THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW ATTOS-ITEYS AT LAW 340 Wilcox Buiiuing Los Angeles, Cal. OUTLINES LAW OF BAILMENTS AND CARRIERS BT EDWIN C. GODDARD • r 1 PROFESSOR OF LAW IN THE UNIVERSITY OF MlClIKiAN CHICAGO CALLAGHAN & COMPANY 1904 T Copyright ]904 BT CALLAGHAN & COMPANY CE.^TRAL TYPESETTING CO., CHICAGO. ^ «5 PREFATORY' NOTE The Outlines of Bailments and Carriers form i)art of a com- plete Avork on that subject intended for the use of classes in hnv schools. The other part, which is nearly ready for pub- lication, consists of select cases illustrating and amplifying principles stated in the Outlines. It is the purpose of the Out- lines not only to state the foundation principles of the sub- ject, but to put these in orderly and consecutive form in order that the student may have an opportunity to see the subject as a whole. It is believed that any study of the cases Avithout some such connected view of the subject will involve considerable loss of time and result in a good deal of indefi- niteness in conception. The present edition is hnri-ied I't-om the press for use in the author's classes during the present year. EDWIN C. GODDAKD. Ann Arbor, January 1, 1904. PART I. OF BAILMENTS IN GENERAL. CHAPTER I. OF THE DEFINITION AND CLASSIFICATION OF BAILMENTS. § 1. Bailmeut defined. § 7. Transfer of possession, but 2. A contractual relation. not of title. 3. Delivery. 8. Bailment and sale. 4. Illustrations. 9. Special rules. 5. Acceptance. 10. Bailment purpose. 6. The subject-matter. 11. Redelivery, or delivery over. 12. Classification of bailments. § 1. Definition.— Many attempts have been made to define a bailment but none is free from criticism. For our purpose it is enough to say that— A bailment is a contract relation resulting from the delivery of personal chattels by the owner, called the bailor, to a second person, called the bailee, for a specific purpose, upon the ac- complishment of which the chattels are to be dealt with ac- cording to the owner's direction. An analysis of this statement will make clear the primary principles applicable to the subject. § 2. Contractual relation.— The bailment relation is one of contract and the principles of contract law are applicable thereto. No one can be made a party to a bailment except § 1, [^_] Krause v. Common- § 2. Costello v. Ten Eyck, 86 i\-ealth, 93 Pa. St. 418, 39 Am. R. Mich. 348, 49 N. W. R. 152, 24 Am. 762; [— ] Coggs v. Bernard, 2 Ld. St. R. 128. Raymond, 909, 1 Smith Lead. Cas. 199. 1 1 (4< 3.5 OF BAILMENTS IN GENERAL. l)y his contract freely niadc or by some condition which by operation of law is re«,'arded as equivaU-nt to a contract. § 3. Delivery. — The word bailnicnt conies into the English Connnon Law throuj^di the Norman-French. It is derived from baillcr, to deliver, and delivery has been said to be the key word of bailment law. A prime requisite to the establishment of the relation is a delivery by the bailor to the bailee, or something which by operation of law takes the place of such delivery. The bail- ment relation, then, may be formed by delivery, actual or constructive, or by operation of law. 5; 4. Illustrations. — (a) Actual delivery is a manual handing over of the chattel by the bailor, or his authorized representative, to the bailee or to his agent. The delivery of a watch to a jeweler for repair, of a horse to a smith to be shod, and of a package to an expressman to be carried, are familiar illustrations. (b) Constructive delivery takes place when because of the circumstances, or of the nature of the chattel, actual delivery is impossible or useless. The delivery of a key to a warehouse may be a constructive delivery of the goods therein, and the retention by the vendor of the goods sold constitutes him, so long as he retains possession, the bailee of such goods by con- structive delivery, without any actual handling of the goods by either party. (c) Delivery by operation of law results from the finding of lost goods, or the seizure of goods under legal process. The finder, or the officer is, by operation of law, not by consent of the owner, bailee of the goods while they remain in his pos- session. § 5. Acceptance. — No delivery is complete till accept- ance by the bailee. One cannot be compelled to become a bailee without his consent. Even the finder of lost goods does not become the bailee unless he voluntarily takes possession of the goods. § 4. King V. .Turnian, 35 Ark. 190, | — ] Foster v. Essex Bank, 17 Mass. 37 Am. R. 11, 16, and note. 479, 9 Am. D. 168; First National § 5. Michigan Central R. R. v. Bank v. Ocean National Bank, 60 "arrow, 73 111. 348, 24 Am. R. 24S; N. Y. 27S, 19 Am. R. 181. DEFINITION AND CLASSIFICATION. §§ 6-8 § 6. The subject-matter.— This delivery must be one of per- sonal chattels. Real estate can not be the subject of a bailment. Formerly only corporeal property could be bailed, but at the present time every species of personalty, corporeal or in- corporeal, is bailable. Thus, stocks, bonds, and other evidences of property, as well as debts and every sort of chose in action, are now pledged, or otherwise held in bailment, under the same principles as tangible property. Indeed while the bailed property must be in existence, a contract of bailment as to property not yet in existence will attach to such property when it comes into existence, subject, perhaps, to the inter- vening rights of third persons. § 7. Transfer of possession but not of title.— In a bailment the owner delivers the chattel to the bailee who thereby ac- quires possession, but not title. The ownership remains in the bailor, and though the bailee may himself be the rightful owner, yet so long as he retains possession as bailee he may not dispute the bailor's title. § 8. Bailment and sale. — The distinction between a bailment and a sale is clear. A sale passes the title to the vendee at once. He may acquire possession immediately, or only a right to possession at a future time. A bailment passes possession to the bailee at once. He does not acquire the title, nor, except in a bailment Avith an option to purchase, does he acquire any right to title in the future. In a sale title passes, in a bailment it does not. In practice the distinction is often troublesome. Difficulty arises in finding a test by which to determine the intention of the parties, for it is their intention that governs. Three eases may be noted— (a) If the identical property is to be returned, either in specie or in altered form, the transaction is a bailment. (b) If other goods of the same or of different kind are to be returned, the transaction is what was known in the Roman law as a mutuum, and is considered a sale and not a bailment. §7, [_] Krause v. Common- 4.33, 57 Am. D. 530; [— ] Bretz v. wealth, 93 Pa. St. 418, 39 Am. E. Diehl, 117 Pa. St. 589, 11 Atl. B. 762; Simpson v. Wrenn, 50 111. 222, 893, 2 Am. St. K. 706. See also 99 Am. D. 511; [— ] Pulliam v. Chase v. Washburn, 1 Ohio St. 244, Burlingame, 81 Mo. Ill, 51 Am. E. 59 Am. D. 623; Ledyard v. Hib- 229. bard, 48 Mich. 421, 12 N. W. K. § 8. Foster v. Pettibone, 7 N. Y. G37, 42 Am. E. 474. 5^ f)H OF BAILMENTS IN GENERAL. ,c If the 1,'oods are mixed with other goods, as grain in an elevator, th"en tlie tU)etrine of confusion of goods applies, and the owners of the grain so mixed become owners in common of the mass, or else the transaction is a sale, and title to the whole passes to the elevator owner. It is often difficult to determine whether the parties intended title to pass. The cases on this point are irreconcilable. The most useful test lies in determining with which party the eon- tract leaves that control of the goods which is consistent with ownership. If the elevator owner may use out of the grain at will under an agreement to return a like amount, or to pay the market price, when demand is made, he has control, is the owner, the transaction was a sale. If, however, the depositor of the grain may at any time demand his proportion of the mass of grain, or the market price, the elevator owTier under- taking at all times to keep on hand enough grain to cover all deposits, then it is clear that the control remains in the depositor, the title did not pass, the transaction was a bail- ment. The importance in many cases of determining whether the transaction was a bailment or a sale will be apparent from the cases. $ 9. Special rules. — In some states, on the ground that a bailment best represents the relation intended by the parties, the courts have been inclined to hold all such deposits in au elevator to be bailments. They are sometimes made bailments by statute. § 10. Bailment purpose.— The specific purpose for which the chattel is delivered to the bailee is called the bailment purpose. This purpose must of course be a legal one and, as will presently appear, it serves as the most satisfactory basis of classification of bailments, and leads to most of the legal consequences of the relation. §11. Redelivery, or delivery over.— Upo-n the accomplish- ment of the bailment purpose, the chattel is to be dealt witli § 9. See 2 Am. St. R. 711, note, Jones, Story and Kent as stated in 6 Am. La%v Review, 450; Hall v. [ — ] Krause v. Commonwealth, 93 Pillsbury, 4.3 Minn. 33, 44 X. W. Pa. St. 418, 39 Am. E. 762; K. 673, 9 Am. St. R. 209. [— ] Pulliam v. Burlingame, 81 Mo. §11. Compare the definitions of 111, 'A Am. R. 229. Definition and classification. ^ |) according to the owner's directions. In many eases it is to be redelivered to the owner. In the ease of delivery of goods to a carrier, or consignment to a factor, they are to be delivered to a third person, while in the case of a bailment with an option to purchase they may be retained by the bailee himself. In general the bailor is the true owner and the bailee must deal with the goods according to his directions. If he delivers them otherwise, he does so at his peril, and unless he can es- tablish that they were delivered to one having paramount right, he will be liable to the bailor. § 12. Classification. — Until very recent times the Common Law of bailments Avas in a crude and formative condition. As bailment law in Rome was well defined, early English legal writers on the subject were greatly influenced by the Civil Law and adopted the Roman division, which was a mere catalogue rather than a scientific classification. See Braeton (circ. 1260), Lord Holt (1703), Sir William Jones (1781). Judge Story, in his classic work on the subject, first sug- gested a scientitie classification based on the bailment pur- pose. He divided bailments into three classes — (a) Bailments for the sole benefit of the bailor, including the Roman deposit um and mandatum. (b) Bailments for the sole benefit of the bailee, including the Roman commodatum. (c) Bailments for the mutual benefit of both parties, in- eluding the Roman pig)ius, or pledge, and locatio. or hiring. The Civil Law recognized also the miituum, or the loan of goods for consumption, to be replaced by other goods of the same kind. It has been seen that, at the Common Lnw. this is not a bailment but a sale. There is not an exact correspondence between the Roman and the Common Law bailments and this has sometimes led to confusion. The Roman deposit um and mandatum, especially, involved distinctions and embraced relations not recognized in the Common Law. Definitions of these various kinds of bail- ments will be given in connection with their separate treat- ment. § 12. See St'houlcr, Bailments and v. Commonwealth. 93 Pa. St. 418, Carriers, § 26, notes; [— ] Krause ?.9 Am. K. 762. 5 §12 OF BAILMENTS IN GENERAL. The various bailments and their relations to each other may be outlined as follows: I depositum rgratultous services] ^^^aatum gratiiltousJ Lgratuitoiis loans i commodatum Bailments^ mutual ^benefit fpignuK, or pledge flocatio rel, the hired use of a thing Incatio, Lor hiring •( ^ordinary locatio operis, hired services, jibout a thing locatio custodiae locatio operis faciendi locatio operis mercium ^vehendarum extraordinary ^entered into by ' innlfeepers common carriers of goods To these may be added the carriers of passengers Quasi-l)ailment relations of -{ the post-office department telegraph and telephone companies CHAPTER II. OF THE LEGAL RESULTS OF THE RELATION IN GENERAL. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. Contract principles apply. Principles applicable to all bailments. Care. Three degrees of dili- gence. The burden of proof. Consideration. Expenses. Defect in bailed chattel. Eight to use. Property of bailee. Liability to third persons. Termination of bailment. A. By act of the parties. 1 Accomplishment of pur- pose, or efflux of time. Bailment contract executed. S. Rescission of bailment contract. 26. (1) By act of both parties. 27. (2) By act of bailee. 28. (3) By act of bailor. 29. ^Bailee's wrong. B. By operation of law. 30. 1. By changed status of the parties. 31. Death. 32. Bankruptcy, marriage, insanity. 33. 2. Change of status of bailed chattel. 34. Kedelivery. 35. What is to be redelivered. 36. Where returned. 37. To whom redelivered. 38. Adverse claims. 39. Special contract. § 13. Contract principles apply. — The law of bailments is a branch of the law of commercial contracts. Accordingly, all the requisites of contract*, such as competent parties, mutual assent, consideration, etc., apply to all classes of bail- ments. As any bailee may, and the great carrying corporations, such as railways, steamship lines, express and forwarding companies, constantly do, act by agent, the principles of agency are always applicable. Without detailed notice, there- fore, of the rules of contracts and agency, it will be under- stood that they apply to every class of bailments. Further- more, partnerships or corporations, as bailors or bailees, are subject to the same rules of law that apply to them in othor contract relations. 7 85 14-16 ^^ BAILMENTS IN GENERAL. j; 14 Principles applicable to all bailments.-It will avoid needless repetition to discuss in the present chapter those principles which are applicable to bailments generally, leaving for consideration in later chapters those legal results pe- culiar to the several classes of bailments. §15 Care.— A matter of prime importance in bailments is the care of the bailed goods to be exercised by the bailee. This does not admit of precise definition. Whether due care has been exercised in a given case is ordinarily a question of fact to be determined by the common sense of a jury m view of all the circumstances surrounding the case. Manifestly, the care to be exacted should vary with the nature and value of the thing bailed, the use to which it is to be put, the hazard of the bailment, and many other circum- stances. Great stress is laid by the law on the benefit to be derived from the bailment. The greatest diligence is, in gen- eral, demanded of the bailee if he receives the sole benefit of the bailment; less diligence is required if the bailment is mu- tually beneficial to bailor and bailee; while comparatively slight diligence suffices if the bailor alone profits by the bail- ment. j; 16. Three degrees of diligence. — In the effort to reach some degree of certainty in this necessarily uncertain question, the courts, from Lord Holt's time down, have recognized three degrees of care, which have been variously defined. Un- fortunately, they have also recognized three degrees of negli- gence, and by implication, at least, have held that there might be negligence with no resulting legal liability. The three degrees of diligence are slight, ordinary and great. To these correspond gross, ordinary and slight negli- § 15. [ — ] Doorman v. Jenkins, Essex Bank, 17 Mass. 479; 9 Am. D. 2 Ad. & El. 256, 29 E. C. L. 80; 168; [— ] Gray v. Merriam, 148 111. [— ] Gray v. Merriam, 148 111. 179, 179; 39 Am. St. R. 172; [— ] Wil- 35 N. E. R. 810, 39 Am. St. R. 172; son v. Brett, 11 Mees. and W. 113; [— ] Preston v. Prather, 137 U. S. [— ] Preston v. Prather, 137 U. 604; State v. Meagher, 44 Mo. 356, S. 604; First National Bank v. 100 Am. D. 298. Graham, 79 Pa. St. 106, 21 Am. § 16. [— ] Steamboat New R. 49 ; Woodruif v. Painter, 150 World V. King, 16 How. (U. S.) Pa. St. 91, 24 Atl. R. 621, 30 Am. 469; [— ) Railway v. Lockwood, 17 St. R. 786. Wall. (U. S.) 357; [— ] Foster v. 8 LEGAL RESULTS OF THE RELATION. § 17 gence, each degree of negligence being regarded as the want of ihe corresponding degree of care. From the many definitions attempted, it is perhaps enough to say that — Ordinary diligence is such as an ordinarily prudent man is wont to exercise in the conduct of his own affairs of like kind. Less than this is slight diligence, more is great diligence. It will be seen that this adds little to the definiteness of the subject, and some courts have expressed dissatisfaction with the distinctions, preferring to determine in each case whether, in view of all the circumstances, the requisite care has been exercised. Courts recognizing the three degrees hold that — In bailments for the sole benefit of the bailor slight care is all that is required of the bailee, and he is liable only for gross negligence. In bailments for the sole benefit of the bailee great care is required, and the bailee is responsible for slight negligence. In mutual benefit bailments ordinary care is required, and the bailee must answer for ordinary neglect. In a later chapter it will appear that the innkeeper and common carrier are subject to special rules. § 17. The burden of proof in showing negligence, at the outset, rests upon the plaintiff'. Some authorities say that while the weight of evidence may shift, the burden of proof never shifts, but remains throughout with the plaintiff'. Others say that the burden shifts. The plaintiff certainl}^ must es- tablish negligence by a preponderance of evidence. According to most cases, the plaintiff' makes out a prima facie case by showing loss or injury. The defendant must then explain the loss or else show affirmatively that he exer- cised due care. § 17. Compare [— ] Claflin v. [— ] Schmidt v. Blood, 9 Wend. Meyer, 75 N. Y. 260, 31 Am. E. (X. Y.) 1268, 24 Am. D. 143; Hilde- 467, and Higman v. Camody, 112 brand v. Carroll, 106 Wis. 324, 82 Ala. 267, 20 So. R. 480, 57 Am. St. N. W. R. 145, 80 Am. St. R. 29; E. 33. See also Boies v. Hartford, Hislop v. Ordner, 28 Tex. Civ. App. etc., R. R., 37 Conn. 272; 9 Am. 540, 67 S. W. R. 337; Willett v. E. 347; Cumins v. Woods, 44 111. Rich, 142 Mass. 356, 7 N. E. R. 776, 416, 92 Am. D, 189 ; Mills v. Gil- 56 Am. R. 684. breth, 47 Me. 320; 74 Am. D. 487; vv iw o1 OF BAILMENl'S IN GENEKAL. . 18 Consideration-Like every contractual relation the ba iment must be upon consideration. In S-^-^^-^^-" this consists, not in any benefit to the promisor, but m detri- n nt to the promisee. In the bailment for the sole benefit of X. bailor, this detriment arises from the fact that the bailee, by undertaking the service, prevents the bailor from securing another to perform it, while in a bailment for the benefit of the bailee it is the bailee who is prevented from securing the benefit at the hands of another. It follows, then, that until the bailee in the first case, has entered upon the undertaking, or in the second, until the bailor has loaned the chattel, there is no consideration. Hence there can be no liability for non- feasance but only for misfeasance, in gratuitous bailments. § 19. Expenses.— In the absence of a special contract, or- dinary expenses for caring for the chattel are to be borne by the bailee, extraordinary expenses by the bailor, unless they arise from default on the part of the bailee, when the latter will be liable for the consequences of his own fault. It fol- lows that, for extraordinary expenses necessary for proper preservation of the bailed chattel, the bailee may bind the bailor by a contract with third persons. § 20. Defect in bailed chattel.— The bailor owes the bailee the duty to inform him of defects in the bailed article which are, or reasonably should be, known to the bailor, and which are likely to be the source of danger to the bailee. For any injury suffered by the bailee in consequence of his failure so to do, the bailor is liable, unless the defects were patent and equally within the knowledge of both parties. § 21. Right to use. — The bailee has no right to use the chat- tel unless it appears from the bailment contract, or from the circumstances, that the consent of the owner to the use may § 18. [— ] Coggs V. Bernard, 2 Dana, 69 N. H. 264, 39 Atl. E. 982', Ld. Raymond 909, 1 Sm. Lead. Cas. 76 Am. St. E. 170. 199; [— ] Thorne v. Deas, 4 §21. [— ] Wentworth v. Mc- Johns. (N. Y.) 84. Duffie, 48 N. H. 402; [— ] Spoonef § 19. Barter v. Blanchard, 64 v. Manchester, 133 Mass. 270, 43 Barb. (N. Y.) 617; [— ] Leach v. Am. E. 514; Ray v. Tubbs, 50 Vt. French, 69 Me. 389, 31 Am. R. 296. 688, 28 Am. R. 519; Alvord v. § 20. Hadley v. Cross, 34 Vt. Davenport, 43 Vt. 30. 586, 80 Am. D. 699; Gagnon v. 10 LEGAL RESULTS OF THE RELATION. §§ 22-24 fairly be presumed. Such consent will be presumed in so far as the use of the chattel is necessary to its preservation. If the bailee without authority use the thing, or if having authority he use it in a manner unauthorized, he does so at his peril and is absolutely liable for any loss or injury that may result. His wrongful use, as will appear later, in many cases amounts to a conversion of the chattel. § 22. Property of bailee. — In general, the bailee has a spe- cial property in the thing bailed while the general property remains in the bailor. It is a disputed point whether the pos- sessory interest of the gratuitous bailee, or of the bailee at will, amounts to a property interest. All agree, however, that the interest of the bailee is such as to enable him to maintain trespass or trover against third persons who interfere with his possession. All, except gratuitous bailees, may also main- tain replevin, an action founded upon a property right, while right of possession is sufficient basis for trespass or trover. Even the bailee who is a finder has a title good against all the world except the true owner and may maintain his possessory rights by appropriate actions. The bailor, also, has a right of action in replevin, trover, trespass, or case, against a wrong-doer, but a recovery by either is a bar to an action by the other. § 23. Liability to third persons. — If the bailee's use of the chattel result in injury to third persons he alone is responsible, he alone has control of the chattel, and he is not, in its use, the agent of the bailor. The bailee is also liable for injuries resulting from the use of the chattel by his servants acting in the course of their employment. § 22. [ — ] Armory v. Delamirie, rule in Hostler 's Adm 'r v. Skull, 1 Strange 505, 1 Sm. Lead. Cas. 2 Haywood (N. C.) 179, 1 Am. D. 470; [— ] Little v. Fossett, 34 Me. 5S3. 545, 56 Am. D. 671 ; Baggett v. Mc- § 23. Sproul v. Heramingway, 14 Cormaek, 73 Miss. 552, 19 So. R. 89, Pick. (Mass.) 1, 25 Am. D. 350. 55 Am. St. R. 554. See the early ]1 ^ < 25-27 O^ BAILMENTS IN GENERAL. j; 24. Termination of bailment.— Like other contractual re- lations, the baihuent relation may be terminated— A. By act of the parties. 1. By the accomplishment of the bailment purpose or the expiration of the time for which the prop- erty was bailed. 2. By the rescission of the bailment contract. This may be — (1) By mutual consent of bailor and bailee. (2) By redelivery of the chattel by the bailee. (3) By abatement of the contract by the bailor. B. By operation of law. 1. By change in the status of the parties. 2. By change in the status of the bailed chattel. A. Termination by Act of the Parties. 1. Accomplishment of purpose or efflux of time. § 25. Bailment contract executed. — AVhen the purpose of the bailment is fully accomplished, or the time for which the property was bailed has expired, the life of the bailment is ended and the bailee is bound to dispose of the bailed chattel as directed by the bailor, or excuse his failure so to do. If he does not, the bailor may treat his failure as conversion of the property, or as a renewal of the bailment for a new period on the same terms. 2. Rescission of the Bailment Contract. i 26. (1.) By act of both parties. — Like other contracts, bailments may be terminated at any time by mutual consent of the parties. The law has no interest in requiring the full performance of a contract which both parties desire to re- nounce. § 27. (2.) By act of bailee. — The bailee has always the § L'.'j. [— ] Green v. Hollings- § 26. See Story, Bailments & worth, 5 Dana (Ky.) 173, 30 Am. Carriers, §§ 418, 418a. D. 680; Benje v. Creagh, 21 Ala. §27. Story, Bailments & Car- ]51. See Schouler, Bailments & riers, §§ 202, 258, 271. Carriers, § 159; Story, Bailments & Carriers, § 259. 12 LEGAL RESULTS OF THE RELATION. §§ 28-30 power, thoujih not usually the right, to ternunate the bailment at any time. The bailor has no action at law to compel the bailee to retain the chattel and perform the bailment purpose. And equity wnll not decree specific performance of personal services, nor will it, where damages are ade(|uate, grant an in- junction to prevent the return of the chattel bailed. The bailor is left to an action for such damages as he can show he has suffered by reason of the bailee's wrong. In gratuitous bailments, the bailee need not enter upon the undertaking, and in bailments for his sole benefit even after the chattel has been delivered to the bailee, he has the right to return it at any time. A depositary or mandatary, how- ever, though he is to receive no compensation, has no right after he has entered upon the undertaking to abandon it to the injury of the bailor. Common carriers and innkeepers are subject to special rules. §28. (3.) By act of bailor.— The bailor's power to ter- minate the relation depends upon the nature of the contract. In bailments at will and in bailments for his sole benefit, the bailor may end the relation at any time. In bailments for the benefit of the bailee for an indefinite term, there must be a demand by the bailor and a reasonable time for the return of the chattel by the bailee. The bailee's rights cannot be wantonly disregarded. In bailments for a definite time or purpose, the bailee may hold the chattel even against the bailor. § 29. Bailee's wrong. — The bailee's wrong, it is usually held, does not terminate the relation but gives the bailor the right to do so at any time. Thus, the use of the chattel in a different manner or for a different purpose from that agreed upon, its appropriation or sale by the bailee, his refusal to redeliver it, may be treated by the bailor as ground for termi- nating the bailment, and in many cases for suing the bailee in trover for conversion. §28. [— ] Cobb V. Wallace, 5 § "JO. I— I Green v. Hollings- Cold. (Tenn.) .539, 98 Am. D. 435; 'north, 5 Dana (Ky.) 173, 30 Am, Smith V. Niles, 20 Vt. 315, 49 Am. D. 680; [—1 Wentworth v. Me- D. 782 ; Story, Bailments & Carriers, Duffiie, 48 N. H. 402 ; Schoulcr, §§ 119, 210; Schoulcr, Bailments & Bailments & Carriers, §§ 56, 156. Carriers, § 81. 13 ^< 31-35 OF BAILMENTS IN GENERAL. B. By Operation of Law. J; 30. 1. By changed status of the parties.— There are cases in which the happening of some event so affects the performance of the bailment contract as to terminate the re- lation by operation of law. In other cases the happening of the same event, though not ipso facto a termination of the i-chition. is nevertheless a sufficient cause for the termina- ti §57. | — 1 Thorno v. IVas. 4 Ld. Eaymond 909, 1 Sm. Lead. Cas. .Johns. (X. Y.) 84. 199. 23 §§ 58-60 OF GRATUITOUS BAILMENTS. mou mutual benefit bailmeut. As the use is gratuitous it fol- lows that there cannot be an executory contract for a loan, for the consideration arises only when the undertaking has been entered upon. § 58. Special property of bailee. — Whether the borrower has a special property in the thing bailed has been disputed. In the loan at will the right of the bailee would seem to be too precarious to amount to property. But when the loan is for a definite period it would seem that the lender may not terminate it before the expiration of that period or he will be liable to the bailee for any resulting damage. No reason is apparent for denying the property interest of such a bor- rower. The borrower may maintain trespass or trover agaiust third persons who interfere with his possession of the loan. 2. Bights and Duties of the Parties. § 59. Care. — The borrower, though not an insurer of the goods, is held to the highest degree of care. As he enjoys their use gratis, it is but fair to exact of him the diligence of the most careful men in the conduct of their own affairs. For even slight negligence he is responsible to the bailor for any damage to the goods caused thereby. § 60. Better care than of one's own, — Whether the borrower is liable if .he saves his own goods from peril, such as a fire, and allows the borrowed goods to be destroyed has been much argued. It has been said that the goods of greatest value should be saved first, but value is only one condition and not always the controlling one. The real question, as sug- gested by Judge Story, is whether the borrower has been guilty of any negligence. The position of the chattels, their weight, bulk, etc., are often determining factors in deciding which shall be rescued first. The conditions being the same, the borrower could not be justified in saving his own in prefer- ence to the lender's goods. § 58. [— ] Little V. Fossett, 34 v. Schultz, 44 Mich. 529, 7 N. W. R. Me. 545, 56 Am. D. 671. 225, 38 Am. E. 280. Compare §59. [— ] Green v. Hollings- [— ] Coggs v. Bernard, 2 Ld. Ray- worth, 5 Dana (Ky.) 173, 30 Am. mond, 909, 1 Sm. Lead. Gas. 199. D. 680; [— ] Wilson v. Brett, 11 §60. Story, Bailments & Carriers, Mees & W. 113; Stewart v. Davis, § 245-251. 31 Ark. 518, 25 Am. R, 576; Bellcr 24 OF GRATUITOUS LOANS. §| gi.GS § 61. Right to use. — Use is the f,nst of this baihiieiit, and the bailee has the right to use the chattel in accordance with the terms of the bailment contract. A slight departure from the bailment purpose is at the peril of the bailee and makes him absolutely liable for any damage to the property. There is even greater reason why the borrower should be strictly con- fined to the contemplated use of the chattel than exists in the case of other bailees. So for any fraud in procuring the loan the bailee is liable. 