sue all the joint owners of a vessel on any contract made respecting it, and a nonjoinder was matter in abatement, yet this has been positively al- tered by the Code. See Gantt's Digest, ■§§ 4479 and 4480. Any or all may now be sued. 2. That defendants made no contract with plaintiffs for the car- riage of the goods, but received them from the St. Louis & Iron ]\Iountain Railroad Company, to be carried in its behalf, and to which, alone, they are responsible. 3. That defendants were guilty of no negligence, nor misconduct, but that the accident happened solely from the act of God, and the perils of the river. Upon trial by a jury, there was a verdict for $750 damages, and judgment in plaintiffs' favor accordingly. There was a motion for a new trial, which was overruled. A bill of exceptions was taken, and an appeal granted. * * * It will be seen that a portion of the objections to the instructions given for plaintiffs, and some of the instructions asked by defendants and refused by the court, are based upon this assumed principle, that if the defendants were acting only under a contract with the railroad to carry, for the corporation, freights which it had undertaken to de- liver at Pine Bluff, they could only be held to answer at the suit of the railroad, and not of the plaintiffs. But it must not be lost sight of, that defendants were, themselves, common carriers between Little Rock and Pine Bluff, carrying for the railroad only as a part of their general business. The contract had only the effect of a contract between common carriers, for increase of custom to the steamboat line, securing it, in competition with other carriers upon the same route. It did not relieve the steamboat own- ers from any of the general responsibilities of common carriers with regard to goods so transferred to them for carriage by the railroad. They were not the private agents of the railroad company, but were carrying on a general business, for the benefit of any one who might employ them. They are bound by the same obligations and to the same persons which bind successive common carriers, receiving goods from each other and transmitting them along the route to the point of ultimate destination. There were no bills of lading in this case. Ch. 7) SEVERAL PERSONS CONCERNED IN CARRIAGE. 253 restricting or defining the several liabilities of the railroad and the steamer Lizzie. The general law must govern. The carrier's obligation to keep and carry safely is founded on the custom of the realm, at common law, and is independent of contract, being imposed by law for the protection of the owner, and founded upon public policy and commercial necessity. Chitty on Carriers, 34, 35. There may be a special contract, also, not indeed superseding that implied by law, which still underlies the other, but restricting or modi- fying it in some particulars, in a manner which the courts may not consider unreasonable, or subversive of the general policy. Id. But in the absence of any such contract, the carrier is an insurer — liable not only for negligence, but even for inevitable accident, not occasion- ed by act of God. In this case there is no question of public enemies. We are cited to the cases of Bank of Kentucky v. Adams Express Co. (1876) 93 U. S. 174, 23 L. Ed. 872, and Newell v. Smith (1876) 49 Vt. 255, as authority to sustain the position that, the contract of affreightment being with the railroad, the defendants cannot be sued upon it. The first was a suit against an express company to recover the value of a package of money which defendant had received, to be delivered to plaintiff, at Louisville. The express company had em- ployed the services of a railroad to transport its packages, which were accompanied by and remained under the control of its messenger. An accident happened to the road, by which the car was burned and the package destroyed. The defense set up was that the express com- pany, having contracted to be held only to the liability of a common bailee for hire in case of loss by fire, was not answerable for the negligence of the employes of the railroad, over w^iich it had no con- trol ; and so it was held by the Circuit Court. This was reversed, on appeal to the Supreme Court of the United States ; the latter tribunal liolding that the railroad company was the agent of the express com- pany, and that the latter must answer for the negligence of the for- mer. • The question of the liability of the railroad company to the consignees of the package would be analogous to this, but it did not arise. The court, however, arguendo, took this liability for granted, upon the authority of New Jersey Steam Navigation Co. v. Merchants' Bank (1848) 6 How. 344, 12 L. Ed. 465, and say: "Granting that the plaintiffs can sue the railroad company for the loss of the packages through its fault, their right comes through their contract between it and defendants. They must claim through that. Had the packages been delivered to the charge of the railroad company, without any stip- ulation for exemption from the ordinary liability of carriers, it would have been an insurer both to the express company-^ and to the plain- tiffs." 93 U. S. 184, 23 L. Ed. 872. 21 See Powbatan Steamboat Co. v. Appomattox R. Co., 24 How. 247, 16 L. Ed. 6S2 (ISGO) ; Vermont & Mass. R. Co. v. Fitchburg R. Co., 14 Allen (Mass.) 462, 02 Am. Dec. 785 (1867) ; Little v. B. & M. R. R., 66 Me. 239 (1876). 254 THE carrier's undertaking. (Part 2 In the case here before us, the goods were taken by the St. Louis, Iron Mountain & Southern Railway Company, without any express contract, to be carried to Pine Bluff, and were delivered to the de- fendants at Little Rock, as common carriers, to be transported to their destination, without any stipulation for exemption from the ordinary liability of carriers. According to the principle above announced, the owners of the Lizzie would thus become insurers, both to the St. Louis, Iron Mountain & Southern Railway Company, and to the plain- tiffs. It is true, however, that in 93 U. S. 184, 23 L. Ed. 873, the case is stated hypothetically. The case in 49 Vt. 255, supra, goes only to fix the liabilities of a carrier who expressly contracts to deliver goods at a destination be- yond the terminus of his own road for the negligence of any connect- ing road in the line of transportation. This court has held that this liability for loss by a connecting car- rier may be repelled by express stipulation. Taylor v. Little Rock, \[. R. & T. Railroad Co. (1877) 32 Ark. 393, 29 Am. Rep. 1. But neither the latter case nor the case from Vermont conflicts with the principle announced in 6 How. 344, 12 L. Ed. 465, supra, that the consignee of goods may maintain an action against the carrier in whose hands the loss happens, through the rights of the carrier originally bound. Although the English courts have adopted the principle that a car- rier who receives goods to be conveyed to a point beyond the terminus of his own route, is liable for losses whilst in the hands of connecting carriers, and have even held that in such cases the subsequent carrier cannot be held liable by the owner, yet the American courts have taken a different view. See the question discussed and authorities cited in Redfield on Railways, § 162, and notes. 1 have not met with any American case absolving the connecting carrier from liability to the consignee, although the contract may have been made with a preceding one on the route. There are some cases which hold the connecting carriers entitled to all exemptions and qualifications which the original carrier had secured for itself by special contract, thus limiting its common-law Hability.^^ Such was the case of Manhattan Oil Co. v. Camden & Amboy R. R. (1868) 52 Barb. (N. Y.) 72; but they go no further. Even in England the principle seems confined to cases where the first company has expressly contracted to deliver at the point of destina- tion ; and some learned judges reject it altogether. Redfield, supra. * * * Affirm.23 2 2 See Mears v. N. T., etc., R. Co., 75 Conn. 171, .52 Atl. 610, .'ifi L. R. A. 884, 96 Am. St. Rep. 192 (1902) ; Pittsburg, etc.. Ry. Co. v. Viers, 113 Kv. .o26, 68 S. W. 469 (1902) ; Kiflf v. Atchison R. Co., 32 Kan. 263, 4 Pac. 401 (1884). Compare Babcock v. Lal^e Shore R. Co., 49 N. Y. 491 (1872). 2 3 See, also, Halliday v. St. Louis, etc., Ry. Co., 74 Mo. 159, 41 Am. Rep. 309 (1881); U. S. Mail Line Co. v. Carrollton, etc., Co., 101 Ky. 658, 42 S. W. 342 (1897) ; Schopman v. Boston & W. R. Corp., 9 Cush. (Mass.) 24, 29, 55 Am. Dec. Ch. 7) SEVERAL PERSONS CONCERNED IN CARRIAGE. 255 SECTION 3.— PRESUMPTION AS TO CIRCUMSTANCES OF DAMAGE MOORE V. NEW YORK, N. H. & H. R. CO. (Supreme Judicial Court of Massachusetts, 1899. 173 Mass. 335, o3 N. E. 81 G, 73 Am. St. Rep. 298.) Holmes, J. This is an action by a passenger to recover for damage to her luggage, suffered somewhere in the course of a passage from Charleston, Tenn., to Boston. The passage was over six connecting railroads. It does not appear where the damage was done, and the plaintiff seeks to recover upon a presumption that the accident hap- pened upon the last road. The so-called "presumption" was started and justified as a true pre- sumption of fact that goods shown to have been delivered in good condition remain so until they are shown to be in bad condition, which happens only on their delivery. But it was much fortified by the argument that it was a rule of convenience, if not of ne- cessity, like the rule requiring a party who relies upon a license to show it. 1 Greenl. Ev. § ?9 ; Pub. St. c. 214, § 12. As we, in common with many other American courts, hold the first carrier not answerable for the whole transit, and not subject to an adverse presumption (Farmington Mercantile Co. v. Chicago, B. & Q. R. Co., 166 Mass. 154, 44 N. E. 131), it is almost necessary to call on the last carrier to explain the loss if the owner of the goods is to have any remedy at all. To do so is not unjust, since whatever means of information there may be are much more at the carrier's command than at that of a pri- vate person. These considerations have led most of the American courts that have had to deal with the question to hold that the pre- sumption exists. Smith v. Railroad Co., 43 Barb. (N. Y.) 225, 228, 229, affirmed in 41 N. Y. 620 ; Laughlin v. Railway Co., 28 Wis. 204, 9 Am. Rep. 493; Railroad Co. v. Holloway, 9 Baxt. (Tenn.) 188, 191; Dixon V. Railroad Co.. 74 N. C. 538 ; Leo v. Railway Co., 30 Minn. 438, 15 N. W. 872 ; Railway Co. v. Culver, 75 Ala. 587, 593, 51 Am. Rep. 483; Beard v. Railway Co., 79 Iowa, 518, 44 N. W. 800, 7 L. R. 41 (1851), connecting railroad held liable as a common carrier to through pas- senger, with which compare Keep v. Union, etc., Co. (C. C.) 9 Fed. 625 (1881), where a terminal company drawing a train to the station was held not liable as a common carrier to a through pa.«senger. Contra: So. Ex. Co. v. Shea, 38 Ga. 519 (1SG8). changed by statute; Mvt- ton V. Midland Ry. Co., 4 H. & N. 615 (1859) ; Coxou v. Gt. Western Ry. Co., 5 H. & N. 274 (1860). For damage not shown to have occurred upon its line, a carrier like that in the principal case is not liable to the shipper. Aigen v. B. & M. R., 132 Mass. 423 (1882). Though it has agreed with the initial carrier to divide dam- age that cannot be traced. Ches. & Ohio R. Co. v. Stock, 104 Ya. 97, 51 S. E. 161 (190^). ■256 THE carrier's undertaking. (Part 2 A. 280, 18 Am. St. Rep. 381 ; Railway Co. v. Harris, 26 Fla. 148, 7 South. 544, 23 Am. St. Rep. 551 ; Faison v. Railway Co., 69 Miss. 569, 13 South. 37, 30 Am. St. Rep. 577; Forrester v. Railroad Co., 92 Ga. 699, 19 N. E. 811. In the opinion of the court the weight of argument and authority is on that side. Mr. Justice Lathrop and I have not been able to free our minds from doubt, because we are not fully satisfied that the court has not committed itself to a different doctrine. Still it has not dealt with it in terms. In Darling v. Railroad Corp., 11 Allen, 295, the only question discussed was a question of contract. In Swetland v. Rail- road Co., 102 Alass. 276, the question was as to frozen apples. It ap- peared that the weather had been very cold before delivery to the •defendant. The presumption was not mentioned. These are the two nearest cases. Judgment for the plaintiff.-* 24 See, further. 101 Am. St. Rep. 392. note; Smith v. N. Y. Cent. R. Co., 43 Barb. (N. Y.) 225 (1804) ; Lauffhliu v. Chicago & X. W. Ry. Co.. 28 Wis. 204, 9 Am. Rep. 493 (1871). boxes rifled; Gulf. etc.. Ry. Co. v. Jones, 1 Ind. Ter. 354, 37 S. W. 208 (1896), carrier liable by bill of lading only for damage proved to have happened on its own line ; Willett v. So. Ry. Co., G6 S. C. 477, 45 S. E. D3 (1903). first carrier a citv expressman. Contra: Rolfe v. Lake "Shore, etc., Rv. Co., 144 Mich. 1G9, 107 N, W. 899, 115 Am. St. Rep. 3,S8 (190G). The presumption does not arise unless there is proof of the condition of the goods when shipped. In Lake Erie & W. Ry. Co. v. Oakes, 11 111. App. 489 (1882), McCulloeh, J., said: "It devolves upon the plaintiff to show by a pre- ponderance of evidence that the goods were injured while in defendant's hands. * * * But it is not shown by the evidence over what road the.v were first shipped, nor in what condition they were when delivered to that road. The only evidence touching their condition is that furnished by the wife of appellee, who testifies they were in good condition when packed at her house before shipment. This is too remote. To charge appellant in any event it must at least appear they were in good condition when delivered to the first carrier on the route." The presumption does not arise unless there is proof that the shipment came into the defendant carrier's possession. Kessler v. N. Y, C. R. Co., 61 N. Y. 5.38 (1875) ; Atchison, etc., Co. v. Roach. .35 Kan. 740, 12 Pae. 93, 57 Am. Rep. 199 (18S6). But if a carrier delivers only part of a shipment, the pre- sumption is that the loss of the rest occurred on his line. Faison v. Ala., etc., Rv. Co.. 69 Miss. 569, 13 South. 37, 30 Am. St. Rep. .577 (1891) ; Owvn Harper Co. V. Carolina R. Co., 128 N. C. 280. 38 S. E. 894. ,83 Am. St. Rep. 675 (1901) ; St. Louis S. W. Ry. Co. v. Birdwell. 72 Ark. 502, 82 S. W. 835 (1904). It does not relieve the last carrier to show tliat part of the loss or damage oc- curred before the goods came to him. without showing what part. Railway Co. V. Edloff, 89 Tex. 454, 34 S. W. 414, 35 S. W. 144 (1896). The presumption may be invoked against any carrier in the series in whose liands the goods are shown to have been in damaged condition. Gulf, etc., Ry. Co. v. Pitts, 37 Tex. Civ. App. 212. 83 S. W. 727 (1904). Or, it has been held, In sound con- dition. Meredith v. R. Co., 137 N. C. 478, 50 S. E. 1 (1905), and cases there cited. In some states the presumption against the last carrier is by statute made TUider certain circumstances conclusive. See So. Ry. Co. v. Waters, 125 Ga. .520, 54 S. E. 620 (1906); Vincent v. Yazoo, etc., Ry. Co., 114 La. 1021. 38 South. 816 (1905) ; Russell v. Mobile & O. R. Co.. 87 Miss. 806, 40 South. 1015 (1906); Willett v. So. Ry. Co., 66 S. C. 477, 45 S. E. 93 (1903) ; Goldstein v. Sherman, etc., Ry. Co., 25 Tex. Civ. App. 365, 61 S. W. 336 (1901). PART III THE OBLIGATION OF THE SHIPPER CHAPTER I FREIGHT SECTION 1.— WHO IS LIABLE FOR FREIGHT NICHOLLS & MORE. (Court of Common Pleas, 1661. 1 Sid. 36.) The defendant being a water carrier between Hull and London, the plaintiff delivers goods to him at York to carry them from Hull to London, and the goods being lost the plaintiff brings action upon the case and found for him, and it was moved in arrest of judgment (1) that he did not agree with the carrier to carry them for a sum certain ; (2) the agreement was made for their carriage between Hull and Lon- don and the defendant had not taken upon himself to convey them from York to Hull. But this notwithstanding, by The; Whole Court. — The defendant shall be charged upon his general receipt at York in accordance with Southcote's Case [-i Coke, 84], though he says nothing about carrying them to Hull. And as to the other matter, that they have not agreed for a sum certain for carriage between Hull and London it was said by the court that it is not necessary, for the carrier may declare upon a quantum meruit like a tailor, etc. And therefore he shall be held lia- ble, and judgment for the plaintiff.^ 1 Ace. Gumm v. Tyrie, 4 B. & S. GSO (1864). "shall pay for freight." See 2 Harvard Law Rev. 59. For freight ou articles not within the contract of carriage, see ante, p. 99, note. The interstate commerce act provides that it shall be unlawful for a car- rier subject to its provisions to charge, demand, or receive a different rate from that published in his schetlule. Such a carrier may enforce payment of the schedule rate, though he has agreed with a shipper ignorant of tiie sched- ule to carry for less. Texas & P. R. Co. v. Mugg. 202 U. S. 242. 26 Sup. Ct. 628. 50 L. Ed. 1011 (1906). For state statutes similarly construed, see Hauri- gan V. Chicago, etc., Co., 80 Neb. 139, 117 X. W. 100 (1908). Under the Illinois statute, which imposes a fine for unjust discrimination, a railroad which Gkeen Caer.— 17 (257) 258 THE OBLIGATION OF THE SHirPER. (Part 3 WOOSTER V. TARR. (Supreme Judicial Court of Massachusetts, 1SG4. 8 Allen, 270.) Contract to recover for the carriage of mackerel from Halifax to Boston. It was agreed in the superior court that the defendants shipped the mackerel at Halifax, upon a vessel of which the plaintiffs were part owners, said Wooster being master, under a bill of lading in the usual form, to be delivered at Boston "unto Messrs. R. A. Howes & Co., or to their assigns, he or they paying freight for said goods," etc. On the arrival of the vessel at Boston, Wooster was informed by Howes & Co. that the mackerel had been sold "to arrive,"' to a person to whom they requested him to deliver them. The mackerel were accordingly delivered, and payment demanded of Howes & Co., but refused. Howes & Co. were then and still are insolvent. The mack- erel, at the time of their delivery on board the vessel, had been purchas- ed and paid for by the defendants for and on account of Howes & Co., at whose risk they were after shipment; but this fact was un- known to the plaintiffs. -The mackerel were entered at the custom house in Halifax in the name of the defendants. Upon these facts judgment was rendered for the plaintiffs, and the defendants appealed to this 'COurt. BiGELOW, C. J. The question raised in this case is very fully dis- cussed in Blanchard v. Page, 8 Gray, 281, 286, 290-295. It is there stated to be the settled doctrine that a bill of lading is a written simple contract between a shipper of goods and the shipowner; the latter to carry the goods, and the former to pay the stipulated compensation when the service is performed. Of the correctness of this statement there can be no doubt. The shipper or consignor, whether the owner of the goods shipped or not, is the party with whom the owner or mas- ter enters into the contract of affreightment. It is he that makes the bailment of the goods to be carried, and, as the bailor, he is liable for the compensation to be paid therefor. The dictum of Bayley, J., in Moorsom v. Kymer, 2 M. & S. 31§, subsequently repeated by Lord Tenterden in Drew v. Bird, Mood. & Malk. 156, that in the absence of an express contract by the shipper to pay freight, when the goods are by the bill of lading to be delivered on payment of freight by the consignee, no recourse can be had for the price of the carriage to the shipper, has been distinctly repudiated, and cannot be regarded as a correct statement of the law. Sanders v. V"an Zeller, 4 Q. B. 260, 284 ; Maclachlan on Shipping, 426. It is contended, on the part of the defendants, that the omission of the master to collect the freight of the consignees of the cargo or their agrees to carry for an unjustly favored shipper at a low rate can collect only the rate agi-eed. 111. Cent. R. Co. v. Seitz, 214 111. 350, 73 N. E. 585, 105 Am. St. Rep. 108 (1905). Ch. 1) FREIGHT. 259 assigns, under the circumstances stated, was a breach of good faith towards the shippers, which operates as an estoppel on him and the other owners of the vessel, whose agent he was, to demand the freight money of the defendants. But there are no facts on which to found an allegation of bad faith against the master. He did no act con- trary to his contract or inconsistent with his duty towards the ship- pers. It is true that he omitted to enforce his lien on the cargo for the freight, by delivering it without insisting on payment thereof by the consignees. This was no violation of any obligation which he had assumed towards the defendants as shippers of the cargo. A master is not bound at his peril to enforce payment of freight from the con- signees. The usual clause in bills of lading that the cargo is to be de- livered to the person named or his assignees, "he or they paying freight," is only inserted as a recognition or assertion of the right of the master to retain the goods carried until his lien is satisfied by pay- ment of the freight, but it imposes no obligation on him to insist on payment before delivery of the cargo. If he sees fit to waive his right of lien and to deliver the goods without payment of the freight, his right to resort to the shipper for compensation still remains. Shepard v. De Bernales, 13 East, 565 ; Domett v. Beckford, 5 B. & Ad. 521, 525 ; Christy v. Row, 1 Taunt. 300. Although the receipt of the cargo under a bill of lading in the usual form is evidence from which a con- tract to pay the freight money to the master or owner may be infer- red, this is only a cumulative or additional remedy, which does not take away or impair the right to resort to the shipper on the original contract of bailment for the compensation due for the carriage of the goods. Judgment for the plaintiffs.^ CENTRAL R. CO. OF NEW JERSEY v. MACCARTNEY. (Supreme Court of New Jersey, 1902. 68 N. J. Law, 16.5. 52 Atl. 575.) Certiorari to review a judgment for plaintiff. On the trial below the following facts were found by the court : The Seaboard Company at Brooklyn shipped to the defendants at points in New Jersey a quan- tity of railroad ties which defendants had purchased of them. The ties were carried on lighters across the harbor and then transferred to cars of the plaintiff railroad company, which delivered them to defend- ants at destination, at the same time presenting bills for freight and lighterage charges which defendants several days afterward paid. 2 Ace. Collins v. Union Tr. Co.. 10 Watts (Pa.) 384 (1840). And see Spencer V. White. 23 N. C. 236 (1840) ; Gilson v. Madden. 1 Laus. (X. Y.) 172 (1SG9), freiiilit tendered by consignee refused by carrier. But see Thomas v. Snider, 39 Pa. 317 (ISOI). Compare Uuiou R. Co. v. Winliley, 159 Mass. 133, 34 N. E. 91, 38 Am. St. Rep. 398 (1893). 260 THE OBLIGATION OF THE SHIPPER. (Part 3 Subsequently plaintiff found that by a mistake of its clerk the lighter age charges as entered in the bills were $1G2 smaller than they should have been. Plaintiff paid the lighterman his charges in full, demanded of defendants so much of those charges as defendants had not already paid, and on defendants' refusal brought this action therefor. There seems to have been an understanding between the shipper and the plaintiff, based on usage, that the purchaser was to pay the carrier's charges and might settle for them with his seller by deducting their amount from the purchase price. It did not distinctly appear whether or not defendants knew this. Further facts appear in the opinion. PiTXEY, J.^ * • * * jj^ ^\yQ absence of some agreement on the part of defendants, either express or implied, there is, in our opinion, nothing to support the present action. The mere existence of the re- lation of carrier and consignee is not enough to establish an obligation upon the latter to pay the transportation charges. Prima facie, the consignor of freight, who contracts with the carrier for its shipment, is liable to pay the charges of transportation. It is by him that the engagement is made with the carrier. It is for him that the service is performed. The question of his liability, however, is in each in- stance dependent upon the terms of the agreement actually made be- tween him and the carrier. Whether the consignor is shipping for his own account, or as agent of another; whether he is owner of the goods ; whether by the agreement between him and the consignee the title to the goods passes to the latter at the time of delivery to the car- rier, or upon delivery to the consignee — these and other like circum- stances have been discussed in the adjudicated cases as evidential upon the question of consignor's liability to the carrier for the freight. In the present case the facts leave no room to doubt the consignor's original liability. Not only did the Seaboard Company, through its agent, engage the transportation, and agree with the plaintiff's agent about the terms thereof ; not only was this done without the knowl- edge or participation of the defendants ; but by the very terms of sale the ownership of the ties was to remain in the consignor until their delivery at Dunellen and Bound Brook, respectively; and of this the carrier had notice, as will be shown presently. The freight charges being unpaid in advance by the consignor, the carrier was, of course, entitled to a lien upon the goods for the amount of the freight. It was not obliged to make delivery to the consignees until these charges were paid. In such a case, if the lien is waived, and the goods deliv- ered to the consignee, accompanied w-ith notice to him of the amount of the charges remaining unpaid, the decisions hold that acceptance of the goods under such circumstances either amounts to an agree- ment to pay the freight, or at least is evidence from which such an agreement may properly be inferred. But acceptance by the con- 3 The statement of facts has been rewritten, and parts of the opinion are omitted. Ch. 1) FREIGHT. 261 signee, although accompanied by an undertaking to pay the charges, does not discharge the consignor from HabiHty to the carrier. The two contracts are held to be independent, and not inconsistent one with the other. The above propositions, so far as they affect the consignor's liability, were fully discussed in the case of Grant v. Wood, 21 N. J. Law, 292, 47 Am. Dec. 162. Upon the general question the following additional decisions may be referred to : Cock v. Taylor, 13 East, 399 ; Shepard V. De Bernales, 13 East, 565 ; Wilson v. Kymer, 1 Maule & S. 157 ; Sanders v. A'an Zeller, 4 Adol. & E. (X. S.) 260; Wegener v. Smith, 15 C. B. (80 E. C. E.) 285; Barker v. Havens, 17 Johns. (N. Y.) 234, 8 Am. Dec. 393 ; Merrick v. Gordon, 20 N. Y. 93-97 ; Davis v. Patti- son, 24 N. Y. 317 ; Dart v. Ensign, 47 N. Y. 619 ; Davison v. Bank, 57 N. Y. 81; Elwell v. Skiddy, 77 N. Y. 282; Railroad Co. v. Whit- cher, 1 Allen (Mass.) 497; Finn v. Railroad Corp., 112 Mass. 524, 17 Am. Rep. 128 [ante, p. 176] ; Railroad Co. v. Wilder, 137 Mass. 536; Railroad Co. v. Winkley, 159 Mass. 133, 34 N. E. 91, 38 Am. St. Rep. 398; 55 Am. & Eng. R. Cas. 695. Upon reason, as well as by the great weight of authority, it seems entirely clear that the liability of the consignee to pay to the carrier the freight upon the goods transported, in a case such as is here pre- sented, depends not upon any general legal duty resting upon a con- signee simply because he is consignee, but upon some agreement or undertaking made by the consignee. Where one accepts delivery of goods from a common carrier, receiving at the same time a statement plainly setting forth the amount of freight charges thereon, with knowledge that the carrier is giving up for the benefit of the consignee a lien upon the goods for the amount so stated, such conduct by the consignee is, of course, cogent evidence, and, standing unexplained and uncontradicted, is sufificient evidence of an implied promise to pay the amount of the stated charges. Such an undertaking was undoubt- edly made by the defendants in this case. That undertaking has been performed by them. But we fail to see in the facts, as certified to us by the trial court, anything to support a finding that the defendants, by anything that transpired at or after the delivery of the ties, under- took and promised to pay freight charges indefinite in amount, or any sum beyond that which was stated on the bills as rendered. If the plaintiff, the railroad company, instead of waiving its lien, had insisted upon retaining the ties until payment of the freight, at the same time rendering to defendants the freight bills as in fact they were rendered, and if the defendants had thereupon paid the bills in order to secure the ties, could a further liability be imposed upon them simply on the ground that the bills, as rendered, did not include the entire charges? We think not. In such case the plaintiff would have been left to its action against the consignor, as the party on whose engagement the service was performed. 262 THE OBLIGATION OF THE SHIPPER. (Part 3 But, secondly, whether the defendants were or were not originally cognizant of the terms of shipment, so as to be bound in the first instance to pay the just amount of transportation charges, the plain- tiff is, in our opinion, estopped from demanding any greater sum than was demanded when the ties were delivered. * * * By means of the representations of the plaintiff the defendants were led to change their position. Not that payment of the freight bills would have com- pleted the estoppel. But when the defendants, in reliance upon the correctness of the freight bills, after paying them and receiving the plaintiff's receipts therefor, proceeded in good faith to close accounts with their consignor, deducting the freight bills as agreed, and paying over the balance due for the ties, the estoppel was complete. For it appears that thereby the defendants parted with the very fund against which alone they had a right to charge the freight. * * * Let the judgment below be reversed, and final judgment be entered in favor of the defendants, with costs.