UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY SELECTION OF CASES ON CARRIERS AND OTHER BAILMENT AND QUASI-BAILMENT SERVICES BY JOSEPH HENRY BEALE ROTALL PROFESSOR OF LAW IN HARVARD UNIVERSlTr SECOND EDITION ■ ff CAMBRIDGE HARVARD UNIVERSITY PRESS 19^0 ir)3()40 T Copyright, 1909 By Joseph H. Be ale Copyright, 1920 By Joseph H. Beale • • ■ ** • • • I « ^ -J^ IS a 1 K 50 C TABLE OF CONTEXTS Table of Cases v 1^ Historical Introduction 1 '' Chapter I. Bailment and Undertaking 35 \ Chapter II. Nature of the Undertaking <0 Chapter III. Beginning of the Undertaking 94 O Chapter IV. Conduct of the Undertaking: Section 1. Preparation of Facilities 139 ■ Section 2. Performance of Undertaking 175 c Section 3. Safety and Protection during Performance 206 i^ Section 4. Delivery 272 ° Ch.\pter V. Failure in Undertaking : ~ Section 1. Liability 308 •^ Section 2. Limitation of Liability • • • 334 - ' Section 3. Excuses ^^ Chapter VI. End of Undertaking 493 ^ Chapter VII. Connecting Services 542 Chapter VIII. Charges and Liens: -^ Section 1. Freight and other Charges 593 "^ Section 2. Lien ^'^^ Section 3. Tickets ^^ TABLE OF CASES. Adams Exp. Co. v. Harris AUenwilde T. Corp. v. Vacuum Oil Co. American Exp. Co. v. Perkins ■ r. Smith Anchor Line v. Dater Anon., 8 E. 2, 275 12 & 13 E. 3, 244 22 Lib. Ass. 41 29 Lib. Ass. 163 2 R. 3, 14 10 H. 7, 26 DaU. 8 1 Harv. Ms. 3 Bro. Abr. Det. 27 Fitz. Nat. Brev. 94 Rol. Abr. Act. .s»r Case 24 Arthur v. Texas & P. Ry. Ashmole v. WainwTight Atchison, T. & S. F. R. R. v. Roach Atlantic C. L. R. R. v. Baker Auerbach v. N. Y. C. & H. R. R. R. T. Co. Western U. Bastard South & N. A. R. Tr', Bartlett v. Bastard v. Batton V. Belger v. Dinsmore Bigelow V. Heaton Bird V. Bird Birnev v. Wheaton Blackstock v. N. Y. & E. R. R. Blossbm V. Dodd Bohannan v. Hammond Boston & M. R. R. v. Hooker Bottum V. Charleston & W. C. Ry. Boyce v. Anderson Bromner v. Williams Brien v. Bennett Brinkburn, Prior of, v. ^Yhelping- ton Brooke v. Grand Trunk Ry. Bufkland v. Adams Exp. Co. Bufkloy V. Old Colony R. R. Bulkley v. Naumkeag S. C. Co. Bullard v. American Exj). Co. Burlington & M. R. R. R. v. (Jhifago lyumber Co. Bussey V. Miss. V. T. Co. Page 579 598 473 265 361 1 2 2 2 3 8 9 10 7 9 608 109 593 556 42 644 327 593 213 380 623 114 608 437 358 414 392 4S2 30S 149 114 1 668 76 535 94 276 602 73 Campbell V. Duluth &: N. E. R. Campion ;•. Canadian Pac. Ry. Carhart v. Wainman Carroll v. Staten Island R. R. Cau V. Texas & P. Ry. Chapman v. Great Western Ry. Cheney v. Boston & :SI. R. R.' Chicago & N. W. R. R. ;•. Sawyer Chicago, M. & S. P. R. R. v. Wis- consin Chicago, R. L «fe P. Ry. v. Wood Cincinnati, N. O. & f . P. Ry. v. Raine Citizens' Banlv v. Nantucket S. B. Co. Clancy v. Barker Clark V. Bm-ns V. ^\'ilmington & W. R. 11. Clai-ke V. Rochester & S. R. R. Coggs V. Bernard Colorado S. & C. C. D. Ry. «;. Petit Colt V. M'Mechen Conroy v. Chicago, S. P. M. & O. R. R. Cork Distilleries Co. v. Great S. & W. Ry. Coupland v. Housalonic R. R. Cox V. Central Vt. R. R. Craker v. Chicago & N. W. Ry. Creamer v. West End St. Ry. Crommelin v. N. Y. & H. R. R. Cumberland Tel. Co. v. Brown Dale V. Hall Davis V. Garrett Dayison v. City Bank Delaware, L. & W. R. R. r. Bullock Denny v. N. Y. C. R. R. Denver & R. G. R. R. v. Hill Dickinson v. West End St. Ry. Dodge V. Boston & B. S. S. Co. Duchemin v. Boston El. Ry. Dudley v. Chicago, M. & S. P. Ry. East S. L. C. Ry. v. Waba.sli, S. L. & P. Ry. Eaton V. Delaware, L. 6z W. R. R. Eilmunds v. Merchants' D. T. Co. Edwards v. Sherratt V. White Line Transit Co. Page 313 192 108 90 391 507 656 520 487 536 250 70 245 78 648 310 17 537 405 235 281 180 370 210 534 629 81 27 181 605 194 424 620 132 529 124 270 306 129 294 ■W.) 453 VI TABLE OF CASES. Erie R. R. v. Shuart Express Co. v. Caldwell ('. Koimtze Farnsworth r. Groot Fenner v. BufTalo & S. L. R. R. Fitzmaurice v. New York, N. H. & H. R. R. Forwtxrd v. Pittard Foxi;. B. & M. R. R. Frank v. Ingalls Galveston, H. & S. A. Ry. v. Wallace Gastenhofer v. Clair Goismer v. Lake Shore & M. S. Rv. George N. Pierce Co. v. Wells Fargo rt's Abriflpnient, Detinue, pi. 59. That version ends as follows : " Russell. Not carried away by thieves, ready, etc. EtaLii e contra. And to this issue the party was driven, etc." — Ed. 2 See 41 Ed. III. 3, pL 8. — Ed. THE innkeeper's CASE. 3 the cup to him in pledge for certain monc}*, etc., and he put it with his own goods, etc., which were stolen from him. To which the phiintilf was driven to answer : who said, that he tendered the mone}' before the theft, and the defendant refused it, judgment, etc. And he tendered averment that he did not tender before taking ; and the other was driven by award to aver the tender before the theft, etc. For W. TiiouiMC, B., said, that if one bails me his goods to keep, and I put them with mine and they are stolen, I shall not be charged, etc. Qnod nota. Cateshy in Y. B. 2 R. III. It, pi. 89 [1478]. By this action he asks nothing but an account, which clearl}' disaliirms property, etc. ; for ma}' be that in a writ of account the plaintitf shall recover nothing ; for if the thing delivered was of the value of 20/., if the defendant alleges upon his account that he adventured bj- land and was percase robl)ed, or on sea and lost, if it be found so, the i)laintiff shall recover nolliing ; for he demands nothing but an account, and more he shall not have, be it more or less. THE INNKEEPER'S CASE. Common Pleas, 1410. [Y.B. 11 //«i. /F. 45, pi. 18.] A MAN brought a writ of Trespass against an innkeeper, and declared that by the Common Law each innkeeper is obliged safely to kee[) the things which are within his inn ; and declared that he was lodged with him at a certain time, and that his horse was stolen while within the inn. Skrene. Protesting that we are not a common innkeeper, we say that the plaintiff came to us towards night and prayed to be received into our house; and we told iiim that we could not be bound to him, because earl}^ the next morning we had to be before the sheriff, to extend certain lands by the King's writ. And thereupon he prayed us to give him a key of his chamber, and another of tlio stable wliere he should put his horse ; and we gave him those same keys, and went our way that same night. And we pray judgment if he ma}' maintain this action against us, etc. T'ddesley. Protesting that we do not admit that he gave us such notice of his going awa\' as he has spoken of until after we were lodged with him, and that meanwhile our horse had been stolen from within his inn, we pray judgment, and ask for our damages. Et aic ad Judicium. IIankfokd, J., to Skrene, You have not alleged that you were sum- moned or distrained to come before the sheriff, nor in fact have you alleged that you went to the slieriff and gave attendance upon him by authority of the law ; l>ut you have said only that you gave notice to the plaintiff that you were going : and if you were not there, he may HORSLOW'S CASE. have a traverse of it. And though a common innkeeper make promise by his own head to speak with a sheritf or other man, if lie suffers one to lodge with him he answers for his goods ; and he is bound to have deputies and servants under him, for well keeping the inn during his absence. /Skrene. When 1 alleged such notice given to him as to what I had to do before the sheritf, it is to be taken as true in fact, since it is not traversed by the other jjarty. Hill, J. The bailment of the keys in this case is nothing to the pur- pose in discharging the innkeeper, as was adjudged long before his day (^quodfuit concessu))i per Justiciarios) \ but when the defendant gave notice to him that he could not attend to him causa ut supra^ and thereupon the plaintiff took lodging at his peril, he discharged the inn- keeper, and took the charge upon himself; wherefore, etc. TuiRNiNG, C. J. The plaintitf in this case in his declaration has not declared that it was a common inn. Nothing is alleged of record in proof of it, but in the declaration he has declared the common custom as to common inns, and then in the conclusion he has alleged nothing, but that he was lodged with him, so the matter in itself is not sufficient to maintain the action ; for though a man who is not a common inn- keeper lodge me in his inn, he shall not answer for ray goods. Quodfult concessum. Nota this reason. Tremayne. When I declared that I was lodged in his inn, it is in- tended that he is a common innkeeper. Thirning, C. J. An action cannot be maintained b}' argument nor by intendment, but by sufficient matter included and declared. Where- fore it is better for j'ou that your writ be abated for defect of your declaration, and that you pursue a better action. Tremayne. He has accepted our declaration as good, wherefore, etc. Hankford, J. No matter if he has accepted anything, the court does not allow it. Then the record was read, and found as Thirning had said, etc. Hankford, J. (ex assensu omnium sociorun%). You take nothing by your writ, etc., but you are in mercy, etc. HORSLOW'S CASE. Common Pleas, 1444. [Y. B. 22 Hen. VI. 21, pi. 38.] Writ of trespass on the case was brought against W. Horslow, laborer, because the Common Law of the land is that the innkeepers who keep common inns ought to safeguard the goods of those who are lodged in their inns, so that no damage should iiappen to them b}' persons un- known ; and the plaintiff alleged how certain of his goods (and alleged HORSLOW'S CASE. what) were taken out of his possession in the defendant's house by persons unknown. Prisot. Judgment of the writ ; for the writ is, Cum secundum legem & cons. Regni, etc., in which case it appears that the matter aforesaid lies in custom, which shall not be intended the Common Law, etc. Ne-wtox, C. J. What is custom of the land but the law of the land? Therefore answer this. Markam. In Kent perhaps the writ does not rehearse their cus- toms, sc. cum, secundum, Legem tfi consuetudinem, etc., because they have divers customs which do not extend except within said county, but this is a custom and a law throughout all the realm. Prisot. Yet judgment on the writ ; for tlie custom is rehearsed as of common inns, and by the writ and count it is not alleged that the defendant's house in which the goods were taken is a common inn ; where- fore may be it is not a common inn ; and if one be lodged with me, or in the house of a husbandman who is not a common innkeeper, though his goods are taken out of his possession, still he lacks an action. Newton, C. J. The exception is good, and will be corrected at another day. Markam. "We will waive this writ, and take another. Brown. This writ is good, and the practice no other : and cited two or three precedents. Prisot. All those writs are Pone, etc., such a one, innkeeper, and can be understood no otherwise except that his house is a common inn ; but in the case at bar the defendant is not named innkeeper, but W. Horslow, laborer. Brown. The addition should not be given in this action, because process of outlawr}- does not lie in said action. Newton, C. J. A laborer may hold a common inn, and e contra an innkeeper may have other houses to lodge with his license and good will. Prisot. If action be brought against the Warden of the Fleet or the Marshal in the King's Bench because of their otliee, they should be named in their writ b}' the name of their office ; so it seems in the case at bar, the defendant should be named innkeeper. Newton, C. J. In the case 3-ou have put the law is as you say ; but I may have a common inn and yet such a writ brought against me by ray own name is good. And in the case at bar if the house was not a common inn you ma}' suggest it and take advantage of it bj' way of plea. AscuE, J. It seems for another reason that the writ is abatable ; for the writ does not mention that the goods were carried into the inn and lodged in it, and carried out of said inn ; but the writ is, C. shil- lings, etc., of the plaintiff in hospicio of the defendant Jiospitati cepe- runt & asportaverunt, and this word hospitati refers to the person of the plaintiff and not to the iuindred shillings ; for then it would he hospitantes vel hospitatos ; and it may be by the wilt that the plaiiilitf might lodge in the house of tlie defendant and that tlie goods were in the house of another person and carried away ; wherefore it seems that the 6 THE MARSHAL S CASE. writ should be, ibidem inventos cepit Sasportavit. And for this reason they were adjourned. And at another day the writ was held good, etc. J^risot. You ought not to have an action, for we ourselves delivered to the plaintiff a chamber and a key to it to have and hold in his care to safeguard his goods ; and we say that the plaintiff brought with him certain persons unknown into his chamber, who took the said goods. Judgment if action. Markani. Tliat plea amounts to no more than that the goods were not taken in your default. Newton, C. J. The plea is good, if he give names in certain to those uiio took the goods ; for the persons are unknown to him, and for such a taking the law excuses him. Wherefore Frisot alleged their names, sc. Tho. T. and W. Markam. Said T. & W., whom we carried with us into the chamber did not carr}' away the goods. JSewton, C. J. That is a negative pregnant ; one, that they did not carry away the goods ; the other, that the}' did not come into his chamber at his i-equest ; but the plea is good, that the said W. and T. did not carr3' away said goods ; or else 3-ou may den}- that the said W. and T. came into the said chamber at your request. Prisot. To oust ambiguities we say that the goods were not carried awa}' in our default. FuLTHORPE, J. That is no issue. Brown. Such an issue has been taken and entered before this time. And afterwards Prisot pleaded the first bar, as above. Markam. We did not carry said W. and T. with us into the chamber, ready. Et alii e contra. Markam. Still this is perhaps a jeofail. Suppose I with my good will suffer a stranger to lodge with me in the inn, and in ni}' chamber, which stranger robs me, and I do not know him, shall not the innkeeper be charged with i-t? Newton, C. J., and All the Court. No, sir, when he was not lodged in your chamber by the innkeeper, but b}' 3"our own sufferance ; but if he was lodged with you by the innkeeper, then the innkeeper shall be charged. And suppose that your own servant who is with you in the inn robs you, shall the innkeeper be charged? Certainlj' not. Therefore the issue is good. THE MARSHAL'S CASE. Common Pleas, 1455. [Y.B.iZHen. VLl,pl. 3.] Debt was brought against the marshal of the King's Bench. And the plaintiff counts on the Statute, and that one T. who was condemned to the plaintiff in a certain sum in an Assize of Novel Disseizin sued a THE MARSHAL S CASE. 7 writ of Error before the King ; and then the judgment was affirmed, and the said T. was put in guard to the Marshal tor the sum ; and that he let him go at large, to his wrong and damage. Choke. No action lies ; for he says that a great multitude of the King's enemies on such a da_y and year came to Southwark and they then broke open the i)rison of our Lord the King, and took the pris- oners then therein out of the prison, to Avit the said T. and others, and carried them away against the will of the Marshal ; without this, that he let him go at large aliter vel aliqico alio modo. Billing and Laicon. To this plea pleaded in manner, etc. Choke. If enemies from France or other enemies of the King were here, the Marshal would be discharged ; as if they had burned a house of a tenant for life, he should be discharged of waste ; or otherwise if the house were burned by a sudden tempest, then he would be discharged ; so here. Danby, J. In your case of the King's enemies and of the sudden tempest it is right ; for then there was no remedy against any one ; but it is otherwise where subjects of the King do it; for there you may have action against them. Choke. Sir, the Captain is dead, and all the others are unknown. Prisot, C. J. If they were subjects of the King, they could not be called enemies of the King, but traitors ; for enemies are those who are out of his allegiance ; but if they were alien enemies it would be a good plea without any doubt. But if there were twelve or twenty subjects of the King, and unknown, and one night they broke open the prison and took them out, etc., in that case the Marshal shall be charged for his nei^lio-ent suard ; so here. But if it were bv a sudden accident with fire, and the prison were burned, and they escaped, perhaps it is otherwise. Choke. If a stranger comes to my House, and by his folly burns it, so that otlier houses of ray neighbor are burned, I shall not be charged with burning my neighbor's house. And, sir, if a subject of the King joins with enemies of the King like that, and then they come here and do such a thing, it shall be taken as a thing done by the King's enemy. PiiisoT, C. J. In your case he shall not be taken prisoner here, and [allowed] to make ransom as an enemy may ; but he shall be taken as traitor to the King. Choke. Then we say that there were 4,000 Scots and other enemies of the King with the other traitors, etc. Danby, J. Tiien you ought to allege the matter more specially, and some of their names. Et adjournatur. Broke's Abridgment, Detinue, 27 [1409]. Account. Jenney. If I bail goods to you and you are robbed of them, that shall excuse you. Danby, C. J. If he receives them to keep as his own goods, then it is Q good excuse ; and otherwise not. 8 THE shepherd's CASE. THE SHEPHERD'S CASE. King's Bench, 1487. [Y.B.2Hen. VII. U, pi. 9.] The case was such. A man had a hundred lambs to keep, and negli- gently through his default they were destroyed by his sufferance. Bead. It seems that the action does not lie ; for action on the Case does not lie for a nonfeasance, for the party shall have a writ of Cov- enant for it. For if one has cloths to keep and they are motheaten or rotted, no action on the Case lies, but action of Detinue. Wood. It seems to me that the action well lies ; for suppose one takes upon himself to carry glass or pots, and negligently breaks them, I shall have action on my Case, etc. Keble said that nonfeasance shall not give rise to action on the Case ; for before the Statute of Laborers if a servant who was hired would not do service to his master no action lay for his nonfeasance, etc. And it was argued, that if any act be done by the party, then action will lie well enough. As if I bail a chest with obligations, and he breaks into it, or bail a horse to ride ten leagues and he rides twenty, action on the case lies ; or in this case if the party had driven the lambs into the water action on the case would lie. TowNSEND, J. When the party undertook to keep the lambs, and afterwards allowed them to be destroyed by his default, since he had taken them and executed his bargain, and had them in his custody, and then did not attend to them, action lies. For here is his act, sc. his agreement with the undertaking, and this afterwards is broken on his part, and this shall give rise to the action. And suppose a horse be bailed to a man to keep, and afterwards he does not give him suste- nance, whereby he dies, action on the case lies. Or if a carrier takes my goods to carrj-, and afterwards he loses or breaks them, action lies to make him answer for it, because he has not executed his bargain, and has taken upon him to do the thing. But if a covenant were made with me to keep my horse or to carry my goods, and it was not done, now action of Covenant lies, and no other action ; for in those cases he never executed his promise. Y. B. 10 Hen. VII. 26, pi. 3 [1495]. Xeble {arguendo). I bail deeds and evidences to a man to guard generally. Now if his own goods and the evidences are stolen, he shall be excused towards the party, as I understand, for this keeping is chargeable to him to all in- tents as reason may expound, as I shall keep my own goods, etc. . . . FiNEUX, J. To the contrary, and denied the case of bailment of o-oods, and said that the bailee should be charged as he understood, though his own goods were stolen. Fisher. To the same intent : and said as an innkeeper has the keep- ino- of the goods ; he shall be charged notwithstanding they are stolen, and he has no remedy over ; so here. ANONYMOUS. 9 Doctor and Student, c. 38 [1518]. It is commonly holden in tlie laws of England, if a common carrier go b}' the ways that be danger- ous for robbing, or drive b}- night, or in other inconvenient time, and be robbed ; or if he overcharge a horse whereb}' he falleth into the water, or otherwise, so that the stuff is hurt or impaired ; that he shall stand charged for his misdemeanor : and if he would percase re- fuse to carrj' it, unless promise were made unto him that he shall not be charged for no misdemeanor that should be in him, the promise were void, for it were against reason and against good manners, and so it is in all other cases like.^ FiTZHERBERT, Natura Rreviura, 94 d [1534]. If a smith prick my horse with a nail, etc., I shall have m}' Action on the Case against him, without any warranty b}' the smith to do it well. . . . For it is the duty of ever}' artificer to exercise his art rightly and truly as he ought. Dall. 8 [1553]. Note b}' Browne, J., and Portman, J. As clear law ; if a common carrier takes a pack of stuff from a man to carr}' it to D. and while in a common inn the pack is taken and stolen, the owner for this shall have an action against the innkeeper for the stuff and the carrier shall not ; for they are not the goods of the carrier, nor shall he be charged with them inasmuch as he was by law compellable to carry them ; and it is not like where one takes goods to carrj' generall}', for if he be robbed, it shall be charged to the carrier for his general taking, to which he was not compellable, and so he shall have action over in respect of his liability. And 2 H. IV. the master shall have action for his goods robbed from his servant in an inn, and although there was not a direct writ for the master in the register in this case, still by the statute the clerks agree to make a writ for him ; and if it pass the Chancery it is well enough. Hales, J., ace. ANONYMOUS. Common Pleas, 1558. [Moore, 78, pi. 207.] One came to an inn, and the innkeeper said to him, " here are per- sons resorting to this house, and I know nothing about their behav- ior ; therefore take the key of such a chamber and put your goods there at your own risk, for I will take no responsibility for them ; " and after- wards the goods were stolen. The party brought action on the Case against the innkeeper. Wi-'iy. The innkeeper is responsible by the law for all the goods which come to iiis inn ; and by the law he cannot discharge himself by such words. 1 Noy (*1634), Maxims, *92, repeats this. — Ed. 10 MOSLEY V. FOSSET. Harper. We will demur. Browne, J. Then we will quickly make an end of it. Harper. My client has instructed me in this way, and I have no more to sa}'. Bkowne, J. You have the more to pay ; the innkeeper may take issue, that the goods were not stolen bj- his negligence. ANONYMOUS. Queen's Bench, 1589. [1 Harvard Manuscript Reports, 3a.j It was held by all the Justices in the Queen's Bench, that if a man bail certain cloths to a tailor to malice a robe of them, who does so, and then it is stolen out of his shop, still he shall be accountable for it ; the same is law of a carrier who has anything for his labor. But it is otherwise of him who has nothing for keeping it, but keeps it of his good will. WOODLIFE'S CASE. Queen's Bench, 1597. [Moore, 462.] In account upon merchandise delivered for merchandising, the de- fendant said that he was robbed of this merchandise, and of divers other o;oods and chattels of his own. PoPHAM, C. J. It seems a good plea. Gawdy, J., e contra. It is no plea for a carrier, because he is paid for the carriage. PopHAM, J. But it is a good plea for a factor, servant, and the like. 1 MOSLEY V. FOSSET. Queen's Bench, 1598. [Moore, 543.] Action on the case, and declares that the defendant took from the plaintiff a gelding to agist him for 2s. a week, and the defendant 1 The same case is reported in 1 Rolle's AbridL'ment, 2, as follows : " If a man deliver goods to a common carrier to carry, and the carrier is robbed of them, still he shall be charged with them, because he had hire for them, and so implicitly took upon him the safe delivery of the goods ; and therefore he shall answer for the value of them if he be robbed." — Ed. southcote's case. 11 was to keep liiin safely and redeliver when he should be asked to do so : and alleges that he so negligently kept him that he was taken by persons unknown. The defendant demurred, and the Jus- tices were divided, two against two: Popham, C. J., and Fenner, J., that the action does not lie without alleging request for redelivery, and also allesins how the horse was taken awav, dead, or lost. Gaavdy and Clench, JJ., e routra, because the action is founded on the negligence and the special assumpsit to keep safely. But all agree that without such special assumpsit the action does not lie. SOUTHCOTE'S CASE. Queen's Bench, 1600. [4 Coke, 83 6.] Southcote brought Detinue against Bennet for certain goods, and declared, that he delivered them to the defendant to keep safe ; the defendant confessed the delivery, and pleaded in bar tliat after the delivery one J. S. stole them feloniously out of his possession : the plain- tiff replied, that the said J. S. was the defendant's servant retained in his service, and demanded judgment, etc. And thereupon the defendant demurred in law, and judgment was given for the plaintiff:^ and the reason and cause of their judgment was, because the plaintiff delivered the goods to be safe kept, and the defendant had took it upon him by the acceptance upon such delivery, and therefore he ought to keep them at his peril, although in such case he should have nothing for his safe keeping. So if A delivers goods to B generally to be kept by him, and B accepts them without having anything for it, if the goods are stole from him, yet he shall be charged in Detinue ; for to be kept and to be kept safe, is all one. But if A accepts goods of B to keep them as he would keep his own proper goods, there, if the goods are stolen, he shall not answer for them : or if goods are pawned or pledged to him for money, and the goods are stolen, he shall not answer for them, for there he doth not undertake to keep them but as lie keeps his own ; for he has a property in them and not a custody only, and therefore he shall not be charged as it is adjudged in 29 Ass. 28. But if before the stealing he who pawned them tendered the money, and the other refused, then there is fault in him ; and then the stealing after such tender, as it is there held, shall not discharge him ; so if A delivers to B a chest locked to keep, and he himself carries away the key, in that case if the goods arc stolen, B shall not be charged, for A did not trust B with them, nor did B undertake to keep them, as it is adjudged in 8 E. II. Detinue, 59. 1 Per Gawdy et Clench, JJ., caeteris absentibus : see s. c. Cro. Eliz. 815. — Ed. 12 MORSE V. SLUE. So the doubt which was conceived upon sundry differing opinions in our books in 29 Ass. 28. 3 H. VII. 4, 6 II. VII. 12, 10 H. VII. 26 of Keble and Fineux, are well reconciled, vide Bract, lib. 2, fol. 62 b. But in accorapt it is a good plea before the auditors for the factor, that he was robbed, as appears by the books in 12 E. III. Accompt, 111, 41 E. III. 3, and 9 E. IV. 40. For if a factor (although he has wages and salary) does all that which he by his industry can do, he shall be discharged, and he takes nothing upon him, but his duty is as a servant to merchandise the best that he can, and a servant is bound to perform the command of his master: but a ferryman, common innkeeper, or carrier, who takes hire, ought to keep the goods in their custody safely, and shall not be discharged if they are stolen by thieves, vide 22 Ass. 41 Br. Action sur le Case^ 78. And the Court held the replication idle and vain, for non refert by whom the defend- ant was robbed, vide 33 H. VI. 31a. b. If traitors break a prison, it shall not discharge the gaoler ; otherwise of the King's enemies of another kingdom ; for in the one case he may have his remedy and recompense, and in the other not. JSFota reader, it is good policy for him who takes any goods to keep, to take them in a special manner, soil, to keep them as he keeps his own goods, or to keep them the best he can at the peril of the party ; or if they happen to be stolen or purloined, that he shall not answer for them ; for he who accepteth them, ought to take them in such or the like manner, or otherwise he may be charged by his general acceptance. So if goods are de- livered to one to be delivered over, it is good policy to provide for himself in such special manner, for doubt of being charged upon his general acceptance, which implies that he takes upon him to do it. MORSE V. SLUE. King's Bench, 1671-72. [2 Keh. 866, 3 Keh. 72, 112, 135 : 1 Vent. 190, 238 : T. Raym. 220 : 2 Lev. 69 : 1 Mod. 85.]l 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 whereas the 15of May last, the defendant was master of a certain ship called the WilUam 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, 1 The declaration and the special verdict are taken from the report by Ventris j the rest of the case is as reported by Keble. — Ed. MORSE V. SLUE. 13 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, 2^rout, 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 burthen of 150 tons, etc. So the question was, upon a trial at bar, whether the master were chargeable upon this matter.- Holt, for the Plaintiff. The master receives these goods generally to keep, as 4 Co. 83, Southcot's Case ; Co. Lit. 89 ; and only guardian in socage who hath the custody by law, and factor who is servant at the master's dispose, and so cannot take care, are exempt. 2d. The master is to have a reward for his keeping and therefore the proper person against whom the action should be is he. This is the reason (2 Cro. 188, Jelly and Clerke) of a Carrier, hoyman, and innkeeper: thus Moore, 876, V- 1^29, and in Hob. 18, Rich and Need- ham's Case. And though the master hath his salary from the owners, yet the contract for freight is made by the master in his own name with the merchant, and the master is to do that which is consequence of it, to keep the goods. And were he a servant (Doctor & Student, 137), if he contract in his own name (Dyer, 230, 2 Cro. 250, Yelv. 137, pi. 194) he is the principal debtor. Also in the Civil Law exercitor navis takes no care of freight, therefore this master is but a servant, and the action against him only exercitoria, because the owner took all the care to lade and freiglit wine ; as Plowd. 827. But the exercitor now is per aversionein the master who takes care of all. 3d. The master of the ship hath a remedy over against the wrong- doers, as Lit. Co. 54, on permissive waste. So gaoler (33 Hen. VL 1) on traitors breaking prison. Also the master he may have trespass or an appeal of robbery, and on a fresh suit (Keil. 70) he shall have resti- tution, and the damages recovered by the master shall bar the owners ; so Haydon and Smyth, 13 Co. 69. Also the mischief is great if no action lie, by reason of the great trust mercliants put in the master, and and therefore he need not prove any particular defaults (as cle lege Nau- tica, Plowd. 3, 15, 29, and in Antonius Fogassa, 822), though the 1 There appears to have been a second count in case as against a mere bailee, for negligence in not guarding the goods. 2 Keb. 8G6. — Ed. 14 MORSE V. SLUE. injuries happen without the masters default, 7niles fatale divum accideret, Lex Mercutona, 103. Also the bills of lading show this, " that the goods well received are to be redelivered, the dangers of the sea only excepted," which cannot be foreseen nor avoided ; and this differs from piracy, which (as Loccenius, 121, and 3 lust. 112) is a danger at sea or common enemies (and Loccenius de jure ntariUmo, 140, Streclia de mercatara, 448). Also here is a neglect in the master hav- ing no greater guard than four ; which is found to be the usual number, but not by time out of mind, or by custom or prescription. Also the men that robbed were permitted to enter, but it was found they pretended to be press masters. Winningtoii, for the Defendant, 1st. That here is no such neglect as to ground an action upon ; the declaration being on the custom of England, as against innkeeper, carrier, etc. (Register, 105, and F. N. B. 94 b), yet in neither is there any precedent against master of the ship nor other, but what is grounded on wilful or legal neglect. And this nonfeasance and want of sufficient numbers cannot be a neglect in law (as 8 Co. 33, Calye's Case, 4, resolved; 22 Hen. VI. 21 and 38; 2 Hen. IV. 7 b ; Dyer, 158 and 266, Spencer's Case ; and Hil. 32 Eliz. 1, Roll. 3 and Moore, 462, pi. 650, Woodlif's Case) ; for he that loseth these goods is not to pay the defendant anything, but to the owners of the ship, whose servant the master is jjro hac vice; and in Hob. 17 a reward is expressly averred to be given to the hoyman, and the master's possession is the owners'. Also here is a custom found that four was the usual number, which in verdict is sufficient without saying time out of mind (Lit. Co. 182) . Also (Wellwood's Abridgment) the duty of the master of the ship is only to look to the goods, but not to answer for them. 2d. Supposing a neglect on which the merchant should have remedy, it lyeth not against the master but against the part owners, here being no charter-party found; whereby if the master be partner he is liable, but else the master is a bare servant, and sueth owners for salary. . . . 3d. Here is not guilty found as to the point of neglect on which the later part of the declaration is as a special action upon the Case ; but it's left on the common custom, as Carrier, etc. Sed adjournatur. Tuesday, Jan. 28. Wolloj), for the Plaintiff. At the common law on the general bailment it 's against the defendant. 2. As a public carrier. And 3. as a master of a ship. As to the first is inferred that de custodia tenetur strictly (4 Co. 83, Southcot's Case ; 1 Inst. 89) ; and the like of a simple depositorius (in Inst., lib. 3, cap. ; so Bract. 99, and Grotius, lib. 2, cap. 10, § 13, de Jure Belli) whose office is mere!}' gratuitous. 2d. As of public profession, as he hath privilege so he hath trust and obligation, which is the reason the Civil Law hold them strictlier to it (Pecchius, 36), as an innkeeper ( Cffw/>o/?es Nautae et Tabularii ; Hob. 18 ; Cro. Jac. 330, Rich v. Kneeland). And that the defendant is but a servant doth not appear by his receiving salary. For 3d. he is master of a ship, and a judicial officer of universal note (Loccenius, lib. 2, cap. ) ; he hath care of the whole ship, and by MORSE V. SLUE. io the Laws of Oleron may pawn the ship (as Hob. 2, Bridgman's Case), which is more than an ordinary servant. Also he transacts all without notice of the owners, especiall}' where there is no charter-party as here (Pecchius, 126); ad inugistrum respiciuiit contrahentes. That against the owners is dativa actio, not ex contractu iinius (see Pecchius, 132) ; the owners are but as fidejussors, and the master is the principal {Lex Merccftoric, 14, and Wellwood, 87, Abridgmott of Sea Laics). He hath his otiice by public law, not by a private command (2 Hen.V. cap. 6). A sworn officer, and may impose pecuniary or corporal punishments on mariners, as steward of a manor ; the master acts officii praecepto, a procurator, but as delegate the merchant may charge the owners or (1 Inst. 385) the master at election or the owners on insufficiency of the master. Quoad Jiahitum et proprietatem the ship belongs to owners, but quoad exercitium it belongs to the master, as cure is divided between parson and vicar ; and the salary is but as a fee of an officer (2 Inst. 463), though (1 Inst. 233) removable at will. 2. By the law of merchants the defendant ought to be charged. The 51 Rhodian Laws in Morison do include exercitores as well as the master ; them actione exercitorial him actione civili. The master ma^^ by his neglect bind himself and the owner to the merchant, but not contrary. The second and third law of Oleron obliges the master to answer for neglects (Bronchurst de reg. Juris, 58 ; 1 Cro. 353) of crassa or lata culpa or de culpa levissima, and the having the usual number is not diligentia exactissima (Bronch. 61). Molloy, for the Defendant. Freight was b}' Cape Merchant generally, he that hired a dead vessel : there the owner ran no risk. 2. A Cape Merchant special, which is now usual to take in by tonnage. 3. There was an under-freighter, which is the case in question with bills of lading (Van Luen's Digest). And in both those cases the owners are answer- able. 4. On Cotton, 63, there were exercitors that of theraseWes undertook. All the first and last sort are obsolete, but the second and third now used. And the master is chosen but as a servant for his skill, and is answerable for his neglects only ; and if he be in no fault he is discharged. And the merchant shall not be in better condition against the master than the owners have for the ship's furniture (9 Edw. IV. 40 ; Lane, 68 ; 2 Cro. 266). Also the Statute 32 Hen. VIII. cap. 4, that gives the Admiral concurrent jurisdiction herein, shows the delivery special in this case, tlierefore called merchant adventurers, ami the master cannot be presumed to keep the merchant's goods safer than his own (2 Bulst. 209; Keil. 77; Doctor & Student, 38). Also the master hath no benefit by this delivery (4 Co. 48 ; Dyer, 239) ; there- fore he that hath the benefit shall answer, which is the owner's (18 Hen. VI 25 in 4 Inst. 146 ; Digest, de exercitoria actione, L. 1 , § 3 ; Kegistre, 100; AVorrall and Bradshaw's Case, 9 Jac.^). There is elec- 1 Reported in Harvard MS. Reports, 9 Jac. ; Und. 2-22 Jac, as follows : " Between Worrall and Bradsliaw it was held, that wliere poods are delivered to tlie servant of a carrier to carry them, etc., action of trover does not lie against the carrier, but special action on tiie case." — Ku. 16 MORSE v. SLUE. tiou by the marine law on wilful neglect, not else ; also the ship is instead of the owners (1 Roll. 530) and therefore is answerable (2 Rich. III. 2 ; Stat. 54). Taking alters the property- spoiled b}- alien (F. N. B. 114, Regist. 129), for which letters of mart are given. Also piracy (13 Jac. Bellingham's Case) though illegal shall not make the master answerable, but for spoliatio in narl he shall answer (as Grotius Digest, cle famosis libeUis ; and by the Laws of Oleron, cap. 5 ; Clyrak's Coment. in French, in Lincoln's Inn Library ; Tr. 24 Ed. III. tit. Bristol, no. 45, in Pruyn's Records). The master is not answerable for goods stolen out of the ship moored at anchor in pool where there is a sufficient number of men (Digest. 33 ; 1 Roll. 560, Ferns and Smyth), but only for his own faults. 2d. This is not like a common ho3'man with small vessels [which] are common carriers and so accounted (27 Ed. III. cap. 15) ; but not ships (so Pasch. 13 Ed. IV. 19, and 1 Roll. 536). There is the like difference, Hill. 19 Car. II. in Exchequer in Quo Warranto against the City of London for water bailage ; it was resolved the duty was not due of great ships that come from foreign parts, but onlj' of smaller vessels. And these have remed}- against the county as other travellers (22 Ass. ; Davis, in the case of the Bank) ; but not the others, being (4 Inst. 147) floating castles, and none can enter into them for their safet}', nor can the hundred take notice of their robber}' (7 Co. 7, San- dal's Case) nor assist with naval provisions. And this will discourage navigation ; and is without precedent or practice, but the master alwaj's discharged. The Court [per Hale, C. J.] agreed the master shall not answer for inevitable damage, nor the owniers neither without special undertaking : when it 's vis cui resisti nan potest. But for robbery the usual number to guide the ship must be increased as the charge increaseth. And the master is not a mere servant ; for freight is the mother of wages, and one lost with the other, therefore this is raone}- paid bj' the merchant. And the Court inclined strongly for the plaintiff. Saturday, Feb. 8. Per totam Curiam. By the civil law and lex mercatoria, the master is liable so long as he is within the King's protection : And b}' our law, being within the body of the county, wages beginning here. And when he took in the goods he might have cautioned against them, not to take them in till farther time ; as carrier that is not told what is in a box taken in, is liable for money, etc., unless he cautions against mone}-. Also this differs not from a hoyman. For the master is an officer and not an ordinary servant, but as a gaoler who is chargeable for escapes, though respondeat superior for his default ; but a turnkey' is but a ser- vant, not liable. Also the owner receives freight in respect of this care, and whether he receives it from them or the merchant is not material. Also though the guard be sufficient for the ship, yet (83 Hen. VI. l)he must have sufficient guard for the goods ; nor is this excuse of the carrier unless incase of common enemies. Judgment for the Pkdnti-ff: 1 COGGS V. BERNARD. 17 COGGS V. BERXARD. Queen's Bench, 1703. [2 Lord Rai/mond, 909.] In an action upon the case the plaintiff declared, quod cum Bernard the defendant, the lOth of November, 13 Will. 3, at, &c., assunip- sisset, salvo et secure elevare, Anglice to take up, several hogsheads of brandy then in a certain cellar in D., et salvo et secure deponere, Anr/lice to la}' them down again, in a certain other cellar in Water Lane, the said defendant and his servants and agents tam negligenter et improvide put them down again into the said other cellar, quod per defectum curse ipsius the defendant, his servants and agents, one of the casks was staved, and a great quantity of brandy, viz. so many gallons of brand}', was spilt. After not guilty pleaded, and a verdict for the plaintiff, there was a motion in arrest of judgment, for that it was not alleged in the declaration that the defendant was a common porter, nor averred that he had anything for his pains. And the case being thought to be a case of great consequence, it was this day argued sei'iatim by the whole court. Gould, Justice. I think this is a good declaration. The objection that has been made is, because there is not any consideration laid. But I think it is good either way, and that any man that undertakes to carry goods is liable to an action, be he a common carrier or whatever he is, if through his neglect they are lost or come to any damage ; and if a premium be laid to be given, then it is without question so. The reason of the action is, the particular trust reposed in the defendant, to which he has concurred by his assumption, and in the executing which he has miscarried by his neglect. But if a man undertakes to build a house, without anything to be had for his pains, an action will not lie for non-performance, because it is nudum puctmn. So is the 3 H. 6, 36. So if goods are deposited with a friend, and are stolen from him, no action will lie. 29 Ass. 28. But there will be a difference in that case upon the evidence, how the matter appears ; if they were stolen by reason of a gross neglect in the bailee, the trust will not save him from an action, otherwise if there be no gross neglect. So is Doct. & Stud. 129 upon that difference. The same difference is where he comes to goods by finding. Doct. & Stud, uhl supra^ Ow. 141. But if a man takes upon him expressly to do such a fact safely and securely, if the thing comes to any damage by his miscarriage, an action will lie against him. If it be only a general bailment, the bailee will not be chargeable without a gross neglect. So is Keilw. IGO, 2 H. 7, 11, 22 Ass. 41, 1 R. 10. Bro. Action sur le case, 78. Soutlicote's Case is a hard case indeed, to oblige all men, that take goods to keep, to a special acceptance that they will keep them as safe as they would do their own, which is a thing no man living tliat is not a lawyer could tliiuk of; and indeed it appears by the report of tliat case in Cro. Kl. 81.'j, tliat il was adjudged by two judges only, viz. Gawdy and Clench. But in 1 Ventr. J 8 COGGS V. BERNARD. 121 there is a breach assigned upon a bond conditioned to give a true account, that the defendant had not accounted for £30, the defendant showed that he locked the mone}- up in his master's warehouse, and it was stole from thence, and that was held to be a good account. But when a man undertakes specially to do such a thing, it is not hard to charge him for his neglect, because he had the goods committed to his custody upon those terms. Powys agreed upon the neglect. Powell. The doubt is, because it is not mentioned in the declaration that the defendant had anything for his pains, nor that he was a com- mon porter, which of itself imports a hire, and tliat he is to be paid for his pains. So that the question is, whether an action will lie against a man for doing the office of a friend, when there is not any particular neglect shown. And I hold an action will lie, as this case is. And in order to make it out, I shall first show that there are great authorities for me, and none against me ; and then, secondly, I shall show the rea- son and gist of this action ; and then, thirdly, I shall consider South- cote's Case. 1. Those authorities in the Register, 110, a, b, of the pipe of wine, and the cure of the horse, are in point, and there can be no answer given them but that they are writs which are framed short. But a writ upon the case must mention everything that is material in the case, and noth- ing is to be added to it in the count but the time and such other cir- cumstances. But even that objection is answered by East. Entr. 13, e., where there is a declaration so general. The year books are full in this point. 43 Ed. 3, 33, a., there is no particular act showed. There, indeed, the weight is laid more upon the neglect than the contract. But in 48 Ed. 3, 6, and 19 H. 6, 49, there the action is held to lie upon the undertaking, and that without that it would not lie ; and therefore the undertaking is held to be the matter traversable, and a writ is quashed for want of laying a place of the undertaking. 2 H. 7, 11, 7 H. 4, 14, these cases are all in point, and the action adjudged to lie upon the undertakingo 2 Now, to sive the reason of these cases, the gist of these actions is the undertaking. The party's special assumpsit and undertaking obliges him so to do the thing, that tlie bailor come to no damage by his neglect. And the bailee in this case shall answer accidents, as if the goods are stolen ; but not such accidents and casualties as happen by the act of God, as fire, tempest, &c. So is it 1 Jones, 179, Palm. 548. For the bailee is not bound upon any undertaking against the act of God. Justice Jones in that case puts the case of the 22 Ass., where the ferryman overladed the boat. That is no authority, I confess, in that case, for the action there is founded upon the ferryman's act, viz. the overlading the boat. But it would not have lain, says he, without that act ; because the ferryman, notwithstanding his undertaking, was not bound to answer for storms. But that act would charge him with- out any undertaking, because it was his own wrong to overlade the boat. But bailees are chargeable in case of other accidents, because they have COGGS V. BERNARD. 19 a remed}' against the wrong doers ; as in case the goods are stolen from hira, an a[)peal of robbery will lie, wherein he may recover the goods, which cannot be had against enemies, in case they are plundered by them ; and therefore in that case he shall not be answerable. But it is objected, that here is no consideration to ground the action upon. But as to this, the difference is between being obliged to do the thing, and answering for things which he has taken into his custody upon such an undertaking. An action, indeed, will not lie for not doing the thing, for want of a sufficient consideration ; but yet if the bailee will take the goods into his custod}", he shall be answerable for them ; for the taking the goods into his custody' is his own act. And tliis action is founded npon the warranty, upon wliich I have been contented to trust you with tlie goods, which without such a warranty I would not have done. And a man ma}' warrant a thing without any consideration. And therefore, when I have reposed a trust in you, upon your undertaking, if I suffer when I have so relied upon you, I shall have my action. Like the case of the Countess of Salop. An action will not lie against a tenant at will generally, if the house be burnt down. But if the action had been founded upon a special undertaking, as that in consideration the lessor would let him live in the house, he promised to deliver up the house to him again in as good repair as it was then, the action would have lain upon that special undertaking. But there the action was laid generally. 3. Southcote's Case is a strong authorit\-, and the reason of it comes home to this, because the general bailment is there taken" to be an undertaking to deliver the goods at all events, and so the judgment is founded upon the undertaking. But I cannot think that a general bailment is an undertaking to keep the goods safely at all events. That is hard. Coke reports the case upon that reason, but makes a difference, where a man undertakes specially to keep goods as he will keep his own. Let us consider the reason of the case. For nothing is law that is not reason. Upon consideration of the authorities there cited, I find no such difference. In 9 Ed. 4, 40, b, there is such an opinion by Danby. The case in 3 H. 7, 4, was of a special bailment, so that that case cannot go very far in the matter. 6 II. 7, 12, there is such an opinion, by the by. And this is all the foundation of Southcote's Case. But there are cases there cited which are stronger against it, as 10 11. 7, 26, 29 Ass. 28, the case of a pawn. My lord Coke would distinguish tlie case of a pawn from a bailment, because the pawnee has a special property in the pawn ; but that will make no difference, because he has a special property in the thing bailed to him to keep. 8 Ed. 2, Fitzh. Detinue, 59, the case of goods bailed to a man, locked up in a chest, and stolen ; and for the reason of that case, sure it would be hard that a man that takes goods into his custody to kee|) for a friend, purely out of kindness to his friend, should l)e chargeable at all events. But tlien it is answered to that, that the bailee might take them specially. There are many lawyers ilou't know tliat dilTcrenre, or how- ever it may be with them, half mankind never heard of it. So for these 20 COGGS V. BEKNARD. reasons, I think a general bailment is not, nor cannot be taken to be, a special undertaking to keep the goods bailed safely against all events. But if a man does undertake specially to keep goods safely, that is a warranty, and will oblige the bailee to keep them safely against perils, where he has his remedy over, but not against such where he has no remedy over. Holt, Chief Justice. The case is shortly this. This defendant under- takes to remove goods from one cellar to another, and there lay them down safely, and he managed them so negligently, that for want of care in him some of the goods were spoiled. Upon not guilty pleaded, there 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 without a reward. I have had a great consideration of this case, and because some of the books make the action lie upon the reward, and some upon the promise, at first I made a great question, whether this declaration was good. But upon consideration, as this declaration is, I think the action will well lie. In order to show the grounds upon which a man shall be charged with goods put into his custody, 1 must show the several sorts of bailments. And there are six sorts of bailments. The first sort of bailment is, a bare naked bailment of goods, delivered by one man to another to keep for the use of the bailor ; and this I call a de2)0situm, and it is that sort of bailment which is mentioned in Southcote's Case. The second sort is, when goods or chattels that are useful are lent to a friend gratis, to be used by him ; and this is called commodatum, be- cause 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 securit}' to him for money borrowed of him by the bailor ; and this is called in Latin vadium., and in English a pawn or a pledge. The fifth sort is, when goods or chattels are deliv- ered to be carried, or something is to be done about them for a reward to be paid by the person who delivers them to the bailee, who is to do the thing about them. The sixth sort is, when there is a deliver}' of goods or chattels to somebody, who is to carry them, or do something about them gratis, without any reward for such his work or carriage, which is this present case. I mention these things, not so much that they are all of them so necessary in order to maintain the proposition which is to be proved, as to clear the reason of the obligation which is upon persons in cases of trust. As to the first sort, where a man takes goods in his custody to keep for the use of the bailor, I shall consider for what things such a bailee ia answerable. He is not answerable if they are stole without any fault COGGS V. BERNARD. 