3. Termination of iltc Bailment. § 62. Special rules. — Unless the lending be for a definite period or for a specified purpose, it would seem reasonable that the bailor should be able to terminate the relation at will. It has been suggested that he must not do this so as to cause damage to the bailee, but justification of such a rule is difficult in the absence of compensation or of any agreement for a definite time or purpose, at least unless he flagrantly disregards the needs of the borrower. If, however, the loan was expressed to be for a certain period or purpose, the bor- rower has the right to retain the chattel until the expiration of the time or the accomplishment of the purpose, when it be- comes his duty to restore it. § 63. Restoration to bailor. — Restitution must be made to the bailor even when he is not the owner of the thing. Own- ers have sometimes attempted to recover property from the wrongful possession of another by borrowing it and them re- fusing to redeliver. But this is disputing the bailor's title, which the bailee may never do, except where he has yielded to title paramount in some third person. The borrower must restore the thing before he can set up any claim in himself. § 61. [— ] Green v. Hollings- 76 Am. D. 315 ; Root v. Chandler, worth, 5 Dana (Ky.) 173, 30 Am. 10 Wend. (N. Y.) 110, 25 Am. D. D. 680; Seller v. Schultz, 44 546; Clapp v. Nelson, VI Tex. 370, Mich. 529, 7 N. W. R. 225, 38 Am. 62 Am. D. 530. R. 280; Stewart v. Davis, 31 Ark. §63. Simpson v. Wrenn, 50 111. 518, 25 Am. R. 576. 222, 99 Am. D. 511; [— ] PulUam § 62. [— ] Pulliam v. Burlin- v. Burlingame, 81 Mo. Ill, 51 Am. game, 81 Mo. Ill, 51 Am. R. 229; R. 229. Walker v. Wilkinson, 35 Ala. 725, L') II. OF MUTUAL BENEFIT BAILMENTS. CHAPTER V. CLASSIFICATION AND GENERAL PRINCIPLES. § G4. Classes of inutuiil benefit 2. Eights and duties of the bailments. parties. 1. Nature of the relation. § 67. Care. 65. Eecompense. 3. Termination of the rela- 66. Custody and service. tion. 68. Not precarious. § 64. Classes. — Bailments for the mutual benefit of bailor and bailee include — A. Pignus, or pledge, and B. Locatio, or hiring. Bailments for hire are — 1. Locatio rei, the hired use of a thing, and 2. Locatio operis, hired services about a thing. a. Ordinary bailments for hire. (1) Locatio custodiae, hired custody of a thing. (2) Locatio operis faciendi, hired services upon a thing. (3) Locatio operis mercium veliendarum, hired carrying of a thing. b. Extraordinary bailments for hire, w^hich are the bailments entered into by — (1) Innkeepers as to the baggage of their guests, and (2) Common carriers of goods. We shall also have to consider the relations of innkeepers to the persons of their guests and of common carriers to their passengers, which are not bailment relations, but are gov- erned by similar principles. In the present chapter will be considered some fundamental distinctions applying to all mu- tual benefit bailments, as regards: 1, the nature of the rela- tion ; 2, its rights and duties, and 3, its termination. 2G CLASSIFICATION AND GENERAL PRINCIPLES. §§ 65-67 1. The Nature of the Relation. § 65. Recompense. — It is characteristic of this bailment that there is conipensation to the promisor. This may be slight, indirect or incidental, but it must amount to a legal benefit. Thus, if A lets his horse to B, nominally gratis, but really on consideration that B will furnish feed and care for the horse, the bailment is not a commodatum, but a local io. So if B agrees to keep A's horse gratis, but uses it for his own pur- poses, beyond the exercise needed to maintain the horse in good condition, B is not a depositary, but a bailee for hir(», the bailment is a locatio rei, both bailor and ])iiile(' dci-ivc ;i legal benefit. § 66. Custody and services. — Distinctions have often been attempted between bailments for custody and for serv- ices. There is no such absolute distinction. The leading purpose in some bailments is custody, in others services, but in all custody is necessary and some services as well. The pledgee has custody primarily but must perform such serv- ices as are needed to preserve the chattel, and the workman employed primarily to repair a chattel must incidentally keep it in his custody. The real question of importance is, not was it a bailment for custody or for services, but has the bailee fulfilled with the required diligence the bailment purpose, both as regards custody and services. 2. Rights and Duties of the Parties. § 67. Care. — In ordinary mutual benefit bailments the dili- gence demanded of the bailee is ordinary care in view^ of all the conditions. What this is has already been explained in general (§§ 15, 16), and will later be more specifically illus- trated. In extraordinary mutual benefit bailments exceptional care is required amounting, as will later appear, in the case of inn- keepers and of common carriers of goods and baggage to in- surance against losses to the goods while in the hands of the bailee. § 65. [— ] Newhall v. Paige, 10 lain v. Cobb, 32 la. 161, Vigo Agri- Gray (Mass.) 366; Woodruff v. cultural Soeioty v. Bruinfiel, lOiMiid. Painter, 150 Pa. St. 91, 24 Atl. R. 146, 1 N. E. R. 382, 52 Am. R. 657. 621, 30 Am. St. R. 786; Chamber- 27 v; (3g OF MUTUAL BENEFIT BAILMENTS. 3. The Termination of the Relation. ^ 68. Not precarious.— Mutual benefit bailments are not oft mi at will. Each party gives value to the other and there- by acquires legal rights of a substantial nature which the other is bound to respect. The relation, therefore, is not to be lightly terminated, either by one of the parties or by oper- ation of law, until the time has expired or the purpose has been accomplished. Subject to these conditions, the relation may be terminated as has been previously pointed out (§§ 24- 38). I 68. [—1 Cobb V. Wallace, 5 Cold. (Tenn.) 539, 98 Am. D. 435. 28 / CHAPTER VI. A. PIGNUS, OR PLEDGE. § 69. Definition of pledge. /. Nature of the relation. 70. Bailment the incident. 71. The pledge contraot. 72. Distinction between pledge, chattel mortgage and lien. 73. Intention governs. 74. Subject matter. 75. Incorporeal property. 76. Corporate stock. 77. Exceptions. 78. Delivery. 79. The obligation secured. SO. Limitations. ^. Bights and duties of the parties. 81. Custody. 82. Profits and expenses. 83. Right to use. 84. Assignment by the pledgee. 85. Negotiable instruments. 86. Corporate stock. 87. Rights of pledgee. 88. Bills of lading, ware- house receipts. 89. Care. 90. Proceeds of collateral. 91. Conversion by pledgee. 92. The measure of dum- ases. ■ 93. Pledgor warrants his title. 94. Property of pledgor. 3. Termination of the pledge. 95. Classification. A. Termination by act of the parties. 1. By act of the pledgor. 96. (1) Pull performance. 97. (2) Default of pledgor. 98. Remedies of the pledgee. 99. —a. Suit on the debt. b. Exercise power of sale. 100. (a) Sale at com- mon law. 101. ^Choses in action. 202. (b) Sale in equity. 103. (f) Special con- tract. J04. (d) Statutory sale. J 05. ^Equitable principles apply. 10(5 Equity of redemp- tion. 2. By act of the pledgee. 107. (1) Termination by consent of pledgee. j()8. (2) Wrong of pledgee. 109. Redelivery. S69. Definition.-A pignus, or pledge, is a bailment to secure the perform^uice of an obligation, with power of sale in case of default. § 69 [_i Coggs V. Bernard, 2 Ld. Raymond 909, 1 Sm. Lead. Cas. 199. [_] Stearns v. Marsh, 4 Den\o (N. Y.) 227, 47 Am. D. 248; 29 ^'^ 70-72 OF MUTUAL BENEFIT BAILMENTS. Pawn, pledge, collateral security, are words of varying de- grees of respectability designating essentially the same sort of transaction. Whether the pawnor or pledgor deals with the pawnee or pledgee under the historic, and sometimes un- savory, name of pawnbroker, or with the modern collateral security bank, or the great loan and security corporations, or the" banks that furnish in support of commercial enter- prises vast sums whose repayment is secured by the deposit of all sorts of personal property, the legal relations of the parties are subject to the same rules. 1. The Nature of the Belation. § 70. Bailment the incident.— A pledge differs from other bailments in that the bailment is secondary, a mere incident to the primary contract the performance of which is secured by the pledge. This primary contract is usually an undertak- ing to pay a debt, but it may be any other engagement. § 71. The pledge contract. — The pledge is first a con- tract and second a bailment, and the general principles before referred to, competency of parties, consideration, mutuality, delivery, etc., apply to the pledge. An agent may be author- ized to pledge the property of his principal, a partner may pledge the partnership goods to secure a partnership debt, but not his personal engagement, and a corporation may pledge its corporate property to secure the performance of an obligation not ultra vires, subject to the usual restrictions of agency, partnership, and corporate powers. ;; 72. The distinction between pledge, chattel mortgage, and lien often becomes important because of different meth- ods of applying the security to extinguish the debt. The chief distinction in law between the pledge and mortgage is one of title. The pledgee secures only a special property ac- [— ] Hall V. Page, 4 Ga. 428, 48 Ala. 194, 28 So. E. 603, 85 Am. St. Am. D. 235; Brewster v. Hartley, 37 K. 21; [ — ] Geilfuss v. Corrigan, 95 Calif. 15, 99 Am. D. 237. Wis. 651, 70 X. W. E. 306, 60 Am. §70. See 49 Am. D. 730, uote. St. E. 143; Tannahill v. Tuttle, 3 §71. Shaw V. Spencer, 100 Mass. Mich. 104, 61 Am. D. 480; Bryson 382, 97 Am. D. 107. v. Eayner, 25 Md. 424, 90 Am. D. 69 ; § 72. Lucketts v. ToAvnsend, 3 Tex. Gilmer v. Morris, 80 Ala. 78, 60 Am. 119; 49 Am. D. 723; [— ] Americau E. 85 ; Wright v. Eoss, 36 Calif . 414. Pig Iron, etc., Co. v. German, 126 30 PIGNUS. OR PLEDGE. |§ 73.74 cDiiipauiod by possession; the mort^a^ee aerjuires at once the legal title -with, or more often without, possession, subject to be defeated upon performance of the condition. The title of the mortgagee becomes absolute at law upon breach of tho condition : the title of the pledgee never becomes absolute, but upon default he acquires a power of sale. Like the pledgee, the lien-holder has a special property and possession but he has no power of sale. The mortgage, pledge, and lien are alike in that they are intended as security for a debt and are in equity subject to redemption upon payment of the debt, and it has been held that the tAvo forms of security, pledge and mortgage, may be combined in one. § 73. Intention governs. — In construing such contracts courts look to the intention of the parties. This, if clearly apparent, governs, rather than any name applied by the par- ties themselves. Thus, a bill of sale, a transfer of stock, an assignment of an incorporeal chattel, have been regarded as pledges or mortgages where other writings or the conduct of the parties made it clear to the court that such was their intention. If the debt be secured b.v delivery of possession of the chattel, the law prefers to regard the transaction as a pledge rather than a mortgage. §74. Subject-matter. — "It has been doubted whether in- corporeal things like debts, money and stocks, etc., which can not be manually delivered, were the proper subjects of a pledge. It is noAv held that they are so : and there seems to be no reason why any legal or equitable interest whatever in per- sonal property may not be pledged, provided the interest can be put, by actual delivery or by written transfer, into the hands or within the power of the pledgee. ' ' Property not yet in existence, strictly speaking, cannot be pledged, but a contract of pledge is valid and when the prop- erty comes into existence, and the debtor takes possession, his §73. f_] Wilson V. Little, 2 X. Y. 443, 51 Am. D. 307; [—1 Hall Y. 443, 51 Am. D. 307 ; McCoy v. v. Page, 4 Ga. 428, 48 Am. D. 'ISr, ; Lassiter, 95 N. C. 88; British Co- Brewster v. Hartley, 37 CaUf. 15, 99 lumbia Bank v. Marshall, 8 Sawyer Am. D. 237. See also 22 Am. & (U. S.) 297; Wright v. Eoss, 36 Eng. Eucyc. of Law 846, and cases CaHf. 414. cited. § 74. [—1 Wilson v. Little, 2 X. 31 S5 75-77 01'' MUTUAL BENEFIT BAILMENTS. rights as pledgee immediately attach. Thus, future crops, the increase of animals, and products of manufacture may be contracted in pledge. And property by statute exempt from execution may, never- theless, be pledged, just as it may be mortgaged or sold. So one having a special property in chattels may pledge his interest, and with the owner's consent one may pledge the property of another. §75. Incorporeal property is pledged by delivery of the paper which represents the property. This should be ac- companied by written assignment or indorsement, but it has been held that this is not necessary, and manual delivery of a promissory note, bill of lading, warehouse receipt, policy of insurance, or savings-bank book, with the intention of pledg- ing the property evidenced thereby, is an effectual pledge, vesting an equitable interest in the pledgee. § 76. Corporate stock. — Subject to the liens and privi- leges imposed upon it by law, corporate stock may be and frequently is offered as collateral to secure debts. This is usually done by a written transfer of title which, like the delivery of possession, affords the evidence of the pledgee's special property in the chattel pledged. To make complete transfer of the shares mere delivery of the stock certificate is not enough. The by-laws of corporations usually require, in addition to the written assignment, a transfer of title on the books of the company; but this does not deprive the pledgor of his general property in the stock nor of his interest in the corporate funds. § 77. Exceptions. — For reasons of public policy the law forbids the pledging of pensions and the pay of soldiers and sailors. And our national banks are forbidden to accept their own stock as security for a loan, unless it be necessary to § 75. [_] Wilson v. Little, 2 N. Hartley, 37 Calif. 15, 99 Am. D. 237. Y. 443, 51 Am. D. 307 ; [— ] Geil- § 76. [— ] Wilson v. Little, 2 N. fuss V. Corrigan, 95 Wis. 651, 70 N. Y. 443, 51 Am. D. 307; Brewster v. W. E. 306, 60 Am. St. R. 143 ; Grain Hartley, 37 Calif. 15, 99 Am. D. 237. V. Paine, 4 Cush. (Mass.) 483, 50 §77. Merchants' Bank v. Hall, Am. D. 807; Collins v. Dawley, 4 83 N Y. 338, 38 Am. E. 434; Colo. 138, 34 Am. R. T2; White v. Schoulcr, Bailments & Carriers, Phelps, 14 Minn. 27, 100 Am. D. § 177. 190. But compare Brewster v. 32 PIG N us, OR PLEDGE. |§ 7g.S0 secure a debt already contracted in good faith. By loans on such security the assets of a bank might be seriously im- paired. i; 78. Delivery, actual or constructive, is vital to a good pledge. As has before appeared, this may be manual delivery of the property or of the evidence of the property, or con- structive delivery. Delivery to a third person, who holds pos- session as agent of the pledgee, is sufficient. In every case there should be such change of possession and indications of ownership as conditions permit. For the protection of the pledgee against third persons having claims again.st the pledgor, it is of prime importance that the property be placed beyond the control of the pledgor. 5J 79. The obligation secured by the pledge may be the payment of money or the performance of any other legal en- gagement. The debt secured may be present, past or future, absolute or conditional, one's own or that of another; it may include many debts, a single debt or any part of a debt: the security may be for obligations nov/ outstanding, or be a con- tinuing security against debts as they may arise. However, if the debt be illegal the pledge is invalid: thr law will aid neither party, but will leave them where it finds them. Neither can recover against the other if he must set up the illegal contract to do so. § 80. Limitations. — But the pledge secures only the debt for which it was pledged and can not be held as security for other indebtedness, nor for a different or greater security than was intended. The pledge does secure the performance of the whole and every part of the obligation, and no part of the pledge can be reclaimed by the pledgee until the entire engagement is performed. §78. [_] Geilfuss v. Corrigan, Boyd, 44 Md. 47, 2-J Am. R. 35; 95 Wis. 651, 70 X. W. R. 306, 60 Merchants' Bank v. Mall, S3 N. Y. Am. St. R. 143; Brewster v. Hart- 338, 38 Am. R. 434. ley, 37 Calif. 15, 99 Am. D. 237, 22 § 80. Ball v. Stanley, 5 Yerp. Am. & Eng. Encyc. of Law, 857, (Tenn.) 199, 26 Am. D. 2(53; 858. — 1 ]\Iasonic Savings Bank §79. Third National Bank v. Baugs's Adm'r, 84 Ky. 135, 4 Am. 3 33 ^ $ 81-83 <^1^ MUTUAIi BENEFIT BAILMENTS. 2. li'i(jlils and Did its of the Parties. ^ 81. Custody.— Tlu' first right of the pludgeci is exclusive possession of the thing pledged. This right is good against all the world, including the pledgor, and continues not only during the time for which it was pledged, but until the debt is fully satisfied. To vindicate his right the pledgee may maintain replevin against anyone Avho deprives him of his possession; or he may recover against his pledgor his dam- ages, and against other disseisors trover for the full value of the chattel, holding the surplus beyond his own interests in trust for the pledgor. § 82. Profits and expenses. — The natural profits of the pledge while retained by the pledgee become part of the pledge security and must be used to reduce the debt. Such are the young of animals, milk from cows, and dividends from stock, if the stock stands in the name of the pledgee. The exi)enses, too, reasonably necessary for the proper pres- ervation of the pledge, must be borne by the pledgee, who may, of course, look to the pledgor for reimbursement before the pledged goods can be reclaimed. Profits become part of the pledged property, expenses part of the debt secured. § 83. Right to use. — The pledgee has no right to use the property pledged to its injury. The old cases allow him such use of it as is not detrimental thereto, but the modern view is that he has no right to use it, further than is needful for its proper care, unless the contract of pledge is such that the owner's consent may be fairly inferred. Wrongful use does not terminate the pledge, but makes the pledgee absolutely liable for any resulting injury to the property. St. E. 197; Collins v. Dawley, 4 30 Am. D. 689; Plueker v. Teller, 174 Colo. 138, 34 Am. K. 72; Merchants' Pa. St. 529, 34 Atl. E. 208, 52 Am. Bank v. Hall, 83 N. Y. 338, 38 Am. St. E. 825 ; [— ] Allen v. Delano, 55 E. 434. lie. 113, 92 Am. D. 573. § 81. [— ] Hall V. Page, 4 Ga. § 83. [— ] Stearns v. Marsh, 4 428, 48 Am. D. 235; Treadwell v. Denio (N. Y.) 227, 47 Am. D. 248, Davis, 34 Calif. 601, 94 Am. D. 770; 22 Am. & Eng. Eneyc. of Law 864; Adams v. O'Connor, 100 :\rass. 515, Schonler, Bailments and Carriers, 1 Am. E. 137. §§ 211, 212. Compare [— ] Coggs v. § 82. r— ] Honton v. Holliday, 2 Bernard, 2 Ld. Eayraond 909, 1 Sm. Murph. (X. C.) Ill, 5 Am. D. 522; Lead. Cas. 199. !--elliek v. Mnnson, 2 Aik. (Vt.) 150; 34 PIGNUS, OR PLEDGE. §§ y4.ytj § 84. Assignment by the pledgee. — The pledge is an inci- dent of the debt and may be assigned with it. The pledgee may sell, assign, or pledge all his interest in the pawn without' aft'oeting the securitj'. His assignee or pledgee acquires his title, but no more. The usual exception exists in the case of negotial)le instruments taken bona fide in the course of trade, and of other property if the pledgor had clothed the pledgee Anth apparent authority, or with the indicia of ownership. The assignment of the debt should be accompani('*d by a transfer of the pledge. If it is not, the assignee will still have an equitable interest in the pledge which he can enforce against all except an innocent holder. § 85. —Negotiable instruments. — The pledgee taking ne- gotial)le instruments bona fide, iov value as security for a debt, takes them free from equities, like any other transferee, and may acquire a better title than his pledgor. Whether a pledge to secure a pre-existing debt is a transfer for value is in dis- pute, but the weight of authority is with the rule of tho United States Supreme Court to the effect that takinjr se- curity for a pre-existing debt constitutes the pledgee a holder for value. The courts that deny this admit that there is value if the pledgee, when taking the negotiable security, gives up any right. Thus, a pledgee is a holder for value if he accepted the securities in payment of a pre-existing debt, or surren- dered other securities, or extended the time for payment, or forebore to sue. The fact that one is an accommodation in- dorser is no defence against the pledgee. § 86. Corporate stock. — Stock certificates are not ne- gotiable instruments. Hence, unless the OAvner had clothed him with the muniments of title, the pledgor can give his pledgee no better title than he himself had. As to the parties themselves, and others charged with knowledge of the transac- tion, a pledge by delivery of the stock, accompanied by an assignment and a power of attorney to make tht^ transfer on the books of the corporation, is effectual even whovo the by- § 84. Bailey v. Colby, 34 N. H. 29, of Swift v. Tyson, IG Peters (U. 66 Am. D. 752; Homer v. Savings S.) 1, and Bay v. Cod.lingtor. •' Bank, 7 Conn. 478. .Tohns. Ch. (N. Y.) 54, 20 Johnf--. 6:57. § 85. Compare the leading cases 35 <<87-«i) OF MUTUAL BENEFIT BAILMENTS. laws of the corporation require a transfer on its books. But as to the corporation and innocent third persons, transfer on the ])ooks is necessary. jc 87. Rights of pledgee.— The pledgee, under his power of attorney, may compel a transfer to him on the books of the corporation,' after which he has the right to vote the stock and collect the dividends, applying them to a reduction of the debt secured. If he appears on the books as owner of the stock, he not only acquires the rights but assumes the liability of a stockholder. As between the pledgor and pledgee, however, the pledgor is still the general owner, the pledgee has a special property only and upon payment of the debt this is extinguished. § 88. Bills of lading, warehouse receipts, etc., are usu- ally assigned like negotiable instruments by mere indorsement, but are not in other respects negotiable. They are merely representatives of the goods, and when pledged are subject to the same rules that govern the pledge of corporeal chat- tels. The pledgee, in general, gets no better title than his pledgor. § 89. Care, — The ordinary care of a mutual benefit bail- ment has been explained and little need be added here. If the pledge property be choses in action, the duty of the pledgee is not limited to their safe-keeping. He must take all necessary steps at proper times to keep alive and to collect the rights represented by the paper. Thus, in case of promis- §86. Spreckels v. Nevada Baiik,.^.100 Am. D. 363; Douglas v. Peo- 113 CaUf. 272, 45 Pae. K. 329, 54 'pie's Bank, 86 Ky. 176, 5 S. W. K. Am. St. E. 348; [— ] Gemmell v./ 420, 9 Am. St. E. 276, post sees. 151, Davis, 75 Md. 546, 23 Atl. E. 1032, 222 and cases there cited. 32 Am. St. E. 412. § 89. 1—1 Preston v. Pratlier, §87. Pullman V. Upton, 96 U. S. 137 U. S. 604, 11 Sup. Ct. 162; 328; Spreckels v. Nevada Bank, 113 Swift v. Tyson, 16 Peters (U. S.) 1; Calif. 272, 45 Pac. E. 329, 54 Am. Third National Bank v. Boyd, 44 St. E. 348; 1—] Gemmell v. Davis, Md. 47, 22 Am. E. 35; Cooper v. 75 Md. 546, 23 Atl. E. 1032, 32 Am. Simpson, 41 Minn. 46, 42 N. W. E. St. E. 412; State v. Bank of New 601, 16 Am. St. E. 667; Ware v. England, 70 Minn. 398, 73 N. W. E. Squyer, 81 Minn. 388, 84 N. W. 153, 68 Am. St. E. 538, 542 note. E. 126, 83 Am. St. E. 390, note; § 88. Burton v. Curyea, 40 111. First National Bank v. O 'Connell, 320, 89 Am. D. 350; Davenport Na- 84 Iowa 377, 51 N. W. E. 162, 35 tional Bank v. Homeyer, 45 Mo. 145, Am. St, E, 313. 36 PlGNUS, OR PLEDGE. §§ 90-91 sofy notes, proper steps must be taken to lix the liability of indorsers and to collect interest and princiiJal when due. And in the case of pledged stocks, bonds, bills of lading, etc., ordi- nary diligence must be exercised in securing the property and profits represented by such paper. All this is only that care Avhicli an ordinarily prudent business man is wont to exercise in the conduct of his own affairs of like kind. Any loss through the negligence of the pledgee may be recouped by tlie pledgor by way of counterclaim in an action on the debt. § 90. Proceeds of collateral. — If collateral security be con- verted into money, the law requires its application on the debt. If there be a surplus it is money had and received to the; use of the pledgor and the law implies a promise to pay it over. If the pledgee fails to do so, the pledgor has his choice of suing in assumpsit for the balance or in equity for an ac- counting. § 91. Conversion by pledgee. — If there be a wrongful sale or misapplication of the pledged property by the pledgee, the pledgor may sue in assumpsit for the balance in excess of his debt, or he may sue in trover for conversion. If the property has been converted, he need not make demand or tender of the debt before bringing suit. § 92. The measure of damages for conversion of the property by the pledgee is the fair market value of the goods less the amount of the debt. Collateral securities, such as stocks, bonds, etc., which are subject to fluctuating values, present a difficulty, and various rules have been adopted by the courts as to the price at which such securities should be valued in assessing damages for § 90. Hunt V. Xevers, 15 Pick. Keith, 57 HI. 451, 11 Am. R. 28, (Mass.) 500, 26 Am. D. 616; Baker v. Drake, 53 X. Y. 211. 1."? [— ] Masonic Savings Bank v. Am. R. 507, Third National Bank Bangs 's Adm'r, 84 Ky. 135, 4 Am. v. Boyd, 44 .Md. 47, 22 Am. R. 35. St. R. 197. Dolliif v. Robbing, S3 Minn. 49S, § 91, [_] Stearns v. Marsh, 4 S6 X. W. R. 772, 85 Am. St. R. 466. Denio (X. Y.) 227, 47 Am. D. 248. 466. §90 [ — ] Wright V. Bank of The Massachusetts and Illinois Metropolis, 110 N. Y. 237, 18 N. E. cases represent the e.\tronic views. R. 79, 6 Am. St. R. 356; [— ] Wil- The New York case takes the middle son V. Little, 2 N. Y. 443, 51 Am. ground and, on the whole, furnishes U. 307. See also Fowlo v. Ward, 113 the most ctpiitable rule. Mass. 548, 18 Am. E. 534, Sturges v. 37 §§ 93-95 OF MUTUAL BENEFIT BAILMENTS. their conversion. On the whole, it seems just to allow the damages that would naturally be sustained by the owner m restoring himself to his former position, or m other words, replacing the stock. Accordingly, the rule supported by reason and the weight of authority, is that in an action of trover for a conversion of stocks or bonds, their value is the highest market price of the securities within a reasonable time after the owner learns of their conversion. This covers the natural and proximate loss of the owner, but does not allow him to speculate on the market and delay bringing suit in the hope that the securities may reach a higher figure and so increase the damages he may recover. § 93. The pledgor warrants his title, or at least, that he has sufficient property to make the pledge. As the pledgee takes, in general, subject to prior liens, the pledgor is liable to him if they defeat the pledge, unless the pledgee took with knowl- edge of such claims. § 94. Property of the pledgor.— The general property re- mains in the pledgor, subject to the pledgee's lien, even after default, and he may assign his interest or sell the goods sub- ject to the lien of the pledge. If the pledge has been deliv- ered to the pledgee, the assignee will, of course, stand in the same position as the pledgor. Execution creditors of the pledgor cannot levy on the pledged property until they have satisfied the pledgee's claims. 3. Termmation of the Fledge. § 95. Classification. — The pledge relation may be termi- nated — A. By act of the parties. The pledge may be extinguished by act of — 1. The pledgor, either by (1) Performance of the obligation, or (2) Default in performance. § 93. Story, Bailments & Car- [— ] Norton v. Baxter, 41 Minn, riers, § 354. 146, 42 N. W. E. 865, 16 Am. St. E. §94. Brewster v. Hartley, 37 679; [—] Masonic Savings Bank v. Calif. 15, 99 Am. D. 237; Lough- Bangs 's Adm'r, 84 Ky. 135, 4 Am. borough V. McNevin, 74 Calif. 250, St. E. 197; [— ] Hall v. Page, 4 Ga. 14 Pac. E. 369, 5 Am. St. E. 435; 428, 48 Am. D. 235. ;]8 HGNUS, OR PLEDGE. §§ 96-9S 2. TJie pledgee, who may (1) Voluntarily relinquish the pled-:-- wim- out performance, or (2) Forfeit the pledge by his own wrong. B. B\j operation of law the destruction of the chattel works an extinction of the pledge relation; but a chanjre in the status of the parties, as by death, marriage, in- solvency, will not affect the pledge contract. A. Termin.vtion by Act of the P.vrties. 1. Bij Act of the Pledgor. § 96. (1.) Full performance of his obligation by the pledgor is the normal means of terminating the relation. Even readiness to perform is enough; and tender of the debt at or after maturity discharges the lien and makes the pledgee, if he refuses to surrender the pledged property, guilty of con- version. Nor is it necessary to the discharge of the lien, as distinguished from the payment of the debt, that the tender be kept good, or that the money be paid into court. The wrong- ful refusal to accept payment and deliver the chattel is con- version and makes the pledgee absolutely liable. § 97. (2.) Default of the pledgor in performance of the obligation at its maturity gives the pledgee the right to con- sider the pledge as terminated at once and to proceed to his remedies. He may, however, treat the contract as still in force and retain the pledge until the debt is paid, the relation of the parties to each other and to the pledge continuing as before default. Indeed, in the absence of an agreement to sell, the pledgor has no right to complain if the pledgee refuses to do so. But if securities are likely to perish or seriously shrink in value, a sale may be compelled by liill in equity. § 98. Remedies of the pledgee. — Upon default the pledged chattel is still a mere security, and does not become §96. r— ] Norton V. Baxter, 41 11 Iowa 410. 79 Am. D. 497; Minn. 146, 42 N. W. E. S6o, 16 Am. Sc-hoiiler, Bailments & farriers. St. B. 679; Loughborough v. Mr- § 244. Nevin, 14 Calif. 250, 14 Pac. R. 369, §98. [— ] Robinson v. Hurley. 5 Am. St. R. 435; Ball v. Stanley, 11 Iowa 410, 79 Am. D. 497; Lu.-k- 5 Yerg. (Tenn.) 199, 26 Am. D. 263. etts v. Townsend. 3 Tex. 119. 49 Am. § 97. [— ] Robinson v. Hurley. D. 723. 