* SECTION 2.— WHEN FREIGHT IS EARNED CLARK V. PIASTERS. (Superior Court of City of New Yorlc, IS-jT. 1 Bosw. 177.) Action for the wrongful detention of wheat. Defendants were warehousemen, with whom the wheat had been stored by Fitzhugh & Littlejohn, common carriers by canal boat, who, on arrival of the cargo at destination, had refused, under circumstances stated in the 4 In Wliite T. Furness. flSOril A. C. 40. 4.^. wliere a statute deprived tlie ship- owner of liis lien for freight, Lord Ilershell. L. C. said: "As soon as the shi])- owner's lien is discharged he ceases to have any right to the goods which lie in the warehouse. They are not his property : the only right which he ever had to them Avas a right of lien. * * * How, then, can the receipt of the goods hy the agent of the owner from the dock company, who are legally bound to deliver them, give rise to any inference of a promise, or afford the consideration for any promise by the consignee to pay freight to the ship- owner?" See. also, N. Y. & N. E. R. Co. v. Sunders, 134 Mass. TiS (1883). consignee notified by carrier not to take goods withont paying freight : Old Col. R. Co. V. Wilder. 137 ^Nlass. 030 (1884), consignee not aware that carrier looked to him for freight; Dart v. Ensign, 47 X. Y. 619 (1872), consignee known to take as agent only. The assignment of the contract of carriage by indorsement and delivery of a bill of lading to order, though made to a buyer of the goods, does not im- pose on the assignee a liability for freight. See Sanders v. Vanzeller, 4 A. & E. (N. S.) 200, 295 (1843), changed in England by statute, Bills of Lading Act 1-8.55. 18 & 19 Vict. 111. Nor does it render the indorser liable though the in- dorsee receives the goods. See Burton v. Strachan, 3 E. D. Smith (X. Y.) 192, note (1854). Ch. 1) FREIGHT. 263 opinion, to deliver it to plaintiffs, the consignees. Defendants refused to deliver unless they were paid, not only freight, but storage charges. DuER, J.^ * * * There is plainly only one ground upon which the refusal of Littlejohn to deliver the wheat upon the terms proposed can be vindicated, namely: That in giving notice to the plaintififs of the arrival of the wheat, he had done all he was bound to do, and was entitled to demand the payment of the whole freight and charges, be- fore any part of the cargo was moved ; that the notice, in other words, was equivalent to actual delivery. The law was thus laid down by the learned judge upon the trial, and he founded on it a positive direction to the jury to find a verdict for the defendants. * * * The law, by a very reasonable exception, releases the master of a vessel, in which the goods to be delivered are transported, from the duty of seeking out the owner or consignee, and making to him personally an actual delivery or tender of a delivery, but in his case holds it to be sufficient that he gives a written notice to such owner or consignee of the arrival of the vessel, and of the place where the goods will be landed, and their delivery be made, thus casting upon the consignee the duty of attending at the place so designated, of receiving there the delivery of the goods, and paying the freight for their transpor- tation. We think, however, that we are entirely safe in saying that there is no authority, nor semblance of an authority, for the position that the notice, by the master of a vessel, of the place where he intends to deliver the goods, has the same eflfect as an actual personal delivery or tender by an ordinary carrier, so as to give to the party in the one case as well as in the other, an immediate right to demand the payment of the freight. We believe the doctrine to be absolutely novel. We are certain it would be most unreasonable. The ordinary carrier, in tendering the goods themselves, does all that the law can require him to perform, all indeed that he can do, to entitle him to his freight. The master, in giving notice to the consignee, performs only a part of the duty that he is bound to perform, to render his demand of freight con- sistent with law or reason. It is a serious mistake to suppose that the payment of freight is a condition precedent to the delivery of the cargo in the sense that has been contended for; that is, precedent even to the discharge of the cargo. The discharge or unlading of the cargo is a duty that the law casts upon the master, the whole labor and expense must be borne by him or his owner. To enable him to deliver the cargo, this 'duty of un- lading it must first be performed, and its performance is as truly a condition precedent to the constructive "delivery of the goods by a ten- der, as to their actual, by a change of possession. The payment of freight and the delivery of the goods are simul- 5 The statement of facts has been rewritten, and parts of the opinion are omitted. 264 THE OBLIGATION OF THE SHIPPER. (Part 3 ' taneous and concurrent acts ; neither, strictly speaking, is a condition precedent to the other. As in the case of the dehvcry of a deed, and the payment of the purchase money agreed to be made on the same day, they are conditions mutually dependent. The consignee is not bound to pay the freight until the goods are delivered, nor the master to deliver the goods until the freight is paid. If the goods are with- held the freight must be tendered, if the freight, the goods, to enable either party to maintain an action against the other, for a breach of contract.^ Hence, in the present case, if the master was not in a con- dition to make an immediate delivery of the wheat, he could have no right to demand the payment of freight ; and he certainly could make no delivery that the plaintiffs were bound to accept, so long as the wheat remained on board his vessel, and the duty of discharging it rested upon him. Thus the allegation that the notice which the mas- ter had given was alone sufficient to justify his demand of freight, it seems to us, is proved to be groundless. It evidently escaped the at- tention of the learned judge who tried this cause, and, perhaps, of the counsel, that to discharge the cargo is a duty that belongs to the mas- ter, and his performance of it, unless otherwise agreed, a condition precedent to his claim for freight. But there are other, and very conclusive, reasons for holding that the claim of the master, in the present case, for the whole freight, before the wheat, or any portion of it, was delivered or offered to be delivered, cannot be sustained. We apprehend that it is now settled law, that the owner of goods is not bound to accept their delivery, and pay the freight, until he has had an opportunity of ascertaining how far they correspond in quantity and description with the bill of lading, and of examining into their actual state and condition. He has a right to deduct from the usual or stipulated freight any damage which the goods may have received on the voyage, not imputable to the perils of navigation ; and also, any deficiency from the quantity mentioned in the bill of lading;^ and it is evident that, to enable him to exercise this important right, an examination, prior to the payment of freight, is indispensable. If all the facts, necessary to be known by the owmer, can be ascertained by him before an unlading of the cargo, the examination may then be had ; but if not, the goods must be un- laden at the expense of the master, and placed in a situation to enable the owner effectually to exercise his rights. This right was very c "Where two acts are to bo concurrent, there must be a concurrent readi- ness on both sides — on the one to deliver, and on the other to pay. Each party is entitled to see that the other is ready to do his part, and it is for the jury to say which is in default." Per Montague Smith, J., in Paynter v. .James, L. R. 2 C. P. 348, 3.57 (1S(37). For the application of the rule where the con- signee tenders too little and the carrier demands too much, compare The Nor- way. B. & L. 404 (1865), with Loewenberg v. Railway Co., uG Ark. 430, 19 S. W. 1051 (1892). 7 See post, p. 277, note. Ch. 1) FREIGHT. 265 distinctly claimed by the plaintiffs in the present case, and as plainly denied by the master — denied by his refusal to place the ^vheat in a situation in which it could be examined, unless the whole freight were previously paid. It is true he offered to deliver the wheat, bushel by bushel, receiving a pro rata freight for each bushel as delivered ; but it is very clear that this was not an offer to which the plaintiffs were bound to accede. The contract of affreightment, in respect to each consignment, is entire, and no portion of the freight is due until the whole consign- ment is delivered. The master has no right to divide and split up the consignment into as many lots or parcels as he may deem convenient, making as many contracts as there are parcels, and as many freights as there are contracts. The freight, when payable, is payable as a whole, and it is not payable until all the goods to which it relates have been delivered or tendered.® * * * It is said that the unlading of the wheat, for the purpose of ascertaining its quantity, would have been attended with great labor and expense ; but if this unlading was a duty which the carriers undertook to perform, if its performance was necessarily implied in their contract to transport and deliver the wheat, the question of its labor and expense was plainly immaterial. We are bound to presume that they were taken into consideration in fixing the amount of the freight. * * * The plaintiffs offered, at their own expense, to provide a lighter, and that the carriers should retain their possession, and consequently their lien, until the freight was ascertained and paid. It was the manifest duty of the master and his owner, Littlejohn. to have complied with this offer, by unlading and delivering the wheat in conformity to its terms ; their refusal to com- plv with it was in effect a refusal to deliver the wheat at all. It was a breach of their contract, amounting in law to a wrongful conver- sion to their own use of the property they had undertaken to deliver, and the defendants, by refusing to surrender to the plaintiff, upon re- quest, the property thus wrongfully converted, were guilty of its wrongful detention. Upon the evidence on the trial, the plaintiffs were entitled to a verdict for its full value. The verdict for the defendants must therefore be set aside, and there must be a new trial, with costs to abide the event.® 8 Ace. 170 Tons of Coal. 9 Ben. 400. Fed. Cas. No. 10..^22 (1878) ; Wayne, J., in Brittan v. Barnaby. 21 How. .527. 16 L. Fa\. 177 (18.58); 1,26-5 Vitrified Pipes, 14- Blatchf. 274, Fed. Cas. No. 10.-536 (1877). semble. 9 In Moeller v. Young. 5 E. & B. 7, 19 (18-55). consignees who refused to pay freight for that part of the cargo which they had received, the rest being still on the vessel, were held liable for resulting delay. Lord Campbell. C. J., said: "The question, therefore, becomes whether the master was bound to de- liver all the goods before he was iiaid for any. Now, as the delivery and payment should be concurrent acts, if each party stood on his summum jus, a difficulty might arise as to the mode of carrying out the contract. But a reasonable way may be found of performing it. Although part has been de- livered, the master may decline to deliver the residue till the freight is paid. Therefore it is true that the master has always been ready to deliver, and that 266 THE OBLIGATION OF THE SHIPPEB. (Part 3 WESTERN TRANS P. CO. v. HOYT. (Court of Appeals of New York, 1S87. 69 N. Y. 230. 25 Am. Rep. IT-j.) Appeal from a judgment entered on a nonsuit. Plaintiff sued as a common carrier for freight and charges on a cargo of 14,650 bushels of oats carried on his canal boat for defendants from Buffalo to New York. By the bill of lading the consignees were to discharge the cargo within three days after arrival and notice thereof or pay demur- rage. The boat arrived in November. Defendants removed -5,000 bushels of oats and then stopped. The three days to finish discharge would have expired Tuesday at midnight, but plaintiff at 6 p. m. took the boat to Brooklyn and stored the rest of the oats with one Barber. In March Barber delivered them to the defendants. In an action by plaintiff against Barber for so delivering, it had been held that under the circumstances plaintiff converted the oats by storing them, and lost his lien for freight. Church. C. J.^° The decision in the case of the present plaintiff* against Barber, 56 N. Y. 544, disposes of some of the questions in- volved in this case. * * * The construction of the bill of lading, the character of the act of the plaintiff in storing the oats, and the effect of the act upon its rights to a lien for freight must be regarded as adjudged and settled in the case referred to. * * * It is urged that the defendants' taking possession of the property entitled the plaintiff to the freight. There is some apparent plausibility in equity in this position, but it must be observed that a delivery to the consignees is as much a part of the contract as the transportation. Mr. Angell, in his w^ork on Carriers, says : "It is not enough that the goods be carried in safety to the place of delivery, but the carrier must, and without any demand upon him, deliver, and he is not entitled the defeiKlants have entered into a contract to accept, which has been broken." In Henderson v. 300 Tons of Iron Ore (D. C.) 38 Fed. 3G (18S0), Brown. J., said: "When the payment of freiglit and delivery of the cargo, as a whole. are by the legal rule made concurrent acts, great practical difficulties arise, if the quantity is large and each side stands on its legal rights. The amount may be so gi-eat that part of the cargo may have to lie removed before the rest is discharged; and if the consignee refuses to ]\ay pro rata freight on what is removable, or to give security for payment, the ship is not bound to deliver piecemeal, and may remove and store such parts as are necessary to be removed at the consignee's expense." See, also, Brittan v. Barnaby, 21 How. 527, 16 L. Ed. 177 (1858). "In the absence of any custom to govern the matter, the person who wants to ascertain the quantity must incur the trouble and expense of weighing. It is by no means an uncommon thing to have goods weighed on board : but I never heard of the merchant being called upon to pay for it." Willes, J., in Coulthurst V. Sweet. L. R. 1 C. P. 649 (1866). "It was the ship's duty, therefore, to ascertain the weight, because she could not lawfully continue to hold possession of the cargo after the con- signee was ready to receive it, without informing him as soon as reasonably practicable, of the amount of freight to be paid." Brown, J., in Henderson v. 300 Tons of Iron Ore, supra. 10 The statement has been rewritten, and parts of the opinion are omitted. Ch. 1) FREIGHT. 267 to freight until the contract for a complete delivery is performed." Sec- tion 282. When the responsibility has begun, it continues until there has been a due delivery by the carrier. Id., note 1, and cases cited. Parsons on Shipping, 220. And in this case, the bill of lading ex- pressly requires the property to be transported and delivered to the consignees. The delivery was as essential to .performance as transpor- tation to New York, and it is a substantial part of the contract. The plaintiff might as well, in a legal view, have stopped at Albany, or any other intermediate port, and stored the grain, as to have stored it in Brooklyn. In either case he could not aver a full performance, nor that he was prevented by the defendants from performing. It follows that he cannot recover upon the contract.^ ^ Performance is a condi- tion precedent to a recovery. As said by Lord Ellenborough in Lid- dard v. Lopes, 10 East, 526 : "The parties have entered into a special contract by which freight is made payable in one event only, that of a right delivery of the cargo according to the terms of the contract, and that event has not taken place, there has been no such delivery, and consequently the plaintiff is not entitled to recover." As the plaintiff cannot recover under the contract, if he has any 11 Ace. Holliday v. Coe. 3 Ind. 20 (ISTA). cargo lost by sinking: Atlantic Mut. Ins. Co. V. Bird,"^ 2 Bosw. lO.'j (18.57), vessel wrecked near destination, cargo brought to destination by cargo owner ; China Ins. Co. v. Force. 142 N. Y. 90, 36 n! E. 874, 40 Am. St. Rep. .576 (1894). owners of cargo on vessel wrecked near destination entitled to proceeds without deduction for freight ; The Nathaniel Hooper, 3 Sumn. 542, Fed. Cas. No. 10,032 (1839) ; The Industrie, [1S94] P. .58. cargo justifiably sold at port of distress ; Metcalf v. Brittauia Co., 2 Q. B. D. 423 (1877). port of destination blocked by ice, c-irrier insisted on delivering as near thereto as vessel could get ; Lane v. renninian, 4 Mass. 91 (1808), delivery by one who had dispossessed carrier. And see Tirrell v. Gage, 4 Allen (:\Iass!) 24.5 (18(52) ; Harris v. Rand. 4 N. H. 5.5.5 (1829), goods destroyed after being discharged and ready to delirer, but before consignee had time to take: Duthie v. Hilton, L. R. 4 C. P. 138 (1868). "freight to be paid within three days after arrival and before delivery," and goods destroyed on board vessel at anchor in harbor the night after her arrival. In Stewart v. Rogerson, L. R. 6 C. P. 424 (1871), a question arose as to a carrier's right to sue for freight on cargo which, in a suit in admiralty against the carrier, had been attached for the purpose of reaching the interest represented by the carrier's lien for freight. The cargo owner might have dis- charged the attachment and obtained his goods by paying the freight into court. Brett. J., said: "It is clear the plaintiff is not entitled to recover the freight as freight. * * * Once seized, the freightei- could not get his goods by going to the ship and paying the freight. I think he was not bound to go to the achniraltv court and pay it there." "If a Ship be freighted out and in. there arises due for Freight, nothing, till the whole Voyase be perfonned: So that if the Ship die. or Is cast away com- ing home, the Freight outwards, as well as inwards becomes lost." ^lolloy, De Jure Maritimo. bk. II, c. 4, § 9. Ace. Donahoe v. Kettell, 1 Cliff. 135, Fed. Cas. No. 3.980 (1858). Compare Aldrich v. Cargo of Coal (D. C.) 117 Fed. 757 (1902), goods delivered after vessel had sunk: Barnett v. Cent. Line, 51 Ga. 4.39 (1874), goods carried part way by trespasser ; Cargo ex Argos, L. R. 5 P. C. 1.34 (1.S73), cargo ready to deliver, but, because no one appeared to take, vessel had to sail away with it; Clendaniel v. Tuckerman, 17 Barb. 184 (18.53), cargo owner prevented discharge of cargo by wrongfully, though temporarily, obstructing the wharf, and after the lapse of a time ordinarily sutRcient for the unloading and receipt of the goods, they were accidentally destroyed while still on board. 268 THE OBLIGATION OF THE SHiprER. (Part 3 claim for freight it is only for pro rata freight, which is sometimes allowed, when the transportation has been interrupted or prevented by stress of weather or other cause. In such a case, if the freighter or his consignee is willing to dispense with the performance of the whole voyage, and voluntarily accept the goods before the complete service is rendered, a proportionate amount of freight will be due as "freight pro rata itineris."' This principle was derived from the ma- rine law, and it is said that the common law presumes a promise to that effect as being made by the party who consents to accept his goods at a place short of the port of destination, for he obtains his property with the advantage of the carriage thus far. The principle is based upon the idea of a new contract, and not upon the right to recover upon the original contract. The application of this principle has been considerably modified by the courts. In the early case of Luke v. Lyde, 2 Burr. 889, a contract was in- ferred from the fact of acceptance, and the rule was enunciated with- out qualification that from such fact, without regard to the circum- stances, and whether the acceptance was voluntary or from necessity, a new contract to pay pro rata freight might be inferred. Some later English cases, and the earlier American cases, apparently followed this rule ; but the rule has been in both countries materially modified, and it is now held that taking possession from necessity to save the prop- erty from destruction, or in consequence of the wrongful act of the freighter, as in Hunter v. Prinsey, 10 East, 394, and in 13 M. & Wels. 229, where the master caused the goods to be sold, or when the carrier refused to complete the performance of his contract, the carrier is not entitled to any freight. Parke, B., in the last case, stated the rule with approval, that to justify a claim for pro rata freight there must be a voluntary acceptance of the goods at an intermediate port, in such a mode as to raise a fair inference that the further carriage of the goods was intentionally dispensed with;^- and Lord Ellenborough, 12 In the case here referred to, Vlierbooin v. Chapman, 1.3 Mees. & W. 2.30 (1844), rice so damaged by sea water that it would have been worthless If carried to destination was sold by the master at a port of distress. The ship- owner claimed freight pro rata. Parke. B.. said: "It was conceded that the tiiie principle upon which this description of freight is due is that a new con- tract may be implied to pay it. from the acceptance by the consignee of his goods delivered at an intermediate port, instead of the destined port of de- livery. * ♦ * But it was said that * * * necessity imposed upon the master the character of an agent for the shipper, in addition to his ordinary one of agent for the shipowner, and that, having that doul^le agency, he might be presumed to have inttnuled to mai^e a reasonable contract between his two principals ; that is. on behalf of the shipowner, to give up the goods at the Intermediate port, instead of carrying them on, and on behalf of the shipper, to receive them there, and pay reasonable freight for the part of the voyage already performed. It is difhcult to conceive any conjuncture in which such a presumption could be made ; for the agency of the master from necessity arises from his total inability to carry the goods to the place of destination, which dispensed with the performance of that primary duty altogether, and the right to freight pro rata from the presumed waiver on the part of the ship- Ch. 1) FREIGHT. 269 in Hunter v. Prinsey, supra, said : "The general property in the goods is in the freighter; the shipowner has no right to withhold the pos- session from him unless he has either earned his freight or is going on to earn it. If no freight be earned, and he decline proceeding to earn any, the freighter has a right to the possession." Thompson, C. J., in 15 J. R. 12, said: "If the shipowner will not or cannot carry on the cargo, the freighter is entitled to receive his goods without paying freight." It is unnecessary to review the au- thorities. The subject is considered in Angell on Carriers, § 402 to 409, and Abbott on Shipping (5th Am. Ed.) 547, and in the notes and numerous cases referred to, and the rule as above stated seems to have been generally adopted by nearly all the recent decisions, and its man- ifest justice commends itself to our judgment. In this case no infer- ence of a promise to pay pro rata or any freight can be drawn. The circumstances strongly repel any such intention. The carrier doubt- less acted in accordance with what it believed to be its legal rights, but the act of storing was a refusal to deliver, and, as we held in the Barber Case, supra, a wrongful act amounting to conversion, quite equal in effect to the sale of the goods in the cases cited. The carrier must therefore be regarded as refusing to deliver the oats. Neither the owner nor his consignee intended to waive a full performance or per of the performance of a cTnty which the master was ready to execute. * * * But if we suppose that he had a further authority, aud that, instead of being the master, he had been supercargo, aud that his sale of the goods had been equivalent to a sale by the defendants themselves, present at the Mauritius, tJiere would have been no reasonable ground to infer a new con- tract to pay freight pro rata ; for the shipowner was not ready to carry for- ,ward to the poi-t of destination in his own or another ship, and consequently no inference could arise that the shippers were willing to dispense with the- further carriage and accept the delivery at the intermediate instead of the destined port." In Hopper v. Burness, 1 C. P. D. 137 (1876), cargo coal .iustifiably sold at a port of distress to raise money for necessary repairs to the ship fetched more than it would have brought at destination. It was held that the carrier must account to the shipper for the entire proceeds without deduction for pro rata freight. "The cotton reached the Morgan Line Pier in New York, and on February ~2S, 1887, while certain portions of the shipments were either on the pier or on partially loaded lighters alongside the pier, a fire occurretl, by which some T>f the bales were destroyed aud other bales were injured to such an extent that, instead of being reconditioned and forwarded to destination, they were sold here. * * * As to each damaged bale, therefore, there arose the ques- tion whether it should be reconditioned and forwarded or sold for the benefit of all concerned. It appears from the evidence that the Insurance company, which, as abandonee of the damaged cotton, represented the cargo owners, was from the beginning in communication with the representatives of the car- rier; that it was informed as to every important step taken; that when there Avas any question as to whether a bale of cotton should be reconditioned for forwarding or be sold here it was informed and consulted with ; and that whatever course was taken, was taken with its approval and concurrence. There is no contradiction of this testimony, and, in our opinion, it clearly makes out a case of voluntary acceptance at the intermediate port, any fur- ther carriage of those particular bales being intentionally dispensed with by the owner, and implies a contract to remunerate the carrier for the service 270 THE OBLIGATION OF THE SHII'i'ER. (Part 3 to assume voluntarily to relieve the plaintiff from nonperformance. They claimed the possession of the property and the rig-ht to posses- sion discharged from all claim for freight, and indemnified the ware- houseman against such claim. Every circumstance repels the idea of a promise to pay pro rata freight. The case stands, therefore, unem- barrassed by the circumstance that the consignee took possession of the property under the circumstances, and it presents the ordinary case of an action on contract where the party seeking to enforce it has not shown a full performance. The next question is, whether the plaintiff is entitled to freight upon the 5,000 bushels delivered. The contract for freight is an entirety, and this applies as well to a delivery of the whole quantity of goods as to a delivery at all, or as to a full transportation. Parsons on Ship- ping, 204. There are cases where this rule as to quantity has been qualified, but they have, I think, no application to the present case. The delivery of the 5,000 bushels was made with the understanding and expectation that the whole quantity was to be delivered, and no infer- ence can be drawn of an intention to pay freight in part without a de- livery of the whole. The quantity delivered must be regarded as hav- ing been received subject to the delivery of the whole cargo. There was no waiver. The principle involved is analogous to a part delivery from time to time of personal property sold and required to be deliv- actually performed. * * * From the decree of the District Court the re- spondent also appeals insisting that the carrier should be allowed to reserve from the proceeds of the damaged cotton pro rata freight for the bales which were totally destroyed. * * * n jg urged that since the bills of lading provide for successive transportations by successive carriers, with a provision that the liability of each carrier for loss or damage to the goods shall cease on his delivery of the cotton to the next carrier, each separate transportation should be treated as a separate voyage. But the contract is a single one for the entire transportation from the port of original loading to the port of ultimate destination, * * * Had the carriers chosen to apportion the freight in advance, and to require the shipper to pay separately for each suc- cessive stage of the voyage, it was competent for them to insert such provi- sions in the contract. Not having done so, their contract must be interpreted as such contracts of affreightment always have been, and their right to de- mand freight be held dependent upon delivery at destination." Lacombe, J., in British & Foreign Mar. Ins. Co. v. So. Pac. Co., 72 Fed. 285, 18 C. C. A. 561 (189G). For cases where pro rata freight was allowed, see The IMohawk, 8 Wall. 153, 19 L. Ed. 40f3 (1808). deliverv at intermediate port by shipper's request; Grav v. Wain, 2 Serg. & R. (Fa.) 229. 25(3. 7 Am. Dec. 042 (1810). higher market at intermediate port; The Teutonia, L. R. 3 A. & E. 3!