21 in him, neither will a common neglect make him chargeable, but he must be guilty of some gross neglect. There is, I confess, a great authorit}- against me, where it is held that a general delivery will charge the bailee to answer for the goods if the}' are stolen, unless the goods are speciall}- accepted, to keep them only as you will keep your own. But my lord Coke has improved the case in his report of it, for he will have it that there is no dirterence between a special acceptance to keep safely, and an acceptance generall}- to keep. But there is no reason nor justice in such a case of a general bailment, and where the bailee is not to have an}' reward, but keeps the goods merely for the use of the bailor, to charge him without some default in him. For if he keeps the goods in such a case with an ordinary care, he has performed the trust reposed in him. But according to this doctrine the bailee must answer for the wrongs of other people, which he is not, nor cannot be, sufficientlv armed against. If the law be so, there must be some just and honest reason for it, or else some universal settled rule of law, upon which it is grounded ; and therefore it is incumbent upon them that advance this doctrine, to show an undisturbed rule and practice of the law according to this position. But to show that the tenor of the law was always otherwise, I shall give a histor}' of the authorities in the books in this matter, and by them show that there never was any such resolution given before Southcote's Case. The 29 Ass. 28 is the first case in the books upon that learning, and there the opinion is, that the bailee is not chargeable if the goods are stole. As for 8 Edw. 2, Fitz. Detinue, 59, where goods were locked in a chest and left with the bailee, and the owner took away the key, and the goods were stolen, and it was held that the bailee should not answer for the goods. That case, the}- say, differs, because the bailor did not trust the bailee with them. But I cannot see the reason of that difference, nor why the bailee should not be charged with goods in a chest, as well as with goods out of a chest. For the bailee has as little power over them when they are out of a chest, as to any benefit he might have by them, as when they are in a chest ; and he has as great power to defend them in one case as in the other. The case of 9 Edw. 4, 40, b, was but a debate at bar. For Danbt was but a counsel then, though he had been Chief Justice in the beginning of Ed. 4, yet he was removed, and restored again upon the restitution of Hen. 6, as appears by Dugdale's Chronica Series. So that wliat he said cannot be taken to be any authority, for he spoke only for his client ; and Genney for his client said the contrary. The case in 3 Hen. 7, 4, is but a sudden opinion, and that but by half the court ; and yet that is the only ground for tiiis opinion of my lord Coke, vvliich besides he has improved. But tiie practice has been always at Guildhall to disallow that to be a sulliciont evidence to charge the bailee. And it was practised so before my time, all Chief Justice Pkmbkuton'.s time, and ever since, against the opinion of that case. When I read Southcote's Case heretofore. T was not so discerning as my brother Powys tells us he was, to disallow tlir.t case at first, and came not to be of this opinion till I had well considered 22 COGGS V. BERNARD. and digested that matter. Though I must confess reason is strong against the case to charge a man for doing such a friendly act for his friend, but so far is the law from being so unreasonable, that sucli a bailee is the least chargeable for neglect of anj-. For if he keeps the goods bailed to him but as he keeps his own, though he keeps his own but negligently, yet he is not chargeable for them, for the keeping them as he keeps his own is an argument of his honesty. A fortiori^ he shall not be charged where they are stolen without any neglect in him. Agree- able to this is Bracton, hb. 3, c. 2, 99, b, J, S., apud quem res depo- nitur, re obligatur, et de ea re, quam accepit, restituenda tenetur, et etiam ad id, si quid in re deposita dolo commiserit ; culpae autem nomine nou tenetur, scilicet desidict vel negligentia?, quia qui negligenti amico rem custodieudam tradit, sibi ipsi et propria fatuitati hoc debet impu- tare. As suppose the bailee is an idle, careless, drunken fellow, and comes home drunk, and leaves all his doors open, and by reason thereof the goods happen to be stolen with his own ; yet he shall not be charged, because it is the bailor's own folly to trust such an idle fellow. So that this sort of bailee is the least responsible for neglects, and under the least obligation of any one, being bound to no other care of the bailed goods than he takes of his own. This Bracton I have cited is, I confess, an old author, but in this his doctrine is agreeable to reason, and to what the law is in other countries. The civil law is so, as you have it in Justinian's Inst. lib. 3, tit. 15. Thei'e the law goes farther, for there it is said, Ex eo solo tenetur, si quid dolo commiserit : culpEe autem nomine, id est, desidia? ac negiigeutiffi, non tenetur. Itaque securus est qui parum diligenter custoditam rem furto amiserit, quia qui negli- genti amico rem custodieudam tradit, non ei, sed su£e facilitati id im- putare debet. So that a bailee is not chargeable without an apparent gross neglect. And if there is such a gross neglect, it is looked upon as an evidence of fraud. Nay, suppose the bailee undertakes safely and securely to keep the goods, in express words, 3'et even that won't charge him with all sorts of neglects. For if such a promise were put into writing, it would not charge so far, even then. Hob. 34, a covenant, that the covenantee shall have, occupy, and enjoy certain lands, does not bind against the acts of wrong doers. 3 Cro. 214, ace. 2 Cro. 425, ace. upon a promise for quiet enjoyment. And if a promise will not charge a man against wrong doers, when put in writing, it is hard it should do more so when spoken. Doct. & Stud. 130 is in point, that though a bailee do promise to redeliver goods safely, yet if he have nothing for the keeping of them, he will not be answerable for the acts of a wrong doer. So that there is neither sufficient reason nor authority to support the opinion in Southcote's Case ; if the bailee be guilty of gross negligence, he will be chargeable, but not for an}- ordi- nary neglect. 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, be- cause the bailee has a benefit by the use of them, so as if the bailee be guilty of the least neglect, he will be answerable ; as if a man should COGGS l\ BEKNAKD. 23 lend another a horse, to go westward, or for a month ; if the bailee go northward, or keep the horse above a month, if any accident happen to the horse in the northern journey, or after the expiration of the month, the bailee will be chargeable ; because he has made use of the horse contrary to the trust he was lent to him under, and it may be if the horse had been used no otherwise than he was lent, that accident would not have befallen him. This is mentioned in Bracton, nbi supra ; his words are, Is autem cui res aliqua utenda datur, re obligatur, qua^ com* modata est, sed magna differentia est inter mutuum et commodatum ; quia is qui rem mutuam accepit, ad ipsam restituendam tenetur, vel ejus pretium, si forte ineendio, ruina, naufragio, aut latronum vel hostium in- cursu, consumpta fuerit, vel deperdita, subtracta vel ablata. Et qui rem utendam accepit, non sufficit ad rei custodiam, quod talem diligentiam ad- hibeat, qualeni suis rebus propriis adhibere solet. si alius eam diligentius potuit custodire ; ad vim autem raajorem, vel casus fortuitos non tenetur quis, nisi cal[ja sua intervenerit. Ut si rem sibi commodatam domi, se- cum detulerit cum peregre profectus fuerit, et illam incursu hostium vel prtedonum, vel naufragio amiserit non est dubium quin ad rei restitu- tionem teneatur. I cite this author, though I confess he is an old one, because his opinion is reasonable, and very much to my present purj^ose, and there is no authoritv in the law to the contrary. But if the bailee put this horse in his stable, and he were stolen from thence, the bailee shall not be answerable for him. But if he or his servant leave the house or stable doors open, and the thieves take the opportunity of that, and steal the horse, he will be chargeable ; because the neglect gave the thieves the occasion to steal the horse. Bracton says, the bailee must use the utmost care, but yet he shall not be chargeable, where there is such a force as he cannot resist. As to the third sort of bailment, scilicet locatio or lending for hire, in this case the bailee is also bound to take the utmost care, and to return the goods when the time of the hiring is expired. And here again I must recur to my old author, fol. G2, b. Qui pro usu vestiinen- torum auri vel argenti, vel allerius ornamenti, vel jamenti, mercedem dederit vel promiserit, talis ab eo desideratur custodia, qualem diligen- tissimus paterfamilias suis rebus adiiibet, quam si prajstiterit, et rem aliquo casu amiserit, ad rem restituendam non tenebitur. Nee sufficit aliquem talem diligentiam adhibere, qualem suis rebus proi)riis adhiberet, nisi talem adhibuerit, de qua superius dictum est. From whence it appears that if goods are let out for a reward, the hirer is bound to the utmost diligence, such as the most diligent father of a famil}' uses ; and if he uses that, he shall be discharged. But every man, how dili- gent soever he be, being liable to the accident of robbers, though a diligent man is not so liable as a careless man. the bailee shall not be answerable in this case, if the goods are stolen. As to the foiu'th sort of I)ailment, viz. vadium, or a pawn, in this I shall consider two things ; first, what property the pawnee has in the pawn or i)ledge, and .secondly for what neglects he shall make .satisfac- tion. As to the first, he has a special projierty, for the pawn is a 24 COGGS V. BEENARD. securing to the pawnee that he shall be repaid his debt, and to compel the pawnor to pay him. But if the pawn be such as it will be the worse for usino-, the pawnee cannot use it, as clothes, &c. ; but if it be such as will be never the worse, as if jewels for the purpose were pawned to a lady, she might use them. But then she must do it at her peril, for whereas if she keeps them locked up in her cabinet, if her cabinet should be broke open and the jewels taken from thence, she would be excused ; if she wears them abroad, and is there robbed of them, she will be an- swerable. And the reason is, because the pawn is in the nature of a deposit, and as such is not liable to be used. And to this effect is Ow. 123. But if the pawn be of such a nature, as the pawnee is at any charge about the thing pawned, to maintain it, as a horse, cow, &c., then the pawnee may use the horse in a reasonable manner, or milk the cow, »&c., in recompense for the meat. As to the second point, Bracton, 99, b, gives you the answer. Creditor, qui piguus accepit, re obligatur, et ad illam restituendam tenetur ; et cum hujus- modi res in pignus data sit utriusque gratia, scilicet debitoris, quo magis ei pecunia credere tur, et creditoris quo magis ei iu tuto sit creditum, sufflcit ad ejus rei custodiam diligentiam exactam adhibere, quam si prtestiterit, et rem casu amiserit, securus esse possit, nee impedietur creditum petere. In effect, if a creditor takes a pawn, he is bound to restore it upon the payment of the debt ; but yet it is sufficient, if the pawnee use true diligence, and he will be indemnified in so doing, and notwithstanding the loss, yet he shall resort to the pawnor for his debt. Agreeable to this is 29 Ass. 28, and Southcote's Case is. But indeed the reason given in Southcote's Case is, because the pawnee has a special property in the pawn. But that is not the reason of the case ; and there is another reason given for it iu the book of Assize, which is in- deed the true reason of all these cases, that the law requires nothing extraordinary of the pawnee, but only that he shall use an ordinary care or restoring the goods. But indeed, if the money for which the goods rere pawned be tendered to the pawnee before they are lost, then the jiawnee shall be answerable for them ; because the pawnee, by detain- ing them after the tender of the money, is a wrong doer, and it is a wrongful detainer of the goods, and the special property of the pawnee is determined. And a man that keeps goods by wrong must be answer- able for them at all events, for the detaining of them by him is the rea- son of the loss. Upon the same difference as the law is in relation to pawns, it will be found to stand in relation to goods found. As to the fifth sort of bailment, viz. a delivery to carry or otherwise manage, for a reward to be paid to the bailee, those cases are of two sorts : either a delivery to one that exercises a public employment, or a delivery to a private person. First, if it be to a person of the first sort, and he is to have a reward, he is bound to answer for the goods at all events. And this is the case of the common carrier, common hoyman, master of a ship, &c., which case of a master of a ship was first ad- judged 26 Car. 2, in the case of Mors v. Slew. Raym. 220. 1 Vent. 190, 238. The law charges this person, thus intrusted to carry goods, COGGS V. BERNAKD. 25 against all events but acts of God, and of the enemies of the king. For though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic establishment, contrived b}- the policy of the law for the safet}' of all persons, the necessity of whose affairs oblige them to trust these sorts of persons, that they ma\- be safe in their ways of dealing ; for else these carriers might have an opportunity of undoing all persous that had any deaUngs with them, b}- combining with thieves, &c., and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon in that point. The .second sort are bailies, factors, and such like. And though a bailie is to have a reward for his management, 3'et he is onl}' to do the best he can. And if he be robbed, &c., it is a good account. And the reason of his being a servant is not the thing ; for he is at a dis- tance from his master, and acts at discretion, receiving rents and selling corn, &c. And 3'et if he receives his master's money, and keeps it locked up with a reasonable care, he shall not be answerable for it, though it be stolen. But yet this servant is not a domestic servant, nor under his master's immediate care. But the true reason of the case is, it would be unreasonable to charge him with a trust farther than the nature of the thing puts it in his power to perform it. But it is allowed in the other cases, by reason of the necessity of the thing. The same law of a factor. As to the sixth sort of bailment, it is to be taken, that the bailee is to have no reward for his pains, but yet that by his ill management the goods are spoiled. Secondly, it is to be understood that there was a neglect in the management. But thirdlv, if it had appeared that the mischief happened b}' any person that met the cart in the wa}', the bailee had not been chargeable. As if a drunken man had come bv in the streets and had pierced the cask of brandy ; in this case the defendant had not been answerable for it, because he was to have nothing for his pains. Then, the bailee having undertaken to manage the goods, and having managed them ill, and so b}" 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 mandatutii. It is an obligation which arises ex mandato. It is what we call in English an acting bv commis- sion. And if a man acts b}' commission for another gratis, and in the executing his commission behaves himself nesflisentlv, he is answerable. Vinnius, in his commentaries upon Justinian, lib. 3, tit. 27, 68-1, de- fines laamlatum to be contractus quo aliquid gratuito gerendum com- mittitur et accipitur. This undertaking obliges the undertaker to a diligent management. Bracton, iifn siqrra, says, contrahitur etiam obligatio non solum scripto et verbis, sed et consensu, sicut in con- tractibus bonae fidei ; ut in emptionibu.s, venditionibus, locationibus, conductionibus, societatibus, et niandutis. I don't find this word in any other author of our law, besides in this place in liracton, which is a full autliority, if it be not thought too old. ]>ut it is supported by good reason and authority. 26 COGGS V. BERNARD. The reasons are, first, because in such a case a neglect is a deceit to the bailor. For when he intrusts the bailee upon his undertaking to be careful, he has put a fraud upon the plaintiff by being negligent, his pre- tence of care being the persuasion that induced the plaintiff to trust him. And a breach of a trust undertaken voluntarily will be a good ground for an action. 1 Roll. Abr. 10. 2 Hen. 7, 11, a strong case to this matter. There the case was an action against a man, who had under- taken to keep an hundred sheep, for letting them be drowned by his default. And there the reason of the judgment is given, because when the party has taken upon him to keep the sheep, and after suffers them to perish in his default ; inasmuch as he has taken and executed his bargain, and has them in his custody, if after he does not look to them, an action lies. For here is his own act, viz. his agreement and prom- ise, and that after broke of his side, that shall give a sufficient cause of action. But secondly' it is objected, that there is no consideration to ground this promise upon, and therefore the undertaking is but nudum pactum. But to this I answer, that the owners trusting him with the goods is a sufficient consideration to oblige him to a careful management. Indeed, if the agreement had been executory, to carry these brandies from the one place to the other such a da}', the defendant had not been bound to carrj- them. But this is a different case, for assumpsit does not onlv signifv a future agreement, but in such a case as this it sisnifies an actual entry upon the thing, and taking the trust upon himself. And if a man will do that, and miscarries in the performance of his trust, an action will lie against him for that, though nobody could have compelled him to do the thing. The 19 Hen. 6, 49, and the other cases cited \)y my brothers, show that this is the difference. But in the 11 Hen. 4, 33, this difference is clearl}- put, and that is the only case concerning this matter w^iich has not been cited b}- 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, wiiat if he had built the house unskilfuUj', and it is agreed in that case an action would have lain. There has been a question made, if I deliver goods to A., and in consideration thereof he promise to redeliver them, if an action will lie for not I'edelivering them ; and in Yelv. 4, judgment was given that the action would lie. But that judgment was afterwards reversed, and according to that reversal, there was judgment afterwards entered for the defendant in the like case. Yelv. 128. But those cases were grumbled at, and the reversal ,of that judgment in Yelv. 4, was said b}' the judges to be a bad resolu- tion, and the contrar}' to that reversal was afterwards most solemn!}' adjudged in 2 Cro. 667, Tr. 21 Jac. 1, in the king's bench, and that judgment affirmed upon a writ of error. And 3'et there is no benefit to the defendant, nor no consideration in that case, but the having the mone}' in his possession, and being trusted with it, and yet that was held to be a good consideration. And so a bare being trusted DALE V. HALL 27 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 his possession. The declaration in the case of Mors v. Slew was drawn b}' the greatest drawer in England in that time, and in that declaration, as it was alwa3s in all such cases, it was thouglit most prudent to put in that a reward was to be paid for the carriage. And so it has been usual to put it in the writ, where the suit is by original. I have said thus much in this case, because it is of great consequence that the law should be settled in this point, but I don't know whether I may have settled it, or may not rather have unsettled it. But however that hap- pen, 1 have stirred these points, which wiser heads in time may settle. And judgment was given for the plaintiff.^ DALE V. HALL. King's Bench, 1750. [1 Wilson, 281.] Action upon the case against a shipmaster or keelman who carries goods for hire from port to port ; the plaintiff does not declare against him as a common carrier upon the custom of the realm, but the decla- ration is that the defendant at the special instance of the plaintiff under- took to carr}' certain goods consisting of knives and other hardware safe from such a port to such a port, and that in consideration thereof the plaintiff undertook and promised to pay him so much money, that the goods were delivered to the defendant on board his keel, and that the goods were kept so negligentl}' by him that thej- were spoiled, to the plaintiff's damage. For the defendant it was insisted at the trial, that as the plaintiff had proved no particular negligence in the defendant, that he might l)e per- mitted to give in evidence that he had taken all possible care of the goods, that the rats made a leak in the keel or hoy, whereb\- the goods were spoiled by the water coming in, that they pumped and did all thev could to prevent the goods being damaged ; which evidence the Judge permitted to be given, and thereupon left it to the jury, who found a verdict for the defendant. Defendant argued that the breach assigned being that by the negli- ^ See Jones, Bailments, 104 [1781]. "A carrier is regularly answerable for neglett, but not regularly for damage occasioned by the attacks of ruffians, any more tlian for hostile violence or UHavoidable misfortune ; but the great maxims of policy and good government make it necessary to except from this rule the case of robbery, lest con- federacies should be formed between carriers and desperate villains, with little or no chance of detection. Although the Act of God, wdiich the ancients too called ©eoC 0iav and Vim div'mam, be an expression which long habit has rendered familiar to us, yet perhaps on that very account it might be more pro])er, as well as more decent, to sub- stitute in its place inevitable acccident. . . . Law, which is merely a practical science, cannot use terms too popular and perspicuous."— Ed. 28 FOKWARD V. PITTARD. gence of the defaulter the goods were spoiled, therefore negligence is the very gist of this action, and the defendant has proved there was no negligence. Lee, C. J. The declaration is, that the defendant undertook for hire to carr}- and deliver the goods safe, and the breach assigned is that thev were damaged by negligence ; this is no more than what the law sa3S. Everj'thing is a negligence in a carrier or hoyman that the law does not excuse, and he is answerable for goods the instant he receives them into his custod}', and in all events, unless the\' happen to be damaged by the act of God, or the king's enemies; and a promise to carry safely is a promise to keep safely. Wright, J., of the same opinion. Denison, J. The law is very clear in this case for the plaintiff; the declaration upon the custom of the realm is the same in effect with the present declaration. ... Foster, J., of the same opinion ; and a new trial was granted.^ FORWARD V. PITTARD. King's Bench, 1785. [1 Term Reports, 27.] This was an action on the case against the defendant as a common carrier, for not safel}' canying and delivering the plaintiff's goods. This action was tried at the last summer assizes at Dorchester, before Mr. Baron Perryn, when the jur}- found a verdict for the plaintiff", subject to the opinion of the Court on the following case : — " That the defendant was a common carrier from London to Shafts- bury. That on Thursday the 14th of October, 1784, the plaintiff de- livered to him on Weyhill 12 pockets of hops to be carried by him to Andover, and to be by him forwarded to Shaftsbur}' b}' his public road waggon, which travels from London through Andover to Shaftsbury. That by the course of travelling, such waggon was not to leave Andover till the Saturda}- evening following. That in the night of the following day after the delivery of the hops, a fire broke out in a booth at the distance of 100 yards from the booth in which the defendant had de- posited the hops, which burnt for some time with unextinguishable violence, and during that time communicated itself to the said booth in which tlie defendant had deposited the hops, and entirely consumed them without any actual negligence in the defendant. That the fire was not occasioned by lightning." JV. Bond, for the plaintiff. The question is, whether a carrier is 1 Of this case Sir William Jones says (Bailments, p. 105) : "The true reason of this decision is not mentioned by the reporter : it was in fact at least ordinary negligence to let a rat do such mischief in the vessel ; and the Roman law has on this principle decided that ' si fuUo vestimenta polienda acceperit eaque mures roseriut, ex locate tenetur, quia debuit ab hac re cavere.' " — Ed. FORWARD V. PITTARD. 29 liable for the loss of goods occasioned by fire, without any negligence in him or his servants. The general proposition is, that a carrier is liable in all cases, except the loss be occasioned by the act of God, or the King's enemies. (Lord Raymond, 909. 1 Wils. 281.) And this doctrine has lately been recognized by this Court, in the case of the Company of the Trent Navigation v. Wood. (East. 25 Geo. 3. B. R.) The only doubt is on the construction of the words, '' the act of God." It is an effect immediately produced without the interposition of any human cause. In Amies and Stephens (1 Stra. 128) these words were held to include the case of a ship being lost by tempest. In the books, under the head of " waste," there is an analogous distinction to be found : if a house fall down by tempest, or be burned by lightning, it is no waste ; but burning by negligence or mischance is waste. (Co. Litt. 53. a. b.) Before the 6th of Anne (6 Ann. c 31 ; 10 Ann. c. 14) an action lay against any person in whose house a fire accidentally began : this shows that an accidental fire was not in law considered as the act of God ; but the person was punishable for negligence. Suppose a fire happens in a house where there are different lodgers, each of whose lodg- ings is considered as a separate house : if the fire be communicated from one lodging to another, and the Court say the first fire was the act of man, at what time will it be said that it ceases to be the act of man and commences to be the act of God? if it were not the act of man in the first house, it is impossible to draw the line. In the case of the Company of the Trent Navigation and Wood, Lord Mansfield said, " By the act of God is meant a natural, not merely an inevitable, accident." If it be contended for the defendant that it is here stated that there was no actual negligence, that will not serve him : for this action was not founded in negligence. Lord Holt says, there are several species of bailments, and different degrees of liability annexed to each : and a carrier is that kind of bailee, who is answerable though there be no actual negligence. Borouf/h, for the defendant, observed that the point in this case was not before the Court in any of the cases cited. The general question here is, whether a carrier is compellable to make satisfaction for goods delivered to him to carry, and destroyed by mere accident, in a case where negligence is so far from being imputed to him, that it is ex- pressly negatived? This action of assumpsit must be considered as an action founded on what is called the custom of the realm relating to carriers. And from a review of all the cases on this subject it mani- festly appears that a carrier is only liable for damage and loss occasioned by the acts or negligence of himself and servants, that is, for such damage and loss only as iuiman care or foresight can prevent ; and tiiat there is no implied contract between him and his employers to indemnify them against unavoidable accidents. The law with respect to land car- riers and water carriers is the same. Rich v. Kneeland, Cro. Jac. 330. Hob. 17. 5 Burr. 2827. In Vid. 27. The declaration, in an action against a watermun for 30 FORWARD V. PITTARD. negligentl}' keeping bis goods, states the custom relative to earners thus, " absque substractione, amissione, seu spoliatione, portare tenen- tur, ita quod pro defectu dictorum comuiunium portatorum seu ser- vientium suorum, hujusmodi bona et catalUi eis sic ut prefertur deliberata, non sint perdita, amissa, seu spoliata." It then states the breach, that the defendant had not delivered them, and " pro defectu bonae custodiae ipsius defendentis ct scvvientium suorum perdita et amissa fuerunt." In Brownl. Red. 12. the breach in a declaration against a carrier is, " de- fendens tarn negligenter et improvidc custodivit et carriavit," etc. In Clift. 38, 39. Mod. Intr. 91, 92. and Heme 76. the entries are to the same etl'ect. In liich and Kneeland (Hob. 17), the custom is stated in a similar way: and in the Exchequer Chamber it was resolved, " that though it was laid as a custom of the realm, yet indeed it is common law.'" On considering these cases, it is not true that " the act of God, and of the King's enemies," is an exception from the law. For an ex- ception is always of something comprehended within the rule, and therefore excepted out of it : but the act of God and of the King's en- emies is not within the law as laid down in the books cited. All the authorities cited by the counsel for the plaintiff are founded on the dictum in Coggs v. Bernard (2 Lord Raymond, 909), where this doctrine was first laid down : but Lord Holt did not mean to state the proposition in the. sense in which it has been contended he did state it. He did not intend to say that cases falling within the reason of what are vulgarly called '' acts of God," should not also be good defences for a carrier. After saying (Lord Raymond, 918), " the law charges the persons, thus intrusted to carry goods, against all events, but the acts of God and of the enemies of the King," he proceeds thus, " for though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic establishment, con- trived by the policy of the law for the safety of all persons, the necessit}' of whose affairs oblige them to trust these sorts of persons, that the}' may be safe in their ways of dealing ; for else these carriers might have an opportunity of undoing all persons who had any dealings with them, by combining with thieves, etc., and yet doing it in such a clandestine manner, as would not be possible to be discovered." As Lord Holt therefore states the responsibility of carriers in case of robbery to take its origin from a ground of polic}', he could not mean to sa}' that a car- rier was also liable in cases of accidents, where neither combination or negligence can possibly exist. It appears from the Doctor and Student (Dial. 2. c. 38. p. 270) that, at the time that book was written, the carrier was held liable for rob- beries which diligence and foresight might prevent. And what is there said agrees precisely with the custom ; and does not bear hard on the carrier. If he will travel by night, and is robbed, he has no remedy against the hundred ; for then he is not protected by the statute of Winton, and he ought to be answerable to the employer. If he travel by day and is robbed he has a remedy. Now tlie carrier maj- not per- haps be worth suing ; and the employer may bring the action against FORWARD V. PITTARD. 61 the hundred in his own name ; which action he would be deprived of, if the carrier travelled b}- night. There is not a single authoritv in all the old books which savs that a carrier is responsible for mere accidents. He onl}- engages against substraction, spoil, and loss, occasioned by the neglect of himself or his servants. These words plainly point at acts to be done, and omis- sion of care and diligence. But in the present case there is no act done ; and there cannot be said to be any omission of care and dili- gence, since they could not have prevented the calamity. Lord Holt, in Coggs v. Bernard, seems to have traced, with great at- tention, the different species of bailments. He cites many passages from Bracton, who has nearly copied them from Justinian. So that it is probable that the custom relating to carriers took its origin from the civil law as to bailments. Now it is observable that in no one case of bailment is the bailee answerable for an accident : he is only liable for •want of diligence. The only difference in this respect between the civil and the English law is, that the former (Justin, lib. 3. 15. 8. 2, 3, 4. Tit. 35. S. 5) distinguishes between the different degrees of diligence required in the different species of bailment ; which the latter does not. In all the cases to be found in our books, may be traced the true ground of liability, negligence. If the law were not as is now contended for. the question of negligence could never have arisen ; and the case; of robbery could not have borne any argument ; whereas the case of Mors V. Slue (1 Vent. 190.238) came on repeatedly before the Court, and cre- ated ver}' considerable doubts. In the case of Dale v. Hall (1 Wils. 281), and the proprietors of the Trent Navigation v. Wood, there were clear facts of negligence. In the first, the rats gnawed a hole in the hoy, which undoubtedly might have been prevented. And in the other, each of the judges, in giving his opinion, said there was negligence. In the year books (22 Ass. 41) there is a case of an action against a waterman for overloading his boat so that the plaintiff's horse was drowned. This case is recognized in Williams v. Lloyd (W. Jones, 180), where it is said '• it was there agreed that if he had not surcharged the boat, although the horse was drowned, no action lies, notwithstand- ing the assumpsit : but if he surcharge the boat, otherwise ; for there is default and negligence in the party." The Court in 22 Ass. 41, said, " it seems that you trespassed when you surcharged the boat, bv which the horse perished." The same case is to be found in 1 Ro. Abr. 10. pi. 18. Bro. Tit. Action sur le Case, 78. And it is also recognized in Williams v. Hide and Ux. Palm. 548. In Winch. 2G. To an action against a carrier, there is a special plea that the inn in which the goods were deposited was burned by fire, and that the plaintiff's goods were at the same time destroyed, without the default or neglect of the defendant or his servants. To this tlie plain- tiff demurred, not generally but specially, '' that the plea amounted to the general issue." 32 FORWARD V. PITTARD. In all actions founded in negligence, the negligence is alleged and tried, as a fact ; as in actions against a farrier, smith, coachman, etc. It is the constant course in such actions to leave the question of neg- ligence to the jury. It appears in Dalston v. Janson (5 Mod. 90) that the defendant formerly used to plead particularly to the neglect. In 43 Edw. 3. 33. Clerk's Assist. 99. Mod. Intr. 95. and Brown. Red. 101, which were actions founded in negligence, the negligence is traversed. Now a traverse can be only of matter of fact. And here negligence is expressly negatived by the case. However, if the Court should be of opinion that the carrier is an- swerable for every loss, unless occasioned bj^ the act of God, or the King's enemies, he then contended that, as the act of God was a good ground of defence, this accident though not within the words, was within the reason, of that ground. It cannot be said that misfortunes occasioned by lightning, rain, wind, etc., are the immediate acts of the Almighty i they are permitted but not directed by him. The reason why these ac- cidents are not held to charge a carrier is that they are not under the control of the contracting party ; and therefore cannot affect the con- tract, inasmuch as he engages only against those events which by possibility he may prevent. Lord Bacon, in his Law Tracts, com- menting on this maxim, Reg. 5. " necessitas inducit privilegium quoad jura privata," says, ' ' the law charges no man with default where the act is compulsory and not voluntary, and where there is not a consent and election ; therefore, if either there be an impossibility for a man to do otherwise, or so great a perturbation of the judgment and reason, as in presumption of law man's nature cannot overcome, such necessity carrieth a privilege in itself." Necessity, he says, is of three sorts ; and under the third he adds, " If a fire be taken in a street, I may justify pulling down the walls or house of another man to save the row from the spreading of the fire." Now in the present case, if any person, in order to stop the progress of the flames, had insisted on pulling down the booth wherein the hops were deposited, and in doing this the hops had been damaged, the carrier would not have been liable to make good such damage ; for it would have been unlawful for him to have pre- vented the puUing down the booth. It is expressly found in the present case that the fire burnt with un- extinguishable violence. The breaking out of the fire was an event which God only could foresee. And the course it would take was as little to be discovered by human penetration. Bond, in reply. There are several strong cases where there could not be any negligence. It- is not sufficient in these cases to negative any negligence ; for every thing is negligence which the law does not excuse (1 Wils. 282). And the question here is, is this a case which tjie law does excuse? In Goffe v. Clinkard (cited in Wils. 282.) there was all possible care on the part of the defendants. The judgment in the case of (4 Burr. 2298) Gibbon v. Peyton and another, which was an action against a stage-coachman for not delivering money sent, is ex- tremely strong ; there Lord Mansfield said (4 Burr. 2300), " a common FORWARD V. PITTARD. 33 carrier, in respect of the premium lie is to receive, runs tlie risk of tliem, and must make good the loss, though it happen without any fault in him ; the reward making him answerable for their safe deliver}-.'" That a carrier was liable in the case of a robbery was first hold in 9 Ed. 4. pi. 40. A bailee onl}- engages to take care of his goods as his own, and is not answerable for a robbery; but a carrier insures. 1 Ventr. 190, 238. Sir T. Raym. 220. S. C. 1 Mod. 85. In Barclay and Heygena (E. 24 G. 3. B. R.), which was an action against a master of a ship to recover the value of some goods put on board his ship in order to be carried to St. Sebastian ; it was proved that an irresistible force broke into the ship in the river Thames, and stole the goods ; yet the defendant was held answerable. In Sutton and Mitchel (at the sittings at Guildhall after Tr. 25 G. 3. Vide 1 T. R. 18), the question was not disputed as far as to the value of the ship and freight. There is no distinction between that case and a land carrier. And there can be no hardship in the Court's determining in favour of the plaintiff ; for when the law is once known and established, tlie parties ma}' contract according to the terms which it prescribes. As to negligence being a matter of fact ; that is answered by the de- cision in the Compan}' of the Trent Navigation against Wood. Lord Mansfield. There is a nicety of distinction between the act of God and inevitable necessit}'. In these cases actual negligence is not necessaiT to support the action. Cur. adv. vult. Afterwards Lord Mansfield delivered the unanimous opinion of the Court. After stating the case — The question is, whether the connnon cai'- rier is liable in this case of fire? It appears from all the cases for one hundred 3'ears back, that there are events for which the carrier is liable independent of his contract. By the nature of his contract, he is liable for all due care and diligence ; and for any neg- ligence he is suable on his contract. But there is a further degree of responsibility by the custom of the realm, that is, by the common law ; a carrier is in the nature of an insurer. It is laid down that he is liable for ever}' accident, except by the act of God, or the King's enemies- Now wliat is the act of God? I consider it to mean something in op- position to the act of man : for every thing is the act of God that hap- pens by his permission ; every thing, by his knowledge. But to prevent litigation, collusion, and the necessity of going into circumstances im- possil)le to be unravelled, the law presumes against the carrier, unless he shows it was done by the King's enemies, or by such act as could not happen by the intervention of man, as storms, lightning, and tempests. If an armed force come to rob the carrier of the goods, he is liable : and a reason is given in the books, wiiicli is a bad one, viz. that he ought to have a sufficient force to repel it : but that would be impossible in some cases, as for instance in the riots in the year 1780. The true 3 34 FORWA.RD V. PITTARD. reason is, for fear it maj- give room for collusion, that the master maj conti'ive to be robbed on purpose, and share the spoil. In this case, it does not appear but that the fire arose from the act of some man or other. It certainly did arise from some act of man ; for it is expressl}' stated not to have happened b}- lightning. The carrier therefore in this case is liable, inasmuch as he is liable for inevitable accident. Judgment for the plaintiff . I / SHIELLS V. BLACKBUKNE. OO CHAPTEE I. BAILMENT AND UNDERTAKING. SHIELLS r. BLACKBURNE. Court of Common Pleas, 1789. [1 H. Bl. 159.] The material facts of this case were as follows : The defendant, who was a general merchant in London, having received orders from his correspondent in Madeira, to send thither a quantity of leather cut out for shoes and boots, employed Goodwin the bankrupt, who was a shoemaker, to execute the order. Goodwin accordingly prepared the leather for the defendant, packed it in a case for exportation, and at the same time prepared another parcel of the same kind of leather on his own account, which he packed in a separate case, to be sent to Madeira on a venture, requesting the recommendation of the defend- ant to his correspondents in the sale of it. The two cases were sent to the defendant's house, with bills of parcels ; and he, in order to save the expense and trouble of a separate entr\' at the custom- house, voluntaril}- and without any compensation, by agreement with Goodwin, made one entrj' of both the cases, but did it under the de- nomination of wrought leather, instead of dressed leather, which it ought to have been. In consequence of this mistake in the entry, the two cases were seized, and this action was brought by the assignees of Goodwin, to recover the value of the leather which he had prepared to export on his own account. The declaration stated, that the bank- rupt before his bankruptcy was possessed of a quantity of leather, which he designed to export to the island of Madeira, for which pur- pose it was necessary that a [)roper entry of it should be made at the custom-house; that the defendant, in consideration that the bankrupt would permit him to enter the said leather at the custom-house, under- took to enter it under a right denomination ; that the bankrupt con- fiding in the undertaking of the defendant, did permit him to enter it at the custom-house for exportation : that the defendant did not enter it under a right denomination, but on the contrary, made an entry of it under a wrong denomination, of wrought leather, in order impro[)erly to obtain a bounty (by Stat. 12 Anne, Stat. 2, c. 9, s. 64, a drawback is allowed of three halfpence on every pound weight of leather ex- ported, which shall be manufactured, and actually made into goods '66 SHIELLS V. BLACKBURNE. and wares. Made perpetual b}- 3 Geo. I. c. 7) thereon ; b}' means of which wrons: entry the leather became liable to be seized, and was seized and forfeited to the king. 2d. Count goods sold and delivered. 3d. QiKtntwn meruit. Plea, general issue, verdict for the plaintift'. A rule was obtained to show cause why the verdict should not be set aside, and a new trial granted, on the grounds that the defendant not professing the business of entering goods at the custom-house, having undertaken to enter those in question without reward, and having the same care of them as of his own, was not liable for the loss. Heath, J. The defendant in this case was not guilty either of gross negligence or fraud; he acted bona fide. If a man applies to a sur- geon to attend him in a disorder, for a reward, and the surgeon treats him improperly, there is gross negligence, and the surgeon is liable to an action ; the surgeon would also be liable for such negligence, if he undertook gr.atis to attend a sick person, because his situation implies skill in surgery ; but if the patient applies to a man of a different em- ployment or occupation, for his gratuitous assistance, who either does not exert all his skill, or administers improper remedies to the best of his ability, such person is not liable. It would be attended with in- jurious consequences, if a gratuitous undertaking of this sort should subject the person who made it, and who acted to the best of his knowledge, to an action. Wilson, J. Where money has been paid for the performance of certain acts, the person receiving it, is by law answerable for any de- degree of neglect on his part ; the payment of money being a sort of insurance for the due performing of what he has undertaken; and this rule has few exceptions. But where the undertaking is gratuitous, and the party has acted bona fide., it is not consistent either with the spirit or policy of the law, to make him liable to an action. Here Goodwin wanted to dispose of his goods, which the defendant entered together with his own, without any reward. Could he be understood to be an- swerable for more care than he took of his own goods? There was no suspicion of any fraudulent design. A wrong entry at the custom- house cmnot be considered as gross negligence, when, from the variety of laws relating to the customs, reliance must be placed on the clerks in the offices. It happened, indeed, not long since, that a man, de- signing to export wool under the late act 28 Geo. III. c. 38, applied to a clerk in the custom-house to make a proper entry of it, who, not un- derstanding the act of parliament, entered it wrong, and the goods were seized : when, therefore, such cases happen, it is too much to in- fer gross neglio;ence from the mistake which the defendant committed. Lord Loughborough. I agree with Sir William Jones, that where a bailee undertakes to perform a gratuitous act, from which the bailor alone is to receive benefit, there the bailee is onl}- liable for gross neg- ligence ; but if a man gratuitously undertakes to do a thing to the best of his skill, where his situation or profession is such as to imply skill, an omission of that skill is imputable to him as gross negligence. If in WILSON V. BRETT. 37 this case a ship-broker, or a clerk in the custom-house, had undertaken to enter the goods, a wrong entry would in them be gross negligence, because their situation and employment necessarily imply a competent degree of knowledge in making such entries ; but when an application, under the circumstances of this case, is made to a general merchant to make an entry at the custom-house, such a mistake as this is not to be imputed to him as gross negligence. Rule absolute for a new trial. WILSON V. BRETT. Court of Exchequer, 1843. [11 J/, cj- W. 113.] Case. The declaration stated, that the plaintiff, at the request of the defendant, caused to be delivered to the defendant a certain horse of the plaintiff of great value, to wit, &c., to be by the defendant shown to a certain person to the plaintiff unknown, and to be re-delivered by the defendant to the plaintiff on request, and that thereupon it then be- came and was the duty of the defendant to take due and proper care of the said horse, and to use and ride the same in a careful, moderate, and reasonable manner, and in places fit and proper for that purpose ; yet the defendant, not regarding his duty, &c., did not nor would take due and proper care of the said horse, but on the contrary used and rode the same in a careless, immoderate, and improper manner, and in unfit and improper places, &c., whereby the said horse was injured, «fec. Flea, not guilty. At the trial before Rolfe, B., at the London Sittings in this term, it appeared that the plaintiff had intrusted the horse in question to the defendant, requesting him to ride it to Peckham, for the purpose of showino- it for sale to a Mr. Margetson. The defendant accordingly rode tlie horse to Peckham, and for the purpose of showing it, took it into the East Surrey Race Ground, where Mr. Margetson was engaged with others playing the game of cricket ; and there, in consequence of the slippery nature of the ground, the horse slipped and fell several times, and in falling broke one of his knees. It was proved that the defendant was a person conversant with and skilled in horses. The learned Judge, in summing up, left it to the jury to say whether the nature of the ground was such as to render it a matter of culpable neg- ligence in the defendant to ride the horse there ; and told tliem, that under the circumstances, the defendant, being shown to be a person skilled in the management of horses, was bound to take as much care of the horse as if he liad borrowed it ; and that, if they thouglit the de- fendant had been negligent in going upon the ground where the injury was done, or had ridden the horse carelessly there, they on.sjjlit to find for the plaintiff. The jury found for the plaintiff, damages .£5. 