39 ^§ 99-101 <^F MUTUAL BENEFIT BAILMENTS. the property of the pledgee. To realize on his debt he may— a. Sue upon the debt. b. Exercise his power of sale by — (a) A sale at common law, (b) A proceeding in equity, (e) A special power given in the pledge contract, or (d) A statutory sale. § 99. Suit on the debt. — The pledgee is not compelled to rely on the security of his pledge. He may, without losing his lien, sue the pledgor personally on the debt. The pledge security continues until he has obtained not only judgment but satisfaction on the debt. § 100. (a) Sale at common law. — After default of the pledgor, the pledgee may demand payment, and upon failure of the debtor to comply, sell the goods at public sale after reasonable notice to the debtor of the time and place of sale. The purpose of the notice is to enable the pledgor to see that the sale is fairly conducted and to find bidders to enhance the price. If he knows of the sale therefore it is enough, though if the pledgee fails to give such notice he assumes the burden of showing actual knowledge by the pledgor. If the pledgor cannot be found there must be a judicial sentence to warrant the sale. The public sale must be conducted with perfect fairness and the pledgee cannot himself, either directly or indirectly, be the purchaser. If he buys the sale is voidable, and the pledgor may treat the pledge contract as still in force. § 101. Choses in action. — The law requires a public sale to insure the best terms for the pledgor. But such sale of stocks, bonds, notes and the like might result in large sacri- §99. [— ] Eobinson V. Hurley, D. 721, 723; [— ] Hall v. Page, 4 Ga. 11 Iowa 410, 79 Am. D. 497; Wal- 428, 48 Am. D. 235; [— ] Mary- lace V. Finnegail, 14 Mich. 170, 90 land Ins. Co. v. Dalrymple, 25 Md. Am. D. 243. Note to 73 Am. St. E. 242, 89 Am. D. 779; Whitlock v. 567; Fisher v. Fisher, 98 Mass, 303; Heard, 13 Ala, 776, 48 Am. D 73; Ehrlich v. Ewald, 66 Cal. 97, 4 Pac. Jeanes's Appeal, 116 Pa. St. 573, 11 R. 1062. Atl. E. 862, 2 Am. St. E. 624. § 100. [— ] Eobinson v. Hurley, § 101. [— ] Maryland Ins. Co. v. 11 Iowa 410, 79 Am. D. 497; Dalrymple, 25 Md. 242, 89 Am. D. [— ] Stearns v. Marsh, 4 Denio (N. 779; White v. Phelps, 14 Minn. 27, Y.) 227, 47 Am. D. 248; Lucketts 100 Am. D. 190; Hunt v. Nevers, V Townsend, 3 Texas 119, 49 Am. L". Pick. (Mass.) 500, 26 Am. D. 616. 40 PIGNUS, OR PLEDCxE. §§ 102-105 fice of value. Accordingly, by the better opinion it is held that in the case of stocks and bonds a sale after notice on the stock exchange according to the custom of brokers is the proper procedure. Negotiable notes should be held till ma- turity and collected, unless they can be sold for full value. § 102. (b) Sale in equity.— Sale by proceeding in equity under a decree of foreclosure is cumbersome, and should be resorted to only when there are conflicting claims, where title is doubtful, or where notice can not be given to the pledgor. The pledgee is not entitled to go into following. When the bailee has had the use according to the terms of the contract, it becomes his duty to redeliver the chattel and to pay the proper compensation. These duties may, of course, be modified by stipulations made in the con- tract of hire. §123. Story, Bailments & Car- Cold. (Tenn.) 539, 98 Am. D. 435; riers, §§ 416, 417 a; Schouler, Bail- Sanborn v. Colman, 6 N. H. 14, 23 ments & Carriers, §§ 160, 161. Am. D, 703. § 124. [— ] Cobb V. Wallace, 5 49 CHAPTER VIII. OF LOCATIO OPERIS. § 125. Distinctions. § 142. 126. General principles apply. 143, 1. Nature of the relation. 144. 127. The essentials. 145. 128. Accession. 2. Eights and duties of the 146. parties. 147. 129. Compensation. a. Service completed. 148. 130. (1) According to contract. 131. (2) Not according to con- tract. h. Work left incomplete. 149, 132. (1) Destruction of the thing. Fault of bailor. Fault of bailee. -Who can give a lien. -Basis of the lien. Does not extend 133. 134. 135. 136. 137. 138. 139. 140. 141. (2) (3) Lien. to agisters and liverymen. Statutory exten- sions. — Kinds of lien. How regarded. 150. 151. 152. 153. 1.54. 155. 156. 157. 158. 159. Extent of the lien. Enforcement of lien. Waiver of lien. Termination of lien. Property rights of bailor and bailee. Care. Special locatio custodiae bailments. W arehousemen, elevator own- ers, cold storage com- panies. W^arehousemcn, etc. Effect of usage. Warehouse receipts. Confusion of goods. Care. Lieu. Duration of the relation. Other special bailees for hire. Wharfingers. Factors or commission mer- chants. Safe-deposit companies. Agisters and liverymen. § 125. Distinctions. — The second of the locatio bailments is locatio opcris or the baihuent of a chattel for the performance of services upon it for a reward. As before noticed (§ 64), locatio operis bailments are ordinary or extraordinary, and of the ordinary three classes have been made according to the nature of the services to be performed — (1) Locatio custodiae, the hired custody of a thing, (2) Locatio operis faciendi, the hire of work and labor upon a thing, and 50 LOCATIO OPERIS. |e 12ti-128 (8) Locutio operis mercium vehendanim, the hired carriage of a thing. Reserving the extraordinarj^ bailments for separate treat- ment, we shall consider the rules of law relating to the familiar relations of bailors: (1) to warehousemen, wharfingers, safe- deposit companies, factors and bailiffs (agisters) : (2) to artis- ans employed to manufacture chattels from materials furn- ished, or to repair chattels; (3) to private carriers of goods. For the most part these will be treated together. But brief special consideration will be needed, and this will be given after the consideration of the general principles of locatio operk bailments. §126. General principles apply.— It should be borne in mind that, by a few changes of terms and phrases because of the different bailment purposes, nearly all that was said in the discussion of locatio rei bailments equally applies here. By spe- cial contract the relations of the parties may be modified fb any extent not forbidden by public policy. The remaining chapters of the subject will be concerned largely in applying to specific cases the general principles already stated, but it is precisely this application that causes all bailment litigation, and that forms the substance of every new decision. 1. Nature of the Relation. § 127. The essentials of every locatio operis bailment are : (a) services to be performed upon the chattel, (b) a contract for such services, and (c) a price or reward. It is the services about the chattel and the compensation to the bailee that are distinctive of this bailment and mark it off from all the others. The contract for services, as a contract, does not differ from contracts in general. ^ 128. Accession. — If in the performance of tho service the bailee adds materials to the chattel, and before his service is completed the chattel is destroyed, it becomes important to determine upon whom the loss of the materials must fall. It is the rule, on the doctrine of accession, that the materials and labor become part of the chattel ; and this is so even though the materials exceed in value the chattel itself. So, too, if th" § 128. Pnlcifer v. Page, 32 Me. Suell, 140 N. Y. 193, 35 N. i:. H. 404, 54 Am. D. 582, note; Mack v. 493, 37 Am. St. R. 534. 51 ^;< 129-130 ^^' LOCATIO BAILMENTS. bailor l"uniislu's tlic i"iw materials, his title follows them up to the finished product, the increased value from the labor being' added by accession. But if the workman himself furn- ishes the materials for making a chattel there is no bailment but an ag-reement for a sale. Until the chattel is completed and delivered to the vendee, the title remains in the Avorkman. 2. Rights and Duties of the Parties. § 129. Compensation. — It is the distinctive feature of locatio opcris bailments that the bailee receives a recompense. The usual rules as to this compensation have been before stated. But when one has been employed to perform work and labor upon a chattel, and for some cause the performance is inter- rupted before the contract is fully executed, special questions arise. It may be that — a. The work was fully completed (1) According to the contract, (2) Not according to the mutual intent, b. The work is left incomplete because of (1) Destruction of the thing without the fault of the bailee, (2) The fault of the bailor in preventing the service, (3) The fault of the bailee in abandoning the work. 'a. Service Completed. § 130. (1) According to contract. — If the bailment con- tract is fully executed, the bailee, of course, is entitled to his hire according to the agreement. But it may be that after the work on the chattel was completed, the thing was destroyed without the fault of either party. In accordance with the doctrine of accession, the chattel and all that has been added to it belong to the bailor, and he must bear the loss. The workman can recover for his labor and materials. Res perit domino. However, the workman may have taken the work by the job. The contract is entire, and he can recover only when he § 130. Central Lithographing, Millau v. Vanderlip, 12 Johns. (N. etc., Co. V. Moore, 75 Wis. 170, 43 Y.) 165, 7 Am. D. 299; McConihe N. W. E. 1124, 17 Am. St. R. 186; v. E. E., 20 N. Y. 495, 75 Am. D. [— ] Sickels V. Pattison, 14 Wend. 420. (N. Y.) 257, 28 Am. D. 527; Mc- 52 LOCATIO OPEPvls. §§ 131-1:52 has fully performed. The thiii. 71.3, Pattison, 14 Wend. (N. Y.) 257, 28 note. 53 ^§ 133-136 OF LOCATIO BAILMENTS. ' § 133. (2) Fault of bailor.— If the fault of the bailor pre- vents the completion of the services, the bailee, according to the principles of agency, may recover for the services rendered and for any loss naturally resulting from the bailor's wrong. §134. (3) Fault of bailee.— If the bailee abandons the work, even according to some authorities wilfully and malici- ously, some cases allow him to recover the worth of services actually rendered less all loss caused to the bailor by the abandonment of the service. If, on the whole, the service is beneficial, it must be paid for. Other cases hold that this rute applies only when the abandonment was involuntary, and many still adhere to the strict rule denying him any recovery. § 135. Lien.— Not only is the bailee entitled to compensa- tion for his services upon a chattel, but the law now gives to practically every bailee who has performed such services a security for his wages in a lien on the chattel. A lien is the right to retain possession of another's property until satisfac- tion is secured for some charge thereon. A lien, at common law, is founded upon possession, actual or constructive ; this must be uninterrupted while the lien exists ; except in the case of fraud or mistake, a lien once lost can not be restored by resumption of possession. It is not assignable, for as soon as the possession essential to a lien is surrendered to the assignee, the .assignor loses his lien and has nothing to assign. § 136. Who can give a lien. — ' ' A lien is a proprietary inter- est, a qualified ownership, and in general can only be created by the owner or by some person by him authorized. ' ' Neither a thief, nor a bailee, unless authorized or clothed with the § 133. Story, Bailments & Car- 599, 33 Am. E. 809 ; Miller v. Mar- riers, § 441; Scbouler, Bailments & ston, 35 Me. 153, 56 Am. D. 694. Carriers, § 111. § 136. [— ] Small v. Eobinson, §134. Hillyard v. Crabtree's 69 Me. 425, 31 Am. E. 299 ; Sargent Adm 'r, 11 Tex. 264, 62 Am. D. 475. v. Usher, 55 N. H. 287, 20 Am. E. Compare Steeples v. Newton, 7 208; [ — ] Williams v. Allsup, 10 C. Oreg. 110, 33 Am. E. 705, and Brit- B- (N. S.) 417, 100 E. C. L. 417; ton V. Turner, 6 N. H. 481, 26 Am. Watts v. Sweeney, 127 Ind. 116, 26 D. 713. See also 2 Kent 's Commen- N. E. E. 680, 22 Am. St. E. 615 ; taries, 591. Hale v. Barrett, 26 111. 195, 79 Am. §135. [— ] Sensenbrenner v. D. 367; McKenzie v. Nevius, 22 Matthews, 48 Wis. 250, 3 N. W. E. !\Te. 138, 38 Am. D. 291. 54 LOCATIO OPERIS. §§ 137-l:i.S indicia of ownership or authority by the owner, eau create a lien on goods not liis own. But where one is entrusted with property for safekeeping <»r use and hires repairs necessary to its preservation or utility, the owner's consent to such emplojnnent is presumed and the mechanic has a lien for his services. A lien for services creat<'d by one who had a right to subject the property to it is prior t<» all other claims against the property. § 137. Basis of the lien. — The right of lien originated in cases where the i)arty was bound by law to receive goods, such as innkeepers and common carriers ; it was later extended so that every bailee for hire who by his labor and skill had enlianced the value of the goods had a lien upon them for his compensation. Still later, on principle the lien was entended to the warehouseman to secure his storage ; and now, it has been said, "the lien is given by the common law to anyone w^ho takes property in the way of his trade or occupation to bestow labor and expense upon it," whether the remuneration is fixed by an agreement or by an implied contract to pay a reasonable price. The law considers the laborer worthy of his hire and secures it to him by allowing him to retain the goods upon which he has expended time and labor until he has received his reward. "The lien rests on principles of natural equity and commercial necessity." § 138. Agisters, liverymen. — The lien does not extend to agisters and livery stable keepers for the reason that they do not impart additional value to the animals. A liveryman who takes a horse to breed or train does enhance his value and accordingly has a lien for such services and for the board of the horse during the time. This reason for denying agisters and liverymen a lieu is unsatisfactory, for no more do ware- housemen add to the value, but it is a more serious objection § 137. [—1 Grincell v. Cook, 3 § 138. [— ] Grinr.cll v. Cook, 3 Hill (X. Y.) 485, 38 Am. D. 663; Hill (X. Y.) 485, 38 Am. D. 663; [ — ] Biirdict V. Murray, 3 Vt. 302, Jackson v. Cummins, 5 Meos. and W. 21 Am. D. 588; [— ISteinman v. 341; Millor v. Marston, .35 Mc. 15.3. Wilkins, 7 Watts & S. (Pa.) 466, 42 56 Am. D. 6!!4; Lord v. .Tones, 24 Am. D. 254; Mathias v. Sellers, 86 Me. 439. 41 Am. D. 391; Harris v. Pa. St. 486, 27 Am. E. 723; Arians WoodrufiF, 124 Mass. 205, 26 Am. R. V. Brickley, 65 Wis. 26, 26 X. W. R. 658. 188, 56 Am. E. 611. 55 §§ 139-142 OF LOCATIO BAILMENTS. thai the livorymuii does not have that uninterrupted posses- sion of the animals that is essential to the life of a lien. By special contract the right of lien may be reserved to agisters and liverymen. § 139. By statute the lien has been very generally ex- tended to agisters and liverymen, and every bailee who per- forms services upon a chattel for hire has now a lien for his compensation. § 140. Kinds of lien. — Liens are general or special. A general lien is security for the payment of a general balance of account growing out of a series of transactions of a particular kind. It does not extend to debts arising in a different kind of transaction. A special lien is security for services performed in relation to the particular property to which it attaches. §141. How regarded. — General liens "are discounte- nanced by the courts as encroachments on the common law," except those "fastened on the law merchant by inveterate usage." Such are the liens of factors, insurance brokers, bank- ers and wharfingers. A special or particular lien has been pronounced so just be- tween debtor and creditor that it can not be too much favored. "It is founded upon the principles of natural justice and tends to the security and encouragement of commerce." § 142. Extent of the lien. — The lien extends to the whole and every part of the goods to secure the whole and every part of the debt. If several articles are delivered under one contract, each is security not only for its portion of the cost but for the services expended on all the rest. A release § 139. Sargent v. Usher, 55 N. H. § 142. [— ] Schmidt v. Blood, 9 287, 20 Am. E. 208; Lambert v. Weml. (N. Y.) 268, 24 Am. D. 143; Nicklass, 45 W. Va. 527, 72 Am. St. New Haven and Northampton Co. ^- 828. V. Campbell, 128 Mass. 104, 35 Am. §141. [— ] Steinman V. Wilkins, E. 360; [— ] Steinman v. Wilkins, 7 Watts & S. (Pa.) 466, 42 Am. D. 7 Watts & S. (Pa.) 466, 42 Am. D. 254; Mclntyre V. Carver, 2 Watts & 254; Hensel v. Noble, 95 Pa. St. S (Pa.) 392, 37 Am. D. 519; Mc- 345, 40 Am. E. 659; Hale v. Bar- Kenzie v. Nevius, 22 Me. 138, 38 rett, 26 111. 195, 79 Am. D. 367; Am. D. 291; [— ] Masonic Savings [— ] Potts v. N. Y. and N. E. Eail- Bank v. Bangs 's Adm'r, 84 Ky. 135, road Co., 131 Mass. 455, 41 Am. E. 4 Am. St. E. 197. 247. 56 LOCATIO OPEBIS. |§ 143-145 of part of the goods does not rdeast- th<- lien pro tanto, but the lien for the whole debt attaches to the goods not released. On the other hand, payment of part of thf^ debt will not release the goods pro tanto, but the bailee may keep all the goods till the full debt is paid. § 143. Enforcement of lien. — At common law the lien- holder had but a mew right to retain the goods until his account was paid, but no right of sale. The lic^n is an adili- tional security ; the bailee may sue on his del)t and if he recov- ers judgment the lien affords him the advantage of assuring him property of the debtor on wliidi ht* may Ifvy execution. By statute the right of sale is often given, but being in deroga- tion of the common law the statute must be strictly followed. By contract provision may be made for a sal"- by the lien- holder. §144. Waiver of lien. — "Lien can not survive posses- sion; and except in ease of fraud, and perhaps mistake, such a lien can not be restored by resumption of possession. There- fore the voluntary parting with possession of the goods will amount to waiver by surrender of the lien." By mutual eon- sent the lien could be revived, but not so as to alfect thf inter- vening rights of third persons. Moreover, "an agreement to give credit, or a special contract for a particular mode of payment inconsistent with a lien, is a waiver of it." And the bailee by express consent, or by con- duct from which consent may justly be implied, nuiy waive the lien. Indeed, any act of the bailee inconsistent with the exist- ence of a lien is evidence of a waiver thereof. § 145. Termination of the lien. — Payment or tender of the debt by the bailor discharges the lien and makes the bailee if he refuses to surrender possession of the goods liable in § 143. [— ] Whitlock v. Ileai-a, Stoddard Woolen .\ranufaetory v. 13 Ala. 776; 48 Am. D. 73; Knapp Huntley, 8 N. H. 441, 31 Am. D. V McCaffrey, 178 111. 107, 52 X. ]f»8; Hale v. Barrett, 26 111. 195, 79 E. E. 898, 69 Am. St. E. 290; Am. D. 367; Chandler v. Beldon. IS [-J Doane v. Eussell, 3 Gray Johns. (N. Y.) 157, 9 Am. D. 193; (Mass.) 382. Hanna v. Phelps. 7 ln. JSco cases citoil iintlcr 551, 46 N. W. R. 1080, 25 Am. St. § 205. R. 512; Messenger v. Pa. Eailroatl 87 88'>09-"10 OF COMMON CARRIERS. applies to traffic between different states, but not to transporta- tion wholly within a single state. The state legislatures have very generally passed statutes touching this matter, often fixing a maximum rate. This they have a right to do unless such maximum rate is unreasonably low, amounting to a confiscation of the carrier's property. A requirement that a carrier shall do business at less than will yield a reasonable return on the carrier's investment will be taking property without due pro- cess of law, and therefore is unconstitutional. § 209. On what goods.— The contract of affreightment is in general held to be indivisible and the shipper is liable for the full amount of the freight after the carrier has accepted the goods for immediate shipment, or in the case of the carrier by water, after the ship has broken ground on the voyage. On the other hand, the carrier is in general entitled to freight only on goods carried to the destination, or in the case of connecting carriers, to the terminal point on his portion of the journey. If any waste occur en route he will be allowed freight only for the portion delivered, and the loss from waste may be set off against the freight. But if the waste or failure to deliver be due to the fault of the shipper or his consignee, or if the contract call for a lump freight, then full recovery may be had, unless the carrier consent to a pro rata freight for the distance the goods were carried. If the goods are actually delivered, but are worthless for causes for which the carrier is not liable, he is entitled to his full freight for such goods. § 210. Who liable for freight. — Prima facie the consignee is the owner of the goods and is therefore liable for the freight. Acceptance of the goods by the consignee with knowledge of §209. [— ] Gibson v. Sturge, 10 Miss. 17, 75 Am. D. 90; Hutchinson Exch. 622; Griswold v. New York on Carriers, 444-5. Ins. Co., 3 Johns. (N. Y.) 321, 3 Am. § 210. Hill v. Leadbetter, 42 Me. D. 490; Knight v. Providence and 572, 66 Am. D. 305; Wooster v. Tarr, Worcester R. R. Co., 13 R. I. 572, 8 Allen (Mass.) 270, 85 Am. D. 707; 43 Am. R. 46 ; China Mutual Ins. Co. Holt v. Westcott, 43 Me. 445, 69 Am. V. Force, 142 N. Y. 90, 36 N. E. R. D. 74; Hayward v. Middleton, 3 874, 40 Am. St. R. 576; Dakin v. McCord (S. C.) 121, 15 Am. D. 615; Oxley, 15 C. B. (N. S.) 646, 109 K. Barker v. Havens, 17 Johns. (N. Y.) C. L. 646; Parsons v. Hardy, 14 234, 8 Am. D. 393; [— ] Union Wend. (N. Y.) 21.5, 28 Am. D. 521; Freight R. R. Co. v. Winkley, 159 Hill V. Leadbetter, 42 Me. 572, 66 Mass. 133, 34 N. E. R. 91, 38 Am. Am. D. 305; Bennett v. Byram, 3S St. R. 398. RIGHTS OF COMMON (JARRIEB. §§ I'll I'll' the essential facts carries with it thi- obligation t(» pay the freight unless the consignee is known to be a mere agent. The presumption that the consignee is the owner may be re- butted and liability fastened on the consignor or a third per- son. The carrier may always, in the absence of any othrr party to whom it may look, demand the freight of the con- signor, for he made the contract of affreightment and is liable if no one else can be hehl. The consignee can never be mad«' liable merely by being made consignee without his consent. § 211. Carrier's lien. — The carrier, being compeUed to ac- cept goods offered, has been given l)y law :i lit-n upon the goods as security for his hire. "This is eo-exti'iisivc with his right to claim and recover freight," and accordingly, except by special contract or established custom, the cari-ier's lien is a special and not a general one. It extends to his charges and advances for the particular goods carried, or to the goods carried under one contract, but not to any claims for demurrage (»r warehouse charges, nor to damages suffered by the carrier through the wrong of the shii)per or through his failure to perform all the conditions of the bill of lading. The consignee may set off against the lien any damage to the goods for which the carrier is liable. ^ 212. Connecting carriers. — The lien extends to all the carrying charges. Where goods are shipped over the lines of several connecting carriers, and the last carrier advances the charges of the preceding carriers, he may retain the goods until his full charges and advances are paid, unless he has notice not to pay such charges, or through the bill of lading or other- wise it appears that such charges have been prepaitl l)y the shipper. § 211. Dyer v. Grand Trunk Ry. Pa. St. 48.5, 17 Atl. R. 671. li' .\ni. Co., 42 Vt. 441, 1 Am. R. 350; Ames St. R. 885; |— 1 Chicago & N. W. V. Palmer, 42 Me. 197, 66 Am. D. Ry. Co. v. Jenkins, 108 III. 588; 271; [_] Galena etc. Railroad Co. Hutchinson on Carriers, 47S. V. Rae, 18 111. 488, 68 Am. D. 574; § 212. 1 — I Potts v. N. Y. & -\. Gregg V. Illinois Central R. R. Co., E. R. R. Co., 131 Ma.ss. 4r,5. 41 Am. 147 111. 550, 35 N. E. R. 343, 37 Am. R. 247 ; \—^ Briggs v. Boston vtc St. R. 238; [— 1 Potts v. N. Y. & R. R. Co., 6 Allen (Mass.) 246. 8.3 N. E. R. R. Co., 131 Mass. 455, 41 Am. D. 626; Knight v. Providon.-o Am. R. 247 ; Adams V. Clark, 9 Cush. and Worcester R. R. Co.. 13 K". I. (Mass.) 21.5, 57 Am. D. 41; Pcnn- 572, -13 Am. R. 46. sylvania R. R. Co. v. Oil Works, 126 89 ^<^ 213-215 O*^ COMMON CAREIERS. § 213. Storing goods held on lien.— If the carrier ten- ders the goods and the consignee or owner fails to pay the charges, they may be retained and delivered to a warehouse- man ^f or storing. The warehouseman holds them as bailee of the carrier and the owner, and must not, except upon the order of the carrier, deliver them to the owner until the carrier has been paid his charges for transportation. The goods are also liable to the warehouseman for the charges of their storage. js 214. Goods shipped by one not the owner.— This lien is good as against tlic owner, even though the goods have been wrongfully shipped by another, provided the owner had clothed such other with the indicia of ownership, or given him appar- ent authority to ship the goods. Where however goods are shipped by one without color of right, by the better opinion the carrier is in no better position than the vendee of goods pur- chased from one having no color of title. The carrier is not bound to carry the goods if they are offered by a wrongdoer, and therefore in such case has no lien for his charges. No man's property can be taken from him by another without his consent. The carrier's lien is prior to any rights of the consignor, consignee, owner, or creditors of any of these. When goods are stopped in transitu, or taken by an officer under process, the carrier may insist upon his charges before giving possession of the goods. The lieii however is personal to the carrier and he alone can set it up as a defence against the owner who seeks to recover his goods or their worth. Loss of possession ter- minates the lien. (2.) Duty to Carry for All. §215. Public employment. — "A common carrier is a pub- lic carrier. He engages in a public employment, takes upon §213. Gregg v. Illinois Centrar' Mass. 4.j5, 41 Am. E. 247; Saltus E. R. Co., 147 111. 550, 35 N. E. E. " v. Everett, 20 Wend. (X. Y.) 267, 343, 37 Am. St. E. 238; Eankin v. 32 Am. D. 541; Ames v. Palmer, 42 Memphis & Cincinnati Packet Co., 9 Me. 197, 66 Am. D. 271; Pennsyl- lleisk. (Tenn.) 564, 24 Am. R. 339. vania E. E. Co. v. Oil Works, 126 § 214. Fitch V. Newberry, 1 Doug- Pa. St. 485, 17 Atl. E. 671, 12 Am. las (Mich.) 1, 40 Am. D. 33; Eobin- St. E. 885; [— ] Eucker v. Donovan, son V. Baker, 5 Cush. (Mass.) 137, ]3 Kan. 251, 19 Am. E. 84. 51 Am. D. .54; Hale v. Barrett, 26 §215. See cases cited under See. 111. 195, 79 Am. D. 367; [— ] Potts 192, and [— ] New Jersey Steam V N. Y. & N. E. E. R. Co., 131 Xavigatioo Co. v. Merchants' Bank, 90 DUTIES OF COMMON CABRIER. §§216-218 himself a public duty and exercises a aovt of public office. He is bound to carry at reasonable rates such commodities as are in his line of business, for all persons who offer them, as early as his means will allow. The very definition of common car- riers implies indifference as to whom they may serve, and an equal readiness to serve all Avho may apply and in the order of their application." Refusal to perform this iluty lays the car- rier liable to an action foi- damages: oi- mandanins will lie to compel him to serve all indifferently. § 216. Conditions for commencement of the duty. — Tli.- pri- niary and most characteristic duty of the coiiiiiinn carrii-r then is his duty to carry for all who offer ju'oods luider pi-oprr con- ditions. Such being his duty it is imi)ortant to determine (a) When he has entered upon his undertaking, and (b) What evidence of his undertaking is usual or in-ci'ssary. (a) WliP)i Lidbilitij as Common ('(irrii r licgins. § 217. Delivery and acceptance. — The duties and liabilities of the common carrier as sueh, begin with the delivery of the goods to him or to his authorized agent, and their acceptance for immediate transportation. If something yet remains to be done by the shipper the delivery is not complete ;ind the strict liability of the common carrier does not attach. Hut delivery cannot be affected l)y the fact that the carrier for his own con- venience does not immediately begin the transportation. § 218. Delivery where. — The goods must be delivered at the place and in the manner provided by the carrier, or else 6 How. (U. S.) 344; Fitch v. New- Allen (:\lags.) oi'O. SI Am. I). 71s : berry, 1 Douglas (Mich.) 1, 40 Am. Illinois Central R. R. Co. v. Smy.sor. D. 33; [— ] HoUister V. Nowlen, 19 38 111. 354, 87 Am. I). 301; Wend. (N. Y.) 234, 32 Am. D. 455; [— ] Montgomery etc. Ry. C... v. McDuflfee v. Railroad Co., 52 N. H. Kolb, 73 Ala. 396. 49 Am. R. 54; 430, 13 Am. R. 72; f— ] Chicago & Southern Express Co. v. Newby. 36 N. W. Ry. Co. V. People, 56 111. Ga. 635, 91 Am. D. 783; FitchburK 365, 8 Am. R. 690; Messenger v. etc. Ry. Co. v. Ilanna. 6 C.ray Pennsylvania R. R. Co., 8 Vroom (Mass.) 539. 66 Am. D. 427; Rail- (N. J.) 531, 18 Am. R. 754. way Co. v. Murphy. 60 Ark. 333, .10 §217. Merriam v. Hartford etc. S W. R. 419, 46 Am. St. R. 202; R. R. Co., 20 Conn. 354, 52 Am. D. Ladue v. Gritlith, 25 N. Y. 364, S2 344; Blossom v. Gritfin, 13 N. Y. Am. D. 360. 569, 67 Am. D. 75; [—1 Judson v. §218. Merriam v. Hartford .-f.-. Western etc. Railroad Corporation, 4 R. R. Co., 20 Conn. 354, 52 Am. D. 91 ^ ^ '>19-220 ^I^ COMMON CARRIERS. they uiiist be clclivcrecl personally to his agent authorized to receive them. Unless the carrier has established such a cus- tom, leaving the goods upon the premises, or on the depot plat- form, is not complete delivery, nor is it full delivery to deposit them with an agent of the carrier not authorized to receive them. The shipper has a right to regard those employed at the carrier's usual place for receiving goods as having ample au- thority to so receive them. (h) Evidence of Acceptance. § 219. Bill of lading.— No writing is necessary to a complete delivery. When the goods are properly deposited for transpor- tation the carrier's liability begins. But it is customary to en- ter into some special contract of carriage by means of what is usually denominated a bill of lading, which is both a receipt for the goods and a contract for their carriage. The bill of lading as a receipt is prima facie evidence of de- livery to the carrier of a certain quantity of goods of a certain description and value, for transportation to a consignee there- in named. But like all receipts it can be varied or contradicted by parol evidence of mistake or fraud as to any or all of its terms descriptive of the goods. § 220. Bill of lading issued without goods. — If the agent of the carrier, conniving with the consignor, fraudulently issue a bill of lading without the delivery of any goods, or of the goods described, such consignor and persons taking from him with knowledge acquire no rights by force of the bill of lading. 344; [— ] Galena etc. R. R. Co. v. Am. St. R. 293; [— ] Morganton Rae, 18 111. 