>4, 416-424 (1871). de- liverv at destination imlawful (decided on appeal upon another ground) ; Scow No. 190, 88 Fed. 320 (1898). See, also, Laws of Oleron, art. 4, ante, p. 58. "Almost all the maritime countries except England * * * regard the freight as a liability from the cargo accruing as it were mile by mile as the vessel proceeds and culminating at its full bill of lading amount at port of destination on safe delivery." Gow, Marine Insurance, 161. As to the manner of calculating freight pro rata, see Luke v. Lyde, 2 Burr. 889 (1759) ; Robinson v. Marine Ins. Co., 2 Johns. 323 (1807) ; Coffin v. Storer, 5 Mass. 252. 4 Am. Dec. 54 (1809) ; Mitchell v. Darthez, 2 Bing. N. C. 555. 571 (1836) ; McGaw v. Ocean Ins. Co.. 23 IMck. (Mass.) 405 (1839) ; Smyth v. Wright, 15 Barb. 51 (1852) ; The Mohawk, 8 Wall. 163, 19 L. Ed. 406 (1868). Ch. 1) FREIGHT. 271 ered. If the whole is not delivered, no recovery can be had for that portion deHvered. ChampHn v. Rowley, 18 Wend. 187; Jennings v. Camp, 13 Johns. 94, 7 Am. Dec. 367 ; Davis v. Pattison, 21 X. Y. 317. The claim for lake and Buffalo charges stands, I think, upon a dif- ferent footing. These are stated in the bill of lading at 5% cents a bushel, amounting to $812.38. It must be presumed, as the case appears, that the plaintiff advanced these charges ; and, if so, it be- comes subrogated to the rights of the antecedent carrier. The claim for these charges was complete when the plaintiff received the prop- erty to transport, and was not merged in the condition requiring the performance of the contract by the plaintiff to transport the property from Buffalo. That contract was independent of this claim. The bill of lading is for transportation and delivery upon payment of freight and charges ; but if the plaintiff had a right to demand any part of the charges independent of the bill of lading, that instrument would not deprive him of such right. We have been referred to no authority making a liability upon such an advance dependent upon the perform- ance of the contract for subsequent carriage. If the action had been by the lake carrier to recover for the freight to Buffalo, it is very clear that the defendants could not have interposed as a defence that the carrier from Buffalo had not performed; and why is not the plaintiff entitled to the same rights in respect to this claim as the former car- rier? I am unable to answer this question satisfactorily, as the case now appears. If these views are correct, a nonsuit was improper, and there must be a new trial with costs to abide event. Judgment reversed. BRAITHWAITE v. POWER. (Supreme Court of North Dakota, 1891. 1 N. D. 455, 48 N. W. 354.) Corliss, C. J.^^ In November, 1880, the steamer Eclipse sailed from Bismarck, in the territory of Dakota, on an eventful voyage up the Missouri river, bound for Ft. Buford, Mont., laden with army supplies consigned to the quartermaster at that point. She never reached her destination, but was frozen in about 60 miles from the fort by water and 35 miles from it by land. There has been much litigation connected with this vessel. Some of it has been finally dis- posed of (Rea V. Eclipse, 1 Dak. 218, 30 N. W. 159, on appeal 135 U. S. 599, 10 Sup. Ct. Rep. 873, 31 L. Ed. 269), and some of it awaits final settlement by this court on this appeal. The purpose of this action was to recover full freight for trans- porting these military stores under an agreement to carry them from Bismarck to Ft. Buford. * * * it is true that the master was at liberty to forward the freight by other means. 1 Pars. Shipp. & Adm. 13 Parts of the opiuion are omitted. ■272 THE OBLIGATION OF THE SHII'PEU. (Part 3 233, and cases cited. This he was given no opportunity to do. It 'S also true that he might without legal fault have awaited until the opening of navigation in the spring to resume his voyage and transport the freight to its destination in the bottom in which it was originally shipped. It was, of course, his duty in the meantime to protect the property, and this it is undisputed he was doing when it was taken from him by force by a squad of men from the fort, acting under the instructions of the consignee. He protested against this, insisting upon his right to earn his freight by completing the transportation; but all his protests were unavailing, and he finally yielded only to superior force, without resistance, it is true, but this was commend- able, as bloodshed would have probably resulted had forcible opposi- tion been interposed. The master has a lien on the property to enable him to earn his freight. The moment the transportation begins the lien attaches,^* and is not divested so long as the master is proceeding not in default. The consignor is not bound to pay until the transportation is complet- ed in accordance with the contract, but he may not prevent the mas- ter's earning his freight. If he takes possession of the goods short of their destination, when the master, not in default, is willing and able to complete the transportation, he must pay full freight. He has prevented or waived the performance of the condition precedent. The law therefore regards it as performed. It is true that in this case the performance was prevented by the consignee, and not by the shipper; but in this respect the consignor is represented by the consignee, and the former is responsible for the acts of the latter. The consignor has done his full duty to the con- signee when he has paid or agreed to pay freight to a certain point. If the consignee sees fit to take the goods at some other place when the transportation is only partially completed, and when the master is able and willing to perform his contract, he, the consignee, can make no claim against the consignor, and the latter should therefore pay the freight which the master was able, willing, and had a legal right to earn. * * * Jt cannot be said that the master, by remov- ing the cargo from the steamer to the river's bank, had abandoned the transportation of the goods. ^^ This was done for the safety of both 14 Ace. Bailey v. Damon. 3 Gray (Mass.) 02 (1S.14). semble. And see Burgess T. Gun. .3 Har.'& .7. (Md.) 22.5 (1811) ; Birley v. Gladstone, post, p. .301. "If Goods are fully laded aboard, and the Ship hath broke Ground, the Mer- chant on consideration afterwards resolves not on the Adventure, but will unlade again ; by the Law Marine the Freight is due." MoUoy, De Jure Maritinio, bk. II. c. IV, 4. But to the effect that the lien attaches when the shipowner receives the goods, see Woods v. Devin, 13 111. 746, 5Q Am. Dec. 483 (1852) ; Bartlett v. Carnley, 6 Duer (N. Y.) 194 (1856) ; Blowers v. One Wire Rope Cable (D. C.) 19 Fed. 444 (1884) ; Lord Campbell, in Tindall v. Taylor, quoted post, p. 273. note 16. 15 Where a vessel intentionally abandoned in storm at sea has been brought by salvors to safety, the shipper may have his cargo from the salvors with- Ch. 1) FREIGHT. 273 the vessel and the cargo, and was essential to their safety, as it is undisputed that the risk to both from the breaking up of the ice in the spring would have been greater with the steamer loaded than with the cargo on shore. It was the undoubted duty of the master to do precisely what he did do to protect the interests not only of the owner of the cargo, but of the owner of the boat also. "Suppose a ship meets with a calamity in the course of a voyage,, and is compelled to put into a port to re- pair, and there the cargo is required to be unloaded in order to make the repairs or to insure its safety or ascertain and repair the damage done to it, would such an unloading dissolve the contract for the voy- age? Certainly not." Fer Story, J., in The Nathaniel Hooper, 3 Sumn. 542-559, Fed. Cas. No. 10,032. See, also, Murray v. Insur- ance Co., 4 Biss. 417, Fed. Cas. No. 9,955. We hold that full freight was earned.^® * * * out liability to the carrier for damages or freight, though the abandonment was reasonably deemed necessary and the carrier is ready and willing to con- vey to the original destination. ' The Eliza Lines, 199 U. S. 119, 26 Sup. Ct. 8. 50 L. Ed. 115 (1905). Compare Molloy, De Jure Maritimo, bk. II. e. IV. 13: "A Ship in her Voy- age happens to be taken by an Enemy, afterwards in Battle is retaken by an- other Ship in Amity, and I'estitution is made, and she proceeds in her Voyage, the Contract is not detennined. thougli the taking by the Enemy divested the Property out of the Owners; yet by the Law of War that Possession was de- feasible, and being recovered in Battle afterwards, the Owners became rein- vested. So the Contract, by Fiction of Law. became as if she had never been taken, and so the entire Freight becomes due." Compare, also, cases in lat- ter part of note 11. ante. p. 2G7. .16 In Tindall v. Taylor, 4 E. & B. 219 (1854). it was held to be no defense to an action for freight brought after the voyage was completed, that the ship- per had demanded a return of his goods before the voyage began, especially where bills of lading were outstanding when the demand was made. Ixtrd Campbell, C. J., said: "We entirely agi'ee to the law as laid down by Lord Tenterden in his treatise (8th Ed.) p. 595, and in Thompson v. Trail [2 C. & P. 334]. when applied to a general ship, that 'a merchant, who has laden goods, cannot insist on having them relanded and delivered to him without pay- ing the freight that might become due for the carriage of them, and indem- nifying the master against the consequences of any bill of lading signed by him.' It is argued that there can be no lien for freight not yet earned or due : but, when the goods were laden to be carried on a particular voyage, there was a contract that the master should carry them' in the ship upon that voyage for freight ; and the general rule is that a contract once made cannot be dissolved except with the consent of both the contracting parties. By the usage of trade, the merchant, if he redemands the goods in a reasonable time before the ship sails, is entitled to have them delivered back to him, on pay- ing the freight that might become due for the carriage of them, and on in- demnifying the master against the consequences of any bills of lading signed for them; but these are conditions to be performed before the original con- tract can be affected by the demand of the goods." Compare Clark v. Marsiglia, 1 Denio (N. Y.) 317, 43 Am. Dec. 670 (1845), an action of assumpsit for work and labor bestowed upon paintings which de- fendant had delivered to plaintiff to be renovated. The court said: "The plaintiff was allowed to recover as though there had been no countermand of the order ; and in this the court erred. The defendant, by requiring the plain- tiff to stop work upon the paintings, violated his contract, and thereby in- curred a liability to pay such damages as the plaintiff should sustain. * * • Green Carr. — 18 274 THE OBLIGATION OF THE SHIPPER. (Part 3 GRISWOLD V. NEW YORK INS. CO. (Supreme Court of New York, 1808. 3 Johus. 321, 3 Am. Dec. 490.) This was an action on a policy of insurance, on the freight of the ship Culloden, valued at $3,300, on a voyage "at and from New York to Barcelona, with liberty to touch at Gibraltar." * * * The material facts found by the special verdict, and not stated in the former case, were : In consequence of the vessel's stranding, the whole of the cargo, which consisted of 2,300 barrels of flour, was damaged by the sea water, except between 100 and 200 barrels on the upper tier; the whole of the flour so damaged was so much wet and spoiled as to be totally unfit to be reshipped for that or any other voyage, and if it had been reshipped and carried to its port of destination, it would have been worth nothing, on its arrival there; that if the part which was not wet and damaged had been reshipped with the rest of the car- go in its damaged state, it would have become heated, and more or less spoiled; and that no prudent person would have taken the cargo as a gift, subject to the expense of the freight to Barcelona. * * * For the plaintiffs, it was contended that * * * jj^ ^\^q Q^ise of. Frith V. Barker, 2 Johns. 327, this court decided that where sugar had been washed out of the hogsheads, which had fallen to pieces, no freight was due. There is, in reason, no difference between that and the present case, where the flour, if it had arrived at Barcelona, would have been worth nothing. * * * But the plaintiff had no right, by obstinately persisting in the work, to make the penalty upon the defendant greater than it would otherwise have been. To hold that one who employs another to do a piece of work is bound to suf- fer it to be done at all events would sometimes lead to great injustice. A man may hire another to labor for a year, and within the year his situation may be such as to render the work entirely useless to him. The party em- ployed cannot persist in working, though he is entitled to the damages con- sequent upon his disappointment." A carrier is entitled to full freight from a shipper who exercises the right of stoppage in transitu. See Pa. R. Co. v. Am. Oil Works, 126 Pa. 48.5, 17 Atl. 671, 12 Am. St. Rep. 870 (18S9). Or through whose default cargo is seized on the voyage by the holder of a respondentia bond. Cargo ex Galaui, 2 Moo. (N. S.) 216 (1863). A carrier is entitled to full freight in priority to an attaching creditor of the shipper. Rucker v. Donovan, 13 Kan. 251, 19 Am. Rep. 84 (1874). And in priority to a captor of the goods as enemy property, if his vessel is neutral. The Copenhagen, 1 C. Rob. 2S9 (1799). His right to the stipulated payment exists under a lump sum charter for a voyage, as well as under a contract for freight in the stricter sense. Cargo ex Galam, supra. A carrier is entitled only to actual damages if the shipper prevents his earn- ing freight by not shipping any cargo. Ashburner v. Balcher, 7 N. Y. 262 (1852). Or by not shipping the homeward cargo, though the outward cargo has been carried and delivered. Stamforth v. Lyall, 7 Bing. 169 (18.30). Or by refusing to redeliver to the carrier, to enable him to complete the voyage, goods of which the carrier has lost possession by stress of weather at sea, and which have come to the shipper's hands. The Eliza Lines, 114 Fed. 307, 52 C. C. A. 195 (1902), reversed on another point in 199 U. S. 119, 26 Sup. Ct. 8, 50 L. Ed. 115 (1905). Ch. 1) FREIGHT. 275 Kent, C. J./'^ delivered the opinion of the court: * * * But it is said that the cargo, if carried on to Barcelona, would not have been worth the freight. This is the import of the special verdict. Here, then, the question arises whether the plaintiffs would not have had their remedy against the shipper, personally, for any deficiency in the freight, or whether the owners could discharge themselves com- pletely by abandoning the damaged cargo to the plaintiffs, after its arrival at Barcelona. This question has not, hitherto, received any judicial decision in the English courts; and it has been frequently mentioned in this court as a point unsettled. We are, therefore, called to examine the question upon principle, and upon the authority of the marine law of foreign states. The contract of affreightment, like other contracts of letting to hire, binds the shipper personally, and the lien which the shipowner has on the goods conveyed, is only an additional security for the freight. This lien is not incompatible with the personal responsibility of the shipper, and does not extinguish it. The consideration for the freight is the carriage of the article shipped on board, and the state or condition of the article at the end of the voyage has nothing to do with the obligation of the contract. It requires a special agreement to limit the remedy of the carrier for his hire to the goods conveyed. It cannot be deduced from the nature of the undertaking. The ship- owner performs his engagement when he carries and delivers the goods. The condition which was to precede payment is then ful- filled. The right to payment then becomes absolute, and whether we consider the spirit of this particular contract, or compare it with the common-law doctrine of carrying for hire, we cannot discover any principle which makes the carrier an insurer of the goods as to their soundness, any more than he is of the price in the market to which they are carried. If he has conducted himself with fidelity and vigi- lance in the course of the voyage, he has no concern with the diminu- tion of their value. It may impair the remedy which his lien af- forded, but it cannot affect his personal demand against the shipper. This conclusion appears to be so natural and just that I cannot perceive any plausible ground upon which it has been questioned or denied. The weight of authority is certainly on this side. The French Ordinance of the Marine (tit. du Fret, art. 25) is explicit to the point. This code is not only very high evidence of what was then the general usage of trade, but from its comprehensive plan, and masterly execution, it has long been respected as a digest of the mari- time law of all the commercial nations of Europe. Valin, in his com- mentary upon this ordinance, calls in question the equity of the rule; but his reasoning, when we apply it to the true construction of the 17 Parts of the statement ot facts, of the argumeut of counsel, and of the opinion are omitted. 276 THE OBLIGATION OF THE SHIPPER. (Part 3 contract, is weak and superficial, and it has been exposed and an- swered, and the solidity of the rule vindicated, by a superior and more luminous jurist. Valin, tom. 1. 670. Pothier, Charte-Partie, No. 59. But, though this question has never been settled at Westminster Hall, Mr. Abbot (page 243) says that the assumed right to abandon deteriorated goods at the port of discharge is not, in point of prac- tice, claimed in that country, and his opinion is evidently in favor of die rule as established in France. * * * The court are accord- ingly of opinion that judgment must be rendered for the defendants. Judgment for the defendants.^* ASFAR & CO. v. BLUNDELU (High Court of Justice, Queen's Bench Division. [1895] 2 Q. B. 19G.) Action tried before Mathew, J., without a jury. * * * Mathew, J.^° This is an action brought to recover for a total loss on a policy on profit on charter. * * * The ship took her cargo on board and sailed for the discharging dock in the Thames, but be- fore she reached it she came into collision with another vessel and was sunk, and the cargo remained under water during three tides. A large part of the cargo, as much as 700 tons, consisted of dates. The vessel was raised and taken into dock. The first question to be decided in this case is whether any freight was payable in respect of the dates. If it was, then there was a profit on the charter freight. If none was payable, there was no profit. Whether or not freight was payable on the dates depended upon their condition. The evidence went to show that they wxre saturated with sewage, and were in a state of fermentation and putrefaction, and were unquestionably unmerchantable as dates.* It was, indeed, sug- gested that they still retained the appearance of dates; but if by that suggestion was meant that nothing less than total destruction of the goods would disentitle the shipowner to receive his freight, I can only say that that ancient view of the matter, which was put forward in Cocking v. Fraser, reported in Park on Insurance (8th Ed.) vol. 1, 1 8 Ace. Story. J., in Jordan v. Warren Ins. Co.. 1 Story, 342. Fed. Cas. Xo. 7..'524 (1840) ; Hugg v. Augusta Co.. 7 How. 595, 12 L. Ed. 834 (1849) ; Dakin V. Oxley, 15 C. B. (N. S.) 646 (18G4). "Nevertheless, if the merchants shall leave all the goods in the hands of the managing owner of the ship or vessel, which he has brought in his ship, for the freight which they ought to pay him, the managing owner of the ship or vessel has to accept them, and cannot exact anything more from them. And * * * no part owner can object or dispute in any way, for he must take his share of the loss as of the gain, if God gives it." Consulate of the Sea, c. 225. 19 Parts of the statement of facts and of the opinion are omitted. * It appeared in the evidence that the dates were sold for £2.400 for the purpose of distillation into spirit, and were transhipped and exported. Ch. 1) FREIGHT. 277 p. 2^7, cannot be treated as law at the present day. Total destruc- tion is not necessary. Destruction of the merchantable character of the goods is sufficient; and in accordance with the principle recog- nized in Roux V. Salvador, 3 Bing. (N. C.) 266, Dakin v. Oxley, 15 C. B. (N. S.) 646, and Duthie v. Hilton, L. R. 4 C. P. 138, I hold that the plaintiflfs were not entitled to receive freight in respect of these dates.-" * * * LIBBY V. GAGE. (Supreme .Judicial Court of Massachusetts, Suffollv. 18G7. 14 Allen. 2G1.) The first of these actions was an action of contract brought by the owners of the brig Cascatelle against Charles P. Gage & Co., to recover the freight on a cargo of ice, shipped by the defendants at Richmond, Ale., for Alobile, Ala., on board the plaintiffs' vessel, under a bill of lading acknowledging the receipt of "four hundred and six tons of ice; it being understood and agreed as follows: That as ice is a perishable article, the hold of the vessel where it is placed shall 20 As to what constitutes arrival in specie, see, also. Duthie v. Hilton, L. R. 4 C. P. 138 (18G8). cement solidified: Garrett v. Melhuish, 4 Jur. (X. S.) 943 (18.58), bricks crushed; Dickson v. Buchanan, 13 Sc. L. R. 401 (1876), wire rusted. In Dakin v. Oxley, 15 C. B. (N. S.) G4G (18G4), Willes. J., said: "In the case of an actual loss or destruction by sea damage of so much of the cargo that no substantial part of it remains, as, if sugar in mats, shipped as sugar and paying so much per ton. is washed away, so that only a few ounces re- main, and the mats are worthless, the question would arise whether, practi- cally speaking, any part of the cargo contracted to be carried has arrived. * * * Where the quantity remains unchanged, but by sea damage the goods have been deteriorated in quality, the question of identity arises in a different form, as, for instance, where a valuable picture has arrived as a I)iece of spoilt canvas, cloth in rags, or crockery in broken shreds, iron all or almost all rust, rice fermented, or hides rotten. In l)oth classes of cases, whether of loss of quantity or change in quality, the proper course seems to be the same, viz., to ascertain from the terms of the contract, construed by mercantile usage, if any, what was the thing for the carriage of which freight was to be paid, and by the aid of a jury to determine whether that thing, or any and how much of it, has substantially arrived. If it has arrived, though damaged, the freight is payable by the ordinary terms of the charter party ; and the question of fortuitous damage must be settled with the underwriters, and that of culpable damage in a distinct proceeding for such damage against the ship captain or owners. There would be apparent justice in allowing dam- age of the latter sort to be set off or deducted in an action for freight; and this is allowed In some (at least) of the United States. 1 Parsons on Mer- cantile Law, 172, note. But our law does not allow deduction in that form ; and. as at present administered, for the sake, perhaps, of speedy settlement of freight and other liquidated demands, it affords the injured party a remedy by cross-action only." In the United States, damage for which a carrier is liable may be set off in his action for freight, or applied in reduction of his lien. Boggs v. Martin, 52 Ky. 239 (1852) : Bancroft v. Peters. 4 :\Iich. 619 (1857) ; The Tangier. 32 Fed. 230 (1887) : Miami Powder Co. v. Port Royal, etc., Ry. Co., 47 S. C. 324, 25 S. E. 153, 58 Am. St. Rep. 880 (1896); Mo. Pac. Ry. Co. v. Peru, etc., Co., 78 Kan. 295, 302, 85 Pac. 408, 87 Pac. 80 (190G). 278 THE OBLIGATION OF THE SHIPPER. (Part 3 not be opened or exposed to the air, unless by stress of weather or wants of the vessel, in which case due protest shall be made, and an account kept of all ice thrown overboard in case of jettison; that the vessel shall be kept regularly pumped out during the passage; that no fish, meat or other articles shall be placed in or with the ice without the consent of the shipper. Which is to be delivered in like good order and condition, with all due diligence (excepting what may be lost by the natural waste of the article) at the aforesaid port of Mobile, Ala. (the dangers of the sea only excepted), unto Messrs. Charles P. Gage & Co., or to their assigns, he or they paying freight for the said ice at seven dollars fifty cents per ton with average ac- customed." The ice was a full cargo, and was stowed by the shippers in the hold and around the mast. The brig sailed from Richmond May 8, 1866, and while prosecuting her voyage lost her foremast and sufifered other damage, which made it necessary for her to put into New York for repairs, which she did May 28th. In making the repairs, it be- came necessary to take out the old mast and put in a new one, and there was some melting and loss of ice occasioned by admitting the air into the hole where the mast was taken out, as also by the delay occasioned by putting into New York for repairs. The vessel sailed from New York June 12th, and arrived at Mobile July 14th. In an ordinary voyage from Richmond to Mobile, a cargo of ice would not usually waste more than 25 per cent. ; in this case, there was only about 50 per cent, of the ice delivered. The custom in regard to ice freights on ordinary voyages is to pay freight on the amount of ice put on board, although the whole amount put on board is never delivered, as ice is always wasted somewhat on a voyage. The parties submitted the case above stated to the decision of the court, and agreed that if the plaintiffs were entitled to recover the whole amount of the freight money as by the bill of lading, judgment should be rendered for them accordingly; if not. the action should be referred to an assessor to determine the amount due under the di- rection of the court. Gray, J. This action is brought by the owners of a ship against the shippers and consignees of the cargo to recover freight according to the terms of the bill of lading. The question whether any deduction is to be made from the plaintiffs' claim is to be determined by the application of well-settled principles of law to the peculiar facts of the case. The general rule is that the shipowner, in order to earn his freight, must perform his contract by carrying the goods to and delivering them at the port of destination, unless such performance is prevented or waived by the act of the consignee, or unless the goods perish by an intrinsic principle of decay naturally inherent in the commodity itself, the risk of which, whether active in every situation, or only in the confinement and closeness of a ship, rests upon the owner of Ch. 1) FREIGHT. 279 the goods. Abbott on Shipping- (7th Ed.) 406, 428; 3 Kent, Com. (6th Ed.) 219, 228; The Nathaniel Hooper, 3 Sumn. 554, Fed. Cas. No. 10,032; Clark v. Barnwell, 12 How. 282, 13 L. Ed. 985. Perils of the sea are ordinarily excepted, as they are in this bill of lading. The carrier, not insuring the goods either against perils of the sea or against their own decay or evaporation, is entitled to his freight upon delivering them at the port of destination, however much dimin- ished in bulk or value, either by perils of the sea, or by intrinsic defect, without his fault. 3 Kent, Com. 225; McGaw v. Ocean Ins. Co., 23 Pick. 412, 413 ; Lord v. Neptune Ins. Co., 10 Gray, 114, 119 ; Steelman v. Taylor (1856) 3 Ware, 52, Fed. Cas. No. 13,349, 19 Law Rep. 36; The Norway, 3 Moore, P. C. (N. S.) 245. But although he does not assume the risk of perils of the sea, yet if the goods are wholly lost by such perils, or by jettison to avoid them, he does not earn the freight, because he does not deliver the goods at the port of destination. And a loss by the fault of the car- rier or his servants of any part of goods shipped under an entire con- tract of affreightment will defeat his right to recover any freight. Sayward v. Stevens, 3 Gray, 97.^^ The substance and effect of these principles may be stated thus : Neither party insures the other against perils of the sea ; the shipper takes the risk of intrinsic decay of the goods ; and the carrier is responsible for his own negligence. Under one entire contract of affreightment therefore, if the goods are wholly lost by perils of the sea, or the whole or part of them is lost by the fault of the carrier, he can recover no freight; but if part only of the goods is lost by perils of the sea,^^ or a part or even the whole perishes by intrinsic decay, he is entitled to full freight. 21 But see The Tangier (D. C.) 32 Fed. 230, 2.32 (1887); The Norway, 12 Moo. (N. S.) 24.5, 2G6 (186.5) ; Carver, Carriage by Sea, § 550. In Mercliaut Shipping Co. v. Armitage, L. R. 9 Q. B. 99 (1873), Bramwell B., said: "Sup- pose that £5 worth of these goods had been stolen by the crew, that would not be within the exceptions ; then would it have been possible to have said that the whole lump sum was lost? Would not the common rule have applied? The defendants would have had to pay the freight and seek their remedy by a cross action." 2 2 In Willett V. Phillips. 8 Ben. 459, Fed. Cas. No. 17.G&3 (1876), the char- ter party provided that the charterer should load a full cargo and pay as charter hire .$3,000 "in cash on the correct delivery of the cargo." Blatchford, J., said: "But even on the assumption that perils of the sea caused the non- delivery of the cargo which was not delivered, the libelants are not entitled to recover. The contract was a unit. Being a contract for the conveyance of merchandise for an agreed price, it was entire and indivisible, and. as the ves- sel did not completely perform it, she is not entitled to any part of the .