10s. inso^o 38 WILSON V. BRETT. £yles, Serjt., now moved for a new trial, on the ground of misdirec- tion. There was no evidence here that the horse was ridden in an unreasonable or improper manner, except as to the place where he was ridden. The defendant was admitted to be a mere gratuitous bailee ; and there being no evidence of gross or culpable negligence, the learned Judge misdirected the jury, in stating to them that there was no differ- ence between his responsibilit}' and that of a borrower. There are three classes of bailments : the first, where the bailment is altogether for the benefit of the bailor, as where goods are delivered for deposit or car- riage ; the second, where it is altogether for the benefit of the bailee, as in the case of a borrower ; and the third, where it is parti}' for the benefit of each, as in the case of a hiring or pledging. This defendant ■was not within the rule of law applicable to the second of these classes. The law presumes that a person who hires or borrows a chattel is pos- sessed of competent skill in the management of it, and holds him liable accordingl}'. The learned Judge should therefore have explained to the jury, that that which would amount to proof of negligence in a bor- rower, would not be sufficient to charge the defendant, and that he could be liable onl}- for gross or culpable negligence. Lord Abinger, C. B. We must take the summing up altogether ; and all that it amounts to is, that the defendant was bound to use such skill in the management of the horse as he really possessed. Whether he did so or not was, as it appears to me, the proper question for the jury. I think, therefore, that the direction was perfectly right, and that no rule ought to be granted. Parke, B. I think the case was left quite correctly to the jury. The defendant was shown to be a person conversant with horses, and was therefore bound to use such care and skill as a person conversant with horses might reasonably be expected to use : if he did not, he was guilty of negligence. The whole effect of what was said by the learned Judge as to the distinction between this case and that of a borrower, was this : that this particular defendant, being in fact a person of com- petent skill, was in effect in the same situation as that of a borrower, who in point of law represents to the lender that he is a person of com- petent skill. In the case of a gratuitous bailee, where his profession or situation is such as to imply the possession of competent skill, he is equally liable for the neglect to use it. Alderson, B. The learned Judge thought, and correctly, that, this defendant being shown to be a person of competent skill, there was no difference between his case and that of a borrower ; because the only dif- ference is, that there the party bargains for the use of competent skill, which here becomes immaterial, since it appears that the defendant has it. EoLFE, B. The distinction I intended to make was, that a gratuitous bailee is onlj' bound to exercise such skill as he possesses, whereas a hirer or borrower may reasonably be taken to represent to the party who lets, or from whom he borrows, that he is a person of competent skill. GILL V. MIDDLETON. . 39 If a person more skilled knows that to be dangerous which another not so skilled as he does not, surely that makes a difference in tlie liability. I said I could see no difference between negligence and gross negligence — that it was the same thing, with the addition of a vituperative epi- thet ; and I intended to leave it to the jury to say whether the defend- ant, being, as appeared by the evidence, a person accustomed to the management of horses, was guilty of culpable negligence. Mule refused. GILL V. MIDDLETON. Supreme Judicial Court of Massachusetts, 1870. [105 Mass. 477.] Ames, J. In ♦^he ordinary contract between landlord and tenant, there is no implied warranty on the part of the former that the demised prem- ises are in tenantable condition. He is under no obligation to make repairs, unless such a stipulation makes a part of the original contract ; and any pi'omise to do so, founded merely on the relation of the parties, and not one of the conditions of the lease, would be without considera- tion, and for that reason would create no liability. But although a gra- tuitous executory contract of that kind would not be binding upon him, he would place himself in a very different position if he should see fit to treat it as binding, and actually enter upon its fulfilment. He is at liberty to repudiate or to perform it, at his option ; but if his choice should be to perform it, he comes under some degree of liability as to the manner of its performance. It is well settled, that, for an injury occasioned by want of due care and skill in doing what one has prom- ised to do, an action maj' be maintained against him in favor of the party relying on such promise and injured b}* the breach of it, although there was no consideration for the promise. Benden r. Manning, 2 N. H. 289; Thorne v. Deas, 4 Johns. 84; Elsee v. Gatward, 5 T. R. 143; Shiells V. Blackburne, 1 H. Bl. 158 ; Balfe v. West, 22 Eng. Law & Eq. 506. In this case, the landlord was told that the building was in an unsafe condition ; and what he undertook to do, at the request of his tenant, was to make it safe. He not onl}' assumed to do the work, but he notified the tenant when it was done, and invited him to make use of the building, assuring him that it was perfectl}' safe. Under these cir- cumstances, it was correctly ruled by the presiding judge, that if on trial it proved to be unsafe, by reason of the want of ordinary care and skill on the part of the defendant in the workmanship or in the selection of the materials used, he might be held responsible in damages. It is argued, that upon a gratuitous undertaking of this nature the defendant could onl}- be held responsible for bad faith or for gross neg- ligence, and that it was therefore an error to instruct the jury that he was liable for want of ordinary care and skill. But in assuming to 40 . PIERCE V. SCHENCK. make the repairs at the request of the tenant he must be considered as professing to have the requisite skill as a mechanic, and as under- taking to select and furnish the kind and quality of materials appropri- ate to the accomplishment of the desired object. It appears to us that this is one of the cases in which there is no practical ditference between gross negligence and the want of ordinary care and skill ; and that the omission of what Baron Rolfe calls a mere vituperative epithet is not a valid objection to the judge's charge. The true question for the jury was, whether the defendant had discharged the duty which he had as- sumed, with that due regard to the rights of the other party which might reasonably have been expected of him under all the circumstances. His undertaking required at least the skill of an ordinary mechanic, and his failure to furnish it, either because he did not possess or neglected to use it, would be gross negligence. Steamboat New World v. King, 16 How. 469. The law furnishes no definition of gross negligence as distinguished from want of reasonable and ordinary care, which can be of any practical utility. The question of reasonable care must always depend on the special circumstances of each case, and is almost of necessit}' a question of fact rather than of law. The degrees of negli- gence, so often spoken of in the text-books, do not admit of such pre- cision and exactness of definition as to be of any practical advantage in the administration of justice, without a detail of the facts which they are intended to designate. Steamboat New World v. King, 16 How. 469; Chandler /'. Worcester Insurance Co., 3 Cush. 228; Wilson v. Brett, 11 M. & W. 113 ; Grill v. General Iron Screw Collier Co., Law Rep. 1 C. P. 600. The jury under proper instructions have found the defendant guilty of culpable negligence, and accordingly the Exceptions are overruled. PIERCE V. SCHENCK. Supreme Court of New York, 1842. [3 Bill, 28.] CowEN, J. This was an action of trover for logs furnished by the plaintiff to the defendant, and delivered at or near his mill, to be, by a time fixed, manufactured into boards on shares, each to have one half. The defendant manufactured some of the more indifferent logs only ; and converted the whole to his own use. I speak of what the jury must be taken to have found under the form in which the questions of fact were submitted to them by the judge. As to damages, he charged that, if the defendant had failed to fulfil the contract on his part, he was liable for the whole, without any deduction on account of the half of what he had actually sawed. The questions are, first, whether trover was properly brought; and secondly, whether, if it were, the direction was right in respect to the amount of daniages. PIEKCE V. SCHEXCK. 41 Had the contract b}- the parties been one of sale, as, if the defendant had taken the logs, under a promise to return boards generally, of equal value to one half of the boards to be made out of them, the de- cision of the judge would have been erroneous. Smith v. Clark, 21 Wend. 83-85, and the cases there cited. But this was not tlie case. The plaintiff delivered his logs to the defendant, wlio was a miller, to be manufactured into boards — a specific purpose, from which he had no right to depart. On completing the manufacture he was to return the specific boards, deducting one half as a compensation for his labor. It is like the case of sending grain to a mill for the purpose of being ground, allowing the miller to take such a share of it for toll. This is not a contract of sale, but of bailment — locatio operis faciendi. The bailor retains his general property in tlie whole till the manufacture is com- pleted ; and in the whole afterwards, minus the toll. The share to be allowed is but a compensation for tlie labor of the manufacturer, whether it be one tenth or one half. Thus, in Collins v. Forbes, 3 T. R. 316, it appeared that Forbes furnished certain timber to one Kent, which the latter was to work up into a stage for the commissioners of the victualling office, he to receive one fourth of the clear profit and a guinea per week, on the work being done. This was holden to be a bailment by Forbes. So, in Barker v. Roberts, 8 Greenl. 101, A agreed to take B's logs, saw them into boards and return them to B, who was to sell them and allow to A all the}' brought beyond so much. This was held to be a bailment, and not a sale, though it was expressly agreed that the logs should remain all the while at A's risk. A having sold the logs instead of sawing them, B was allowed to recover their value against A's vendee. What difference is there in principle be- tween an agreement by the owner to pay a share of the avails in money, and in a part of the specific thing? Either is but a compensation for his labor. Nearly all the books concede tlie distinction laid down in Jones on Bailm. 102, between an obligation to restore the specific thing, and a power or necessity of returning others equal in value. In the first case, it is a regular bailment. In the second, it becomes a debt. Story on Bailm. § 439 ; Buffum v. Merry, 3 Mason, 478 ; Holhrook v. Armstrong, 3 Fairf. 31-34; Dearborn r. Turner, 4 Sliepl. 17; Ewing V. French, 1 Blackf. 353, 355, and note (2) ; Ilurd v. West, 7 Cowen, 752-756, and note (a) ; Smith v. Clark, 21 Wend. 84, 85. I iiave been unable to see any difference in the nature of the contract, wliether there be an obligation to restore the whole, or only a part of the specific thing. The owner of goods may reserve the general ownersliip in the whole or in any part, as he pleases; and he can with no more propriety be said, ^;ro tanto at least, to have parted with it in the latter case, than in the former. Was it correct to tell the jury that, unless the defendant had per- formed his contract, no right vest(!d in him to take any part of the boards, even a sliare of those vvhicli he had actually sawed? I think it was. I am of opinion that when a manufacturer receives goods for the 42 ATLANTIC COAST LINE KAILROAD CO. V. BAKER. purpose of being wrought in the course of his trade, the contract is entire ; and without a stipulation to the contrar}^, he has no right to demand payment until the work is complete. A fortiori he has no right to carve out payment for himself, without consulting the bailor. A miller is entitled to take toll from your grist, on grinding it; but he chooses to grind only a part, and then sell the whole. He is not en- titled to his toll for what he actualh' ground. It is like the common case of a man undertaking to labor during a certain time, or in finish- ing a certain amount of work, for so much. Till the labor be per- formed, he can claim nothing. It may be conceded that, had the logs in question been sawed as agreed, a tenancy in common would have arisen, and the plaintiff's damages been thus limited to the value of one half the boards. Not having been so sawed, no right vested in the defendant ; at least, none which could work a change in the relation between the parties of bailor and bailee. As I understand the judge, he directed the jury to allow damages upon this principle, should they think the case came within it. And I see nothing upon which I feel authorized to say that the verdict is not according to the weight of evidence. Nelson, C. J., and Bronson, J., said, the question whether the plaintiff could recover as damages the value of all the boards which were made from the logs sawed, seemed not to have been distinctly made on the trial. They agreed, that the plaintiff was entitled to recover the value of all the logs. Netv trial detiied. ATLANTIC COAST LINE EAILROAD CO. v. BAKER. Supreme Court of Georgia, 1903. [118 Ga. 809.] Baker sued the railroad company, in a justice's court, for damages on account of the burning of certain cross-ties, alleged to be "the property of complainant." From the plaintiff's evidence at the trial it ap- peared that he had cut the ties under a verbal contract with Jones, on land of the Wilkins estate and from timber grown thereon, which Jones had leased for the purpose of cutting ties ; that under the con- tract with the plaintiff, Jones was to pa}' him twelve cents " for each tie he got out, after the ties had been inspected and delivered to " Jones; and that the ties which were burned had not been inspected and delivered, and, at the time of the burning, were on the leased premises. At the conclusion of the testimony introduced b}- the plain- tiff, " counsel for the defendant moved to dismiss tlie suit . . . and to enter up judgment for the defendant, on the ground that the plaintiff had failed to prove that the cross-ties . . . were the property of the plaintiff, or to prove that he had such an interest in them as would en- title him to sue for their value." The motion was overruled, and, no ATLANTIC COAST LINE RAILROAD CO. V. BAKER. 43 evidence being introduced for the defendant, the court rendered judg- ment for the plaintiff for the amount sued for. This judgment and the overruling of the motion to dismiss were complained of in the defend- ant's petition for certiorari. The certiorari was overruled, and the defendant excepted. Lamar, J. "A bailment is a deliver}' of goods or property for the execution of a special object, beneficial either to the bailor or bailee, or both ; and upon a contract, express or implied, to carr}' out this object and dispose of the property- in conformit}- with the purpose of the trust." Civil Code, § 2894. But delivery under which the bailee ac- quires an independent and temporarily exclusive possession is essential to the contract of bailment. When, therefore, the owner of timber contracted with another that the latter should convert the trees into ties, and agreed to pay therefor at a certain rate for each tie when in- spected and delivered, the arrangement was not one of bailment. It gave the workman no special property in the ties. There was no ex- clusive possession in the bailee. The title and possession of the stand- ing timber were in Jones ; when a tree was cut and fell to the ground, and when the ties were hewn and piled on his land, the legal possession of Jones continued. The contract was one of employment, under which Baker was to do the work and receive compensation when the cross-ties were inspected. It is true the witness stated that payment was to be made when they were inspected and delivered, but in legal effect they needed no dehvery, already being, in contemplation of the law, in the possession of the owner. It is like the case where one is employed to split rails, or to cut and cord wood on the premises of the owner. The workman ma}' have physical custody and by his labor may have given added value to the material ; but the legal possession is in the owner of the land, and the laborer has no special property therein as bailee. He may acquire a lien under the Civil Code, §§ 2792, 2793, but has none under those sections relating to bailments. Fitzgerald v. Elliott, 126 Pa. St. 118, 42 Am. St. R. 812, is directly in point. It is not like the case where wheat is left with a miller to be ground into flour, or where logs are turned over to the owner of a sawmill to be converted into boards. In these cases there is an actual change of legal as well as physical possession, by virtue of which the bailee is entitled to maintain an action of trover or trespass against one who interferes with his pos- session, or who negligently destroys the property while in his custody. The title and possession of the ties being in Jones, the right of action for their destruction was in him, and the plaintiff must look to his em- ployer for compensation for the work done, or for the value of his services. Compare Civil Code, § 2919; Wall v. State, 75 Ga. 474; Thornton v. McDonald, 108 Ga. 3; Jordan v. Jones, 110 Ga. 47. This conclusion necessitating a reversal, it is unnecessary to consider whether under the facts the defendant was shown to have been liable for the results of the fire. Judgment reversed. All the justices concur 44 TULANE HOTEL CO. V. HOLOHAN. TULANE HOTEL CO. v. HOLOHAN. Supreme Court of Tennessee, 1903. [112 Te7i7i. 214.] Wilkes, J. The facts in this case are undisputed, and are, in sub- stance, as follows : Mr. Holohan, a travelling salesman, came to Nashville on the morn- ing of September 1, 1901. He brought with him two grips or suit cases. Tliese grips were turned over at the depot to the porter of the Tulane Hotel, as Mr. Holohan intended to stop at that hotel. How- ever, he did not stop at the Tulane Hotel, but, after breakfasting at the Terminal Station Hotel, he met a friend of his, and went home with Mm, and did not stop or sta}- at the Tulane as its guest while on this trip. Mr. Holohan, however, went to the Tulane on the afternoon of his arrival to secure his grips, but only one of them could be found. Sev- eral demands were made on the hotel for the missing grip, but it was not produced, and upon the refusal of the hotel company to pay for it this suit was brought. Mr. Holohan did not register at the hotel on either September 1 or 2, 1901, did not procure any accommodations there on either of those dates, and was not a guest of the Tulane Hotel while on this visit to the city. The case was tried without a jur}-, and resulted in judgment for plaintiff for $79.25 and costs, and the hotel companj- has appealed and assigned errors. It is assigned as error that there is no evidence to support the finding of the circuit judge, for two reasons : First. There is no evidence to show that Mr. Holohan was a guest of the hotel, and, unless he is shown to have been a guest, the hotel is not liable, as an iimkeeper, for the care of his baggage. Second. There is no evidence to show that the baggage was lost by the negligence of the hotel company, and, unless gross negligence can be imputed to it, it is not liable as a gratuitous bailee. In the first place, was Mr. Holohan a guest of the hotel? We think not. The universal rule seems to be that one cannot be- come the guest of a hotel unless he procure some accommodation. He must procure a meal, room, drink, feed for his horse, or at least offer to buy something of the innkeeper, before he becomes a guest. In the case at bar Mr. Holohan procured no accommodation from the hotel, nor did he offer to buy anything. In the case of Whitemore v. Haroldson, 2 Lea, 312, it was held: " If one not a guest sends goods to an innkeeper without compensation to be made, he would not be subject to the liabilit}' of an innkeeper if the goods were lost, but onl}- to such liability as attached to a gratui- tous bailee; that is, for loss or damage occasioned by gross negligence. LEAVY V. KINSELLA. 45 ''The first requisite of the extraordinary liabilit}' now under consid- eration is that the relation of innkeeper and guest should have existed between the parties at the time the loss or injury occurred ; and such liability cannot be imposed in an}' case where the relation never in fact existed. Under such circumstances, if the innkeeper is a gratuitous bailee, he is only liable in case loss occurs in consequence of gross negligence on his part." 16 Am. and Eng. Enc. Law, 530. See, also, 2 Parsons on Contracts, p. 165 ; Schonler on Bailments, sec. 280 ; lledfield on Carriers and Bailments, sec. 592. Defendant company cannot, therefore, be held liable as an inn- keeper. It is said that it can be and should be held liable as a mere bailee. We do not think that the hotel company, under the facts in this case, ever had the custody or the possession of this baggage. It is true that it was delivered into the care and custody of the hotel porter at the station ; but the porter had no authority to receive it, or charge the hotel company for its safe-keeping, unless the owner was a guest, or subsequently became one. The porter himself individually was the gratuitous bailee. If he deposited the grip in the hotel office — as it appears he did — still it was not placed in the possession or custody of the clerk or baggage keeper or an}- other eniplo}ee of the hotel com- pany, nor was their attention ever called to the same. So far as the hotel is concerned, it is the same as if the porter had gratuitously brought up the valise of a friend or a stranger and put it down in the hotel office, without calling any attention to it, or giving the hotel em- ployees any notice of it, and no occasion existing for them to take charge of it. If there is bailment in this case, the train porter is the bailee, and not the hotel company, who never, by any authorized agent, had any care or custody of the baggage, or any notice of it. The judgment is reversed, and the suit dismissed, at the cost of appellee. LEAVY V. KINSELLA. Supreme Court op Errors, Connecticut, 1872. [39 Conn. 50.] Trover for two pigs ; appealed from the judgment of a justice of the peace to the Court of Common Pleas, and tried on the general issue, with notice, closed to the jury, before Brevster^ ,]. The plaintiff bought of the defendant on Tuesday, July 11th, 1S71, the two pigs in question, and agreed to pay him therefor $11 on delivery, and afterward, on the same day, the pluintiir and his wife selected and took away the two pigs, but not having the money then. 46 LEAVY V. KINSELLA. the plaintiff promised to pay for tliem that week, but did not then paj' for them, nor has payment for them since been made to the defendant. On the next day the plaintiff, learning that he could buy pigs cheaper, so informed the defendant's wife, and that he should bring the two pigs back, and would not keep them any way, when she replied that he had bought them and must pay for them. Thereafter, on the same da}-, the plaintiff returned the pigs to the defendant's pen in his absence, and as soon as the defendant learned of this return he gave notice to the plaintiff that he must take them away, which the plaintiff refused to do or to pay for them. Thereupon the defendant sued the plaintiff in assumpsit on the common counts for goods sold and de- livered, and on the 15th of August, 1871, recovered judgment against him for the price of the pigs and costs, which judgment has never been paid. On the 18th of August, 1871, the plaintiff, on learning of such decision and judgment, make a demand on the defendant's wife and on the defendant for the pigs, and both refused to give them up ; the defendant claiming he had a right to their possession until the plaintiff had paid for them and their keeping, and thereupon this action of trover was brought.^ Seymour, J. . . . The parties differing as to the ownership of the pigs, the plaintiff insists that, pending the dispute, the defendant shall keep them, and he places the property in such condition that the de- fendant must keep them and feed them, or allow them to suffer. The plaintiff supposed he had a right to return the property, but it turns out he had no such right. The defendant was placed by the plaintiff's act in such a condition that he was compelled to care for and feed the plaintiff's animals. The defendant is made a bailee, with the duty of incurring expense, not by his own choice, but by compulsion. Upon these circumstances the plaintiff was liable upon an implied assumpsit to pay the expense of keeping. The keeping is by the plaintiff's request, clearly implied, if not express. Now in general all bailees for hire have a lien on the thing bailed for the amount of their compensation, and common carriers and innkeepers have peculiar claims to their liens, because they cannot refuse to incur the expense cast upon them by their customers. And here the defend- ant ma}' ground his right to a lien upon similar principles of justice and equity. The defendant cannot be regarded as a volunteer. All the circumstances show that he could not do otherwise than he did. It would have been of no use for him to attempt to return the pigs to the plaintiff, and he was under no obligation to incur the expense and hazard of such an attempt. It was urged by the plaintiff that the finder of goods has at common law no lien for expenses incurred by him upon the goods found, however needful and however beneficial to the owner, but that case is put by Chief Justice Eyre, in Nicholson v. Chapman^ 2 H. Black. 254, upon the ground "that the finder volun- tarily puts himself to the trouble and expense to preserve the thing ^ Part of the statement of facts aud of the opinion are omitted. — Ed. KRUMSKY V. LOESER. 47 found, &c." The distinction between the ease before us and that of a mere finder is obvious, and the denial of a lien to the finder rests upon reasoning which supports and confirms the lien of the defendant. We therefore advise a new trial. KRUMSKY V. LOESER. Supreme Court of New York, 1902. [37 Miscellaneous Rep. 504.] Greenbaum. J. Defendants appeal from a judgment rendered against them in the Municipal Court, fifth district. The facts upon which the controversy between the parties hinges are practically undisputed. The plaintiff is a manufacturer of ladies' wrappers. The defendants are the proprietors of a large department store in Brooklyn. The parties had never had business relations with each other. On April 19, 1901, two swindlers purporting to represent the defendants ordered a bill of goods of the plaintiff, with directions to deliver them to the defendants' place of business. The plaintiff, after satisfying himself of the financial ability of defendants, as he asserts, sent the goods to the defendants by an expressman. It appears that the defendants' establishment is in the habit of receiving about 350 packages from various houses daily and that the goods were received under the as- sumption that they had been ordered by the defendants. Later in the day the man in charge of the receiving department of the defendants was called up on the telephone by a person who represented himself to be the plaintiff and who stated that the case of wrappers had been delivered to the defendants by mistake and that the goods would be called for. Shortly after this conversation a person called with an order, purporting to be signed by plaintiff, addressed to the defendants, requesting the redelivery of the case to bearer. The order explained that the mistake was occasioned by wrongly addressing the goods to the defendants instead of " E. Losier, Savannah, Ga.," and expressed the hope that the defendants had not been inconvenienced. The goods were thereupon handed over to the bearer of the order. It subsequently transpired that the plaintiff and the defendants were the victim of a swindle and the question is presented as to which of the parties must bear the loss of the goods. The plaintiff attempts to fasten a liability upon the defendants as gratuitous bailees upon the theory of the defendants' negligence in accepting the goods and delivering them up to a stranger. Were de- fendants bailees ? A bailment must be predicated upon some contractual relation, express or implied, upon the delivery of tlie goods, between the bailor and bailee. In tiiis case the goods were liy trick, the result of a fraud practised upon ijlaintiff, tlirust upon the defendants, who thus 48 LINCOLN V. GAY. for a short time were, unconsciously and unknowingly, the custodians of the plaintiff's goods. Where one becomes possessed of another's goods by chance or accident, no bailment obligation will arise unless the possessor is aware and has knowledge of the fact that goods have come into his possession wliich belong to another. In the case at bar, the knowledge that the defendants became possessed of the goods not belonging to them was communicated to them by the swindler to enable him to carry out his scheme of obtaining the property of the plaintiff. If I am apprised by another that a certain article belonging to him was sent to me by mistake, am I not justified in assuming, from the very fact of such party first making me aware of its possession, that he is the true owner and entitled to its return? Am I obligated or beholden to the real owner, if I have been deceived, to account for the value of the article thus secured from me through trick? I think not. If, however, by any process of reasoning the duty of a gratuitous bailee could be fastened upon the defendants, then I am of opinion that, inasmuch as they would only be chargeable in that case with gross ne^litrence (First Nat'l Bank v. Ocean Nat'l Bank, 60 N. Y. 278), & ID V they should not be here held liable. They were certainly no more negligent than was the plaintiff in parting with his goods. The defendants, indeed, acted in the matter as any ordinarily prudent man could have been expected to act under the circumstances. Judgment reversed and a new trial ordered, with costs to appellants to abide the event. Freedman, p. J., and Giegerich, J., concur. LINCOLN V. GAY. Supreme Judicial Court of Massachusetts, 1895. [164 Mass. 537.] Contract to recover for injury to the plaintiff's dress pattern in making the same up on the wrong side of the cloth. The judge in- structed the jury, among other things, as follows : "The claim on the part of the plaintiflT is that there was no express stipulation with reference to which side of this cloth should be made up. It is a question for us, then, what stipulation the law will imply under such circumstances. " Perhaps I can simply illustrate it. If any one of us should take a piece of broadcloth to our tailor and ask him to make it into a coat, and he should undertake to do so and nothing more was said about it, the law would carry with the contract which we made the stipulation that he should make it into a coat, using due and proper care and skill and proper workmanship, and that would involve putting the cloth in right side out." UNITED STATES V. THOMAS. 49 The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.' Morton, J. If the dress was delivered to the defendant by the plaintiff without any instructions, the defendant, being a bailee for hire, was held to that degree of skill and care iu the particular occupation in which she was engaged, which was that of a dressmaker, which would enable her to do the work intrusted to her in a reasonable and proper manner. Jackson v. Adams, 9 Mass. 484. Story, Bailments, § 431, and cases cited. Her understanding that it was a proper way to make the dress up wrong side out would be immaterial, therefore, if in the exercise of a proper degree of skill and care the dress ought not to have been made up in that way. Exceptions overruled. UNITED STATES v. THOMAS. Supreme Court of the United States, 1872, [15 Wallace, 337.] Error to the Circuit Court for the Middle District of Tennessee. The United States sued Thomas and others as the principal and sureties on the official bond of the said Thomas, as surveyor of the customs for the port of Nashville, Tennessee, and depositary of public moneys at that place. The condition of the bond was in the usual form, that he should faithfully execute and discharge the duties of his office, according to law, and should well, truly, and faithfully keep safely, without loaning, using, depositing in banks, or exchanging for other funds than >s allowed by act of Congress, all the public money collected by him or otherwise placed in his possession and custody, till the same should be ordered by the proi)er department, or officer, to be transferred or paid out; and when such orders for transfer or payment were received, should faithfully and promptly make the same as directed, and should perform all other duties as fiscal agent of the government which might be imposed by any act of Congress or regula- tion of the Treasury Department, &c. The breach alleged was, that certain public moneys were collected by Thomas in his official capacity, and were placed in his possession and custody, of which a balance of $4,880 remained in his hands on the 27th of April, 18G1, which he did not keep safely, but which he paid out to persons not entitled thereto, whereby it was wholly lost ; and that although the said sum was ordered by the proper department and officer to be transferred and paid out, he failed and refused to transfer or pay it out, as so required. The defendants, besides performance, pleaded seizure of the moneys in question by the rebel authorities l)y the exercise of force, 1 The statement of facts has been abridged, and only so much of the opinion as discusses this instruction is given. — Ei>. 4 50 UNITED STATES V. THOMAS. which Thomas was unable to resist, and against his will and consent, he being a lo^yal citizen, endeavoring faithfully to perform his duty. Upon the trial, evidence was adduced tending to support this plea, and the court charged the jury that if they believed from the evidence that, at the time the demand was made by the insurgents for the surrender by Thomas of the effects in his hands belonging to the government, there was an organized insurrection in the State of Tennessee, and in the city of Nashville, against the government of the United States, with a force sufficient to compel obedience to the orders and demands of the governor who led and controlled such insurrection, and that in this state of things the demand was made upon Thomas to surrender said effects ; and if they further believed that Thomas was acting in good faith, and surrendered the effects in his hands only Id the honest belief that he would be imprisoned and the effects seized by force, and had good reason to apprehend that and other violence to his person ; and if they believed that the threatened force would be applied to compel the surrender, then the court was of opinion that the seizure and appropri- ation of the government effects in his hands would be by public enemies of the United States, and would relieve him from liability for the same, notwithstanding the condition of his bond ; but if they beUeved that Thomas was one of the insurrectionists, or willingly co-operated with them in their lawless acts against the government, the jury might infer that he was willing that the effects in controversy should fall into the hands of the rebel authorities, and he would not be relieved from the obligations of his bond. To this ruling an exception was taken, and whether the ruling was correct in law was the point now before this court. Bradley, J. This case brings up squarely the question whether the forcible seizure, by the rebel authorities, of public moneys in the hands of loyal government agents, against their will, and without their fault or negligence, is, or is not, a sufficient discharge from the obligations of their official bonds. This precise question has not as yet been decided by this court. As the rebellion has been held to have been a public war, the question may be stated in a more general form, as follows : Is the act of a public enemy in forcibly seizing or destroying property of the governrnent in the hands of a public officer, against his will, and without his fault, a discharge of his obligation to keep such property safely, and of his official bond, given to secure the faithful performance of that duty, and to have the property forthcoming when required ? The question is thus stated in its double aspect, namely : first, in regard to the obligation arising from official duty ; and, secondly, in regard to that arising from the bond, because the condition of the latter is twofold, — that the principal shall faithfully discharge his official duties, and that he shall pay the moneys of the government that may come into his hands as and when it shall be demanded of him. It is contended that the latter branch of the condition has a more stringent UNITED STATES V. THOMAS. 51 effect than the former, and creates an obligation to pay, at all events, all public money received. That overruling force arising from inevitable necessit}', or the act of a public enera}', is a sufficient answer for the loss of public property when the question is considered in reference to an officer's obligation arising merely from his appointment, and aside from such a bond as exists in this case, seems almost self-evident. If it is not, then ever}- militar}' commander who ever lost a battle, or was obliged to surrender his ship or fort, or other public property, added a civil obligation to his militar}' misfortune. And as it regards this question, it is difficult to perceive any distinction between the loss of one kind of property and another. If the property belongs to the government, the loss falls on the government ; if it belongs to individuals, it falls on them. The general rule of official obligation, as imposed by law, is that the officer shall perform the duties of his office honesth', faithfully, and to the best of his abilit}'. This is the substance of all official oaths. In ordinar}' cases, to expect more than this would deter upright and responsible men from taking office. This is substantially the rule by ■which the common law measures the responsibility of those whose official duties require them to have the custody of property, public- or private. If in any case a more stringent obligation is desirable, it must be prescribed b}' statute or exacted by express stipulation. The ordinary rule will be found illustrated by a number of analogous cases. It is laid down by Justice Story that officers of courts having the custody of property of suitors are bailees, and liable only for the exercise of good faith and reasonable diligence, and not responsible for loss occurring without their fault or negligence. Story on Bailments, § G20. Trustees are only bound to exercise the same care and solicitude with regard to the trust propert}' which the}' would exercise with regard to their own. Equit}- will not exact more of them. lb. ; Lewin on Trusts, 332, 3d ed. They are not liable for a loss by theft without their fault. lb. But this exemption ceases when they mix the trust-money with their own, whereby it loses its identity, and they become mere debtors, lb. and 2 Story's Equity Jurisprudence, § 1270, and see §§ 1268, 1269 ; also 2 Spence's Equity Jurisprudence, 917, 921, 933, 937; "Wren y. Kirton, 11 Vesey, 381 ; Utica Insurance Co. v. Lynch, 11 Paige, 520. Receivers, appointed by the court, though held to a stricter account- ability than trustees, on account of their compensation, are neverthe- less not liable for a loss without their fault ; and they are entitled to manage the property and transact the business in their hands in the usual and accustomed way. Knight v. Ld. Plymouth, 3 Atkyns, 480 ; Rowth V. Howell, 3 Vesey, 566 ; Lewin on Trusts, 332, 3d cd. ; Edwards on Receivers, 573-599 ; White v. Baugli, 3 Claik & Finnelly, 44. A marshal appointed by a court of admiralty to take care of a ship, and cargo is responsible only for a prudent and honest execution of his commission. The Rendsberg, 6 Robinson, 142. "■ Every man," says Sir 52 UNITED STATES V. THOMAS. William Scott, " who undertakes a commission incurs all the responsi- bility that belongs to a prudent and honest execution of that commission. Then the question comes, What is a prudent and honest execution of that commission? The fair performance of the duties that belong to it. . . . He must provide a competent number of persons to guard tlie property ; having so done he has discharged his responsibility, unless he can be affected with fraud, or negligence amounting in legal understanding to fraud." 6 Robinson, 154; see also Burke r. Trevitt, 1 Mason, 96, 100. A postmaster is bound to exercise due diligence, and nothing more, in the care of matter deposited in the post-offlee. He is not liable for a loss happening without his fault or negligence. Soon after the organi- zation of the government post it was uittempted to charge the Post- master-General to the same extent as the common carriers who had previously carried the mails ; and the question was elaborately argued in the great case of Lane v. Cotton et uL, 1 Lord Raymond, 646, and Lord Chief Justice Holt strenuously contended for that view ; but it was decided that the postmaster was only liable for his own negligence ; and this case was followed by Lord Mansfield and the whole court, three-quarters of a century later, in the case of Whitfield v. Le Despencer. Cowper, 754; see Story on Bailments, § 463; Dunlop v. Munroe, 7 Cranch, 242. In certain cases, it is true, a more stringent accountability is ex- acted ; as in the case of a sheriff, in reference to prisoners held by him in custody, where the law puts the whole power of the county at his disposal, and makes him liable for an escape in all cases, except where it is caused by an act of God or the public enemy. 33 Hen. VI. p. 1 ; Brooke's Abridgment, tit. Dette, 22 ; Dalton's Sheriff, 485 ; Watson on Sheriffs, 140. The exception which thus qualifies the severest exaction of official responsibility known at the common law is worthy of particular notice. The reason for applying so severe a rule in cases of escape is probably founded in motives of public safety. Chief Jus- tice Gibson, in Wheeler v. Hambright, 9 Sergeant & Rawle, 396, says: "The strictness of the law in this respect arises from public policy." Lord Chief Justice Holt, in his dissenting opinion in Lane v. Cotton, also held that the sheriff was responsible in the same strict manner for goods seized in execution ; but he cited no authority for the opinion, and the general rule of responsibility is certainly much short of that. Tiie basis of the common-law rule is founded on the doctrine of bailment. A public officer having property in his custody in his official capacity is a bailee ; and the rules which grow out of that relation are held to govern the case. But the legislature can undoubtedl}', at its pleasure, change the common-law rule of responsibility. And with re- gard to the public moneys, as they often accumulate in large sums in the hands of collectors, receivers, and depositaries, and as they are susceptible of being embezzled and privately used without detection, and are often difficult of identification, legislation is frequently adopted for the purpose of holding such officers to a very strict accountability. i UNITED STATES V. THOMAS. 53 And in some cases the^^ are spoken of as though they were absolute debtors for, and not simpl}' custodians of, the money In their hands. In New York, in the case of Muzzy i\ Shattuck, 1 Denio, 233, the court, after a careful examination of the statutory provisions respecting the duties and liabilities of a town collector, came to the conclusion (con- trary to its previous decision in The Supervisors v. Dorr, 25 Wendell, 440), that he was liable as a debtor, and not merely as a bailee, for the moneys collected by him, and consequently that he could not excuse himself, in an action on his bond, hy showing that, without his fault, the money had been stolen from his office. Where, however, a statute merely prescribes the duties of the officer, as that he shall safely keep money or property received or collected, and shall pay it over when called upon to do so by the proper authority, it cannot, without more, be regarded as enlarging or in any way atfect- ing the degree of his responsibility. The mere prescription of duties has nothing to do with the question as to what shall constitute the rule of responsibility in the discharge of those duties, or a legal excuse for the non-performance of them, or a discharge from their obligation. The common law, which is common reason, prescribes that; and statutes, in subordination to their terms, are to be construed agreeably to the rules of the common law. Bacon's Abridgment, tit. Statute, 1,4. The acts of Congress with respect to the duties of collectors, re- ceivers, and depositaries of public moneys, it must be conceded, mani- fest great anxiety for the due and faithful discharge by these officers of their responsible duties, and for the safety and payment of the moneys which ma}- come to their hands. They are expressly required to keep safely, without loaning, using, depositing in banks, or exchang- ing for other funds than as specially allowed by law, all the public money collected by them, or in their possession or custody, till ordered by the proper department or officer to be transferred or paid out ; and where such orders for transfer or payment are received faithfully and promptl3'to make the same as directed. 9 Stat, at Large, 61, >; 9. To obviate all excuse for casual losses, it is provided that they shall be allowed, under the direction of the Secretary of the Treasury, all necessar}' additional expenses for clerks, fire-proof chests or vaults, or other necessary expenses of safekeeping, transferring, and disbursing said money's. lb. (32, § 13. And it is expressly made embezzlement and a felony, for an officer charged with the safekeeping, transfer, and disbursement of the public moneys, to convert them to his own use, or to use them in any way whatever, or to loan them, deposit them in bank, or to exchange them for other funds except as ordered by the proper department or officer. lb. 63, >^ 16. P>ery receiver of public money is required to render his accounts quarter-yearly to the proper accounting officers of the treasury, with the vouchers necessary to the prompt settlement thereof, within three months after the expiration of eacli quarter, sul)ject, however, to the control of the proper department. 54 UNITED STATES V. THOMAS, 3 Id. 723, § 2. Besides this, all such officers are required to give bonds with sufficient sureties for the due discharge of all these duties. 1 Id. 705 ; 2 Id. 75 ; 9 Id. 60, 61, &c. And upon making default and being sued, prompt judgment is directed to be given, and no claim for a credit is to be allowed unless it has been first presented to the accounting officers of the treasury for examination and disallowed, or unless it be shown that the vouchers could not be procured for that purpose, hy reason of absence from the country, or some unavoidable accident. 1 Id. 514, §§ 3, 4. These provisions show that it is the manifest polic}' of the law to hold all collectors, receivers, and depositaries of the public money to a very strict accountabilit}'. The legislative anxiety on the subject culminates in requiring them to enter into bond with sufficient sureties for the performance of their duties, and in imposing criminal sanctions for the unauthorized use of the moneys. Whatever duty can be inferred from this course of legislation is justly exacted from the officers. No ordinary excuse can be allowed for the non- production of the money committed to their hands. Still they are nothing but bailees. To call them anything else, when they are expressl}' forbidden to touch or use the public money except as directed, would be an abuse of terms. But the}' are special bailees, subject to special obligations. It is evident that the ordinary law of bailment cannot be invoked to determine the degree of their responsibility. This is placed on a new basis. To the extent of the amount of their official bonds, it is fixed by special con- tract ; and the policy of the law as to their general responsibility for amounts not covered by such bonds may be fairly presumed to be the same. In the leading case of The United States v. Prescott, 3 Howard, 587 (which was an action on a similar bond to that now under con- sideration), the court say : " This is not a case of bailment, and consequently the law of bailment does not apply to it. The liability of the defendant, Prescott, arises out of his official bond, and the principles which are founded on public policy." After reciting the condition of the bond, the court adds, with a greater degree of generality, we think, than the case before it required, '' The obligation to keep safel}' the pubUc mone}- is absolute, without any condition, express or implied ; and nothing but the payment of it, when required, can discharge the bond." This broad language would seem to indicate an opinion that the bond made the receiver and his sureties liable at all events, as now contended for by the government. But that case was one in which the defence set up was that the money was stolen, and a much more limited responsibility^ than that indicated b}' the above language would have sufficed to render that defence nugator}'. And as the mone}' in the hands of a receiver is not his ; as he is onh" custodian of it ; it would seem to be going ver}- far to sa}', tliat his engagement to have it forthcoming was so absolute, as to be qualified by no condition what- ever, not even a condition implied in law. Suppose an earthquake I PRESTON V. PRATHER. 55 should swallow up the building and safe containing the mone}', is there no condition implied in the law by which to exonerate the receiver from responsibility ? ^ Judgment aj}irmed. PRESTON r. PRATHER. Supreme Court of the United States, 1891. [137 U. S. 604.] The plaintiffs below, the defendants in error "here, were citizens of Missouri, and for many j-ears have been copartners, doing business at Maryville, in that State, under the name of the Nodaway Valley Bank of Maryville. The defendants below were citizens of different States, one of them of Michigan and the others of Illinois, and for a similar period have been engaged in business as bankers at Chicago, in the latter State. In 1873 the plaintiffs opened an account with the defend- ants, which continued until the spring of 1883. The average amount of deposits by them with the defendants each 3'ear during this period was between two and four hundred thousand dollars. Interest was allowed at the rate of two and one-half per cent on the deposits above three thousand dollars, but nothing on deposits under that sum. On the 7th of July, 1880, the plaintiffs purchased of the defendants four per cent bonds of the United States to the nominal amount of twelve thousand dollars ; but, the bonds being at a premium in the market, the plaintiffs paid for them, including the accrued interest thei'eon, thirteen thousand and five dollars. The purchase was made upon a request by letter from the plaintiffs ; and all subsequent com- munications between the parties respecting the bonds, and the con- ditions upon which they were to be held, are contained in their correspondence. The letter directing the purchase concluded with a request that the defendants send to the plaintiffs a description and the numbers of the bonds, and hold the same as a special deposit. In the subsequent account of the purchase rendered by the defendants the plaintiffs were informed that the bonds were held on special deposit subject to their order. The numbers of the bonds appear upon the bond register kept b}^ the defendants, and the bonds remained in their custod}' until some time between November, 1881, and November, 1882^ when the}- were stolen and disposed of by their assistant cashier, one Ker, who absconded from tiie State on the IGth of January-, 1883. The present action was brought to recover their value. It appeared that about a year before he absconded, information was given to the bank that some one in its employ was speculating on the Board of Trade in Chicago, and an inquiry revealed the fact that Ker 1 The remainder of the opinion, in which the effect of the hond a.s a special contract wa.s discussed, is omitted. Ou that point sec Smythe v. U. S., 188 U. S. 156. — Kd. 56 PKESTON V. PRATHER. was that person. Although he was supposed to be dependent entirely on his salary, and although he had free access to the vaults where the securities of the bank, including these bonds, were deposited, he was continued in the service of the bank until the theft took place. At the trial a jury was waived by stipulation. The court found spe- cial findings of fact, which were not excepted to, and gave judgment for the plaintiffs. 