488, 68 Am. D. 574; Mfg. Co. v. Ohio River etc. Ry. Co., [— ] Tate V. Yazoo etc. Railroad Co., 121 N. C. 514, 28 S. E. R. 474, 61 78 Miss. 842, 29 So. R. 392, 84 Am. Am. St. R. 679; [— ] Louisville etc. St. R. 649; Railway Co. v. Murphy, Railroad Co. v. Wilson, 119 Ind. 352, 60 Ark. 333, 30 S. W. R. 419, 46 21 N. E. R. 341. Am. St. R. 202. § 220. [— ] Friedlander v. Rail- § 219. f— ] Tate v. Yazoo etc. way Co., 130 U. S. 416, 9 Sup. Ct. Railroad Co., 78 Miss. 842, 29 So. 570; oo/itra, Bank of Batavia v. Rail- R. 392, 84 Am. St. R. 649; O'Brien road Co., 106 N. Y. 195, 12 N. E. R. V. Gilchrist, 34 Me. 554, 56 Am. D. 433, 60 Am. R. 440. See also 676; [ — ] Montgomery etc. Ry. Co. \ — ] National Bank of Commerce v. V. Kolb, 73 Ala. 396, 49 Am. R. 54 ; Railroad Co., 44 Minn. 224, 46 N. W. Sonia Cotton Oil Co. v. Steamer Red R. 342, 20 Am. St. R. 566, and cases Fiver, 106 La. 42, 30 So. R. 303, 87 cited therein. 92 DUTIES OF COMMON CARRIEB. §§ 221-222 AVlu'ther an innocent transferee of tin- bill of lading may hold the railroad liable according to the terras of the bill of ladiug is a disputed ([iiestion. By the weight of authority he has no such right, for the agent of the carrier acts within the scope of his authority in issuing a bill of lading only when goods have been received. Some cases set forth strong r<'asons for holding the carrier liable on such a bill of lading on the ground that he is estopped to deny that his agent received the goods. § 221. Bill of lading as a contract. — The effect of stipu- lations in a bill of lading limiting the carrier's liability will be considered in another chapter. It is important here to notice, that like other written contracts it is a merger of prior and con- temporaneous agreements of the parties, and in the absence of fraud or mistake its terms may not be varied or contradicted by parol evidence of an oi-al agreement. § 222. Assignability and negotiability of bill of lading. — A bill of lading is a (piasi-uegutiable insli-ument. ll is negotia- ble in that it is transferred by indorsement and delivery, but in other respects it is non-negotiable. The a.ssignment of a bill oL' lading indorsed thereon passes to the assignee at once the title to the goods represented by the bill as completely as by delivery of the goods themselves. But as against third persons the assignee acquires the title of the assignor, no more, no less; he takes subject to all the equities that would have availed against his assignor. As between the parties mere delivery of the bill without indorsement with the intention to pass title is a good transfer of the goods. Statutes in some states declare bills of lading to be negoti- able. Such statutes are strictly construed, and are held not to change the character of the instrument, but to prescribe the mode of transfer by indorsement like negotiable instruments. § L'lil. [— ] .Moigauton Mfg Co. v. Railway Co., 130 U. 8. 41(5. !• Sup. V. Ohio River etc. Ry. Co., 121 N. C. Ct. 570; Burton v. Curyoa, 40 III. 514, 28 S. E. R. 474, 61 Am. St. R. 320, 89 Am. D. 350; Missouri Pa- 679; Louisville etc. Railroad Co. v. cifio Ry. Co. v. Heiilcnlioimer, 82 Tpx. Wilson, 119 Ind. 352, 21 N. E. R. 195, 17 S. W. R. 608, 27 Am. St. 341 ; Sonia Cotton Oil Co. V. Steamer R. 861; [ — ] National Bank ..f Red River, 106 La. 42, 30 So. R. Commerce v. Railroad Co., 44 Minn. 303, 87 Am. St. R. 293. 224, 46 X. W. R. 342, 20 Am. St. §222. [— ] Shaw v. Railroad R. 566. See also Se<'tion 151. tmtc. Co., 101 U. S. 557; [—1 Friedlau.lrr 93 S? 223-225 OF COMMON CARRIERS. < 223 Nature of bill of lading.— This grows out of the nature of a bill of lading. It is a mere symbol, a representative of the property, a substitute for the goods and not, like nego^ tiable paper, a representative of money. When properly in- dorsed and delivered for the purpose of transferring the title to the property it amounts to a constructive delivery of the .^oods themselves. The carrier must respect such a transfer if properly made, and deliver the goods according to the indorsed oi'der. ^ 224. Duplicate bills.— It is a common practice for the consignor to ship to himself as consignee, taking duplicate lulls of lading. One he sends unendorsed as notice of the ship- ment to the real consignee ; the other he endorses, attaches to it a draft on the real consignee and sends the endorsed bill of hiding and draft to a bank in the city to which the goods are consigned, with directions to the bank to deliver the endorsed bill of lading upon payment of the draft. If the carrier delivers the goods upon presentation of the duplicate unindorsed bill of lading it is liable to the consignor in case of loss. And this is true even where the vendee with- out paying the draft has fraudulently obtained the indorsed bill of lading, since he thereby obtained no title. The carrier is justified in delivering only upon presentation of the original indorsed bill of lading by the vendee after he has paid the attached draft. (3) Duty to FiirnisJi Accommodations. § 225. Suitable accommodations.— Before the day of rail- roads common carriers might furnish such accommodations as they chose, provided they were safe and suited to the under- §223. [— ] Shaw v. Eailroad"! 573, 39 N. W. E. 899, 9 Am. St. Co., 101 U. S. 5.57; Weyaml v. Atchi- **■ E. 504. son, Topeka & Santa Fe Ey. Co., 75 § 225. Hutcliinson on Carriers, Iowa 573, 39 N. W. E. 899, 9 Am. 292-295d; [— ] Chicago & N. W. St. E. 504; [— ] Friedlander v. Eail- Eailway Co. v. People, 56 111. 365, way Co., 130 IT. S. 416, 9 Sup. Ct. 8 Am. E. 690; Wood v. C, M. & 570, The Idaho, 93 U. S. 575. vSt. P. Ey. Co., 68 la. 491, 56 Am. § 224. The Thames, 14 Wall. (U. E. 861 ; Le Barron v. East Boston S.) 98; [— ] Shaw v. Eailroad Co., Ferry Co., 11 Allen (Mass.) 312, 87 101 U. S. 557; Weyand v. Atchison, Am. D. 717; Beard v. Illinois Cen- Topeka & Santa Fe Ey. Co., 75 Iowa tral Eailroad Co., 79 la. 518, 44 N. W. E. 800, 18 Am. St. E. 381. 94 DUTIES OF COMMON CARRIES. §§ 226-228 taking the carriers professed th'-inselves ready to perform. But the railroad is a (luasi-puhlie eoi-poration exereisinjr the ri^rht ol' eminent domain. It exists under a charter {rranting: large privik^ges and in turn exacting' unusual services. While it is not compelled to receive danjrerous ^roods. or merchandise un- suitable for shipment, yet it is compelled to provide suitable accommodations for the transportation of every artielc of com- merce. Its vehicle must be safe and suitable for the busini'ss. Open cars for carryin<»- stock, refri- plies for cars the railroad is not required to furnish them at once if it can be done only by depriving other shippers of their facilities. One shipper and one town have no right to demand §226. [— ] Ayres v. Chicago & 188, 2 Am. R. IH ; |— ] Xi-w .Forsey N. W. Ry. Co., 71 Wis. 372, 37 N. Steam Navigation Co. v. Merdiants' AV. R. 432, 5 Am. St. R. 226; Bank, 6 How. (U. S.) 344: Mi- [—1 Galena etc. Railroad Co. v. Rae, Duffee v. Railroad Co., 52 N. H. 18 111. 488, 68 Am. D. 574; Ballon- 4.30, 13 Am. R. 72; MessenKor v. tine V. Railroad Co., 40 Mo. 491, 93 Pennsylvania Railroad Co.. 8 Vrooiu Am. D. 31.5; Chicago etc. R. R. Co. (N. .].) 531, 18 Am. R. 754. V. Woleott, 141 lud. 267, 39 N. E. § 228. See the cases cited under R. 451, 50 Am. St. R. 320; [—1 HU- Sec 226 and Harrison v. Miiwouri nois Central Railroad Co. v. Franken- Pacific Railway Co.. 74 Mo. .164. 41 berg, 54 111. 88, 5 Am. R. 92. Am. R. 318; Michigan Contra! R. K. § 227. New England Express Co. Co. v. B\irrows. 33 Mich. 6. V. Maine Central Railroad, 57 IMe. 95 §§229-230 OF COMMON CARRIERS. service at the expense of another shipper and another town. The railroad is bound to serve all fairly and in turn, but if it is unable Avithin a reasonable time to provide the facilities called for, it is liable to the shipper in damages if it fails to notify him Avhether his cars can be furnished; and in any case it will bo liable if its failure is due to lack of facilities adequate to do the business it had reason to anticipate. If the railroad contracts to furnish cars it is bound to do so according to the terms of the contract. A local freight agent has implied au- thority to make such a contract. ^ 229. The Express Cases. — The State Courts in several cases decided that to grant one express company exclusive ac- commodations and privileges on its passenger trains for carry- ing on an express business was an unlawful preference, and that another company denied such privilege had an action for damages against the railroad corporation. But in The Express Cases the Supreme Court of the United States decided that railroad companies were not common car- riers of express companies. Their duty was to furnish the public at large with express facilities adequate to insure rea- sonable promptness and security, and they could not be com- pelled to furnish to all independent express companies equal facilities for doing business upon their passenger trains. This is now the settled rule. (4) Liability for Loss. § 230, Common law rule. — The common carrier is with cer- tain exceptions an insurer of the safe delivery of the goods en- trusted to him. The rule finds its reason in the opportunities for collusion and fraud by which the owner may be deprived of his goods §229. [— ] The Express Cases, v. Lockwood, 17 Wall. (U. S.) 357; 117 U. S. 1, 6 Sup. Ct. 542; and [ — ] New Jersey Steam Navigation compare New England Express Co. Co. v. Merchants' Bank, 6 How. (U. V. Maine Central Railroad Co., 57 S.) 344; Fitch v. Newberry, 1 Doug- Me. 188, 2 Am. R. 31, and McDuffce las (Mich.) 1, 40 Am. D. 33; V. Railroad Co., 52 N. H. 430, 13 Am. [—1 Christenson v. American Ex- R. 72. press Co., 15 Minn. 270, 2 Am. E. §230. [— ] Hollister V. Nowlen, :!22; [—J Illinois Central Railroad 19 Wend. (N. Y.) 234, 32 Am. D. Co. v. Frankenberg, 54 111. 88, 5 455; [ — ] Fish v. Chapman, 2 Ga. Am. R. 92; Willock v. Pennsylvania 349, 46 Am. D. 393; [— ] Railroad Railroad Co., 166 Pa. St. 184, 30 96 DUTIES OF COMMON CAEBIER. §§ 231-232 while they are beyond his sijjrht and control, and entrusted to the sole keeping of the carrier. Thou<;h robber bands no longer infest the highways, and the business of carrying goods is as thoroughly systematized in its methods as it is vast in its pro- portions, yet every relaxation of the rigor of the old common law rule has been attended with such evils as abundantly to justify its wisdom. And it is now well settled that only by special contract can the carrier be relieved, and bj' statute in some states even this means of restricting bis li;i])ility is denied him, § 231. Exceptions. — According to the early cases the com- mon carrier is an insurer of the goods against all losses except those arising from (a) The act of God. (b) The public enemy. To these have been added (c) The act of public authority. (d) The act of the shipper. (e) The inherent nature of the goods themselves. Unless the loss be due to one of these exceptions the carrier cannot excuse himself from liability by showing that the loss was inevitable, that he was entirely free from negligence, or that he had exercised the utmost possible human diligence and foresight. He is absolutely liable. § 232. (a) Act of God. — The cases do not agree in detining the act of God. By the better opinion it does not depend upon the violence of the force, but it must be a force due to physical Atl. R. 948, 45 Am. St. R. 674; Brent, V2 Md. 9, 71 Am. D. 582; [ — ] Hale V. New Jersey Steam Wolf v. American Express Co., 43 Navigation Co., 15 Conn. 539, 39 Mo. 421, 97 Am. P. 406; Colt v. Am. D. 398; Rixford v. Smith, 52 McMechen, 6 Johns. (N. Y.) 160, N. H. 355, 13 Am. R. 42; [— ] Hart 5 Am. D. 200; Transportation Co. v. V. Chicago etc. Railway Co., 69 la. Tiers. 4 Zab. (N. J.) 697. 64 Am. 485, 29 N. W. R. 597. D. 394; Wald v. Pittsburg etc. §231. See cases cited under Sec. Railroad Co., 162 111. 545. 44 N. K. 230, and AgneAv v. Steamer Contra R. 888, 53 Am. St. R. 332; Long v. Costa, 27 Cal. 426, 87 Am. D. 87. Pennsylvania Railroad Co.. 147 Pa. § 232. r— 1 Forward v. Pittard, St. 343, 23 Atl. R. 159. ."W Am. St. 1 T. R. 27; 1—1 Railroad Co. v. R. 732; McCraw v. Baltimore & Reeves, 10 Wall. (U. S.) 176; Mer- Ohio R. R. Co., 18 W. Va. .^61, 41 ritt V. Earle, 29 N. Y. 115, 86 Am. Am. R. 696; Rixford v. Smith, 5'! D. 292; McArthur v. Sears, 21 X. H. 355, 13 Am. R. 42. Coinpnrr Wend. ex. Y.) 190; Fergusson v. Michaels v. New York Central Rail- " 97 <-< '>33-235 ^^^ COMMON CAEEIEES. causes, without the interposition of human agency. Examples are, losses caused by lightning, freshets, earthquakes, frost, rain and snow storms, unpreeedented wind and other actions of the elements. ^ 233. ' Inevitable accident includes the act of God but is not synonymous with it, for inevitable accident, vis major, or irresistible force, may be due to human agency. Such are losses by fire (not caused by lightning), by robbery and theft, by decayed timbers in a bridge, by a strike, by a sunken mast, by false lights or a drifted buoy. For loss by any of these means, though no human force could have prevented it, the carrier is liable. ^ 234. Proximate cause. — Not only must the loss be caused by the act of God but that must have been the proximate cause. If some human agency has intervened the carrier is not excused unless the human agency was so connected with the act of God that all amounted to one act. I 235. Diligence of carrier. — Loss from disaster due to the force of the elements which no human foresight could have prevented it has been seen is not chargeable to the carrier. But this implies not merely that the loss was caused by the act of God but that it could not have been prevented by the carrier. Overtaken by the act of God the carrier will still be liable road Co., 30 N. Y. 564, 86 Am. D. v. Baltimore & Oliio Eailroad Co., 415, and Hays v. Kennedy, 41 Pa. IS W. Va. 361, 41 Am. E. 696. Com- St. 378, 80 Am. D. 627. pare Eead v. Spalding, 30 N. Y. 630, § 233. Merritt v. Earle, 29 N. Y. 86 Am. D. 426, with Denny v. New 115, 86 Am. D. 292; Fergusson v. York Central Eailroad Co., 13 Gray Brent, 12 Md. 9, 71 Am. D. 582; (Mass.) 481, 74 Am. D. 645. McArthur v. Sears, 21 Wend. (N. §235. [— ] Eailroad Co. v. Y.) 190. But compare Hays v. Eeeves, 10 Wall. (U. S.) 176; Nu- Kennedy, 41 Pa. St. 378, 80 Am. D. gent v. Smith, I.. E. 1 C. P. Div. 627, with [ — ] Fish v. Chapman, 2 423; Blythe v. Eailway Co., 15 Colo. Ga. 349, 46 Am. D. 393. 333, 25 Pac. E. 702, 22 Am. St. E. § 234. Merritt v. Earle, 29 N. 403 ; Smith v. Western Eailway, 91 Y. 115, 86 Am. D. 292; Fergusson Ala. 455, 8 S. E. 754, 24 Am. St. E V. Brent, 12 Md. 9, 71 Am. D. 582; 929; Hays v. Kennedy, 41 Pa. St Blythe v. Eailway Co., 15 Colo. 333, 378, 80 Am. D. 627 ; Wolf v. Ameri 25 Pac. E. 702, 22 Am. St. E. 403 ; can Express Co., 43 Mo. 421, 97 Am Wolf V. American Express Co., 43 D. 406; McGraw v. Baltimore & 'Mo. 421, 97 Am. D. 406; Trans- Ohio Eailroad Co., IS W. Va. 361 portation Co. v. Tiers, 4 Zab. (N. 41 Am. E. 696. J.) 697, 64 Am. D. 394; McGraw 98 DUTIES OF COMMON CARRIER. §§ 23G-238 unless he uses all reasonable care in the sudden emergency to save the goods. This care is not the utmost care which human sagacity could suggest, but that of the ordinarily prudent man confronted by such conditions. § 236. (b) The public enemy imans an enemy of the coun- try with Avhom the nation is at war, and piratfs who are said to be the enemies of all mankind. It does not include mobs, rioters, robbers, strikers and in- surgents. These, although common enemies of the country, are not technically pu})lic enemies and loss by them will not <'Xcu.se the carrier. An insurrection however may ripen into a rebel- lion or a revolution, so that a state of open war cxi.sts, and then insurgents become public enemies. § 237. Negligence of the carrier. — The carri^-r lias al- ways been exempt from liability for losses due to the public enemy, but as in the case of the act of God, it must appear that the public enemy was the proximate cause of the loss and that it could not have been averted by ordinary care on the part of the carrier. § 238. (c.) Public authority. — "If the carrier is excusable for yielding to a public enemy he cannot be at fault for yield- ing to actual authority what he may yield to usurped authority. Whatever his duty to resist a forcible seizure without j^rocoss he cannot be compelled to assume that regular process is illegal, and to accept all the consequences of resisting officers of the law." He will be relieved of liability, therefore, if without his fault the goods are destroyed by the police power of the state, or if they are taken by legal process fair upon its face, when issued against the owner of the goods. The shipper should at once be notified of the seizure so that he may have an opportunity to appear and defend. A seizure under void process is no defence to the carrier. § 236. [—1 Coggs V. Bernard, § i!3S. [—1 Pingrcc v. Railroad £ Ld. Eay. 909, 1 Sm. L. Cas. 199; Co.. 66 Mich. 143, 33 X. \V. R. -JPS. Southern Express Co. v. Womack, 1 11 Am. St. R. 479; [—1 Stiles v. Heisk. (Tenn.) 256; Clark V. Pacific Davics, 1 Black. (U. S.) 101; Railroad Co., 39 Mo. 184, 90 Am. D. |— 1 Bennett v. American Express 458; Lewis v. Ludwick, 6 Cold. Co., S3 Me. 236, 22 Atl. R. 159, 2?. (Tenn.) 368, 98 Am. D. 454. Am. St. R. 774; Hutchinson on Car- §237. Clark v. Pacific Railroad liers 21()b-210c, 396-400. Co., 39 Mo. 184, 90 Am. D. 458. 99 ^ < 039.042 01^ COMMON CAKRIERS. ^239. (d.) Act of the shipper.— For his own fraud or fault none may hold another liable. If the shipper improperly l)aek or mark the s'oods in sueh manner that it is not ap- l)arent to the earrier, or if he load them himself and assume charge of them on the journey, or if he pack them so as to conceal from the carrier their true value and character, he can- not hold the earrier liable for loss due to his own act. To excuse the carrier however it must appear that he was free from negligence. § 240. Concealing value.— The shipper is not in general required to reveal the value of goods shipped. But if the carrier asks the value and he fails to reveal it, he cannot hold the carrier liable beyond the amount made known. And if the shipper disguise the box or package, whether intentionally or not, so as to conceal the true value of the goods, and the car- rier is thereby led to use less care than goods of such value demand, the shipper must bear the consequences. If he wishes the carrier to assume full liability he should give notice so that due care may be exercised, and proper compensation charged for the added risk. § 241. (e.) Inherent nature of the goods.— Losses due to the decay, defect, nature or infirmity of the goods themselves have been placed with those caused by the act of God. The same principle clearly applies, and where the carrier has furnished proper accommodations and exercised ordinary care upon the journey, and loss has occurred because of the in- herent nature of the goods, no liability attaches. § 242. Live animals. — Since the common carrier has be- come a carrier of animate things it has been recognized that §239. Miltimore v. Chicago etc. D. 455; [—1 Orange County Bank Railway Co., 37 Wis. 190; [— ] Hart v. Brown, 9 Wend. (N. Y.) 85, 24 V. Chicago etc. Railroad Co., 69 Iowa Am. D. 129 ; [— ] Bennett v. Ameri- 485, 29 N. W. R. 597; Harvey v. can Express Co., 83 Me. 236, 23 Am. Rose, 26 Ark. 3, 7 Am. R. 595; St. R. 774. [— ] Orange Co. Bank v. Brown, 9 § 241. [— ] Evans v. Fitebburg Wend. (N. Y.) 85, 24 Am. D. 129; Railway Co., Ill Mass. 142, 15 Am. McCarthy v. Louisville & Nashville R. 19; McGraw v. Baltimore & Ohio Railroad Co., 102 Ala. 193, 14 S. R. Railway Co., 18 W. Va. 361, 41 Am. 370, 48 Am. St. R. 29 ; Erie Railway R. 696 ; Rixford v. Smith, 52 N. H. Co. V. Wilcox, 84 111. 239, 25 Am. 355, 13 Am. R. 42; [— ] Moulton v. E. 451. St. Paul etc. Ry. Co., 31 Minn. 85, § 240. [—1 Hollister v. Now- 16 N. W. R. 497, 47 Am. R. 781. len, 19 Wend. (N, Y.) 231, 32 Am. § 242. f— ] Evans v. Fitebburg 100 Duties of common carrier. ^§243-244 a different element luis been iiiti. 3S5. 594, 91 Am. D. 446. 35 N. E. R. 703, 53 Am. St. R. 391. § 248. Denny v. New York Ccn- m OF COMMON CARRIERS OF GOODS. CHAPTER XII. B. LIABILITY UNDER SPECIAL CONTRACT. Bill of lading. Parol evidence. Delivery of bill of lad- ing. Parol contracts. Tickets, baggage checks, etc. (b) Extent of limitation. Limitations reasonable and just. (i) Limitations as to the nature of carrier's liabil- ity. General rule. Special rules. (ii) Limitations as to amount of liability. Limitations as to amount. Common law duty remains. Consideration. Parties to the contract. Agents of the carrier. Burden of proof. § 249. Contracts enlarging liability. — By special contract the carrier may make himself liable to any extent, or in any manner. He may insure against every risk, even acts of God or the public enemy, against delay and the inherent defects of the goods. He may undertake to ship at a certain time, by a specified train, over a designated route, or to deliver at all hazards by a definite hour. To such contracts fairly entered into impossibility of performance is no defence. Having prom- ised the carrier must perform at his peril. § 250. Contracts limiting liability. — It is equally well set- 104 1249. Contracts enlarging liabil- §262. ity. 263. 250. Contracts limiting liability. 264. 251. Historical. 252. Contract must be ex- 265. press. 266. 253. Notices. (1) Limitation of liability 267. by public notice. 254. (a) Public notice. 255. Notice to reveal value of goods. 2.56. Notice of rules and reg- ulations. 268. 257. (b) Notice limiting liabil- ity for loss. 269. 258. English rule. 259. American rule. • 270. (2) Liability under special 271. contract. 260. The earlier cases. 272. 261. United States rule. 273. (a) Form of special con- 274. tracts. 275. LIABILITY UNDER SPECIAL CONTRACT. § 051 tied that the responsibilitj^ of a common carrii-r may be limited by an express contract assented to by the shipper at the time the goods were accepted by the carrier, in so far as such re- strictions are reasonable and not contrary to public policy. Such in substance is the holding of the United States Supreme Court, which has been followed by every state court, thougli the conditions of liability at comnujii law have, in some statcR, been restored by provisions in the constitution or by statute. § 251. Historical. — The courts, with great unanimity and much reiteration have insisted upon the wisdom of the rule imposing upon the carriei* extraordinai-y liability, and have pointed out the disastrous results of any relaxation of the rule, but with some exceptions they have failed to recognize that they were in effect largely abandoning the rule, even whiH* they were insisting upon its great benciicence, bj' allowing the carrier to escape its rigor by special contract with the shipper. As Mr. Schouler has pointed out, "The reports bear amplo record of the unflagging perseverance with which the common carrier seeks to make decreased responsibility to the public the price of affording to the public increased facilities of trans- portation; of his quick-wittedness in coaxing, entrapping, even coercing his customers into accomplishing this furtherance of his own ends." The carrier, at the cost of some annoyance and a vast amount of litigation, has through his use of the special contract wrested from the public, by consent of the courts, almost the same ex- emptions so strenuously denied him without a contract. So hopeless has been the disadvantage of the shipper in the un- equal contest that it was a foregone conclusion that he would §250. [— ] New Jersey Steam '),-. Am. D. ■2-22; [—] Railroad v. Navigation Co. v. Merchants' Bank, Loekwood, 17 Wall. (U. S.) 357; 6 How. (U. S.) 344; Southern Ex- Adams E.\press Co. v. Stettaners, 61 press Co. v. Caldwell, 88 U. S. 264; 111. 184, 14 Am. R. 57; Gulf etc. [— ] Railroad v. Loekwood, 17 Wall. Railroad Co. v. Trawiok, 68 Tex. (U. S.) 357. 314, 4 S. W. R. 567. 2 Am. St. R. §251. Schouler on Bailments 494; Missouri Pacific Railway Co, and Carriers, Sec. 460, 88 Am. St. v. Vandeventer. 26 Neb. 222, 41 N. R. 74, note; Gould v. Hill, 2 Hill W. R. 998; McDaniel v. Chicago (N. Y.) 623; [— ] Fish v. Chapman, etc. Railway Co., 24 Iowa 412; Ohio 2 Ga. 349, 46 Am. D. 393; [— ] Hoi- etc. Railway ("o. v. Tabor. 98 Ky. lister V. Nowlen, 19 Wend. (N. Y.) 503, 32 S. W. R. '168; St. I^ouis etc. 234, 32 Am. D. 455; Moses V. Boston Railway Co. v. Sherlock. "'' K^.n. & Maine Railroad Co., 24 N. H. 71, 23, 51 Pac. R. 899. 105 ^^ 252-254 OF COMMON CAEEIERS. be obliged to agree to any stipulations the court might allow the carriers to impose; and "goods are in fact now but rarely accepted by them without an agreement or contract for such limitation." One early case denying this right to the carrier stands alone, although sympathy has been expressed with its rule in other cases, and now in ;ilmost every state the validity of contracts exempting the carrier from much of his common law liability is firmly established, though in a few states provisions in the constitutions or statutes forbid all such limitations, or in cer- tain respects restrict them. j; 252. Contract must be express. — But the contract must be express. A contract enlarging or restricting the car- rier's liability is in derogation of the common law, and so is strictly construed against the party in whose favor the changes are made. No exemptions are allowed the carrier except by clear and explicit stipulations in the contract. If terms favor- ing the carrier are susceptible of two meanings that will be adopted which is the more favorable to the shipper. Exemp- tion of liability for one cause will not by implication be ex- tended to include others. § 253. Notices. — Two means have been resorted to by common carriers to evade and lessen liability. (1) By public notice. (2) By special contract. Notices have been used for two purposes: (a) To call attention to the rules and regulations of the carrier. (b) To limit his liability for loss. (1) Limitation of Liability by Public Notice. § 254. (a) Public notices requiring the shipper to reveal to the carrier what the latter has a right to demand, or pub- §252. [— ] Hinkle v. Southern 28 Am. D. 653; [— ] Bennett v. Eailway Co., 126 N. C. 932, 36 S. E. American Express Co., 83 Me. 236, R. 348, 78 Am. St. R. 685; [— ] New 22 Atl. R. 159, 23 Am. St. R. 774; Jersey Steam Navigation Co. v. Southern Express Co. v. Caldwell, 88 Merchants' Bank, 6 How. (U. S.) U. S. 264. 344; [ — ] Hart v. Pennsylvania §254. [— ] Hollister v. Nowlen, Railroad Co., 112 U. S. 331; Beck- 19 Wend. (N. Y.) 234, 32 Am. D. man v. Shouse, 5 Rawle (Pa.) 179, 4n5; [— ] New Jersey Steam Navi- 106 LIABILITY UNDER SPECIAL COXTBACT ^^ o^^ o:;? lishing the reasonable rules and regulations of the company as to its manner of doing busin.^ss, if brought lioin.- to the knoAvledge of the shipi)er. are binding. § 255. Notice to reveal value of goods.— It has been noted that the shipper is not bound to iught to the knowledge of the shipper protect itself from liability be- yond a fixed aiiiount, unless the shipper reveals the real value so that the carrier may make reasonable charge for the addi- tional I'isk. and take the necessary precauti<»ns lo insure safety. i? 256. Notice of rules and regulations.— Again reason- able rules as to the manner of delivery and .-ntry of freight, rates of freight, th-.^ disclosure of the nature of goods, perish- able or dangerous, the time and manner of presenting claims for losses and the like may be published by a general notice. "These are but the reasonable regulations which every man should be allowed to establish for his business to insure regu- larity and promptness, and to properly inform him of the re- sponsibility he assumes." § 257. (b) Notice limiting liability for loss. — A distinc- tion is to be taken between notices designed to .secure expedi- tious service and fair dealing and those seeking to discharge the carrier from duties imposed upon him by law. If the car- rier seeks by public notice to escape duties and liabilities an- nexed to his employment by law, it is not enough that such notice be brought to the knowledge of the owner ()f the prop- gation Co. v. Merchants' Bank, 6 §256. 1 — 1 McMillan v. Rail- How. (U. S.) 344; Southern Ex- road Co., 16 Mich. 79, 93 Am. R press Co. v. Newby, 36 Ga. 635, 91 208; Western Transportation Co. v. Am. D. 783. Newhall, 24 III. 466. 76 Am. D. 760; § 255. [ — ] Hollister v. Now- Southern Express Co. v. Xewby, 36 len, 19 Wend. (N. Y.) 234, 32 Am. Ga. 635, 91 Am. D. 783. D. 455; [— ] Orange County Bank §257. Erie Railway Co. v. Wil- V. Brown, 9 Wend. (N. Y.) 85, 24 cox, 84 111. 239. 25 Am. R. 4.")1; Am. D. 129; [ — ] Fish v. Chap- [ — ] New .lersey Stoam Xavijjation man, 2 Ga. 349, 46 Am. D. 393; Co. v. Merchants' Bank. 6 How. (U. [ — ] Hart V. Pennsylvania Railroad S.) 344; [ — ] Christonson v. Amcri- Co., 112 U. S. 331; Willock v. Penn- can Express Co., 15 Minn. 270. 2 Am. sylvania Railroad Co., 166 Pa. St. K. 122; ( — j Bennett v. Amoricnn 184, 30 Atl. R. 948, 45 Am. St. R. Express Co., S3 Me. 2.36. 22 Atl. R. 674. 159, 23 Am. St. R. 774. 107 *>< 258-260 O^ COMMON CAEEIEES. in-ty. To be ett'eetual the restriction must be actually assented to by the owner. § 258. English rule.— The attempt of the carrier by posting public notice to limit his liability for loss was favored by the English courts until it resulted in a situation so intoler- able as to bring about the passage of the Railway and Canal Traffic Act of 1854, which required that conditions must be embodied in a special contract signed by the shipper, and that they must be such as shall be adjudged by the court or judge, before whom any question relating thereto shall be tried, to be just and reasonable. js 259. American rule.— The American courts squarely refused to follow the confessedly unsatisfactory rule reached in England, but held that even though a notice were brought to the shipper's knowledge and he delivered goods thereafter to the carrier, his consent to be bound by the notice was not to be presumed. For ' ' a notice can, at the most, only amount to a proposal for a special contract which requires the assent of the other party. The mere delivery of goods after receiv- ing a notice cannot warrant a stronger presumption that the owner intended to assent to a restricted liability on the part of the carrier, than it does that he intended to insist on the liabilities imposed by la.w," as he had a right to do. (2) Liahility Under Special Contract. § 260. The earlier cases. — The case of Hollister v. Nowlen, supra, was followed in a few years by Gould v. Hill, in which a special contract was put in the same position as notices, the court regarding the individual shipper as so hopelessly out- matched in contracting with the great carrying corporations §258. [— ] Hollister v. Now- v. Lockwood, 17 Wall. (U. S.) 357; len, 19 Wend. (N. Y.) 234, 32 Am. Moses v. Boston & Maine Railroad D 455; [—1 Railroad v. Lockwood, Co., 24 N. H. 71, 55 Am. D. 222; 17 Wall. (U. S.) 357; Moses v. Bos- Southern Express Co. v. Newby, 36 ton & Maine Railroad Co., 24 N. H. Ga. 635, 91 Am. D. 783. 