$3,000. The freight was not earned by a strict performance of the contract, and there- fore no freight becomes due." In Robinson v. Knights, L. R. 8 C. P. 465 (1873), a ship was chartered to carry and deliver a full cargo "on being paid freight as follows ; a lump sum of £315." Part of the cargo was lost by excepted sea perils. The shipowner was held to be entitled to the full sum. Brett, J., said: "What is really paid for is the use of the ship for carrying such cargo as the freighter chooses to put on board. * * * That is to say, the freight is a gross sum for the use of the entire ship, instead of being paid in respect of each part of the cargo." 280 THE OBLIGATION OF THE SHIPPER. (Part 3 But treating the contract of affreightment as entire and indivisible often produces hardship and injustice; either by charging the owner of goods with full freight, when the greater part of the goods has been lost by perils of the sea, and but a small remnant is finally delivered ; or by refusing to allow any freight to the owner of the ship, when only a small portion of the goods has been lost or omitted to be car- ried by his fault, and he safely carries the residue to the port of des- tination, but the consignee there refuses to receive it or to pay freight. The parties therefore, by the terms of the charter party or bill of lad- ing, often modify the contract by providing that freight shall be paid by the cask, or package, or ton ; and when the parties have thus made divisible what would otherwise be entire, so many casks, packages or tons as the shipowner does not take and carry according to his con- tract, or as are lost by perils of the sea, may be deducted, and freight recovered for those remaining, and for those only.-^ 3 Kent, Com. 227; Bigelow, J., in Sayward v. Stevens, 3 Gray, 103. Thus in Ritchie v. Atkinson, 10 East, 295, the master of the ship agreed by charter party to take and carry from St. Petersburg to London a complete cargo of iron and hemp at certain rates per ton, and actually took and carried an incomplete cargo of those articles, and was held to be entitled to recover freight at the stipulated rates for the amount carried and delivered, leaving the shipper to his rem- edy by a cross action for the short delivery. And in Frith v. Barker, 2 Johns. (N. Y.) 327, 190 hogsheads of sugar were shipped at the rate of freight, as stated in the bill of lading, of $7 per hogshead; He referred to the case of The Norway, Brown & Lush. 404, .3 Moo. P. C. (N. •S.) 24.^ (lSG."i). in which Knight Bruce, L. J., said: "Although the lump sum is called freight in the charter party and hills of lading, we think it is not properly so called, hut that it is more properly a sum in the nature of a rent to be paid for the use and hire of the ship on the agreed voyages." "No doubt, where a lump sum is specilietl as the freight to be paid on de- livery, whether by charter party or bill of lading, the consignee, accepting the goods, must pay the stipulated sum without detluctiou for what may be lost without the fault of the ship." Brown, J., in Gibson v. Brown (D. C.) 44 Fed. r)S (1890). See. also. The Tangier (D. C.) 32 Fed. 2,30 (1887) ; Ritchie V. Atkinson. 10 East, 295 (1808), stated in the text. In the following cases charter freight, payable according to weight or measurement of cargo shijiped. was lield payable in full, as a lump sum, though part of the cargo was lost: The Defiance, (i Ben. 162. Fed. Cas. No. 3.740 (1872), 112 cords of wood, port of loading inspection, at $4 per cord; Harrison v. 1.000 Bags of Sugar (D. C.) 44 Fed. 086 (1890) ; Christie v. Davis Co. (D. C.) 95 Fed. 837 (1899). In the following cases common carriers by water recovered full bill of lading freight, though neither ship nor goods reached destination: The Queensmore, 53 Fed. 1022. 4 C. C. A. 157 (1893), cattle at 80 shillings per head shipped, though lost in any manner whatsoever, payable in Liverpool on arrival of ship ; Portland Flouring Mills Co. v. Marine Ins. Co., 130 Fed. 800, 65 C. C. A. 344 (1904), freight to be earned, steamer or goods lost or not lost. 2 3 Ace. Hinsdell v. Weed. 5 Denio (N. Y.) 172 (1848), freight of $83 for a ship- ment of barrels of flour held apportionable; Price v. Hartshorn. 44 N. Y. 94, 4 Am. Rep. 645 (1870) : The Marcella, 1 Woods, 302. Fed. Cas. No. 13.797 (1873); Christie v. Davis Co. (D. C.) 95 Fed. 837 (1899). And see Edward Hines Co. v. Chamberlain, 118 Fed. 716, 55 C. C. A. 236 (1902). Ch. 1) FREIGHT. 281 on the voyage the ship met with perils of the sea, by which all the sugar was washed out of 50 of the casks, and the remaining 140 casks of sugar arrived and were delivered ; and it was held that freight could be recovered on the latter only. The bill of lading of this ice fixes the rate of freight by the ton, and contains no other provision to modify the application of the gen- eral rules of law. The stipulation which recognizes the perishable nature of the article, and provides that "the hold of the vessel in which it is placed shall not be opened or exposed to the air, unless by stress of weather or wants of the vessel, in which case due protest shall be made, and an account kept of all ice thrown overboard in case of jettison," raises no implication that if the ice is so exposed, and thereby diminished in bulk, freight should be paid on the amount so lost. The exception of "natural waste" does not cover all waste or melting from whatever cause, but only the waste arising from the very nature of the ice itself, and merely afifirms what the law would other- wise have implied. The custom to pay freight on the amount of ice put on board, without deduction for the necessary waste on the voy- age, accords with the terms of the contract and with the general rules of law. It is agreed that in this case the melting and loss of ice were oc- casioned in part by the delay resulting from putting into port in con- sequence of perils of the sea, and in part by admitting the air into the hole where the mast was taken out. The waste, decay or de- terioration of goods in the hold of a vessel, though aggravated by protraction of the voyage in consequence of meeting with perils of the sea, is still, if those perils do not otherwise operate upon the goods, attributable to the nature of the goods, and not to the perils of the sea, as the proximate and efficient cause. Baker v. IManuf. Ins. Co., 12 Gray, 603; Clark v. Barnwell, 12 How. 282, 283. 13 L. Ed. 985. It is not pretended that the sea broke into the hold or in any way. directly affected the ice so as to diminish its quantity. The delay in the port of repair, like a retardation of the voyage by baffling winds, simply afforded more time for the ice to diminish, from its inherent liability to waste away ; and such diminution during such delay, as well as on the voyage before and afterwards, was natural waste, which was at the risk of the owner of the cargo, and did not affect the ship- owner's claim for freight. But the diminution in bulk from necessary exposure to the air and climate, in order to repair injuries which the ship had suffered from perils of the sea, was directly attributable to such perils, as much as if a portion of the cargo had been washed out by the waves or thrown overboard to enable the ship to ride safely in a storm. The excep- tion of "natural waste" does not cover the destruction of ice by this extraordinary exposure for the purpose of making necessary repairs ; just as it has been held by this court that insurers declared in the policy to be "not liable for ice melting in consequence of putting into 282 THE OBLIGATION OF THE SHIPPER. (Part 3 port" were not thereby exempted from loss by the necessary unlading of the ice to examine and repair the vessel. Tudor v. New England Ins. Co., 13 Cush. 554. If indeed this contract of affreightment had been entire and the freight estimated at a gross sum for the whole cargo, this diminution also would not have reduced the amount of freight due after transportation of the residue to the port of destina- tion and delivering it there. But the freight was payable by the ton, and the contract of aft'reightment thus made divisible ; and therefore on that portion of the cargo which was lost by opening the hold, and for that reason not carried to the port of destination, no freight is due. As the waste on the voyage from the port of departure to the port of repair did not affect the claim for freight, the cargo is to be esti- mated at the latter port as if it had still been 406 tons complete; then such proportion of that number of tons, as the amount of ice melted and lost by the opening of the hold for the purpose of necessary re- pairs of the ship bears to the quantity of ice on board when such re- pairs were begun, is to be deducted from the whole number of 40G tons ; and on the residue, so computed, inasmuch as no further de- duction is to be made for the waste of the ice on the completion of the voyage, freight is payable at the stipulated rate of seven and a half dollars a ton. For the purpose of making this computation, and in accordance with the agreement of parties, this case is referred to an assessor.-* 24 "If you have chartered your ship to carry slaves, no payment is due you for the carriage of a slave who has died on board. "Paulus: Not so. The question is what was the transaction? whether pay- ment was to lie made for those placed on board or for those carried. And if this cannot be shown, it will suffice for the shipmaster to show that the slave was put on board." Digest, lib. xiv, tit. ii, fr. 10. In the following cases freight was allowed on goods which had perished bv reason of their Intrinsic character: Nelson v. Stephenson, 5 Duer (N. Y.) 538 (1S56) ; Steelman v. Taylor. 3 Ware, 52, Fed. Cas. No. 13.349 (1856) ; The Cuba, 3 Ware, 260, Fed. Cas. No. 3,458 (1860). Compare Linklater v. Howell (D. C.) 88 Fed. 526 (1898). Contra: Carver, Carriage by Sea, § 548. In The Fortuna, Edw. Adm. 56 (1809), Sir W. Scott said that a shipowner "could have no right [to freight] but upon an entire execution of the contract, or such an execution as he could effect consistently with the incapacities un- der which the cargo might labor. Where such an incapacity on the part of the cargo occurs, he has done his utmost to caiTy the contract on to its con- summation ; it is a final execution as to the owner of the ship, inasmuch as it does not lie with him that the contract is not performed. On the other hand, where the vessel itself Is incapacitated, no right accrues to her owner ; he can have no right to demand that for which he stipulated only on the per- formance of his engagement. The general principle has been stated very cor- rectly, that where a neutral vessel is brought in, on account of the cargo, the ship is discharged with full freight, because no blame attaches to her : she is ready and able to proceed to the completion of the voyage, and is only stop- ped by the incapacity of the cargo." In Gibson v. Sturge, 10 Ex. 622 (1855), a cargo of wheat from Odessa to Gloucester was by the terms of the bill of lading to be delivered on payment of freight at a certain rate per quarter. Its bulk on delivery exceeded its bulk at shipment by nearly 5 per cent, apparently because it had absorbed moisture on the voyage. It was held by a majority of the court that freight was due Ch. 1) FREIGHT. 283 BROWN V. HARRIS. (Supreme Judicial Court of Massachusetts, 1854. 2 Gray, 359.) Thomas, J.^^ The agreed statement of facts shows a contract by the defendant to transport the plaintiff as a passenger in the defend- ant's ship, from San Francisco to Panama, for the 'sum of $50, paid in advance. It shows also a failure to perform that contract, and that such failure was owing solely to the wrecking of the ship by a storm, and the consequent breaking up of the voyage. The plaintiff' was put on shore at Mazatlan, less than half the distance to the port of destina- tion, and there left ; no provision having been made by the defendant to send him to Panama by any other ship, nor any offer to do so. The question is, can the plaintiff recover the whole or any part of the pas- sage money so paid? And we are of opinion that he can recover the whole. The rule is well settled as to freight for the carriage of goods. If freight be paid in advance, and the goods not carried by reason of any event, not imputable to the shipper, it is to be repaid, unless there be a special agreement to the contrary ; and such agreement cannot be inferred from the mere fact of payment in advance. The contract is entire, and unless the voyage be fully performed by a delivery at the port of destination, nothing has been earned. * * * Passage money and freight are governed by the same rules. Indeed freight, in its most extensive sense, is applied to all compensation for the use of ships, including transportation of passengers ; and for all purposes, except lien, Lord Ellenborough says, they seem to be the same thing. Mulloy v. Backer, 5 East, 321. See, also, Rowland v. Brig Lavinia, 1 Pet. Adm. 123, Fed. Cas. No. 6,797; 3 Kent, Com. 219; Abbott on Shipping (5th Am. Ed.) 405, note; Angell on Car- riers, § 391; Watson v. Duykinck, 3 Johns. (N. Y.) 335. No question is open upon the agreed statement of facts as to the only upon the bulk shipped. Alderson, B., said: "Now, if the rule be, that, in the"^ absence of any special stipulations, the freight is due for that quantity which has been carried for the whole voyage, as I think it is. it seems to me to follow as a necessai-y consequence, that the less amount alone falls within that category. It is ti-ue, perhaps, that the same individual grains are car- ried throughout, but they measure more in bulk on their arrival than at their loading. The case seems to me to be in close analogy to that of the pregnant females mentioned in Molloy, bk. 2. c. 4. § 8, where no freight is payable for the infants of whom they are delivered during the voyage. And. again, where freight is contracted for the transporting of animals, and some die during the voyage, the freight is payable only for those which arrive safe. And. again, 'where goods, as in the case of molasses, have wasted in bulk during the voyage, freight is payable for the amount which arrives. These are ad- mitted cases. Now, all these cases can only, as it seems to me, be reason- ably explained on the principle, that, in such cases, the freight is to be cal- culated and paid on that amount only which is put on board, carried through- out the whole voyage, and delivered at the end to the merchant." 2 5 The statement of facts and a part of the opinion have been omitted. 284 THE OBLIGATION OF THE SHIPPER, (Part 3 form of action; but if there were, it is a familiar principle of law that when money is paid by one party in contemplation of some act to be done by the other, and the thing stipulated to be done is not done, the money may be recovered back in an action for money had and re- ceived. Judgment for the plaintiff.^' SECTION 3.— LIEN FOR FREIGHT LAWS OF WISBY, Art. 58: "Likewise when a master has un- loaded goods out of his ship, he may keep the goods alongside for the freight, and for the expenses for which they may be liable, unless the master will entrust them." CONSULATE OF THE SEA, c. 225 : And if by chance the said merchants shall ask of the managing owner of the ship or vessel, if he will accept for his freight a portion of the very same goods which he has brought in his ship, * * * ^^^^ jf j-j^ ^yjn allow them to discharge so much until he has enough left to pay the freight * * * he may do so, but the said merchants cannot force him. * * * 26 "* * * And if the passenger goes away without leave of absence, and does not come at the term when the ship sails, if the passenger has paid a thousand marks of earnest money, or if he has paid the whole freight, the master is not bound to return any of it." Consulate of the Sea, c. 71. "This vessel * * * -was obliged to unlade and could not proceed. -No passage money is due before the passenger arrives at the port of destination, unless compensation pro rata itineris is agreed to be paid. His expenses, or the means of proceeding to the place of destination, must be paid, or ten- dered, to a passenger. On refusal to proceed, compensation pro rata is de- mandable." By the court, in Rowland v. The Lavinia, 1 Pet. Adm. 123, Fed. Cas. No. 6.797 (1801). "It is settled, by the authorities referred to in the course of the argument, that by the law of England a payment made in advance on account of freight cannot be recovered back in the event of the goods being lost and the freight therefor not becoming payable. I regret that the law is so. I think it founded on an ei'roneous principle and anything but satisfactory : and I am em- boldened to say this by finding that the American authorities have settled the law upon directly opposite principles, and that the law of every European country is in conformity with the American doctrine and contrary to ours." Cockburn, C. J., in Byrne v. Schiller. L. R. Ex. 319. .32.') (1871). "I apprehend that rule [the English rule] to be that a prepayment of freight is not recoverable, and that it depends upon this: That there is an implied understanding that it shall be made once for all, and shall not be subject to any contingency. Foreign law requires that for this purpose there shall be an express agreement between the parties; our law. on the contrary, sup- poses there is an implied agreement unless it is expressly excluded." Mon- tague Smith, J., Id. 327. See, also, De Sola v. Pomares (D. C.) 119 Fed. 373 (1902) ; Oriental S. S. Co. V. Taylor, 2 Q. B. 518 (1893). -Ch. 1) FREIGHT. 285 ANONYMOUS. (Court of King's Bench, 1701. 12 Mod. 447.) HoLT^ C. J. Every master of a ship may detain goods till he be paid for them; that is, for their freight. SKINNER V. UPSHAW. (Court of Queen's Bench. 1702. 2 Ld. Raym. 7.j2.) The plaintiff brought an action of trover against the defendant, being a common carrier, for goods delivered to him to carry, etc. Upon not guilty pleaded, the defendant gave in evidence, that he offered to deliver the goods to the plaintiff, if he would pay him his hire; but that the plaintiff refused, etc., and therefore he retained them. And it was ruled by Holt, Chief Justice at Guildhall (the case being tried before him there). May 12, 1 Ann. Reg. 1702, that a carrier may retain the goods for his hire; and upon direction the •defendant had a verdict e-iven for him. BOGGS V. MARTIN. (Court of Appeals of Kentucky, 18.j2. .52 Ky. 239.) Simpson, J.-" This action of replevin was brought by ^Martin against Boggs and Russell for 93 barrels of pitch and rosin. The property sued for was shipped at New Orleans on the steam- boat Cincinnatus, to be delivered at the port of Louisville to the plain- tiff, he paying freight for the same at the rate of 37 cents per barrel. * * * Where there is no special contract to the contrary, the car- rier has a lien upon the goods and a right of detention until the freight is paid, and he may detain any part of the merchandise contained in the same bill of lading, and consigned to the same person, until the freight upon the whole of it be paid.-" Abb. on Shipp. 247. But if he once parts with the possession out of the hands of himself and his agents, he loses his lien or hold upon the goods, and can not afterward reclaim them. Id. 248. The question in this case upon the evidence was, had the goods passed out of the hands of the agents of the boat, and the lien upon them for the payment of the freight been thereby lost? Upon this point the court below instructed the jury: "If they be- 2 7 Part of the opinion has been omitted. 2 8 Ace. Potts Y. X. Y. & N. E. R. Co., 131 Mass. 4.5.5. 41 Am. Rep. 247 (1881); Ta. Steel Co. v, Ga. R. Co., 94 Ga. 630, 21 S. E. 577 (1894). 286 THE OBLIGATION OF THE siiiprER. (Part 3 lieved from the evidence that the rosin and pitch were put out of the steamboat on the wharf in Louisville, and the bill of lading was sent to the plaintiff, and he took possession of and hauled away one load or any part of the rosin and pitch with the consent of the defendants, these facts themselves constituted, in law, a delivery of possession, and the lien for the freight was thereby lost." This exposition of the law we deem erroneous, for the following reasons : The goods, although put out of the steamboat on the wharf, were still in the possession of the agents of the boat, as it clearly appeared from the testimony; and the act of unloading a boat and placing the merchandise on the wharf does not indicate any intention to part with the possession of it until the freight is paid. Indeed, the law is, that the officers cannot detain the goods on board the boat until the freight is paid, as the merchant or consignee would then have no opportunity of examining their condition. Abbott, 248. It was the duty of the carriers to send the bill of lading to the con- signee, to apprise him that the goods had arrived and were ready to be delivered, so that he could attend and examine their condition, pay the freight due, and take them into his possession. Sending the bill of lading to him, therefore, amounted to nothing more than a com- munication of the fact that the goods had arrived and an offer to deliver them upon the payment of the freight. No other inference arises from the act, nor could it justly create an implication that the delivery of the bill of lading was intended to operate as a waiver of the lien for the freight, and a delivery of the possession of the goods to the consignee. As the master may detain any part of the merchandise for the freight of all that is consigned to the same person, and as, if he make a delivery of part to the consignee, he may retain the residue even against a purchaser until payment of the freight of the whole ( Soder- green v. Flight, 6 East, 622), the delivery in the present case of the seven barrels of the pitch and rosin did not necessarily constitute a delivery of the whole to the consignee. A delivery of part will, in some cases, amount to the delivery of the whole, but whether it is in a particular case to have that effect or not will depend upon the in- tention with which the act was done. The seven barrels were no doubt allowed to be taken, under the belief that the freight would be paid without objection, but the permission to take the possession of part did not amount to a waiver of the lien upon the residue by legal implication nor to a constructive delivery of that residue to the con- signee, unless it was given with that intention, which was a matter of fact for the jury to determine. These acts, therefore, neither separately nor in conjunction consti- tuted by legal deduction a delivery of the possession of the whole of the goods to the plaintiff. Ch. 1) FREIGHT. 287 Wherefore, for the error of the court in its instruction to the jury, the judgment is reversed, and cause remanded for a new trial, and further proceedings consistent with this opinion.-^ 2 9 The right to the possession of the goods until freight is paid is in general lost by delivery. Lembeck v. Jarvis Co.. 68 N. J. Eq. 402, 59 Atl. 3(30 (1904), affirmed 69 N. J. Eq. 781, 63 Atl. 257 (1806). As to what constitutes such de- livery as to end the lien, see Lane v. Old Colony R. Co.. 14 Gray (Mass.) 143 (1859). Compare Bigelow v. Heaton, 6 Hill (N. Y.) 43 (184.3). delivery obtained by fraud ; Hahl v. Laux, 42 Tex. Civ. App. 182, 93 S. W. lOSO (1906), goods taken without carrier's consent. The lien may be waived, without delivery. N. H. & N. Co. V. Campbell, 128 Mass. 104, 35 Am. Rep. 360 (1880). It does not exist where the carrier has contracted to deliver without requiring pay- ment, even though payment is in default and shipper and consignee insolvent. The Bird of Paradise, 5 Wall. 545. 18 L. Ed. 062 (1866). But courts incline to interpret contracts as not being promises to deliver without pajinent. The Volunteer. 1 Suran. 551, Fed. Cas. No. 16.991 (1834). freight payable 10 days after arrival ; The Kimball, 3 Wall. 37, 18 L. Ed. 50 (1865), half in 5, half in 10. days after discharge ; The Bird of Paradise, 5 Wall. 545, 561, 18 L. Fa\. 662 (1866), bill of exchange taken in conditional payment; Atchison, etc., Ry. Co. V. Hinsdell, 76 Kan. 74, 90 Pac. 800. 12 L. R. A. (N. S.) 94 (1907), "this agree- ment contains all terms relating in any manner to the transportation." There is no lien on one shipment for freight on another. Alias S. S. Co. v. Colum- bian Land Co., 102 Fetl. 358, 42 C. C. A. 398 (1900). Nor, where a ship- per has furnished part, but not all, of a cargo contracted for, is there a lien on the goods shipped, for freight, commonly called "dead freight," that would have been earned on the part not shipped, though the shipper has expressly contracted to pay dead freight. Phillips v. Rodie, 15 East, 547 (1812). The lien entitles a carrier to possession as against an attaching creditor of the owner. Wolfe v. Crawford, 54 Miss. 514 (1877). Or a vendor who stops in transitu. Potts v. N. T. & N. E. R. Co., 131 Mass. 455. 41 Am. Rep. 247 (1881). A common carrier has a lien for passage money on baggage delivered to it for carriage. Roberts v. Koehler (C. C.) 30 Fed. 94 (1887). But has no right to wrest a parasol as securitv from a passenger who refuses to pay fare. Ramsden v. B. & A. R. Co., 104 Mass. 117. 6 Am. Rep. 200 (1870). But it has been held that a railroad comi)any may prevent a i>assenger removing from its car a bag in the passenger's custody containing a large sum of money until a price for its carriage has been paid. Ilutchings v. Western R. Co.. 25 Ga. 61, 71 Am. Dec. 156 (185S). And that, where a known rule requires surrender of ticket on leaving the boat, a passenger attempting to leave without surren- dering a ticket or paying fare may be detained by the steamboat company to investigate the truth of his story that his ticket is lost. Standish v. Nar- ragansett S. S. Co., Ill Mass. 512, 15 Am. Rep. 66 (1873). A private carrier has a right to detain goods for freight for maritime transportation. The Eddy, 5 Wall. 481, 18 L. Ed. 486 (1866). And so by the better opinion has a private carrier by land. Jones on Liens, § 276; Hutch, on Carriers, § 46. Contra: Thompson v. N. Y. Storage Co., 97 Mo. App. 135. 70 S. W. 938 (1902), senible. "On what principles rests the general lien of goods for freight? The master is the agent of the shipowner, to receive and transport; the goods are improvetl in value by the cost and cares of transpoi'ta- tion. As the bailee of the shipper, the goods are in the custody and possession of the master and shipowner, and the law will not suffer that possession to be violated until the laborer has received his hire." Johnson, J., in Grade v. Palmer. 8 Wheat. 605, 635, 5 L. Ed. 696 (1823). A maritime carrier has not only a common-law right to detain, but a right, in the nature of an interest in the goods, called a "maritime lieu," to proceed in admiralty by process issued against the goods to have them sold to satisfy his claim for freight. "It is a right adhering to the thing, a jus in re, which is to be made avail- able by process against the thing in specie." Ware, J., in Drinkwater v. The Spartan, 1 Ware, 145, Fed. Cas. No. 4,085 (1828). The latter right is not now considered to be dependent upon possession, al- though delivery without notice, within a reasonable time, of intent to retain 288 THE OBLIGATION OF THE SHIPPER, (Part 3 ROBINSON V. BAKER. (Supreme Judicial Court of Massachusetts, 1S40. 5 Cush. 137, 51 Am. Dec. 54.) Replevin for 600 barrels of flour received from plaintiff's agent at Black Rock by the Old Clinton Line, common carriers by canal boat, who by bill of lading tmdertook to carry them to East Albany and there deliver to Witt, agent of the Western Railroad. The Western Railroad, with its connections, extended from East Albany to Boston, and plaintiff had a contract with it for carrying his flour to Boston. When the flour arrived at Albany, Witt said he could not take it off the boat that day, nor until 'she could be unloaded in her turn with other boats. Thereupon the Old Clinton Line shipped the flour by the Albany and Canal Line to New York, to be forwarded by them to Boston, which they did by shipping it at New York on a schooner of which defendant was master, with instructions to deliver to plaintiff on his paying or promising to pay all freights. When the flour reached Boston, plaintiff demanded it. Defendant refused to deliver, on the ground that he had a lien for freight. The case was reported by the trial judge for the consideration of the whole court. If the in- struction to the jury was correct, defendant to have judgment; if defendant had no lien upon any ground open upon the case stated, plaintiff to have judgment, with nominal damages. Fletcher, J."*^ (after stating the facts, the instructions requested, and the instructions given). As the ruling of the judge, that the de- fendant, as a carrier, had a lien for his freight, was placed upon grounds wholly independent of any rightful authority in the agents of the Old Clinton Line and the Albany and Canal Line, to divert the goods from the course in which the plaintiff had directed them to be sent, and to forward them by the defendant's vessel, and wholly inde- pendent of the plaintiff's consent, express or implied, the simple ques- tion raised in the case is whether, if a common carrier honestly and fairly on his part, without any knowledge or suspicion of any wrong, receives goods from a wrongdoer, without the consent of the owner, express or implied, he may detain them against the true owner, until his freight or hire for carriage is paid; or to state the question in other words, whether, if goods are stolen and delivered to a common car- rier, who receives them honestly and fairly in entire ignorance of the theft, he can detain them against the true owner until the carriage is paid. the right, will ordinarily be treated as a relinquishment of it, and will also prevent its enforcement as against interests subsequently acquired by others. 151 Tons of Coal, 4 Blatchf. 