29 Fed. Rep. 498. The defendants sued out this wi'it of error. Field, J. By the defendants it was contended below in substance, and the contention is renewed here, that the bonds being placed with them on special deposit for safe-keeping, without any reward, promised or implied, they were gratuitous bailees, and wei'e not chargeable for the loss of the bonds, unless the same resulted from their gross negli- gence, and they deny that any such negligence is imputable to them. On the other hand, the plaintiffs contended below, and repeat their contention here, that, assuming that the defendants were in fact simpl}'^ gratuitous bailees when the bonds were deposited with them, they still neglected to keep them with the care which such bailees are bound to give for the protection of property- placed in their custod}- ; and further, that subsequentl3' the character of the bailment was changed to one for the mutual benefit of the parties. Much of the argument of counsel before the court, and in the briefs files by them, was unnecessary — indeed, was not open to consider- ation — from the fact that the case was heard, upon stipulation of par- ties, by the court without the Intervention of a jury, and its special findings cover all the disputed questions of fact. There is in the record no bill of exceptions taken to rulings in the progress of the trial, and the correctness of the findings upon the evidence is not open to our consideration. Rev. Stat. § 700. The question whether the facts found are sufficient to support the judgment is the only one of inquiry here. Undoubtedly, if the bonds were received by the defendants for safe- keeping, without compensation to them in any form, but exclusively for the benefit of the plaintiffs, the only obligation resting upon them was to exercise over the bonds such reasonable care as men of common prudence would usually bestow for the protection of their own property of a similar character. No one taking upon himself a duty for another without consideration is bound, either in law or morals, to do more than a man of that character would do generally for himself under Uke con- ditions. The exercise of reasonable care is in all such cases the dictate of good faith. An utter disregard of the property of the bailor would be an act of bad faith to him. But what will constitute such reasonable care will vary with the nature, value and situation of the property, the general protection afforded by the police of the community against vio- lence and crime, and the bearing of surrounding circumstances upon its securit}'. The care usually and generally deemed necessar}' in the com- munity for the security- of similar property, under like conditions, would PRESTON V. PKATHEK. 57 be required of the bailee in such cases, but nothing more. The general doctrine, as stated by text-writers and in judicial decisions, is that gratuitous bailees of another's property are not responsible for its loss unless guilty of gross negligence in its keeping. But gross negligence in such cases is nothing more than a failure to bestow the care which the property in its situation demands ; the omission of the reasonable care required is the negligence which creates the liability ; and whether this existed is a question of fact for the jury to determine, or by the court where a jury is waived. See Steamboat New World v. King, 16 How. 469, 474, 475 ; Railroad Co. v. Lockwood, 17 Wall. 357, 383 ; Milwaukee & St. Paul Railway v. Arms, 91 U. S. 489, 494. The doc- trine of exemption from liability in such cases was at one time carried so far as to shield the bailees from the fraudulent acts of their own employees and officers, though their employment embraced a supervision of the property, such acts not being deemed within the scope of their employment. Thus, in Foster r. Essex Bank, 17 Mass. 479, the bank was, in such a case, exonerated from liability for the property intrusted to it, which had been fraudulently appropriated by its cashier, the Supreme Judicial Court of Massachusetts holding that he had acted without the scope of his authority, and, therefore, the bank was not liable for his acts any more than it would have been for the acts of a mere stranger. In that case a chest containing a quantity of gold coin, which was specified in an accompanying memorandum, was deposited in the bank for safe- keeping, and the gold was fraudulently taken out by the cashier of the bank and used. It was held, upon the doctrine stated, that the bank was not liable to the depositor for the value of the gold taken. In the subsequent case of Smith v. First National Bank in Westfield, 99 Mass. 605, 611, the same court held that the gross carelessness which would charge a gratuitous bailee for the loss of property must be such as would affect its safe-keeping, or tend to its loss, implying that liability would attach to the bailee in such cases, and to that extent qualifying the previous decision. In Scott V. National Bank of Chester Valley, 72 Penn. St. 471, 480, the Supreme Court of Pennsylvania asserted the same doctrine as that in the Massachusetts case, holding that a bank, as a mere depositary, without special contract or reward, was not liable for the loss of a gov- ernment bond deposited with it for safe-keeping, and afterwards stolen by one of its clerks or tellers. In that case it was stated that the teller was suffered to remain in the employment of the bank after it was known that he had dealt once or twice in stocks, but this fact was not allowed to control the decision, on the ground that it was unknown to the officers of the bank that the teller gambled in stocks until after he had absconded, but at the same time observing that: " No officer in a bank, engaged in stock gamhling, can be safely trusted, and the evidence of this is found in the numerous defaulters, whose peculations have been discovered to be directly traceable to this 58 PRESTON V. PRATHER. species of gambling. A cashier, tieasurer, or other officer having the custody of funds, thinks he sees a desirable speculation, and takes the funds of his institution, hoping to return them instantl}-, but he fails in his venture, or success tempts him on ; and he ventures again to re- trieve his loss, or increase his gain, and again and again he ventures. Thus the first step, often taken without a criminal intent, is the fatal step, which ends in ruin to himself and to those whose confidence he has betra3-ed." As stated above, the reasonable care which persons should take of property intrusted to them for safe-keeping without reward will neces- sarih' varj' with its nature, value and situation, and the bearing of sur- rounding circumstances upon its security. The business of the bailee will necessarily have some effect upon the nature of the care requii'ed of him, as, for example, in the case of bankers and banking institutions, having special arrangements, by vaults and other guards, to protect property in their custod}'. Persons therefore depositing valuable arti- cles with them, expect that such measures will be taken as will ordi- narih' secure the property from burglars outside and from thieves within, and that whenever ground for suspicion arises an examination will be made by them to see that it has not been abstracted or tampered with ; and also that they will employ fit men, both in ability and integrity, for the discharge of their duties, and remove those emplo^'ed whenever found wanting in either of these particulars. An omission of such measures would in most cases be deemed culpable negligence, so gross as to amount to a breach of good faith, and constitute a fraud upon the depositor. It was this view of the duty of the defendants in this case, who were ensaaed in business as bankers, and the evidence of their neglect, upon being notified of the speculations in stocks of their assistant cashier who stole the bonds, to make the necessary examination re- specting the securities deposited with them, or to remove the specu- latincr cashier, which led the court to its conclusion that thev were guilty of gross negligence. It was shown that about a year before the assistant cashier absconded the defendant Kean, who was the chief officer of the banking institution, was informed that there was some one in the bank speculating on the Board of Trade at Chicago. Thereupon Kean made a quiet investigation, and the facts discovered bj' him pointed to Ker, whom he accused of speculating. Ker replied that he had made a few transactions, but was doing nothing then and did not propose to do anything more, and that he was then about a thousand dollars ahead, all told. It was not known that Ker had an}' other property besides his salary-. His position as assistant cashier gave him access to the funds as well as the securities of the bank, and he was afterwards kept in his position without an}- effort being made on the part of the defendants to verify the truth of his statement, or whether he had attempted to appropriate to his own use the property of others. Again, about two months before Ker absconded, one of the defend- PKESTON V. PRATHEK, 59 ants, residing at Detroit, received an anonymous communication, stating that some one connected with the bank in Chicago was speculating on the Board of Trade. He thereupon wrote to the bank, calling attention to the reported speculation of some of its employees, and suggesting inquiry and a careful examination of its securities of all kinds. On receipt of this communication Kean told Ker what he had heard, and asked if he had again been speculating on the Board of Trade. Ker replied that he had made some deals for friends in Canada, but the transactions were ended. The defendants then entered upon an ex- amination of their books and securities, but made no effort to ascertain whether the special deposits had been disturbed Upon this subject the court below, in giving its decision, Prather r. Kean, 29 Fed. Rep. 498, after observing that the defendants knew that Ker had been engaged in business which was hazardous and that his means were scant, and after commenting upon the demoralizing effect of speculating in stocks and grain, as seen in the numerous peculations, embezzlements, forgeries and thefts plainl}' traceable to that cause, and the free access by Ker to valuable securities, which were transferable by delivery, easily ab- stracted and converted, and 3'et his being allowed to retain his position without any effort to see that he had not converted to his own use the property of others, or that his statements were correct, held that it was ofross neglisence in the defendants not to discharge him or place hira in some position of less responsibility. In this conclusion we fully concur. The second position of the plaintiffs is also well taken, that, assum- ino- the defendants were gratuitous bailees at the time the bonds were placed with them, the character of the bailment was subsequently changed to one for the mutual benefit of the parties. It appears from the findings that the plaintiffs, subsequently to their deposit, had re- peatedly asked for a discount of their notes by the defendants, offering the latter the bonds deposited with them as collateral, and that such dis- counts were made. When the notes thus secured were paid, and the defendants called upon the plaintiffs to know what they should do with the bonds, they were informed that they were to hold them for the plaintiffs' use as previously. The plaintiffs had already written to the defendants that they desired to keep the bonds for an emergency, and also that they wished at times to overdraw their account, and that they would consider the bonds as security' for such overdrafts. From these facts the court was of opinion that the bonds were held by the defend- ants as collateral to meet any sums which the plaintiffs might over- draw ; and the accounts show that they did subsequently overdraw in numerous instances. The deposit, by its change from a gratuitous bailment to a security for loans, became a bailment for the mutual benefit of both parties, that is to sa}-, both were interested in the transactions. For the bailor it obtained the loans, and to that extent was to his advantage ; and to the bailee it secured the payment of the loans, and that was to his ad- 60 GRADY V. SCHWEINLER. vantage also. The bailee was therefore required, for the protection of the bonds, to give such care as a prudent owner would extend to his own property of a similar kind, being in that respect under an obliga- tion of a more stringent character than that of a gratuitous bailee, but differing from him in that he thereby became liable for the loss of the property if caused by his neglect, though not amounting to gross negli- gence. Two cases cited by counsel, one from the Court of Appeals of Mary- land and the other from the Court of Appeals of New York, declare and illustrate the relation of parties under conditions similar to those of the parties before us.^ It follows, therefore, that whether we regard the defendants as gratu- itous bailees in the first instance, or as afterwards becoming bailees for the mutual benefit of both parties, they were liable for the loss of the bonds deposited with them. And the measure of the recovery was the value of the bonds at the time they were stolen. Judgment affirmed. GRADY V. SCHWEINLER. Supreme Court of North Dakota, 1907. [113 iY. W.Rep. 1031.] Morgan, C. J. Plaintiff brings an action for damages against the defendant for the value of a stallion delivered by him to the defendant on a contract of bailment. The stallion was delivered to the defendant for serving his mares for the agreed sum of f 5 a foal. The complaint alleges plaintiffs ownership of the stallion, the value thereof, his delivery to the defendant under an express contract that defendant would return him to the plaintiff, and, in case that he should be unable to return him, then defendant would pay plaintiff the value of said stallion, and that plaintiff demanded his return to him or payment of the value thereof, which was refused by the defendant. Judgment is demanded for the sum of $400. The answer admits that said stallion was delivered to th(5 defendant for the purposes alleged in the com- plaint, but denies that he agreed to pay for said stallion in case of his inability to return him upon demand. The answer further alleges that the stallion was sick when delivered to defendant, and that plaintiff knew of such sickness, and, that in consequence of such sickness, the stallion died soon after his delivery to defendant, without any fault or negligence on his part. A jury was impanelled, and, at the close of plaintiff's case, the trial court directed a verdict for the defendant, and 1 The court here examined the cases of Third Nat. Bank v. Boyd, 44 Md. 47, and Cutting V. Marlor, 78 N. Y. 454. — Ed. GRADY V. SCIIWEINLER. 61 judgment was thereafter entered on the verdict, and plaintiff has ap- pealed from said judgment. The only assignments of error relate to the action of the court in directing a verdict for the defendant. These assignments render it necessary to determine plaintiff's rights under the contract as set forth in plaintiff's evidence. The motion for a directed verdict was based upon the alleged grounds that the evidence shows that the stallion died before the contract of hire under which he was turned over to defend- ant had terminated, without any fault or negligence on defendant's part, and that the contract of hire was not binding on defendant for the reason that a return of the stallion became impossible by reason of his death without any fault on defendant's part. The question is squarely presented whether plaintiff can recover under the facts, inde- pendent of any question of negligence or fault on defendant's part. The complaint contains no allegation of fault or negligence as a basis for recovery, but is framed upon the theory of liability on a contract of hiring, and in addition, of insurance, if the horse was not returned. Plaintiff's evidence was as follows, which must be assumed to be true for the purposes of this appeal : Plaintiff testified : " He said : ' I will take the horse and return him in as good or better shape than I get him, and, if I don't, I will pay for him. I am good for him.' I agreed to let him have the horse to breed his mares at $5 a colt, pro- vided he returned the horse as he got him, and, if he did n't, he should pay for him. Mr. Schweinler said he would take him on those terms, and, if he did n't return him as good as he got him, he would pa\- for him." A witness for plaintiff testified: "Mr. Schweinler said he would fetch the horse back in as good condition as he took him, or, if anything happened, he would pay for him." The appellant's conten- tion is that the relative rights of the plaintiff and defendant, as bailor and bailee, must be determined from the contract of bailment, and not by the general rules of liability under the law of bailments. We have no doubt of the correctness of this contention. Parties are permitted to make their own contracts in reference to their mutual rights and liabilities under bailments of |)roperty as well as in reference to other subjects, but, of course, are not permitted to contract in contravention of positive law or public policy, and perhaps may not in all cases relieve themselves from the results of their own negligence. In this case the language was positive and unequivocal that the bailee was to pay for the horse if he was unable to return him for an}' reason. If anything happened to the horse, making a return impossible, payment was to be made. This langaage permits of no exceptions, but iniplies an unconditional liability if the horse could not be returned. It does not permit of the meaning that the horse was to be paid for onlv in case of its loss through the bailee's fault or negligence. It creates the bailee an insurer of the return of the horse when the purposes of the bailment had been accomplished and a return demanded. The author- ities firmly indorse this principle. As stated l»y Schouler in his work on 62 GRADY V. SCHWEINLER. Bailments, § 106 : " Whatever lawful terms may have been introduced by their contract for the purpose of qualifying the method or risk of performance should be given full force, whether expressly set forth or only implied." In Steele v. Buck, 61 111. 343, 14 Am. Rep. 60, the court said : " The principle that lies at the foundation of the series of authorities, English and American, on this question, is that the party must perform his contract, and, if loss occurs by inevitable accident, the law will let it rest upon the party, who has contracted that he will bear it." In that same case the following was cited with approval : " Where a party, by his own contract, creates a dut}' or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his own contract. If a party entered into an absolute contract, without any qualifications or specifications, and receives from the party with whom he contracts the consideration for such engagement, he must abide by the contract, and either do the act or pay damages, if liability arises from his own direct and positive undertaking." In Drake v. White, 117 Mass. 12, the court said: "In the present case the parties have reduced their contract to writing and have omitted to attach to the defendant's liability for the property any limitation what- ever. On the contrary, their express promise is to do one or the other of two things — either to return the property specifically, or to pay for it in money. There can be no doubt that if a creditor sees fit to accept a deposit of security upon such terms, and to place himself in the posi- tion of an insurer of its safety, he can legally do so. It is not difficult to suppose a case in which the party might find it convenient that the business of guarding against the risk of fire or other accident should be attended to by the depositary. But, however that may be, th« proper interpretation of the contract is to be determined by the general rules of construction recognized by the law ; and, if the parties have im- providently made their contract more onerous than they expected, the difficulty cannot be removed by a violation of these rules." In Butler V. Greene, 49 Neb. 280, 68 N. W. 496, the court said : " If the defend- ant contracted to keep the watch in the vault of the bank, and if it was lost bj reason of his failure to do so, he was liable without regard to the general principles of the law of bailment. He had made a contract, and he was liable for all damages resulting from his failure to perform it. If he had no right to keep the watch in the vault, that was his affair, and not the bailor's. The contract was not to keep the watch in the vault if the bank permitted it, but it was absolute ; and it was the pledgee's business to see that he had authority to keep it there. If he had not, he should not have made the contract." See also Hale on Bailments & Carriers, p. 28, and cases cited ; Lance v. Griner, 53 Pa. 204 : 5 Cyc. p. 185, and cases cited ; Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99, 37 L. Ed. 1093 ; Harvey v. Murray, 136 Mass. 377 ; Rohrabacher v. Ware, 37 Iowa, 85 ; Standard Brewery v. Malting Co., 171 111. 602, 49 N. E. 507; Fairmont Coal Co. v. Jones & Adams Co., JENKINS V. BACON. 63 134 Fed. 711, 67 C. C. A. 265 ; Rcinstein i: Watts, 84 Me. 139, 24 Atl. 719 ; Austin v. Miller, 74 N. C. 274. Respondent contends that the contract imposes only sucL liability as the law would impose without it. Without any special contract, the law would impose on the defendant the duty to use ordinar}' care, and, in case of the death of the animal without defendant's fault, he would not be responsible. In this case, as we have shown, the con- tract went further, and enlarged the obligations of the bailee in respect to those devolving on him where no special contract exists. The principle contended for, therefore, has no application. The fact that the horse died while in defendant's possession without his fault is not a defence in view of the existing contract shown by the evidence and presumed to be true for the purposes of this appeal. The plaintiff having alleged and proved the contract, a breach thereof, demand, and a refusal to comply therewith, stated a cause of action in the complaint, and the same was established by the evidence without any showing of negligence. The judgment is reversed, a new trial granted, and the cause re- manded for a new trial. All concur. JENKINS V. BACON. Supreme Judicial Court of Massachusetts, 1873. [Ill Mass. 373.] CoxTRACT with counts in tort. The first three counts were in con- tract. The first alleged that the plaintiff intrusted to the defendant a United States bond for $500, to be kept for the benefit of the plaintiff until called for ; that the defendant agreed so to keep it and to deliver it to the plaintiff on demand, in consideration of services which had been rendered by the plaintiff to the defendant ; and that the plaintiff demanded it and the defendant neglected and refused to deliver it.* At the trial in the Superior Court, before Pitman, J., it appeared " that at the time of the transaction between the plaintiff and the defendant relating to the bond, tlie plaintiff was about to proceed ui)on a voyage to the East Indies, which voyage lasted between three and four years ; that the defendant kept the bond in his safe with his own papers and effects for nearly a year after the departure of the plaintiff on the voyage; that when the first six months' interest on the bond became due, the defendant's bookkeeper cut the coupon therefor from the bond and sent it by mail to the plaintiff's wife at West Barnstable; that she, by letter to the bookkeeper, acknowledged the receipt thereof; that in the spring of 1865 the defendant, finding the bond in his safe, directed his bookkeeper to send it to the plaintiff's wife at West Barn- ' The other counts are omitted. ~ Ei». 64 JENKINS V. BACON. stable, but gave no directions as to how it was to be sent ; that the bookkeeper mailed it to the plaintiff's wife; and that it never reached her." The plaintiff testified "that he requested the defendant to purchase the bond for him and to take care of it, or keep it for him, (but was unable to say which form of expression was used ;) that the defendant agreed to do as he requested ; that he expected the interest on the bond, as it became due, to be sent to his wife at West Barnstable, or held and placed to his credit by the defendant ; and that he never gave the defendant or any agent of his direction to send the bond to his wife." The plaintiff called his wife as a witness, and asked her whether she ever gave the defendant or his bookkeeper any directions or orders to send the bond to her, to which question she replied she had not. It was admitted by the plaintiff that the defendant was to receive no compensation for his services, and that whatever the defendant's undertaking in relation to the bond was, it was gratuitous. Among other things the defendant asked the judge to instruct the jury as follows: "If the defendant undertook and agreed in relation to the bond as the plaintiff alleged, and afterwards, without authority express or implied from the plaintiff, gave directions to his bookkeeper to send the bond to the plaintiff's wife, and the bond was sent to her b}' mail and lost therefrom, the defendant is not liable to the plaintiff for the value thereof, unless the jury are of the opinion that such direc- tions by the defendant were fraudulent, grossly negligent or grossly careless. The fact that the plaintiff offered his wife as a witness, and asked her whether she at any time gave directions or orders that the bond be sent to her, is one from which the jury may infer that she was the agent of the plaintiff during his absence at sea." The judge declined so to instruct the jury, but instructed them "that the plaintiff might recover by proving either gross negligence of the defendant in the care and custody of the plaintiff's property, or, without respect to the particular degree of care shown, by proof that the defendant took the bond upon the agreement to keep it for the plaintiff, and thereafter, without authorit}' express or implied, sent it to the plaintiff's wife or directed his clerk to do so, and the defend- ant thereby lost it b}- a disposition of the bond contrary to the original undertaking." Upon the other branch of the case, the judge instructed the jury as to what would constitute gross negligence in a manner not excepted to. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions. Ames, J. In that class of bailments described in the text books under the title of " deposits," the obligation of the bailee is that he will keep the thing deposited with reasonable care, and that he will upon request restore it to the depositor, or otherwise deliver it according to the original trust. According to the well i^.ettled rule, JENKINS V. BACON. 65 the bailee who acts without compensation can only be held responsible for bad faith, or gross negligence, if the deposit should be lost or injured while in his custody. Whitney w. Lee, 8 Met. 91; Foster v. Essex Bank, 17 Mass. 479. Except as to the degree of diligence and care required of him, his general obligation is the same as if he had assumed the trust upon the promise or with the expectation of reward. If he should deliver the property to a person not authorized to receive it, he would make himself responsible for its value, without regard to the question of due care or tlie degree of negligence. Hall /•. Boston & Worcester Railroad Co., 14 Allen, 439; Lichtenhein r. l^oston & Providence Railroad Co., 11 Cush. 70; Cass v. Boston & Lowell Railroad Co., 14 Allen, 448, 453; 2 Kent Com. (6th ed.) 568. If the case of Heugh v. London & North Western Railway Co., L. R. 5 Ex. 51, can be said to present a case of deliver}- to the wrong person, (which is open to considerable doubt,) the doctrine there asserted is directly opposed to the above cited decisions of this court. Good faith requires, even in the case of a gratuitous bailment, that the bailee should take reasonable care of the deposit ; and what is reasonable care must materially depend upon the nature, value and quality of the thing, the circumstances under which it is deposited, and sometimes upon the character and confidence and particular dealings of the parties. Story on Bailments, § 62. In this instance, the transaction was more than a simple deposit for safe keeping. The plaintiff claimed, and there was evidence, which was not contradicted or rebutted, to the effect that the defend- ant was to collect the coupons as they became due, for the benefit of the plaintiff's wife. The bond was delivered to the defendant in trust ; he accepted the trust and entered upon its performance. " The owner's trusting him with the goods is a sufficient consideration to oblige him to a careful management." Lord Holt, C. J., in Coggs v. Bernard, 2 Ld. Raym. 909. Notwithstanding the gratuitous character of the bailment, " it is held that the bailor has a remedy, in an action ex contractu, if the bailee do not perform his undertaking, and that there is a sufficient consideration to support a contract." Metcalf Con. 164, and cases there cited. In Robinson r. Threadgill, 13 Ired. 39, it was held that if one undertakes to collect notes for another, without mentioning any consideration, and takes tlie notes for that purpose, tiiere is a sufficient legal consideration for the engagement. A mere agreement to undertake a trust in futuro without compensation is not obligatory ; Init when once undertaken and the trust actually entered upon, the bailee is bound to perform it according to the terms of his agreement. Rutgers v. Lueet, 2 Johns. Cas. 92 ; Smodes r, Utica Bank, 20 Johns. 372, 379. Upon tliis point the authorities are numerous. They are fully cited in 1 Parsons Con. (5th ed.) 447; and 2 Parsons Con. 99; and in Chitty Con. (lOtii Am. ed.) 38-40, notes n and u. And it is well settled that the remedy is not confined to an action of tort, but that contract will lie. 6 66 JENKINS V. BACON. The substance of the defendant's contract and duty was to keep the deposit with reasonable care, and to restore it when properly called upon. We do not interpret this contract as restricting him to one place or uniform mode of keeping. All that could reasonably be expected of him was that he should keep it with his own papers, and in the same manner and with the same degree of care, as a man of ordinary prudence would exercise in the custody of papers of his own of like character. Circumstances might occur which would render it reason- able and proper that he should change the place of deposit. If his own place of business should be destroyed by fire, or if, from change of residence or temporary absence from the country, or for other suffi- cient reason, it should become inconvenient or unsafe that he should retain the manual possession of the bond, he would undoubtedly be at liberty to deposit it in any other place or mode, in which he with reasonable prudence might deposit his own property of the like de- scription. But, as between the original depositor and himself, he would continue to be the lawful and responsible custodian, and bound to practise that degree of care which the law requires of gratuitous bailees. The complaint against him is, not that he kept it negligently, or lost it by gross carelessness, but that he intentionally disposed of it in a manner not authorized by the terms of the trust. For the purposes of this case, it is wholly immaterial whether the post-office furnishes a reasonably safe mode of transmission, in the case of valuable papers of such a description, or not. The question of due diligence or gross neglect, in our opinion, is not raised by the bill of exceptions. A case recently decided in New York, Kowing v. Manly, 49 N. Y. 192, is in its leading features analogous to that now before us. In that case certain bonds had been left with the defendants with instruc- tions in writing not to deliver them to any person except upon the written order of the plaintiff, who was the depositor. The bonds were subsequently delivered by the defendants to the plaintifTs wife upon her presentation of an order purporting to be signed by him, which was in fact a forgery. The defendants were held accountable for the value of the bonds, not on the ground of any want of due and reason- able care, but because they had disposed of them in a manner not authorized by the contract. The fact that their instructions were expressed in writing could add nothing to the duties required of them by their contract. Tliey were held liable for the reason that they had no authority to do what the defendant in this case attempted to do ; and because such a delivery to the wife was a violation of their trust. In Stewart I'. Frazier, 5 Ala. 114, the defendant had received money to be kept for the plaintiff, without compensation. No instructions had been given to the defendant to remit the money, but from kindness and the best intentions he undertook to remit it by the hands of a person "reputed to be an honest man." The money was lost, and the defendant was held responsible, on the ground that it was a case LILLEY V. DOUBLEDAY. 67 in which the plaintiff was exposed to a risk to which he had not con- sented. The court say " the law would be the same if the public mail had been resorted to, instead of a private conveyance." They add that the question of gross negligence in the transmission of the money does not arise, as the defendant " had no authority to transmit, in any mode, either express or implied." As we have already remarked, if the defendant had delivered the bond bv mistake to a person not entitled to receive it, he would make himself responsible, without regard to the question of due care, or degree of negligence. His duty was to keep the deposit; he could not erty and goods ; and when this is so, and the fact is known and avowed, the owners will not be liable as common carriers for any other goods or property intrusted to their agents without their consent. The trans- portation of passengers or of merchandise, or of both, does not neces- sarily impl}', that the owners hold themselves out as common carriers of money or bank bills. It has never been imagined, I presume, that the owners of a ferry boat, whose ordinary employment is merely to carry passengers and their luggage, would be liable for the loss of money intrusted for carriage to the boatmen or other servants of the owners, where the latter had no knowledge thereof, and received no compensation therefor. In like manner the owners of stage-coaches, whose ordinary' employment is limited to the transportation of pas- sengers and their luggage, would not be liable for parcels of goods or merchandise intrusted to the drivers employed by them, to be carried from one place to another on their route, where the owners receive no compensation therefor, and did not hold themselves out as common carriers of such parcels. A fortiori, they would not be liable for the carriage of parcels of money, or bank bills, under the like circumstances. So, if mone}' should be intrusted to a common wagoner not authorized to receive it by the ordinary business of his employers and owners, at their risk, I apprehend, that they would not be liable for the loss thereof as common carriers, an}- more than they would be for an injury done by his negligence, to a passenger, whom he had casually taken up on the road. In all these cases, the nature and extent of the employ- ment or business, which is authorized by the owners on their own account and at their own risk, and which either expressly or impliedly they hold themselves out as undertaking, furnishes the true limits of their rights, obligations, duties, and liabilities. The question, therefore, in all cases of this sort is, what are the true nature and extent of the employment and business, in which the owners hold themselves out to the public as engaged. They may undertake to be common carriers of passengers, and of goods and merchandise, and of money ; or, they may limit their employment and business to the carriage of any one or more of these particular matters. Our steamboats are ordinarily em- 72 CITIZENS BANK V. NANTUCKET STEAMBOAT CO. ployed, I believe, in the carriage, not merely of passengers, but of goods and merchandise, including specie, on freight ; and in sucli cases the owners will incur the liabilities of common carriers as to all such mat- ters within the scope of their employment and lousiness. But in respect to the carriage of bank bills, perhaps very different usages do, or at least may, prevail in different routes, and different ports. But, at all events, I do not see, how the court can judicially saj-, that steamboat owners are either necessaril}' or ordinarily to be deemed, in all cases, common carriers, not onl}' of passengers, but of goods and merchandise and money on the usual vo^'ages and routes of tlieir steamboats ; but the nature and extent of the employment and business thereof must be established as a matter of fact by suitable proofs in each particular case. Such proofs have, therefore, been very properly resorted to upon the present occasion. In the next place, I take it to be exceedingly clear, that no person is a common carrier in the sense of the law, who is not a carrier for hire ; that is, who does not receive, or is not entitled to receive, au}' recom- pense for his services. The known definition of a common carrier, in all our books, fully establishes this result. If no hire or recompense is pa3-able ex dehito justitice, but something is bestowed as a mere gra- tuity or voluntary gift, then, although the party may transport either persons or property', he is not in the sense of the law a common car- rier; but he is a mere mandatar}', or gratuitous bailee; and of course his rights, duties, and liabilities are of a very different nature and char- acter from those of a common earlier. In the present case, therefore, it is a ver}' important inquiry, whether in point of fact the respondents were carriers of money and bank notes and checks for hire or recom- pense, or not. I agree, that it is not necessary, that the compensation should be a fixed sum, or known as freight ; for it will be sufficient if a hire or recompense is to be paid for the service, in the nature of a guafitum meruit, to or for the benefit of the company. And I farther agree, that it is b}' no means necessarv, that if a hire or freight is to be paid, the goods or merchandise or money or other property should be entered upon any freight list, or the contract be verified by any writ- ten memorandum. But the existence or non-existence of such circum- stances may nevertheless be very important ingredients in ascertaining what the true understanding of the parties is, as to the character of the l)ailment. In the next place, if it should turn out, that the Steamboat Company are not to be deemed common carriers of money and bank bills ; still, if the master was authorized to receive money and bank bills as their agent, to be transported from one port of the route of the steamboat to another at their risk, as gratuitous bailees, or mandataries, and he has been guilt}' of gross negligence in the performance of his duty, whereby the money or bank bills have been lost, the company are un- doubtedly liable therefor, unless such transportation be beyond the scope of their charter; upon the plain ground, that they are responsible BTJSSEY V. MISSISSIPPI VALLEY TRANSPORTATION CO. 73 for the gross negligence of their agents within the scope of their em- ploj-raent. [Having stated these preliminar}' doctrines, which seem necessary to a jivst understanding of the case, we may now proceed to ri direct consideration of the merits of the present controversy. And in my judgment, although there are several principles of law involved in it, yet it mainh' turns upon a matter of fact, namely, the Steamboat Company were not, nor held themselves out to the public to be, common carriers of mone}" and bank bills, as well as of passengers and goods and merchandises, in the strict sense of the latter terms ; the em- plo3'ment of the steamboat was, so far as the company are concerned, limited to the mere transportation of passengers and goods and mer- chandises on freight or for hire ; and money and bank bills, althougli known to the company to be carried b}' the master, were treated by them, as a mere personal trust in the master bv the owners of tlie money and bank bills, as their private agent, and for which the com- pany never held themselves out to the public as responsible, or as being within the scope of their employment and business as carriers. . . . Judgment for defendant}'\ BUSSEY & CO. V. MISSISSIPPI VALLEY TRANSPORTATION CO. Supreme Court of Louisiana, 1872. [24 La. Ann. 163.] Appeal from the Fourth District Court, parish of Orleans. Theard, J. Howe, J. The plaintiffs, a commercial firm, sued the defendants, a corporation, whose business is to transport merchandise in their own model barges, and to tow the barges of other parties for hire between St. Louis and New Orleans. The bill of lading, given b}- defendants to plaintiffs, recites the receipt from plaintiffs of one barge loaded with hay and corn, "in ap[)arent good order in tow of the good steamboat ' Bee' and barges," 'Ho be de- livered without delay in like good order (the dangers of navigation, fire, explosion, and collision excepted) to Bussey & Co., at New Orleans, Louisiana, on levee or wharf boat, he or they paying freight at the rate annexed, or 8700 for barge, and charges $267.50." . . . " It is agreed with shippers," the bill continues, "that the 'Bee' and barges are not accountable for sinking or damage to barge, except from gross carelessness." It was alleged by plaintiffs that defendants had neglected to deliver the l)arge and her valuable cargo according to their contract. The do- fondants answered by a general denial, and by a recital of wliat thoy claimed to be the circumstances of the loss of the barge and cariro. :n 74 BUSSEY V. MISSISSIPPI VALLEY TRANSPORTATION CO. which t^fey contended thej' were without blame ; and that loss did not result from gross carelessness on their part, and they were not liable ■ under the bill of lading. Other defences were raised by the answer which have been abandoned. -''f ;'* ' ;' \^ ' ' " , ;-, " ' The court a qua gave judgment for plaifitiffs for th'e amount claimed ' as the value of the barge and cargo, $15,272.60, with interest from judicial demand, and defendants appealed. ''"^ 7Uiu\'.ii j The appellants contend, as stated in their printed argument, '{nijuaio J ^^ First — That they are not common carriers, or rather that fheir^ undertaking in this, or like cases, is not that of a common carrier. " Second — Th^t they are liable^ if liable at all, only in case of gross i; carelessness, v^ . '^ ' ,. •[ • o ... " TViiVf? — That the restriction of liability contained in the agree- J ment to tow the barge in question exonerates them, except in case of ^ gross carelessness — as the appellants were bound ta use but ordinary^' prudence, even if they were common carriers. ' '^' '' "'■•^'•^^ ^''^^^ 7'>nofn " Fourth — ThsX the judgment rendered is for a larger amount than! the testimony will authorize." ^'"*^ ^"^^"Xo^^^ "^^1^ '<> ^>^- =i^ The question whether a towboat under the circumstances of this par- ticular case is a common carrier has been long settled in the affirmative in Louisiana ; and the reasoning by which Judge Matthews supported this conclusion in the leading case of Smith v. Pierce, 1 La. 354, is worthy of the sagacity for which that jurist was pre-eminent.;' The same opinion was clearly intimated by the Supreme Court of Massachusetts in the case of Sproul v. Hemmingway, 14 Pick. 1, in which Chief Justice Shaw was the organ of the court. In the case also of Alexander v. Greene, 7 Hill, 533, the Court of Errors of New York seem to have been of the sanpLC opinion. Four of tbe senators in giving' their reasons distinctly state their belief that tbe towboat in that case was a common carrier, and Judge Matthews'^ decision is referred to in terras of commendation as a precedent. Ijils true that Mr. Justice Bronson, whose opinion was thus reversed, Ip '^^ subsequent case declares (2 Corns. 208) that Bobody could tell what the^ Court of Errors did decide in Alexander i'. Greene, but the facts remain^ as above stated, and the effect of the case cannot but be^ to. f ortify th^ authority of the decision in 1 La. , , ..,^ ^ .. , : _ :- In addition to these authorities we have tbe weighty opinion of M^^ Kent who includes " steam towboats" in Ms list' of common carriers)2; Kent, 599, and of Judge Kane in 13 L, 11. 399. On the other hand. Judge Story seems to be of a different opinion (Bailmentp_j § 4,96^;^ a^nd Mr. Justice Grier differed from Judge Kane. , ' So, too, the Supreme Court of New York, in Catori i), Rumney, 13 Wend. 387, and Alexander v. Greene, 3 Hill, 9 ; the Court of Appeals of the same State in Well v. Steam Nav. Co., 2 Coms. 207; the Supreme Court of Pennsylvania in Leonard v. Hendrickson, 18 State, 40, and Brown v. Clegg, 63 State, 51 ; and the Supreme Court of Maryland in Penn. Co. v. Sandridge, 8 Gill «fe J. 248, decided that tugboats in these BUSSEY V. MISSISSIPPI VALLEY TRANSPORTATION CO. 75 particular cases were not common carriers. "NYe are informed that the same decision was made in the case of the " Neaffle," lately decided in the United States Circuit Court in New Orleans. Such conflict of authority might be very distressing to the student, but for the fact that when these writers and cases cited by them are examined the discrepancy, except in the decision in 63 Penn., is more imaginar}' than real. There are two very different ways in which a steam towboat ma}' be employed, and it is likely that ]\Ir. Story was contemplating one method and Mr. Kent the other. In the first place it may be employed as a mere means of locomotion under the entire control of the towed vessel ; or the owner of the towed vessel and goods therein may remain in possession and control of the property thus transported to the exclusion of the bailee ; or the towing may be casual merely, and not as a regular business between fixed termini. Such were the facts in some form as stated or assumed in Caton v. Rumney, 13 Wend., and Alexander v. Greene, 3 Hill, cited by Judge Story in the case of the " NeaflSe," and in the cases above quoted from 2 Corns., 18 Penn. St., and 8 Gill & J.; and it might well be said that under such circumstances the towboat or tug is not a common carrier. But a second and quite different method of employing a towboat is where she plies regularly between fixed termini, towing for hire and for all persons, barges laden with goods, and taking into her full possession and control, and out of the control of the bailor the property thus trans- ported. Such is the case at bar. It seems to satisfy every requirement in the definition of a common carrier. Story on Bail. § 495. And it was probably to a towboat employed in this way that Mr. Kent referred in the passage quoted above ; and that the Supreme Court of Massa- chusetts had in mind in the 14 Pick.; and see also Davis v. Housen, 6 Rob. 259, and Clapp v. Stanton, 20 An. 495. We must think that in all reason the Iial)ility 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- But conceding that this case as a contract of affreightment must be determined by the law of Missouri (4 Martin, 584), and that by that law the defendants are not common carriers as to the plaintiffs, we think it clear from the evidence of the defendants' own witnesses that they were guilty of "gross carelessness" in their attempt to deliver the plaintiffs' barge with its cargo at the port of New Orleans, and that by this gross carelessness she was sunk, and, with her cargo, destroyed. What is ''gross carelessness"? In an employment requiring skill, it is the failure to exercise skill. New World v. King, 16 How. 475. The employment of the defendants certainly required skill. A lack of that dexterity which comes from long experience onl}-, might be swiftly fatal, for but a single i)lank intervenes between the costly cargo and instant destruction. We have but to read the testimony of defendants' own witnesses, and especially Conley, Turner, Burdeau, and Sylvester, 76 BUCKLAND V. ADAMS EXPRESS CO. to see that the attempt to land the barge was made without skill, and that it might easih' have been effected with entire safety. We are of opinion that the judgment was correctly rendered in favor of plaintiffs, but that the amount is somewhat excessive. We find the value of the propert}' lost at this port, less the freight and charges, and a small amount realized from the wreck, to be $13,268.50. It is therefore ordered that the judgment appealed from be amended b}' reducing the amount thereof to the sum of thirteen thousand two hundred and sixt3'-eight dollars and fifty cents, with legal interest from judicial demand and costs of the lower court, and that as thus amended it be affirmed, appellees to pa}' costs of appeal.^ BUCKLAND v. ADAMS EXPRESS CO. Supreme Court of Massachusetts, 1867. [97 Mass. 124^.] Contract to recover the value of a case of pistols. BiGELOW, C. J. We are unable to see any valid reason for the sug- gestion that the defendants are not to be regarded as common carriers. The name or style under which they assume to carr\- 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 ascer- tained from a consideration of the kind of service which the}' hold themselves out to the public as ready to render to those who may have occasion to employ them. Upon this point there is uo room for doubt. They exercise the employment of receiving, carrying, and delivering goods, wares, and merchandise for hire on behalf of all persons who may see fit to require their services. In this capacity they take prop- erty from the custody of the owner, assume entire possession and con- trol 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. This statement embraces all the elements essential to constitute tlie relation of common carriers on the part of the defendants towards tlie persons who employ them. Dvvight v. Brewster, 1 Pick. 50, 53 ; Lowell Wire Fence Co. v. Sargent, 8 Allen, 189 ; 2 Redfield on Railways, 1-1 G. But it is urged in behalf of the defendants that they ought not to be held to the strict liability of common carriers, for tlie 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 exercising the employment of express carriers or messengers over railroads and by steamboats cannot, from the very nature of the case, exercise any 1 Compare : The Neaffie, 1 Abb. C. C. 465 ; White v. Winnisimmet Co., 7 Cush. 155 ; White v. Mary Ann, 6 Cal. 462. — Ed. BUCKLAXD V. ADAMS EXPRESS CO. 77 care or control over the means of transportation wlilch tliey are obliuL-d to adopt ; that tlie carriages and boats in which ihe merchandise in- trusted to them is placed,, and the agents or servants by wlioin 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 to a different mode of conducting business by which the carrier was enabled to select his own servants and vehicles and to exercise a personal care and over- sight of them, are wholh' inapplicable to a contract of carriage by which it is understood between the parties that the service is to be performed, in part at least, bv means of agencies over which the car- rier can exercise no management or control whatever. But tliis argu- ment, though specious, is unsound. Its fallacy consists in the assumption that at common law, in the absence of an}' express stipulation, the contract with an owner or consignor of goods delivered to a carrier for transportation necessarilv implies that they are to be carried by the party with whom the contract is made, or by servants 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 fulfilment 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 b\- him. The contract does not imph' a personal trust, which can be executed only by the contracting party himself or under his supervision by agents and means of trans- portation directly and absolutel}- within his control. Long before the discover}' of steam power, a carrier who undertook to convey merchan- dise from one point to another was authorized to perform the service through agents exercising an independent employment, which they car- ried on by the use of their own vehicles and under the exclusive care of their own servants. It certainh' never was supposed that a person who agreed to carr}' goods from one place to another bv means of wagons or stages could escape liability for the safe carriage of the prop- erty over an}' part of the designated route by showing that a loss hap- pened 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 in- trusted to him. And there is no good reason for making any distinc- tion in tlie nature and extent of this liability attaching to carriers, as between those who undertake to transport property by the use of the modern methods of conveyance, and those who performed a like ser- vice in the modes formerly in use. If a person assumes to do the busi- ness of a common carrier, he can, if he sees fit, confine it within such 78 PINKERTON V. WOODWARD. limits that it maj' 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 con- tract or bear the responsibility which the law affixes to the species of contract into which he voluntarily enters. There is certainly no hardship in this, because he is bound to take no greater risk than that which is imposed by law on those whom he employs as his agents to fulfil the contracts into which he has entered. ; 'nirrM; ut Exceptwns overruled. CLARK -y. BURNS.