71, 55 Am. D. 222 ; Southern Ex- § 260. Gould v. Hill, 2 Hill (N. press Co. v. Caldwell, 88 U. S. 264. Y.) 623; [— ] Fish v. Chapman, 2 § 259. [— ] Hollister v. Now- Ga. 349, 46 Am. D. 393 ; [— ] Rail- len, 19 Wend. (N. Y.) 234, 32 Am. road v. Lockwood, 17 Wall. (U. S.) D. 455; [ — ] New Jersey Steam 357; Schouler on Bailments and Navigation Co. v. Merchants' Bank, Carriers, 460-462. 6 How. (U. S.) 344; [—1 Railroad 108 LIABILITY UNDER SPECIAL CONTRACT. || 261-262 that it made little difference whether the carrier sought the exemption by public notice or by special contract. It seemed a travesty to speak of mutual assent between two i)arties on such unequal footinji. § 261. United States rule. — The Supreme Court of the United States in the ease of the .Xew Jersey Steam Navigation Co. V. ^Merchants' Bank, supra, disapproved the rule of (Jiiuld V. Hill, and in this has been followed by all the .state courts, including Xew York : so that now, apart from statute, the car- rier is everywhere permitted by contract assentetl to by the shipper to secure release from his strict liability. It is now in order to inquire (a) How these restrictions may be nuirle. (b) How far they may extend. (a) Form of Special Contracts. § 262. Bill of lading. — When the special contract is in writ- ing its terms are usually incorporated in the bill of lading, which, as already noticed in § 219, is both a receipt and a contract. As a contract it requires mutual assent to its terras. The carrier cannot by his ex parte action restrict his liability, but express assent by the shipper is not essential. The courts, with substantial unanimity, have held that when a shipper ac- cepts a bill of lading at the time when he delivers his goods to the carrier he is conclusively presumed, in the absence of fraud and imposition, to have assented to all the terms and conditions, written or printed, therein. It matters not that he may not have understood th.-m. or even read them, nor that he took the bill but did n<«t si-rn it. He is conclusively presumed to know the general custom to print such regulations in bills of lading, and if he choi.ses to accept them without reading he is estopped from denying his assent, so far as the regulations are reasonable and just. § 261. [—1 New Jersey Steam Railroad Co., 66 Vt. 290, Hi Atl. R. Navigation Co. v. Merchants' Bank, 313, 44 Am. St. R. 852; Grace v. 6 How. (U. S.) 344; Gould v. Hill. Adams. 100 Mass. no.'). 97 Am. 0. 2 Hill (N. Y.) 623. 11": Belger v. Dinsmore. HI N. Y. §o(5o*[_| MfMiUan v. Rail- 166, 10 Am. R. 575; Ballon v. Earle. road' Co., 16 Mich. 79, 93 Am. D. 17 R. I. 441. 22 Atl. R. 1113. 33 208; [—] Christenson v. American Am. St. R. 881. Contra. Adams Ex- Express Co., 15 Minn. 270, 2 Am. press Co. v.^ St et tuners. 61 HI. IM, R 122; Davis v. Central Vermont 1-'. Am. R. 57. 109 '^ 'i '^63-266 OF COMMON CARRIEKS. §263. Parol evidence.— Bills of lading, as contracts, like other written contracts, cannot be varied or contradicted by parol evidence. All previous oral agreements are pre- sumed to be merged in a bill of lading, which is regarded as the final repository of the terms and conditions of the contract of carriage. ^ 264. Delivery of bill of lading. — To effect a contract by means of a bill of lading it is necessary to deliver the bill of lading when the goods are accepted by the carrier. The rule that prior negotiations are merged in the written agree- ment has no application to a case where the written agree- ment is imposed upon one party after the other party has begun performance. If the carrier accepts the goods uncondi- tionally, he cannot afterwards, without the consent of the owner, limit his liability by imposing a bill of lading containing restrictions. Of course, the shipper may expressly, or im- pliedly, or by course of dealing, consent to a future delivery of the contract. >5 265. Parol contracts. — No particular form of contract is necessary between the carrier and shipper. A parol statement by the carrier assented to by the shipper Mall be as effectual as a written contract, though evidence to prove it is more uncer- tain. The contract may be partly in writing and partly oral, but merely shipping goods after an oral statement of the con- ditions of carriage is -not conclusive of assent to those condi- tions. The carrier assumes the burden of proving clearly the mutual agreement. § 266. Tickets, baggage, checks, etc., ca7inot be regarded like bills of lading and express receipts. These latter are taken leisurely, are used in trade by way of pledge as security for advances, or they are assigned to transfer title to the goods. §263. See Sec. 221, ante; Davis Dinsmore, 111 Mass. 45; Hutchinson V. Central Vermont Eailroad Co., 66 on Carriers, 246-247. Vt. 290, 29 Atl. E. 313, 44 Am. St. § 265. Gott v. Dinsmore, 111 E 852; [ — ] Hansen v. Flint & Pere Mass. 45; American Transportation Marquette Eailroad Co., 73 Wis. Co. v. Moore, 5 Mich. 368; Black 346, 9 Am. St. E. 791. v Transportation Co., 55 Wis. 319, § 264. [— ] Bostwick v. Eail- 13 N. W. E. 244, 42 Am. E. 713. road Co., 45 N. Y. 712; Merchants' §266. Blossom v. Dodd, 43 N. Despatch Transportation Co. v. Y. 264, 3 Am. E. 701; [ — ] Ean- Furthmann, 149 111. 66, 36 N. E. E. chau v. Eutland Eailroad Co., 71 624, 41 Am. St. E. 265; Gott v. Vt. 142, 43 Atl. E. 11, 76 Am. St. R. 110 LIABILITY UNDER SPECIAL CONTRACT. §§ 267-268 They are the representatives of the goods, and are of such im- portance that a hokler cannot be heard to claim ignorance of their contents. Not so with tickets and checks; they are usually taken in haste, represent no goods, and in general con- tain no terms. They are understood to be mere receipts show- ing that the holder has paid for a service. They are not in general contracts, but mere evidence of a contract. If they are to serve as contracts also the carrier must indicate that fact, and in some way secure the assent of the owner. (b) Extent of the Liinitittioii. ^ 267. Limitations reasonable and just. — Tiiough an almost universal liberty is allowed the cai-i-ier to contract for exemp- tions from his common law liability, the courts, with few ex- ceptions, insist that the stipulations of the contract must be reasonable and .just. Even though a shipper may be ready to assent to complete release of the carrier from liability, the courts will not recognize such an agreement because of tlie interest of the x)ublie in preventing the carrier from taking advantage of the individual shipper. It becomes important then at this point to mai-k out what is reasonable and not contrary to public jiolicy. Foi* this jiurpose restrictions may be regarded as intended to limit (i) The nature of the liability. (ii) The amount of the liability. (i) Limitations as to the Xaturc of the Carrier's Liability. § 268. General rule. — It is the rule in most jurisdictions that common carriers may by special contract assented to by 761; Grace v. Adams, 100 .Mass. 10 .\. \V. K. W7. 47 Am. R. 7sl: 505, 97 Am. I). 117; Kansas City [ — J Christensoii v. American Ex- etc. Railroad Co. v. Rodebaugh, 3S press Co., 15 Minn. '270, 2 Am. R. Kan. 45, 15 Pac. R. 899, 5 Am. St. li:2; Davis v. Central Vermont Rail- R. 715; Rawson v. Pennsylvania road Co., 66 Vt. 290, 29 Atl. R. .113, Railroad Co., 48 N. Y. 212, 8 Am. 44 Am. St. R. 852; Ballou v. Knr\c. R. .543. 17 K. I. 441, 22 Atl. R. l\U, 33 §268. [—1 New Jersey Steam Am. St. R. 881; Reid v. Evan.sville Navigation Co. v. Merchants' Rank, & Terre Haute Railroad Co., 10 6 How. (U. S.) 344; |— 1 Railroad Tnd. App. 385, 35 N. K. «. 703, 53 V. Lockwood, 17 Wall. (U. S.) 357; Am. St. R. .391. See also the notes Express Co. v. Caldwell, 21 Wall, to 32 Am. D. 49S, and 88 Am. St. (U. S.) 264; [— ] Moulton v. St. R. 95. Paul etc. Railway Co., 31 Minn. 85, 111 ^ ^ 269-270 O^ COMMON CAEEIERS. the shipper be relieved from liability for loss to the goods from any eause not due to the negligence of the carrier, or to his agents or servants. Against negligence the carrier is not per- mitted to contract. § 269. Special rules.— In New York a distinction is at- tempted between the acts of the carrier, and the acts of its agents or servants. Against its own negligence the carrier in'ay not contract, but against that of its agents and servants it may. This distinction is not generally recognized, and in most states is expressly denied; even in New York contracts for such exemptions are construed with great strictness. In Illinois, and perhaps a few other states, it has been held that carriers are liable for "gross negligence or wilful mis- feasance against which good morals and public policy forbid they should be permitted to stipulate." The Illinois courts, however, seem to regard any negligence by the carrier as gross. In Kentucky. Nebraska, Iowa and Texas the constitution or statutes forbid common carriers to limit or restrict their lia- bility as it exists at common law. In many other states some bounds are set by statute to the carrier's power to contract against liability. (/(■) Limitations as to the Amount of the Liahility. ^ 270, Limitations as to amount. — Despite some apparent conflict in the cases the rule is now well settled that the car- rier may by contract limit his liability in case of loss to a fixed amount. But it must appear that such amount was, for the purpose § 269. Magnin v. Dinsmore, 56 N Railway Co., 24 Iowa, 412; Gulf etc. Y. 168; [ — ] Mynard v. Syracuse, Railroad Co. v. Trawick, 68 Tex. etc., Railroad Co., 71 N. Y. 180, 27 314, 4 S. W. R. 567, 2 Am. St. R. Am, R. 28; Illinois Central Rail- 494; St. Louis etc. Railway Co. v. road Co. v. Smyser, 38 111. 354, 87 Sherlock, 59 Kan. 23, 51 Pac. R. Am. D. 301 ; Chicago etc. Railway 899. See the extended note in 88 Co. V. Chapman, 133 111. 96, 24 N. Am. St. R. 74. E. R. 417, 23 Am. St. R. 587 ; Black § 270. [— ] Hart v. Pennsyl- V. Goodrich Transportation Co., 55 vania Railroad Co., 112 U. S. 331, 5 Wis. 319, 13 N. W. R. 244, 42 Am. Sup. Ct. 151; [— ] Moulton v. St. R. 713; Ohio, etc., Railway Co. v. Paul etc. Railway Co., 31 Minn. 85, Tabor, 98 Ky. 503, 32 S. W. R. 168 ; 16 N. W. R. 497, 47 Am. R. 781 ; Missouri Pacific Railway Co. v. Alair v. Northern Pacific Railroad Vandeventer, 26 Neb. 222, 41 N. W. Co., 53 Minn. 160, 54 N. W. R. R, 998; McDaniel v, Chicago etc. 1072, 39 Am, St, R, 588; Belger v. 112 LIABILITY UNDER SPECIAL CONTRACT. §§ 271-272 of transportation, the agreed va!u specifically named in the contract. ;? 272. Consideration. — Like other eoniraeis tlie contract limiting the liability of the carrier must be supported by con- sideration. Mere acceptance and carriage of the goods is not enough. The consideration usually consists in reduced rates for carriage. When therefore the maximum rates allowed by law are charged the contract limiting liability fails for laek of Dinsmore, 51 N. Y. 166, 10 Am. R. Ark. Hi'. -20 S. W. K. S03. 38 Am. 575; Ballon v. Earle, 17 E. I. 441, St. R. -JSO; [—1 Hinkle v. Southern 22 Atl. R. 1113, 33 Am. St. R. 881; Railway Co., 126 N. C. 932, 35 S. Xlllman v. Chicago, etc.. Railway Co., E. R. 810, 78 Am. St. R. 685; Wit- 112 Wis. 150, 88 N. W. R. 41, 88 ting v. St. Louis etc. Railway Co.. Am. St. R. 949. 101 Mo. 631, 14 S. W. R. 743, 20 § 271. [— ] Railroad v. Lock- Am. St. R. 636. wood, 17 Wall. (U. S.) 357; Moses §272. [— 1 McMillan v. Michi- V. Boston & Maine Railroad Co., 24 gan Southern, etc.. Railroad Co., 16 X. H. 71, 55 Am. D. 222; [-] Mc- Mich. 79, 93 Am. D. 208; Belger v. Millan v. Michigan Southern, etc., Dinsmore, 51 N. Y. 166. 10 Am. R. Railroad Co., 16 Mich. 79, 93 Am. 575; McFadden v. Mis.«ouri Pacific D. 208; Ballou v. Earle, 17 R. I. Railway Co., 92 Mo. 343, 4 S. W. R. 441, 22 Atl. R. 1113. 33 Am. St. R. 689, 1 Am. St. R. 721. and the note S81 ; Railway Co. v. Cravens, 57 to 88 Am. St. R. 88. S 118 ^^ 27:5-275 ^V COMMON CAKKIEKS. consideration. In the absence of proof to the eontrary con- sideration is i.resumed. thf rate being based on the hinited liability incurred. § 273. Parties to the contract.— An agent entrusted by the OAvner with -oods for shipment has implied power to accept a receipt containing reasonabk^ limitations on the carrier's lia- bility. The consignor has usually such authority for a con- signee, but a connecting carrier has no implied authority to ac'eept conditions other than those in its own contract of ship- ment, or those that are by custom and usage known to the shipper to be the conditions under which the connecting carrier usually carries. But the agent directed to forward goods, in the absence of contrary instructions, is bound to accept the customary receipt, and if he refuse and the carrier in conse- quence decline to accept the goods, the agent may become per- sonally liable to the consignee for resulting loss. § 274. Agents of the carrier.— Railroads act only through agents. No question of the authority of such agent can arise where the company seeks to take advantage of the contract. Acceptance of the contract is affirmance of the power of the agent to make it. But when an agent accepts for the carrier increased obligations, the question of his authority is vital. In general the public have a right to assume that both the general agent, and the local or station agent, have authority to bind the company by reasonable contracts as to matters within the line of their employment. The usage and custom of the carrier are often important in determining whether the act of the agent was within the real or apparent scope of his authority. § 275. Burden of proof. — The burden of proving that the loss resulted from a cause included in the exemptions named § 273. Kawson v. Holland, 59 N. Iowa, 491, 27 N. W. R. 473, 56 Am. Y. 611, 17 Am. E. 394; [— ] Mc- E. 861; [— ] Hansen v. Flint & :\Iillan V. MicMgan Southern, etc., Pere Marquette Railroad Co., 73 Railroad Co., 16 Mich. 79, 93 Am. Wis. 346, 41 N. W. R. 529, 9 Am. D. 208; 88 Am. St. E. 87 and note. St. R. 791. Compare Burroughs v. § 274. Deming v. Grand Trunk Railroad Co., 100 Mass. 26, 1 Am. R. Railway Co., 48 N. H. 455, 2 Am. R. 78, and Grover & Baker Sewing Ma- 267; Voorhees v. Chicago, Rock chine Co. v. Missouri Pacific Rail- Tsland & Pacific Railway Co., 71 way Co., 70 Mo. 672, 35 Am. E. 444. Iowa, 735, 30 N. W. E. 29, 60 Am. § 275. Witting v. St. Louis, etc., R. 823; Wood v. Chicago, Milwau- Railway Co., 101 Mo. 631, 14 S. W. kee & St. Paul Railway Co., 68 R. 743, 20 Am. St. R. 636 ; [— 1 Hin- 114 LIABILITY UNDER SPECIAL CONTBACT. § 275 in the contract rests on the carrier. And even if that be shown he will still be liable if the loss was caused by the negligence of the carrier or his servants. By the weight of authority the carrier makes out a ijrima facie case by bringing the loss within the exeniptions of the contract, and the burden then rests on the owner to show that the carrier was negligent. This rule is vigorously combatted in many cases on the ground that the carrier alone is in posi- tion to show how the goods have been treated during trans- portation, and the burden of proving facts peculiarly within the knowledge of a party should rest upon that party. kle V. Southern Eailway Co., 126 X. Railroad Co., 10 Ind. App. 385, 35 C. 932, 35 S. E. E. 810, 78 Am. St. X. E. R. 703, 53 Am. St. R. 391; R. 685; Terre Haute etc. Railroad Western Transportation Co. v. Xew- Co. V. Sherwood, 132 Ind. 129, 31 hall, 24 111. 466, 76 Am. D. 760; N. E. R. 781, 32 Am. St. R. 239; Southern Express Co. v. Xewby. 36 Reid V. Evansville & Terre Haute Ga. 635. 91 Am. TX 783. '/,/ ^ V 115 OF COMMON CARRIERS OF GOODS. CHAPTER XIII. 3. TERMINATION OF THE RELATION. i'7G. Liability of common carrier how ended. (1) Delivery by the com- mon carrier. 1:77. Essentials of delivery. (a) Time of delivery. 1278. Keasonable time. (b) At the proper place. 279. General rule. l2S0. Delivery by carriers by water. 281. Delivery by railroads. 282. Delivery by express com- panies. 283. Shipment C. O. D. (c) In a proper manner. 284. Delivery safe and convenient. (d) To the right person. 285. Carrier absolutely liable. 286. Illustrations. 287. Bill of lading. 288. Delivery to consignee. 289. Interpleader. Connecting carriers. 290. Delivery to a connecting car- rier. 291. Duty to carry beyond car- rier's route. 292. Partnership arrangement. 293. Goods directed beyond car- rier's terminus. 294. American rule. 295. Special contract. 296. Carriers agents of the con- signor. 297. What amounts to delivery to a connecting carrier. 298. Presumption as to carrier liable. 299. Benefit to connecting carrier of contract exemptions. 300. Delivery to a warehouseman. 301. What constitutes such delivery. 302. The Massachusetts rule. 303. The New Hamp- shire rule. 304. The Michigan rule. 305. Delivery by carriers by water. 306. Manner of delivery. 307. Delivery to an elevator. (3) Acts excusing non-de- livery. 308. Excepted perils. 309. Paramount owner. 310. Stoppage in transitu. 311. Right how exercised. 312. Improper exercise of right. 313. Inability to find consignee. § 276. Liability as common carrier how ended. — The duties of the common carrier as such may be terminated (1) By delivery. (2) By excuse for non-delivery. § 276. Western Transportation Railroad Co. v. Day, 20 111. 375, 71 Co. v. Newhall, 24 111. 466, 76 Am. Am. D. 278; [— ] Fisk v. Newton, 1 D. 760; Michigan Southern etc. Denio (N. Y.) 45, 43 Am. D. 649. 116 TERMINATION OF THE KKLATION. §§277-279 Delivery is the final duty of every carrier, as a carrier, and his extraordinary liability can be ended only by proper de- livery of the goods or by a valid excuse for non-delivery. (1) Delivery by the Common Carrier. § 277. Essentials of deliverj-.-As proper deliverv brings to an end the extraordinary liability of the common carrier it bo- comes important to define legal delivery. The carrier fulfill* his duty only by a delivery (a) Al a reasonable time. (b) At the proper place. (e) In a proper manner, (d) To the right person. (o) Time .if Delivery. §278. Reasonable time.— As already brought out (.sections 246, 247), the carriage miTst be completed within a reasonable time after the goods are accepted for transportation. It may now be added that delivery must be made on a prop.'r day anil at a reasonable time of the day. AVhat is reasonable depends upon circumstances and custom, but generally speakinp the consignee is not bound to receive goods out of'busine.s.s hours, or on a stormy day that makes the i-emoval (.f the goods dan- gerous. {h) At the Proper riarr. § 279. General rule.— Formerly, in the absence of estab- lished custom to the contrary, it Avas understood to l)e the duty of all common carriers to deliver the goods to the consignee §277. Hutchinson on Carriers, Andrew v. Whitloek, .51' N. Y. 40. 11 340; Eagle v. White, 6 Whar. (Pa.) Am. R. 657; Richar.lson v. Oo.Manl. 505, 37 Am. D. 434; Marshall v. 23 How. (U. S.) 28. American Express Co., 7 Wis. 1, 73 § 270. | — 1 American Kxpr«w Am. D. 381. ("o. v. Hockett, ;{0 Ind. 2")0. *>'> Am. §278. Hill V. Humphreys, .") H. 691 ; McMasters v. Pennsylvania Watts & S. (Pa.) 123, 39 Am. D. Railroa-l Co., 69 Pa. St. 374," S Am. 117; Eagle V. White, 6 Whar. (Pa.) R. 264; Turner v. Huff. 46 Ark. 505, 37 Am. D. 434; Morgan v. Dib- 222, 55 Am. R. 5S0; [—1 Soheu v. ble, 29 Tex. 108, 94 Am. D. 264; Beijetliot, 116 N. Y. 510. 22 N. K. Marshall v. American Express Co., 7 R 1073, 15 Am. St. R. 426; Ilaywi Wis. 1, 73 Am. R 381; [— ] Scheu v. Wells-Fargo & Co.. 23 «"al. IS."); V. Benedict, 116 N. Y. 510, 22 N, E. 83 Am. D. 89; Houston ef.-. Rail- R. 1073, 15 Am. St. R. 426; Mc- way Co. v. Adams, 49 Tex. 748, 30 117 S8 280-281 O^ COMMON CARRIEES. personaUy at his residence or place of business, or according to the directions of the consignor. But any carrier was per- mitted to show an established usage in his business to make delivery in a different manner. Usage as to the manner of delivery by the various classes of common carriers is now so well established that doubt as to what is the proper manner of delivery by a given carrier rarely arises. Except where modified by usage personal delivery is still the rule, and the common carrier who would excuse such de- livery must establish a custom exempting from the rule the class of carriers to which he belongs. Such usage may be relied on because every person is supposed to contract with reference to the known usages of a trade. Delivery at the usual place is sufficient unless the place of delivery is specified in the contract. :j 280. Delivery by carriers by water.— Carriers by water have always been excused from personal delivery. A ship trading from one port to another has not the means of carrying the goods on land ; and according to the established course of trade a delivery on the usual wharf and notice to the consignor of the arrival of the goods is such a delivery as will discharge the carrier. § 281. Delivery by railroads. — Like carriers by water rail- roads have fixed places for delivery. Transportation being along a line of rails between definite stations the delivery of goods conveyed by railroads is necessarily confined to certain Am. E. 116; Gibson v. Culver, 17 lock, 52 N. Y. 40, 11 Am. R. 657; Wend. (N. Y.) 305, 31 Am. D. 297; Ostrancler v. Brown, 15 Johns. (N. I — I Fisk V. Newton, 1 Denio (N. Y.) 39, 8 Am. D. 211; Kohn v. Y.) 45, 43 Am. D. 649; Sonia Cot- Packard, 3 La. 224, 23 Am. D. 453; ton Oil Co. V. Steamer Red River, Shenk v. Philadelphia Steam Pro- 106 La. 42, 30 So. R. 303, 87 Am. St. peller Co., 60 Pa. St. 109, 100 Am. R. 293; Hutchinson on Carriers, D. 541; Richardson v. Goddard, 23 341-342. How. U. S. 28. § 280. Hyde v. Trent & Mersey § 281. [— ] Moses v. Boston & Navigation ' Co., 5 T. R. 389; Maine Railroad Co., 32 N. H. 523, 64 [_] Scheu v. Benedict, 116 N. Y. Am. D. 381; [— ] Norway Plains 510 22 N. E. R. 1073, 15 Am. St. Co. v. Boston & Maine Railroad Co., R. 426; Morgan v. Dibble, 29 Tex. 1 Gray (Mass.) 263, 61 Am. D. 423; 108 94 Am. D. 264; [ — ] Zinn v. Bansemer v. Toledo & Wabash Rail- New Jersey Steamboat Co., 49 N. way Co., 25 Ind. 434, 87 Am. D. Y. 442, 10 Am. R. 402; [— ] Fisk 367; Thomas v. Boston & Provi- v. Newton, 1 Denio (N. Y.) 45, 43 dence Railroad Corp., 10 Mete. Am. D. 649; McAndrew v. Whit- (Mass.) 472, 4a Am. D. 444. 118 TERMINATION OF THE RELATION. §§282-284 points on the line of the railroad track. Railroad coiupanios cannot, without maintaining an additional wagon service, pass from warehouse to warehouse to discharge their freight on the premises of the various consignees. Accordingly they estal»- lish platforms and warehouses on their lines, and there dis- charge their freight to await the removal by the consignee. The precise moment at which delivery by a railroad to itself as warehouseman terminates its liability as common carrier i» considered in sections 301-804. post. ^ 282. Delivery by express companies has always been pw- sonal except at stations too small to warrant keeping special wagons for such delivery. The express companies owe their origin largelj^ to the necessity of personal care and delivery of small packages of considerable value, and to this duty the law holds them with strictness unless a clear and w('ll-estal)lish<'il custom has modified their duty in a given instance. § 283. Shipment C. 0. D. — The law places on tlit- carrier no obligation to receive goods for cai-riage with the furtlit-r duty "to collect on delivery," but frequently by contract or custom, carriers, especially express companies, undertake such services, and in such case they must perform the services and deliver the goods according to instructions. The carrier is the agent of the shipper to collect and return the money, and he may allow the consignee to inspect the goods and even to carry them away on condition that if they are not satisfactory they may be returned and the money recovered. If the consignee rejects the goods the shipper should be notified, and the carrier holds the goods as warehouseman. (c) III a Proprr Manin r. § 284. Delivery safe and convenient. — In making delivery the carrier is bound to eonsnlt the convenience of the consiirnee § 282. Baldwin v. American Exp. Fargo & Co., 23 Cal. IS.'). S3 Am. I>. Co., 23 111. 120, 74 Am. D. 190; 89; Hutchinson on Carriers. 379-3S2. [ — ] Bullard v. American Express § 283. AniericaTi Express Co. v. Co., 107 Mich, 695, 65 N. W. R. 551, Leseni, 39 III. 313; ( — I Ilasso v. 61 Am. St. R. 358, and extended American Express Co. 94 Mich. 133. note; [— ] American Express Co. v. 53 N. W. R. 918. 34 Am. St. R. 32S; Hockett, 30 Ind. 250, 95 Am. D. Weed v. Barney, 45 N. Y. 344. 6 Am. 691- [_] Sweet v. Barney, 23 N. Y. R. 96; Hutchinson on Carriers. 3S9- 335'; Witbeck V. Holland, 45 N. Y. 393. 13, 6 Am. R. 23; Hayes v. Wells. §284. Morgan v. Dibble, 29 T«. 119 §§ 285-286 OF COMMON CARRIEES. aud the safety of the goods. They must be so placed as to be convenient of access, under such circumstances that the con- signee may receive and take them away with reasonable dis- patch and safety. Until he has had an opportunity to do so the carrier is bound to properly protect them from untoward weather and other injurious conditions. Whether the delivery has been made under proper circumstances is a question of fact to be determined from all the evidence in each case. {d) To the Bight Person. § 285. Carrier absolutely liable. — Finally delivery must be made to the right person. "No circumstances of fraud, imposi- tion, or mistake will excuse the common carrier from responsi- bility for delivery to the wrong person." Delivery to one not entitled to receive them is conversion by the carrier, and so is refusal to deliver to the right person when he has properly established his identity and his right to the goods. § 286. — —Illustrations. — Thus the carrier is liable if he de- livers the goods to the wrong party by mistake, or to an agent not authorized to receive them, or to one who has secured goods to be sent by the consignor on a forged order. If an order is sent in the name of a fictitious firm, the carrier is liable by the weight of authority even though the delivery is made to the one who sent the order. On this however the ]08, 94 Am. D. 264; McAndrew v. Houston etc. Eailway Co. v. Adams, Whitlock, 52 N. Y. 40, 11 Am. E. 49 Tex. 748, 30 Am. R. 116; 6.57; Sonia Cotton Oil Co. v. \ — ] Hawkins v. Hoffman, 6 Hill Steamer Red River, 106 La. 42, 30 (N. Y.) 586, 41 Am. D. 767; So. R. 303, 87 Am. St. R. 293; [— ] McEntee v. New Jersey Steam- [— ] Seheu v. Benedict, 116 N. Y. boat Co., 45 N. Y. 34, 6 Am. R. 28; 510, 22 N. E. R. 1073, 15 Am. St. Hutchinson on Carriers, 344. E- 426. § 286. Price v. Railroad Co., 50 § 285. [— ] Pacific Express Co. N. Y. 213, 10 Am. R. 475; [— ] Mc- V. Shearer, 160 111. 215, 43 N. E. R. Entee v. New Jersey Steamboat Co., 816, 52 Am. St. R. 324; Price v. 45 N. Y. 34, 6 Am. R. 28; Samuel Oswego and Syracuse Railway Co., v. Cheney, 135 Mass. 278, 46 Am. R. 50 N. Y. 213, 10 Am. R. 475; Shenk 467; Adams v. Blankeustein, 2 Cal. V. Philadelphia Steam Propeller Co., 413, 56 Am. D. 350. But compare 60 Pa. St. 109, 100 Am. D. 541; Dunbar v. Boston & Providence Weyand v. Atchison, Topeka & Railroad Corp., 110 Mass. 26, 14 Santa Fe Railway Co., 75 Iowa 573, Am. R. 576, and Winslow v. Rail- 39 N. W. R. 899, 9 Am. St. R. 504; road Co., 42 Vt. 700, 1 Am. R. 365. 120 TERMINATION OF THE RELATION. §§ 287-289 cases do not seem to be entirely harmonious. But if the goodB were misdirected, or directed to a swindler, the carrier will be justified by delivery according to directions. And so he will if the consignor induces or ratifies the delivery. § 287. Bill of lading.— The bill of lading is the representa- tive of the goods. To insure safety in delivering the goods the carrier should insist on the presentation of the proper bill of lading by one known to the carrier to be the consignee, or his transferee or authorized agent. § 288. Delivery to consignee.— Presumptively, the con.siguee is the owner of the goods and therefore ordinarily delivery should be made to him or to his transferee. If delivery is made to any one else the carrier is liable to an action of trover by any rightful holder of the bill of lading. It will however always be sufficient excuse that delivery has been made to tlie true owner or according to his directions, though contrary to the direc- tions of the bill of lading. But in such ease the carrier assumes the burden of proving that he delivered to one having para- mount rights. § 289. Interpleader. — So long as the carrier has rea.sonable ground for uncertainty as to the proper person to whom deliv- ery should be made he is justified in delaying for proper iden- tification. "Reasonable hesitation in a doubtful nmtter is not evidence of conversion." If need be resort may be had to the courts to determine by interpleader or otherwise between rival claimants. §287. See Sec. 224, ante and the sylvania Railroad Co. v. Stern, 119 cases there cited, and Weyand v. Pa. St. 24, 12 Atl. R. 756. 4 Am. St. Atchison, Topeka & Santa Fe Rail- E. 62(5. way Co., 75 Iowa 573, 39 N. W. R. § 289. Wells v. American Expr«« 899, 9 Am. St. R. 504; [— ] Penn- Co., 55 Wis. 23, 11 N. W. R. 537. 42 sylvania Railroad Co. v. Stern, 119 Am. R. 695; Shellenberg v. Fremont Pa. St. 24, 12 Atl. R. 756, 4 Am. etc. Railroad Co., 45 Neb. 487, 63 St. R. 626; [— ] Shaw v. Railway N. W. R. 859, 50 Am. St. R. 561; Co., 101 U. S. 557. I — 1 McEntee v. New Jersey Steani- § 288. [— ] Dyer v. Great boat Co., 45 N. Y. .34, 6 Am. R. 2S ; Northern Railway Co., 51 Minn. 345, The Idaho, 93 U. S. 575 ; Fletcher v. 53 N. W. R. 714, 38 Am. St. R. Fletcher. 7 N. II. 452. 2S Am. D. 506; [— ] Sweet v. Barney, 23 N. 359; llolbrook v. Wight. 24 Wend. Y. 335; Wolfe v. Missouri Pacific (N. Y.) 168, 35 Am. D. 607. Ex- Railway Co., 97 Mo. 473, 11 S. W. tended note to 91 Am. St. K. 593, E. 49, 10 Am. St. R. 331 ; [— ] Penn- ;>o.s« sec. 309. 121 §§290-292 OF COMMON CAERiEKS. Connecting Carriers. ^ 290. Delivery to a connecting carrier. — When goods are received to be carried beyond the terminus of the carrier's line the liability of such carrier is terminated by delivering the goods to the proper connecting carrier. If the shipping receipt names the connecting lines the shipper's directions must be fol- lowed. Delivery to a different connecting carrier amounts to a conversion of the goods. If no directions are given, then the customary or most convenient and direct route should be fol- lowed. Each carrier beyond its own line is a mere forwarder and is bound to use ordinary care. § 291. Duty to carry beyond carrier's route. — No carrier is by law compelled to carry goods to points not on its own line. But any carrier may by contract undertake responsibility, for tlie whole transit, including other lines as well as its own. Such undertaking not being imposed by law, must rest upon a contract, express or implied ; and if a carrier by custom or traf- fic arrangements with other lines, or by specific stipulations in its bills of lading, holds itself out to carry beyond its own line it will be liable for a refusal to perform such service. ^ 292. Partnership arrangements. — Thus several carriers frequently make joint or partnership arrangements, the effect of which is to create a mutual agency and to make each liable § 290. [—J Briggs v. Boston etc. v. Eailroads, 99 Tenn. 719, 42 S. Eailroad Co., 6 Allen (Mass.) 246, W. E. 451, 63 Am. St. E. 856; Per- 83 Am. D. 626 ; Eobinsou v. Baker, kins v. Portland etc. Eailroad Co., 47 r> Cush. (Mass.) 137, 51 Am. D. .54; Me. 573, 74 Am. D. 507; Grover & Johnson v. Transportation Co., 33 Baker Sewing Machine Co. v. Mis- N. Y. 610, 88 Am. D. 416; Alabama souri Pacific Eailway Co., 70 Mo. Great Southern Eailroad Co. v. 672, 35 Am. E. 444; [ — ] Illinois Thomas, 89 Ala. 294, 7 S. E. 762, 18 Central Eailroad Co. v. Franken- Am. St. E. 119; Knight v. Provi- berg, 54 111. 