368. Fed. Cas. No. 10,520 (18.59); Blowers v. Wire Cable (D. C.) 19 Fed. 444 (1884) ; The Giulio, 34 Fed. 909 (1888) ; Well- man V. Morse, 76 Fed. 573. 22 C. C. A. 818 (1896). Compare Bags of Linseed, 1 Black, 108, 17 L. Ed. 35 (1861). 3 The statement of facts has been rewritten, and parts of the opinion omitted. Ch. 1) FREIGHT. 289 It is certainly remarkable that there is so little to be found in the books of the law, upon a question which would seem likely to be con- stantly occurring in the ancient and extensive business of the carrier. In the case of York v. Grenaugh, 2 Ld. Raym. 866, the decision was, that if a horse is put at the stable of an inn by a guest, the innkeeper has a lien on the animal for his keep, whether the animal is the prop- erty of the guest or of some third party from whom it has been fraud- ulently taken or stolen. In that case, Lord Chief Justice Holt cited the case of an Exeter common carrier, where one stole goods and delivered them to the Exeter carrier, to be carried to Exeter ; the right owner, finding the goods in possession of the carrier, demanded them of him ; upon which the carrier refused to deliver them unless he was first paid for the carriage. The owner brought trover, and it was held that the carrier might justify detaining the goods against the right owner for the carriage ; for when they were brought to him, he was obliged to receive them and carry them, and therefore, since the law compelled him to carry them, it will give him a remedy for the pre- mium due for the carriage. Powell, J., denied the authority of the case of the Exeter carrier, but concurred in the decision as to the inn- keeper. There is no other report of the case of the Exeter carrier to be found. Upon the authority of this statement of the case of the Exe- ter carrier, the law is laid down in some of the elementary treatises to be, that a carrier, who receives goods from a wrongdoer or thief, may detain them against the true owner until the carriage is paid. In the case of King v. Richards, 6 Whart. (Pa.) 418, 37 Am. Dec. 420, the court, in giving an opinion upon another and entirely dif- ferent and distinct point, incidentally recognized the doctrine of the case of the Exeter carrier. But until within six or seven years there was no direct adjudication upon this question except that refer- red to in York v. Grenaugh of the Exeter carrier. In 1843 there was a direct adjudication upon the question now under consideration in the Supreme Court of Michigan, in the case of Fitch v. Newberry, 1 Doug. 1, 40 Am. Dec. 33. The circumstances of that case were very similar to those in the present case. * * * The decision was against the carrier. * * * This decision is supported by the case of Van Buskirk v. Purinton, 2 Hall (N. Y.) 601. There property was sold on a condition, which the buyer failed to comply with, and shipped the goods on board the defendant's vessel. On the defendant's refusal to deliver the goods to the owner he brought trover and was allowed to recover the value, although the defendants insisted on the right of lien for the freight. Thus the case stands upon direct and express authorities. How does it stand upon general principles ? In the case of Saltus v. Ever- ett, 20 Wend. (N. Y.) 267, 275, 32 Am. Dec. 541, it is said: "The universal and fundamental principle of our law of personal property is, that no man can be divested of his property without his consent, Gkeen Cake. — 19 290 THE OBLIGATION OF THE SHIPPER. (Part 3 and consequently, that, even the honest purchaser under a defective title cannot hold against the true proprietor." * * * There are other hard and distressing cases of advances made honestly and fairly by auctioneers and commission merchants, upon a pledge of goods by persons apparently having the right to pledge, but who, in fact, had not any such right, and the pledgees have been subjected to the loss of them by the claim of the rightful owner. These are hazards to which persons in business are continually exposed by the operation of this universal principle, that a man's property cannot be taken from him without his consent. Why should the carrier be exempt from the operation of this universal principle? Why should not the principle of caveat emptor apply to him? The reason, and the only reason, given is, that he is obliged to receive goods to carry, and should there- fore have a right to detain the goods for his pay. But he is not bound to receive goods from a wrongdoer. He is bound only to receive goods from one who may rightfully deliver them to him, and he can look to the title, as well as persons in other pursuits and situations in life. Nor is a carrier bound to receive goods, unless the freight or pay for the carriage is first paid to him ; and he may, in all cases, se- cure the payment of the carriage in advance. In the case of King v. Richards, 6 Whart. (Pa.) 418, 37 Am. Dec. 420, it was decided that a carrier may defend himself from a claim for goods by the person who delivered them to him, on the ground that the bailor was not the true owner, and therefore not entitled to the goods. The common carrier is responsible for the wrong delivery of goods, though innocently done, upon a forged order. Why should not his obligation to receive goods exempt him from the necessity of deter- mining the right of the person to whom he delivers the goods, as well as from the necessity of determining the right of the person from whom he receives goods? Upon the whole, the court are satisfied that upon the adjudged cases, as well as on general principles, the ruling in this case cannot be sustained, and that if a carrier receives goods, though innocently, from a wrongdoer, without the consent of the owner, express or^ implied, he cannot detain them against the true owner, until the freight or carriage is paid.^^ 31 Ace. Bassett v. Spofford. 4-5 N. Y. 387, 6 Am. Rep. 101 (1871). stolen poods shipped on vessel ; Savannah Ry. Co. v. Talbot, 123 Ga. 378. 51 S. E. 401 (1905), horse shipped by servant -without authority. And see Gilson v. Gwinn, 107 Mass. 126, 9 Am. Rep. 13 (1871), leased sewing machine moved with other furniture; Corinth Engine & Boiler Works v. Miss. Cent. R. Co. (Miss.) 49 South. 261 (1909). Compare Crossan v. N. Y. R. Co., 149 Mass. 196, 21 N. E. 367, 3 Lv R. A. 766, 14 Am. St. Rep. 408 (1889), second carrier held to have lien for usual charge on perishable goods, though owner was known to have instructed first carrier to ship at a lower rate. "To incumber an innkeeper or a carrier with the obligation of inquiring and determining the relation in which the guest or the sender of the goods stands in reference to his possession of what he brings would be totally inconsistent with the relations in which both the innkeeper and the carrier stand toward Ch. 1) FREIGHT. 291 BRIGGS V. BOSTON & L. R. CO. (Supreme Judicial Court of :Massaclmsetts, Suffolk, 1SG3. 6 Allen, 246, 83 Am. Dee. 626.) Tort for the conversion of sixty-seven barrels of flour. Upon agreed facts, which are stated in the opinion, judgment was rendered in the superior court for the plaintifif, for the amount received by the defendants upon the sale of the flour by them, deducting the sum claimed by them as the amount for which they had a lien on the flour, and the expenses of the sale; and the defendants appealed to this court. Merrick, J. 3 2 The plaintiff, who resides at Racine, in the state of Wisconsin, delivered the flour, the value of which he seeks to recover in this action, to the Racine & ^Mississippi Railroad Company, taking from their agents a receipt, in which they agreed to forward and de- liver it to Franklin E. Foster, at Williamstown, in this state. By mis- take of the agents of that company, the flour was erroneously directed or billed to Wilmington, where there is a freight station on the road of the defendants. It was carried by the Racine & Mississippi Company over their road, and at its eastern termination delivered to the carriers next in succession in the line and route from Racine to Wilmington. And it was thus transported by the successive carriers in that line and route in their vessels and cars respectively, according to the bills and directions under which it was forwarded from Racine, until it arrived in due time at Groton, the point of the commencement of the road of the defendants. And it was there received by them, they paying the freight earned by all the preceding carriers, and carried to Wilming- ton, where it was duly deposited in their freight depot. But Frank- lin E. Foster, to whom it was directed, did not reside or have any place of business at Wilmington, and the defendants were unable to find there any consignee who could be notified of its arrival, or to whom it could be delivered. The defendants' agents immediately instituted a diligent inquiry, but they could not ascertain where the consignee or any other person entitled to have possession of the flour was to be found, or could be notified. At the time of its arrival at Wilmington the public, for whose benefit they profess to act, and do act, in their respective calliufrs." Per Pigot, C. B., in Waugh v. Denham, 16 Irish C. L. 405, 410 (1865). "Indeed, the learned author whom I have so often cited says that the mas- ter contracts i-ather with the merchandise than with the shipper ; and he has his privilege for the freight, even against the true owner of the goods, though they had been stolen (Pardessus, Droit Com. art. 961) ; and Valin (Comm. blv. 3, tit. 1, art. 11, 24) says that the contrary opinion is absurd." Per Lowell, J., in The Hyperion's Cargo, 2 Lowell, 93, Fed. Cas. No. 6,987 (1S71). To the effect that an innlieeper has a lien on stolen goods, see Abbot, C. J., in Johnson v. Hill, 3 Stark. 172 (1822) ; Black v. Brennan, 5 Dana, (Ky.) 310 (1837) ; Cook v. Kane, 13 Or. 482, 11 Pac. 226, 57 Am. Kep. 28 (1886) ; Beale on Innkeepers and Hotels, § 261. 3 2 Parts of the opinion are omitted. 292 THE OBLIGATION OF THE SHIPPER. (Part 3 it was beginning to become sour, and would soon have greatly de- teriorated in value. The defendants kept it on hand in store for about two months ; and at the expiration of that time, being still unable to find either the owner or the consignee, and it being out of their power to procure a warehouse in which they could store it for a longer time, they caused it to be sold at public auction, and received the proceeds of the sale, which they have since retained in their possession. Upon these facts, the plaintiff in the first place contends that as Williamstown was the place of destination of the flour under the di- rections which he gave to the Racine & IMississippi Railroad Com- pany, and according to their agreement in the receipt given for it by them to him the defendants had no right to receive the flour at Groton, and were guilty of the unlawful conversion of it to their own use by transporting it thence to Wilmington ; although in such reception and transportation of it over their road they acted in good faith, and strictly in conformity to the bills and directions which were made and given by the agents of the Racine & Alississippi Company, and by which it was regularly accompanied over each and all the lines and routes of the successive carriers. The same person may be, and often is, not only a common carrier, but also the forwarding agent of the owner of the goods to be trans- ported. Story on Bailm. §§ 502, 537. He must necessarily act in the latter capacity whenever he receives goods which are to be for- warded not only on his own line, but to some distant point beyond it on the line of the next carrier, or on that of the last of several suc- cessive carriers on the regular and usual route and course of trans- portation, to which they are to be carried and there delivered to the consignee. The owner generally does not and cannot always accom- pany them and give his personal directions to each one of the succes- sive carriers. He therefore necessarily, in his own absence, devolves upon the carrier to whom he delivers the goods the duty, and invests him with authority to give the requisite and proper directions to each successive carrier to whom, in due course of transportation, they shall be passed over for the purpose of being forwarded to the place of their ultimate destination. Otherwise they would never reach that place. For the first carrier can only transport the goods over his own portion of the line ; and if he is not authorized to give the carrier with whose route his own connects directions in reference to their further transportation, they must stop at that point ; for although, in gen- eral, every carrier is bound to accept and forward all goods which are brought and tendered to him, yet he is not so bound unless he is duly and seasonably informed and advised of the place to which they are to be transported. Story on Bailm. § 532 ; Judson v. Western Rail- road, 4 Allen, 520, 81 Am. Dec. 718. Hence it results b}^ inevitable implication that when an owner of goods delivers them to a carrier to be transported over his route, and thence over the route of a succeeding carrier, or the routes of several Ch. 1) FREIGHT. 293 successive carriers, he makes and constitutes the persons to whom he delivers them his forwarding agents, for whose acts in the execution of that agency he is himself responsible.^^ And therefore if the sev- eral successive carriers carry the goods according to the directions which are given by the forwarding agents, they act under the author- ity of the owner, and cannot in any sense be considered as wrongdoers, although they are carried to a place to which he did not intend that they should be sent. And in such case the last carrier will be en- titled to a lien upon the goods, not only for the freight earned by him on his own part of the route, but also for all the freight which has been accumulating from the commencement of the carriage until he receives them, which, according to a very convenient custom, which is now fully recognized and established as a proper and legal proceed- ing, he has paid to the preceding carriers. Stevens v. Boston & Wor- cester Railroad, 8 Gray, 266. Applying these rules and principles to the facts developed in the present case, the conclusion is plain and inevitable. It is conceded by the plaintiff, and agreed by the parties, that the flour was carried by the Racine & Mississippi Railroad Company over their road, and was then delivered to the carrier with whose route their own connected, and was thence transported in strict compliance with and exactly ac- cording to the directions given by them and contained in the bills which they forwarded with and caused to accompany the flour over the whole route from Racine to Wilmington, by the several successive carriers, and among others by the defendants. The Racine & Mis- sissippi Company were the duly constituted forwarding agents of the plaintiff; and as the defendants acted under their authority, they rightfully received the flour at Groton and carried it to Wilmington. And having under that authority paid all the freight which had ac- cumulated in the whole course of the conveyance, including that which 3 3 Ace. Glover v. Cape Girardeau R. Co., 05 Mo. App. 360, G9 S. W. 590 (1902). goods forwarded by roundabout route; Goodin v. So. Ry. Co., 125 Ga. 630 54 S E 720, 6 L. R. A. (N. S.) 1054 (1906). rate in excess of first carrier's guarantee; Thomas v. F. & C. Ry. Co.. 116 Ky. 879, 76 S. W. 1093 (1903). rate in excess of first carrier's contract; Wells v. Tliomas, 27 Mo. 17, 72 Am. Dec. 228 (1858), initial carrier contracted to deliver at destination, final carrier without notice held to have lien for his usual freight and for back freight paid to intermediate carrier, though in excess of contract rate. » * * * -^'g have seen that the Union Pacific and the Denver & Rio Grande Companies had entered into an agreement to disregard all directions requiring goods to go over other lines, and that, in pursuance thereof, all routing directions to the contrary were being ignored by both companies. * * * Under these circumstances we are of the opinion that the court be- low was warranted in finding that the possession of the property was not ob- tained in good faith by the defendant in the ordinary or usual course of busi- ness between connecting carriers, but that such possession was wrongful and illegal, and that the defendant was consequently not entitled to a carrier's lien upon the same, either for its own charges or those advanced to the for- mer carrier, and therefore there was no error in entering judgment for plain- tiff." Hayt, J., in Denver, etc., Co. v. Hill, 13 Colo. 35, 21 Pac. 014, 4 L. R, A. 376 (1889). 294 THE OBLIGATION OF THE SHIPPER. (Part 3 had been charged by the forwarding agent, up to the time when they received the flour, they were, as soon as it was conveyed to and de- posited in their own freight house, entitled to a Hen thereon for the entire freight thus paid and earned. And they cannot, either by the transportation of it under such circumstances over their own road, or by the detention thereof for the purpose of enforcing their lien upon it, be held to have unlawfully converted it to their own use. This conclusion does not at all conflict with the decision in the case of Robinson v. Baker, 5 Cush. 137. 51 Am. Dec. 54 [ante, p. 288], upon which the plaintiflF. in support of his position, chiefly relie-s. For there is an essential difference between the facts in the present and those which appeared in that case. * * * The service which the Old Clin- ton Line Company was to render was exclusively in their capacity as common carriers. They had only to carry the flour to Albany and there deliver it to Witt. They had no other duty to perform ; no right to ex- ercise any control over it for any other purpose. They were not, therefore, the forwarding agents of the plaintiff, nor invested by him with any authority to give directions as to further transportation of the flour, or to make any other disposition of it than its delivery to Witt. * * * But if they had been the forwarding agents of the owner he would have been responsible for their acts, and his consent to the diversion of the property from its intended route of transpor- tation would have resulted by implication from their directions, and the respective carriers would then have become entitled to hold it under a lien to secure payment of the freight. When the flour had been carried over their road to Wilmington and deposited at that place in their warehouse, the defendants had, as has been shown above, a lien upon it for all the freight which had been earned in its transportation from Racine. But this gave them only a right to detain it until they were paid ; not to sell it to obtain the remuneration to which they were entitled. In the case of Lickbarrow v. Mason, 6 East, 21, it is said by the court that an owner may sell or dispose of his property as he pleases ; but he who has a lien only on goods has no right to do so ; he can only detain them until payment of the sum for which they are chargeable. And the rule which is now well established, that a party having a lien only, with- out a power of sale superadded by special agreement, cannot lawfully sell the chattel for his reimbursement, is as applicable to carriers as it is to all other persons having the like claim upon property in their possession. Jones v. Pearle, 1 Stra. 557 ; 2 Kent, Com. (Gth Ed.) 6-i2 : Doane v. Russell, 3 Gray, 382. It is in distinct recognition of this principle that the Legislature have provided that when the owner or consignee of fresh meat, and of certain other enumerated articles lia- ble soon to perish for want of care, shall not pay for the transpor- tation and take them away, common carriers who have a lien thereon for the freight may sell the same without any delay, and hold the pro- ceeds, subject to their own lawful charges, for the use of the owner. Ch. 1) FREIGHT. 295 And such also is the provision in relation to trunks, parcels, and pas- sengers' effects left unclaimed at any passenger station of a railroad company for a period of six months after arrival and deposit therein. Gen. St. c. 80, §■§ 1, 2, 5. This enumeration of particular cases, in which the right to sell and dispose of certain goods and chattels trans- ported is conferred upon common carriers, operates, according to a familiar rule of law, as a denial or exclusion of their right in all other instances. None of the provisions of the statute referred to extends to the case of flour transported in barrels as an article of merchandise. And therefore the defendants had no authority under the statute and no right at law to sell the flour which belonged to the plaintif?, although they had a valid and subsisting lien upon it, and were unable to find, after diligent inquiry, where the person to whom it ought to be de- livered resided or had his place of business, and there was danger of its becoming worthless by longer detention of it in their warehouse. And consequently the sale which they made was an unlawful conver- sion of it to their own use which renders them liable in an action of tort to the owner, for its value, or rather for the value of all the right and interest which he at that time had in it, which is the merchantable value less the amount of the lien upon it. The plaintifif, therefore, may maintain this action, and is entitled to recover as damages the balance left after deducting from the sum which was the fair mer- chantable value of the flour at the time of the conversion the amount for which, upon the principles before stated, they had a lien upon it, with interest from the time of demand, or the date of the writ. And as the sale was unlawful, the expenses incurred in making it cannot be proved for the purpose of diminishing the damages which the plaintiff ought to recover.^* Judgment is therefore to be rendered for him. Unless the parties agree upon the amount, the cause must be sent to an assessor, or sub- mitted to a jury if either party requires it, to assess the damages. 84 Compare Butler v. Murray, ante, p. 129. 296 THE OBLIGATION OF THE SHIPPER. (Part 3 CHAPTER II CHARACTER OF GOODS PIERCE V. WIXSOR. (District Court. D. Massachusetts, 1861. 2 Spr. 35, Fed. Cas. No. 11.1.51.) The defendants chartered of the libelant the ship Golden City for a voyage to San Francisco, and then put her up as a general ship. A quantity of mastic was shipped on freight by the United States gov- ernment from their works at New York to the fort at Fort Point, San Francisco. The mastic was in cakes, and was stowed in bulk in the run. Upon the arrival of the ship out, it w^as found that the mastic had run together and among the cargo, and had then hardened in one solid mass, adhering to the sides of the ship and to the cargo next to it. The damage done to the rest of the cargo, which was paid by the master on account of the ship, and the extra expense in breaking the mastic out with drills and chisels, amounted to from Si. TOO to $2,000. Two other ships, the Dashaway and Fleet ^\'ing, which sailed shortly after the Golden City, also had some mastic shipped in the same way, w^hich arrived out in the same condition. These cargoes, with one other shipped in casks — after the news of the condition in which the earlier cargoes had arrived out had reached here — were all the cargoes ever shipped by the United States, or, so far as known by anybody, to San Francisco, or on any long voyage. The article is manufactured by the United States government at Xew York, and is used on fortifications, and had been repeatedly shipped to the various forts on the Atlantic coast, and in the Gulf, and had always been shipped in bulk, without giving any indications that the heat in the hold of a vessel would, under any circumstances, affect it. This suit was brought by the owner of the ship against the charterers, to recover the damages sustained by him in payment to other shippers for injury to their goods and for the extra expense in discharging. It was not pretended that the defendants had any knowl- edge of the dangerous character of this article; and so far as any thing was known of the article, it was thought perfectly safe to ship it in this way. The libelant claimed to recover, upon the ground that there is always an implied contract, on the part of the charterer or general shipper of goods, that the goods shipped shall not be of a character dangerous to the ship and the residue of the cargo ; and that the want of knowledge of the true character of the goods will not re- lease such charterer or shipper of the goods from this responsibility. SpR-^GUE, District Judge. In Brass v. ]\laitland, 6 El. & Bl. 470, Ch. 2) CHARACTER OF GOODS. 297 the Chief Justice evidently took the view that the shipper of goods in a general ship impliedly contracts that the goods shipped shall not be injurious to other goods shipped in the usual course of lading a ship, and that this rule is not affected by the fact that the shipper had in- nocently shipped dangerous goods without knowledge of their true character. This principle is a sound one. It throws the loss upon the party who generally has the best means of informing himself as to the character of the article shipped. A different rule might encourage negligence on the part of the shipper, and even induce him to try ex- periments with articles unknown to commerce, if he could set up his ignorance of the real character of the articles as a defence to any damage caused by the shipment. This case is not between the ship- per and the shipowner; but the rule applies equally well to the case of a charterer. He hires the whole ship, and has a right to put on board a full cargo, and he must not put on board goods which will injure the ship, and cause her owners to become responsible to other shippers for damage done. Decree for libelant for money paid by him for other goods dam- aged, and for extra expense incurred in getting out the mastic.^ 1 Affirmed in the Circuit Court. 2 Cliflf. 18, Fed. Cas. No. 11,150. In Acatos v. Burns. L. R. 3 Ex. 282 (1878), shipowners unsuccessfully claimed damages causeell. [1891] 1 Q. B. 283, demurrage at port of loading ; Chappel V. Comfort, 10 C. B. (X. S.) 802 (1861;, marginal clause, "There are eight days for unloading." "The bills of lading, as already mentioned, provide only for 'paying freight for said lumber as per charter party dated 7th March. 1893. and average ac- customed.' They do not mention demurrage, or refer to any provisions of the charter, other than those concerning freight and average. It is well set- tled that a bill of lading in such a form does not subject an indorsee thereof, who receives the goods under it. to any of those other provisions of the char- ter. It does not give him notice of, or render him liable to, the specific pro- visions of the charter, which require the discharge of a certain quantity of lumber per day, or, in default thereof, the payment of a specific sum for the longer detention of the vessel ; but he is entitled to take the goods within a reasonable time after arrival, and is liable to pay damages for undue delay in taking them, according to the ordinary rules of law which govern in the absence of specific agreement." Gray. J., in Grossman v. Burrill, 179 U. S. 100. 21 Sup. Ct, 38, 45 L. Ed. 106 (1900). In Leer v. Yates, 3 Taunt. 387 (1811), bills of lading provided that the goods were "to be taken out in 20 days after arrival, or to pay £4 per day de- murrage," Consignees of goods stowed at the bottom of the hold were pre- vented from taking them out by the delay of the consignees of the goods stowed on top. Mansfield. C. J., said; "It is impossible to decide these three very singular cases without being struck with the enormous gain which the owner may get by this bill of lading, and which may possibly much exceed what in justice and conscience he ought to have. This Is a general ship ; 30 or 40 persons may have goods on board, and for every one of them the owner may have his £4 per day." Ace. Dobson v. Droop, M. & M. 441 (1830) ; Brett, L. J., in Porteus v. Wat- ney, 3 Q. B. D. 534, 543 (1878). 302 THE OBLIGATION OF THE SHIPPER. (Part 3 was nearly loaded for her return voyage, Holt had become bankrupt and was indebted to his agent at the loading port. In consequence of proceedings begun by the agent, part of the cargo was removed by officers of the Russian government, and the ship delayed beyond the 45 days. On her arrival at Liverpool, plaintiff, who was Holt's as- signee in bankruptcy, paid freight on the goods carried, but defendants would not deliver them unless payment was also made for detention of the vessel and for freight lost by the failure to load a full cargo and by the removal of cargo loaded. Plaintifif to obtain the goods paid under protest the amount demanded and brought this action to get his money back. Lord Ellkxborough, C. J.