- -^ ^'Hiq al .: ..^.-r--, Supreme Judicial Court of Massachusetts, 1875. [118 Afass. 275.] Contract, for the value of a watch, against the owners of a steam- ship as common carriers, with counts in tort for negligence, and also counts charging them as innkeepers.^ Gray, C. J. The liabilities of common carriers' knd innkeepers, thouo^h similar, are distinct. No one is subject to both liabiUties at the same time, and with regard to the same property. The liability of an innkeeper extends only to goods put in his charge as keeper of a public house, and does not attach to a carrier who has no house and is eno-aged only in the business of transportation. The defendants, as owners of steamboats carrying passengers and goods for hire, were not innkeepers. They would be subject to the liability of common carriers for the baggage of passengers in their custody, and might perhaps be so liable for a watch of the passenger locked up in his trunk with other baggage. But a watch, worn by a passenger on his person by day, and kept by him within reach for use at night, whether retained upon his person, or placed under his pillow, or in a pocket of his clothing, hanging near him, is not so intrusted to their custody and control as to make them liable for it as common carriers. Steam- boat Crystal Palace v. Vanderpool, 16 B. Mon. 302; Tower v. Utica Railroad, 7 Hill, 47; Abbott v. Bradstreet, 55 Maine, 530; Pullman Palace Car Co. v. Smith, 7 Chicago Legal News, 237. PINKERTON V. WOODWARD. Supreme Court, California, 1867. '[33 Cal. 557.] Rhodes, J.^ The definition of an inn, given by Mr. Justice Bayley, in Thompson v.- Lacy, 3 B. & Aid. 286, as "■ a house where a travel- 1 The evidence is omitted. Only so much of the opinion as discussed the liability .pf;the defendants on the counts as innkeepers is given. — Ed. ,|, ,,- Onlv so much of the opinion as describes tiie nature of an inn is given. ^Ed. PINKEKTON V. WOODWARD. 79 ler is furnished with everything which he has occasion for while on his way," is comprehensive enough to include every description of an inn ; but a house that does not till the full measure of this detinition may be an inn. It probably would not now be regarded as essential to an inn that wine or spirituous or malt liquors should be provided for tlie guests. At an inn of the greatest completeness entertainment is furnished for the traveller's horse as well as for the traveller, but it has long since been held that this was not essential to give charac- ter to the house as an inn. (See Thompson^ v. Lacy, supra ; 2 Kent, 595 ; 1 Smith Lead. Cases, notes to Coggs r. Bernard ; Sto. on Bail. Sec. 475 ; Kisteu v. Hildebrand, 9 B. Mon. 74.) In Wintermute r. Clarke, 5 Sandf. 247, an inn is defined as a public house of entertain- ment for all who choose tb visit it. The defendant insists that the , " What Cheer House" was a lodging house and not an inn ; because, as he says, the eating department was distinct from the lodging depart- ment. It appears that in the basement of the "What Cheer House," and connected with it by a stairway, there was a restaurant, which was conducted b3' the defendant and two other persons jointly, and that the three shared the profits. Where a person, by the means usually employed in that business, holds himself out to the world as an innkeeper, and in that capacity, is accustomed to receive travellers as his guests, and solicits a continuance of their patronage, and a trav- eller relying on such representations goes to the house to receive such entertainment as he has occasion for, il^e/relation of innkeeper and guest is created, and the innkeeper cannot be heard to say that his professions were false, and that he was not in fact an innkeeper. The rules regulating the respective rights, duties and responsibilities of . innkeeper and guest have their origin in considerations of public pol- icy, and were designed mainly for the protection and security' of trav- ellers and their property. They would afford the traveller but poor security if, before venturing to intrust his propert}' to one who by his agents, cards, bills, advertisements, sign, and all the means by which publicity and notoriety can be given to his business, represents himself as an innkeeper, he is required to inquire of the emploj'ees as to their interest in the establishment, or take notice of the agencies or means b}- which the several departments are conducted. The same consid- erations of public policy that dictated those rules demand that the innkeeper should be held to the responsibilities which, by his repre- sentations, he induced his guest to believe he would assume. We think the jury were fully warranted by the evidence in finding that the " What Cheer House " was an inn, and that the defendant was an inn- keeper ; and the Court correctly instructed the jury in respect to those facts. 80 LEWIS V. NEW YORK SLEEPING CAR CO. LEWIS V. NEW YORK SLEEPING CAR CO. Supreme Judicial Court of Massachusetts, 1887. [143 Mass. 267.] Morton, C. J. The use of sleeping cars upon railroads is modern, and there are few adjucttcated cases as to the extent of the duties and liabilities of the owners of such cars. They must be ascertained by applying to the new condition of things the comprehensive and elastic principles of the common law. When a person buys the riglit to the use of a berth in a sleeping car, it is entirely clear that the ticket which he receives is not intended to, and does not, express all the terms of the contract into which he enters. Such ticket, like tlie ordinary rail- road ticket, is little more than a symbol intended to show to the agents in charge of the car that the possessor has entered into a contract with the company owning the car, by which he is entitled to passage in the car named on the ticket. Ordinaril}', the only communication between the parties is, that the passenger buys, and the agent of the car company sells, a ticket between two points ; but the contract thereby- entered into is implied from the nature and usages of the employment of the compan}'. A sleeping car company holds itself out to the world as furnishing safe and comfortable cars, and, when it sells a ticket, it impliedlv stipu- lates to do so. It invites passengers to pay for, and make use of, its cars for sleeping, all parties knowing that, during the greater part of the night, the passenger will be asleep, powerless to protect himself or to guard his property. He cannot, like the guest of an inn, by locking the door, guard against danger. He has no right to take any such steps to protect himself in a sleeping car, but, by the necessity of the case, is dependent upon the owners and officers of the car to guard him and the propert3' he has with him from danger from thieves or otherwise. The law raises the duty on the part of the car company to afford him this protection. While it is not liable as a common carrier or as an innholder, yet it is its duty to use reasonable care to guard the passen- gers from theft, and if, through want of such care, the personal effects of a passenger such as he might reasonably carr}- with him are stolen, the company is liable for it. Such a rule is required by public policy, and by the true interests of both the passenger and the company ; and the decided weight of authority supports it. Woodruff Sleeping & Parlor Coach Co. v. Diehl, 84 Ind. 474 ; Pullman Car Co. v. Gardner, 3 Penny. 78 ; Pullman Palace Car Co. v. Gaylord, 23 Am. Law Reg. (N. S.) 788. The notice by which the defendant company sought to avoid its lia- bility was not known to the plaintiff, and cannot avail the defendant. The defendant contends that there was no evidence of negligence on 1 CUMBERLAND TELEPHONE CO. V. BROWN. 81 its part. Tlie fact that two larcenies were committed in the manner described in the testimony is itself some evidence of the want of proper watchfulness by the porter of the car ; add to this the testimony that the porter was found asleep in the early morning, that he was required to be on duty for thirty-six hours continuously, which included two nights, and a case is presented which must be submitted to the jury. We have considered all the questions which have been argued in the two cases before us, and are of opinion that the rulings at the trial were correct. Exceptions overruled} Gray, C. J., in Grinnell v. Western Union Telegraph Co., 113 ]\[ass. 299 (1873). The liability of a telegraph company is quite unlike that of a common carrier. A common carrier has the exclusive possession and control of the goods to be carried, with peculiar opportunities for embezzlement or collusion with thieves ; the identitv of the oroods re- ceived with those delivered cannot be mistaken; their value is capable of eas}- estimate, and may be ascertained by inquiry of the consignor, and the carrier's compensation fixed accordingly ; and his liability in damages is measured by the value of the goods. A telegraph company is intrusted with nothing but an order or message, which is not to be carried in the form in which it is received, but is to be transmitted or repeated by electricity, and is peculiarly liable to mistake ; which cannot be the subject of embezzlement ; which is of no intrinsic value ; the importance of which cannot be estimated except by the sender, nor ordinarily dis- closed by him without danger of defeating his own purposes ; which may be wholly valueless, if not forwarded immediately ; for the trans- mission of which there must be a simple rate of compensation ; and the measure of damages for a failure to transmit or deliver which, has no relation to any value which can be put on the message itself CUMBERLAND TELEPHONE CO. v. BROWN. Supreme Court of Tennessee, 1900. [104 Tenn. 56.] Caldwell, S} Brown was a resident of the city of Nashville, but was temporaril3' at Hickman, a small village about fifty-eight miles from Nashville, and two miles beyond Gordonsville. The telephone com- pany had an ofl[ice at Nashville and one at Gordonsville, but none at Hickman. In the afternoon of September 16, 1897, Brown's son went into the office at Nashville and stated to the operator there that he had an itn- 1 Ace. Blum y. So. P. P. C. Co., 1 Flip. .500; Pullmnn V. C. Co. v. Adam.o, 120 Ala. .581 ; Pullman P. C. Co. i;. Smith, 7.3 111. .-JCO ; Woodruff S. & P. C. Co. v. Dielil, 84 Ind. 474. Contra, Pullman V. C. Co. v. Lowe, 28 Neb. 239. — Ed. 2 Part of the opinion only is p;iven. — Ed. 6 82 CUMBERLAND TELEPHONE CO. V. BKOWN. portant message for bis father at Hickman. The operator called the company's agent at Gordonsville, and put the son in communication with him. The son, availing himself of the instrument and connection thus afforded, communicated his message to the Gordonsville agent, who agreed to deliver it at Hickman ; and thereupon, according to the usual custom, the Nashville agent demanded and received sixty-five cents in payment of total charges, being twenty-five cents for the trans- mission of the message to Gordonsville and forty cents for its delivery at Hickman. The message, as written by the agent at Gordonsville, was as follows : " Nashville, Tennessee, 9-16-97. "Mr. J. Thomas Brown, Hickman, Tennessee. uotiiuioy li io " Come home immediately. Your daughter is dangerously ill. " (Signed) - - Tom.Brovkn." Though received at Gordonsville at 5 . 15 p. m. of that day, and so ' marked on its face, the message was not delivered until about 8 or 8.30 A. M. the next day, which was near fifteen hours after the agent got it, and some five hours after the sendee's daughter's death, of which he learned thirty minutes later through another message transmitted over the same line, and likewise delivered at Hickman. ' '-'^^^^"'^9^9 The compan}^ virtuall}' concedes'the foregoing facts ; but, neverthe- less, denies its liabilit}' in this case upon the ground that it had in- structed its operators not to receive messages from any one to be by any agent of the company delivered to the sendee, and that the under- taking of the Gordonsville operator to deliver this message at Hickmart was, therefore, without authority, and not binding on his principMi"'^''^'" It was in relation to this phase of the case that the trial judge gave the charge against which the first assignment of error in this coui't is directed. That charge is in this language, namely : " In the opinion of the court this instruction to employees is of little consequence, under the conceded facts of this case. If the coinpany knowingly jiermitted its employees, over its own wires, to make such arrangements with cus- tomers, ascertained from such employees the cost of delivery beyond the terminus of the line, and there collected from the customer com- pensation for the entire work, then the fact that under its arrangement with its distant operators they were to receive the pay for the delivery, beyond the terminus, could make no difference so far as the customer was concerned ; and the negligence of such operator, if proven, >voiild; be the negligence of the company itself." We are not able to perceive any error in this charge^ but on the con- trary we regard it as entirely sound. . Fj.fJ. ^4f;yrfp(>V;- JflOOfftO No instruction of the company to its operators, however formal and peremptory, could prejudice the rights of a customer if it knowingly permitted those agents to conduct its affairs upon a plan in direct con- flict with that instruction. The course of business actually, pursued by SEAVER V. BRADLEY. 83 the company's agents with its knowledge is the proper and legal cri- terion of its responsibility to its customers. As to tlie public its legal relation is that indicated by its recognized course of business, so long as the latter does not contrayene some rule of positive law or some public polic}'. . . 1 ^i *^,.„ The habitual breach and disregard of the instruction by the operatois of the company, with its knowledge, amounts to a practical abrogation of the instruction (Railroad .. Reagan, 96 Tenn. 129, 140), and makes the status of the company that which its real course of business imports. i • ti « <- This is equally true, though the company was not hound in the first instance to receiye and deliver messages at all, but only to furnisli suitable instrumentalities for verbal communication between separated members of the public ; for, it had the legal power to assume the addn tional duty, and could do so as v^ell in the manner indicated as by the promulgation of formal notice of fiuch purpose. Nor is it of any legal consequence in the present case that the x>asli- viUe operator maV have testified that he told the sender of this message that the company would not undertake to deliver it, since he concedes that he furnished the connection with the express understanding that the Gordonsville operator was to be requested to deliver it. and with the assurance that he would do whatever he agreed to do about it, and after the arrangement was consummated, collected the charges for de- livery as well as for tolls, and turned the same into the treasury of the """"Thrformal statement that the company would not undertake to deliver the message, if made, mu«t go for nothing in the face ot the undisputed facts which show that it did in reality, and according to its custom, undertake and agree by its Gordonsville agent to do it. •^■, SEAVER r. BRADLEY. .t Supreme Court of Massachusetts, 1901. [179. Mass. 329.] •TORT under Pub. Sts. c 73, § 6,^ to recover for the loss of life of the plaintiff's intestate by reason of the negligence of the defendant, alleged to be a common carrier of passengers, operating a passenger elevator in tlie building owned and managed by him as trustee numbered 171 Al on Tremont Street in Boston. Writ dated December 7, 1808. : ^--^ HoLMKS C J Those who maintain a passenger elevator in an ofhdC buildinVare not " common carriers of passengers" within the meaning of Fub^Sts c 73, § 6. We assume that tliat section is not prevented from applying because it represents a statute passed befo.-e such eleva- tors were in familiar use. But the words do not describe the owners of 84 NOLTON V. WESTERN EAILROAD CORPORATION. an elevator. The modern liability of common carriers of goods is a resultant of the two long accepted doctrines that bailees were answer- able for the loss of goods in their charge, although happening without their fault, unless it was due to the public enemy, and that those ex- ercising a common calling were bound to exercise it on demand and to show skill in their calling. Both doctrines have disappeared, although they have left this hybrid descendant. The law of common carriers of passengers, so far as peculiar to them, is a brother of the half blood. It also goes back to the old principles concerning common callings. Carriers not exercising a common calling as such are not common car- riers whatever their liabilities may be. But the defendant did not exer- cise the common calling of a carrier, as sufficiently appears from the fact that he might have shut the elevator door in the plaintiffs face and arbitrarily have refused to carry him without incurring any liability to him. Apart from that consideration, manifestly it would be contrary to the ordinary usages of English speech to describe by such words the maintaining of an elevator as an inducement to tenants to occupy rooms which the defendant wished to let. The only question before us is the meaning of words. Therefore de- cisions that the liability of people in the defendant's position is not less than that of railroad companies do not go far enough to make out the plaintiff's case. Exceptions overruled. NOLTON V. WESTERN RAILROAD CORPORATION. Court of Appeals, New York, 1857. [15 A^. Y. 444.] Demurrer to complaint. The complaint stated that the plaintiff was a mail agent on the defendant's railroad, in the employment of the United States, and the defendant a carrier of passengers and freight, for fare and reward, by railroad and cars, between Greenbush and Bos- ton. That defendant was bound by contract between it and the United States, for a stipulated time and price, to carry the mails, and also the mail agent, without further charge ; that in pursuance and in consider- ation of such contract, the defendant received the plaintiff into a car fitted up for the accommodation of the mail and mail agent ; and the plaintiff, for the consideration aforesaid, became and was a passenger in the said cars, to be by the defendant, thereby, safely and with due care and skill, carried and conveyed to Worcester, which the defend- ant then and there undertook and was bound to do. It then states a bodily injury received by the plaintiff, by the running of the car, con- taining the plaintiff, off the track, and breaking it, through defective- ness of machinery, want of care, skilJ, &c. The defendant demurred, and after final judgment for the plaintiff, by the Supreme Court at gen- NOLTON V. WESTERN RAILROAD CORPORATION. 85 eral term, appealed to this court. The case was submitted on printed briefs. Selden, J. As the only objection which can be taken to the com- plaint upon this demurrer is, that it does not contain facts sufficient to constitute a cause of action, it is entirely immaterial whether the action be considered as in form ex contractu or ex delicto. The only question is, whether upon the facts stated, the plaintiff can maintain an action in an}' form. The plaintiff cannot, I think, avail himself of the contract between the defendant and the government, so as to make that the gravamen of his complaint, and the foundation of a recovery. This is not like the cases in which a third person has been permitted to recover upon a con- tract made by another partj' for his own benefit. The distinction be- tween them is plain. Those were cases where the defendant, for a consideration, received from the party to the contract, had undertaken to do something ostensibly and avowedly, for the direct benefit of the plaintiff, and when the advantage to the latter was one object of the agreement. Here the parties had no such intention. In contracting for the transportation of the mail agent, the parties hud no more in view any benefit or advantage to him, than if the contract had been to transport a chattel. The government took care of the public interests, and left those of the mail agent to such protection as the law would afford. Another distinction is, that in the cases referred to, the party claim- ing the benefit of the contract, and seeking to enforce it, was one who was specifically mentioned and pointed out in the contract itself, while here no one is designated ; and to entitle the plaintiff to recover upon it, it must be regarded as a shifting contract, which can be made to enure to the benefit of any person who may temporarily assume the duties of mail agent. I think there is no precedent for such a con- struction of such a contract. If, then, the plaintiff can recover at all, it must be upon the ground of some implied contract, or of some legal obligation or duty resting upon the defendants, to exercise proper care and skill in the transpor- tation of passengers ; and the question is, whether, under the circum- stances of this case, such a contract is implied, or such a duty imposed for the benefit of the plaintifl!". It would seem a startling proposition, that in all those cases where persons travel upon railroads engaged not in their own business, but that of others, and where their fare is paid by their employer, they are entirely at the mercy of the railroad agents, and without redress, if injured through tlieir recklessness and want of care and skill. If, how- ever, railroad companies are liable, in cases like the present, it is im- portant to ascertain the precise nature and extent of that liability. In the first place, then, it is clear that they are not liable, by virtue of that custom or rule of the common law, which imposes special and peculiar obligations upon common carriers. I'ersons engaged in the 86 NOLTON V. WESTERN RAILROAD CORPORATION. conveyance of passengers, are not common carriers, within the mean- ino- of that rule, which applies solely to those whose business it is to transport goods. (Bac. Abr., tit. Carriers ; 2 Kent's Com., § 40 ; Story on Bail., § 498, and note.) If the complaint in this case, after stating that the defendant was a carrier of passengers and freight from Greenbush to Boston, for hire and reward, had simply averred that the plaintiff became a passenger in the cars of the defendant, and was so received by it ; an implied contract would have arisen on the part of the defendant, to transport the plaintiff with all due diligence and skill; because the law would have inferred from those facts, that the defendant was to receive a com- pensation from the plaintiff himself. But this inference is repelled by the contract set forth, and the statement that the plaintiff was received as a passenger under it. jii) :i i. It was suggested by the plaintiff's counsel, upon the argument, that a contract might be implied, of which the agreement between the defend- ant and the government should form the consideration and basis. But although that agreement may be resorted to, for the purpose of show- ing that the plaintiff became a passenger upon the cars by the consent of the defendant, and not as a mere intruder, it cannot, I think, be made available by the plaintiff, as the consideration of an implied assumpsit. As to him, that agreement is 7:es inter alios acta. He is not a party to it, or mentioned in it. His employment by the govern- ment may have taken place long after the agreement was made, and have had no reference to it. If any contract can be implied from that agreement, in favor of the plaintiff, it must be a contract to transport him from place to place, according to the terms of the agreement. Suppose, then, the cause of action, instead of being for an injury re- ceived through the negligence of the defendant, had been for not fur- nishing the necessary cars, or not running any train, could the plaintiflf recover in such an action ? Would the defendant be liable for its fail- ;Ure to perform the contract, not only to the party with whom the con- ■tract was made, and from whom the consideration was received, but to a third party not named in it, and from whom they had received noth- ing? No one would claim this. It may be said that the implied contract with the plaintiff, is limited to an undertaking to transport safely or with due care. It is difficult to see, however, how there can be a contract to transport safel}' where there is no contract to transport at all. My conclusion therefore is, that this action cannot be maintained upon the basis of a contract express or implied. It necessarily follows, that it must rest exclusively upon that obliga- tion which the law always imposes upon every one who attempts to do anything, even gratuitously, for another, to exercise some degree of care and skill in the performance of what he has undertaken. The leading case on this subject, is that of Coggs v. Bernard (Ld. Eay. 909). There the defendant had undertaken to take several NOLTON V. WESTERN RAILROAD CORPORATION. 87 hogsheads of brandy belonging to the plaintifl', from one cellar in London, and to deposit them in another ; and in the process of mov- ing, one of the hogsheads was staved and the brand_y lost, through the carelessness of the defendant or his servants. Although it did not appear that the defendant was to receive anything for his services, he was, nevertheless, held liable by the whole court. The principle of this case has never since been doubted, but there has been some confusion in the subsequent cases as to the true nature of the obligation, and as to the form of the remedy for its violation. In many instances suits have been brought, upon the supposition that an implied contract arises, in all such cases, that the party will exercise due care and diligence ; and the language of Lord Holt, in Coggs v. Bernard, undoubtedly gives countenance to this idea. He seems to treat the trust and confidence reposed, as a sufficient consideration to support a promise. This doctrine, however, can hardly be considered as in consonance with the general principles of the common law. In addition to the difficulty of bringing mere trust and confidence within any legal definition of valuable consideration, there is a manifest incon- gruity in raising a contract, to do with care and skill, that which the party is under no legal obligation to do at all. The duty arises in such cases, I apprehend, entirel}' independent of an^' contract, either expressed or implied. The principle upon which a party is held responsible for its violation does not differ ver}- essen- tially, in its nature, from that which imposes a liabilit}' upon the owner of a dangerous animal, who carelessly suffers such animal to run at large, b}- means of which another sustains injury; or upon one who digs a ditch for some lawful purpose in a highwa}-, and carelessly leaves it uncovered at night, to the injury of some traveller upon the road. It is true, it may be said that, in these cases, the duty is to the public, while in the present case, if it exists at all, it is to the individ- ual ; but the basis of the liability is the same in both cases, viz., the culpable negligence of the party. All actions for negligence presup- pose some obligation or duty violated. Mere negligence, where there was no legal obligation to use care, as where a man digs a pit upon his own land, and carelessly leaves it open, affords no ground of action. But where there is anything in the circumstances to create a duty, either to an individual or the public, any neglect to perform that dut}-, from which injury arises, is actionable. The present case falls clearly within this principle of liability. There can be no material difference between a gratuitous undertaking to transport i)roperty, and a similar undertaking to transport a person. If either are injured through the culpable carelessness of the carrier, he is liable. If, according to the case of Coggs v. Bernard (supi'a), and the subsequent cases, an obligation to exercise care arises in one case, it must also in the otlier. It is true that, according to the authorities, the party in such cases is only liable for gross negligence. But what will amount to gross negli- 88 MAKSHALL V. THE lOKK, NEWCASTLE, AND BERWICK RY. CO. gence depends upon the special cii'cumstances of each case. It has been held that, when the condition of the part}- charged is such as to impl}' peculiar knowledge and skill, the omission to exercise such skill is equivalent to gross negligence. Thus, it was said b}- Lord Lough- borough, in Shiells v. Blackburne (1 Hen. Bl., 158), that " if a man (jrntu'itously undertakes to do a thing to the best of his skill, when his situation or profession is such as to imply skill, an omission of that skill is imputable to him as gross negligence." The same doctrine is advanced by Parke, B., in Wilson v. Brett (11 Mees. & Wels., 113). He says: "In the case of a gratuitous bailee, where his profession or situation is such as to imply the posses- sion of competent skill, he is equally liable for the neglect to use it." I regard this principle as peculiarly applicable to railroad companies, in view of the magnitude of the interests which depend upon the skill of their agents, and of the utter powerlessness of those who trust to that skill to provide for their own securit}'. This case is not like that of Winterbottom v. Wright (10 Mees. & Wels., 109). There the defendant had not undertaken to transport the plaintiff, either gratuitously or otherwise. He was simply bound by contract with the government to furnish and keep in repair the- car- riages used b}- the latter in transporting the mails. The relations of the parties in that case and in this are verj' different, and the cases cannot be considered as governed by the same principles. I entertain no doubt that in all cases where a railroad compan}- vol- untaril}' undertakes to convey a passenger upon their road, whether with or without compensation, in the absence, at least, of an express agreement exempting it from responsibility, if such passenger is in- jured b}' the culpable negligence or want of skill of the agents of the company, the latter is liable. The matter of compensation ma3'bave a bearing upon the degree of negligence for which the compan}' is liable. That question, however, does not arise here. Degrees of negligence are matters of proof, and not of averment. The allegations of negli- gence in this complaint are sufficient, whether the defendant is liable for ordinary or only for gross negligence. The judgment should be affirmed. Brown, J., also delivered an opinion for affirmance. All the judges concurring. Judgment affirmed. MARSHALL v. THE YORK, NEWCASTLE, AND BERWICK RAILWAY CO. Common Bench, 1851. [11 C. B. 655.] This was an action upon the case brought by the plaintiff to recover from the defendants, the York, Newcastle, and Berwick Railway MARSHALL V. THE YORK, NEWCASTLE, AND BERWICK RY. CO. 89 Company, damages for the loss of a portmanteau containing articles of wearing apparel.^ The cause was tried before Jervis, C. J., at the sittings at West- minster after the last term. It appeared that the plaintiff was valet to Lord Adolphus Vane, that, in the month of September, 1850, he was travelling to London with his master, tliat the portmanteau in question was placed in the railway train at Darlington, antl lost on the road. It appearing, however, upon the evidence of Lord Adoli)hus Vane, that his lordship had himself taken and paid for the tickets for himself and his servant, it was submitted, on the part of the defendants, that, the action being founded upon contract, and the contract having been made with the master, the master and not the servant should have sued. The Lord Chief .Justice nonsuited the plaintiff, reserving to him leave to move to enter a verdict for £30, — the agreed value of the portmanteau and its contents, — if the court should be of opinion that the action was well brought. Jervis, C. J. I am of opinion that the rule must be made absolute to enter a verdict for the plaintiff for the damages agreed upon at the trial. Three points have been incidentally made in the course of the argument. In the first place, it is said, that, under the circumstances of this case, no action will lie b}' the plaintiff against these defendants, whatever the form of the declaration. But the admissions made in the course of the argument, and the authorities cited, place the defendants in a difficulty ; for, it is conceded, — and indeed the concession could not have been avoided, — that, if, under the same circumstances, the plaintiff had sustained the loss of a limb, or any other personal injury, he alone could have sued. It is said that that is because the master could not maintain an action in respect of the personal suffering of the servant, though he might in respect of the loss of service. But, upon what principle does the action lie at the suit of the servant for his personal suffering ? Not by reason of any contract between him and the com- pany, but by reason of a duty implied by law to carry him safel}'. If, under the circumstances of this case, the plaintiff could have recovered in respect of a personal injury sustained bv him, there is no reason why he should not also recover in respect of the loss of his luo-fafe. The breach of duty is the same in tlie one case as in the otlier. The action therefore will lie, if the cause of action be pro[)erly alleged in the declaration. But it has been contended, on the part of the defendants, that the form of tiie declaration in this case so ties up the i)laintiff, and restricts the liability of the defendants, that this action cannot be main- tained ; because the declaration alleges that the defendants received the plaintiff and his luggage to be carried for reward to them in that behalf, — - which means, according to the authorities, to be paid by the plaintiff. To that argument, there are two answers. In llie first place, J Thc! pleadiiififs, arguments of counsel, and the concurring opinion of Williams, J are omitted. — Ed. 90 CARROLL V. STATEN ISLAND RAILROAD CO. there is no denial on the record ; for, a traverse modo et forma sub- stantially denies merely the allegation traversed ; and therefore the traverse of the receipt of the plaintiff and his luggage, to be carried for hire and reward, by the defendants, did not put in issue b}' whom the reward was to be paid. And, further, if that were put in issue, the words of the allegation must be construed with reference to the rest of the declaration. If payment bv the plaintiff be necessary, the general allegation that the defendants undertook to carry the plaintiff and his luggage for hire and reward, will be understood to mean, to be paid by the plaintiff. But, if the liabihty of the defendants arises, not from the contract, but from a duty, it is perfectly unimportant by whom the reward is to be paid ; for, the duty would equally arise, though the pa3'ment was by a stranger. I therefore think, that, upon the proper construction of the declaration, the objection does not arise. It be- comes unnecessary to advert to the point suggested by Mr. Willes, that the payment by the master on the servant's behalf was a payment b}' the servant sufficient to sustain the averment, even construing it as it was contended on the part of the defendants it ought to be construed. The rule must be absolute. CARROLL V. STATEN ISLAND RAILROAD CO. Court of Appeals, New York 1874. [58 N. Y. 126.] Andrews, J. This action is brought to recover damages for inju- ries sustained by the plaintiff in consequence of the explosion of the boiler of the ferry-boat Westfield, plying between the city of New York and Staten Island, while lying at the dock in the city of New York, on Sunday, July 30, 1871. The Westfield was engaged on that day in making regular trips between New York and Staten Island, for the carriage of passengers ; and the running of ferry-boats on Sunday' was a part of the regular business of the defendant. -'-jnji;J«(uno'nD a&i 'iqLuij . . The plaintiff went upon the Westfield shortly after one o'clock of the day mentioned, with the design of going to Staten Island, for the pur- pose, as the referee finds, of innocent recreation and the enjoyment of the sea air. He paid the usual fare on entering the boat, and soon after, and within a few minutes of the time when the boat was to leave the dock, the boiler exploded. Several of the passengers were killed, and man}' others, including the plaintiff, were injured, f' The point was taken on the trial, and is urged on this appeal, that the plaintiff cannot maintain this action, for the reason that he was, at the time of the injur}-, engaged in an unlawful act, viz., travelling on Suuday, in violation of the statute which prohibits travel on that day unless in certain excepted cases, and under a contract with the defend- ant which was illegal, in that it related to the unlawful act of the CARROLL V. STATEN ISLAND RAILROAD CO, 91 plaintiff, and was entered into by him as a means of enabling him to transgress the law. Such a contract,' it is said, the law will not enforce, and the defendant incurred no obligation, and owed no duty by reason of it to the plaintiff, upon which he can found a right of action. The objec- tion to the recovery here stated assumes and admits that the explosion of the boiler was attributable to the negligence of the defendant; and it also assumes that the plaintiff's right of action has its essential basis in the contract between the parties, created by the payment of fare on the one side, and the undertaking to carry on the other. It must be admitted, I think, that the plaintiff was travelling in violation of the stat- ute. He left the hotel where he was stopping, for the purpose of going to Staten Island, and in the course of the journey took passage in the "Westfield. He was not going in a case of necessity or charity, or for any purpose within the exceptions of the statute. He was travelling within the general meaning of the word, and certainly within its meaning as IS used in the Sunday law. The plaintiff, therefore, was violating the law. But the defendant had a right to carr}- him, and to enforce the payment of the usual compensation, if payment was refused, notwith- standing the illegal purpose of the plaintiff in going, if it was unknown to the defendant. This, I think, results necessarily from the character of the defendant's business. It exercises a franchise granted b}' the State to maintain and operate a ferry between New York and Staten Island. It is not prohibited by its charter from running it on Sunda}-. Indeed, the public convenience requires that ferries between cities, or places densely populated, separated by rivers or narrow water channels, should be run on Sunday. The statute authorizes travel on that day in cases of necessit}' and charit}', and in going to and from church, and for other purposes ; and for these permitted purposes large numbers of people travel on Sunday. Contracts to carry persons who are permitted to travel must be valid. The proprietors of ferries cannot know the purpose of those who seek convevance on Sunday, and it would be im- practicable to require that they should ascertain it before receiving persons as passengers. The defendant, therefore, is entitled to demand compensation for the carriage of passengers on Sundaj-, although, in fact, they ma}- be travelling illegally. There is no evidence that the defendant, when it received the plaintiff as a passenger, knew that he was travelling in violation of law. The contract between the parties was not in a broad or general sense illegal or void. It is one the defendant had a right to make and to enforce against the plaintiff. Can the defendant, under such circum- stances, having entered into a contract whicli lie might lawfuU}' make, escape from liability for a negligent performance on the ground that the motive and purpose of the other part}' in making it were unlawful? May he take the benefit of the contract and be exempted from its re- spon.sibilities? Does this case constitute an exception to the rule that the obligation of a contract must be mutual ; and may one party resist performance and at the same time exact it from the other? 92 CAREOLL V. STATEN ISLAND RAILROAD CO. But we deem it unnecessaiy to decide the question, which was argued with great abiUty by counsel, touching the liability of the defendant in the action, treating it as founded upon the contract between the parties. The gravamen of the action is, the breach of the dut}- imposed by law upon the carrier of passengers, to carry safel}', so far as human skill and foresight can go, the persons it undertakes to carrw This duty exists independentl}^ of contract, and although there is no contract in a legal sense between the parties. Whether there is a contract to carr}', or the service undertaken is gratuitous, an action on the case lies against the carrier for a negligent injurj- to a passenger. Tlie law raises the dut\' out of regard for human life, and for the purpose of securing the utmost vigilance b^- carriers in protecting those who have committed themselves to their hands. In Bretherton r. Wood (3 Brod. & Bing. 5+), which was an action brought against ten defendants, as proprietors of a coach, for injuries sustained by the plaintiff, a pas- senger, in consequence of negligent driving, the jur}- found a verdict against eight of the defendants, and in favor of the other two. On error, the judgment was affirmed, and Dallas, C. J., said : " If it were true that the present action is founded on contract, so that to support it a contract must have been proved, the objection would deserve consideration. But we are of opinion that the action is not so founded, and that on the trial it could not have been necessary to show that there was an}' contract ; and, therefore, that the objection fails. The action is on the case, against a common carrier, upon whom a duty is imposed b}' the custom of the realm, or in other words, by the com- mon law, to convey and carry their goods and passengers safely and securely, so that b}- their negligence or fault no injury happens. A breach of this duty is a breach of the law, and for this breach an action lies, founded an the common law, which action wants not the aid of a contract to support it." And in Philadelphia and Reading R. R. Co. V. Derby (14 How. [U. S.] 483) Grier, J., speaking of the duty of a common carrier, says : " This duty does not result alone from the con- sideration paid for the service. It is imposed by law even when the service is gratuitous." (See, also, Allen v. Sewall, 2 Wend. 338 ; Bank of Orange -v. Brown, 3 id. 158 ; Steamboat v. King, 16 How. [U. S.] 474 ; Nolton V. Western R. R., 15 N. Y. 444 ; Gillenwater v. Mad. and In. R. R. Co., 5 Ind. 339 ; Farwell r. Boston R. R., 4 Met. 49 ; Redfield on Railways, 210 ; Pierce Am. R. R. Law, 477.) The hability of the carrier is the same, whether the action is brought upon contract or upon the duty, and the evidence requisite to sustain the action in either form is substantially the same, and when there is an actual contract to carry, it is properly said that the liability in an action founded upon the public duty is coextensive with the liability on the contract. This case, therefore, is not within the principle of many of the cases cited, which forbid a recover}' upon a contract made in respect to a matter prohibited by law, or for a cause of action which requires the CARKOLL V. STATEX ISLAND RAILROAD CO. 93 proof of an illegal contract to support it. (Northrup /•. Foot, U Wend. 2iS ; Watts r.VanNess, 1 Hill, 76 ; Smith r. Wilcox, 24 N. Y 353.) The relation of carrier and passenger existed between the parties. The plaintiff went upon the Westfield to be carried to Staten Island, and the defendant received him on the boat for that purpose. That this relation was entered into, the payment and receipt of fare is unequivo- cal evidence. It is a distinct question, whether the law will enforce the general obligations of the carrier to the same extent, in this case, as though the injury to the plaintiff had happened on some day other than Sunday.^ 1 The Court decided that recoTery could be liad, notwithstanding the plaintiff wag travelling on Sunday. — Ed. 94 BULKLEY V. NAUMKEAG STEAM COTTON CO. CHAPTEK III. BEGINNING OF THE UNDEllTlklNG. BULKLEY V. NAUMKEAG STEAM COTTON CO. Supreme Court op the United States, 1860. "-'J [24 Howard, 386.] Nelson, J. This is an appeal from a decree of the Circuit Court of the United States, sitting in admiralty, for the district of Massachusetts. The libel in the court below was against the barque Edwin, to recover damages for the non-deliver}' of a portion of a shipment of cotton from the port of Mobile to Boston. The facts upon which the question in this case depends are found in the record as agreed upon by the proctors, both in the District and Circuit Courts, and upon which both courts de- creed for the libellant. From this agreed state of facts, it appears that the master of the ves- sel, which was then lying at the port of Mobile, agreed to carry for the libellant 707 bales of cotton from that port to Boston, for certain freight mentioned in the bills of lading. The condition of the bay of Mobile, which is somewhat peculiar, be- comes material to a proper understanding of the question in this case. Vessels of a large size, and drawing over a given depth of water, can- not pass the bar in the bay, which is situate a considerable distance below the city. Their cargo is brought to them in lighters, from the city over the bar, and then laden on board the vessels. Vessels which, from their light draft, can pass the bar in ballast, go up to the city and take on board as much of their cargo as is practicable, and, at the same time, allow them to repass it on their return, and are then towed below the bar, and the residue of their load is brought down by lighters and put on board. In eitlier case, when the vessel is ready to receive cargo below the bar, the master gives notice of the fact to the consignor or broker, through whom the freight is engaged, and provides, at the expense of the ship, a lighter for the conveyance of the goods. The lighterman applies to the consignor or broker, and takes an order for the cargo to be deliv- ered, receives it, and gives his own receipt for the same. On delivering the cargo on board the vessel below the bar, he takes a receipt from the mate or proper officer in charge. The usual bills of lading are subsequently signed by the master and delivered. BULKLEY V. NAUMKEAG STEAM COTTON CO. 95 In the present ease, the barque Edwin received the principal part of her cargo at the city, and was then towed down below the bar to receive the residue. The master employed the steamer M. Streck for this pur- pose, and 100 bales were laden on board of her at the city to be taken down to complete her load, and for which the master of the lighter' gave a receipt ; after she had passed the bar and had arrived at the side of the barque, but before any part of the 100 bales was taken out, her boiler exploded, in consequence of which the 100 bales were' thrown into the water and the lighter sunk. Fourteen of the bales were picked up by the crew of the vessel, and brought to Boston with the 607 bales on board. Eighty bales were also picked up by other persons, wet and damaged, and were surveyed and sold ; four remain in the hands of the ship broker, at Mobile, for account of whom it may concern ; two were lost. " The master of the barque signed bills of lading, including the 100 bales, being advised that he was bound to do so, and that if he refused, his vessel would be arrested and detained. On her arrival at Boston, the master delivered the 607 bales to the consignees, and tendered the fourteen, which were refused. A question has been made on the argument, whether or not the libel- lant could recover upon the undertaking in the bills of lading, they hav- ing been signed under the circumstances stated, or must resort to the original contract of affreightment between the master and the shipper.; The articles in the libel place the right to damages upon both grounds., The view the court has taken of the case supersedes the necessity qfj noticing this distinction^^j^ y^f Irjlilsii ovjyi lioirlw ,Ei\svib iod^-ud hL>iJ)iujii ,, The court is of opinion that the vessel was bound for the safe ship-, ment of the whole of the 707 bales of cotton, the quantity contracted to, be carried, from the time of their delivery by the shipper at the city pt; Mobile, and acceptance by the master, and that the delivery of the hun-, dred bales to the lighterman was a delivery to the master, and the trans- portation by the lighter to the vessel the commencement of the voyage in execution of the contract, the same, in judgment of law, as if the, hundred bales had been placed on board of the vessel at the city, instead of the lighter. The lighter was simply a substitute for the barque for this portion of the service. The contract of affreightment of the cotton was a contract for its transportation from tlie city of Mobile to Boston, covering a voyage between these termini, and when delivered by the shipper? and accepted by the master at the place of shipment, the rights and obligations of both parties became fixed — the one, entitled to all, the privileges secured to the owner of the cargo for its safe transporta- tion and delivery ; the other, the right to his freight on the conii)letion of the voyage, as recognized by priuciijk's and ,H^,ages of the maritinie law. _ ^ .:'■":,■ ,!>■)■ n I The true meaning of the contract before us cannot be mistaken, and is in perfect harmony with the acts of tlie master in furtherance of its execution. 96 THE R. G. WINSLOW. Both parties understood that the cotton was to be delivered to the carrier for shipment at the wharf in tlie city, and to be transported thence to the port of discharge. After the delivery and acceptance at the place of shipment, the shipper had no longer any control over the property, except as subject to the stipulated freight. The contract as thus explained being made by the master in the course of the usual employment of the vessel, and in respect to which he is the general agent of the owner, it would seem to follow, upon the settled principles of admiralty law, which binds the vessel to the cargo, and the cargo to the vessel, for the performance of the under- taking, that the ship in the present case is liable for the loss of the hundred bales, the same as any other portion of the cargo.