88, 5 Am. E. 92; dence & Worcester Eailroad Co., 13 | — J Bullard v. American Express E. I. 572, 43 Am. E. 46; Hadd v. Co., 107 Mich. 695, 65 N. W. E. 551, Express Co., 52 Vt. 335, 36 Am. E. 61 Am. St. E. 358, 371, note. 757; Eawson v. Holland, 59 N. Y. §292. [— ] Champion v. Bost- 611, 17 Am. E. 394. wick, 18 Wend. (N. Y.) 175, 31 Am. §291. Myrick v. Michigan Cen- D. 376; Fitehburg etc. Eailroad Co. tral Eailroad Co., 107 U. S. 102, 1 v. Hanna, 6 Gray (Mass.) 539, 66 Sup. Ct. 425; Hill Manufacturing Am. D. 427; [— ] Nashua Lock Co. Co. V. Boston & Lowell Eailroad Co., v. Worcester & Nashua Eailroad Co., 104 Mass. 122, 6 Am. E. 202; Bird 48 N. H. 339, 2 Am. E. 242; Eocky 122 TEEiUNATION OF THE KELATIOX. §§293-294 for the acts and contracts of all. Such are agreements to divide expenses and profits pro rata, to jointly employ common agents, to receive and carry goods and cars on through arrangements. Whether agreements create joint liability is to be determined from the facts of each case. Giving through rates, shipping in a through car, receiving prepayment of freight for the whole route, and receiving goods "to forward" are evidences of such joint arrangements which have been considerfd suftieicut tu>- foi- I'l rough transportation. §293. Goods directed beyond carrier's terminus. — lu Eng- land and several of the American states the rule of Musehamp's case is followed, according to Avhich the acceptance of goods directed to a point beyond the carrier's line is prima facie evi- dence of a contract for through transit. In the absence of a contract to the contrary or of facts that deny the presumption, the initial carrier so receiving the goods assumes liability for through transportation. This rule finds its justification in the hardship of compelling the shipper to locate the particular car- rier on whose road the loss occurred. § 294. American rule. — By the great weight of authority in the United States a carrier by the mere acceptance of goods Mount Mills v. Wilmington etc. v. Vanderbilt, 17 X. Y. 306, "L* Am. Eailroad Co., 119 N. C. 693, 25 S. E. D. 469. E. 854, 56 Am. St. R. 682 ; Missouri §294. [— ] McMillan v. Michi- Pacific Railway Co. v. Twiss, 35 gan Southern etc. Railroad Co.. 16 Neb. 267, 53 N. W. R. 76, 37 Am. -Midi. 79, 93 Am. D. 20S; St. R. 437; Bradford v. South Caro- | — J Quimby v. Vanderbilt, 17 N. lina Railroad Co., 7 Rich. L. (S. C.) Y. 306, 72 Am. D. 469; Myriok v. 201, 62 Am. D. 411. See also the Michigan Central Railroad Co.. 107 note to 72 Am. D. 238, and com- U. S. 102, 1 Sup. Ct. 425; pare Irvin v. Nashville etc. Railroad [— ] Nashua Lock Co. v. Worcester Co., 92 111. 103, 34 Am. R. 116, with & Nashua Railroad Co., 48 N. H. Hot Springs Railroad Co. v. Trippe, 339, 2 Am. R. 242; Alabama 42 Ark. 465, 48 Am. R. 65. Great Southern Railway ^o.^v. § 293. Muschamp v. Lancaster Thomas, 89 Ala. 294, 7 S. R. 762. etc. Railway Co., 8 Mees. & W. 421; 18 Am. St. R. 119; Knight v. Provi- Erie Railway Co. v. Wilcox, 84 111. dence & Worcester Railroad Co., 13 239, 25 Am. R. 451; [-] Illinois R. L 572, 43 Am. R. 46; Burroughs Central Railroad Co. v. Franken- v. Norwich & Worcester Railroad berg, 54 111. 88, 5 Am. R. 92. See Co., 100 Mass. 26, 1 Am. R. 7S: also [— ] Nashua Lock Co. v. Wor- Hadd v. Express Co., 52 Vt. 33.'i. .16 cester & Nashua Railroad Co.. 48 N. Am. R. 757. See also Gniy v. .lark- H. 339, 2 Am. R. 242; I—] Quimby son, 51 N. H. 9, 12 Am. R. I. 123 ^< 295-297 ^^ COMMOX CAKRIERS. directed to a point not on its own line undertakes to perform its part of the carriage and to deliver the goods to the next connecting carrier for further transportation. Prima facie the responsibility of each carrier is limited to its own line, and delivery to the next connecting line. § 295. Special contract.— But whatever the rule as to what facts are sufficient to show a through contract, it is settled not only that a carrier may by special contract assume liability for through shipment, but that he may also relieve himself of all liability beyond his own line. Such limitations are inserted in most modern shipping contracts. Under the American rule the local freight agent has no im- plied power to make through contracts contrary to the custom and instructions of his principal. Only the general agent has such power. § 296. Carriers agents of the consignor. — It has been seen that when several carriers form a line under joint arrangements each is the agent of the others for transportation. But when the liability of each carrier is limited to his own line the con- signor constitutes each carrier his forwarding agent for whose acts he is liable, and who in turn is liable to him as principal for any failure to follow instructions in forwarding the goods. § 297. What amounts to delivery to a connecting carrier. — The shipper has a right to understand that the liability as a common carrier is upon some one during the whole period of the transportation. The liability of one carrier is not dis- § 295. [— ] Nashua Lock Co. v. cific Railway Co., 70 Mo. 672, 3-5 Worcester & Nashua Railroad Co., Am. R. 444. 48 N. H. 339, 2 Am. R. 242 ; § 296. [— ] Briggs v. Boston & [ — ] Quimby v. Vanderbilt, 17 N. Lowell Railroad Co., 6 Allen Y. 306, 72 Am. D. 469; Perkins v. (Mass.) 246, 83 Am. D. 626; John- Portland etc. Railroad Co., 47 Me. son v. Transportation Co., 33 N. Y. 573, 74 Am. D. 507; [— ] Hansen 610, 88 Am. D. 416; Missouri Pa- V. Flint & P. M. Railroad Co., 73 cific Railway Co. v. Twiss, 35 Neb. Wis. 346, 41 N. W. R. 529, 9 Am. 267, 53 N. W. R. 76, 37 Am. St. R. St. R. 791 ; Wheeler v. San Fran- 437 ; Halliday v. St. Louis etc. Rail- cisco etc. Railroad Co., 31 Cal. 46, way Co., 74 Mo. 159, 41 Am. R. 309. 89 Am. D. 147; Cincinnati etc. §297. [ — ] Condon v. Mar- Railroad Co. V. Pontius, 19 Ohio St. quette etc. R. R. Co., 55 Mich. 221, 2 Am. R. 391; Burroughs v. 218, 21 N. W. R. 321, 54 Am. R. Norwich etc. Railroad Co., 100 Mass. 367 ; Irish v. Milwaukee & St. 26, 1 Am. R. 78; Grover & Baker Paul Railway Co., 19 Minn. 376. 18 Sewing Machine Co. v. Missouri Pa- Am. R. 340; Kawson v. Holland, 59 124 TERMINATION OF THE RELATION. §298 charyvd until that of the next connecting carrier has been as- sumed ; and this does not take place until there is a delivery of the f,'oods to the succeeding carrier, or such a notification as according to the course of business is equivalent to a tender of delivery. A carrier does not by storing the goods at the end of his own line become a warehouseman, but remains a common carrier of the goods until he has made a proper tender thereof to the suc- ceeding carrier, or has performed such acts as are tantamount to a delivery. Thus he may notify tlie next carrier that the goods have been placed where such carrier usually receives them, or if such be the custom between the carriers he may leave them without notice. If the connecting carrier refuses to receive them, the first carrier must properly store them and notify the consignor or the consignee. § 298. Presumption as to carrier liable. — Conditions once proved to have existed are presumed to contiiuu* until the con- trary is shown is the principle applied in fastening responsibil- ity for loss when it does not appear on which of several con- necting lines the damage was done. Prima facie that carrier is liable in whose possession the goods are found in a damaged condition, but in the United States an action can be maintained N. Y. 611, 17 Am. R. 394; |— J .Jiul- son V. Western Railroad Corp., 4 Allen (Mass.) 520, 81 Am. D. 718; Lewis V. Chesapeake & Ohio Rail- way Co., 47 W. Va. 656, 35 S. E. R. 908, 81 Am. St. R. 816; Gass v. New York etc. Railroad Co., 99 Mass. 220, 96 Am. D. 742; Ladue V. Griffith, 25 N. Y. 364, 82 Am. D. 360; Conkey v. Milwaukee & St. Paul Railway Co., 31 Wis. 619, 11 Am. R. 630; Johnson v. Transpor^a- tion Co., 33 N. Y. 610, 88 Am. D. 416; Grand Rapids & Indiana Rail- road Co. V. Diether, 10 Ind. App. 206, 37 N. E. R. 39, 53 Am. St. R. 385; Goold v. Chapin, 20 N. Y. 259, 75 Am. D. 398. § 298. Laughlin v. Chicago & North Western Railway Co., 28 Wis. 204, 9 Am. R. 493; [—1 Moore v. New York etc. Railroad Co., 173 Mass. 335, 53 N. E. R. SIG, 73 Am. St. R. 298; Shriver v. Sioux City etc. Railroad Co., 24 ^[inn. 506, 31 Am. R. 353; Cooper v. Georgia Pa- cific Railway Co., 92 Ala. 329, 9 S. R. 159, 25 Am. St. R. 59; Savannah etc. Railroad Co. v. Harris, 26 Fla. 148, 7 S. R. 544, 23 Am. St. R. 551 ; [ — ] Hinkle v. Southern Railway Co., 126 N. C. 932, 35 S. E. K. 81(», 78 Am. St. R. 685; [— ] Morganton Mfg. Co. V. Ohio River etc. Railway Co., 121 N. C. 514, 28 S. E. R. 474. 61 Am. St. R. 679; Beard v. Illinois Central Railway Co., 79 Iowa, 518. 44 N. W. R. 800, IS Am. St. R. 381 : Texas & Pacific Railway C»». v. Adams. 78 Tex. 372, 14 S. W. R. 666, 22 Am. St. R. 56; Missouri Pa- cific Railway Co. v. Twis.s. 35 Neb. 267, 53 N. W. R. 76, 37 Am. St. R. 437. 125 ^'^ 299-301 OF COMMON CARRIERS. against any previous carrier to whose default the loss is due. Under the English rule only the initial carrier can be sued. In any case, if there has been a recovery against one carrier he has an action over against the carrier Avhose fault caused the injury. ^ 299. Benefit to connecting carrier of contract exemptions. — A connecting carrier is entitled to the benefit of limitations of liability in the shipping contract only when the initial car- rier contracted for through transportation, or stipulated that the exemptions in the bill of lading should inure to the benefit of all the carriers engaging in the transportation of the goods. As such contracts are strictly construed no exemptions granted to the initial carrier who undertakes only to receive the goods and deliver them to the next connecting carrier will, by mere implication, be extended to later carriers on the route. § 300. Delivery to a warehouseman. — Except in cases where the carrier is bound to make personal delivery it is usually proper to make delivery to a warehouseman. As has already been explained, carriers by boat and by rad have always been allowed to make such delivery, and delivery by a railroad from itself as a common carrier to itself as a warehouseman at the destination of the goods terminates its liability as a com- mon carrier, and substitutes the liability of a warehouseman. >j 301. What constitutes delivery to a w^arehouse so as to terminate liability as a carrier is a question upon which three rules may be noticed, resulting from three views as to the moment when the carrier has performed his full duty as car- rier. All agree that when such duty has been fully performed liability as carrier immediately changes to that as warehouse- man. These three rules have been ably set forth by the courts of Massachusetts, New Hampshire and Michigan respectively, § 299. [— ] McMillan v. Michi- v. Boston & Maine Railroad Co., 1 gan Southern etc. Railroad Co., 16 Gray (Mass.) 263, 61 Am. D. 423; Mich. 79, 93 Am. D. 208 ; Bird v. [— ] Moses v. Boston & Maine Rail- Railroads, 99 Tenn. 719, 42 S. W. road Co., 32 N. H. 523, 64 Am. D. R. 451, 63 Am. St. R. 856 ; Maghee S81 ; Thomas v. Boston & Provi- V. Camdeu & Amboy Railroad Co., 45 dence Railroad Corp., 10 Mete. N. Y. 514, 6 Am. R. 124; Halliday (Mass.) 472, 43 Am. D. 444; Tar- V. St. Louis etc. Railway Co., 74 Mo. bell v. Royal Exchange Shipping Co., 159, 41 Am. R. 309; Faulkner v. 110 N. Y. 170, 17 N. E. R. 721, 6 Hart, 82 N. Y. 413, 37 Am. R. 574. Am. St. R. 350. §300. [—J Norway Plains Co. 126 TERMINATION OF THE RELATION. §§302-304 and for coiivonience will be called the Massachusetts, New Hampshire and INIiehigan rules. § 302. The Massachusetts rule is that the duty assumed by the railroad, to which shippers are presumed from their knowledge of that custom to assent, is to carry the goods safely to their destination and there discharge them at their ware- house read}" to be taken by the consignee. As soon as the goods are so stored the railroad becomes a warehouseman. If the railroad is not to unload the goods then its duty as carrier ends when the car has been delivered in a convenient position for unloading. This rule has the advantajre of being "plain, precise, practical and of easy application."' That it is also "v;ell adapted to the security of ail persons interested" has been often denied. § 303. The New Hampshire rule is that the liabilitv of the railroad as carrier continues until the owner or consignee has actually received the goods, or until he has had a reason- able opportunity after their arrival to inspect and remove them in the common course of business. The extent of this reasonable opportunity, however, is not to be measured by any peculiar circumstance in the condition and situation of the consignee requiring longer time or better opportunity than if he lived in the vicinity of the warehouse and had adequate facilities for taking the goods away. §304. The Michigan rule declares that "the liability of the carrier continues until the consignee has been notified of the receipt of the goods and has had reasonable time in the § 302. [— ] Norway Plains Co. § 303. [— ] Moses v. Boston & V, Boston & Maine Railroad Co., 1 Maine Railroad Co., 32 N. H. 523, Gray (Mass.) 263, 61 Am. D. 423; 64 Am. D. 381; Blumenthal v. Rice V. Hart, 118 Mass. 201, 19 Am. Brainerd, 38 Vt. 402, 91 Am. D. E. 433; Chicago & North Western 349; Winslow v. Vermont & Ma.ssa- Eailway Co. v. Sawyer, 69 111. 285, chusotts Railroad Co., 42 Vt. 700, 1 18 Am. R. 613; Bansemer v. Toledo Am. R. 365; Wood v. Crocker, 18 & Wabash Railway Co., 25 Ind. 434, Wis. 363, S6 Am. D. 773. 87 Am. D. 367; Gregg v. Illinois §304. [ — 1 McMillan v. Michi- Central Railroad Co., 147 111. 550, gan Southern etc. Railroad Co., 16 35 N. E. R. 343, 37 Am. St. R. 238 ; Mich. 79, 93 Am. D. 208 ; Faulkner Gashweiler v. Wabash etc. Railway v. Hart, S2 N. Y. 413, 37 Am. K. Co., 83 Mo. 112, 53 Am. R. 558; In- 574; | — | Ziim v. New Jersey dependence Mills Co. v. Burlington Steamboat Co., 49 N. Y. 442, 10 Am. etc. Railway Co., 72 Iowa 535, 34 N. R. 402 ; Hutchinson on Carriers, W. R. 320, 2 Am. St. E. 258. §§ 373-374. 127 *5^ 305-306 ^^^ COMMON CAERIERS. connuon course of l)usi.u'ss to take them away after such noti- fication." . „ ^, . , This modification ^n-ows out of the uncertainty of the arrival of sliipments ].v frei^^ht, and the impracticability of requirmj; the eonsi-nee. who is unwilling to entrust the goods to the rail- road as warehouseman, to watch from day to day the arrival of trains. It is more reasonable to require the carrier to give notice to the consignee, and to the carrier himself this is less burdensome than to be subjected to numberless inquiries. In some of the states some cases are to be found using the language of the Michigan rule and others using that of the New Hampshire rule, and failing to notice any distinction between the two. i5 305. Delivery by carriers by water.— Carriers by water have never been reciuired to make personal delivery. If the consignee is not present to receive the goods they may be landed on a proper wharf and notice of their arrival must be sent to the consignee. It is difficult to find any substantial reason for a different rule in case of railroads, and to preserve consistency some courts that excuse the railroad company from giving notice have held that ships running on a regular schedule and having regular warehouses for the delivery of goods are not required to give notice. It is always competent to show usage to make delivery without notice. § 306. Mannel- of delivery. — A carrier by water does not perform its duty as a carrier by a mere discharge of the goods upon the wharf. The consignee must have a reasonable time after notice of their arrival in which to remove the goods, In Shenk v. Steam Propeller Co., Turner v. HufP, 46 Ark. 222, 55 Am. 60 Pa. St. 109, 100 Am. D. 541, Ian- E. 580; Farmers & Mechanics' Bank guage is used that seems to recog- v. Chaplain Transportation Co., 16 nise each of the three rules. Vt. 52, 42 Am. D. 491, 18 Vt. 131, § 305. Richardson v. Goddard, 23 ,23 Vt. 186, 56 Am. D. 68. How. (U. S.) 28; [—1 Zinn v. New § 306. Tarbell v. Royal Exchange Jersey Steamboat Co., 49 N. Y. 442, Shipping Co., 110 N. Y. 170, 17 N. 10 Am. R. 402; [— ] Scheu v. E. R. 721, 6 Am. St. R. 350; Benedict, 116 N. Y. 510, 22 N. E. |— 1 Scheu v. Benedict, 116 N. Y. R. 1073, 15 Am. St. R. 426; Tarbell 510, 22 N. E. R. 1073, 15 Am. St. V. Royal Exchange Shipping Co., 110 R. 426 ; Shenk v. Steam Propeller N. Y. 170, 17 N. E. R. 721, 6 Am. Co., 60 Pa. St. 109, 100 Am. D. 541; St. R. 350; Gibson v. Culver, 17 Richmond v. Steamboat Co., 87 N. Wend. (N. Y.) 305, 31 Am. D. 297; Y. 240. 128 TER]\UNATION OF THE RELATION. §§307-309 arid in the meantime they must not be left by the carrier un- protected in an exposed condition. If the carrier does not re- move them within a reasonable time they must be properly stored and not until then is the carrier divested of his respon- sibility. The consignee cannot prolong liability by delaying to receive the goods, but neither can he be required to take them on Sun- day or a legal holiday or in weather that threatens injury to them. The carrier must deliver them at the usual wharf, or if there be no regular wharf then at a suitable wharf designated by the shipper, or by a majority of several shippers. § 307. Delivery to an elevator. — Some peculiar (lui-stions liave arisen as to the delivery of grain by a carrier. If there is no designated elevator, and the grain is not at once removed by the consignee, the carrier may leave it in the cars, or store it in a suitable elevator at the risk and expense of the owner. But if the grain is consigned to a particular elevator the car- rier must deliver it at that elevator unless it is situated off the line of that carrier. Mandamus will lie against the carrier to compel the performance of this duty, but no carrier can be compelled to carry over lines not owned or controlled by it. In Illinois there are statutes regulating delivery lo public elevators. (2) Acts Excusing Non-Delivery. § 308. Excepted perils. — Failure to deliver the goods to the consignee will of course be excused if occasioned by any of the excepted perils (sec. 231), or by a cause against which the carrier has contracted in the bill of lading. Rut even in these eases, as has been seen, the carrier is afforded no excuse if his negligence proximately contributed to the loss (sees. 235 and 237). § 309. Paramount owner. — The carrier cannot avail himself of the title of a third person, even the true owner, to keep the §307. Gregg v. Illinois Central §309. The Iilaho, 93 U. S. 575; Eailroad Co., 147 111. 550, 35 N. E. King v. Richards, G Whart. (Pa.) R. 343, 37 Am. St. E. 238; [— I Chi- 418, 37 Am. D. 4:20; Wells v. Araer- cago & Northwestern Railway Co. v. ii:ui Express Co., 55 Wis. 23. 11 N. People, 56 111. 365, 8 Am. R. 690; W. R. 537, 42 Am. R. 695; Wo^o v. People V. Chicago & Alton Railro:nl .Mis-oiiri Pacifi.- Railway Co., 97 Mo. Co., 55 111. 95, 8 Am. R. 631. 17:"-. H >^. ^V• l'"- l^'. 10 Am. St. R. 9 12'J § 310 OF COMMON rARETEKS. iji-opert.y for liiiuself as against the sliippcr oi- his consifinci' or assignee : neither can he of his own motion set up against the l)ailor such claims of third persons; but when the true owner has demanded his property the carrier is bound to deliver to liim, and such delivery to the paramount owner is a complete defense against the claim of the bailor. The carrier however assumes the burden of proving the ownership and right to im- mediate possession of the third person at the time of the de- livery. The safe course for the carrier who finds himself embar- rassed by such conflicting claims is to hold the goods a suffi- cient time to satisfy his reasonable doubts as to the party to Avhom delivery should be made. This he has a right to do. The carrier may then deliver the goods to one of the claim- ants, taking from him a bond of indemnity against loss if the other claim should prove paramount. Or the parties may be compelled to settle their claims by interpleader in court where there are such relations between them as to permit that pro- ceeding. The tendency of modern cases and statutes is to ignore the early requirement of privity between the parties as an essential requisite to the right to a bill of interpleader. § 310. Stoppage in transitu of the goods may excuse the carrier for non-delivery to the consignee. If a vendor sells goods on credit to a vendee whom he afterwards discovers to be insolvent, he has a right to stop the goods in the hands of the carrier at any time during the transit. For this purpose transit continues until the carrier has surrendered control of the goods to the vendee, or to his hona fide transferee of the bill of lading. It is enough if the carrier has consented to keep the goods as bailee of the vendee, but so long as the carrier holds 331; Holbrook v. Wight, 24 Wend. ' van, 13 Kau. 251. 19 Am. R. 84; (X. Y.) 168, 85 Am. D. 607; Hiitcli- Farrell v. Richmoud & Danville Rail- inson on Carriers, 404-408, 34 Am. road Co., 102 N. C. 390, 9 S. E. R. St. R. 731, Note, ante, § 289. As to 302, 11 Am. St. R. 760 ; Langstaff interpleader generally see 91 Am. St. v. Stix, 64 Miss. 171, 1 S. R. 97, 60 R. 593 and extended note. Am. R. 49; Brewer v. Boston & § 310. Branau v. Atlanta etc. Albany Railroad Co., 179 Mass. 228, Railroad Co., 108 Ga. 70, 33 S. E. R. 60 N. E. R. 548, 88 Am. St. R. 375; 836, 75 Am. St. R. 26; [— ] Potts .Teffris v. Fitchburg Railroad Co., V. New York & New England Rail- 93 Wis. 250, 67 N. W. R. 424, 57 road Co., 131 Mass. 455, 41 Am. R. Am. St. R. 919; Ocean Steamship 247; Loeb v. Peters, 63 Ala. 243, 35 Co. v. Ehrlich, 88 Ga. 502, 14 S. E. Am. R. 17; [— ] Rneker v. Dono- R. 707, 30 Am. St. R. 164. 130 TEEMINATION OF THE RELATION. §§ 311-313 the goods to maintain his special lien for the carrying charges, pinma facie the transit has not ended. The i^oocLs are .still sub- ject to stoppage. § 311. Right how exercised.— Only the vend(»r or his agent can exercise this right, and it must be exercised against one actually insolvent at the time, though his insolvency may not have been declared. Simple notice to the carrier to hold the goods subject to the vendor's orders is sufficient to bring about the stoppage of the goods. This notice may Ix- to the agent or servant of the carrier in actual possession of the goods, or to any authorized agent of the carrier under such circum- stances as to make it reasonably possible to give the necessary orders to the agent in actual possession. The vendor must pay the carrier all charges on the goods, but the carrier cannot hold the goods as security for other impaid charges of the vendee. §312. Improper exercise of the right. — If the vendee is not really insolvent the vendor is liable in damages for the stoppage, but it is believed the carrier incurs no risk by heed- ing a notice to hold the goods for the vendor, unless he holds them with knowledge of the solvency of the vendee. As against the vendor the carrier may insist upon reasonabl»> evidence of the validity of his claim. § 313. Inability to find the consignee may furnish an excuse for non-delivery. He may be dead, absent, or unknown, and §311, [_] Eucker v. Donovan, Am. R. 475; f— 1 Zinn v. New 13 Kan. 251, 19 Am. E. 84; [— ] Al- Jersey Steamboat Co., 49 X. Y. 44'_', len V. Maine Central Railroad Co., 10 Am. R. 402, The Thames, 14 79 Me. 327, 9 Atl. R. 895, 1 Am. St. Wall. (U. S.) 98; Witbeck v. Hol- R. 310; Farrell v. Richmond & land, 45 N. Y. 13, 6 Am. R. 23; Danville Railroad Co, 102 N. C. 390, Adams Express Co. v. Darnell, 31 & S. E. R. 302, 11 Am. St. R. 760; Ind. 20, 99 Am. D. 582; Bansemer Langstaff v. Stix, 64 Miss. 171, 60 v. Toledo & Wabash Railway Co., Am. R. 49 ; Wheeling & Lake Eric 25 Ind. 434, 87 Am. D. 367; Railroad Co. v. Koontz, 61 Ohio St 551, 56 N. E. R. 471, 76 Am. St. R 435. § 312. [ — ] Allen v. Maine Cen tral Railroad Co., 79 Me. 327, 9 Atl 1 — 1 Fisk V. Newton. 1 Denio (N. Y.) 45, 43 Am. D. 649; [— ] Ameri- can Express Co. v. Hockett, 30 Ind. 250, 95 Am. D. 691; Mor- gan V. Dibble, 29 Tex. 108, 94 Am. R 895 1 Am. St. R. 310, The Vi- D. 264; [— ] Scheu v. Benedict, 116 dette, 34 Fed. R. 396. N. Y. 510, 22 N. E. R. 1073, 15 Am. § 313. Price v. Oswego & Syra- St. R. 426. cuse Railway Co.. 50 N. Y, 213, 10 131 j; ;>l;] OF COMMON ( 'AKKl KKS. 111.' cjii-fit'i- jil'tcr due ert'oi'is may be uiuihle to find liiiii. Tlie carrier may then discharge himself from further resi)()nsibiiity by placing- the goods in store with a responsible party to hold as warehouseman for the owner. But the law requires that diligent and careful inciuiry be made for the consignee, and if the carrier fails to do this he remains liable as a common car- rier. In jurisdictions where railroads are not bound to give notice to the consignee they are of course excused from this duty. The carrier's duty to deliver and the consignee's duty to re- ceive are reciprocal. The consignee cannot by his act prolong the period of the carrier's liability as a common carrier. If therefore the consignee refuses or fails to accept the goods the carrier's extraordinary liability ceases. However, he is not justified in abandoning the goods or in negligently exposing them to injury, but he becomes charged with the duty of prop- erly storing the goods and notifying the consignor. '/•. 132 PART IV. OF QUASI-BAILEES. CHAPTER XrV. OF CARRIERS OF PASSENGERS. 314. 315. 316. 317. 318. 319. 3:20. 321. 322. 323. 324. 325. 326. 327. 328. 329. 330. 331. 332. 333. 334. Who are quasi-bailees. Carriers of passengers. I. Nature of the relation. The parties. Common carriers of passen- gers. Illustrations. Passengers. (1) The offer to be- come a passenger. -Special callings. Employees. Payment of fare not necessary. T respassers. -(2) Acceptance by the carrier. What amounts to acceptance. ,?. Bights and duties result- ing from the relation. Classification. A. By operation of law. (1) Bight to compensation. Fare. Amount of fare. Tickets. Sale of tickets. Nature of ticket. Ticket as a con- tract. Ticket as between passenger and conductor. § 335. 336. 337. 338. 339. .340. 341. 342. 343. 344. 345. 346. 347. 348. 349. 350. 351. Tickets ambiguous on face. Basis of carrier 's liability. ('onditions printe.. •',: \. V. 3S2, Car Co., 1 Flip. (U. S.) 500; Gard- 15 Am. R. 513. 135 §§ 320-321 OF QUASI-BAILEES. S The relation of passenger and carrier rests upon a contract, express or implied. Therefore two essentials are to be noted : (1). There must on one side be an offer to become a pas- senger. (2). There must on the other be an acceptance of the offer by the carrier, either expressly or impliedly. § 320. (1) The offer to become a passenger is usually to be implied from the circumstances. The traveler must put himself under the control of the carrier for the purpose of being carried. This he does if he enters the carrier's prem- ises, waiting room, or vehicle, with the intention in good faith, and within a reasonable time, of becoming a passenger; or if the carrier sends a vehicle to bring passengers to its station and he is riding in such a vehicle for the purpose of becoming a passenger he is ordinarily regarded as a passenger. As soon as he has put himself in control of the carrier in the usual way provided by the carrier, he has so far offered himself as a passenger as to become such, unless there is some act of refusal on the part of the carrier. § 321. Special callings. — Many persons, not employees of the carrier, ride for the purpose of performing some service or carrying on some business upon the boat or train. Such are mail clerks, express and news agents, and the like, wdio per- §319. Higley v. Gilmer, 3 Mont. 44 Am. St. K. 474; Illinois Central 90, 35 Am. E. 450; [— ] Bricker v. Eailroad Co. v. O 'Keef e, 168 111. Philadelphia & Eeading Eailroad 115, 48 N. E. E. 294, 61 Am. St. E. Co., 132 Pa. St. 1, 18 Atl. E. 983, 68, and extended note; Gardner v. 19 Am. St. E. 585; Chicago & Erie New Haven etc. Co., 51 Conn. 143, Eailroad Co. v. Field, 7 Ind. App. 50 Am. E. 12. 172, 34 N. E. E. 406, 52 Am. St. E. § 321. Union Pacific Eailway Co. 444; Illinois Central Eailroad Co. v. Nichols, 8 Kan. 505, 12 Am. E. V. O'Keefe, 168 111. 115, 48 N. E. E. 475; Gulf etc. Eailway Co. v. Wil- 294, 61 Am. St. E. 68, and extended son, 79 Tex. 371, 15 S. W. E. 280, note. 23 Am. St. E. 345; [— ] Magoffin § 320. [— ] Warren v. Fitchburg v. Missouri Pacific Eailway Co., 102 Eailroad Co., 8 Allen (Mass.) 227, Mo. 540, 15 S. W. E. 76, 22 Am. 85 Am. D. 700; Webster v. Fitch- St. E. 798; Brewer v. New York etc. burg Eailroad Co., 161 Mass. 298, 37 Eailroad Co., 124 N. Y. 59, 26 N. E. N. E. E. 165; Chicago & Erie Eail- E. 324, 21 Am. St. E. 647; Cleveland road Co. v. Field, 7 Ind. App. 172, etc. Eailway Co. v. Ketcham, 133 34 N. E. E. 406, 52 Am. St. E. 444; Ind. 346, 33 N. E. E. 116, 36 Am. Hansley v. Jamesville etc. Eailroad St. E. 550 ; Commonwealth v. Ver- Co., 115 N. C. 602, 20 S. E. E. 528, niont & Massachusetts Eailroad Co., 136 OF CARRIEKS OF PASSENGERS. §§ 322-323 form a service for an employer who pays the carrier for per- mission to carry on a business and to have his clerks or agents transported on the train or boat to take charge thereof. It is generally held that persons performing such services and traveling with the consent of the carrier are not employees of the carrier, but are passengers, or as some cases put it.' are to be treated with the same care as passengers. It is of no consequence that their fare is paid by a third person, or that it is part of the charge paid the carrier for permission to carry on the business, or that no compensation is paid for the carriage of such persons. If they are lawfully on th<' train and entitled to ride, they are passengers. § 322. Employees of the carrier are not passengers if they are riding while engaged in the service for which they were employed, or are traveling free of charge to and from their work. But an employee may be a passenger, and he is generally regarded as such, if he travels when not about his duties to the carrier, or if before and after his hours of em- ployment for his own private interest or pleasure he rides to and from his work on a ticket that forms part of the con- sideration by which he was induced to enter the employment of the carrier. To its servants the carrier owes the duty to use due diligence in selecting fellow servants, but does not guarantee against the negligence of such fellow servants wln'ii properly selected. § 323. Payment of fare is not necessary to make one a 108 Mass. 7, 11 Am. R. 301; Sey- Valley Railroad Co., 59 Pa. St. 239, bolt V. New York etc. Railroad Co., 98 Am. D. 336; [— ] "Williams v. 95 N. Y. 562, 47 Am. R. 75, Oregon Short Line Railroad Co., 18 Contra as to express messengers: Utah, 210, 54 Pae. R. 991, 72 Am. Baltimore & Ohio etc. Railway Co. St. R. 777; lonnone v. New York V. Voigt, 176 TJ. S. 498; Peterson etc. Railroad Co., 21 R. I. 452, 44 V. Chicago & Northwestern Railway Atl. R. 592, 79 Am. St. R. 812;- Co., — Wis. — , 96 N, W, R. 532. [— ] Steamboat New World v. King, §322. Vick V. New York Central 16 How. (U. S.) 469; McNulty v. Railroad Co., 95 N, Y. 267, 47 Am. Pennsylvania Railroad Co., 182 Pa, R. 36; [_] Doyle v. Fitchburg Rail- St. 479, 38 Atl. R. 524, 61 Am. St. road Co., 162 Mass. 66, 37 N. E. R. R. 721 ; [— ] Hoar v. Maine Central 770, 44 Am. St. R. 335, 166 Mass. Railroad Co., 70 Me. 65. 