* I am clearly of opinion that no lien existed at the time of bringing this action, the only demand upon which a lien did exist, that is, on the cargo actually brought home, having been satisfied. Freight is only due at the common law for the regularly bringing of the goods to the place of destination, pursu- ant to the stipulations and terms of the charter party. If there be not a regular loading of the goods on the part of the freighter so as to give occasion to the earning of freight, that becomes the subject of dead freight, and is a claim to be made by the shipowner upon the covenant, or if the goods having been once regularly put on board, cause shall afterwards be given by the freighter, which prevents the freight from becoming due on them, in that case also it is a subject of claim under the covenant contained in the charter party. Here the question is not whether there be any remedy by action, but only whether there be the specific remedy of lien on the cargo. A great deal of argument has been very ingeniously rested on the clause which is to be found at the conclusion of the charter party, by which the parties "mutually bind and oblige themselves, especially the owners, the ship, her tackle and appurtenances, and the freighter, the goods and merchandizes, to be laden and put on board the ship on that voy- age, each unto the other in the penal sum of i3,000." This is a mu- tual penalty, but if we are to consider the clause in the way of a lien, the remedy will not be mutual ; it will stand thus, that the owner of the ship may detain the goods of the freighter as a security for the performance of covenants, but the freighter can never detain the ship, so that there will be no mutuality of lien between them. * * * The clause is not familiar to us in England, but has been imported from Pothier. It is, like the charter party, I believe, of French origin, and I know not whether there may not be some immediate proceed- ing upon it in that country. * * * But it is absurd to imagine that this clause, which cannot be mutually obligatory, was intended to give a lien on one side without the like remedy on the other. Whatever benefit therefore is to be derived out of it, seems as if it must be de- 4 The statement of facts has been rewritten, and parts of Lord Ellenbor- ough's opinion omitted. Bayley, J., delivered a concurring opinion. Ch. 3) DISPATCH AND DEMURRAGE. 303 rived through the medium of a court of equity. There has been no remedy afforded under it in a court of law, and still less by means of actual lien ; which is the act of the party. This is not freight earned within the terms of the charter party ; it falls under the general cove- nants, either for demurrage or for providing a full cargo, but the par- ty cannot have this suppletory remedy by way of lien. It would be going too far to hold that this clause gave him a lien for the nonper- formance of covenants. If he had a lien, the consequence would be that the other party might obtain the goods clear of the lien by tender- ing the money ; but he could not by so doing absolve himself from the nonperformance of covenants. * * * IvE Blanc, J. This is a question, not arising upon an action brought to recover the value of the goods from the shipowners, but upon an action brought by the assignee of the freighter to recover money paid by him to the shipowners under protest. With respect to the cargo which has been brought home there is not any question ; because it is clear the shipowners were entitled to detain it, until the money due for freight was paid. As to that therefore there can be no doubt that the plaintiff is not entitled. The next question arises upon a claim for dead freight, or unoccupied space, wdiether the ship- owners can detain the cargo actually brought home until they are satisfied in payment for a full cargo. And the next question arises upon a claim for demurrage. With respect to these two claims, I think that no question could have been made, had it not been for the concluding penal clause in the charter party ; for without that, the case of Phillips v. Rodie, 15 East, 547, would have precluded the question. These two points therefore depend upon that clause. There is only one more remaining question, which arises upon a claim made for freight, in respect of goods which were actually put on board in Russia, but taken out again by process conformably to the Russian law, in consequence of the charterer having failed in an- swering the bills drawn upon him. That question depends upon whether freight was earned in respect of them so as to entitle the ship- owners to detain. The two points upon the claim for demurrage and dead freight have been fully discussed and explained by my Lord. It is impossible that this obligatory clause can be construed to mean that the owners of the ship should have a lien on the goods brought home, for every breach of covenant contained in the charter party, as for instance the not loading a full cargo and for demurrage. The remedy for such matters rests entirely in covenant. The clause could not mean to give the shipowners a lien. If such had been its inten- tion it might easily have been expressed in a very few words, that the shipowners should have the right to detain the goods which should be brought home, until all their demands under the covenants were satisfied. Instead of this, the clause in question is introduced, not for the first time, the effect of which, whatever it may be, cannot be attained fully in a court of law. One strong argument against it is, 304 TUE OBLIGATION OF THE SHIPrKR, (Part 3 that one party cannot by possibility avail himself of the lien, I mean the owner of the goods cannot withhold the ship ; and so I think the ship- owners cannot avail themselves of this clause, to detain the goods un- til these specific sums are paid, or in other words, their demands under the covenants are satisfied. They must rest on the compensation to be obtained in damages for the several breaches of covenant. As to the last point, I mean the claim in respect of those goods which were put on board and afterwards relanded and restored, I think the goods cannot be considered as having become liable to freight, because no freight was earned upon them. There is no case to show that freight has been considered as earned for goods merely put on board, and not carried home, but taken away, before any step made towards the performance of the voyage. It might be a breach of covenant to unload them, after they were once on board, and there- by prevent the party from acquiring his freight upon them, but freight cannot be considered as earned merely from the circumstance of the goods having been put on board. An action might lie against the party for misconducting himself, but I cannot consider that freight has been earned upon them, subject to the payment of which the ship- owners are entitled to detain the goods actually brought home. Nei- ther am I prepared to say that the freighter's agent abroad was to be considered as acting in respect of the relanding of the goods as agent for the freighter at home. He acted indeed as his agent in loading the goods, but hostilely to his employer afterwards, when he proceeded under the process of the courts in Russia, though what was done by him was in consequence of the act of his principal. It seems to me impossible in any view of the case, in a court of law to consider that the shipowners are entitled to detain these goods for this sum of money claimed as freight. Consequently, the defendants are only entitled so far as freight is due to them on the first point. With respect to the other three sums of money, I think the plaintiff is entitled to recover. ° 8 Ace. Phillips V. Roclie, 15 East, 547 (1812); Nicolette Lumber Co. v. People's Lumber Co., 213 Pa. 379, 62 Atl. lOGO, 3 L. R. A. (N. S.) 327, 110 Am. St. Rep. 550 (1906), unreasonable detention. Maeitime Lien for Deseurrage.— A carrier by sea may proceed in ad- miralty by suit against his cargo to have it sold to satisfy a claim for stip- ulated demurrage or for damages from the detention of his vessel. This right, called a "maritime lien," is not dependent upon an agreement for a lien, a right of detainer, or, it seems, a personal claim against the consignee. It is not necessarily lost by delivery; but it may be relinquished by delivery, or de- feated as against a consignee by giving a bill of lading whose terms are In- consistent with it. The Hyperion's Cargo, 2 Lowell. 93, Fed. Cas. No. 6,987 (1871) ; Pioneer Fuel Co. v. McBrier, 84 Fed. 495, 28 C. C. A. 466 (1897). Meaning of "Demurrage."— In Gray v. Carr. L. R. 6 Q. B. 522 (1871), the charter party provided that 50 running days should be allowed the merchant for loading, "and 10 days on demurrage over and above the said laying days, at £8 per day," and that the carrier should have a lien on the cargo for all freight and demurrage. It was held that this did not give a lien for damages arising from the detention of the ship beyond the 10 days. Cleasby, J., said: Ch. 3) DISPATCH AND DEMURRAGE. 305 CROMMELIN v. NEW YORK & H. R. CO. (Court of Appeals of New York, 18G8. 43* N. Y. 90, 1 Abb. Dec. 472.) Action to recover possession of blocks of marble shipped to plain- tiff over the Hne of defendant railroad company. Plaintiff had paid the freight. The trial judge in effect told the jury that defendant had a lien by reason of plaintiff's delay in taking the goods. Defend- ant had a verdict. The General Term ordered a new trial. Defend- ant appealed.^ Hunt, C. J. It is to be assumed, from the evidence and from the finding of the jury, that the plaintiff had received notice of the ar- rival of his marble. It is to be further assumed, although the evi- dence was contradictory on that point, that the plaintiff had been in- formed by the agent of the defendants, that a charge would be made for the detention of the cars longer than 48 hours. Had an action been brought to recover the damages or 'the agreed price for this detention, it would, upon these facts, have been sustainable. The legal question here is, Had the defendants a lien upon the mar- ble for the delay in taking it, which justified their refusal to deliver j|.p * * * jn the present case the marble was not deposited in any warehouse or place of storage. The character of a warehouseman, or any liability for its protection or storage, after 48 hours, was ex- pressly disclaimed by the defendants, in their notice of October 12th.' It was never removed from the cars, but remained upon them in the pubhc highway, until after the plaintiff had demanded its delivery to him. The defendants insist that by the goods being left upon their cars, and by the delay of the plaintiff to remove them within 48 hours after their arrival, injury, inconvenience, and expense was suffered by them. This is quite probable. It constitutes, however, a claim in the nature of demurrage, and does not fall within the principle of those transactions, which give a lien upon the goods. It is a breach of "iNow the word 'demurrage' has a known legal meaning, viz., the additional period during which the vessel may remain by agreement of the parties.'' But in Lockhart v. Falk, L. R. 10 Ex. 1.32 (187.5), the same judge said: "The word 'demurrage' no doubt properly signifies the agreed additional pay- nieut (generally per day) for an allowed detention beyond a period either specified in or to be collected from the instrument ; but it has also a popular or more general meaning of compensation for undue detention, and from the whole of each charter party containing the clause in question we must col- lect what is the proper meaning to be assigned to It." "Agreements for days on demurrage are now comparatively rare. The more usual plan is to fix a rate of 'demurrage' to be paid where the allowed time is exceeded ; that is, where the contract is broken. But, further, the word is commonly used to denote all payments claimed for detention, whether the detention has been allowed by the contract or not, and whether the rate has been fixed or not." Carver, Carriage by Sea, § 648, note. 6 The statement has been rewritten, and parts of the opinion of Hunt, C. J., have been omitted. Green Carr. — 20 306 THE OBLIGATION OF THE SHIPPER. (Part 3 contract simply, for which, as in case of a contract in reference to pilotage or port charges, the party must seek his redress in the ordi- nary manner. Abb. on Shipp. 286; Birley v. Gladstone, 3 M. & S. ;i05 [ante, p. 301]. * * * ClerkE, J., also expressed the opinion that the use of the cars while standing in the street was not storage, and gave no lien for the charge therefor. A majority of the Judges concurred. Order affirmed, with costs, and judgment absolute for plaintiff.'' 7 Ace. Chicago & N. W. Ry. Co. v. Jenkins. 103 111. 588 (1882) : Burlington & M. R. Co. V. Chicago Lumber Co., 15 Neb. 390, 19 N. W. 451 (1SS4) ; Wallace v. B. & O. Co., 216 Pa. 311, 65 Atl. 665 (1907). Ch. 4) COMPENSATION FOR EXTRAORDINARY SERVICES. 307 CHAPTER IV COMPENSATION FOR EXTRAORDINARY SERVICES MILLER V. AIANSFIELD. I^upreme Judicial Court of Massachusetts, 1873. 112 Mass. 260.) Tort for conversion of 100 barrels of flour. The evidence offered by defendant tended to show that he was an agent of the Housatonic Railroad Company, over whose line the flour had been shipped to plaintiff, that plaintiff allowed the flour to remain on the car for five days after notice of its arrival, and that defendant then refused to permit him to remove it, though tendered the freight, unless he alsO' paid a charge of $3 a day for delay in unloading beyond 2i hours. Other facts are stated in the opinion. The court instructed the jury that there was no lien for the charge for delay in unloading, and plain- tiff had a verdict. Exceptions.^ jNIgrton, J, For the purposes of this hearing, all the facts which the defendant offered to show are to be taken as established. We must assume, therefore, that there was an existing regulation and usage of the Housatonic Railroad Company that car loads of freight like that of the plaintiff's should be unloaded by the consignee within 24 hours after notice to him of their arrival, that for delay in unload- ing, after 24 hours, the consignee should pay $2 a day for each car belonging to other railroad companies, and that this regulation and usage was known to the plaintiff. Being known to the plaintiff, it is to be presumed, in the absence of any evidence to the contrary, that the parties contracted in ref- erence to it. It enters into and forms part of their contract, and the railroad company is entitled to recover the amount fixed by the usage, by virtue of the plaintiff's promise to pay it. This charge is, in its essential character, a charge for storage. After the arrival of the goods at their destination the liability of the company as common carriers ceased, but they became liable for the custody of the goods as w^arehousemen, and, if they were not removed within a reasonable time, were entitled to compensation, for which they had a lien as ware- housemen. Norway Plains Co. v. Boston & Maine Railroad, 1 Gray, 263, 61 Am. Dec. 423. The parties, by their agreement, fixed the rate of compensation which the company should receive and the time when it should commence. It is not material that the goods remained in the cars instead of being put into a storehouse. The responsibility of the 1 The statemeut of facts has been rewritten. 308 THE OBLIGATION OF THE SHIPPER. (Part 3 company for their custody was the same as if they had been stored, and they had the right to retain them until their charg-es were paid. We are of opinion, therefore, that instructions should have been given substantially as requested by the defendant, and that the pre- siding judge erred in the instructions which he gave. Both parties have assumed that the question involved in the case is the same as if the suit had been directly against the railroad com- pany, and we have, therefore, so treated it. Exceptions sustained.- CARGO ex ARGOS. (Privy CouncU, 1873. L. IL 5 P. C. 134.) Action in admiralty for freight, demurrage, and expenses against 147 barrels of petroleum. The plaintiff owned the steamship Argos, and employed her with other ships in trade between London and ports in the north of France. Defendant shipped the petroleum on the Argos under a bill of lading by whose terms it was to be delivered at Havre to his order. The vessel sailed for Havre with a general cargo, but on arrival the authorities compelled her to leave the port because of the petroleum; France being then at war with Germany and muni- tions of war lying about the quay. Her master took her to Honfleur and to Trouville, but was compelled for the same reasons to leave those ports. He then returned to Havre and obtained permission to discharge the petroleum into a lighter in the outer harbor and the rest of the cargo at the quay, which was done. When the Argos was ready to return to London, the petroleum had been four days on the lighter, ready for delivery, but no one had appeared to take it. The master reloaded it and brought it back to London. The amounts claimed in the action included the till of lading freight to Havre of £24. 4s., an equal sum as freight back to London, the hire of the lighter at Havre, extra coal consumed, and other expenses incurred in going into Honfleur and Trouville, and demurrage at the bill of lading rate for time so lost. The trial judge allowed the claim in full.^ Sir Montague E. Smith. * * * It can scarcely be contended 2 Acc. Miller v. Ga. R, Co., 88 Ga. 563, 15 S. E. 316, IS U R. A. 323, 30 Am. St. Rep. 170 (1891) ; Norfolk & W. R. Co. v. Adams. 90 Va. 393, 18 S. E. 673, 22 L. R. A. 530, 44 Am. St. Rep. 916 (1894) ; Gulf City Co. v. Louisville & N. R. Co., 121 Ala. 021, 25 South. 579 (1899); Darlington v. Mo. Pac. Rv. Co., 99 Mo. App. 1, 72 S. W. 122 (1902) ; Schumacher v. C. & N. Ry. Co., 207 111. 199, 69 N. E. 825 (1904), and cases cited 22 L. R. A. 530, note. And see Ky. Wagon Mfg. Co. V. Ohio & M. R. Co., 98 Ky. 152, 32 S. W. 995, 36 L. R. A. 850, 56 Am. St. Rep. 326 (1895). 3 The statement of facts has been rewritten, and parts of the opinion -omitted. Ch. 4) COMPENSATION FOR EXTRAORDINARY SERVICES. <{09 that the master would have been justified, when he found the petrole- tmi could not be landed, in at once leaving the port without waiting a reasonable time to give to the defendant an opportunity of receiving it there. He might, even if the prohibition had not existed, have de- sired to send the goods to Rouen or elsewhere by water, instead of landing them. Their Lordships, therefore, think that the means of performing the contract were not exhausted, nor the contract dis- solved, when it was found the ship could not be discharged at the quay and the cargo landed, and that they ought to hold that, the mas- ter being ready and able to give delivery in the harbor, and having kept the goods a reasonable time there for the purpose, the freight has been earned. * * * The next question to be considered is whether the plaintiff is en- titled to compensation in the shape of homeward freight for bringing the petroleum back to England. It seems to be a reasonable infer- ence, from the facts, that after the four days during which the petro- leum had been lying in the harbor had expired, the authorities would not have allowed it to remain there. It was still in the master's pos- session, and the question is whether he should have destroyed or saved it. If he was justified in trying to save it, their Lordships think he did the best for the interest of the defendant in bringing it back to England. Whether he was so justified is the question to be consid- ered. As pointed out by the judge of the Admiralty Court, the same kind of question arose in Christy v. Row, 1 Taunt. 300. In that case Sir Tames Mansfield says: "Where a ship is chartered upon one voyage outwards only, with no reference to her return, and no contemplation of a disappointment happening, no decision, which I have been able to find, determines what shall be done in case the voyage is defeated. The books throw no light on the subject. The natural justice of the matter seems obvious ; that a master should do that which a wise and prudent man would think most conducive to the benefit of all concerned. But it appears to be wholly voluntary. I do not know that he is bound to do it; and yet. if it were a cargo of cloth or other val- uable merchandise, it would be a great hardship that he might be at liberty to cast it overboard. It is singular that such a question should at this day remain undecided." The precise point does not seem to have been subsequently decided ; but several cases have since arisen in which the nature and scope of the duty of the master, as agent of the merchant, have been examined and defined, amongst others, Tronson v. Dent, 8 Moore, P. C. -119 ; Notara v. Henderson [ante, p. 73] ; Australasian Navigation Com- pany V. Morse, L. R. 4 P. C. 232. It results from them that not merely is a power given, but a duty is cast on the master in many cases of accident and emergency to act for the safety of the cargo, in such manner as may be best under the circumstances in which it may be 310 THE OBLIGATION OF THE SHIPPER. (Part 3 placed, and that, as a correlative right, he is entitled to charge its owner with the expenses properly incurred in so doing. Most of the decisions have related to cases where the accident hap- pened before the completion of the voyage ; but their Lordships think it ought not to be laid down that all obligation on the part of the mas- ter to act for the merchant ceases after a reasonable time for the lat- ter to take delivery of the cargo has expired. It is well established that, if the ship has waited a reasonable time to deliver goods from her side, the master may land and warehouse them at the charge of the merchant; and it cannot be doubted that it would be his duty to do so rather than to throw them overboard. In a case like the pres- ent, where the goods could neither be landed nor remain where they were, it seems to be a legitimate extension of the implied agency of the master to hold that, in the absence of all advices, he had authority to carry or send them on to such other place as in his judgment, pru- dently exercised, appeared to be most convenient for their owner; and, if so, it will follow from established principles that the expenses properly incurred may be charged to him. Their Lordships have no doubt that bringing the goods back to England was in fact the best and cheapest way of making them avail- able to the defendant, and that they were brought back at less charge in the Argos than if they had been sent in another ship. If the goods had been of a nature which ought to have led the master to know that on their arrival they would not have been worth the expenses incurred in bringing them back, a dififerent question would arise. But, in the present case, their value, of which the defendant has taken the benefit by asking for and obtaining the goods, far exceeded the cost. The authority of the master, being founded on necessity, would not have arisen, if he could have obtained instructions from the defend- ant or his assignees. But under the circumstances this was not pos- sible. Indeed this point was not relied on at the bar. Their Lordships, for the above reasons are of opinion that the plaintiff has made out a case for compensation for bringing back the goods to England. But they think the plaintiff is not entitled to recover the amount claimed for demurrage and expenses in attempting to enter the ports of Honfleur and Trouville. These efforts may have been made by him in the interest of the cargo as well as the ship ; but they were made before the ship was ready to deliver at all in the port of Havre, and the expenses of this deviation and of the return to Havre, after permission had been obtained to discharge there, must be treated as expenses of the voyage, and not as incurred for the benefit of the de- fendant. The charges for the hire of the vessel and of storing the petrole- um in her at Havre, after permission had been obtained for its dis- charge there, stand on different ground. If the ship had then waited in the outer harbor with the petroleum on board, the defendant would Ch. 4) COMPENSATION FOR EXTRAORDINARY SERVICES. 311 have been liable to pay demurrage at ilO. 10s. a day. It was obvious- ly, therefore, to his advantage under the circumstances for the mas- ter to hire the vessel, and thus relieve him from the heavy demurrage payable for the detention of the ship. The whole expense of this op- eration appears to be about ilo only. In the result their Lordships think the plaintiff is entitled to recover the outward freight, and the charge made for the carriage back to England, together £48. 8s., and also the £15 for the above expenses at Havre, in all £(33. 8s.* * * * 4 As to a carrier's right to reimbursement for expenses incurred in behalf of the goods, see Thurston v. More, 2 Select Pleas in Ct. of Admiralty, 90 (1557); Hingstou V. Wendt, 1 Q. B. D. 3G7 (1S76), has lien for expense of preserving goods after wreck of vessel; Gt. No. Ry. Co. v. Swaffleld, L. R. 9 Ex. 132 (1874), keep of horse refused by consignee ; Payne v. Ralli (D. C.) 74 Fed. 563 (1896). putting cargo defectivelv packed into condition for delivery; Guesnard V. L. & N. R. Co.. 76 Ala. 453 (1884) ; Waliash R. Co. v. Pearce, 192 U. S. 179, 24 Sup. Ct. 231, 48 L. Ed. 397 (l!;x)4), has lien for customs duties paid; West- ern Trans. Co. v. Hoyt. ante, p. 2(;6. payment of prior carrier's charges; Bissel V. Price, 16 III. 408 (1855), payment of charges of shipping agent. And see Notara v. Henderson, ante. p. 73, and p. 128, note. The right of reimburse- ment mav exist, though tlie charge paid was not a valid claim. Bowman v. Hilton. 11 Ohio, 303 (1842) ; Knight v. Providence, etc., R. Co.. 13 R. T. 572. 43 Am. Rep. 46 (1882), payment of prior carrier's freight uncollectible because of hidden damage to goods ; White v. Yann, 6 Humph. (Tenn.) 70, 44 Am. Dec. 294 (1845). r'avment of charges of shipping agent usual, but unauthorized. In Wabash v. Pearce, 192 U. S. 179. 24 Sup. Ct. 231. 48 L. Ed. 397 (1904), Brewer, J., for the court, quoted the following passage from Overton on Liens, § 135: "The lien attaches, not alone for the particular item of charge for car- riage due upon the goods, but for such other legal charges as the carrier in the course of his duty may have been comi>elled to expend upon their care, custody and preservation. As when a railway. In the transportation of live stock, as cattle, horses, and swine, has been at the expense of labor and money in feeding and preserving them, such expense is a legitimate charge in addition to their transportation. For the carrier is under special obliga- tion to guard and protect such property, hence the propriety of a lien for such extraordinary expense and care." PART IV THE EXCEPTIONAL LIABILITY OF A COMMON CARRIER CHAPTER I LIABILITY FOR DAMAGE OR LOSS IN THE CARRIAGE OF GOODS WOOD.UFE'S CASE. (Court of Queen's Bencb, 159G. 0\YeD, 57.) In an account the plaintiff declared, that he delivered goods to the defendant to merchandise for him ; the defendant said, that the goods with divers other of his own proper goods were taken at sea, where he was robbed of them. And it was moved that this was no plea in bar of an account, but, if it be any plea, it shall be a plea before auditors in discharge ; but admitting it be a good bar, yet it is not well pleaded, for the plaintiff as it is pleaded cannot traverse the robbing and try it, for things done super altum mare are not tryable here, wherefore the defendant ought to have pleaded that he was robbed at London, or any other certain place upon the land, and maintain it by proofs that he was robbed on the sea. Gawdy. It is no good plea, for he hath confest himself to be accountable by the receipt, 9 Edw, IV, and it is no plea before audit- ors, no more than the case was in 9 Edw. IV, for a carrier to say that he was robbed. PoPHAM. It is a good plea before auditors, and there is a difference between carriers and other servants and factors; for carriers are paid for their carriage, and take upon them safely to carry and deliver the things received. Gawdy. If rebels break a prison, whereby the prisoners escape, yet the gaoler shall be responsible for them, as it is in the 33 Hen. VI.^ PoPHAM. In that case the gaoler hath remedy over against the rebels, but there is no remedy over in our case. Gawdy. Then the diversity is when the factor is robbed by pyrates, and when by enemies. PoPHAM. There is no difference. iThe Marshal's Case, post, p.. 3.57, note. (312) Ch. 1) DAMAGE OR LOSS IN CARRIAGE OF GOODS. 31^ INIORSE V. SLUE. (Court of King's Bench, 1G71. 1 Vent. 100. 23S.) An action upon the case was brought by the plaintiff against the defendant; and he declared, that whereas, according to the law and custom of England, masters and governors of ships which go from London beyond sea and take upon them to carry goods beyond sea, are bound to keep safely day and night the same goods, without loss or substraction, ita quod pro defectu of them, they may not come to any damage; and whfereas the 15 of May last, the defendant was master of a certain ship called the William and John, then riding at the port of London, and the plaintiff had caused to be laden on board her three trunks, and therein 400 pair of silk stockings and 174 pounds of silk, by him to be transported for a reasonable reward of freight to be paid, and he then and there did receive them, and ought to have transported them, etc., but he did so negligently keep them, that in default of suffi- cient care and custody of him and his servants, 17 May, the same were totally lost out of the said ship. Upon not guilty pleaded, a special verdict was found, viz. : That the ship lay in the river of Thames, in the port of London, in the parish of Stepney, in the county of Middlesex, prout, etc That the goods were delivered by the plaintiff on board the ship, prout, etc., to be transported to Cadiz in Spain. That the goods being on board, there were a sufficient number of men for to look after and attend her, left in her. That in the night came eleven persons on pretence of pressing of seamen for the king's service, and by force seized on these men (which were four or five, found to be sufficient as before) and took the goods. That the master was to have wages from the owners, and the mariners from the master. That she was of the bur- then of 150 tons, etc. So the question was, upon a trial at bar, whether the master were chargeable upon this matter? [Maynard insisted upon it: That the master was not chargeable; Say they, he is chargeable whilst he is here, but when he is gone out of the realm he is not chargeable, though the goods be taken from him. Which distinction, he said, had no foundation in law. Hale. C. J. It will lie upon you that are for the defendants, to show a difference betwixt a carrier and the master of a ship. And it will lie upon you that are for the plaintiff, to show why a master of a ship should be charged for a robbery committed within the realm, and not for a piracy committed at sea. It was urged by Mr. Holt for the plaintiff : That a hoyman and ferryman are bound to answer, and why not the master of a ship? The defendant proved: That there was no care- lessness nor negligent default in him. Maynard. He is not charge- able, if there be no negligence in him, because he is but a servant, the 314 EXCEPTIONAL LIABILITY OF COMMON CARRIER. (Part 4 owner takes the freight. Hale, C. J. He is exercitor navis. If we should let loose the master, the merchant would not be secure. And if we should be too quick upon him, it might discourage all masters; so that the consequence of this case is great.] ^ The case was argued two several terms at the bar, by Mr, Holt for the plaintiff, and Sir Francis Winnington for the defendant, and Mr. ]\Iolloy for the plaintiff, and Mr. Wallop for the defendant; and by the opinion of the whole court, judgment was given this term for the plaintiff. Hale, C. J. delivered the reasons as followeth. First, by the admiral civil law the master is not chargeable pro damno fatali, as in case of pirates, storm, etc., but where there is any negligence in him he is. Secondly. This case is not to be measured by the rules of the ad- miral law, because the ship was infra corpus comitatus. Then the first reason wherefore the master is liable is, because he takes a reward; and the usage is, that half wages is paid him before he goes out of the country. Secondly. If the master would, he might have made a caution for himself, which he omitting and taking in the goods generally, he shall answer for what happens.