^ THE R. G. WINSLOW. District Court of the United States, District of Wisconsin, 1860. [4 Biss. 13.] This was a libel filed by Daniel Newhall against the bark R. G. Wins- low for the loss of seven hundred bushels of wheat while being discharged from a warehouse into the vessel. The loading commenced about twelve o'clock on the morning of the third of October, 1859, the wheat being weighed by the shipper, in the cupola of the warehouse, in one hundred bushel drafts, which were tallied by the first mate, there pres- ent. It was then passed from the warehouse to the vessel through a pipe of heavy boiler wrought iron. The pipe was about sixteen feet Ions:, and ten inches in diameter. The warehouseman fastened one end of the pipe to the warehouse, and placed the other on the deck of the vessel, to be regulated, watched and shifted by the second mate. After the delivery of about five thousand bushels of the wheat the vessel careened, and the pipe parted. In consequence of this accident, about seven hundred bushels of wheat went, partly on the deck of the vessel, and partly on the dock, and were lost in the river. Both the master and the second mate were asleep below at the time of the accident. Miller, J. If the mate who had charge of the pipe had been vigi- lant in watching the discharge of wheat from the pipe, but a small quantity of one draft would have been lost, for by a word from him to the persons in the cupola, the flow of wheat could have been instantly shut off ; and it was his duty to give the order. I do not think it material to inquire how much the vessel careened, or whether the pipe broke or parted at the joint, or whether the careen- ing of the vessel caused the parting of the pipe, or whether the parting 1 The remainder of the opinion, discussing another point, is omitted. See The Keokuk, 9 Wall. 517. — Ed. THE R. G. WINSLOW. 97 of the pipe was at a place over the deck of the vessel or over the dock. The mate on board, who had charge of the pipe, aud of the discharge of the wheat from the pipe into the hold of the vessel, neglected his duty, and allowed seven drafts of one hundred bushels of wheat to be lost. In respect to the loading and carriage of the goods, the master is chargeable with the most exact diligence. His responsibility with respect" to them begins where that of the wharfinger ends, and when they are delivered to some accredited person on board the ship. If be receives them at the quay, or beach, or sends his boat for them, his responsibility attaches from the moment of the receipt. Not only is the master responsible with respect to the safety and security of the goods, but the vessel is also hable. It stands as the shipper's security, and is, by the maritime law, hypothecated to him for his indemnity. The duties of the master as carrier extend to all that relates to the loading, transportation, and delivery of the goods. And for the faitliful per- formance of those duties tbe ship stands pledged, as well as the master and the owners personally. And the manner of taking goods on board, and the commencement of the master's duty in this respect, depends on the custom of the particular place. More or less is to be done by the wharfingers or lightermen, according to the usage. The master of the vessel knew that the wheat was to be delivered on board through the pipe ; and he also knew the manner of weighing and discharging the grain from the hopper, when he made the contract ; and with knowledge he had the first mate placed in the cupola, to tally the drafts, and the second mate stationed on deck to watch the discharge of the wheat from the pipe into the hold of the vessel, and to keep the vessel trimmed ; and the work had commenced before he turned in. It is not the busi- ness of the officer in charge of the receiving of wheat from a warehouse through a pipe, to permit any person not belonging to the vessel, nor underVis command, on board, to shift the pipe, or to trim the vessel. This is as much the business of the vessel, as weigliing the wheat is of the warehouseman. The parties proceeded to put the wheat on board, according to the usual manner of loading vessels with grain from warehouses. The pipe is attached to the warehouse, and it is used jointly by the warehouse and the vessel. The vessel controls the discharge of the wheat from the warehouse through the pipe. The order to discharge or to stop, is given from the vessel ; and the wheat is weighed by the warehouseman, and the drafts are tallied by the first mate before dis- charged from the hopper. Using the pipe in loading the vessel was necessary, in the performance of the contract made by the master with the shipper, for which the owners were to receive compensation in the freight earned bv the vessel. Unless the wheat was transported, • freight would not'be earned ; and it could not be transported unless a pipe was used in its delivery on board. The master might have sup- plied a pipe ; and with tlie consent of the owner of the warehouse, he might have attached it to the warehouse and used it. But there can be . 1 98 MERKITT V. OLD COLONY AND NEWPORT RAILWAY. no difference in law, whether he used the pipe of the warehouse or nis own pipe. He had the sole control of the warehouse pipe, and made it the pipe of the \q?,s,g\ pro hac vice. I am satisfied that the duty of the warehouseman ended with the tallj' of the drafts by the mate, and the discliarge of the wheat from the warehouse into the outside pipe, and tliat tlie duty of the master then commenced. At tliat moment tlie delivery of the wheat was complete, and the lial»ility of the vessel attaclied. The shipper had then fully parted with the possession ; and having no longer any control, or right of control, over the wheat, he was in no degree responsible for its actual delivery on board. Upon the same principle it was ruled, in the case of the Bark P2dwin, 23 Law Re- ,porter, 198, that the vessel was liable for the non-delivery of bales of 'X^otton according to contract, which were lost before reaching the vessel, ,\n consequence of the explosion of the boiler of a lighter, in which the cotton was being carried from the cotton press to the vessel^ in the possession of the master of the vessel. . ;; ; ' This ca^e is different from a contract merely executofy^ where th6re has been no delivery of the goods to the master, nor change of posses- sion, nor effort to deliver. When there is no delivfery of the goods, the contract of the master for their transportation creates Uo lien. Buck- ingham V. The Schooner Freeman, 18 Howard, 182. There the bill of lading of goods not shipped was designed as an instrument of fraud. And in Vandewater ?;. Mills, 19 Howard, 82, wheite there !Was jioC»n- tract for the future employment of the vessel. And in Hannah v. The Schooner Carrington, 2 Law Monthh', 456, where the ship was withdrawn from the trade, and refused further to comply with a con- tract of affreightment. And in The Joseph Grant, it was decided that the master has no authorit}' as such to sign a bill of lading in blank, and that the libellant as assignee of the bill of lading, filled up after the vessel sailed, acquired no lien on the vessel. The cargo on board at the time corresponded with the bill of lading as filled up, but it was de- livered to a different consignee, according to the bill of lading correctly given b3rthe master before the vesselsailedjf kuBrj sAi oj :a. The cases here referred to are wanting in the essential particular of delivery to the vessel, to make them precedents governing the case under consideration. The wheat lost by the negligence of the mate was delivered to the vessel as a portion of the twent}' thousand bushels contracted to be received on board and transported to Buffalo ; and the libellant should have a decree for its value. ^/^kERRITT V. OLD COLONY AND'l^liwPORT RAILWAY. Supreme Judicial Court of Massachusetts, 1865. [11 Allen 80.] Tort against a railroad corporation to recover for damages done to a caloric engine sent by the plaintiff to the depot of the defendants MERRITT V. OLD COLONY ASD NEWPOKT KAILW.IY. 99 iu South Boston lor tiansportatioa to South Abiugtou, «hilc being . '° t' thTtHannX- supetior court, befove 3/„.i"o r ■ «• Th^. mndp of which had been placed around the engme from slipping. Ihe mode of placinc. the engine upon the cars by means of a derrick was an ai- ^ngement of the defendants, and they provided the derrick foi '"^Thre^etce on the part of the defendants, as to the superintend- ence and control of the operation of removing tlie engine from the sled of the truckman to the cars, contlicted with that of the plaintiff; and tMs was submitted to the jury. It became necessary to accertam at what point, as respects the rights of the bailor, the truckman responsibdity for the safe transportation of the engine ceased, and 1 The effect of the defendants' evidence and the .ustruct.ous of the court are omitted. — Ed. 100 MERRIAM V. HARTFORD AND NEW-HAVEN RAILROAD. when the same was cast upon the defendants. The court properly ruled that it was when the engine was delivered to and accepted by them for the purpose of transportation, and that in order to constitute such delivery and acceptance it must appear that the defendants had through their agent taken and assumed the charge and custody of the engine for the purpose of transportation. Story on Bailm. § 453. Of course in deciding the question when the custody does thus attach, much will depend upon the manner in which they receive goods for transportation, the provision they make for raising heavy articles into their cars, and the active participation of the agent of the company in reference to the same. As to warehousemen, it has been held that as soon as the goods arrive and the crane of the warehouse is applied to them to raise them into the warehouse, the liability of the warehouseman commences, and it is no defence that they are afterwards injured by falling into the street from the breaking of the tackle. Story on Bailm. § 445. In the opinion of the court, the instructions were sufficiently full, and the further instructions asked were properly refused.^ Exceptions overruled. MERRIAM V. HARTFORD AND NEW-HAVEN RAILROAD. Supreme Court of Errors, Connecticut, 1850. [20 Conn. 354.] Storrs, J.'^ The plaintiflf claimed to have proved, on the trial, that the property, to recover the value of which this action was brought, was delivered by him, to be transported by the defendants, as common carriers, from the city of New York to Meriden, on a dock in said city, which was the private dock of the defendants, and in their exclusive use, for the purpose of receiving property to be transported by them ; and that it was delivered there, in the usual and accustomed manner in which the defendants received property for transportation ; and the court charged the jury, that such delivery at said dock, was a good delivery to the defendants, to render them liable for the loss of the property, although neither they nor their agents were otherwise notified of such delivery. The defendants insist, that they were not chargeable for it, unless they had express or actual notice of such delivery ; and that the jury should have been so instructed. A contract with a common carrier for the transportation of property, being one of bailment, it is necessary, in order to charge him for its loss, that it be delivered to and accepted by him for that purpose. But such acceptance may be either actual or constructive. The general 1 See Thomas v. Day, 4 Esp. 262. — Ed. 2 Onlv so much of the opiuion as discusses the question of delivery is given. — Ed. MERRIA.M V. HARTFORD AND NEW-HAVEN RAILROAD. 101 rule is, that it must be delivered into the liands of tlie carrier himself, or of his servant, or some person authorized by him to receive it ; and if it is mereh- deposited in the 3-ard of an inn, or upon a wharf to which the carrier resorts, or is placed in the carrier's cart, vessel, or carriage, without the knowledge and acceptance of the carrier, his ser- vants or agents, there would be no bailment or deliver}- of the property, and he, consequenth', could not be made responsible for its loss. Ad- dison on Cont. 809. But this rule is subject to any conventional ar- rangement between the parties in regard to the mode of delivery, and prevails only where there is no such arrangement. It is competent for them to make such stipulations on the subject as they see fit ; and when made, they, and not the general law, are to govern. If there- fore, they agree that the property may be deposited for transportation at any particular place, and without any express notice to the carrier, such deposit merely would be a sufficient delivery. So if, in this case, the defendants had not agreed to dispense with express notice of the delivery of the property on their dock, actual notice thereof to them would have been necessary ; but if there was such an agreement, the deposit of it there, merely, would amount to constructive notice to the defendants, and constitute an acceptance of it by them. And we have no doubt, that the proof by the plaintiff of a constant and habitual practice and usage of the defendants to receive property at their dock for transportation, in the manner in which it was deposited by the plaintiff, and without any special notice of such deposit, was competent, and in this case, sufficient to show a public offer, by the defendants, to receive property for that purpose, in that mode ; and that the de- livery of it there accordinglj-, by the plaintiff, in pursuance of such offer, should be deemed a compliance with it on his part ; and so to constitute an agreement between the parties, by the terms of which the property, if, so deposited, should be considered as delivered to the de- fendants without any further notice. Such practice and usage were tantamount to an open declaration, a public advertisement by the de- fendants, that such deliver}' should, of itself, be deemed an acceptance of it by them, for the purpose of transportation ; and to permit them to set up against those who had been thereby induced to omit it, the formality of an express notice, which had thus been waived, would be sanctioning the greatest injustice, and the most palpable fraud. The present case is precisely analogous to that of the deposit of a letter for transportation in the letter-box of a post office, or foreign packet vessel, and to that of a deposit of articles for carriage in the public box provided for that purpose, in one of our express offices; where it would surely not be claimed, that such a delivery would not be complete, without actual notice thereof to the head of these establishments or their agents. The only authorities cited by the defendants, to show that an express notice to them was necessary in this case, arc Buckman v. Levi, 3 Campb. 414, and Packard v. Getman, G Cowen, 757. These cases are 102 GEOEGIA SOUTHERN RAILWAY V. MARCHMAN. distinguishable from the present, in this respect, that there was not, in either of them, a claim of an}' particular habit or usage of the defendant, which should vary or modify the general principles of law in regard to the mode of delivering the property. They were, therefore, decided • merely on those general principles, unaffected by any special agree- ment between the parties on that subject, inferable from such usage. But in several of the cases cited, it was held, that where the carrier had been in the habit of receiving property for transportation in par- ticular mode, a delivery to him in that mode, was sufficient. biiti ; if) iioiifii'ioqznn-ii -idt bsjiiotjob oO vc .isirGEORGIA iSOUTHERN RAILWAY v. MARCHMAN. "'V'' ' ' '''Supreme Court, Georgia, 1904. tnoni 01 ^09-i9i]J er- t^^i Ga. 235.] o;CoBB, Ji^'>.'i'^'" . 2, 3. Complaint is made that the court erred in not granting a nonsuit. The evidence authorized the jur}- to find that while at the mile-post referred to in the petition there was no depot, station, platform, or agent, the company was accustomed to receive freight on a spur-track at that point ; that, by an agreement made between the plaintiff and the master of trains of the defenda::t company, cars were to be placed on the spur-track at a given time for the purpose of receiving and transporting the seed ; that at the time fixed plaintiff carried to the spur-track a portion of the seed to be transported; that, finding no cars there, he notified the trainmaster that he had transported a portion of the seed and was ready to carry the balance, and asked when the cars would be placed there; that he was informed that the cars would be placed there the next day, and instructed to continue to carry the seed to the place agreed upon ; that, in compli- ance with this direction, the plaintiff continued to haul the seed to this place, and, no cars being there into which they could be loaded, the seed were placed upon the ground at the most convenient and suitable place that the locality afforded for the purpose for which they had been carried to that point ; that there were no cars sent there for several days, and before any were sent and the seed loaded into them rain fell upon the seed and damaged them. If the master of trains was author- ized to make this contract in behalf of the company, a finding in favor of the plaintiff for whatever damage he sustained as a result of the rain upon the seed was authorized. The master of trains testified that he had no authority to make a contract of affreightment, but that he did have authority to make contracts for the placing of cars along the line for the reception of freight. He therefore had a right to make the contract which the plaintiff relies upon ; and the question arises, 1 Only so much of the opinion as discusses the question of delivery to the carrier is given. — Ed. 4 GROSVENOR V. NEW YORK CENTRAL RAILROAD. 103 whether the damage resulting to the plaintiff from the seed becoming wet between the time the ears ought to have been placed at the point agreed on and the time they were actually placed there was the result of a breach of the contract made with the plaintiff. While the master of trains did not have authority to make a contract of affreightment, he did have authority to make an agreement to receive freight on board of cars at different points on the line of railroad, preliminary to a con- tract of carriage being made by some other agent of the railroad com- pany," and this conferred upon him authority to receive freight for thei purpose of transportation, although he had no authority to make a con- tract of transportation itself. When he agreed with the plaintiff to place cars upon the spur-track at the mile-post referred to, he agreed, in behalf of the company, to receive the freight at that point on board of cars. When the plaintiff came to this place with the cottonseed,! and notified the master of trains that no cars were there, and was ' instructed by him to continue to haul the seed, this was in effect an agreement to receive the seed alongside the track to await cars that' would be sent there to receive them. A railroad company is not gentir eraltyl bound to receive freight except at its stations; but it may byi' custom bind itself to receive it at other points, and certainly it may doo this by express contract. See Fleming ' 'tHoq'irjq tnii -u/t yJ-fujo-jcj offt ;i'>;k!oooB •/Il/iijJoa 8aw 99xolqmo :dJ ricsqqfi '()ni:y '^r: Jib ;f97 ,389ni8fid 'Jo ■ — lo sg'u: -ili ■, cli0819q 19lli0.7cf 'ijfib €.;;.: ,J ;jjr;.;;..,ol'/Oq Ollj ilOuJin::' :.i:Vr {iinq Court of Appeals, New York, 1868. 9xii o^ l)933lrn(JiJ8 gd oJ ''^'^^''WQA>\/-^^r"'3i\' " '^^'^'•^^ ' -hifo'tsb ^if) 'to nnmo^f;:?:^;;;' ' ':■-:!■./ .:.i;oH'Mi'f'' ,:j. Miller, 'Ji' I flTO of the opinion that thedourt erred in refusing, tfi>.;; nonsuit the plaintiff upon the trial. To render a party liable as a- common carrier, it must be established that the property was actually delivered to the common carrier or to some person duly authorized to act on his V)ehalf. The responsibility of the carrier does not commence until the delivery is completed. Angell on Carriers, 4; 129; Story on Bailments, § 532. It is not enough that the property is delivered 104 GUOSVENOR V. NEW YORK CENTRAL RAILROAD. upon the premises, unless the delivery is accompanied b}- notice to the proper person. Packard v. Getman, 6 Cow. 757 ; Trevor v. U. & S. R. R. Co., 7 Hill, 47 ; Blaneard v. Isaacs, 3 Barb. 388 ; 2 Kent Com. 604 ; 1 Pars, on Con. 654. The liability of the carrier attaches only from the time of the acceptance of the goods by him. Story on Bail- ments, § 533; 6 Cow., supra. To complete the delivery of the prop- erty' within the rules laid down in the authorities, I think it is also essential that the property should be placed in such a position that it ma}' be taken care of b}' the agent or person having charge of the business, and under his immediate control. It must be accepted and received by the agent. It appears in the case at bar that the cutter of the plaintiff was placed upon the platform of the defendant's freight- house, by a servant of the plaintiff, the freight having been previoush' paid, to be transported to Buffalo. At the time when it was thus left, a baggageman in the defendant's employment, who was then engaged in sweeping out the depot, was notified that there was some freight to go to Buffalo in the noon train. The servant of the plaintiff testifies that he had seen this person receive and put freight on the cars, and at this time he apparently' had charge of the depot, although the proof on the part of the defendant shows that another employee was the real freight agent, and the person with whom the contract was made for the carriage of the property, and that the baggageman had no authorit}- to receive it. Upon this state of facts, I am inclined to think that the plaintiff had established sufficient prima facie to submit to the jury the question whether the baggageman was authorized to receive the property, and whether the notice to him was of itself sufficient. Per- sons dealing with railroad corporations, and parties engaged in the transportation of freight, have a right to consider that those usually employed in the business of receiving and forwarding it, have ample authority to deal with them. It is enough to establish a delivery, in the first instance, to prove that a person thus acting received and accepted the property for the purpose of transportation, and even although it subsequentl}' appears that another employee was actually the agent having charge of this department of business, yet the com- pan}' who sanction the performance of this duty by other persons in their employment, and thus hold out to the world that they are author- ized agents, are not at libert}' to relieve themselves from responsibilit\', by repudiating their acts. So far then as this branch of the case is concerned, it was at least a question of fact, to be submitted to the jury under proper instructions, whether the baggageman of the defend- ant, to whom it is claimed b}' the plaintiff the cutter was delivered, was the agent of the defendant, duh' authorized to receive the same, and whether notice of its delivery was given to him as such agent. But, whether he was such agent, or the duty of receiving freight devolved upon another person, the defendant could not be held liable under any circumstances, without an actual and complete delivery of the property into the possession of the corporation, and under its control. This, I WATTS V. BOSTON AND LOAVELL RAILROAD. 105 think, was not done. The undisputed testimony shows, thiit the cut- ter was placed upon the platform, and that within two or three hours afterward, it was carried away and broken to pieces bj* a passing train of cars. The fact that it was thus carried away, evinces, that it was carelessly exposed by the plaintiff's servant; that the destruction oi the cutter was occasioned b\' his negligence, and that the deliver}' was not as perfect and complete as it should have been. The accident would not have happened had the cutter been placed beyond the reach of passing trains. It was not enough that the agent was notified, to make out a valid acceptance and delivery. The place of deliver}' was important, and it was ecjually essential that due care should be exercised. Suppose the servant had left the cutter on the track of the railroad, and notified the agent, would the defendant have been responsible? Clearly not, for the apparent reason that there was no delivery upon the premises, no surrender of the property into the possession of the agent. Until it was actually delivered, the agent was under no obligation to take charge of the propert\% even if noti- fied. It is apparent that the plaintiff was in fault in not delivering the propertj' to the defendant, and in leaving it in an exposed condition, which caused its destruction ; and, having failed to establish this mate- rial part of his case, should have been nonsuited. As a new trial must be granted for the error stated, it is not important to examine the other questions raised and discussed. Judgment reversed, and new trial granted, with costs to abide the event.^ WATTS V. BOSTON AND LOWELL RAILROAD. Supreme Judicial Court of Massachusetts, 1871. [lOG Mass. 466.] Contract against the Boston & Lowell and Nashua & Lowell Rail- road Corporations, as common eaniers, to recover tiie value of 900 corn-planters, delivered to them by the plaintiff at Amherst in New Hampshire for transportation to Boston, and destroyed by fire in their freight depot at Amherst before the transportation was l)egiiii. Trial in the Superior Court, before Heed, J., who allowed the following bill of exceptions : "The defendants contended, and there was evidence tending to show, that the corn-planters were part of a lot of 1000, which the plaintiff was in the act of delivering, and that they were detained at the depot to await the arrival of the remainder of the lot, for the plain- tiff's convenience, and therefore that the defendauts were only subject to the lial)ility of warehousemen and not of common carriers. Tlie plaintiff's evidence tended to show authority and direction from the 1 See Lenuon v. K. R., 127 la. 4.32. — Ei>. 106 WATTS V. BOSTON AND LOWELL RAILROAD. plaintiff to forward the corn-planters as delivered. The judge instructed the jur}' (among other instructions not objected to) that, if the defend- ants had either such authorit}- or direction to forward the corn-planters as delivered, they were liable." The jury found for the plaintiff, and the defendants alleged exceptions to this instruction. Chapman, C. J. The freight depots of railroad corporations are commonly used for a double purpose. One is, for keeping goods that are brought there for the purpose of immediate transportation, and also goods transported to them on the railroad for immediate delivery to the consignee. The other is, for warehouses for the storage of goods brought there for carriage at some future time, and also of goods brought to them on the railroad, but to be delivered to the consignee at some future time, after the duties of the company as carriers have ceased. The question arising in this case relates to their liability in respect to goods received at the depot to be carried. In respect to such goods, their liability as carriers commences as soon as the duty of immedi- ate transportation arises, and not while they are delayed for the con- venience of the owner. Barron v. Eldredge, 100 Mass. 455. In this case, the goods to be transported were 900 corn-planters. The de- fendants offered evidence tending to show that they were part of a lot of 1000, which the plaintiff was in the act of delivering ; that they were detained at the depot to await the arrival of the remainder of the lot, for the plaintiff's convenience ; that therefore the defendants were only subject to the liability of warehousemen ; and that their duties as common carriers had not commenced, when the goods were consumed by fire. On the other hand, the plaintiff's evidence tended to show authority and direction from the plaintiff to forward the corn-planters as delivered. Upon proof of this, they would be liable as carriers. But the court ruled that if the defendants had either such authority or direction to forward them, as delivered, the}' would be liable as carriers ; that is, they would be liable as carriers, if they had authority to convey them in this manner, though they were not directed to carry them thus and were under no obligation to do so. This was a stronger position against the defendants than the plaintiff had contended for. There are various methods of transacting this species of business. Many articles are transported by car-loads, which are delivered at the depot on different days and in small quantities, and are kept there till one or more car-loads are collected. For example, barrels of flour may be sent in small parcels day by day, the understanding being that they will be kept in store until enough are collected to load one or more cars, because convenience and econom}' do not allow the company to transport smaller quantities as they arrive. At the same time, the owner may give them authority to transport the barrels in as small parcels and as fre- quently as the\' please, while he also consents that they may keep them in store until he furnishes a sufficient quantity to enable them to do the transportation in the usual and economical wa3^ It cannot be said, in SHAW V. NORTHERN PACIFIC RAILROAD. 107 Buch a case, that the duty of transportation arises upon the delivery of a single wagon-load. So in regard to these corn-planters, if the con- venience of doing the business required the defendants to carry the whole lot together, instead of dividing the business into different jobs, to be done at different times, and this was known to the plaintiff, and he delivered the separate parcels at the depot to be stored till tlie whole lot should arrive, the goods would be stored in warehouse, although the plaintiff should have been willing that they should be carried in many small parcels, and should have given the defendants authority to carry them in that manner. It could not be said that the duty of carriage had commenced, until the whole had arrived. Yet the ruling of the court would make them liable merely because they had authority to carry them, though they were not instructed to do so and had not agreed to do so. It lays upon them the liability of carriers, while they have as yet assumed only the duties of warehousemen. The ruling should have been, that the defendants would be liable if they had authority and direc- tion, and not if they had either authority or direction to forward the corn-planters as delivered. A majority of the court are of opinion that the ruling was erroneous. Exceptions sustained} SHAW V. NORTHEKN PACIFIC RAILROAD. Supreme Court of Minnesota, 1889. [40 Minn. 144.] Dickinson, J. There was evidence justifying the jury in finding that, when the plaintiff was about to take passage upon a train of the defendant at Miles City, he delivered to it, for immediate transporta- tion, his proper personal baggage, for the loss of which the action is brought; but that he then indicated for the convenience of the defend- ant, and not for his own purposes, that he did not care whether or not it was forwarded by the next train, which was soon to pass that station, as it would be five or six days before he would reach his destination. In other words, there was evidence, proper for the consideration of the jury, that the baggage was delivered to the carrier, and by it received, merely for transportation in the usual course of business, and not for storage. The liability of a common carrier, therefore, attached at the time of the delivery. Lawrence r. Winona & St. Peter R. Co., IT) Minn. 313 (390) ; Moses "i;. Boston & Maine R. Co., 24 N. H. 71 (55 Am. Dec. 222) ; Barron v. Eldredge, 100 Mass. 455 ; Clarke v. Needles, 25 Pa. St. 338. The baggage was not sent by the next train, but was put in the defendant's baggage-room, where it was destroyed by the burning of the building on the following day. Order affirmed. 1 See Dixou v. Central Ry., 110 Ga. 184; 111. Cent. R, R. v. Ashmead, 58 111. 487. — Ed. 108 CAKHART V. WAINMAN. CARHART V. WAINMAN. Supreme Court, Georgia, 1902. [114 Ga. 632.] Simmons, C. J. An action was brought by Carhart against Wain- man, the proprietor of a hotel. Tlie petition alleged that the plaintiff went to Bainbridge, Georgia, on a certain train, and was given a check for his baggage (a trunk) by tlie agents of the railway company. On reaching Bainbridge plaintiff left the train and went to the hotel run by Wainman. Next morning he gave his baggage-check to a porter who was employed by tlie defendant at the hotel, and whose duty it was to receive baggage and deliver the same to the guests. The bag- gage was never delivered to plaintiff. He made repeated demands upon the proprietor for either the trunk or the check, but the i)roprietor refused to deliver either to him. The trunk contained his clothing and was of a stated value. The prayer of tliis petition was for the value of the trunk and its contents, and for attorney's fees. The defendant demurred on the ground that the petition set forth no cause of action, and did not allege that the trunk was ever delivered by the railroad company to the defendant or his agent or to any one else upon- the surrender of the check. The defendant also demurred specially to the prayer for attorney's fees. The court sustained the demurrers gen- erally. The plaintiff excepted. We think the petition set out a cause of action. An innkeeper is bound to extraordinary diligence in preserving the property of his guests entrusted to his care. Civil Code, § 2935. He is also bound by the actions of his servants within the scope of their employment. Sasseen v. Clark, 37 Ga. 242. If, therefore, a traveller gives his railroad baggage-check to a servant of an innkeeper whose duty it is to receive and deliver baggage to the guests, and the baggage is lost after it comes into his hands, the innkeeper is liable for the value of the baggage lost. If, after he has received the baggage, the innkeeper refiises to deliver it to the guest upon demand, he would be likewise liable. The delivery of the baggage-check to the innkeeper was, prima facie, equivalent to a delivery of the trunk. The check was a token or receipt for the plaintiff's trunk. While it was not conclusive of the delivery, it was p'^ma facie evidence thereof. 4 Elliott, R. R. § 1655. The fact that the petition does not state that the porter received the trunk from the railroad company was not good ground of demurrer. That IS a matter for defence. The innkeeper or his servant knew more about the delivery of the trunk than did the plaintiff. The defendant could easily show whether the trunk had been received or not, and it would be difficult for the plaintiff to do so. Of course, if it should appear that the trunk was not delivered by the radroad company, the ARTHUR V. TEXAS AND PACIFIC RAILWAY. 109 innkeeper would not be liable. Being bound to extraordinary dilio-ence in the preservation of the baggage delivered him by guests, it is in- cumbent on the innkeeper to show that the trunk was not received by him or his servants. The guest makes out a case, prima facie, when he shows the delivery of the check to the servant within the scope of whose employment was the getting of baggage and delivering it to the guests, and that the innkeeper has refused to deliver to him the baggage or the check. As to the special demurrer to the claim for attorney's fees, if the trial judge put his judgment upon that ground, he was no less in error. The petition alleged that the innkeeper had capriciously refused to comply with the plaintiff's demands for the delivery of the trunk or the check, and that the plaintiff was compelled to employ counsel to en- force his rights. If these allegations are true, then, under the Civil Code, § 3796, the jury might allow the plaintiff his attorney's fees as damages.^ Judgment reversed. All the Justices concurring. ARTHUR V. TEXAS AND PACIFIC RAILWAY. Supreme Court of the United States, 1907. [204 U. S. 505.] The action was to recover damages against the defendant for loss by fire of 50 bales of cotton, which were burned at Texarkana. Texas, September 19, 1900, and which the plaintiffs allege had been duly de- livered to the defendant at that place, under a through bill of lading for transportation to Utica, New York.' Upon the trial evidence was given tending to prove the following facts: The plaintiffs, with offices at Texarkana, were extensive buyers of cotton, which they purchased in the surrounding country and had it transported to that place as a place of concentration, where it might be classified and subsequenth^ transported to the East and other parts of the country b}' the railroads. The Union Compress Company was an independent corporation, doing business at Texarkana, as a compressor of cotton, which it com- pressed for the various railroads having tracks at that place. The compress companx' had a platform on its own land, of about 400 x 000 feet, upon which cotton was delivered from wagons and from railroad cars, and the receipt of the cotton was acknowledged bj' the compress 1 See Southern Ry. v. Bickley (Tenn.), 107 S. W. fiSO. — En. - I'art of the statement of facts and part of the opinion, in which other points were discussed, are omitted. — Ed. 110 ARTHUR V. TEXAS AND PACIFIC RAILWAY. company. From this platform cotton was loaded on the respective cars of the different railroads, the tracks of which surrounded the plat- form on three of its sides. This platform was within the State of Texas. Substantially all the cotton received at Texarkana was re- ceived at this platform. The local platform of the defendant company was not calculated to receive cotton for shipment by the company, on account of its small size, and the defendant's agent testified that he would not know what to do with cotton if offered at this platform, ex- cept to send it to the platform of the compress company. When cotton was placed on the platform of the compress company it did not then compress it, but it remained there until further orders were given, as herein stated. After delivery on the platform, and after the shipper had procured the written acknowledgment of the receipt of the cotton by the compress company, the practice was for tlie shipper, when he was ready to have it shii)ped, to go to the railway company, and upon the surrender of the receipts of the compress company to the agent of the railway company the shipper would receive from such agent a bill of lading for the cotton, which acknowledged its receipt by the com- pany and the place and person it was consigned to, and the shipper had nothing further to do in regard to the cotton. He issued no orders for compressing it, and was not allowed to route it by any particular route. He would identify the cotton covered by the bill and give the destina- tion point of the cotton and the name of the consignee, and there his right ended. The railroad company, when it received from the sliipper the compress company's receipt, and gave its bill of lading to the shipper, took the receipts to the compress company and gave them up, and directed the company to compress the cotton and obtain insurance upon it covering the responsibility of the railroad company, and load it into cars to be designated by the railroad company's agent. It was a general understanding between the railroad company and the compress company that when the former delivered the cotton receipts to the com- press company it was to compress the cotton, obtain the insurance and give the policies to the- agent of the railway company, and ship the cot- ton on the cars pointed out by the railway company's agent. There is no evidence that the (compress company ever compressed cotton at the orders of the shipper, or charged him for the storage of the cotton on the platform. The compressing was in fact done by the compress company for the railway company, for its convenience, by its direction and at its cost. "While the cotton was being compressed the compress company was not under the control of the railway company in matters relating to the mode and manner of compressing, nor were the employees of the compress company under any control b}' the railwa}' company, but the compress company followed the orders of the railway company when to compress and where to load the cotton after compressing. This customary way of doing business was followed witli regard to the cotton in question. It was received on the platform of the compress company from plaintiffs, and receipts given for it to them. These re- ARTHUR V. TEXAS AND PACIFIC RAILWAY. Ill ceipts were taken on September 17, 1900, to the agent of the railway company, who thereupon signed and deUvered a bill of lading to plain- tiffs, acknowledging the receipt of the cotton to be transported to Utica, New York, at named rates. The agent of the railway company then took these receipts which plaintiffs had handed to him, and delivered them to the compress company and gave written instructions, signed by such agent, to the compress company on a form customarily used, and which ran thus : " I have this day issued on your compress receipts bill of lading to W. A. Arthur & Company for 50 bales of cotton, (marks, number of bales, and total weight given.) Domestic. Com- press and ship the above cotton," as stated in directions. The compress company, when its own receipts were delivered to it by the railway company's agent, in accordance with its general custom, caused this cotton to be insured for the benefit of the defendant company and in the name of that company, and delivered the policies to the agent of the railway company, who forwarded them to division headquarters at Dallas, Texas. The compress company paid for the insurance under the direction of the railway company. It was while the cotton was still on the platform and not yet com- pressed that it was burned. Peckham, J. . . . Upon the evidence in this case, was there a delivery? The evidence showed that the cotton was not deliv- ered on the platform by the plaintiffs for the purpose of being compressed for them by the compress company. The order to com- press was subsequently given by the railway company. That com- pany had no other place for the delivery of the cotton to it than at this platform, but, as there were three companies with tracks at the platform, with either one of which the shipper might con- tract for the transportation of the cotton, it cannot be held that there was at the time of the delivery of the cotton at the platform a delivery to the defendant, especially as the compress company itself acknowledged the receipt of the cotton. But when these receipts were handed by the plaintiffs to the defendant's agent, who took them and issued a bill of lading to the plaintiffs, the constructive possession and the entire control of the cotton passed to the defendant. It could then, if so minded, have taken the cotton and loaded it on cars and taken it away without liaving had it compressed. It was, however, compressed by its own order, given in writing to the compress company, and for its own convenience and at its own cost, and the insurance was olv tained by its direction by the compress company, in the name of the defendant and for its benefit, and such policies were delivered to the defendant and sent by its agent to Dallas. Most probably the cost of compression and insurance was paid by the plaintiffs in the rate paid by them for the transportation of the cotton, as that cost was one of the factors which may be supposed to have entered into the rale of freight charged by tlie defendant ; but the total sum paid for transportation by plaintiffs left the matter with defendant to compress and insure if it 112 ARTHUR V. TEXAS AND PACIFIC RAILWAY. saw fit, which it probably would think fit to do in all cases as an ordi- nary business precaution. The fact that in getting the cotton com- pressed the railwa}' chose to have it done by an independent contractor, over whose acts it had no control while the cotton was being com- pressed, and the fact that it would order the compress company after compressing to load the cotton on cars selected by defendant's agent, did not in any way affect the fact that the cotton had been received by the railwa}' company, and that it was thereafter subject to its full con- trol. The defendant could not divest itself of the responsil)ility of due care b}' leaving the cotton to be compressed and loaded by the compress company. The latter company was, while so acting, the agent of the defendant, chosen by it, and, as such, the defendant was responsible for any lack of proper care of the cotton by the compress company. Bank of Kentucky v. Adams Express Co., 93 U. S. It is urged that the case cited does not cover the facts heiein, be- cause in the reported case the attempt was to secure the innnunity of the defendant express company from the consequences of the negli- gence of the railroad in doing the very thing that the express company had agreed to do, viz., transport the money; while in the case before us the negligence of the compress company (assuming there was such) was not in transporting the cotton, which the railway comi)any had agreed to do, but in caring for it while awaiting compression. W e see no difference, in fact, which would lead to a different result. The compression was done for the convenience of the railroad com- pany, after the company had received the cotton and before the actual transportation had commenced. In order to enable it the more con- veniently to do the work of transportation it cannot divest itself of its obligation to exercise due care while the cotton is in the control of the compress company, although the latter is an independent contractor and not under the immediate control of the railway company while do- ing the work of compression in its behalf. There would be no justice in such holding, and we are clear it would violate the general rule that the carrier, after the freight has been received by it, must be regarded as liable, at least, for the negligence of its own servants, and also for that of the servants of an independent contractor, employed by it to do work upon the freight for its own convenience and at its own cost. . . . We think the evidence in this case made out a delivery to and ac- ceptance by the railway company of the cotton in question, and that the compress company had the actual custody of the cotton as the agent of the railway company, and the question of whether the persons in whose custody it was, at the time of the fire, were guilty of negli- gence was a question which should have been submitted to the jury. KING V. LENOX. 113 KING V. LENOX. Supreme Coukt, New York, 1821. [19 Johns. 235.] This was an action of assumpsit, brought against the defendant, as owner of the ship called the Rara-DuloU-Day, to recover the value of certain goods shipped on board of that vessel, on account of the plain- tiffs, and consigned to them, on her voyage from Calcutta to New Yorlv, in the year 1817. The cause was tried before Mr. Chief Justice Spencer, at the New York sittings, in April. 1820. A verdict was taken for the plaintiffs, for 1,494 dollars and 75 cents, subject to the opinion of the Court on a case made. It appeared that the master of the R. on the outward voyage from New York to Calcutta, received from the plaintiffs a quantity of cheese and verdigris, which was shipped as part of the master's privilege, allowed to him, as is usual by owners of vessels, and which were sold in C, two-thirds for account of the plaintiffs, and one-third for account of the master; and the proceeds, deducting the homeward freight and commission whicli were received by the masters, were invested in the goods of the country, packed in a trunk, laden on board of the R. and consigned to the plaintiffs, at New York. No part of the shipment, outward or homeward, or the freight or commissions, were entered in the ship's accounts ; but the same were considered as part of the master's privilege. The ship was not a general ship, but was wholly laden on account of the owner, except the usual privileges allowed the supercargo, master, and other officers. The trunk con- taining the goods in question was stowed in the cabin of the ship, under the master's berth, where he usually stows some part of his privilege. The master died on the homeward voyage. On the arrival of the ship at New York, the trunk consigned to the plaintiffs was opened at the custom house, by persons appointed by the collector of the customs ; when two shawls, all the pearls, and eight pieces of Choppa Romalls, mentioned in the invoice, to recover the value of which this suit was brought, were missing. Per Curiam. The owner of a ship is bound for the lawful contracts of the master, when made by him relative to the usual employment of the vessel; both on the ground of such employment, and of the profit which they derive from it ; and the course of usual employment is evi- dence of authority given by the owner to make a contract for them. Abbott on 8hii)s," 3d ed. U3, part 1, c. 3, s. 2. The plaintiffs, in this case, contracted with the master himself, knowing that he received their goods on his own account, as part of liis privilege, and not in his character of agent for the owners. The contract was not made by any implied authority of the owners, arising out of the usual course of 114 BRIEN V. BENNETT. employment. The ship was freighted wholl}^ by the owner ; and the master had no authority from the defendant to receive goods on freight. Walter v. Brewer, 11 Mass. Rep. 99; Reynolds r. Toppan, 15 Mass. Rep. 370. We are, therefore, clearly of opinion, that the defendant is entitled to judgment. Judgment /or the defendant. BIRD V. BIRD. Common Bench, 1558. [Anderson, 29.] Bird brought action on the case against Bird for that the plaintiff brought into the plaintiff's [defendant's?] hotel certain stuff, and was lodged there ; which stuff by default of the plaintiff [defendant ?] and his servants was stolen from him out of the said house. The defend- ant said that the goods were not taken by default of himself or his servants; and upon this they were at issue. The defendant gave in evidence that the plaintiff came to his house for the purpose of lodging there, and the defendant told him that his inn was full of guests, and there was no room for him, and therefore he would not receive him ; and that the plaintiff notwithstanding this would not depart, but put his goods in the said inn and went to bed there by sufferance of some other person without the assent of the said innkeeper or his servants. And this was held good evidence by the Justices ; whereupon the jury gave a verdict for the defendant. BRIEN V. BENNETT. Nisi Prius, 1839. [8 C. S- P. 724.] Case for negligently injuring a passenger. Pleas 3d, that the plain- tiff was not a passenger.^ It appeared that the defendant's omnibus was passing on its journey when the plaintiff, who was a gentleman considerably advanced in years, held up his finger to cause the driver of the omnibus to stop aud take him up, and that upon his doing so the driver pulled up, aud the conductor opened the omnibus door ; and that just as the plaintiff was putting his foot on the step of the omnibus, the driver, supposing that the plaintiff had got into it, drove on, and the plaintiff fell on his face on the ground, and was much hurt. 1 This short statement of tlie effect of the pleadings is substituted fer that of the reporters. — Ed. GASTENHOFER V. CLAIR. 