35 Am. R. 492, 55 Am. St. R. 417; Dickinson 299. V. West End Street Railway Co., 177 § 323. [— ] Philadelphia i- Read- Mass. 365, 59 N. E. R. 60, 83 Am. ing Railroad Co. v. Derby. 14 How. St, R. 284; O'Donnell v. Allegheny (U. S.) 468; | — 1 Railroad v. Lock- 137 S§ 324-325 or quasi-batlees. passenyor. The carrier may refuse to carry without compen- sation, but if that right be waived the only inquiry is whether the person was lawfully on the train. If the carrier accepts the duty of carrying a human being that duty can not be affected by the payment or non-payment of fare. Though the relation of carrier and passenger rests upon contract, the duty of the carrier toward human life does not rest upon contract, but is imposed by law. § 324. Trespassers.— But toAvard a mere trespasser the carrier owes no duty except to refrain from any wilful injury. One who boards a train without the knowledge or consent of the carrier, intending to steal a ride or in any manner to de- fraud the carrier of full compensation, is not a passenger, but a trespasser. And if by collusion with trainmen, or even with the conductor, he secures permission to ride free, or for less than the full fare, he is no passenger. Wrongful collusion with an agent can give no right against his principal. § 325. (2) Acceptance by the carrier.— As the relation of carrier and passenger can arise only from a contract, it fol- lows that one can not become a passenger until he is accepted by the carrier. Acceptance is usually implied from the act wood, 17 Wall. (U. S.) 357, 10 Am. W. R. 809, 22 Am. St. R. 728; Hig- E. 366 ; Ohio & Mississippi Railroad ley v. Gilmer, 3 Mont. 90, 35 Am. R. Co. V. MuhUng, 30 111. 9, 81 Am. D. 450; Toledo etc. Railway Co. v. 336; [— ] Williams v. Oregon Short Beggs, 85 111. 80, 28 Am. R. 613; Line Railroad Co., 18 Utah 210, 54 Louisville etc. Railway Co. v. Thomp- Pac. R. 991, 72 Am. St. R. 777 ; Illi- son, 107 Ind. 442, 8 N. E. R. 18, nois Central Railroad Co. v. Beebe, 57 Am. R. 120; Way v. Chicago, 174 111. 13, 50 N. E. R. 1019, 66' Rock Island & Pacific Railroad Co.' Am. St. R. 253 ; [— ] Hoar v. Maine 64 Iowa 48, 19 N. W. R. 828, 52 Am. Central Railroad Co., 70 Me. 65, 35 R. 431; Padgitt v. Moll, 159 Mo. ^m. R. 299 ; Russell v. Pittsburg etc. 143, 60 S. W. R. 121, 81 Am. St. R. Railway Co., 157 Ind. 305, 61 N. E. 347; Chicago & Erie Railroad Co. R. 678, 87 Am. St. R. 214; Union v. Field, 7 Ind. App. 172, 34 N. E. Pacific Railway Co. v. Nichols, 8 R. 406, 52 Am. St. R. 444; Illinois Kan. 505, 12 Am. R. 475; Lemon Central Railroad Co. v. O'Keefe, V. Chanslor, 68 Mo. 340, 30 Am. R. 168 111. 115, 48 N. E. R, 294, 61 799. Compare Higley v. Gilmer, 3 Am. St. R. 68, note. Mont. 90, 35 Am. R. 450. § 325. [— ] Bricker v. Philadel- § 324. [— ] Bricker v. Philadel- phia & Reading Railroad Co., 132 phia & Reading Railroad Co., 132 Pa. St. 1, 18 Atl. R. 983, 19 Am. Pa. St. 1, 18 Atl. R. 983, 19 Am. St. R. 585; Higley v. Gilmer, 3 Mont. St. R. 585; McVeety v. St. Paul etc. 90, 35 Am. R. 450; Chicago & Erie Railway Co., 45 Minn. 268, 47 N. Railroad Co. v. Field, 7 Ind. App. 138 OF CAERIERS OF PASSENGBBS. §§ 326-327 of the passenger in putting himself in the control of the car- rier in the manner usually provided by the carrier for its pas- sengers. The carrier rarely expressly accepts the passenger as such until after the carriage has begun, but the relation dates from the implied acceptance when the passenger proi>- erly presents himself for carriage. ^ 326. What amounts to acceptance.— The carrier is in general presumed to have accepted as passengers all who offer themselves in the usual Avay for carriage, whether the carrier has knowledge of such offer or not. Entering a station with the intention of purchasing a ticket for immediate transporta- tion, or boarding a train with or without a ticket with the in- tention of paying for the ride when called upon, ordinarily makes one a passenger, and so does signaling a bus to stop for a pedestrian if the driver heeds the signal and stops the bus. But running to catch a train, boarding a train not used for carrying passengers, or a passenger train in a part of the train not used for passengers, or riding in the cab of the engine with the consent of the engineer, are not acts from which the carrier's acceptance of the person as a passenger will be pre- sumed. 2. Rights and Duties Resulting from the Rel.\tion. § 327. Classification. — The rights and liabilities of the pas- senger carrier are fixed. A. By operation of law; or B. By contract. 172, 34 N. E. E. 406, 52 Am. St. E. E. 528, 44 Am. St. R. 474; Merrill 444; [ — ] Hoar v. Maine Central v. Eastern Eailroad Co., 139 Mass. Eailroad Co., 70 Me. 65, 35 Am. E. 238, 1 N .E. E. 548, 52 Am. R. 705; 299; Illinois Central Eailroad Co. [—] Briiker v. Philadelphia & Bcad- V. O'Keefe, 168 111. 115, 48 N. E. ing Eailroad Co., 132 Pa. St. 1, 18 E. 294, 61 Am. St. E. 68. Atl. E. 983, 19 Am. St. R. 585; Illi- § 326. [ — ] Brieu v. Bennett, 8 nois Central Eailroad Co. v. O 'Keefc. Car. & P. 724, 34 E. C. L. 984; Car- 168 111. 115, 48 N. E. R. 294, 61 Am. penter v. Boston & Albany Eailroad St. R. 68; Gardner v. New Haven Co., 97 N. Y. 494, 49 Am. R. 540; etc. Co., 51 Conn. 143, .")0 Am. R. 12; Union Pacific Railway Co. v. Nichols, Eaton v. Delaware, Lackawanna & 8 Kan. 505, 12 Am. R. 475; Western Eailroad Co., 57 N. Y. 382, [_] Warren v. Fitchburg Eailway 15 Am. E. 513; Udell v. Citizens' Co., 8 Allen (Mass.) 227, 85 Am. D. Street Eailroad Co., 152 Ind. 507, 700; Hansley v. Jamesville etc. Rail- 52 X. E. E. 790. 71 Am. St. R. 336. road Co., 115 N. C. 602, 20 S. E. 139 §§ 328-330 OF QUASI-BAILEES. A. By operation of law the carrier of passengers has the following rights and duties : (1) Right to compensation. (2. Right to make reasonable regulations. (3) Duty to accept all as passengers. (4) Duty to furnish accommodations. (5) Liability for injury to the passenger. (6) Liability for delay in transportation. (7) Liability for passenger's baggage. (1) Bight to Compensation. § 328. Fare. — Like every carrier the common carrier of passengers has a right to compensation for his services, and may demand his payment in advance. It is usual to do this by requiring the purchase of a ticket before entering the cars or other vehicle. The rules already stated as to compensa- tion of the common carrier of goods apply to the compensation of the common carrier of passengers, except that the latter is equally a carrier of passengers who pay and of those who ride gratuitously with the carrier's consent. § 329. Amount of fare. — In the case of the great cor- porations engaged in carrying passengers by land, the fare is often fixed by charter or statute. When not so regulated the customary rate, or in the absence of usage, a reasonable amount may be charged. The charge must be uniform to all persons of the same class riding under the same conditions. § 330. Tickets purchased by the passenger showing the route and train for which passage has been paid are in uni- versal use. Such tickets are evidence of the passenger's right to ride, and they are often used as a contract containing printed stipulations as to the special terms under which the carriage is undertaken, both of the passenger and of his bag- gage. (See Sec. 333.) § 328. See the cases under sec. D. 347 ; Lynch v. Metropolitan Ele- 323; Hutchinson on Carriers, sec. vated Eailway Co., 90 N. Y. 77, 43 565 ; Barrett v. Market Street Kail- Am. E. 141 ; Pullman Palace Car Co. way Co., 81 Cal. 296, 22 Pac. E. 859, v. Eeed, 75 111. 125, 20 Am. E. 232. 15 Am. St. E. 61; [— ] Standish §329. Ante, see. 202-203; Spof- V. Narragansett Steamship Co., Ill ford y. Eailroad Co., 128 Mass. 326; Mass. 512, 15 Am. E. 66; Wellman v. Eailway Co., 83 Mich. [— ] O'Brien v. Boston etc. Eail- 592, 47 N. W. E. 489; Hutchinson road, 15 Gray (Mass.) 20, 77 Am. on Carriers, sec. 567a. 140 OF CARRIERS OF PASSENGERS. §§ 331-332 i; 331. Sale of tickets.— As already stated, the earner may reciuire the purchase of a ticket as a prerequisite to the right to ride. Passengers who fail to comply may be ejected from the train, or required to pay a higher fare on the train, provided this higher fare be not in excess of the amount the carrier is permitted to charge. But the carrier must afford passengers rea.sonable opi>or- tunitios to procure tickets. The ticket office must be open for a reasonable time before the train starts, or at least before the schedule time for its departure, and tickets mu.st be sold indifferently to all wlio apply. If the fault of the carri.-r prevents the passenger from procuring a ticket he is entitled to ride by paying the lower fare on the train, and if he is ejected for a refusal to pay the higher charge the carrier Is liable for the damages caused thereby. § 332. Nature of ticket.— The ticket is evidence that the passenger has paid his fare, and must therefore be pro- duced whenever called for by the conductor. One who re- fuses to produce his ticket, or who has lost or mislaid it, can § 331. McGowen v. Morgan 's Railroad & Steamship Co., 41 La. 732, 6 S. R. 606, 17 Am. St. R. 415; [ — ] Zagelmeyer v. Cincinnati, Saginaw & Mackinaw Railroad Co., 102 Mich. 214, 60 N. W. R. 436, 47 Am. St. R. 514; [— ] O'Rourke V. Citizens' Street Railway Co., 103 Tenn. 124, 52 S. W. R. 872, 76 Am. St. R. 639 ; Poole v. Northern Pacific Railroad Co., 16 Ore. 261, 19 Pac. R. 107, 8 Am. St. R. 289; Reese v. Pennsylvania Railroad Co., 131 Pa. St. 422, 19 Atl. R. 72, 17 Am. St. R. 818; Du Laurans v. St. Paul & Pacific Railroad Co., 15 Minn. 49, 2 Am. R. 102; Chicago, Burlington & Quincy Railroad Co. v. Parks, 18 111. 460, 68 Am. D. 562 ; [— ] Forsee V. Alabama Great Southern Railroad Co., 63 Miss. 66, 56 Am. R. 801; Everett v. Chicago, Rock Island & Pacific Railroad Co., 69 Iowa 15, 28 N. W. R. 410, 58 Am. R. 207; St. Louis etc. Railroad Co. v. South, 43 111. 176, 92 Am. D. 103; Jefifcr- sonvillc Railroad Co. v. Rogers, 28 hid. 1, 92 Am. D. 276; Swan v. Manchester etc. Railroad Co.. 132 .Mass. 116, 42 Am. R. 432. § 332. I— ] Ranchau v. Rutland Railroad Co., 71 Vt. 142, 76 Am. St. R. 761 ; Mahouey v. Detroit Street Railway Co., 93 Mich. 612, 53 X. W. R. 793, 32 Am. St. R. 528 ; Jerome v. Smith, 48 Vt. 230, 21 Am. R. 125; Townsend v. New York Central Rail- road Co., 56 N. Y. 295, 15 Am. R. 419; [ — ] Standish v. Xarragansett Steamship Co., Ill Maas. 512, 15 Am. R. 66; Pullman Palace Car Co. V. Reed, 75 111. 125, 20 Am. R. 232; Van Kirk v. Pennsylvania Railroad Co., 76 Pa. St. 66, 18 Am. R. 404. But see also Maples v. New York & New Haven Railroad Co., 38 Conn. 557, 9 Am. R. 434; Illinois Central Railroad Co. v. Whittemore, 43 III. 421, 92 Am. D. 138; JeflFersonvillc Railroad Co. v. Rogers, 38 Ind. 116, 10 Am. R. 103. 141 § § 333-334 OF QUASI-BAILEES. be required to pay full fare on the train on penalty of ejection for refusal so to do. The conductor may require the passenger to surrender his ticket, but not without giving him instead a check or other evidence of his right to ride. § 333. Ticket as a contract. — The ordinary passenger ticket is not a contract, but mere evidence of a contract, a receipt or token given by the carrier to show its trainmen for what right the passenger has paid. In this it differs from a bill of lading which is ordinarily both a receipt and a contract. If therefore the carrier embodies in the ticket elements of the contract of carriage the purchaser does not by mere accept- ance of the ticket assent to terms printed thereon, in the absence of actual knowledge of them. His acquiescence may be assumed when he knows he is buying a ticket at reduced rates and the terms are plainly printed on the ticket, or when he signs stipulations so printed without taking the trouble to read them, but in any case the contlitions will not be binding imless they are reasonable. It is the contract, not the ticket, that governs the right to transportation, and it is seldom, if ever, that the ticket em- bodies all the elements of the contract. But when the cir- cumstances are such that the passenger must be understood to have assented to conditions on the ticket they become part of the contract of carriage. If the ticket does not express the full contract, parol evidence is admissible to supply missing terms. § 334. As between the passenger and the conductor the §333. [— ] Eanchau V. Eutland E. E. -ii'4, 51 Am. St. E. 206; Eailroad Co., 71 Vt. 142, 43 Atl. E. [ — ] Pennsylvania Eailroad Co. v, 11, 76 Am. St. E. 761; [— ] Quimbv Parry, 55 X. J. L. 551, 27 Atl. E. V. A'anderbilt, 17 N. Y. 306, 72 Am. 914, 39 Am. St. E. 654; Walker v. ]). 469; Fonseea v. Cunard Steam- Price, 62 Kan. 327, 62 Pae. 1001, ship Co., 153 Mass. 553, 27 N. E. E. 84 Am. St. E. 392; Burnham v. 665, 25 Am. St. E. 660; Boyd v. Grand Trunk Eailway Co., 63 Me. Spencer, 103 Ga. 828, 30 S. E. E. 298. IS Am. E. 220; Callaway v. 841, 68 Am. St. E. 146; [— ] Kent Mellett, 15 Ind. App. 366, 44 N. E. V. Baltimore & Ohio Eailroad Co., E. 198, 57 Am. St. E. 238; 45 Oliio St. 284. 12 X. E. E. 798, [— ] O'Eourke v. Citizens' Street 4 Am. St. E. 539; Kansas City etc. Eailway Co.. 103 Tenn. 124, 52 S. Eailroad Co. v. Eodebaugh, 38 Kan. W. E. 872, 76 Am. St. E. 639. 45, 15 Pac. E. 899, 5 Am. St. E. § 334. [— ] Frederick v. IMar- 715; Louisville etc. Eailway Co. v. quette etc. Eailroad Co., 37 Mich. Xicholai, 4 In? 356. What amounts to contributory negligence is usually a (juestion for the jury to determine from all the facts and circumstances of the case. Even where the facts are undisputed it is still ordinarilj'^ a question for the jury whether the conduct of the passenger was that to be expected of a reasonably prudent man under like circumstances. If it was not there was negligence. The facts in some cases make the negligence or prudence of a passenger so clear that but die inference can be drawn therefrom. In such cases contributory negligence is a question of law for the court. v^ 357. Illustrations. — The following are facts from which a jury may properly determine according to the sur- rounding circumstances of each case that the passenger has or has not been guilty of contributory negligence : entering or leaving a moving train, riding on the platform or on a part of the train not intended for passengers when seats are provided by the carrier in the passenger cars, alighting at a place other than the regular stopping place, riding with the arms or other part of the body projecting beyond the out- § 35g_ [ — ] filer v. New York way Co., 96 Wis. 141, 71 N. W. Central Kailroad Co., 49 N. Y. 47, E. 97, 65 Am. St. E. 35. 10 Am. E. 327; Lambeth v. North §357. [— ] Filer v. New York Carolina Eailroad Co., 66 N. C. 494, Central Eailroad Co., 49 N. Y. 47, 8 Am. E. 508; Graham v. McNeill, 10 Am. E. 327; [— ] Pennsylvania 20 Wash. 466, 55 Pac. E. 631, 72 Eailroad Co. v. Aspell, 23 Pa. St. Am. St. E. 121; Atlantic City Eail- 147, 62 Am. D. 323; Buel v. New road Co. v. Goodin, 62 N. J. L. 394, York Central Eailroad Co., 31 N. 42 Atl. E. 333, 72 Am. St. E. 652; Y. 314, 88 Am. D. 271; Weber v. Wade V. Columbia Eailway etc. Co., Kansas City Cable Eailway Co., 100 51 S. C. 296, 29 S. E. E. 233, 64 Am. Mo. 194, 12 S. W. E. 804, St. E. 676; Tubbs v. Michigan Cen- 13 S. W. E. 587, 18 Am. St. tral Eailroad Co., 107 Mich. 108, 64 E. 541 ; Neff v. Harrisburg Trac- N. W. E. 1061, 61 Am. St. E. 320; tion Co., 192 Pa. St. 501, 43 Terre Haute etc. Eailroad Co. v. Atl. E. 1020, 73 Am. St. E. 825; Buck, 96 Ind. 346, 49 Am. E. 168; New York, Lake Erie & Western Weber v. Kansas City Cable Eail- Eailroad Co. v. Enches, 127 Pa. St. way Co., 100 Mo. 194, 12 S. W. E. 316, 17 Atl. E. 991, 14 Am. St. E. 804, 13 S. W. E. 587, 18 Am. St. E. 848; Lambeth v. North Carolina 541; Piper v. New York Central Eailroad Co., 66 N. C. 494, 8 Am, Eailroad Co., 156 N. Y. 224, 50 N. E. 508; Memphis & Charleston Eail- E. E. 851, 66 Am. St. E. 560 ; Schif- road Co. v. Whitfield, 44 Miss. 466, fler V. Chicago & Northwestern Eail- '^ Am. E. 699; St. Louis etc. Eail' 154 OF CAKKIERS OF PASSENGERS. 358 side of the car, alighting from a ear in front of a train movinK on another track. If a trainman invites or directs a pa.ssenger to t?et on or off a moving train the presumption arises that such trainman knew his business and that it is safe to do so. And even if some danger is apparent to the passenger he will be justitit-d in acting as a reasonably prudent man would be supposed to act under similar circumstances. If the carrier by its fault puts the passenger to a choice between jumping from a moving train and being carried by his station, it is responsible for results, unless the passenger acts rashly and i-xposes him- self to danger that a prudent man would not incur. And tin- carrier is liable if its trains are so carelessly operated as to lead passengers in the exercise of reasonable ijrudence to apprehend danger, and in trying to escape it they are injured. This is true though it may turn out that they would have received no harm but for their attempt to escape. § 358. Proximate cause. — The contributory negligence of the passenger must have been a proximate cause of the injury. Even when negligent the carrier will not be liable road Co. v. Cantrell, 37 Ark. .519, 40 274; Terrc Haute etc. Railroad Co. Am. R. 105; Florida Southern Rail- way Co. V. Hirst, 30 Fla. 1, 11 So. E. 506, 32 Am, St. E. 17; Illinois Central Railroad Co. v. Green, 81 111. 19, 25 Am. E. 255 ; Walker v. Vicks- burg etc. Railroad Co., 41 La. Ann. 795, 6 So. R. 916, 17 Am. St. R. 417, and note; Evansville etc. Rail- road Co. V. Athon, 6 Ind. App. 295, 33 N. E. R. 469, 51 Am. St. E. 303; Graham v. McNeill, 20 Wash. 466, 55 Pac. E. 631, 72 Am. St. E. 121; Benedict v. Minneapolis & St. Louis Railroad Co., 86 Minn. 224, 90 N. W. R. 360, 91 Am. St. R. 345 ; Clerc V. Morgan's etc. Railroad & Steam- ship Co., 107 La. 370, 31 So. E. 886, 90 Am. St. E. 319; Creamer V. West End Street Eailway Co., 156 Mass. 320, 31 N. E. E. 391, 32 Am. St. E. 456; Cartwright v. Chicago & Grand Trunk Railway Co., 52 :\Iich. 606, 18 N. W. R, 380, 50 Am. R. V. Buck, 96 Ind. 346, 49 Am. R. 168; Irish v. Northern Pacific Rail- road Co., 4 Wash. 48, 29 Pac. R. 845, 31 Am. St. E. 899; St. Louis etc. Eailway Co. v. Murray, 55 Ark. 248, 18 S. W. R. 50, 29 Am. St. R. 32. § 358. I — ] Jammison v. Chesa- peake & Ohio Railway Co., 92 Va. 327, 23 S. E. R. 758, 53 Am. St. R. 813; Schiffler v. Chicago & North- western Railway Co., 96 Wi.s. 141, 71 N. W. R. 97, 65 Am. St. R. 35; Weber v. Kansas City Cable Railway Co., 100 Mo. 194, 12 S. W. R. 804. 13 S. W. 587, 18 Am. St. R. 541; ]\Iorrisscy v. Wiggins Ferry Co., 43 Mo. 380, 97 Am. D, 402; Zenip v. Wilmington " etc. Railroad Co.. 9 Rich. L. (S. C.) 84, 64 Am. D. 763; McDonald v. International etc. Kail- way Co., 86 Te.\. 1, 22 S. W. R. 939, 40 Am. St. R. 803. and note. Sw post, sec. 416. 155 §§359-360 OF QUASI-BAILEES. if its negligence was not the proximate cause of the injury, or if the passenger's negligence and that of the carrier both directly contributed to the result. But on the other hand, the negligence of the passenger is no defence to the carrier unless such negligence so far contributed to the result as to be in some degree a proximate cause of the injury complained of. If in spite of the negligence of the passenger the carrier might have averted the injury, this last negligence will be the proxi- mate cause and the carrier will still be liable. Sleeping Car Companies. § 359. Not common carriers. — Sleeping car companies, it has been seen (§ 166), are not innkeepers. Neither are they, as to the baggage and valuables of the passenger, common carriers. The railroad company is the carrier, and the sleep- ing car company merely furnishes the car and reserves to itself the right to provide a conductor and a porter, and to charge for the use of its berths any person who has become a pas- senger of the railroad, and yet in many respects the duties of sleeping car companies are similar to those of common carriers of passengers and their liabilities are most naturally treated of in this connection. § 360. Nature of their undertaking. — "A sleeping car com- pany holds itself out to the world as furnishing safe and com- fortable cars, and when it sells a ticket it impliedly stipulates to do so. It invites passengers to pay for and make use of its cars for sleeping, all parties knoAving that during the greater part of the night the passenger will be asleep powerless to protect himself or to guard his property." The company is therefore bound to furnish reasonable protection, to have an employee to watch the berths while the passengers are sleep- § 359. [ — ] Blum v. Pullman Palace Car Co. v. Lowe, 26 Am. St. Palace Car Co., 1 Flip. (U. S.) 500; K. 331, and Pullman Palace Car Co. [— ] Pullman Palace Car Co. v. v. Pollock, 69 Tex. 120, 5 S. W. E. Smith, 73 111. 360, 24 Am. R. 258 ; 814, 5 Am. St. R. 31. Pullman Palace Car Co. v. Gavin, § 360. [ — ] Blum v. Pullman 93 Tenn. 53, 23 S. W. R. 70, 42 Am. Palace Car Co., 1 Flip. (U. S.) 500; St. R. 902; Pullman Palace Car Co. Lewis v. New York Central Sleep- V. Matthews, 74 Tex. 654, 12 S. W. ing Car Co., 143 Mass. 267, 9 N. R. 744, 15 Am. St. R. 873; Pullman E. R. 615, 56 Am. R. 852; Carpenter Palace Car Co. v. Adams, 120 Ala. v. New York etc. Railroad Co., 124 581, 24 So. R. 921, 74 Am. St. R. N. Y. 53, 26 N. E. R. 277, 21 Am. 53. See extended note to Pullman St. R. 644; Pullman Palace Car Co, 156 OF CAKKJ mm OF PASSENGERS. || 361-362 inii-, to defend their property from thieves and tlicir p.-rsons from msult, and in general, to exercise a degree of care com- mensurate with the danger to which passengers are exposed. If there is a vacant berth in the car the company is bound to furnish this accommodation and protection to any pnjper person who offers at the proper time and place to pay the fare fixed therefor, in other words, the calling is a public one. §361. Liability of the sleeping- car company.— If through lack of commensurate care or througli faihu-e to suitably guard and protect the passenger and his effects, injury is suffered, the company is liable. The liability is a question of negli- gence. It must further appear that the loss was not due to the negligence of the passenger, and that the goods or valuables lost were such as may properly be carried for the use or convenience of the passenger upon the journey. Owners of Passenger Elevators. §362. Are carriers of passengers.— In accordance with the general rule that the utmost care and diligence must be exer- cised in all cases where human life is involved, it is lield that those who operate passenger elevators in jiublic or semi- public buildings are carriers of passengers undertaking to carry safely passengers who use the elevator, so far as the utmost human care and foresight Avill go. For the slightest neglect in the construction, repair or operation of the elevator resulting in injury to persons riding therein the owners or operators are liable. v. Adams, 120 Ala. 581, 24 So. R. S 362. Tmidwcll v. Whittier, 80 921, 74 Am. St. E. 53; Council v. Cal. 574, 22 Pae. R. 266. 13 Am. Chesapeake & Ohio Railway Co., 93 St. R. 175; Southern Building & Va. 44, 24 S. E. R. 467, 57 Am. Loan Association v. Lawson, 97 St. R. 786; Nevin v. Pullman Palace Tenn. 367, 37 S. W. R. 86, 56 Am. Car Co., 106 III. 222, 46 Am. R. 688. St. R. 804; Goodsell v. Taylor, 41 § 3G1. Lewis v. New York Cen- :\rinn. 207, 42 N. \V. R. 873, 16 Am. tral Sleeping Car Co., 143 Mass. 267, St. R. 700; Hartford Deposit Co. 9 N. E. R. 615, 56 Am. R. 852; v. Sollitt. 172 111. 222, 50 N. E. R. r— ] Blum V. Pullman Palace Car 178, 64 Am. St. R. 35; [— ] Springer Co., 1 Flip. (U. S.) 500; Illinois v. Ford, 189 III. 430, 59 N. E. R. Central Railroad Co. v. Handy, 63 953. 82 Am. St. R. 464. Sec also Miss. 609, 56 Am. R. 846; Pullman the extended note to 77 Am. St. R. Palace Car Co. v. Adams, 120 Ala. 26, contra Griffen v. Manioc. 166 581, 24 So. E. 921, 74 Am. St. R. 53; X. Y. 188, 59 N. E. R. 925, 82 Am. Woodruff etc. Co. v. Diehl, 84 Ind. St. E. 630; Burgess v. Stowc. — 474, 43 Am. E. 102. Mi.h. — , 96 X. W. E. 29. Vol §§363-364 OF QUASI-BAILEES. (()) Linbility for Delay. ^ 363. Reasonable diligence in beginning, continuing and ending the trHns])ortation is tlie undertaking of the passenger carrier. Xo liability is incurred by delays for which there is reasonable excuse; carriers are not warrantors of speed. i'ublished time-tables are public professions, and carriers must make all reasonable effort to carry according to their schedules. For wilful or needless departures therefrom the carrier is liable to one who incurs loss as a proximate result of such fault of the carrier. The test of liability is negli- gence, failing to use due care and skill to run in conformity to the time-table. Changes in the time-table must be given the same notice as the publication of the table itself. (7) Liahility for Passenger's Baggage. ^ 364. Insurers of baggage. — As to the passenger's baggage the carrier is a common carrier of goods, and an insurer against all losses but those due to the excepted perils. The payment of fare covers payment for carrying a reasonable amount of baggage. The liability arises when the baggage has been delivered to the agent of the carrier, or if there be a custom to receive baggage left in a certain place, depositing it there at any reasonable time before the departure of the train is enough. The liability of the carrier does not depend § 363. Gordon v. The Eailroad, 52 Nowlen, 19 Wend. (N. Y.) 234, 32 N. H. 596, 13 Am. K. 97; Weed v. Am. D. 455; \—^ Hawkins v. Hoff- Panama Railroad Co., 17 N. Y. 362, man, 6 Hill (N. Y.) 586, 41 Am. D. 72 Am. D. 474; [— ] Sears v. East- 767; Wilson v. Grand Trunk Rail- ern Railroad Co., 14 Allen (Mass.) way Co., 56 Me. 60, 96 Am. D. 435; 433, 92 Am. D. 780; Hurst v. Great Hiekox v. Naugatuck Railroad Co., Western Railway Co., 19 C. B. (N. 31 Conn. 281, 83 Am. D. 143; S.) 310, 115 E. C. L. 310; Heirn [— ] Goldberg v. Ahnapee & West- V. McCaughan, 32 Miss. 17, 66 Am. orn Railway Co., 105 Wis. 1, 80 N. D. 588, and note; Georgia Railroad \N. R. 920, 76 Am. St. R. 899; Co. V. Hayden, 71 Ga. 518, 51 Am. Wright v. Caldwell, 3 Mich. 51; R. 274; Walsh v. Chicago, Milwaukee Green v. Milwaukee & St. Paul Rail- & St. Paul Railway Co., 42 Wis. 23, way Co., 38 Iowa 100, 41 Iowa 410; 24 Am. R. 376; Carter v. Peek, 4 :\[urray v. International Steamship Sneed (Tenn.) 203, 67 Am. D. 604. Co., 170 Mass. 166, 48 N. E. R. 1093, § 364. Isaacson v. New York 64 Am. St. R. 290 ; Moore v, N. Y. Central Railroad Co., 94 N. Y. 278, etc. Railroad Co., 173 Mass. 335, 53 46 Am. R. 143; [— ] Hollister v. N. E. R. 816, 73 Am. St. R. 298. 158 OF CARRIERS OF PASSENGERS. §§ 365-36G iiIH)n tlic (l.'livery or non-delivery of tht- baggage check. Ainonj^- several connectiiifr carriers on the route the same rules and presumptions prevail as to liability for baggage as havt- been already explained in the case of connecting carriers of goods (^§ 290-299). S 365. What is baggage depends on the j)erson and the con- ditions of the jouniey. Whatever one carries for his per- sonal use, convenience or amusement, according to the habits or wants of the class to which he belongs, for his use on the way or for the ultimate purpose of the journey, is baggage. The use must be personal to the travel. -r. and not merchan- dise or samples for business, nor articles for permanent use after he ceases to be a traveler. If however the carrier know- ingly chooses to treat other goods as baggage, and to carry them as such, he Avill be responsible therefor. The (piestion is often one of fact for the jury, to be determined from all the circumstances of the case. § 366. Value of baggage. — The carrier is not an insurer of goods and money carried by the traveler beyond what is rea- sonaibly necessary for the convenience and comfort of the traveler as such, according to his station in life. It can not § 365. [— ] New York Central Railroad Co. v. Fraloff, 100 U. S. 24; Hauuibal etc. Railroad Co. v. SAvift, 12 Wall. (U. S.) 262; May- crow V. Great Western Railway Co., L. R. 6 Q. B. 612; [— ] Orange County Bank v. Brown, 9 Wend. (N. Y.) 85, 24 Am. D. 129; [— ] Haw- kins V. Hoffman, 6 Hill. (N. Y.) 586, 41 Am. D. 767; Oakes v. North- ern Pacific Railroad Co., 20 Ore. 392, 26 Pac. R. 230, 2.3 Am. St. R. 126; Ouimit V. Henshaw, 35 Vt. 605, 84 Am. D. 646. (Compare Connolly v. Warren, 106 Mass. 146, 8 Am. R. 300.) Coward v. East Tennessee & Georgia Railroad Co., 16 Lea (Tenn.) 225, 57 Am. R. 226; Dibble V. Brown, 12 Ga. 217, 56 Am. D. 460; Michigan Central Railroad Co. V. Carrow, 73 111. 348, 24 Am. R. 248 ; Toledo & Ohio Central Railway Co. V. Bowler & Burdiek Co., 57 1 Ohio St. 38, 47 N. E. R. 1039, 63 Am. St. R. 702; Kansas City etc. Railway Co. v. McGahey, 63 Ark. 344, 38 S. W. R. 659, 18 Am. St. R. Ill; Bomar v. Maxwell, 9 Humph. (Tonn.) 620, 51 Am. D. 682; Runyan v. Central Railroad Co., 61 N. J. L. 537, 41 Atl. R. 367, 68 Am. St. R. 711. Compare Blu- mantle v. Fitchburg Railroad Co., 127 Mass. 322, 34 Am. R. 37f>. with Mintcr v. Pacific Railroad ( .>., 41 Mo. 503, 97 Am. D. 288. §366. 1—1 Orange County Bank v. Brown, 9 Wend. (N. Y.> 85, 24 Am. D. 129; [ — 1 New York Central Railroad Co. v. Fraloff. 100 U. S. 24; r— 1 Blum v. Pullman Palace Car Co., 1 Flip. (U. S.) 500; Pfister V. Central Pacific Railroad Co., 70 Cal. 169, 11 Pac. R. 6S6. 