^ There was a case (not long since) when one brought a box to a carrier, in which there was a great sum of money, and the carrier demanded of the owner what was in it; who answered, that it was filled with silks and such like goods of mean value ; upon which the carrier took it, and was robbed. And resolved that he was liable. But if the carrier had told the owner that it was a dangerous time, and if there were money in it, he durst not take charge of it ; and the owner had answered as before, this matter would have excused the carrier. Thirdly. He which would take off the master in this case from the action must assign a difference between it and the case of a hoyman, common carrier or innholder. 'T is objected, that the master is but a servant to the owners. Answer. The law takes notice of him as more than a serv^ant. 'T is known, that h^ may impawn the ship if occasion be, and sell bona peritura ; he is rather an officer than a servant. In an escape the jailer may be charged, though the sheriff is also liable, for respondeat superior. But the turnkey cannot be sued, for he is but a mere serv- ant ; by the civil law the master or owner is chargeable at the election of the merchant. 'T is further objected, that he receives wages from the owners. 2 This passage is taken from the report in 1 Mod. 85. 3 "The defendant proved * * * that four is as many as are usually kept on board at half pay because freight comes in slowly." Mors v. Slew, 2 Keble, 866 (1671). " * * * When he took in the goods he might have cautioned against them not to take them in till farther time." Mors v. Slew, 3 Keble, 135 (1672). Ch. 1) DAMAGE OR LOSS IN CARRIAGE OF GOODS. 315 Answer. In effect the merchant pays him, for he pays the owners freight, so that 'tis but handed over by them to the master; if the freight be lost, the wages are lost too, for the rule is, freight is the mother of wages : therefore, though the declaration is, that the mas- ter received wages of the merchant, and the verdict is, that the own- ers pay it, 't is no material variance. Objection. 'T is found, that there were the usual number of men to guard the ship. Answer. True, for the ship, but not with reference to the goods, for the number ought to be more or less as the port is dangerous, and the goods of value, 33 H. VI, 1. If rebels break a jail, so that the prisoners escape, the jailer is liable ; but is otherwise of enemies ; so the master is not chargeable where the ship is spoiled by pirates. And if a carrier be robbed by an hundred men, he is never the more ex- cused.^ Holt, C. J.,^ dissenting, in LANE v. COTTON, 12 Mod. 472 (1701) : "For what is the reason that a carrier or innkeeper is bound to keep such goods, as he receives, at his peril? It is grounded upon great equity and justice; for if they were not chargeable for loss of goods, without assigning any particular default in them, they having such opportunity, as they have by the trust reposed in them, to cheat all people, they would be so apt to play the rogue and cheat people without almost a possibility of redress, by reason of the difficulty of proving a default particularly in them that the inconveniency would be very great. And though one may think it a hard case, that a poor carrier who is robbed on the road, without any manner of default in him, should be answerable for all the goods he takes ; yet the incon- veniency would be far more intolerable, if it were not so; for it would be in his power to combine with robbers, or to pretend a robbery or some other accident, without a possibility of remedy to the party; and the law will not expose him to so great a temptation, but he must be honest at his peril. And this is the reason of the civil law in this 4 "The liability of the shipowner as carrier for loss by thieves, which was clisoiissed at Westminster in 1G71. was treated as clear law in admiralty so early as 1640, and probably earlier." R. G. Marsden, in Select Pleas in the Court of Admiralty, vol. 2, p. Ixxx. Consulate of the Sea, e. 22. — Goods which have been once put on board and are Inscribed in the ship's book. If they are lost whilst in the ship, the managing owner of the ship ought to make compensation for the goods. "If a Master shall receive Goods at the Wharf or Key. or shall send his Boat for the same, and they happen to be lost, he shall lil^ewise answer both by the Marine Law and the Common Law. * * * He must not suffer the Lading to be stolen or imbezzled; if the same be, he must be responsible, un- less it be where there is vis major ; as if he be assaulted at Sea either by Enemies, Ships of Reprize, or Pirates, there, if no fault or negligence was in him. but that he performed the part of an honest, faithful, and valiant man, he shall be excused." Molloy, De Jure Maritimo, bk. II, c. 2, §§ 2, 8. 5 See ante, p. 16, note. 316 EXCEPTIONAL LIABILITY OF COMMON CARRIER. (Part 4 case, which though I am loathe to quote, yet inasmuch as the laws of all nations are doubtless raised out of the ruins of the civil law, as all governments are sprung out of the ruins of the Roman Empire, it must be owned that the principles of our law are borrowed from the civil law, and therefore grounded upon the same reason in many things. Vide Just. Inst. lib. 4, tit. 5, de lege.** And all this may be though the common law be time out of mind. * * * And the diversity between the case of a common carrier and this, upon ac- count of the carrier's having a remedy against the hundred if he be robbed ; it is none at all in the reason of the thing, for before that remedy was given, which was only by the statute of Winchester, the action did lie against him ; and yet he had no remedy but against the robbers if he could catch them." 6 The liability under the Roman law of a carrier by sea is illustrated by the following passages. Digest, Book 4, Tit. 9: "Saith the Praetor — As for shi[)mastors, innkeep- ers and stablemen, in respect to that whic-h they receive frmu anyone into their keeping, unless they return it. I will give judgment against them. (Ait Prae- tor — Nauta?. cauix)nes. stabularii quod cuiusque salvum fore receperint, nisi restituent, in eos judicium dabo.)" (Ulpian, L. 14) I, § 1: "This edict is of very great use because it is neces- sary to put full faith in them and to commit things to their guard. Let no one think this harshly decreed against them, for it is in their own choice not to receive a thing : and unless this were decreed, opportunity would be given of contriving with lawless men against those whom they receive, since they do not even now abstain from fraud of this sort." g §. 17, Knowlton, J., said: "Because a passenger's life and safety are necessarily intrusted in a great degree to the care of the carrier who transports him, the law deems it reasonable that the carrier should be bound to exercise the utmost care and diligence in providing against those injuries which human care and foresight can guard against. This rule is held not only in our own state and in England, but all over the United States. It applies not only to carriers who use steam railroads, but to those who use horse railroads, stagecoaches, steamboats, and sailing vessels. It applies at all times when, and in all places where, the parties are in the relation to each other of pas- senger and carrier ; and it includes attention to all matters which i>ertain to the business of carrying the passenger. * * * Difficulty iu the appli- cation of this rule has sometimes come from an improper interpretation of the expressions 'utmost care and diligence.' 'most exact care,' and the like. These do not mean the utmost care and diligence which men are capable of exercising. Tliey mean the utmost care consistent with the nature of the carrier's undertaking, and with a due regard for all the other matters which ought to be considered in conducting the business. Among these are the speed which is desirable, the prices which passengers can afford to pay. the nec- essary cost of different devices and provisions for safety, and the relative risk of injury from different possible causes of it. With this interpretation of the rule, the application of it is easy. As applied to every detail, the rule is the same. The degree of care to be used is the highest ; that is, in reference to each particular it is the highest which can be exercised in that particular with a reasonable resard to the business in all other particulars." In Steele v. Southern Ry. Co., 55 S. C. 380, 33 S. E. 500, 74 Am. St. Rep. 7.5G (1890), the plaintiff, a passenger on a freight train riding in the caboose, was injured in a collision between the sections of the train which had become uncoupled while running. A judgment in his favor was reversed for the court's refusal to tell the jury that in considering whether the carrier was negligent they should take into account the difference between the opera- tion of a freight and of a passenger train. Jones, J., for the court, said: "Whatever the mode of conveyance, whether by jiassenger, mixed, or freight train, the carrier is liable for any negligence resulting in injury to a passenger, and in that sense the law requires the highest degree of care in all cases ; but in applying this rule the jury should take notice of the particular mode of conveyance. For illustration, in the management of a regular passenger train the highest degree of care may require the use of a bell cord or a brakeman on each car. or automatic brakes; but in the management of a fi*eight train the same degree of care may not require all these things. To require of freight trains all the safeguards against danger which is required of a passenger train might render the operation of freight trains impracticable in many local- ities. These views are supported by the authorities." It has been held to be reversible error to instruct a jury as to the care owed by a common carrier to its passengers in terms properly used in stating the care owed in ordinary relations. Spellman v. Lincoln R. T. Co.. 30 Neb. 890. 55 N. W. 270, 20 E. R. A. 316, 38 Am. St. Rep. 753 (189,3): Lewis v. Houston Electric Co.. 30 Tex. Civ. App. 625. 88 S. W. 480 (1905). Contra: Pomroy v. Bangor Co.. 102 Me. 407. 67 Atl. .561 (1907). And see Ferguson v. Truax, 136 Wis. 637, 643. 118 N. W. 251 (1908). On the other hand, it has been held that an instruction that the carrier owes the highest care sets the standard too high. Denham v. Washington Water Power Co., 38 Wash. 3.54. 80 Pae. 546 (1905) ; Tri-City Ry. Co. v. Gould, 217 111. 317, 75 N. E. 493 (1905). A passenger is not held to a peculiarly high degree of care. If he exercises the care of a prudent man, he is not guilty of contributory negligence. South- Ch. 2) LIABILITY FOR INJURY TO PASSENGERS. 331 BOSWORTH V. UNION R. CO. (Supreme Court of Rhode Island, 1903. 2T^ R. I. 202, 5.5 Atl. 490.) Dubois, J. This is an action of trespass on the case for negligence. In the second coimt of his declaration the plaintiff alleges that it was the di;ty of the defendant to exercise the utmost vigilance and care in guarding and protecting him, as and while a passenger, against vio- lence and risk of injury; and that the defendant was negligent in not exercising proper and adequate care and vigilance in guarding and protecting him, while he was its passenger, against mob violence, and in attempting to run its car through a mob without warning the plaintiff of the dangers to which he was being exposed thereby, in consequence of which he sustained the injury, complained of. The defendant de- murs to such statement of its duty. We have heretofore, in Boss v. Prov. & Wor. R. R. Co.. 15 R. I. 149, 1 Atl. 9, thus stated the law : "In regard to the degree of care which the law imposes upon common carriers of passengers, it is set- tled by a long and uninterrupted line of adjudication that they are bound to exercise the utmost care and skill which prudent men would use under similar circumstances; and they are liable for injuries re- sulting from even the slightest negligence on the part of themselves or their servants." And later, in Elliott v. Newport St. Ry. Co., 18 R. I. ror, 28 Atl. 338, 31 Atl. 694, 23 L. R. A. 208. as follows: "Com- mon carriers of passengers are required to do all that human care, vigilance, and foresight reasonably can, in view of the character and mode of conveyance adopted, to prevent accident to passengers." The defendant, though not denying the foregoing to be the general rule applicable to common carriers of passengers, claims that it par- ticularly applies to its running appliances, for the reason that defects therein are likely to occasion accidents resulting in great injury and loss of life to passengers ; and also calls our attention to another rule, relating to its approaches to trains, concerning which it is bound to use only ordinary care. We recognize the distinction in the law between the degree of care to be used in its stationary and in its locomotive appliances. The more stringent rule is established for the protection of passengers while in transit. During their passage they are to be guarded not only against accidents resulting from defects in the running appliances, but also ern Rv. Co. v. Cunninchani. 123 Ga. 90. .-,0 S. E. 979 (190.5) ; Chicago, etc., R. Co. V.' Trover. 70 Neb. 293. 103 N. W. (ISO (190.5). Seef further, as to the standard of care. Tnller v. Talbot. 23 111. 357, 76 Am. Dec. 695 (1860); Indianapolis & St. Louis R. R. Co. v. Horst. 93 U. S. 291, 23 L. Ed. 898 (1876); Pershing v. Chicago, etc., R. Co., 71 Iowa. 561, 32 N. W. 488 (1887); Williams v. Spokane Falls & No. Ry. Co., 39 Wash. 77, SO Pac. 1100 (1905) • Hutcheis v. Cedar Rapids, etc.. Ry. Co., 128 Iowa. 279, 103 N. W. 779 (1905); Kirkpatrick v. Met. St. Ry. Co., 211 Mo. 68, 109 S. W. 682 (1908); Readhead v. Railway Co., L. R. 4 Q. B. 379 (1869). 332 EXCEPTIONAL LIABILITY OF COMMON CARRIER. (Part 4 from dangers arising out of the recklessness or carelessness of the servants of the common carrier. With the best appliances it would be possible for a careless or reckless servant to propel a car into danger ;, as, for instance, into an open draw on a bridge, into a blazing station,. or into a drove of infuriated cattle. In approaching any place of danger it is the duty of the common carrier of passengers and its servants to exercise the utmost care, caution, vigilance, and skill which prudent men would use under like circumstances. Whether the servants and agents of the defendant did exercise that degree of care and skill at the time and place al- leged by the plaintiff is a question of fact, which must be determined by a jury. Demurrer overruled, and case remanded to the common pleas divi- sion for further proceedings.* * Requirement of All Practicable Care — To What Particulars It Ap- plies.— (a) Acts of Others.— Chicago & Alton R. Co. v. Pillsbury. 123 IlL 9, 14 N. E. 22, 5 Am. St. Rep. 483 (1887). accords with the princiijal case. Contra: Missimer v. Phil. R. Co.. 17 Phlla. (Pa.) 172 (1885). And .see Fewinsrs v. Men- denhall, 88 Minn. 33G, 93 N. W. 127, 60 L. R. A. 601, 97 Am. St. Rep. r>VJ (1903). For bodily injury to a passenger from the disorderly conduct of another passenger, when such injury was reasonably to have been anticipated, a com- mon carrier is liable, if it is attributable to his failure to use the highest practicable care to protect the passenger injured. Simmons v. New Bedford Steamboat Co.. 97 Mass. 361. 93 Am. Dee. 99 (1867); Flint v. Norwich, etc., Co., 34 Conn. 5.54, Fed. Cas. No. 4,873 (1868) ; Lucy v. Chicago, etc., Co., 64 Minn. 7. 65 N. W. 944, 31 L,. R. A. 551 (1896). But see Tall v. Steam I»acket Co., 90 Md. 248, 44 Atl. 1007, 47 L. R. A. 120 (1899). (b) Management of Vehicles Other than That in Which the Passenger /.? 7?!f/t/! 7-— Sherlock v. Ailing, 44 Ind. 184 (1873); Atlanta, etc., Co. v. Bates, 10.^ Ga. 333, 30 S. E. 41 (1898). And see Hayne v. Union ,St. Ry. Co., 1.S9 Mass. 551, 76 N. E. 219, 3 L. R. A. (N. S.) 605, 109 Am. St. Rep. 655 (1905), ante, p. 80, note. (c) Passengers Not in Coxirse of Transportation. — A carrier is bound to conduct transportation with the same care for his passenger's safety, whether the passenger is in the A-ehlcle or out of it. provided he is at the time so imder the carrier's protection that the relation of passenger and carrier ex- ists. As to when the relation exists, see post, pp. 489-495, 517-524. Hence a railroad must use all practicable care in running a train not to run over a pas- senger about to board another train. Warren v. Fitchburg R. Co.. 8 Allen (Mass.) 227, 85 Am. Dec. 700 (1864). Or a passenger just alighted from anoth- er train. Gaynor v. Old Col. Ry. Co., 100 Mass. 208, 97 Am. Dec. 96 (1868), semble; Denver, etc., R. Co. v. Hodgson, 18 Colo. 117, 31 Pae. 954 (1892), sem- ble; Pennsylvania Co. v. McCaffrey, 173 111. 169. 50 N. E. 713 (1S98). semble. In placing a stool for a passenger to step on In alighting. Southern Ry. Co. v. Reeves, 116 Ga. 743, 42 S. E. 1015 (1902). In starting its street car as a pas- senger is about to get on. Lewis v. Houston El. Co., 39 Tex. Civ. App. 625, 88 S. W. 489 (190.5). In reversing the pole of a trolley car. Keator v. Scranton Traction Co., 191 Pa. 102, 43 Atl. 86, 44 L. R. A. 54(5, 71 Am. St. Rep. 758 (1899). In taking trunks from a baggage car when a passenger is standing on the station platform. Holcombe v. So. Ry. Co., 66 S. C. 6, 44 S. E. 68 (1903). In handling a steamboat's gang plank when a passenger, leaving the boat to get breakfast ashore, has just reached the wharf. Dodge v. Boston, etc., S. S. Co., post. p. 517. In discharging cargo. Packet Co. v. True, 88 111. 608 (1878). Compare Central R. R. Co. v. Perry, 58 Ga. 461 (1877). (d) Safety of premises. — In Pennsylvania Co. v. Marion. 104 Ind. 230. 3 N. E. 874 (18S5), it was said: "While it is the duty of a railroad company to keep its platform and approaches safe and convenient for the ingress and egress. €h. 2) LIABILITY FOR INJURY TO PASSENGERS. 333 VAN BLARGOM v. CENTRAL R. CO. OF NEW JERSEY. (Court of Errors and Appeals of New Jersey, 1906. 73 N. J. Law, 540, 64 Atl. 111.) Magie, Ch.5 The judgment of the Supreme Court, brought into review by this writ of error, affirmed a judgment of the circuit court of the county of Essex, entered upon a verdict of a jury in an action by an administrator to obtain damages on the ground of the death of his intestate, which was claimed to have resuUed from the negHgence of the plaintiff in error. Of the numerous assignments of error presented in the Supreme Court and here, only one has been deemed of sufficient importance to require discussion. The question is raised upon an assignment of error founded upon an exception to a portion of the charge of the trial judge to the jury. To make intelligible the point thus presented, it is proper to say that the evidence disclosed that the intestate was in the employ of the railroad company at the time of his death. It ap- peared that he, with others, was riding upon a locomotive engine, after the close of their work, and were returning to the place where the lo- comotive would be left for the night, and they would go to their homes. While the locomotive was proceeding in that direction, it ■of passengers to and from its cars, the rigor of the rule which requires it. out of considerations of public policy, to exercise the highest possible diligence for the benefit of the passenger while in the actual progress of his journey, and holds it responsible for the slightest defect in its machinery, track and appliances, is measurably relaxed with respect to its platform and approaches. With respect to these, it is to be held to that reasonable degree of care for the safety and protection of its patrons, having regard to the nature of its business, as is demanded of individuals upon whose premises others come by invitation or inducement for the transaction of business." This rule has been applied by many courts, even where a person is injured by an imperfection in the platform in the very act of alighting from the train and before he has ceased to be a passenger. Pennsylvania Co. v. Marion. 104 Ind. 239. 3 N. E. 874 (1SS5) : Falk v. N. Y., etc.. R. Co., 56 N. J. Law. 380. 29 Atl. 157 (1894); Finseth v. Suburban Ry. Co., 32 Or. 1, .51 Pac. 84. 39 L. R. A. 517 (1897) ; St. Louis, etc., Ry. Co. v. Barnett, 65 Ark. 255. 45 S. W. 550 (1898), semble ; Crowe v. Michigan Central R. Co., 142 Mich. 093, 106 N. AY. 395 (1906), semble. Contra, and holding that the carrier is bound to the same high care in pro- viding a safe place to alight as in conducting transportation. Mo. Pac. Ry. Co. V. Wortham, 73 Tex. 25, 10 S. W. 741, 3 L. R. A. 769 (1889) ; Topp v. United Rys., etc., Co.. 99 Md. 52. .59 Atl. 52 (1904). semble. On the other hand, it is held in some states that the care which a com- mon carrier owes its passengers to keep in safe condition its platforms, sta- tions, and other premises where they have a right as passengers to be. is the same in degree as that which it owes in running its trains; that it owes this care, not only when the passenger is in the act of getting into or out of its cars, but at all times when the relation of passenger and carrier exists; and that it is an obligation distinct from the duty of using the care of a prudent man not to expose to hidden dangers which measures the carrier's duty towards those who come to its stations upon other business or who come 5 Part of the opinion is omitted. ^34 EXCEPTIONAL LIABILITY OF COMMON CARRIER. (Part 4 left the rails, was overturned, and the intestate received injuries from which he died. It is obvious, from these facts, that the question was whether the railroad company, the employer of the intestate, had failed in the performance of any duty which it owed to its employe. The evi- dence was directed to the negligence of the company in keeping its roadbed safe for the travel of the locomotive thereon. This court has recently had before it, for consideration, the question of what duty a railroad company owes to its employes, when they are required, in the performance of their duties, to travel on its trains. It was settled that a railroad company which, like other employers of labor, is re- quired to take reasonable care to provide safe places for its employes to perform their work in, is, upon the same principle, bound to exer- cise reasonable care to so construct and maintain the tracks and road- bed as to make them reasonably safe for such travel. It was de- clared that, so far as the trainmen are concerned, the tracks and road- bed come within the rule which imposes on the employer the duty to take care that the places in which, and the appliances with which, his employe is to work, shall be reasonably safe for the purpose. Smith V. Erie R. Co., 67 N. J. Law, 636, 52 Atl. 634, 59 L- R. A. 302. The exception on which the assignment of error now in question was based was directed to a passage from the charge of the trial judge, which reads thus : "In the first place, it was the obligation of this rail- road company to use a high degree of care to keep its roadbed in a intending to be passengers, Imt who have not yet so put themselves into the carrier's charge as to become such. Warren v. Fitchbnrg K. Co., S Allen (Mass.) 227. 8.5 Am. Dec. 700 (lSG-1) ; Jordan v. N. Y.. etc.. R. Co., 16.5 Mass. 346, 43 N. E. 111. 32 L. R. A. 101. 52 Am. St. Rep. 522 (1896), semble ; but see Moreland v. Boston, etc.. R. Co., 141 Mass. 31. 6 N. E. 225 (1SS6) : Gulf, etc., Ry. Co. V. Butcher. 83 Tex. 309. 18 S. W. 5&3 (1892) ; Johns v. Charlotte, etc., R. Co.. 39 S. C. 162, 17 S. E. 698. 20 L. R. A. 520, 39 Am. St. Rep. 709 (1803) ; Illinois Central R. Co. v. Treat, 179 III. 576. 54 N. E. 290 (1899), semble. Con- tra, holding that only ordinarv care is required. Latflin v. Buffalo, etc.. R. Co., 106 N. Y. 136. 12 N. E. .599. 60 Am. Rej). 4.33 (1887); Falls v. San Francisco R. R. Co., 97 Cal. 114, 31 Rac. 901 (1893). semble; McNaughton v. 111. Cent. R. Co.. 136 Iowa. 177. 113 X. W. 844 (1907) ; Bacon v. Casco Bay Steamboat Co.. 90 Me. 46. 37 Atl. 328 (1897) ; Maxfield v. :Me. Cent. R. Co., 100 Me. 79, 60 Atl. 710 (1905). Towards persons at stations who have not yet become or who have ceased to be passengers only ordinary care is due, either as to condition of premises, Glenn v. Lake Erie & W. R. Co. (Ind. App.) 73 N. B. 861 (1905), and cases there cited (but see Johns v. Charlotte, etc.. R. Co., 39 S. C. 162. 17 S. E. 698. 20 L. R. A. 520, 39 Am. St. Rep. 709 [1893]) ; or as to running of trains, Chicago & E. I. R. Co. V. Jennings. 190 111. 478. 60 N. E. 818. 54 D. R. A. 827 (1901) ; Chicago & Gd. Trunk Ry. v. Stewart, 77 111. App. 66 (1898). It has been held that the carrier need exercise only ordinary care to pre- vent a passenger falling over an obvious fixture in a steamer's deck. Brus- witz V. Netherlands, etc., Co., 64 Hun, 262. 19 N. Y. Supp. 75 (1892). Being hurt by the fall of an article put by another passenger in the rack over his seat in a car. Morris v. X. Y. Cent. R. Co., 106 X. Y.^678, 13 X. E. 455 (1887). Slipping on ice which had formed on car steps in a storm. Palmer v. Pa. Co., Ill X. Y. 488, 18 X. E. 859, 2 L. R. A. 252 (1888). Contra, as to Ice on the deck of a feri-y boat. Rosen v. Boston, 187 Mass. 245, 72 X. E. 992, 68 L. R. A. 153 (1905). Ch. 2) LIABILITY FOR INJURY TO PASSENGERS. 335 safe condition for the uses for which it was designed." The instruc- tion was deemed to be erroneous by the Supreme Court, and we en- tirely concur in the view expressed in that court on that subject. The duty which devolved on the railroad company was limited to the ex> ercise of reasonable care for the safety of its tracks and roadbed That duty should have been placed before the jury, and they should have been directed to find whether the roadbed was in the condition which reasonable care would have produced. To direct them that the company owed a duty expressed by the words "a high degree of care" tended to mislead, and must have been injurious in its result. * •:= * As we find the rule of duty laid down was erroneously stated, the judgment must be reversed for a venire de novo.'' 8 Ace. Mo. Pac. R. Co. v. Lyde. 57 Tex. 503 (1SS2) ; Sappenfiekl v. :Main St. R. Co., 91 Cal. 48, 27 Pac. 500 (1S91) ; Wabash R. Co. v. Farrell, 79 111. App. 508, 516 (1898). As regards persons who contract with a common carrier for permission to occupy its vehicles, not primarily for the purpose of being transported to a particular destination, but in order to transact business there in their own and not in the carrier's behalf, although their legal relation to the carrier is in some respects like that of employes, and not like that of passengers, yet in respect to the right of safe carriage they have often lieen held to be like ordinary passengers. That is to say, although the carrier has acted with ordinary prudence, he is liable for bodily injury attributable to a failure to use all practicable care. Postal Clerks.— Sevbolt v. N. Y.. L. E. & W. R. Co.. 95 X. Y. 562. 47 Am. Rep. 75 (1SS4); Mellor v. Mo. Pac. Co.. 105 Mo. 4.55. 16 S. W. 849. 10 L. R. A. 36 (1891) ; So. Pac. Co. v. Cavin. 144 Fed. 348. 75 C. C. A. 3-50 (1906). Express Messengers.— See P.lair v. Erie Ry. Co.. 66 N. Y. 313. 23 Am. Rep. 55 (1876) : Fordyce v. Jackson. 56 Ark. .594. 20 S. W. 528 (1892) ; Jennings V. Railroad, 15 Ont. App. 477 (1887) ; Union Pacific Ry. Co. v. Nichols, 8 Kan. 505, 12 Am. Rep. 475 (1871) : San Antonio & A. P. R.y. Co. v. Adams. 6 Tex. Civ. App. 102. 24 S. W. 839 (1894): Gulf, C. & S. F. Ry. Co. v. Wilson. 79 Tex. 371. 15 S. W. 280. 11 L. R. A. 486. 23 Am. St. Rep. 345 (1891); Voight v. B. & O. S. W. Ry. Co. (C. C.) 79 Fed. 561 (1897) : Savannah. F. & W. Ry. Co. v. Boyle. 115 Ga. 836. 42 S. E. 242. .59 L. R. A. 104 (1902) ; Davis v. C. & O. Ry. Co., 122 Kv. 528. 92 S. W. 339, 5 L. R. A. (N. S.) 4.58. 121 Am. St. Rep. 481 (1906) : Kentuckv Cent. R. Co. v. Thomas, 79 Ky. 160. 42 Am. Rep. 208 (1880). Contra: Chicago & X. W. Rv. Co. v. O'Brien, 1.32 Fed. .593, 67 C. C. A. 421 (1904). semble. And compare Blank v. 111. C. R. R. Co., 182 111. 332, 339, 55 X. E. 332 (1899). Pullman Porters.— Jones v. St. Louis Southwestern Ry. Co.. 125 Mo. 666, 28 S. W. 883. 