115 Piatt, for the defendant. I submit that the plaintiff was never a passenger. Lord Abinger, C. B. I think that the stopping of the omnibus implies a consent to take the plaintiff as a passenger, and that it is evidence to go to the jury. , , • -^ t. rx Verdict for the plaintiff — Damages i-o. GASTENHOFER v. CLAIR. Court of Common Pleas, New York, 1881. [10 Daly, 265.] Appeal from a judgment of the district court in the City of New York for the Sixth Judicial District. The action was brought to recover damages for the loss of the plam- tiff's overcoat at the defendant's hotel. The plaintiff's uncle was a o-uest at the Park Avenue Hotel, corner of 32d Street and 4th Avenue, fn the City of New York. The plaintiff lived at No. 31 West 20th Street, New York. He was invited by his uncle to dine with him and his family at the hotel and go afterwards to the Charity Ball. Pursu- ant to the invitation plaintiff went to the hotel about lialf-past six o'clock, on the evening of February 3d, 1881, looked in the register, found his uncle's name, inquired for his room of the clerk, sent up his card, and on being informed he was not in, went up with a servant to his uncle's room to seek for him, but did not find him, after a wlule went into the dining room and walked through, and looked for him, did not see him, went into the lower dining room and ordered his din- ner, dined and came'out, and then met his uncle and was taken by him into the upper dining room to dine. On going into the lower dining room he left his coat and hat with a boy in attendance and received them back when he came out. Before going into the upper dinmg room with his uncle, he placed his coat on a chair alongside a rack on which there was clothing, in a room outside the upper dining room, there being no attendant. On leaving the said dining room he could not find his coat, but found his hat and " articles." He went to the office of the hotel, and search was made for the coat, but it could not be found. He borrowed his uncle's coat to go out and procure another coat, then returned to the hotel and went with the party to the ball, came back to the hotel afterwards but did not stay all night. Ihe dinner was afterwards charged to the plaintiff but subsequently to the uncle and paid for by him. The justice rendere.l judgment in favor of the plaintiff, l-rom the iudf^ment the defendant appealed to this court. J E Daly, .1. (After stating the facts as above.) The rule tliat makes the landlord of an inn responsible for the goods of his guest is 116 GASTENHOFER V. CLAIR. a severe one, and can only be applied where the conventional relation of inn-keeper and guest exists. It cannot be extended so as to protect one who is not a guest, but a mere caller on a guest, or a transient visitor upon the invitation of a guest. Such was the status of the plaintiff in this case. He claims to have become a guest himself by ordering and taking dinner while waiting for his uncle. This put him in no different position from that he would have occupied had he sat down with his uncle as he had been invited to do. He was there upon invitation of that gentleman and with no intent to sojourn at the hotel as a guest for even the briefest period. This distinguishes the case from Kopper r, Willis (9 Daly, 460), and from Bennet r. Mellor (.'i T. R. 273), where the parties came to the inn to partake of its entertain- ment or accommodation, and for no other purpose. In the former case, plaintiff went with a friend, on the invitation of the latter, into the defendant's restaurant, frequented by transient parties, to get a meal. Plaintiff was just as much a guest as his friend was, for the latter was not stopping at the place, and the invitation merely involved the paying for the entertainment of both. In the other case, one of the strictest applications of the rule in the books, plaintiff's servant went to the defendant's inn to leave the goods he was carrying until the next market day. He was refused that accommodation, but on asking refreshment it was furnished him. The entertainment of the house had thus been extended to him as a guest, and the landlord was held liable. It is not the fact that a person does or does not take lodgings or partake of refreshments in the inn that makes him a guest. It is the motive with which he visits the place : whether to use it even for the briefest period or the most trifling purpose as a public house or not : and I think it will be long before the courts will be disposed to hold landlords liable for the property of persons who call to visit their guests, and incidentally enjoy the hospitality of the house. The taking of the dinner without notice to the proprietor or the clerk no more constituted plaintiff a guest than his sitting in the parlor, using the reading-room or writing-room, etc., for any period, while waiting for his host to appear. The judgment should be reversed with costs. Van Hoesen, J. There must be at least two parties to every con- tract, and when it is attempted to charge an inn-keeper with liability for the loss of goods belonging to a person who asserts that he was a guest, the inquiry is, how was the relation of guest and inn-keeper created? No person can make himself a guest without the inn-keeper's assent. Of course, that assent may be given by an agent or a servant, entrusted with the duty of receiving and rejecting travellers. There need be no formal bargain, for the acceptance of a person as a guest will be implied, where he calls for refreshment which is furnished to him by a servant who has the discretion either to give or to withhold it. But a man cannot make himself a guest by slipping into the dining room of a hotel and ordering a dinner of a waiter who has no discretion MERRILL V. EASTERN RAILROAD. 117 whatever, and who brings what is ordered, under the belief that the person who gives the order is in the dining room by permission of the inn-keeper. Permission to enter the dining room cannot be implied. A man can no more enter the dining room without permission, than he can enter a sleeping room and go to bed without permission. He must first give the inn-keeper an opportunity to receive or reject him. If he be accepted as a guest he is, of course, entitled to the usual privi- leges of a guest, and if the inn-keeper refuse, without reason, to receive him, an indictment, and a civil action for damages, will lie against him. Neither Clair, the inn-keeper, nor any of his clerks, nor any person who had the slightest control over any branch of the business of the inn. knew that Gastenhofer wished to become a guest. He went, uninvited, into the dining room, and without the consent, express or implied, of any one in authority, ordered a dinner, which a waiter brought to him. This dining room was not a public restaurant, and, therefore, the Kopper case, which is relied on by the plaintiff, does not apply. In that case Kopper went into an eating-house, by general invitation of the proprietor to the public, and with the understand- ing that all who came should be served without any previous arrange- ment with, or application to, the landlord. We held that he was a guest, as it appeared that the place was licensed as an inn, and that he had received refreshments in the usual way. No one had a right to enter the dining room of the Park Avenue Hotel until he had received the permission of Clair, the inn-keeper. There appears to be no doubt that the plaintiff, being a man of respectability, would have been re- ceived, but it is of no moment whether that be so or not ; so long as it takes two to make a bargain, he could not become a guest without making an application to be received as such to Clair, or to some person authorized to act for him in such a matter. It is on this ground alone that I place my decision, though I con- cur with Judge Daly in reversing the judgment. Judgment reversed, with costs. MERRILL V. EASTERN RAILROAD. Supreme Judicial Court of Massachusetts, 1885. [139 Mass 238.] Holmes, J. This is an action of tort, under the Pub. Sts. c. 112, § 212, alleging that the plaintiff's intestate was a passenger upon a train of the defendant ; and that, by reason of the defendant's negligence and the gross carelessness of its servants, his life was lost. There are three specifications. First, that the train was overloaded and the life of the intestate lost, because, by reason of the insufliciency of its rules, the corporation failed to make proper provision for carrying passengers. Second, that the train was overloaded l)y the unfitness of the defendant's 118 MERRILL V. EASTERN RAILROAD, servants. Third, that the intestate's life was lost by the gross negli- gence of the defendant's servants •' in failing to provide suHlcient cars for the reasonable accommodation of passengers, and in the overloading, running, and management of said train." The plaintiff's intestate had been travelling upon the engine, but got off" at East Salisbury, a station where the train slopped, and, after the conductor had called out, '' All aboard," and the train had started, ran and o-ot upon the front platform of the front passenger car. The train was crowded, but there was no evidence that it would have been impos- sible for the deceased to reach the inside of the car, and there was testimony that he could have done so, and that he was asked by the brakeman to get out of the way so that the latter could do his work, but retorted that he had been on this road twenty years, and knew more about railroads than the brakeman did. The deceased stood upon the step of the platform facing inward, and after the train had gone from a quarter to half a mile fell off" and was killed. In half a mile the train had reached a speed of thirty miles an hour, and, according to some of the witnesses, it was swaying violently when the deceased fell. The track was straight. The court ruled that the action could not be main- tained upon the evidence, and directed a verdict for the defendant. We are of opinion that the ruling was correct, and that none of the specifications were maintained. If we should assume that the deceased had acquired the rights of a passenger, and that the defendant failed to make proper provision for carrying passengers, or that the train was overloaded by the unfitness of the defendant's servants, still we should have some difficulty in saying that the overloading was the cause of the death, -notwithstanding the decision in Commonwealth r. Boston & Lowell Railroad, 134 Mass. 211. For if the place which the deceased took was unfit and dangerous, its unfitness and danger already existed and were manifest before he took it. If there was a crowd on the plat- form, the deceased saw it. And certainly the argument would be strong that he, rather than the defendant, was the cause of his being where he was, and of his exposure to the danger incident to that place. But we do not pass upon this point, because we cannot assume that the deceased had acquired the rights of a passenger. He did not do so when he got upon the engine, a place to which he was not invited, and which every one knows is not intended for passengers, and where in this case he would have escaped paying fare, as it was inaccessible to the conductor. Then, supposing that his start upon the engine did not give a character to his subsequent relation to the defendant, (Swan v. Manchester & Lawrence Railroad, 132 Mass. 116, 120,) and that the de- ceased was in the same position as if he had attempted to get on at East Salisbury for the first time, it is clear that, when he attempted to get upon the moving train after it had started, he was outside of any implied invitation on the part of the defendant, and did not at once acquire the rights of a passenger in the hands of a carrier. We may admit that, if he had reached a place of safety and seated WEBSTER V. FITCHBURG RAILROAD. 119 himself inside the ear, the bailment of his person to the defendant would have been accomplished, so that he would not have been prevented from asserting such rights because of his improper way of getting upon the the train. But we think that he could not assert them until he had passed the danger which met him on the threshold, and had put himself in the proper place for the carriage of passengers. It is no answer to sa\- that he was prevented from doing so b}' the defendant's fault. There was no evidence that the deceased was com- pelled to remain on the step of the platform. But even if the jury would have been warranted in finding that there was such a crowd that the deceased naturally stopped where he was, although not stricth' com- pelled to do so, and that the crowding was due to the defendant's fault, still there was no fault as toward the deceased, because the defendant was not bound to provide for the contingency of people getting upon the train after it had started. We may add, that there is not a j)article of evidence that, if the deceased had got upon the train at the proper time, he could not have reached the inside of the car. There is nothing in the subsequent conduct of the defendant of which the plaintiff can complain. The defendant was not bound to stop its train by reason of anything which it is shown to have known, or of which there is any evidence. And if the defendant had a right to run its train at all, it was not gross negligence to run it at the rate of thirty miles an hour on a straight track. There was no allegation or proof of any defect in the cars which made the motion worse than usual. The speed was not unusual, and moreover it was hardly connected with the death by anything more substantial than conjecture. Exceptions overruled} WEBSTER V. FITCHBUKG RAILROAD. Supreme Judicial Court of Massachusetts, 1894. [161 Mass. 298.] Knowlton, J. At the trial the plaintiff relied soleh' on her count under Pub. Sts. c. 112, § 212, in which she alleged that her intestate was a passenger on the defendant's railroad, and the only question in the case is whether there was evidence to warrant the jury in finding that he was a passenger, lie had in his pocket a ten-trip ticket, wliicli entitled him to ride over the defendant's railroad between Boston and the station in Somerville where the accident happened, and immediately before he was struck and killed he was running very rapidly from the direction of the public street across tlie defendant's premises outside of the passenger station to a track on whicli was an incoming train, ap- 1 But see Slianor v. Paxsou, 171 Pa. 26. — Ed. 120 WEBSTER V. FITCHBURG RAILROAD. parently with a view to take another train which was about to start for Boston on the track be3'ond. It is contended, in behalf of the plaintiff, that, inasmuch as he had previously obtained a ticket, and was on the defendant's premises in a place designed for the use of passengers out- side of the station, and was about to take a train, he had become a passenger. One becomes a passenger on a railroad when he puts himself into the care of the railroad company to be transported under a contract, and is received and accepted as a passenger by the companj'. There is hardly ever an}' formal act of delivery of one's person into the care of the carrier, or of acceptance b}' the carrier of one who presents himself for transportation, and so the existence of the relation of passenger and carrier is commonly to be implied from circumstances. These circum- stances must be such as to warrant an implication that the one has offered himself to be carried on a trip about to be made, and that the other has accepted his offer, and has received him to be properly cared for until the trip is begun, and then to be carried over the railroad. A railroad compan}' holds itself out as ready to receive as passengers all persons who present themselves in a proper condition, and in a proper manner, at a proper place to be carried. It invites everybody to come who is willing to be governed by its rules and regulations. In a case like this, the question is whether the person has presented himself in readiness to be carried under such circumstances in reference to time, place, manner, and condition that the railroad compan}^ must be deemed to have accepted him as a passenger. AYas his conduct such as to bring him within the invitation of the railroad companj? In Dodge v. Bos- ton & Bangor Steamship Co., 148 Mass. 207, it was said: " When one has made a contract for passage upon a vehicle of a common carrier, and has presented himself at the proper place to be transported, his right to care and protection begins." In this statement it was assumed that he would be in a proper condition, and present himself in a proper manner. If his condition should render him unfit to be in the presence of passengers on the train, or if he should present himself while doing something which would expose himself or others to great danger from the cars or engines of the carrier, he would not be within the invitation of the railroad compa-ny, and it would not be expected to accept him as a passenger. In the present case, after the arrival of the plaintiff's intestate on the defendant's premises, there was no time when he presented himself in a proper manner to be carried. He was all the time running rai)idly, without precautions for his safety, towards a point directly in front of an incoming train. He did not put himself in readiness to be taken as a passenger, and present himself in a proper way. If we treat his ap- proach as a request for passage, and if we conceive of the railroad company as being present and speaking by a representative who saw him, there was no instant when the answer to his request would not have been, " We will not accept you as a passenger while you are ex- ILLINOIS CENTRAL RAILROAD V. O'KEEFE. 121 posinc. yourself to such peril. We do uot invite persons to become passengers while they are rushing into danger in such a waj . "^ The law will not imply a contract by a railroad company to assume responsibilities for one as a passenger from such facts as appear m his case Dod<^e r. Boston & Bangor Steamship Co., ubc siqrra : Mernll v. East'ern Railroad. 139 Mass. 238; Commonwealth .. Boston & ^^in^ Railroad, 129 Mass. 500 ; Warren v. Fitchburg Railroad, 8 Allen, 227 , Baltimore Traction Co. v. State, 28 Atl. Rep. 397^ ■^'* Exceptions overruled. ILLINOIS CENTRAL RAILROAD v. O'KEEFE. Supreme Court of Illinois, 1897. [168///. 115.] Cartwright J 1 ... It was also necessary for the plaintiff to prortLt the 'relation of passenger and -rier existed b^wcen the deceased and the defendant. This relation whicli was claimed to exist fs a "ntact relation. A railroad company holds itself out as^ready^^^^^^ receive and carry, and is bound to receive and carry, al pas^en^cis v'ho offer themselves as such at the places provided for taking passage on its trains, and who take such passage in the cars provided tor pas- sengers. When one so presents himself tire contract relation un.ier which he acquires the rights of a passenger may be either express or mav be implied from the circumstances. If a person goes upon cars provided bv the railroad company for the transportation of passengers, with the purpose of carriage as a passenger with the consent, express Tr impliei, of the railroad company, he is presumptively M>as.ene.e Elliott on Railroads, sec. 1578. Both parties ™ust enter into and e bound by the contract. The passenger may do this ^3' 1-tting hims If into the care of the railroad company to be transported and the com- pany does it by expressly or impliedly receiving him and accep ing im as a passen-er. The acceptance of the passenger need not be di.ect o express, but there must be something from which it may be fairly impS 6ne does not become a passenger until he has put himself in chai-e of the carrier and has been expressly or impliedly recen-ed as uchV the carrier. Bricker .. Railroad Co. 132 Pa. St. ; \Vebs er Fitchburg Railroad Co. 161 Mass. 298; Elliott on Railroads sec 1581 Deceased was the holder of a free pass on the road, but hat fact alone would not create the relation of passenger and carrier. 1 he pin- chase of a ticket does not make one a passenger unless he comes undex the charcre of the carrier and is accepted for carnage by virtue of it. If a ticket holder sliould offer himself as a passenger and should be re- 1 Part of the opinion only is given — El). 122 ILLINOIS CENTRAL KAILROAD V. O'KEEFE, fused transportation there would be a liability for consequent damages, but it would not be a liability to him as a passenger or on account of the relation of passenger and carrier, but would be a liability for the refusal to enter into that relation and to permit him to become a passenger. The uncontroverted evidence bearing upon the question whether O'Keefe became a passenger was as follows : He lived about three hundred yards north and fifty yards east of defendant's station at Anna. The limited vestibule train on defendant's road came from the south and stopped at the station while he was sitting at the table at home, eating breakfast. The train consisted of a baggage car, two coaches and a sleeping car. It was a solid vestibuled train, the vesti- bules filling the spaces between the cars, with a door at each entrance and exit to and from the platforms of the passenger coaches. These doors are opened at the stations to discharge passengers who have reached their destination and to receive those desiring to become pas- sengers, and these are the places where passengers present themselves to take passage. While this train was at the station at Anna it was prepared for the reception of passengers who desired to be transported to other stations, b}- opening the doors, and passengers for Anna were discharged at the station. When the doors are closed a person on the outside can not get in, and when the business at that station had been done the doors designed for the admission of passengers were closed, and the train left the station as a solid train, closed and inaccessible up to the platform next the tender, in front of the loggage car. When the train was moving from the station O'Keefe took his hat and ran out of the door, and ran to the railroad track and south toward the ap- proaching train. W^hen he met the train it was going three or four miles an hour, and he climbed on the platform next the tender, at the front end of the baggage car. As he passed his house his wife saw him standing on the platform with his back against the baggage car door. The engineer and conductor saw him climb on the platform but did not see him afterward, and the conductor did not know who he was. He was not seen after his wife saw him until he was found dead, sitting on the step of the platform, holding the guard rail with one hand. When found he had a piece of paper in one hand and a pencil was lying on the ground. After leaving Anna the conductor went through the train, commencing at the north end of the first passenger coach next the baggage car and going the entire length of the train. He then came back, unlocked the door to the baggage car, and went in, as he said, to see about the person who got on the platform, and, seeing the other train approaching, he and the baggageman jumped off through the side door. The question is whether these facts fairl}' tend to establish the relation of passenger and carrier between O'Keefe and the defendant, by show- ing 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 ILLINOIS CENTRAL RAILROAD V. KEEFE. 125 the defendant through an}- authorized agent. We think that they do not. He did not go upon the train at the station provided for the re- ception of passengers, and did not take any place provided for the re- ception, iiucomuiodation or carriage of passengers. He did not comply- with any of the ordinary customs under which defendant held itself out as ready to receive and carry passengers or under which they are re- ceived or carried. It is said that lie no doubt tried to open the baggage car door, and the inference intended is, that he tried to put himself in charge of defendant as a passenger, in a proper place. There is no evidence of the supposed fact, and if there were it could make no differ- ence. 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 de- fendant 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 ac- cepted 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 matter one way or the other. The train was moving slowl}' wlien 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 slowl}-. 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 passen- gers are not carried. That fact concerns onlj' the question of negli- gence, and is not material on the question whether he became a passenger. As we have concluded that there was no evidence tending to establish one necessary element for a recovery, — that the deceased was a pas- senger on defendant's train, — it follows that for such failure of proof the instruction asked ^ should have been given. 1 At the close of the evidence the defendant asked the court to instruct tlie jury that such evidence was not sufficient to authorize a verdict for the plaintiff, and tliat they should find the defendant not guilty. The instruction was refused and the de- fendaut excepted. — Ed. 124 DUCHEMIN V. BOSTON ELEVATED KAILWAY. 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., dissented.^ ILLINOIS CENTRAL RAILROAD v. TREAT. Supreme Court of Illinois, 1899. [179 ///. 576.] Carter, C. J.^ Emma A. Treat, the appellee, recovered a judgment against appellant on account of a personal injury received by her on October 23, 1893, while attempting to board one of appellant's trains at its Van Buren street station, in Chicago, for the World's Fair, at Jackson Park. The Appellate Court has affirmed that judgment. Appellant had erected a viaduct over its tracks at this station, with stairways, one for ingress and the other for egress of passengers. . . . The relation of carrier and passenger existed between appellant and appellee. She had procured her ticket, passed through the turn-stiles provided by appellant, had there delivered her ticket to appellant and had entered upon the platform constructed by appellant exclusively for passengers, and was about to enter appellant's car when she was injured. Appellant was therefore bound to exercise a high degree of care to avoid injuring the appellee, its passenger. 4 Elliott on Railroads, sees. 1579, 1589. DUCHEMIN V. BOSTON ELEVATED RAILWAY. Supreme Judicial Court of Massachusetts, 1904. [186 Mats. 353.] Barker, J.^ The action is for a personal injury occasioned by the fall of a trolley pole and car sign. The case stated in the declaration is that as the car approached the plaintiff he went toward it for the purpose of entering it having given the motorman in control notice of his intention so to become a passenger, and that as he was about to get on the car the trolley pole fell striking a sign upon the car and the pole and sign struck the plaintiff, he being in the exercise of due care and the defendant negligent. ... It should be noted that in the charge the jury were instructed that the suit was not brought as in the right of a person upon the street ; 1 Ace. Missouri K. & T. Ry. v. Williams, 91 Tex. 255 ; but see Martin v. Southern Ry., 51 S. C. 150. —Ed. 2 Part of the opinion only is given. 3 Part of the opinion is omitted. — Ed. DUCHEMIN V. BOSTON ELEVATED RAILWAY. 125 that the standards of care are quite different in the case of a passer-by upon a street struck by apparatus falling from a car, and that if the plaintiff had not become a passenger he could not recover. We assume that this portion of the charge was understood to mean, that, if the car had not stopped to receive the plaintiff, or, if he was attempting to go to it or to board it when it had stopped for some otlier purpose than to receive passengers and he had made to those in charge of the car no sign that he intended to take the car or had received from them in reUirn no indication of assent to such a signal, or if he was attempting to reach or board the car while it was yet in motion, he could not recover. This leaves as the turning point of the case the question whether a foot traveller on the highway wiio is approaching a street ear stopped to receive him as a passenger, and before he actually has reached the car, is entitled to the rights of a passenger in respect of that extraordi- nary degree of care due to passengers from common carriers, at least so far as any defect in that car is concerned. In other words the question is whether the jury should have been instructed that the defendant owed to the plaintiff the same high degree of care while he was approaching the car and had not yet reached it that it would owe to a passenger. It is apparent that a person in such a situation is not in fact a passenger. He has not entered upon the premises of the carrier, as has°a person who has gone upon the grounds of a steam railroad for the purpose of taking a train. He is upon a public highway where he has a clear right to be independently of his intention to become a passenger. He has as yet done nothing which enables the carrier to demand of him a fare, or in any way to control his actions. He is at liberty to advance or recede. He may change his mind and not become a passenger. Certainly the carrier owes him no other duty to keep the pavement smooth or the street clear of obstructions to his progress than it owes to all other travellers on the highway. It is uud°r no obligation to sec that he is not assaulted, or run into by vehicles or travellers, or not insulted or otherwise mistreated by other persons present. Nor do we think that as to such a person, who has not yet reached the car, there is anv other duty as to the car itself than that which the carrier owes to all persons lawfully upon the street. There is no sound distinction as to the diligence due from the carrier between the case of a person who has just dismounted from a street car and that of one who is about to take the car but has not yet reached it. In the case of each the only logical test to determine the degree of care which the person is entitled to have exercised by the street railway company is whether the person actually is a passenger, or is a mere traveller on the hicrhway. We think that a present intention of becoming a pas- sengei°as soon as he can reach the car neither makes the person who is approaching the car with that intention a passenger, nor changes as to 126 HOGNER V. BOSTON ELEVATED RAILWAY. him the degree of care to be exercised in respect of its cars as vehicles to be used upon a public way with due regard to the use of the same way b}' others. The defendant incurs no responsibility to exercise extraordinary diligence by making an express contract, but only by its exercise of the calling of a common carrier, and its obligation as such does not arise until the intending passenger is within its control. We are unwilling to go farther than the doctrine stated in Davey v. Greenfield & Turner's Falls Street Railway, 177 Mass. 106, that when there has been an invitation on the part of the carrier by stopping for the reception of a passenger any person actually taking hold of the car and beginning to enter it is a passenger. See Gordon v. West End Street Railway, 175 Mass. 181, 183, and cases cited. If the instructions allowed the jury to find for the plaintiff only in case the car had reached a usual stopping place and had stopped to receive him, there was error in ruling that under those circumstances and before he had actually reached the car he had a right to have the defendant exercise as to him that extraordinary degree of care due to passengers. So long as he remained a mere traveller on the highway, although walking upon it for the sole purpose of taking the car, the defendant did not owe him any other duty than that which it owed to any person on the highway. Whether one just has dismounted from a street car, or just is about to board one he does not have the rights of a passenger. £Jxce}ytions sustained. HOGNER V. BOSTON ELEVATED RAILWAY. Supreme Judicial Court of Massachusetts, 1908. [198 Mass. 260.] Tort for personal injuries alleged to have been received by the plaintiff while being removed by force from the lower step of a closed electric car of the defendant.^ Hammond, J. The relation of carrier and passenger is created by contract express or implied. In the case of a street railway company, it is rarely created by express contract when the car is boarded by the passenger from the street. Whether the relation has begun is gener- ally to be shown by the circumstances. But, however shown, it must appear at least that the passenger has offered himself and has been accepted. It is not enough that he has oflfered himself. The accept- ance by the carrier is needed. It is true that the carrier ought to consent where there is no reasonable objection. Still it does not necessarily follow that it has consented or will consent in any given case. For no good reason it may decline to accept the offered passea- 1 The statement of facts and part of the opiuiou are omitted. — Ed. LOCKWOOD V. BOSTON ELEVATED RAILWAY. 127 ger ; and in such case he cannot become a passenger by forcing his way upon the car against the will of the carrier. His remedy is by way of damages for the unwarrantable refusal to accept liim. These principles are too familiar to require the citation of authorities in their support. Upon the evidence the question whether the plaintiff was a passenger was for the jury. If the evidence for the defendant was believed, the jury might find that neither by the motorman nor by the conductor was the plaintiff recognized as a proposed passenger, much less accepted as such ; but that the plaintiff, without the knowledge of either, got upon the step of the car while it was in motion, and that the conductor, as soon as he saw him, refused to accept him as a passenger unless he would get above the lower step where he was standing, and that the plaintiff refused to accept this condition. If such was the case, the jury might well find that the contract of carriage never had been made, or in other words, that the plaintiff never became a passenger. The plaintiff, relying upon cases like Brien r. Bennett, 8 Car. & P. 724, Gordon v. West End Street Railway, 175 Mass. 181, and Smith r. St. Paul Cit}' Railway, 32 Minn. 1, strongly contends that as matter of law the plaintiff became a passenger as soon as he got upon the step. In all those cases, however, it appeared that the car or vehicle had stopped in obedience to a signal from the proposed passenger. In other words, the passenger had offered himself and been accepted ; and the act of getting upon the step was an act done in pursuance of the contract. These and similar cases cannot be regarded as authorities in support of the proposition that upon the evidence in this case the plaintiff became a passenger as soon as he stepped upon the car.^ LOCKWOOD V. BOSTON ELEVATED RAILWAY. SuPBEME Judicial Court of Massachusetts, 1909. [200 Mass. .537.] Braley, J.^ . . . It is the defendant's theory of the injury, upon the evidence which it introduced, that, without having been either recog- nized or accepted as a passenger, the plaintiff was injured while in the attempt to board a moving car as it was passing between the signal posts. Undoubtedly there must be an acceptance by the carrier, before the person who offers himself, becomes a passenger. But the principle as applied to those who offer themselves for transportation by railroads, whose trains stop only at fixed stations, where the carrier only holds itself out to receive and transport as passengers those who present tlieraselves in the usual way, has not been held applicable to passengers upon street railways, unless at least it appears that the operating com- 1 See Iligley v. Gilmer, 3 Mont. 90. — Kd. 2 Part of the opinion only is given — Ei>. 128 WILTON V. MIDDLESEX RAILROAD. pany makes a rule that passengers will uot be taken on except at designated places. Merrill v. Eastern Railroad, 139 Mass. 238 ; Web- ster V. Fitchbui-g Railroad, 161 Mass. 298; Corlin v. West End Street Railway, 154 Mass. 197. There was no evidence offered by the defend- ant, that it had made, promulgated or enforced such a rule, or estab- lished such a custom. Nor did it appear that the plaintiff had auy knowledge of such a regulation inferentially derived from his observa- tion of the placing of signal posts, or of the manner in which its cars were generally operated. McDonough v. Boston Elevated Railway, 191 Mass. 509, 511. But, even if the car had been boarded while it was moving slowly between the signal posts after the plaintiff had stepi-)ed on the running board, the conductor, who testified that he saw the men coming to get on the car and further said that he saw the plaintiff there, gave no order to him not to get on, and made no objection or dissent either verbally or by gesture that he was unlawfully on board. To remain standing on the running board of an open street railway car while being transported is not ordinarily of itself wrongful, and under these conditions the contract of carriage could have been found by the jury to have been complete. Briggs v. Union Street Railway, 148 Mass. 72, 75 ; Pomeroy v. Boston & Northern Street Railway, 193 Mass. 507, 511, and cases cited. WILTON V. MIDDLESEX RAILROAD. Supreme Judicial Court of Massachusetts, 1871. [107 Mass. 108.] Morton, J. The facts which the plaintiff offered to prove, bearing upon this question, are as follows : The plaintiff, a girl of nine years of age, was walking with several other girls upon the Charlestown bridge about seven o'clock in an evening in July. One of the defend- ants' cars came along very slowly, and the driver beckoned to the girls to get on. They thereupon got upon the front platform. It was ad- mitted that the plaintiff was not a passenger for hire, and that the driver had no authority to take the girls upon the car and carry them, unless such authority is to be implied by the fact of his employment as driver. Upon these facts, it is clear that it would be competent for the jury to find that the beckoning by the driver was intended and understood as an invitation to the plaintiff to get upon the car and ride. In ac- cepting this invitation and getting upon the car, we think she was not a trespasser, there being no evidence of collusion between her and the driver to defraud the corporation. A master is bound by the acts of his servant in the course of his employment. They are deemed to be the acts of the master. Rams- EATON V. DELAWARE, LACKAWANNA AND WESTERN RAILROAD. 129 den V. Boston & Albany Railroad Co., 104 Mass. 117, and cases cited. The driver of a horse-car is an agent of the corporation, having charge, in part, of the car. If, in violation of his instructions, he permits persons to ride without pay, he is guilty of a breach of his duty as a servant. Such act is not one outside of his duties, but is an act within the general scope of his agency, for which he is responsible to his mast*er. In the case at bar, the invitation to the plaintiff to ride was an act within the general scope of the driver's employment, and if she accepted it innocently she was not a trespasser. It is immaterial that the driver was acting contrary to his instructions. It follows, that the plaintiff, being lawfully upon the car, though she was a passenger without hire, is entitled to recover, if she proves that she was using due care at the time of the injury and that she was in- injured by the negligence of the driver. Philadelphia & Reading Railroad Co. r. Derby, 14 How. 468, 483. In the present aspect of the case, we are not called upon to consider to what extent the defendants might be held liable if it were shown that the plaintiff was unlawfully riding upon the car. Case to stand for tnal. EATON V. DELAWARE, LACKAWANNA AND WESTERN RAILROAD. Commission of Appeals, New York, 1874. [57 N. Y. 382.] DwiGHT C ' The facts of the case, so far as it is necessary to consider them, are brieflv these ; they are stated in the form most fav- orable to the plaintiff: He, being then under twenty-one years of age was, with two other bovs, walking toward his home on the railroad track, and, having been passed by a coal train, moving slowly, was beckoned by the conductor in charge of it, who was then on the rear car, a caboose (to be hereafter described), to get upon the train, rhe plaintiff and his associates acted accordingly. The conductor, after- ward, solicited them to go with him, upon his return trip, to a place called Phillipsburgh, where he would procure for them situations as brakemen. They went with him. The train, toward morning, stopped on the track at a point where there was a sharp curve in the road. The conductor was guiltv of negligence, in not sending back a flag- man, to warn an approaching train. No signal was given nor was any lio-ht exposed for this purpose. A collision occurred, by which the plaintiff sustained serious injury, without negligence on his part Tlie rear car, or "caboose," in which the plaintiff was at the time of the iniurv, was supplied with a stove, and tlierc were boxes running up and down the car, in wliich the tools, etc., of the employees of the 1 Part of the opinion only is p;iven. — Ed. 9 130 EATON V. DELAWAKE, LACKAWANNA AND WESTERN KAILROAa road were kept. The car was also used as a place of deposit for lan- terns, couplings, etc. The boxes had covers on which persons could sit. The car was, in substance, a store-room, and used for carrying provisions while the train was on the road. These arrangements were made for the convenience of the defendant's servants, and the car, really, carried train equipments. There was no evidence that passengers, either habitually or occasionally (except in the present instance), rode in the caboose. There was a regulation of the defend- ant, printed on the tables intended lor tiie use of its employees, that passengers were forbidden to ride on coal trains. Disobedience of this rule, if known to the defendant, was followed by a discharge of the employee so offending. Of this regulation the plaintiff had no actual notice, and it was not put up in the " caboose." The plaintiff paid no fare, nor was any demanded of him. The question submitted to the jury at the trial was, whether the plaintiff was informed of the regula- lation referred to ; and they were instructed, that if they should answer that in the negative, the plaintiff could recover. To this direction exception was taken by the defendant. In considering the effect of these facts, it should be premised that railroad companies, like other common carriers, have a right to make reasonable regulations as to the management of their business. While the}' may, if they see fit, have the freight and passenger business car- ried on upon a single train, under one management, they may also completel}' separate their transactions by arranging them in distinct departments. They may thus have an engineer, brakemen and a con- ductor, whose duties shall be confined solely to the management of a freight train. Such a conductor, though bearing the same name as the general manager of a passenger train, would have quite different powers. The law would, in general, onl}' confer upon him such author- it}' as was incidental to the business of moving freight; and no power whatever as to the transportation of passengers. This would clearly be the case if a person applying to be a passenger on a freight train had actual notice of the division of the business. In the great trans- actions of commercial corporations, convenience requires a subdivision of their operations among man}' different agents. Each of these may have a distinct employment, and become a general agent in his par- ticular department, with no powers beyond it. He is only identified with the principal to that extent. Notice to such an agent would only be notice to the principal in respect to the department in which he acted. (1 Parsons on Contracts, 76 [5th ed.] ; see Story on Agency, §§ 17, 167, where the distinction between a strict general agent and one for a particular purpose is considered ; see § 131 as to his powers ; also, 1 Parsons on Contracts, 76.) These general propositions will scarcely be disputed. The remaining inquiry is, wiiether notice to a supposed passenger will not be implied from the nature and apparent division of the busi- ness. It would seem so. The matter will be simplified by supposing, EATON V. DELAWARE, LACKA.WANNA AND WESTERN RAILROAD. 131 in the outset of the discussion, that this had been a coal train without an\- " caboose " attached. Under such circumstances, although a way- farer had taken a gratuitous ride, with the conductor's assent, upon one of the coal vans, happening for the moment to be enipt}-, so that he could improvise a seat, he could scarcely be deemed a passenger, and the defendant, as to him, a carrier. The presuni))tion is that a person on a freight train is not, legally, a passenger ; and it lies with him who claims to be one, to take the burden of prpof to show that, under the special circumstances of the case, the presumption has been rebutted. So, if a stagecoach proprietor should regularl}- carry his passengers in a stage and their baggage in a wagon, there would be a fair presumption that the wagon was not intended for passengers, though, under special circumstances, it might be used in that manner. A person asserting that he was a passenger, though riding in the bag- gage-wagon, Avould be bound to prove it. In both these cases, the distinction between the passenger and the freight business would be so marked by the external signs of classification, that an}- person of ordi- nary prudence would take notice of it. This would be equivalent to actual notice, and the burden of proof would devolve upon him to show that the carrier had relaxed his rule. (Robertson v. New York and Erie Railroad Co., 22 Barb. 91.) The question now recurs, whether there is anything in the facts of the present case to rebut the presumption which would naturally be derived from the separation of the defendant's coal business from its other transactions. If so, it must be in the authority of the conductor, as a general agent of the defendant, or in the appearance of the caboose as fitted up for the transportation of passengers, or, in the conductor's invitation or suggestion, as to the plaintiff's employment as a brakeman. It is a fallacy to argue that a conductor is a general agent for this purpose, assuming that his power would, as a rule, place him under the class of general agents ; he only holds that position for the rnanagehient of a //-eight train. The fact that the same word, " conductor," is used to designate sei'vants in two kinds of business, which the defendant has made perfectly distinct, tends to confusion. There is no real analog}' between the duties of a conductor of a pas- senger train and those of the manager of a strict freight train. A different class of men would naturalh' be employed in the two cases. The defendant has a right to assign specific duties to the one distinct from those performed by the other. It is a familiar rule in such a case, that an agent cannot increase his powers by his own acts ; they must always be included in the acts or conduct of the principal. (Marvin /•. Wilber, 52 N. Y. 270, 273.) No act of a conductor of a freight train will bind the company as to carrying passengers, unless the principal in some wa}' assents to it. In the present case, it was distinctly proved that the company forbade the act, and there was no evidence of any form of assent to its exercise, except that which may be inferred from the use of the caboose. 132 DICKINSON V. WEST END STREET EAILWAY. The caboose was not fitted up in tlic manner usual in passenger ears. Its general appearance sliowed it to be exclusively designed for the use of the defendant's servants. The plaintiff could not have been misled as he paid no fare. The conclusion is, that there was nothing in the attendant circumstances, in the present instance^, to show that the conductor could, by inviting the plaintiff to get upon the train, create between him and the defendant the relation of passenger and carrier. DICKINSON V. WEST END STREET RAILWAY. Supreme Judicial Court of Massachusetts, 1901. [177 Mass. 365.] Knowlton, J. The question in this case is whether the plaintiff was on the defendant's car as a passenger at the time of the accident, or whether he was at that moment in the service of the defendant, in such a sense that the negligent motorman was his fellow servant. The defendant had made a rule, " permitting pohcenien, firemen, advertising agents, news agents and employees of the defendant com- pany in uniform to ride free at any time, such jiersons being required to ride upon the front platform so far as practicable." At the time of the accident the plaintiff was riding on the front platform under this rule, wearing his uniform. Persons riding gratuitously under this rule are passengers, as well as those who pay their fare. Todd v. Old Colony & Fall River Railroad, 3 Allen, 18. Doyle v. Pltchburg Rail- road, 162 Mass. 66. Steamboat New World r. King, 16 How. 469. State V. Western ^Maryland Railroad, 63 Md. 433. All members of the classes included in the rule stand alike in reference to the duty of care which the defendant owes them, whether they come within one part of the description or another. The rule in reference to employees permits them to ride at any time and place, and for any purpose, if they are in uniform. The reasons in each case for extending this privilege to members of these different classes are not material. Prob- ably they are different in reference to different classes, but they are such as the defendant deems sufficient. So far as employees are con- cerned, it is enough that, except possibly in regard to wearing uniform, they are given the same rights as others who have no direct connection with the defendant by employment or otherwise. The question then is, whether at the time of the accident the plaintiff was riding in the full exercise of the rights given by this rule, or whether he was on the car in the performance of his duties as a servant of the defendant, so as to make him at that moment a fellow servant of the motorman. The bill of exceptions answers this question in its statement as follows: his work for the defendant "consisted of KILDUFF V. BOSTON ELEVATED RAILWAY. 133 a certain number of trips at fixed and regular times (^acb day ; at the time of the accident, he was not on actual duty, but at about noon had finished liis work of tliat morning, got on the first car that came along and was going home to dinner ; tliat he took no part in the manage- ment of this car ; that he usually had about three hours, between twelve and three o'clock, during which he was not on actual duty, and his time was his own ; and he usually returned home about noon to dinner." The car on which he was riding was not on the line on ■which he was employed. At the time of the accident he did not stand in the relation of a servant to the defendant. His time was his own, and he owed the defendant no duties until the time arrived for resuming his work. It ■was no part of his duty to the defendant, as a servant, to take the car on which he ■n-as riding and go to a particular place for his dinner. He might go where he pleased and when he pleased during the interval before coming back to his work. This case is different in this particu- lar from cases in which the plaintiff was riding in the line of his duty in the course of his employment. Gillshannon i\ Stony Brook Railroad 10 Cush. 228. O'Brien v. Boston & Albany Railroad, 138 Mass. 387. McGuirk v. Shattuck, 160 Mass. 45. Manville v. Cleveland & Toledo Railroad, 11 Ohio St. 417. McNulty v. Pennsylvania Railroad, 182 Penn. St. 479. His rights were the same as if, after finishing his day's service, he had taken a car in the evening to visit a friend, or to do any business of his own. The fact that he had been in the defendant's service during the day would not make him a fellow servant with the motorman while riding in the evening under the rule, any more than if he had been a policeman or a newsdealer. The case comes within the decision in Doyle v. Fitchburg Railroad, 162 Mass. 66. For other cases of similar purport see Baltimore & Ohio Railroad v. State, 33 Md. 542 ; State v. Western Maryland Railroad, 63 Md. 433 ; Baird r. Pettit, 70 Penn. St. 477, 483; McNulty o. Pennsylvania Railroad, 182 Penn. St. 479; Packet Co. v. McCue, 17 Wall. 508; Morier r. St. Paul, Minneapolis, & Manitoba Railway, 31 Minn. 351 ; Manville u. Cleveland & Toledo Railroad, 11 Ohio St. 417. Exceptions sustained. KILDUFF V. BOSTON ELEVATED RAILWAY. Supreme Judicial Court of IMassachusetts, 1907. [195 Mass. 307.] Morton, J. Although at the time of the accident the plaintiffs intestate had finished his work for the day, and was under no obliga- tion to do any more work for tlie defendant on that day, it seems to us plain that he was being transported by the defendant as an incident 134 TOLEDO, WABASH AND WESTERN RAILWAY V. BROOKS. of his employment and that the relation between him and the defendant was therefore that of master and servant and not that of carrier and passenger. The car was a special car in which only the laborers who were working on that particular job were allowed to ride, and was furnished for the mutual accommodation of the company and the laborers, and the plaintiff's intestate paid no fare. The portion of the track where the accident occurred was not open to the public, and transportation over that and the rest of the route was plainly furnished by the defendant to the deceased as a laborer in its employment and not as a passenger. It cannot reasonably be referred to any other relation. Gillshannon v. Stony Brook Railroad, 10 Gush. 228. Seaver ". Boston & Maine Railroad, 14 Gray, 466. Gilman v. Eastern Railroad, 10 Allen, 233. O'Brien v. Boston & Albany Railroad, 138 Mass. 387. McGuirk v. Shattuck, 160 Mass. 45. Olsen v. Andrews. 