26 L. R. A. 718, 46 Am. St. Rep. .514 (1894), semble. Contra: Hughson v. Richmond, etc., R. Co., 2 App. D. C. 98 (1894). Venders of Goods. — One who pays for the privilege of tr.aveling upon passenger trains for the purpose of selling popcorn is a passenger, swithin the meaning of a statute imposing a penalty for negligently killing a passeftger. Com. V. Vermont & :Mass. R. R.. 108 Mass. 7, 11 Am. Rep. .301 (1871). One who has bought the privilege of running a bar upon a steamboat is a passenger, within the rule that an injury to a passenger from an accident to the ma- chinery of transportation is presumably due to the carrier's negligence. Yeo- mans v. Contra Costa S. X. Co.. 44 Cal. 71 (1872). Compare Padgitt v. Moll, 159 Mo. 143, 60 S. W. 121, 52 L. R. A. 8.54, 81 Am. St. Rep. 347 (1900) : In- dianapolis St. Ry. Co. V. Hockett, 101 Ind. 196. 67 X. E. 106 (IfXJS), newsboys entering street car by permission of company to sell to passengers. Persons Entering Vehicles to Assist Passengers to a .Seat. — A person who, with the carrier's knowledge, is permitted to enter a car to give neces- sary assistance to a passenger, is entitled to care from the carrier, and. if injured by the negligent starting of the train before he has had an opportunity ■336 EXCErXIONAL LIABILITY OF COMMOX CARPJER. (Part 4, WILLI A:MS v. SPOKANE FALLS & N. RY. CO. (Supreme Court of Washington, 1905. 39 Wash. 77, 80 Pac. 1100.) Dunbar, J.'^ Respondent was a railway postal clerk in the service of the United States. On August 15, 1903, he was one of the clerks in charge of a postal car attached to a train of the appellant running between Spokane and Northport. The car on which he was occupied was, pursuant to the usual custom, detached from the train at the latter point, and set. in on a side track, to be returned to Spokane on the day following. Northport is a terminal point, and trains are made up at that point for other destinations. The siding upon which this postal car was placed was 300 feet in length, and an even grade. A switch engine engaged in making up a passenger train entered upon this track with a baggage car and two coaches. For some cause, un- known and unexplained by the testimony, the coupler which con- nected the baggage car with the tender of the locomotive parted, and the three cars ran along the siding and collided with the postal car which contained the respondent, injuring him most seriously. This action was brought to recover damages for the injuries so sustained, and resulted in a verdict in respondent's favor. Motion for new trial was duly entered and overruled, and judgment rendered upon the verdict, from which judgment this appeal is taken. It is conceded that the respondent was performing his duty on the car, and it is also conceded that the rules of law applying to passen- gers on a railroad car apply to him. At the conclusion of the testi- mony for both respond^ent and appellant, the appellant requested the court to charge the jury to find for the defendant. This request was overruled, and upon the action of the court in this respect is based the first assignment of error, the contention being that there was no proof that there was any negligence on the part of the appellant; that there is no allegation that there was any defect in the construction of the cars or in their equipment, or that they were in a defective or tmsafe condition, in any respect, at the time of the happening of the to get out safely, may maintain an action. It has been held that the carrier owes such a person the same high degree of care which is owed to a passen- ger. Louisville & Nashville R. R. Co. v. Crunk, 119 Ind. 542, 21 N. E. 31, 12 Am. St. Rep. 443 (1889). And see note in 14 Harv. L. R. 69. But the weight of authority requires only the ordinary degree of care. Lucas v. N. B. »& T. R. R. Co,, 6 Gray (Mass.) 64, 66 Am. Dec. 406 (1856). And see Flaherty v. B. & M. B. R,, 1S6 Mass. 567, 72 N. E. 66 (1904) ; Railway Co. v. Miller, 8 Tex. Civ, App. 241, 27 S. W. 905 (1894) ; Doss v. M.. K. & T. R. R. Co., 59 Mo. 27, 21 Am. Rep. 371 (1875) ; Coleman v. Ga. R. & Banking Co., 84 Ga. 1, 10 S. E. 498 (1889) ; Little Rock & Ft. S. Ry. Co. v. Lawton, 55 Ark. 428, 18 S. W. 543, 15 L, R, A, 434, 29 Am, St. Rep. 48 (1892) ; International & G, N, R, Co, v, Satterwhite, 15 Tex, Civ, App, 102, 38 S. W. 401 (1896) ; Dunne v. N. Y„ N, H, & H. R, Co., 99 App. Div. 571, 91 N. Y. Supp. 145 (1904) ; 15 L. R. A. 434, note. As to a carrier's duty toward persons who enter its cars or station merely to accompany a passenger, see Carriers, Dec. Dig. § 304. 7 Part of the opinion is omitted. Ch, 2) LIABILITY FOR INJURY TO PASSENGERS. 337 accident; and that no legal presumption of negligence arose, casting upon appellant the burden of disproving it. The particular negligence alleged is that, while respondent was in the discharge of his duties in a postal car on a siding at Northport, the appellant's servants and employes negligently ran and propelled against said mail car other cars, by means of a locomotive operated by it, and said mail car was struck by said cars, propelled with great force and violence, pushing it along for a distance and derailing it, thereby throwing respondent down. The answer denied any negligence, and it is contended that there was no negligence shown. Hawkins v. Front Street Cable Ry. Co., 3 Wash. St. 592, 28 Pac. 1021, 16 L. R. A. 808, 28 Am. St. Rep. 72, and Allen v. N. P. Ry. Co., 35 Wash. 221, 77 Pac. 201, 66 L. R. A. 801, are relied upon to sustain the appellant's contention. In Hawkins v. Cable Ry. Co., supra, this court held that the following instruction, "It is the law that, where a passenger being carried on a train is injured without fault of his own, there is legal presumption of negligence, casting upon the carrier the burden of disproving it," constituted reversible error, as being too broad a statement of the responsibility of the car- rier. There, it will be observed, the instruction overruled had no limitations whatever; and, under that instruction, if the passenger had been injured by some unavoidable accident, disconnected entirely from the railroad company, such as an injury resulting from the dis- charge of a firearm by some one in the car, or through the window by some one outside of the car, the company would have been held responsible. So that it is not enough that the passenger is injured without fault of his own, but the injury must be connected in some way with the operation of the road; and, when the injury is so con- nected, we think, under the overwhelming weight of authority, that a prima facie case of negligence is made out by the plaintiff, and that the duty devolves upon the company to establish a want of negli- gence on its part. And the cases cited by this court in that case show that such was the view that the court took of the law. There is nothing in the case of Allen v. N. P. Ry. Co., supra, to sustain appellant's contention. Mr. Thompson, in his Commentaries on the Law of Negligence, vol. 3, § 2751, very happily expresses the distinction which we have sought to make. The section is as fol- lows: "In every action by a passenger against a carrier to recover damages predicated upon the negligence or misconduct of the latter, the burden of proof in the first instance is, of course, upon the plaintiff to connect the defendant in some way with the injury for which he claims damages. But when the plaintiff has sustained and discharged this burden of proof by showing that the injury arose in consequence of the failure, in some 'respect or other, of the carrier's means of trans- portation, or the conduct of the carrier's servants, then, in conformity with the maxim res ipsa loquitur, a presumption arises of negligence Green Carr.— 22 338 EXCErTIONAL LIABILITY OF COMMON CARRIER. (Part 4 on the part of the carrier or his servants, which, unless rebutted by him to the satisfaction of the jury, will authorize a verdict and judg- ment against him for the resulting damages. Stated somewhat dif- ferently, the general rule may be said to be that where an injury hap- pens to the passenger in consequence of the breaking or failure of the vehicle, roadway, or other appliance owned or controlled by the car- rier, and used by him in making the transit, or in consequence of the act, omission, or mistake of his servants, the person entitled to sue for the injury makes out a prima facie case for damages against the carrier by proving the contract of carriage ; that the accident happen- ed in consequence of such breaking or failure, or such act, omission, or mistake of his servants; and that in consequence of the accident the plaintiff sustained damage." And in section 2756, showing that the presumption arises not from the happening of the accident, but from a consideration of the cause of the accident, it is further said : "It has been pointed out by an able judge that the presumption which arises in these cases does not arise from the mere fact of the injury, but from a consideration of the cause of the injury. Thus it was said by Ruggles, J. : 'A passenger's leg is broken while on his passage in the railroad car. This mere fact is no evidence of negligence on the part of the carrier until some- thing further be shown. If the witness who swears to the injviry tes- tifies also that it was caused by a crash in a collision with another train of cars belonging to the same carriers, the presumption of neg- ligence immediately arises — not, however, from the fact that the leg was broken, but from the circumstances attending the fact.' " And a wilderness of cases is cited to sustain the announcement of the text. The cases on this subject are collated in the Century Digest, vol. 9, commencing on page 1235, and the doctrine is almost universally an- nounced that the fact that an injury results from a railroad collision without any fault of the passenger is prima facie evidence of care- lessness, negligence, or want of skill on the part of the company,^ and the burden is upon it to prove that the accident was not occasioned by the fault of its agents. Goble v. Delaware, L. & W. R. Co., Fed. Cas. No. 5,488a; Smith v. St. Paul City Ry. Co., 32 Alinn. 1, 18 N. W. 827, 50 Am. Rep. 550; New Orleans, J. & G. N. R. Co. v. All- britton, 38 Miss. 242, 75 Am. Dec. 98 ; Chicago City Ry. Co. v. Engel, 35 111. App. 490; Central Pass. Ry. Co. v. Bishop, 9 Ky. Law Rep. 348; N. C. St. Ry. Co. v. Cotton, 140 111. 486, 29 N. E. 899— and many other cases too numerous to cite, the circumstances of which are parallel in principle with the circumstances in this case, support the 8 But see Mitchell v. Chicago, etc., Co., 51 Mich. 236, 16 N. W. 388, 47 Am. Rep. 566 (1883) ; Thurston v. Detroit, etc., Co., 137 Mich. 231, 100 N. W. 305 (1904) ; Stoodv v. Railway Co., 124 Mich. 420, 83 N. W. 20 (1900) ; Ayles v. So. Eastern Ry. Co., L. R. 3 Ex. 146 (1808) ; Hammack v. White, 11 C. B. (N. S.) 588, 593, 594 (1802) ; East Indian Ry. Co. v. Kalidas Mukerjee, [1901] A. C. 396. Ch, 2) LIABILITY FOR INJURY TO PASSENGERS. 339 law announced. This is also in accordance with a decision made by this court in Walker v. ?\IcNeill, 17 Wash. 583, 50 Pac. 518, where it was said : "Whenever a car or train leaves the track, it proves that either the track or machinery, or some portion thereof, is not in proper condition, or that the machinery is not properly operated." And this is the just and equitable rule, for the cause of the accident is within the knowledge of the railroad company, while it might be a difficult matter for the plaintiff to prove what the cause of the accident was. So far as the proof was concerned, we think, also, that there was ample proof to show negligence on the part of the appellant. There was testimony to the eft'ect that this coupling had come apart several times before, and that it was within the knowledge of the appellant's servants that it was liable to come apart ; and, having that knowledge, it had no right to throw off the safety chains simply for the purpose of expediting its business, to the extent of imperiling the life of the respondent. This manner of switching could only be safely done and relied upon on the supposition that the coupling could be absolutely depended upon, and the removal of the safety appliance under such circumstances constituted negligence on the part of the company to- wards its passengers. We think the court committed no error in overruling the appellant's motion for an instruction to find a verdict for the defendant.'' * * * 9 Persons Who are Entitled to the Benefit of the Presumption of Negligence. — In Patton v. Texas & Pacitic Railway Co., 179 U. S. G."J8, 662. 21 Sup. Ct. 275, 45 L. Ed. 361 (1901), an action by a fireman injured throusli a defect in his locomotive, the trial court directed a verdict for the defendant and the U. S. Supreme Court aftirmed the judgment. Brewer, J., speaking for the court said, after a review of the evidence: "Upon these facts we make these observations: First. That while in the case of a passenger the fact of an accident carries with it a presumption of negligence on the part of the carrier, a presumption which in the absence of some explanation or proof to the contrary is sufficient to sustain a verdict against him. for there is in-iina facie a breach of his contract to carry safely (Stokes v. Saltonstall, 13 Pet. ISl [10 L. Ed. 115] ; Railroad (\)mitany v. Pollard. 22 Wall. 341 [22 L. Ed. 877]; Gleeson v. Virginia :Midland Railroad, 140 U. S. 435, 443 [11 Sup. Ct. 859, 35 L. Ed. 458]), a different rule obtains as to an employe. The fact of accident carries with it no presumption of negligence on the part of the employer, and it is an affirmative fact for the injured emi)loye to estab- lish that the emplover has been guilty of negligence. Texas & Pacific Rail- way V. Barrett, IGo'u. S. 017 [17 Sup. Ct. 707. 41 L. Ed. 1136]. Second. That in the latter case it is not sufficient for the employ^ to show that the employer may have been guilty of negligence— the evidence must point to the fact that he was. * * * if the employ^ is unable to adduce sufficient evidence to show negligence on the part of the employer, it is only one of the many cases in which the plaintiff fails in his testimony, and no mere sympathy for the unfortunate victim of an accident justifies any departure from settled rules of proof resting upon all plaintiffs," It has been held that a postal clerk, like an ordinary passenger, has the ben- efit of the presumption of negligence. :Magoffin v. Mo. Pac. Ry. Co., 102 Mo. 540 15 S. W. 76. 22 Am. St. Rep. 798 (1890); Gleeson v. Va. Midland R. R. Co., 140 U. S. 435, 11 Sup. Ct. 859. 35 L. Ed. 458 (1891). It has been held otherwise as to au express mes-senger. Chicago, etc., Ry. Co. V. O'Brien, 132 Fed. 593, 67 C. C. A. 421 (1904). And as to a Pullman por- 340 EXCErTIONAL LIABILITY OF COMMON CARRIER. (Part 4 LOUDOUN V. EIGHTH AVE. R. CO. (Court of Appeals of New York, 1900. 162 N. Y. 380, 56 N. B. 988.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First judicial department, entered April 23, 1897, affirm- ing a judgment in favor of plaintiff entered upon a verdict, and an or- der denying a motion for a new trial. ter. Ilughson v. Richmond, etc., R. Co., 2 App. D. C. 98 (1894). But see ante, p. 3.35, note. Facts upon Which the Presumption of Negligence is Founded. — The presumption of negligence arises where injury to a passenger is due to a landslide from the side of a railroad cutting. Gleeson v. Ya. Midland R. Co., 140 U. S. 435, 11 Sup. Ct. 859, 35 L. Ed. 458 (1891). But not where it is due to the falling of a stone from a hillside above the cutting. Fleming v. PittsBurg. etc., Ry., 158 Pa. 130, 27 Atl. 858, 22 L. R. A. 351, 38 Am. St. Rep. 835 (1893). It arises where a passenger is struck by a piece of coal thrown or falling from a passing train. Louisville & Nashville Ry. Co. v. Reynolds, 71 S. W. 516, 24 Ky. Law Rep. 1402 (1903). But it does not arise from the mere fact that there is some evidence that the object which struck the pas- senger was a piece of coal so thrown. Pennsvlvania R. Co. v. IMacKinney, 124 Pa. 402. 17 Atl. 14. 2 L. R. A. 820, 10 Am. St. Rep. 601 (1889). Or that it was an iron bolt like that used on freight cars. Pa. R. Co. v. IMcCaffrey, 149 Fed. 404, 79 C. C. A. 224 (1907). It arises where a passenger is hit by 'a hot cinder from the locomotive. Texas Midland Ry. Co. v. Jumper, 24 Tex. Civ. App. 671, 60 S. W. 797 (1901). But not where he is hit by a stream of wa- ter entering the car, but not shown to have proceeded from an a]jpliance be- longing to the carrier. Spencer v. Chicago, M. & St. P. Ry. Co., 105 ^Vis. 311. 81 N. W. 407 (1900). No presumption of the carrier's negligence arises from the fact that a passenger falls when getting out of the car. Pennsylvania Co. V. Marion, 104 Ind. 239, 3 N. E. 874 (188.5) ; Lincoln Traction Co. v."^ Webb, 73 Neb. 136, 102 N. W. 258, 119 Am. St. Rep. 879 (190.5). Even though the pas- senger acts with due care. Chicago City Ry. Co. v. Catlin, 70 111. App. 97 <1897). And there is evidence of the carrier's negligence. Delaware, L. & W. R. Co. V. Napheys, 90 Pa. 135 (1879). Contra: Doolittle v. Southern Ry. Co., 62 S. C. 130, 40 S. E. 133 (1901) ; Texas & P. Ry. Co. v. Gardner, 114 Fed. 186, 52 C. C. A. 142 (1902), semble ; Bush v. Barnett, 96 Cal. 202, 31 Pac. 2 (1892), semble. Nor does a presumption of negligence arise, though an act or appliance of the can-ier contributed to the injury, if the thing done was usual in the ordi- nary and proper conduct of his business. So the mere facts that in the coupling of ears a train receives a jar, and that the jar causes a passenger to fall against a car seat and suffer serious injury, do not raise a presumption that the coupling was negliffently per- formed. Herstine v. Lehigh V. R. R. Co., 151 Pa. 244, 25 Atl. 104 "(1S92). Contra: Railroad Co. v. Pollard, 22 Wall. 341, 22 L. Ed. 877 (1874), where train stopped abruptly at a .station. Nor does the presumption arise where the jolting of the train in coming to a stop causes the car door to shut up- on the hand of an alighting passenger. Denver & R. G. R. Co. v. Frothing- ham, 17 Colo. 410, 68 Pac. 978 (1902); Weinschenck v. New York, N. H. & H. R. R., 190 Mass. 250, 76 N. E. 662 (1906). Nor where a brakeman shuts the door upon a passenger's hand. Texas & Pac. Ry. Co. v. Overall, 81 Tex. 247, 18 S. W. 142 (1891). Nor where a passenger is hit by a swinging door in a ferryboat. Hayman v. Pa. R. Co., 118 Pa. 508, 11 Atl. 815 (1888)^. Nor where, because a car door is open against the rules of the company, a cin- der, which without the carrier's negligence escapes from the locomotive, en- ters the car and gets into a passenger's eye. Missouri, K. & T. Rv. Co. v. Orton, 67 Kan. 848, 73 Pac. 63 (1903). But see Cody v. Market St."^Rv. Co., 148 Cal. 90, 82 Pac. 666 (1905). Ch. 2) LIABILITY FOR INJURY TO PASSENGERS. 341 CuLLEN, J.^° This action was brought to recover damages for per- sonal injuries alleged to have been received in a collision between the cars of the two defendants. The plaintiff and her husband were pas- sengers in an open horse car on the Eighth Avenue Railroad. The Third Avenue Railroad Company operated a cable road on One Hun- dred and Twenty-Fifth street, which crosses Eighth avenue at right angles. At the time of the collision the plaintiff was sitting in the rear seat of the Eighth Avenue car. That car, while passing over the in- tersection of the two roads, was struck by the cable car at the point where the plaintiff was sitting, with such force as to throw the horse car from the track. The plaintiff was thrown down from her seat, and undoubtedly was bruised, but whether she received the serious injuries to her nerves and health for which she was allowed com- pensation was a matter of controversy. The evidence as to the man- ner in which the collision occurred is extremely meager, consisting only of the testimony of the plaintiff and her husband. Neither de- fendant produced as witnesses the employes in charge of its car. Neither the plaintiff nor her husband noticed the approach of the cable car, and they were able to state only that, while the car in which they were riding was passing over the crossing, it was struck by the other car. We agree with the learned court below that the details of the col- lision, meager as they were, required submission to the jury of the issue of negligence as to each defendant, and that a nonsuit as to ei- ther would have been improper. * * * We are of opinion, how- ever, that the learned trial judge erred in his instructions to the jury, and that for such errors this judgment must be reversed. The court charged: "It is therefore a reasonable presumption, in the absence of any explanation, that the accident resulted from the want of ordinary care on the part of the defendants. When the plain- tiff rested her case, therefore, the burden was upon the defendants of showing such facts as warrant the conclusion that the accident was due to circumstances which the exercise of ordinary care could not foresee and guard against. Now, no testimony is offered by the de- fendants to overcome this presumption. The driver of the Eighth Avenue car w^as not called. It does not appear that he was where he could be called. There is no explanation given, and therefore I am bound to say to you that there is no testimony to overcome the presumption of negligence which the circumstances have disclosed. There is no testimony on the part of the defendants to overcome the presumption created by the circumstances under which the collision took place." As we read this part of the charge, the issue of the defendants' negligence was substantially taken away from the jury. It is true that the court repeatedly charged that the burden of proof rested on 10 Parts of the opinion are omitted. o42 EXCEPTIONAL LIABILITY OF COMMON CARRIEIl. (Part 4 the plaintiff to establish each element of her case, including that of the negligence of the defendants. But, taken in connection with the portion of the charge quoted, that the accident raised a presumption of negligence, and that there was no testimony to overcome the pre- sumption, the jury was substantially told the plaintiff had successfully borne that burden. Each defendant took an exception to that part of the charge which instructed the jury that the accident raised a pre- sumption of negligence against it, calling for an explanation, though neither seems to have excepted to the charge that no explanation had been given. The appellant the Third Avenue Railroad Company insists that the doctrine, "Res ipsa loquitur," does not apply to it, and that the in- struction that the occurrence of the collision raised a presumption of negligence upon its part calling for an explanation was erroneous. With this claim we agree. Falke v. Railroad Co., 38 App. Div. 49, 55 N. Y. Supp. 984. That defendant, not being the carrier, was bound only tOfthe exercise of ordinary care in the management of its cars. If one company had been in the control and management of both the cars, a presumption of negligence on its part would properly arise. But here there were two actors, and the collision might have been due entirely to the fault of one party, and not at all to the fault of the other. The decisions in Volkmar v. Railway Co., 134 N. Y. 418, 31 N. E. 870, 30 Am. St. Rep. 630, and Hogan v. Same, 149 N. Y. 23, 43 N. E. 403, do not apply to a case like this. In those cases pieces of iron fell from the elevated railway structure and injured the plaintiffs, traveling on the highway beneath. It was held that the occurrence of the accident raised a presumption of negligence.^ ^ But articles should not be suffered to fall on the highway, and ordinarily do not fall with- out carelessness on the part of the persons letting them fall. In those cases the parties injured in no way contributed to the accident, except by their presence. Here the railroad company had the right to operate its cars along the street, and it cannot be said that in the or- dinary course of things a car does not collide with vehicles or persons except when there has been carelessness in the management of the car. Unfortunately, the reports are full of cases of such collisions, and of serious injuries resulting therefrom, where it has been found, either as matter of fact by juries, or as matter of law by the courts. li 111 Scott y. London Dock Co., 3 Hurl. & C. 50G (1865), an action for neg- lisently dropping upon the plaintiff, a customs officer, bags of sugar wliich were being lowered from a warehouse by a crane, p:arle, C. J., said: " There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care." Ch. 2) LIABILITY FOR INJURY TO PASSENGERS. 343 that the railroad company was not at fault. The exception of this appellant to the court's charge is well taken. As to the appellant the Eighth Avenue Railroad Company a differ- ent rule obtains. While it was not a guarantor of the safety or se- curity of its passengers, it was bound to exercise a very high degree of care to accomplish that result. It is easy to imagine many in- juries that might occur to passengers, from which no presumption of negligence would arise. But the danger of collision with other vehicles moving on the street is always present, and the employe managing and controlling the car must be on the alert to avoid that danger. The danger is greater at the intersection of other railroads, and care must there be used proportionate to the danger. As was said by the court below, the Eighth Avenue Railroad Com- pany could not insist upon or assert its right of way at the crossing as against the car of the other company, if there were reasonable grounds to apprehend that thereby it would endanger the safety of its passengers. The management and control of the transportation of the passenger is wholly confided to the employes operating the car ; and the former cannot be expected to be on the watch either as to its management or that of other vehicles, or, if a collision takes place, be able to account for its occurrence. Therefore, when such a colli- sion occurs, there arises a presumption of negligence on the part of the carrier, which calls upon it for explanation. The exception of the Eighth Avenue Railroad Company to the instruction of the court on this subject is not well taken. But, though the occurrence of the accident called for an explana- tion by this defendant, we think the trial court erred in charging, as a matter of law, that no explanation had been furnished. We have al- ready referred to the fact that the cable car struck the rear end of the horse car. How far this circumstance tended to show that the horse car had properly and carefully proceeded over the crossing and that the collision was due, not to its fault, but to that of the other defend- ant, was a question of fact for the jury, not of law for the court. While an exception was not taken to the charge of the court, the question was raised when the court refused to charge the request, "If either the conclusion of the negligence of the Eighth Avenue Rail- road Company, or the absence of negligence on its part, may, with equal fairness, be drawn, then the Eighth Avenue Railroad Company cannot be recovered against," to which the defendant excepted. This refusal was consistent with the court's previous ruling that, as matter of law, the presumption of negligence had not been overcome. In our view, however, it was erroneous; for, even though the accident created a presumption of negligence on the part of the defendant the Eighth Avenue Railroad Company, still, if there was any evidence to rebut the presumption, the burden of proof rested on the plaintiff (Whitlatch V. Casualty Co., 149 N. Y. 45, 43 N. E. 405); and if, on 344 EXCErXIONAL LIABILITY OF COMMON CARRIER. (Part 4 the whole case, the conckision of negHgence or absence of negligence could be drawn with equal fairness, that burden was not discharged. Cordell v. Railroad Co., 75 N. Y. 330. * * * The judgment should be reversed, and a new trial granted; costs to abide the event.^^ J 2 See cases on this subject collected and commented upon in 68 L. R. A. 799, 809, note. Ch. 3) CASES NOT WITHIN THE RULE. 345 CHAPTER III CASES NOT WITHIN THE RULE OF EXCEPTIONAL LIABILITY IN THE CARRIAGE OF GOODS SECTION L— ACT OF GOD AMIES V. STEVENS. (Court of King's Bench, 1718. 1 Str. 127.) The plaintiff puts goods on board the defendant's hoy, who was a common carrier. Coming through bridge, by a sudden gust of wind the hoy sunk, and the goods were spoiled. The plaintiff insisted that the defendant should be liable, it being his carelessness in going through at such a time, and offered some evidence that, if the hoy had been in good order, it would not have sunk with the stroke it received, and from thence inferred the defendant answerable for all accidents, which would not have happened to the goods in case they had been put into a better hoy. But the Chief Justice held the defendant not answerable, the damage being occasioned by the act of God. For though the defendant ought not to have ventured to shoot the bridge, if the general bent of the weather had been tempestuous ; yet this being only a sudden gust of wind, had entirely differed the case: and no- carrier is obliged to have a new carriage for every journey: It is sufficient if he provides one which without any extraordinary accident (such as this was) will probably perform the journey.^ 1 The following cases illustrate causes of loss which may fall within the class called acts of God: Earthquake.— Slater v. So. Car. R. R. Co.. 29 S. C. Ofi. G S. B. 936 (1888), washout caused bv giving wav of dam in Charleston earthquake of 1886. Flood.— Railroad Company v. Reeves. 10 Wall. 176. 19 L. Fa\. 909 (1869), unprecedented freshet: Gillespie v. St. Louis, etc.. R. Co.. 6 Mo. App. .554 (1879). washout caused by heavy rain : Pearce v. The Thomas Newton (D. C.) 41 Fed. 106 (1889), high tide, though excee