168 Mass. 261. Boyle v. Columbian Fire Proofing Co., 182 Mass. 93, 102. It follows that the negligence complained of was that of a fellow servant and that the plaintiff is not entitled to recover. The case of Dickinson V. West End Street Railway, 177 Mass. 365, relied on by the defend- ant, is clearly distinguishable from the case at bar and more like Doyle V. Fitchl)urg Railroad, 162 Mass. 66. The conclusion to which we have come on this branch of the case renders it unnecessary to consider the question of the intestate's due care, or the motorraan's negligence. Exceptions overruled. TOLEDO, WABASH AND WESTERN RAILWAY v. BROOKS. Supreme Court of Illinois, 1876. [81 ///. 245.] Walker, J.^ . . . It is urged that the court erred in refusing to give the ninth or some one of the other instructions asked by plaintiff in error, but refused by the court. That instruction asserts, that if de- ceased knew that the regulations of the company prohibited persons from travelling on the road without a ticket or the payment of fare, and if, after being so informed, he went on the train, and by arrange- ment with the conductor was travelling without a ticket or paying his fare, deceased, in such case, would not be a passenger, and the company would not be liable for the negligence of their officers. In some form, all these refused instructions present this question. Defendant in error insists that this case is governed by that of The Ohio and Mississippi Railroad Co. v. Muhling, 30 111. 9. In that case the passenger had been in the employment of the road, and was neither 1 Part of the opinion only is given. — Ed. TOLEDO, WABASH AND WESTERN RAILWAY I'. BROOKS. 135 prohibited from getting on the train, or 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 em- ployees of the company, the passenger thus injured might recover. On the part of plaintiff in error it is urged, that railroad companies, being Uable for the want of care of their officers by which passengers suffer injury, must have the power to make all reasonable regulatioiis for the government of their employees, and the power to enforce them ; that it is a reasonable regulation which prohibits persons from travelling upon their roads without purchasing a ticket or paying fare; that a person going on their road in known violation of such a rule, and by inducing the conductor to violate it, is not lawfully on the road, and the company should not be held responsible for an injury received by such person ; that where a 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 employees of the company, to get upon a train and secrete himself, for the purpose of passing from one place to another, he could not recover if injured. In such a case his wrongful act would bar him from all right to compensation. Then, does the act of the person who knowingly induces the conductor to violate a rule of the company, and prevails upon him to disregard his obligations to fidelity to his employer, to accomplish the same purpose, occupy a different position, or is he entitled to any more rights ? He thereby combines with the conductor to wrong and defraud his employer out of the amount of his fare, and for his own profit. In this case the evi- dence tends strongly to show that both defendant in error and her husband had money more than sufficient to pay their fare to Danville, and a considerable distance beyond that place. If this be true, and defendant in error swears they had, then they were engaged in a delib- erate fraud on the company, no less than by false representations to obtain their passage free from Decatur to Danville, and thus defraud the company out of the sum required to pay their fare. In this there is a broad distinction from Muhling's case, as in that case there was no pretence of fraud or wrong on liis part. The court below should have given some one of the defendant's instructions which announced the view here expressed.^ 1 See Chicago & A. R. R. v. Michie, 83 111. 427; McNamara v. Ry., 61 Minn 296. — Ed. 136 riTZMAURICE V. NEW YORK, NEW HAVEN & HARTFORD RAILROAD. FITZMAURICE v. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD. Supreme Judicial Court of Massachusetts, 1906. [192 Mass. 159.] Sheldon, J. The plaintiff, while riding upon a train of the defend- ant, was injured by reason of a collision ; and no question is made but that she would have been entitled to a verdict in her favor if she had the rights of a passenger. She was a minor. She was riding upon a three months' season ticket which was good only for students under eighteen years of age. She had obtained this ticket by presenting to the defendant's ticket agent a certificate purporting to be signed by her father that she was under eighteen years of age and was a pupil in the Hollander Art School, Boston, and agreeing that she would not use the ticket otherwise than in going to and from the school ; and also present- ing a certificate purporting to be signed by " J. F. Miner, Principal, Hollander Art School, Boylston St., Boston, Mass.," that she was a pupil in his school, and as he fully believed intended to remain so for the next three months. She was at this time over eighteen years of age, as she testified, lived in Marlborough, and was employed in Hollander's dry goods' stor^e in Boston. The regular price for a season ticket was S32 ; the reduced rate for students under eighteen years of age, at which the plaintiff procured it, was $16. She had been riding upon this ticket nearly every day except Sunday for over a month, and the coupons had been received by the conductor. Upon the face of the ticket were the words, '^ Good only for a person under eighteen years of ao-e." The iurv havino; found the amount of the plaintiffs damages if she was entitled to recover, the judge ordered a verdict for the de- fendant, and reported the case to this court, with the stipulation that if she is entitled to recover, judgment is to be entered in her favor for that amount ; otherwise, there is to be judgment on the verdict. The defendant had the right to establish a reduced rate for students under a fixed age. R. L. c. Ill, § 228. A statute requiring similar action l:)y street railway companies was sustained by this court in a recent case. Commonwealth v. Interstate Consolidated Street Railway, 187 Mass. 436. The plaintiff knew that she did not come within the class to which this offer of a reduced rate was made, and obtained her ticket by presenting certificates of facts which she knew to be false. She thus obtained by false representations a ticket to which she knew that she was not entitled. Whatever rights she had to be regarded as a passenger on the defendant's train she had acquired solely by the fraud which slie had practised upon the defendant. She had no right to profit by her lYaud ; she had no right to rely upon the consent of the railroad FITZMAURICE V. NEW YORK, NEW HAVEN & HARTFORD RAILROAD. 137 company to her entering its train as a passenger, wlien she had obtained that consent merely b\- gross misrepresentations. Accordingly she was not lawfully u[)on the defendant's train ; she was in no better position than that of a mere trespasser. This principle has been afflrmed in other jurisdictions. Thus it has been held that a person travelling over a railroad on a free pass or a mileage ticket which had been issued to another by name and was not transfeiable, was barred b}- his fraudulent conduct from recovering for a personal injury unless it was due to negli- gence so gross as to show a wilful injury. Toledo, Wabash & "Western Railway v. Beggs, 85 111. 80. "Way r. Chicago, Rock Island & Pacific Railway, 64 Iowa, 48. If the plaintiff had fraudulently evaded the pay- ment of any fare, she certainly would not have become a passenger, and the defendant's utmost dut\- to her while she was upon its train would have been to abstain from doing her any wilful or reckless injury. Condran r. Chicago, Milwaukee & St. Paul Railway, 07 Fed. Rep. 522. Toledo, Wabash & Western Railway v. Brooks, 81 111. 245. Chicago, r)urling- ton & Quincy Railroad v. Mehlsack, 131 111. Gl. But such a case cannot be distinguished in principle from the case at bar, in which the plaintiff obtained her ticket at a reduced price by successfully practising a fraud. The only relation which existed between the plaintiff and the defendant was induced by her fraud ; and, as was said by the court in Way V. Chicago, Rock Island & Pacific Railway, iibi supra, she cannot be allowed to set up that relation against the defendant as a basis of recovery. See also to the same effect Godfrey r. Ohio & Missis- sippi Railway, 116 Ind. 30; McVeety r. St. Paul, Minneapolis & Manitoba Railway, 45 Minn. 268 ; McNeill v. Durham & Charlotte Railroad, 31 Am. & Eng. Railroad Cas. (N. S.) 285. Nor is the plaintiff helped by the fact that the defendant's conductors had accepted the coupons of her ticket. This simply showed that she had succeeded in carrying her scheme to completion. There had been a similar acceptance by the conductor in Way r. Chicago, Rock Island & Pacific Railway, and Toledo, Wabash & Western Railway v. Beggs, ubi supra. If the defendant's conductors did not know the real facts, their acceptance of her coupons could have no effect ; if they knew the facts and acquiesced in the plaintiff's wrongful i)urpose. this conduct could give her no additional rights. McVeety /•. St. Paul. Minneapolis . 140 HALE v. GRAND TKUNK RAILROAD. gers, and in the case of delayed trains; but if so, these would be exceptions and not the rule. Waiting-rooms are not a part of the ordinary duties pertaining to the rights of passengers and common cari-iers. But they are established by carriers as ancillaries to the business of carriers and for the accommo- dation of passengers, and not as a place of lodging and accommodation for those who are not passengers. This being so, it must be that the cai'rier should have a reasonable control over the same, or it could not protect its passengers in said rootns. There is error. I^ew trial. HALE V. GRAND TRUNK RAILROAD. Supreme Court of Vermont, 1«88. [60 Vt. 605; 15 Atl. 300.] Ross, J.^ By the agreed case, November 2, 1885, the defendant was operating a railway from Portland, Me., to Canada Line, and had a station at Berlin Falls, N. H. As such it was carrying the mail on its mail trains for the United States government, according to the laws of the United States, and pursuant to the conditions and regulations imposed by the post-otiice department, at a fixed compen- sation. The plaintiff, on that evening, in attempting to go to its mail train while stopping at the station at Berlin Falls, for the pur- pose of mailing some letters, in the exercise of due and proper care, fell from an unguarded and, as he claims, insufficiently lighted plat- form, leading from the station to the train, and was injured. By the regulations of the post-office department it was then the duty of postal clerks on trains carrying the mail to receive at the cars among other things, from the public, letters on which the postage had been prepaid, and then to sell stamps with which to prepay such postage. Sections 720, 762, Instructions to Railway Postal Clerks. Hence, as a part of the service which the defendant was performing for the government, and for which it was receiving compensation from the government, it was under a duty to furnish the public a reasonably safe passage to and from its mail trains, while stopping at its regular stations, for the purpose of purchasing stamps and mailing such letters. The plaintiff was a member of the public, and was attempt- ing to pass over the platform provided by the defendant to the mail train, for the lawful purpose of mailing two letters. By accepting the carriage of the mail for the government, the defendant became under the duty to furnish him a reasonably safe passage to its mail train, for the purpose of mailing his letters. In attempting to pass over the platform to its mail train foi- this purpose the plaintiff was 1 The opinion only is given ; it sufficiently states the case. — Ed. HALE V. GRAND TRUNK RAILROAD. 1-tl neither a trespasser, intruder, nor loafer, but was there to transact business, which the defendant had undertaken to ilo with him, for a compensation received from the government ; in fact was there, at the invitation of the defendant, to transact business whicli it had been hired to perform for and with him, by the government. The duty of the defendant to furnish the ph\intitf a reasonably safe passage to its mail train to mail his letters was none the less binding or obligatory because the compensation received therefor came from the government rather than the plaintiff. A. holds a regular passenger ticket over a railroad. The duty of the company operating the road to carry him safely is none the less binding, nor are his legal rights, if injured, in the least abridged because the ticket was paid for by the money of B., rather than with his own money. The government derives a large part of its revenue with which it pays for the mail service by the sale of postage stamps to Avhomsoever of the public may desire to use that arm of its service. The money which the plaintiff had paid for the postage stamps upon the letters he was carrying, or which he would have paid the postal clerk for stamps to use upon the letters, was indirectly a payment to the defendant for the service which it was about to perform for the plaintiff, in carrying the letters which he was about to post, on the way towards their destination. But whether the plaintiff" paid indirectly to the defendant for the service and accommodations which it was under a duty to furnish him, or the government paid therefor, and gave it to the plaintiff", does not vary the defendant's duty to furnish him a reasonably safe passage to the mail car for the purpose of mailing his letters, nor are his legal rights thereby abated. Actionable negligence is a failure in legal duty which occasions an injury to a part}' free from contributory negli- gence, or who has not failed in the discharge of his dut}' in the given circumstances. They have also conceded in the agreed case that the plaintiff exercised due and proper care on the occasion. They only contend that the defendant was under no legal duly to furnish the plaintiff' a reasonably safe passage to the mail car, for the purpose of mailing his letters, mainly because he was to pay the defendant nothing therefor directly. But, as we have already endeavored to show, that fact would not relieve the defendant from the duty, inas- much as it was paid by the government for discharging that duty to the public; that is, to any person who had occasion to go to the mail car when stopping at regular stations to transact any lawful business with the servants of the government. These views would aliirm the judgment of the county court, but, in accordance with the stipulation of the parties, that judgment is reversed pro farnia, with costs to the plaintiff, and the cause remanded for trial. ^ 1 See Bradford v. Boston & M. R. R., 160 .Mass. 392, :]i N. E. 1131. — Ed. 142 PENISTON V. CHICAGO, ST. LOUIS, ETC. KAILROAD. PENISTON V. CHICAGO, ST. LOUIS, AND NEW ORLEANS RAILROAD CO. Supreme Court of Indiana, 1882. [34 La. Ann 777.] PoCHE, J. Plaintiff, a passenger on a train of the defendant from Cliicago to New Orleans, was injured wliile walking from an eating station to her train, on the defendant's road, and has recovered, in this snit, a verdict and judgment for damages in the sum of six thousand dollars. The evidence is decidedly conflicting, but a careful reading of the record has satisfied us that the following facts are established : On the 31st of Januar}-, 1878, while plaintiff, accompanied by her daugliter and her son-in-law, were passengers on a train of the defend- ant, from Chicago to New Orleans, they came out of their car at about eight o'clock at night, at Hammond Station, then a regular supper station on said road, according to its schedule, for the purpose of taking necessary refreshments. The building in which meals are served is situated at a considerable distance from the railroad, and is reached by passengers who alight on the main track of the road, by crossing over a side track, and passing on a large platform, and thence through a narrower and covered plat- form which leads into the hotel. On the arrival of the train, a torchlight burning on an elevated plat- form affords ample light to guide the steps of passengers to the covered platform, where two or three lamps light up the way to the interior of the building. After supper, and on returning to their train, plaintiff and her com- panions discovered that the torchlight had ceased to burn, and that there was no other light or signals to guide their steps securely through the large platform in front of the hotel to their train, and that there was no officer or employee of the company charged with the duty of pointing out to passengers the way from such platform to their train. Their train, which they had left on the main track, had been removed therefrom and placed on the side track lying next to the hotel, and another train, since arrived, was then occupying the position on the main track, where they had left their train on alighting for supper. They had received no information, officially or otherwise, of those changes, operated while they were in the supper room. Finding a train on the side track, and believing that to be a new train, which was standing between them and their train, they concluded to go around said former train, so as to reach theirs, and to do so they followed the platform fronting the hotel, and on which there was no PENISTON V. CHICAGO, ST. LOUIS, ETC. RAILROAD. 143 light, and not noticing the termination on said platform on two steps of stairs leading to tlie main ground, plaintiff, who walked in the lead of her companions, fell to the giound, dislocating her ankle and frac- turinii her leg in two places, from which she suffered great pain, was confined to her room for four months, was compelled to walk on crutches for eight months, and from which injuries she has not yet recovered the free use of her limb. Defending under a general denial, the corporation urges its want of responsibility, on the grounds : 1. That the hotel and platform are not the property of the company, but of another person, for wliom defendant is in no manner responsible. 2. That the accident occurred through plaintiff's own fault, who should not have attempted to walk around the train on the side track, which was her train, the approach of which, from the eating station, was made easy and safe by lights burning in the covered platform and in a lunch stand situated at the rear end of said gangway, and who should have made inquiries concerning lier train. These propositions involve the discussion of the degree of care, attention, and protection which railroad companies, as common car- riers, owe to their passengers. In conveying passengers through long journeys, such as from Clu- cago to New Orleans, at great speed and with rapidity, a common carrier is required by humanity, as well as by law, to provide its pas- sengers with easy modes and to allow them reasonable time for the purpose of sustaining life, by means of food and necessary refresh- ments. Hence it is, that on all such roads, arrangements are made to enable passengers to obtain at least two meals a day, and that an- nouncement is'made in every passenger train by employees of the road of the approach of a train to a station where, under arrangements with the company, meals are prepared for the convenience of its i)assengers. It is well established in jurisprudence that railway companies are under the legal obligation to furnish safe and proper means of ingress and egress to and from trains, platforms, station ai)proaches, &c., and it is well settled that any person injured, without fault on his part, by any dereliction of its duty in the premises by a railway company, can recover damages against the corporation for injm-ies thus received. Cooley on Torts, pp. 605, 606, 642 ; Addison on Torts, § 245 ; Shear- man & Redfield, p. 327, § 275. This principle has been applied in a case where a passenger, an old lady, was put out at her destination, at a station where there was no light to guide her steps, and no employee of the company to show her the way out of the station grounds, and was injured in trying to go from the station to a fiiend's house, by falling from the platform. Fatten r. Ciiicago & Northwestern R. R. Co., 32 Wis. 528. Under the same rule, a railway company was held resi)onsiblc for injuries received by a passenger in walking from one of its trains to a transfer boat, bv falling on a wharf on whicii there was not sulllcient licrht. Beard y.'Conn. & Pass. Rivers R. R. Co., 48 Vt. 101. 144 PENISTON V. CHICAGO, ST. LOUIS, ETC. RAILROAD. In the enforcement of the same rule, a railwa}- company was mulcted in damages in a case where a lad.y passenger, alighting from her train at her destination, and finding no safe and convenient platform leading to the highway, attempted to walk across three of the railroad tracks, and fallin" in a " cattle-guard " filled with snow, was run over and killed by anotlier train of the same company. Hun, N. Y. Reports, vol. 13, 589 ; see also 56 Me. 244 ; IG How. 4G9. The obligation of furnishing, by railway companies, safe and easy ingress and egress to and from their platforms, has been extended so as to embrace cases of persons who were not passengers on tlieir roads, but who came on business to their stations, and were injured by means of insufficient or defective platforms, such as a hackman who had transported passengers to a railroad depot. 59 Maine, 183; see also Jamison v. San Jose R. R. Co. (California), 11 Reporter ; Law v. Grand Trunk R. R. Co. (Maine), 12 Reporter, p. 397. Fully indorsing and concurring with this jurisprudence, we hold that the defendant company is legally bound to furnish to its passengers an easy and safe mode of going to and from its trains, and such eating stations as it may have provided for the wants and convenience of its passengers, and that for the purpose of enforcing this obligation, it is immaterial whether the eating station is owned and kept by the com- pany or by another person, with an understanding with the company as to the time of preparing and furnishing the meals. In our opinion, this obligation imposes upon the railway company the duty of having ample and sufficient lights, for meals furnished at night, to safely guide their passengers to and from the hotel or eating station, and in case trains are removed from one track to another during the meal, to inform, by employees, the passengers on their egress from the eating or dining room, of the exact location of their respective trains. We have given due and respectful consideration to the testimony of defendant's witnesses, who state that the platform was sufficiently lighted for all purposes needed by the passengers. These witnesses are the train conductor, two or three other railroad employees, the proprietor of the hotel, his lessee, who keeps it, and the local post- master, who are all familiar with the place, are there at the arrival of every train, which they all designate by their numbers, are familiar with the rules of the company, and know that during the supper meal the southbound train is moved to the side track from the main track, which is then occupied by the northbound train. It stands to reason that the light which will be sufficient to enable such persons to move about in perfect safety, will not be sufficient to safely guide a stranger, especially a woman who comes from a distant land, is aroused in her sleeping car by the sudden and shrill announcement by a brakeman of *' twenty minutes for supper," and alights from her car in the brilliant torchlight, is shown to the hotel by numerous and zealous runners or servants, in great eagerness to secure her patronage, and who lose LEMERV V. GREAT NORTHERN RAILWAY. 145 sight of her after receiving her money, and now that the torch is out, she is lefc alone, unaided and unprotected, to grope her wa\- in dark- ness to her train, whicli is not now where she left it a few minutes before. Hence, it is but fair, reasonable, and just, to hold the railway company stricth' responsible for the injuries wliicli slie received in her attempt to discover the location of the train on which she was a passenger. Under the peculiar circumstances of this case, in which i)laintiff is sliown to have suffered for months excruciating pains, was forced to great expense in the emplo3'ment of surgeons and nurses, and is yet in a crippled condition, we are not prepared to say tluit the verdict of the jury was excessive. The district judge did not err in overruling defendant's motion for a new trial, urged on the ground of newly discovered evidence, as it appeared that the witness on whose testimony it was based could only corroborate defendant's other witnesses. The judgment of the lower court is, therefore affirmed with costs. Rehearing refused. Levy, J,, absent.^ LEMERY V. GREAT NORTHERN RAILWAY. Supreme Court of Minnesota, 1901. [83 Minn. 47.] Brown, J. This is an action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. The court below directed a verdict for defendant, and plaintiff appeals from an order denying a nevv trial. The facts in the case are practically undisputed, and as follows : On June 18 and ID, 1899, defendant ran an excursion train over its line of railroad from Park River, in North Dakota, to Duluth, this state, and return. Plaintiff w-as a passenger on such excursion, having pur- chased a round-trip ticket at Park River, his place of residence. The train was divided into two sections, the first section on tlie return trip being a through train, not stopping at intermediate stations to receive or discharge passengers. On the return to Park River, on June 19, plaintifi' was a passenger on the first section of the train. This section was made u^) of twelve cars — one baggage car, eight da}' coaches, and three sleeping cars. Between tlie sleeping cars and the dav coaches was a car occupied exclusively by a militia company, and guarded at 1 Compare : R. R. v. Orr, 46 Ark. 182 ; U. R. r. Nuswanffcr, 41 Kaus. fi25 ; R. K. r. Lucas, 119 Ind. 583; Knight v. R. R., ."jG Me. 234; Doiigc r. Steaiiil.oat Co., 148 Mass. 207 ; R. R. v. Sue, 23 Neb. 772; Stewart v. It. R., 53 Te.\. 289 ; Beard v. R. U., 27 Vt 377. — Ed. 10 146 LEMERY V. GREAT NORTHERN RAILWAY. each entrance, though it does not appear that passengers were pre- vented from passing through the car whenever necessary-. At the time of entering the train on the return trip plaintiff took a seat in one of the day eoaclies, but subsequentl}' passed to the rear of the train, through the militia car, into one of the sleepers. When the conductor came into the car collecting fares and taking up tickets, plaintiti dis- covered that he had lost his ticket, and the conductor required him to pay his fare, wl^ch he did. At the time of paying the fare plaintiff demanded of the conductor a receipt for the mone}'. The receipt was not given. The conductor had no blank receipts with him ; they being, as he said to plaintiff, at the other end of the train. After paying his fare, plaintiff remained in the sleeping car until the train arrived at Grand Rapids, this state, at which point he left the train to go upon the station platform, and in doing so received the injuries complained of. His object in leaving the train, as we understand his testimony, was for two purposes : (1) To find the conductor and again demand the re- ceipt for the fare paid him ; and (2) to pass around the militia car to enter one of the day coaches, it being, as he now claims, his under- standing that he would not be permitted to remain longer in the sleeper, and that the guards would not permit him to pass through the militia ear. In alighting at the station, plaintiff fell between the steps of the car and the station platform, — at least, such is his claim, — was shocked and stunned by the fall to such an extent tliat he was unable to get back upon the train before it started, and in consequence was injured. Two specific acts of negligence are relied upon to sustain plaintifl;"s right to action — first, that the defendant failed in its duty to plaintiff as one of its passengers in not having the station platform at Grand Rapids properly lighted at the time of the arrival of the train ; and, second, that the station platform was negligentl}- constructed, in that the outer edge thereof was at an unsafe and dangerous distance from the steps of the car. Other acts of negligence pleaded in the com- plaint are of no consequence or importance, for, unless the evidence establishes a right of recovery upon either of the grounds stated, the plaintiff must fail in the action. The decisive question in the case resolves itself into one proposition, viz. : What duty did defendant owe plaintiff as a passenger on the train in question with respect to lighting the station platform at Grand Rapids, and with reference to the construction of its station platform at that point? As stated, this section of the excursion train was a through train, and did not stop at points between Duluth and Park River to receive or discharge passengers. It stopped at Grand Rapids for the purpose only of taking water. The trainmen did not announce or call out the station at the time of or before the train came to a stand- still. The station platform was unlighted, and was very dark. Plain- tiff himself testified that he could not distinguish readily an acquaint- ance who spoke to him at the car platform. Plaintiff was in no manner, expressly or impliedly, invited to leave the train at the time LEMERY V. GREAT NORTHERN RAILWAY. 147 he did. There was no occasion, so far as the record discloses, for him to do so, either to obtain a receipt from the conductor, or to enter one of the day coaches. His statement that some one Informed him that the conductor left the train at that point has but little weight, inas- much as he made no inquiry to learn the fact in that regard. At the arrival of the train at this station, the conductor was in the same car with plaintiff, and plaintiff could very readily have made inquiry of him, and also demanded his receipt. Instead of doing so, however, he attempted to alight from the train in the dai'kness. There is no claim that he had been ordered to leave the sleeping car, nor was he prohib- ited or prevented from passing through the militia car. He iiad passed through that car at least twice previous to the arrival of the train at Grand Rapids, and he made no effort to return to the day coach b}' way of that car. It is stated as the general rule in Alabama G. S. Ry. Co. v. Cog- gins, 32 C. C. A. 1, 88 Fed. 455, that where a through passenger, without objection by the company or its agents, alights from the train at, an intermediate station, which is a station for the discharge and re- ception of passengers, for any reasonable and usual purpose, like that of refreshment, the sending of telegrams, or of exercise bj' walking up and down the platform, he does not cease to be a passenger, and re- tains the right to the protection accorded to such by the law. This rule is sustained by the great weight of authority, and is not controverted by the defendant in this case, except that it contends that it has no application to a through train that does not stop at intermedi- a/e stations to receive or discharge passengers. Appellant relies upon the rule to justify his conduct in leaving the train in question. If the rule is to be applied to all trains, whether through or local, it sustains him, and the case should have been sent to the jurj-, at least this branch of it. But the rule is not as broad as appellant contends. There must, in the very nature of things, be a distinction between a through train carrying through passengers, and a local train stopping at all stations to receive and discharge passengers. As to the latter there is no ques- tion but that passengers may, for any legitimate purpose, alight from the train at any intermediate station at which the train stops to receive and discharge passengers, without relinquishing or al)and()ning their relation to the company as passengers. But as to a through train, carrying only through passengers, the passenger who leaves the train without the knowledge, consent, or invitation of the company, at an intermediate station at which the train stops only for some purpose in connection with its management and operation, as for the purpose of taking water or coal, and not to receive or discliarge passengers, nnist be deemed to have abandoned his relation as a passenger, and to take upon himself for the time being all risks incident to his movements. In the case of a local train, the company is bound to know that pas- sengers may be received and discharged at all stations at which a train may stop for that purpose, and is required by the rule to keep the ap- 148 LEMERY V. GREAT NORTHERN RAILWAY. preaches to the train in a safe condition for their egress and ingress. But as to a through train, there being no passengers to discharge and none to receive, a stopping of the train for some purpose connected with its operation creates no necessity for the exercise of vigilance in the matter of the attention to approaches to the train, and the company should not be held guilty of negligence in failing to do so. Of course, if a passenger leaves a through train with the consent and permission of the company or its agents, it would be the duty of the company to exercise the same degree of care as is required with respect to passen- gers on local trains. This was not a local train, but a through train, and the plaintiff was a through passenger. The train did not stop at Grand Rapids to re- ceive or discharge passengers ; there was no invitation held out to plaintiff to leave the train at that station ; there was no occasion for him to do so ; and he must be taken to have assumed all risks incident thereto. There was not only no invitation, express or implied, to passengers to leave the train at this station, but the fact that the station platform was unlighted was in the nature of a warning to them to re- main on board. It is not- necessary to consider any other questions in the case. In the view of the law as we have stated it, defendant was not negligent as to the plaintiff in not having the station platform at Grand Rapids properly lighted on the occasion in question, nor was it guilty of neg- lio-ence as to him because of anv defect in the construction of the station platform. The order appealed from is affirmed. BREMXER V. WILLIAMS. 149 BREMNER v. WILLIAMS. Common Pleas, 1824. [1 C.<^^P.4U.] Assumpsit against the defendant, who was proprietor of a Kentish- Town stage, to recover a compensation for an injury sustained bj- the plaintiff, in consequence of the insufficient state of the defendant's coach. Best, C. J. Tlie declaration states, that the defendant undertook to carry the plaintiff safely. There is no express undertaking that the coach shall be sound, nor is it necessary; for I consider that every coach-pro- prietor warrants to the public that his stage-coach is equal to the journe}' it undertakes. The counts go on to charge negligence, and the case may be decided upon that ground also. Tiie plaintiff, it seems, complained in Gray's Inn Lane ; and if the driver had then got down, most likelv the accident would not have happened. It is for the jury to say, whether, when a man's attention is called to a particular motion of the dicke}' of his coach, and he does not get down to examine the cause, is not this a negligence. The driver said, it was the playing of the springs ; but it could not be so, for the plaintiff would have found that before. T am of opinion, that it is the duty of a proprietor of a stage-coach to examine it previous to the commencement of every journe\-. For, when ten or fourteen people are placed on the outside, as is the case with many of these stages, a master is guilty of gross negligence if no in- spection of the coach takes place immediately previous to each journe}-. Verdict for the plaintiff — Damages £h\} LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY V. SNYDER. Supreme Court of Indiana, 1888. [117 Ind. 43.'J.2] Elliott, C. J. The appellee was a passenger on one of the appel- lant's trains, which, by the falling of a bridge, was precipitated into White River, and the appellee severely injured. The twenty-second instruction asked by the appellant and refused, reads thus : 1 Compare: Rcadhead r. R. R., L. R., 4 Q. B. 379 ; Carter r. St. R. R., 42 Fed. 37 ; Sales r. Stage Co., 4 la. 547 ; Ingalls v. Bills, 9 Met. 1 ; Gilson v. Horse R. R., 76 Mo. 282; Fanrish v. Reigle, 11 Gratt. 697. — Eu. 2 This case is abridged. — Ed. 150 GLEESON V. VIKGINIA MIDLAND RAILROAD CO. " The court further instructs jou that b}' ' negligence,' when used ic these instructions, is meant either the faihire to do what a reasonable person would ordinarily have done under the circumstances of the sit- uation, or doing what such person would not have done under the existing circumstances." This instruction was properly refused. It is not proper in such a case as this to define negligence as it is defined in this instruction. In a case of this cliaracter the omission to exercise the highest degree of practical care constitutes negligence, but in other cases the failure to exercise ordinary care constitutes negligence. Counsel are greath' in error in asserting, as the}- do, that the instruction correctly furnishes the standard for the government of the jurj'. The appellant was, as we have substantially said, bound to do more than prudent men would ordinarily do, since it was bound to use a very high degree of care. The dut}' of a railroad company engaged in carrying passengers is not alwaj's discharged by purchasing frcm reputable manufacturers the iron rods or other iron-work used in the construction of its bridges. The dut}' of the company- is not discharged by trusting, without inspect- ing and testing, to the reputation of the manufacturers and the external appearance of such materials. The law requires that before the lives of passengers are trusted to the safety of its bridges, the compan}' shall carefully and skilfullv test and inspect the materials it uses in such structures. This duty of inspection does not end when the materials are put in place, but continues during their use, for the company is bound to test them from time to time to ascertain whether they are being impaired by use or exposure to the elements. Manser v. Eastern, &c. R. W. Co., 3 L. T. (N. S.) 585 ; Texas, &c. R. W. Co. v. Suggs, 62 Texas, 323 (21 Am. & Eng. R. R. Cases, 475) ; Stokes v. Eastern, &c. R. W. Co., 2 F. & F. 691 ; Robinson r. New York, &c. R. R. Co., 9 Fed. Rep. 877; Richardson v. Great Eastern R. W. Co., L. R. 10 C. P. 486 ; s. c. L. R. 1 C. P. Div. 342 ; Ingalls v. Bills, 9 Met. 1 ; Funk r. Potter, 17 111. 406; Bremner v. Williams, 1 Car. & P. 414; Hegeman v. Western R. R. Co., 13 N. Y. 9 ; Alden r. New York Cen- tral R. R. Co., 26 N. Y. 102. The decision in the case of Grand Rapids, &c. R. R. Co. v. Boyd, 65 Ind. 526, is not in conflict with this doctrine, for in that case an inspection was made. Judgment affirmed} GLEESON r. VIRGINIA MIDLAND RAILROAD CO. Supreme Court of the United States, 1891, [140 U. S. 435.] This is an action for damages brought in the Supreme Court of the District of Columbia. It appears from the bill of exceptions that at the trial the evidence introduced by the plaintiff tended to show that 1 Compare: Grote v. K. R., 2 Exch. 251 ; Ford r. R. R., 2 F. & F. 730; Wheaton r. R. R., 36 Cal. .590; Hall v. Steamboat Co., 13 Coun. 319; Fuller r. Talbot, 23 111. 357 ; McElroy v. R. R., 4 Cush. 400; Carroll v. R. R., 58 N. Y. 126. — Ed. GLEESOX V. VIRGINIA MIDLAND KAILKOAD CO. 151 in January, 1882, he was a railway postal clerk, in the service of the United States Post Office Department; that on Sunday, the 15th of that month, in the discliarge of his official duty, he was making the run from Washington to Danville. Virginia, in a postal car of the defendant, and over its road ; that in the course of such run the train was in part derailed by a land slide which occurred in a railway cut, and the postal car ill which the plaintiff was at work was tlirown from the track upon the tender, killing the engineer and seriously injuring the fireman ; and that the plaintiff, while thus engaged in performing his dut\', was thrown violently forward by the force of the collision, striking against a stove and a letter-box, three of his ribs being broken, and his head on the left side contused, which injuries are claimed to have permanently im- paired his physical strength, weakened his mind and led to his dismis- sal from his office, because of his inability to discharge its duties. Defence was made by the company under these propositions : that the land slide was caused by a rain which had fallen a few hours pre- vious, and therefore was the act of God ; that it was a sudden slide, caused by the vibration of the train itself, and which, therefore, the company was not chargeable with, since it had, two hours before, as- certained that the track was clear ; and that the injury resulted from the plaintiff's being thrown against the postal car's letter-box, for which the company was not responsible, since he took the risk incident to his employment. At the close of the testimony, the court having given to the jury cer- tain instructions in accordance with the requests of the plaintiff, charged the jury at defendant's request, as follows : " I. The burden of proof is on the plaintiff to show that the defend- ant was negligent, and that its negligence caused the injury. *' II. The jury are instructed that the plaintiff, when he took the position of a postal clerk on the railroad, assumed the risk and hazard attached to the position, and if, in the discharge of his duties as such, he was injured tlirougli the devices in and al)out tlie car in which he was riding, properly constructed for the purpose of transporting the mails, the railroad is not liable for such injury unless the same were caused by the negligent conduct of the company or its employees, " III. The court instructs the jury that, whilst a large degree of caution is exacted generally from railway companies in order to avert accidents, the caution applies only to those accidents which could be prevented or averted by human care and foresight, and not to accidents occurring solely from the act of God. If they believe that the track and instruments of the defendant were in good order, its bfficers suffi- cient in number and competent, and that the accident did not result from any deficiency in any of these requirements, but from a slide of earth caused by recent rains, and that the agents and servants of the company had good reason to believe that there was no such obstruction in its track, and that they could not, b}- exercise of great care and dili- gence, have discovered it in time to avert the accident, then thev should find for the defendant. 152 GLEESON V. VIRGINIA MIDLAND KAILROAD CO. II IV. If the jury believe from the evidence that the defendant's in- struments, human and physical, were suitable and qualified for the business in wiiich it was engaged ; that the accident complained of was caused by the shaking down of earth which had been loosened by the recent rains, and that the earth was shaken down b}- the passing of this train, then the accident was not such an act of negligence for which the defendant would be responsible, and the jury should find for the defendant." The counsel for the plaintiff objected to the granting of the first of these prayers, and asked the court to modify it by adding the words "but that the injury to the plaintiflT upon the car of tlie defendant, if the plaintiff was in the exercise of ordinary care, is prima facie evi- dence of the company's liability." But the court refused to modify the said prayer, and the plaintiff duly and severally excepted to the grant- ino- of each one of said prayers on behalf of the defendant, and to the refusal of the court to modify the said first prayer, as requested. The jury, so instructed, found for the defendant and judgment was rendered accordingly. That judgment having been affirmed by the court in general term, (5 Mackey, 356,) this writ of error was taken. Lamar, J.^ . . . The instruction does not hold the defendant "re- sponsible for the condition of the sides of the cut made by it in the con- struction of the road, the giving way of which caused the accident." We think this objection is also well taken. The railroad cut is as much a part of the railroad structure as is the fill. They are both necessary and both are intended for one result ; which is the production of a level track over which the trains may be propelled. The cut is made by the company no less than the fill ; and the banks are not the result of natural causes, but of the direct intervention of the company's work. If it be the duty of the company (as it unquestionably is) in the erection of the fills and the necessary bridges, to so construct them that they shall be reasonably safe, and to maintain them in a reasonably safe condition, no reason can be assigned why the same duty should not exist in regard to the cuts. Just as surely as the laws of gravity will cause a heavy train to fall through a defective or rotten bridge to the destruction of life, just so surely will those same laws cause land slides and consequent dangerous obstructions to the track itself, from ill-con- structed railway cuts. To all intents and puri)Oses a railroad track which runs through a cut where the banks are so near and so steep that the usual laws of gravity will bring upon the track the debris created by the common processes of nature, is overhung by those banks. Ordinary skill would enable the engineers to foresee the result, and ordinary pru- dence should lead the company to guard against it. To hold any other view would be to overbalance the priceless lives of the travelling public by a mere item of increased expense in the construction of railroads ; and after all, an item, in the great number of cases, of no great moment. . . . 1 Part only of the opinion is here given. — Ed. INGALLS V. BILLS. 153 We think the case of the Virginia Central Railroad Co. v. Sanger, 15 Grattan, 230, 237, to which we are referred by counsel for plaintiff in error, is strongly illustrative of the principle in this case, to which it bears a close resemblance. Some rocks had been piled up alongside of the track for the purpose of ballast, and some of them got upon the track, causing the injury. In rendering its opinion the court says : "Combining in themselves the ownership, as well of the road as of the cars and locomotives, tliey are bound to the most exact care and dili- gence, not onlv in the management of the trains and cars, but also in the structure and care of the track, and all the subsidiary arrangements necessary to the safety of the passengers. And as accidents as fre- quently arise from obstructions on the track, as perhaps from any other cause whatever, it would seem to follow, obviously, that there is no one of the duties of a railroad company more clearly embraced within its warrantv to carrv their passengers safely, as far as human care and foresight will go, than the duty of employing the utmost care and dilicrence in guarding their road against such obstructions. See also McElrov v. Nashua & Lowell Railroad, 4 Cush. 400 :^ Hutchmson on Common Carriers, 524; Bennett c Railroad Co., 102 U. S. 577. This view of the obligation of the company of course makes it imma- terial that the slide was suddenly caused by the vibration of the train itself. It is not a question of negligence in failing to remoce the ob- struction, but of negligence in allowing it to get there. Jadijment reversed. INGALLS V. BILLS. Supreme Judicial Court of Massachusetts, 1845. [9 Met. 1.] Hubbard J. The question presented in this case is one of much importance to a community like ours, so many of whose citizens are encrao-ed in business which requires their transportation from place to pkce'in vehicles furnished by others; and though speed seems to be the most desirable element in modern travel, yet the law poii>ts more ST)ecifically to the security of the traveller. Under the charge of the learned judge who tried this case, we are called upon to decide whether the proprietors of stage coaches are an- swerable for all injuries to passengers arising from accidents happen- ing to their coaches, although i.roceeding from causes which the greates cat-e in the examination and inspection of the coach could not guard a-ainst, or prevent; or, in otlier words, whetlier a coach inust be alike fr'ee from secret defects, which the owner cannot detect, after the most critical examination, as from those which might, on such an examma- . tion, be discovered. • i. ,• The learned judge ruled, that the defendants, as proprietors ol a 154 INGALLS V. BILLS. coach, were bound by law, and by an implied promise on their part, to provide a coach, not only apparently but really roadworthy, and that they were liable for any injury that might arise to a passenger from a' defect in the original construction of the coach, although the imperfec- tion was not visible, and could not be discovered upon inspection and examination. The law respecting common carriers has ever been rigidly enforced, and probably there has been as little relaxation of the doctrine, as maintained by the ancient authorities, respecting this species of contract, as in any one branch of the common law. This arises from the great confidence necessarily reposed in persons engaged in this employment. Goods are entrusted to their sole charge and oversight, and for which they receive a suitable compensation ; and they have been, and still are, held responsible for the safe delivery of the goods, with but two exceptions, viz. the act of God and the king's enemies ; so that the owners of goods may be protected against collusive robberies, against thefts and embezzlements, and negligent transportation. But in regard to the carriage of passengers, the same principles of law have not been applied ; and for the obvious reason, that a great distinction exists be- tween persons and goods, the passengers being capable of taking care of themselves, and of exercising that vigilance and foresight, in the maintenance of their rights, which the owners of goods cannot do, who have entrusted them to others. It is contended by the counsel for the plaintiflT, that the proprietor of a stage coach is held responsible for the safe carriage of passengers so far that he is a warrantor that his coach is roadworthy, that is, is abso- lutely sufficient for the performance of the journey undertaken ; and that if an accident happens, the proof of the greatest care, caution, and diligence, in the selecting of the coach, and in the preservation of it durino- its use, will not be a defence to the owner ; and it is insisted that this position is supported by various authorities. The cases, among many others cited, which are more especially relied upon, are those of Israel v. Clark, 4 Esp. R. 259 ; Crofts v. Waterhouse, 3 Bing. 319; Bremner v. Williams, 1 Car. & P. 414; and Sharp v. Grey, 9 Bing. 457. If these cases do uphold the doctrine for which they are cited, they are certainly so much in conflict with other decided cases, that they cannot be viewed in the light of established authorities. But we thinii, upon an examination of them and comparing them with other cases, they will not be found so clearly to sustain the position of the plaintiff, as has been argued. It must be borne in mind, that the carrying of passengers for hire, in coaches, is comparatively a modern practice ; and that though suits occur against owners of coaches, for the loss of goods, as early as the time of Lord Holt, yet the first case of a suit to recover damages by a passenger, which I have noticed, is that of White r. Boulton, Peake's Oas. 81, which was tried before Lord Kenyon in 1791, and published in 1795. That was an action against the proprietors of the Chester mail INGALLS V. BILLS. '^•'•' .„^nh for Ue nec^ligence of tbe driver, oy reason of wliich (he eoach Ts ovt^^t vned and the plaintirs arm broken, and in wh.ch he ro- L^eml da,nag s for the injury; and Lord Keuyon, ,n dehvenng h,s :; , on, said, " when these [mail] coaches carried pa..e„ge,.