59 Am. R. 404; Michigan Central Rail- road Co. V. ('arrow, 73 III, 34S, 24 59 §§367-368 OF QUASI-BAILEES. be required to carry as luggage such property, but may compel the owner to send it by express or freight. If the traveler Avishes the carrier to assume further liability he must reveal the true value, so that the carrier may charge according to the risk. The carrier of baggage unlike the carrier of goods owes no duty to inquire as to the contents of trunks. v$ 367. Custody of passenger. — The carrier assumes no re- sponsibility for money and valuables, not properly baggage, carried by the passenger upon his person. And for goods or packages carried as hand baggage the carrier incurs no lia- oility except for negligence. Some cases hold the carrier to Jie full common law liability as insurers of articles retained by the passenger for his personal use upon the journey and lost without negligence on his part. But the weight of authority seems to hold the carrier to the exercise of proper watchful- ness only, and this is especially required in the case of articles of personal apparel carried in a berth in a sleeping car lost while the passenger is enjoying the sleep to which the carrier has invited him. As to ordinary baggage the custody must be surrendered to the carrier or he is not responsible for its loss. It would be unreasonable to hold the carrier responsible for property never entrusted to his custody at all. ^ 368. Passenger supposed to accompany baggage. — It is Am. R. 248; Weeks v. New York cifie Eailroad Co., 70 Cal. 169, 11 etc. Eailroad Co., 72 N. Y. 50, 28 Pac. E. 686, 59 Am. E. 404; Tower Am. E. 104; Eunyan V. Central Bail- v. Utica etc. Eailroad Co., 7 Hill road Co., 61 N. J. L. 537, 41 Atl. (N. Y.) 47, 42 Am. D. 36; Lewis E. 36r?, 68 Am. St. E. 711; Toledo v. New York Central Sleeping Car & Ohio Central Eailway Co. v. Bow- Co., 143 Mass. 267, 9 N. E. E. 615, ler & Bnrdick Co., 57 Ohio St. 38, 58 Am. E. 135 ; [— ] Pullman Pal- 47 N. E. E. 1039, 63 Am. St. E. ace Car Co. v. Smith, 73 111. 360, 702. 24 Am. E. 258 ; Gleason v. Goodrich § 367. [— ] Kinsley v. Lake Transportation Co., 32 Wis. 85, 14 Shore & Michigan Southern Eailroad Am. E. 716; Pullman Palace Car Co. Co., 125 Mass. .54, 28 Am. E. 200; v. Pollock, 69 Tex. 120, 5 S. W. E. [— ] Blum V. Pullman Palace Car 814, 5 Am. St. E. 31; Whicher v. Co., 1 Flip. (U. S.) 500; Weeks v. Boston & Albany Eailroad Co., 176 New York etc. Eailroad Co., 72 N. Mass. 275, 57 N. E. E. 601, 79 Y. 50, 28 Am. E. 104; First Na- Am. St. E. 314; Woodruff Sleeping tional Bank v. Marietta & Cincinnati etc. Co. v. Diehl, 84 Ind. 474, 43 Eailroad Co., 20 Ohio St. 259, 5 Am. E. 102. Am. E, 655; Pfister v. Central Pa- §368. Wilson v. Grand Trunk 160 OF CAERIEKS OF P.VSSENGEHS. §§ 369-370 implied in the ordinary contract of carrias^c that tht- baggage and the passenger go together. The earriagc of the baggage is an incident to the principal contract to carry the passenger. If therefore the baggage is sent on another train through the carrier's fault the carrier bears the risk, but if the passenger chooses to go by another train, or carries luggage neither belonging to him nor for his personal use upon the journey, the carrier becomes a mere gratuitous bailee as to such bag- gage. As a matter of course if the carrier consents to (rarry the baggage by another route or train, his liability romains. and on the other hand if baggage is sent without the carrier's consent by one not buying a ticket or paying for tlie carriage the carrier can become liable only for wilful or wanton injury. § 369. Delivery of baggage. — The carrier's liability for the baggage of the passenger continues imtil it is ready to be delivered to the passenger at his destination, and until he has had a reasonable opportunity to call for it and take it away. What is such reasonable time depends upon circumstances, but usually it is immediately. The passenger can not for his own convenience prolong the period of the extraordinary lia- bility of the carrier. If the baggage is not called for within a reasonable time the carrier may store it and his liability changes to that of a warehouseman. B. Of the Limitation of the Liability of the Carrier of Pas- sengers hy Contract. ^ 370. As to the baggage of the passenger the carrier may by contract make limitations of liability subject to the same Railway Co., 56 Me. 60, 96 Am. D. P. Railroad Co. v. Boyce, 73 111. ".10. 435; Wald v. Pittsburg etc. Rail- 24 Am. R. 268. road Co., 162 111. 545, 44 N. E. R. § 369. Roth v. Buffalo et^-. Rail- 888, 53 Am. St. R. 332; Beers v. road Co., 34 X. Y. 548, 90 Am. IX Boston etc. Railroad Co., 67 Conn. 736; [— ] Chicago, Rock Lshind & 417, 34 Atl. R. 541, 52 Am. St. R. Pacific Railroad Co. v. Boyce, 73 111. 293'; Isaacson v. New York Central 510, 24 Am. R. 268; Kansas City Railroad Co., 94 N. Y. 278, 46 Am. etc. Railway Co. v. McGahey. 63 R. 142; Curtis v. Delaware, Lacka- Ark. 344, 38 S. W. K. 659, 58 .\m. wanna & Western Railroad Co., 74 St. R. Ill; Ditman B-.ot & Shoe Co. N. Y. 116, 30 Am. R. 271; Coward v. Keokuk & Western Railroad Co., V. East Tennessee & Georgia Rail- 'M Iowa 416, 59 X. W. R. 257, 51 road Co., 16 Lea (Tenn.) 225, 57 Am. St. R. 352; Onimit v. Hen- Am. R. 226; [-] Chicago, R. I. & ^liaw, 3.3 Vt, 605,. 84 -Vm. I>. 646: §§ 371-372 OF QUASI-BAILEKS. rules as carriers of goods generally (see chapter 12). But conditions limiting the liability for baggage which are printed on the passenger's ticket are of no force unless brought to the notice of the passenger and expressly or impliedly assented to by him. § 371. As to the passenger, it is doubtful if the carrier in most states can by contract secure exemption from the full care demanded by law. It is public policy and not contract that requires the security of the passenger "as far as hiunan care and foresight Avill go," and no individual can excuse the carrier. The states that allow the carrier of goods to con- tract within certain limits against liability for negligence apply the same rules to passenger carriers but with perhaps greater caution and stricter construction. §372. Gratuitous passengers.— A number of states uphold contracts exempting carriers from liability for injuries to passengers traveling on a pass but the weight of authority is that no distinction is to be taken betwen such passengers, pas- Fairfax V. New York Central Eail- road Co., 73 N. Y. 167, 29 Am. E. 1]9. § 370. Coward v. East Tennessee & Georgia Railroad Co., 16 Lea (Tenu.) 225, 57 Am. E. 226; Cam- den & Amboy Eailroad Co. v. Bal- dauf, 16 Pa. St. 67, 55 Am. D. 481 ; Louisville, New Albany & Chicago Eailway Co. v. Nieholai, 4 Ind. App. 119, 30 N. E. E. 424, 51 Am. St. E. 206; [ — ] Eanchau v. Eutland Eail- road Co., 71 Vt. 142, 43 Atl. E. 11, 76 Am. St. E. 761; Kansas City etc. Eailroad Co. v. Eodebaugh, 38 Kan. 45, 15 Pac. E. 899, 5 Am. St. E. 715, and note, ante, sec. 266. § 371. [— ] Eailroad v. Lock- wood, 17 Wall. (U. S.) 357; 1 — 1 Williams v. Oregon Short Line Eailroad Co., 18 Utah 210, 54 Pac. R. 991. 72 Am. St. E. 777; [— ] Doyle V. Fitehburg etc. Eail- road Co., 166 Mass. 492, 44 N. E. E. 611, 55 Am. St. E. 417; Eussell V. Pittsburg etc. Eailway Co,, 157 Ind. 305, 61 N. E. E. 678, 87 Am. St. E. 214; Illinois Central Eailroad Co. V. Beebe, 174 111. 13, 50 N. E. E. 1019, 66 Am. St. E. 253; Sey- bolt V. New York, Lake Erie & West- ern Eailroad Co., 95 N. Y. 562, 47 Am. E. 75 ; Bissel v. New York Cen- tral Eailroad Co., 25 N. Y. 442, 82 Am. D. 369. § 372. Griswold v. New York & New England Eailroad Co., 53 Conn. 371, 4 Atl. E. 261, 55 Am. E. 115; Ulrich v. New York Central Eailroad Co., 108 N. Y. 80, 15 N. E. E. 60, 2 Am. St. E. 369; Bissel V. New York Central Eailroad Co., 25 N. Y. 442, 82 Am. D. 369; [ — ] Doyle V. Fitehburg Eailroad Co., 166 Mass. 492, 44 N. E. E. 611, 55 Am. St. E. 417; Eussell v. Pittsburg etc. Eailroad Co., 157 Ind. 305, 61 N. E. E. 678, 87 Am. St. E. 214 ; [ — ] Williams v. Oregon Short Line Eailroad Co., 18 Utah 210, 54 Pac. E. 991, 72 Am. St. E. 777 ; Baltimore & Ohio etc. Eailway ]62 OF CARRIERS OV PASSENGERS. §§ 373-374 sengers riding on reduced rates ami passengers paying full fare. The law imposes the same duty to protect life and limb in all cases. An exception is to be noticed in tin- case of persons whom the railway company is under no obligation to carry, such as express messengers, mail clerks and parlor car porters. Ah no duty to carry such persons exists, the carrier may refuse to undertake the carriage except upon its own terms. Persons accompanying stock and riding on a drover's pass arc not gratuitous passengers, but passengers for hire. (3) Termination of Ihc Relation. § 373. How terminated. — A contract of carriage may be (1) Fully executed, or (2) Left incomplete, because a. The passenger has abandoned the journey, or b. The carrier has ejected the passenger from his vehicle. (1) Contract to Carry Fully Executed. §374. When carrier's relation ends. — "The carrier is bound to exercise the strictest vigilance not only in carrying passengers to their destination but in setting them down safely Co. V. Voigt, 176 U. S. 498; Peter- Ark. 519, 40 Am. R. lO.-j; Lambeth son V. Chicago & Northwestern Rail- v. North Carolina Railroad Co., 66 way Co., — Wis. — , 96 N. W. R. N. C. 494, 8 Am. R. 508; .Memphis 532; [ — ] Railroad v. Lockwood, 17 & Charleston Railroad Co. v. Whit- Wall. (U. S.) 357; IlUnois Central field, 44 Miss. 466, 7 Am. R. 699; Railroad Co. v. Beebe, 174 111. 13, [— ] Filer v. New York Central Rail- 50 N. E, R. 1019, 66 Am. St. R. road Co., 49 N. Y. 47, 10 Am. K. 253, note to 61 Am. St. R. 89. 327; Harris v. Howe. 74 Tex. 534, § 374. [— ] Commonwealth v. 12 S. W. R. 224, 15 Am. St. R. Boston & Maine Railroad Co., 129 862; [— ] Quimby v. Vanderbilt. 17 Mass. 500, 37 Am. R. 382; Hansley N. Y. 306, 72 Am. D. 469; Illinois Jamesville etc. Railroad Co., Central Railroad Co. v. Green, 81 111. V. 115 N. C. 602, 20 S. E. R. 528, 44 19, 25 Am. R. 255; Mitchell Am. St. R. 474; Terre Haute & Grand Trunk Railway Co., 51 Mich. Indianapolis Railroad Co. v. Buck. 236, 16 X. W. R. 388. 47 Am. R. 96 Ind. 346, 49 Am. R. 168; 566; Cartwright v. Chicago & Grand f_] Dodge V. Boston & Bangor Trunk Railway Co.. 52 Mich. 606. Steamship Co., 148 Mass. 207, 19 IS X. W. R. 380, 50 Am. R. 274; N. E. R. 373, 12 Am. St. R. 541; l — I Pennsylvania Kailroad Co. v. St. Louis, Iron Mountain & South- Aspoll, 23 Pa. St. 147. 62 Am. D. crn Railroad Co. v. Cantrell, 37 i'-'.!. Sec n,Hr, sees. 355-35S. mi i:§ 375-:)7G OF (^UA-si-hajlees. jit the end."" The earrier peri'onus his full duty therefore by carrying a passenger to his destination as indicated by his ticket and giving him suitable opportunity to alight in a proper place. An invitation by the carrier to the passenger to alight without allowing a reasonable time, or ait'ording a safe place subjects the carrier to liability for injurious consequences; but the passenger alone is responsible for the results of his contributory negligence. Harm which one brings upqn him- self is treated so far as others are concerned as though not received at all. If the carrier contracts for only a portion of the route his duty is completed by carrying the passenger to the point on his line where the transfer is to be made to a connecting car- rier's line. (2) Contract to Carry left Incomplete. § 375. (a) The passenger may leave the conveyance, with intent to abandon the journey, at any time. If he does he ceases to be a passenger though he may intend to resume the journey by a later train. Leaving for a temporary purpose however does not affect the relation, nor does one cease to be a passenger while traveling from one train to another in the prosecution of the journey. But one stepping from a street car to the public highway ordinarily ceases to be a passenger even while traveling to another car. The highway is not a passenger station. 5 376. (b) The carrier may eject the passenger before the journey's end, as already noted, for failure to pay fare, or for breach of the carrier's reasonable regulations, and the carrier is not again obliged to receive the passenger. §375. [— ] Dodge v. Boston & 500, 37 Am. E. 383; Stone v. Clii- Bangor Steamship Co., 148 Mass. cage & jSTorthwestern Railway Co., 47 207, 19 N. E. E. 373, 12 Am. St. E. Iowa 82, 29 Am. E. 458; Creamer 541 ; Parsons v. New York Central v. West End Street Eailway Co., Eailroad Co., 113 N. Y. 355, 21 N. 156 Mass. 320, 31 N. E. E. 391, 32 E. E. 145, 10 Am. St. E. 450; Am. St. E. 456. But compare Nortlirup v. Eailway Passenger As- Keator v. Traction Co., 191 Pa. St. suranee Co., 43 N. Y. 516, 3 Am. E. 102, 43 Atl. E. 86, 71 Am. St. 758. 724; [ — ] Commonwealth v. Boston §376. Ante, sec. 343. & Maine Railroad Co., 129 Mass. 164 OF QUASI-BAILEES. CHAPTER W. OF OTHER C'ARKTEKS. (3.) Duty to HtTvo all im- partially. (4.) Duty to provide ade- quate facilities. (5.) Liability for miiitakeH in transmission. Liinitinfj liability for ncglifjiMice by »'ontra<-t. (G.) Liability for delay or failure to deliver. 3. Termination of the re- lation. Delivery where. Delivery to whom. Delivery to connecting lino!«. Telephone companirs. 3t>9. Telegraph and telephone companies alike qmisi- piil)lic. Not common carriers. Duty to s.i\.' all impar- tially. Patent sub.jct t.. jmblie control. Right to regulate charge*. § 377. Carriers of mail and of intelligence.— In ;HKlitiw 167 e 334 OF QUASI -BAILEES. coiiimoii carriers to the extent that they are insurers against mistakes in transmitting messages. The instrumentalities by which they perform their service are subject to danger from accident, atmospheric conditions and the malice of strangers; and they have no such immediate custody of the message as the common carrier has of the goods he carries. They have in other cases been spoken of as bailees for hire bound to exercise ordinary care. But they receive nothing tangible to carry, and as will appear are held to more than ordinary care. §384. Are quasi-bailees.— But the nature of their under- taking is closely analogous to that of common carriers. The one transports to a distance the contents of a letter, the other transports a package, and both perform the service in the exercise of a public calling. Though their duties differ yet their profession, liability and legal status are practically the same as those of carriers of passengers. It is natural therefore that most of the rules of law gov- erning telegraph companies should be adaptations of the law of carriers already noticed. But the law of electricity is of such recent growth and the likenesses and differences of com- mon carriers and telegraph companies have been so variously emphasized in different jurisdictions, that on many points York etc. Telegraph Co. 41 N. Y. § 384. GilUs v. Western Union 544, 1 Am. K. 446 ; [—1 Grinnell v. Telegraph Co., 61 Vt. 461, 17 Atl Western Union Telegraph Co., 113 K. 736, 15 Am. St. E. 917; [— ] Tel Mass. 299, 18 Am. K. 485 ; [— ] Ment- egraph Co. v. Gris-nokl, 37 Ohio zer V. Western Union Telegraph Co., St. 301, 41 Am. R. 500 ; Express Co 93 la. 752, 62 N. W. R. 1, 57 Am. v. Caldwell, 21 Wall. (U. S.) 264 St. R. 294; Smith v. Western Union Western Union Telegraph Co. v Telegraph Co., 83 Ky. 104, 4 Am. Reynolds, 77 Va. 173, 46 Am. E St. R. 126; Birney v. New York 715; Western Union Telegraph Co etc. Telegraph Co., 18 Md. 341, 81 v. Call Co., 44 Neb. 326, 62 N. W, Am. D. 607; [— ] True v. Interna- R. 506, 48 Am. St. R. 729; tional Telegraph Co., 60 Me. 9, 11 [— ] True v. International Tele- Am. R. 156; Tyler v. Western Union graph Co., 60 Me. 9, 11 Am. R. 156; Telegraph Co., 60 111. 421, 14 Am. Western Union Telegraph Co. v. R. 38; Western Union Telegraph Co. Neill, 57 Tex. 283, 44 Am. R. 589; V. Reynolds, 77 Va. 173, 46 Am. R. Smith v. Western Union Telegraph 715; Reed v. Western Union Tele- Co., 83 Ky. 104, 4 Am. St. R. 126; graph Co., 135 Mo. 661, 37 S. W. R. I—] Mentzer v. Western Union Tel- 904, 58 Am. St. R. 609; [— ] Tele- egraph Co., 93 la. 752, 62 N. W. R. graph Co. v. Griswold, 37 Ohio St. 1, 57 Am. St. R. 294, 301, 41 Am. R. 500. 168 OF TELEGEAPH COMPANIES. || 385.387 decisions are in conflict, on others confusion reigns, and the law of electricity as a whole may well be regarded as still in process of formation. 2. The Eights and Duties of Telegraph Companies as Carriers. § 385. The rights and duties of telegraph companies to, carriers may be conveniently considered und.T the following heads : (1) Right to compensation. (2) Right to make reasonable rules and regulations. (3) Duty to serve all indiscriminately. (4) Duty to furnish facilities. (5) Liability for mistakes in transmission. (6) Liability for delay or failure to deliver. §386. (1) Right to compensation.— As a matter of course the telegraph company can not be compelled to per- form its service without reasonable compensation and it may demand payment before it undertakes the service, or by un- dertaking without prepayment it may waive that right, and then it cannot collect until the service has been performed. The compensation may be graduated to the service rendered, the rates having relation to the length of the message and the distance it is carried, and more may be charged for tlay than for night messages, for messages that are repeated t«» insur.- correct transmission than for unrepeated messages. § 387. Discrimination. — But having devoted its prop- erty to a public use the telgraph company nuist serve the public impartially. It must, unless there be a reasonable ground of discrimination, serve all persons alike upon their §386. Western Union Telegraph - Me. 493, 10 At). R. 495, 1 .\in. St. Co. V. Call Co., 44 Neb. 326, 62 R. 353. N. W. E. 506, 48 Am. St. R. 729; §387. Western Union Telegraph [_] Western Union Telegraph Co. Co. v. Call Co., 44 Neb. 326, 62 N. V. Van Cleave, 107 Ky. 464, 54 W. R. 506, 48 Am. St. R. 729; Inter- S. W. R. 827, 92 Am. St. E. 366; Oeean Publishing Co. v. Assooiated Western Union Telegraph Co. v. Press, 184 111. 438, 56 N. E. R. Moore, 12 Ind. App. 136, 39 N. E. 822, 75 Am. St. R. 184; Commercial R. 874, 54 Am. St. R. 515; Kirby Union Telegraph Co. v. New Eng- V. Western Union Telegraph Co., land Telephone & Telegraph Co., 61 4 S. Dak. 105, 55 N. W. R. 759, Vt. 241, 17 Atl. R. 1071, If. Am. 46 Am. St. R. 765; [—1 Ayer v. St. R. 893; f— ] Leavell v. Western Western Union Telegraph Co., 79 Union Telegraph Co., 116 N. C. 211. 21 S. E. R. 391, 47 .\m. St. K. 798. 169 §§ 388-389 OF QUASI-BAILEES. tender of equal pay for equal services and must not render to one service at a less rate than to another where such dis- crimination operates to the disadvantage of the other. By the better opinion a discrimination based merely on the quan- tity of business offered is unjust, tends to create a monopoly and destroy competition, and is therefore contrary to public policy. But it is not unjust discrimination to make a dif- ference in rates based on the expense and difficulty of per- forming the service. i; 388. (2) Right to make rules and regulations. — "That telegrajjh companies may make all proper and needful rules to enable them with convenience and dispatch to do the business of their customers is now unquestioned." Such rules how- ever by reason of the quasi-public character of telegraph com- panies the law requires to be "reasonable in view of all the circumstances, and of the nature of the business, its risks and responsibilities, the necessity of securing to the public a reasonable protection against neglect or fraud or want of due care and effort, to perform punctually and correctly the acts undertaken." Not only must the rules be reasonable, but they must be reasonably applied in every case. Of the reasonable- ness of any rule the court and not the company is the judge. § 389. Notice of rules. — Regulations affecting the rights of the sender are not binding unless brought home to his knowledge. His assent to mere regulations is not neces- sary, though it is otherwise as to stipulations affecting his § 388. Bartlett v. Western Union Co. v. Keynolds, 77 Va. 173, 46 Am. Telegraph Co., 62 Me. 209, 16 Am. K. 715; Harris v. Western Union E. 437; [— ] True v. International Telegraph Co., 121 Ala. 519, 25 Telegraph Co., 60 Me. 9, 11 Am. E. So. E. 910, 77 Am. St. E. 70; Ex- 156; [ — ] Western Union Telegraph press Company v. Caldwell, 21 Wall. Co. V. Van Cleave, 107 Ky. 464, (U. S.) 264; Bartlett v. Western 54 S. W. E. 827, 92 Am. St. E. 366; Union Telegraph Co., 62 Me. 209, Western Union Telegraph Co. v. 16 Am. E. 437; [ — ] Webbe v. Moore, 12 Ind. App. 136, 39 N. E. Western Union Telegraph Co., 169 E. 874, 54 Am. St. E. 515 ; Western 111. 610, 48 N. E. E. 670, 61 Am. Union Telegraph Co. v. Eeynolds, St. E. 207 and extended note; Hend- 77 Va. 173, 46 Am. E. 715; Tele- rieks v. Western Union Telegraph phone Co. v. Brown, 104 Tenn. 56, Co., 126 N. C. 304, 78 Am. St. E. 78 Am. St. E. 906. 658; Telephone Co. v. Brown, 104 § 389. Breece v. United States Tenn. 56, 78 Am. St. E. 906 ; Hill Telegraph Co., 48 N. Y. 132, 8 Am. v. Western Union Telegraph Co., R. 526; Western Union Telegraph 85 Ga. 425, 11 S. E. E. 874, 21 Am. 170 OF TELEGRAPH COMPANIES. §390 contract relations with the company. The same considerations control the contract rights against the company of the sendee of the message, but he is not bound in a tort action by regula- tions assented to by the sender of which he had no notice. These regulations are usually printed on blanks on whi<-h the sender is required to write his message. A party using such a blank assents to its terms so far as they are reasonable, whether he knows them or not. An omission to infornj liini- self of the rules with full opportunity to do so is his own fault. But a rule made without notice, and not observed by the company itself, can not avail, and if the company waives its rules it can not plead them in defence. §390. -What regulations are reasonable. — It is almost universal to include among the rules printed on telegraph blanks conditions under which the company luidcrtakes to perform the service. Such are the offer of half rates for night messages on condition that the company shall be freed St. E. 166. As to the necessity of knowledge compare the rule in United States Telegraph Co. v. Gil- dersleeve, 29 Md. 232, 96 Am. D. 519, with the general rule in Car- land V. Western Union Telegraph Co., 118 Mich. 369, 76 N. W. R. 762, 74 Am. St. R. 394. § 390. The following are cases illustrating regulations that have been held valid: Breece v. United States Telegraph Co., 48 N. Y. 132, 8 Am. R. 526; Western Union Tele- graph Co. V. Reynolds, 77 Va. 173, 46 Am. R. 715; Birkett v. Western Union Telegraph Co., 103 Mich. 361. 61 N. W. R. 645, 50 Am. St. R. 374 ; Hill v. Western Union Telegraph Co., 85 Ga. 425, 11 S. E. R. 874, 21 Am. St. R. 166; [— ] Western Union Telegraph Co. v. Van Cleave, 107 Ky. 464, 54 S. W. R. 827, 92 Am. St. R. 366; Harris v. Western Union Telegraph Co., 121 Ala, 519, 25 So. R. 910, 77 Am. St. R. 70; Western Union Telegraph Co. v. Henderson, 89 Ala. 510, 7 So. R. 419, 18 Am. St. R. 148; McIVck v. Western Union Telegraph Co., 107 Iowa 356, 78 N. W. R. 63, 70 Am. St. R. 205; Western Union Tele- graph Co. V. Stevenson, 128 Pa. St. 442, 18 Atl. R. 441, 15 Am. St. R. 687; Sweetland v. Illinois & Mis- sissippi Telegraph Co., 27 Iowa 433, 1 Am. R. 285. In the following cases regulation* have been held not binding on the party suing the company: Bart- lett V. Western Union Telegraph Co., 62 Me. 209, 16 Am. R. 437; [ — ] Webbe v. Western Union Tele- graph Co., 169 111. 610, 48 N. E. R. 670, 61 Am. St. R. 207; [ — ] True V. International Telegraph Co., 60 Me. 9, 11 Am. R. 156; Western Union Telegraph Co. v. Moore, 12 Ind. App. 136, 39 N. E. R. 874, 54 Am. St. R. 515; Western Union Telegraph Co. v. Eubanks. 100 Ky. 591, 38 S. W. R. 106S, 66 Am. St. R. 361. See also note to i»2 Am. St. R. 372. 171 § 391 OF QUAST-BAILEES. from liability for negligence as to transmission or delivery of the message ; a requirement that all claims be presented in writing within sixty days; that messages whose accuracy in transiiiission is to be guaranteed shall be repeated at an additional charge of one-half the regular rate; that an extra charge shall be paid for delivery outside the free delivery limits. Rules as to hours of business and conduct of the office are proper, if reasonable in view of the public nature of the business. In passing upon the reasonableness of regulations the courts are in hopeless conflict. By the weight of authority it is rea- sonable to require claims to be filed in writing within sixty days, but it is unreasonable to refuse responsibility for unre- peated messages. § 391. (3) Duty to serve all impartially. — It is the duty of telegraph companies to transmit messages for individuals and corporations faithfully and impartially in the order in which they are offered for transmission. All customers must be treated with the same consideration. The telegraph and the telephone are "public vehicles of intelligence, and they who own and control them can no more refuse to perform impartially the functions that they have assumed to dis- charge than a railway company as a common carrier can rightfully refuse to perform its duty to the public. They have no power to discriminate and while offering to serve some refuse to serve others." Neither can they refuse to receive a dispatch which is free from indecency and improper language on account of its subject matter, unless to send it might subject the company to civil or criminal liability. To refuse such a dispatch is not a wrong resting on contract, but it grows out of the duty §391. Chesapeake etc. Telephone St. E. 109; Tyler v. Western Union Co. V. Baltimore & Ohio Telegraph Telegraph Co., 60 111. 421, 14 Am. Co., 66- Md. 399, 7 Atl. K. 809, R. 38; Gray v. Western Union Tele- .59 Am. E. 167; Commercial Union graph Co., 87 Ga. 350, 13 S. E. E. Telegraph Co. v. New England Tele- 562, 27 Am. St. R. 259 ; [— ] Lea- phone & Telegraph Co., 61 Vt. 241, veil v. Western Union Telegraph 17 Atl. E. 1071, 15 Am. St. R. 893; Co., 116 N. C. 211, 21 S. E. E. 391, [— ] Telegraph Co. v. Griswold, 37 47 Am. St. E. 798; [— ] Mentzer Ohio St. 301, 41 Am. E. 500; West- v. Western Union Telegraph Co., em Union Telegraph Co. v. Dubois, 93 la. 752, 62 N. W. E. 1, 57 Am. 128 111. 248, 21 N. E. E. 4, 15 Am. St. E. 294. 172 OF TELEGEAPH COMPANIES. §§ 392-393 owed by a public service eor{)(>ralion to render service to all indiscriminately. § 392. (4) Duty to provide adequate facilities.— Another consequence of the public enq)l(>yi,..-nt ..l" ih- t.-l.--raph com- pany is its duty to provide facilities adequately to serve the public. It is the duty of the company to maintain wires and operators enough to transact all the business oflVred it, for all the points at which it has offices, but it can not be required to furnish greater facilities than the volume of busine.s.s rea- sonably to be expected at any office justly demands. It is also bound to have suitable instruments and skilled operators and servants who will render the serviec with that degree of diligence and skill which the peculiar nature of the undertaking requires. For any failure due to defective in- struments or unskillful operators the company is responsible as it is for the acts of servants who are negligent or unfaith- ful while in the course of their employment. § 393. (5) Liability for mistakes in transmission. — Tin- most important consequence of the peculiar natun- of the profession and undertaking of the telegraph company and of the intimate dependence of the public upon the proper fulfillment of its functions as a carrier of intelligence, often §392. [— ] Leavell v. Western Atl. K. 29, 6 Am. 8t. K. I'll; TyK-r Uuiou Telegraph Co., 116 N. C. 211, v. Western Union Telegraph Co., 60 21 S. E. E. 391, 47 Am. St. E. 798; 111. 421, 14 Am. B. 38; [—1 Tcle- Birkett v. Western Union Telegraph graph Co. v. Griswold, 37 Ohio St. Co., 103 Mich. 361, 61 N. W. E. 301, 41 Am. E. 500; Eeed v. West- 645, 50 Am. St. E. 374; [— ] West- ern Union Telegraph Co., 135 Mo. ern Union Telegraph Co. v. Van 661, 37 S. W. E. 904, 58 Am. St. R.^ Cleave, 107 Ky. 464, 54 S. W. E. 609; Western Union Telegrapli Co.* 827, 92 Am. St. E. 366; Tyler v. v. Chamblee, 122 Ala. 428. 25 S. R. Western Union Telegraph Co., 60 232, 82 Am. St. E. 89; [ — 1 Wcbbc 111. 421, 14 Am. E. 38; Fowler v. v. Western Union Telegraph Co., Western Union Telegraph Co., 80 169 111. 610, 48 N. E. R. 670. 61 Me. 381, 15 Atl. R. 29, 6 Am. St. E. Am. St. E. 207; Western Union 211; Sweetland v. Illinois & Mis- Telegraph Co. v. Eubanks, 100 Ky. sissippi Telegraph Co., 27 Iowa 433, 591, 38 S. W. E. 106S. 66 Am. St. R. 1 Am. E. 285; McCord v. Western 361; Western Union Tolegniph Co. Union Telegraph Co., 39 Minn. 181, v. Xeill. 57 Tex. 2S3, 44 Am. R. 589; 39 N. W. E. 315, 12 Am. St. E. [—1 Mentzer v. Western Union To!- 636. egraph Co., 93 Ta. 752. 62 X. W. §393. Fowler v. Western Union E. 1. 57 Am. St. E. 294. Telegraph Co., 80 Me. 381, 15 17;:! 1394 OF QUASr-BAILEES. of vital importance to the sender and sendee, is that they are held to a rigid accountability for the negligence of their agents and employees. They are not insurers of the safe and accurate transmission and prompt delivery of messages received by them, but they are bound to perform their service with a care and diligence proportioned to their profession of special skill and commen- surate with the importance of the trust reposed in them. Any failure to exercise such care and skill is negligence for which the carrier is liable, but no responsibility is assumed for errors or imperfections arising from causes not within their control and not capable of being guarded against. g 394. Limiting liability for negligence by contract. — Conditions limiting the liability of the company if assented to by the sender are universally upheld unless they excuse from liability for negligence. But to alloAv the company by § 394. Gillis v. Western Union Telegraph Co., 61 Vt. 461, 17 Atl. R. 736, 15 Am. St. R. 917; [ — ] Ayer v. Western Union Tele- graph Co., 79 Me. 493, 10 Atl. E. 495, 1 Am. St. R. 353; Bartlett v. Western Union Telegraph Co., 62 Me. 209, 16 Am. E. 437 ; [— ] Tele- graph Co. V. Griswolcl, 37 Ohio St. 301, 41 Am. R. 500; Express Com- pany V. Caldwell, 21 Wall. (U. S.) 264; Western Union Telegraph Co. V. Eubanks, 100 Ky. 591, 88 S. W. R. 1068, 66 Am. St. R. 361; [ — ] Webbe v. Western Union Tele- graph Co., 169 111. 610, 48 N. E. R. 670, 61 Am. St. E. 207; Western Union Telegraph Co. v. Blanchard, 68 Ga. 299, 45 Am. R. 480 and note; Pacific Telegraph Co. v. Underwood, 37 Neb. 315, 55 N. W. R. 1057, 40 Am. St. R. 490; [— ] True v. Inter- national Telegraph Co., 60 Me. 9, 11 Am. R. 156; Western Union Tele- graph Co. V. Graham, 1 Colo. 230, 9 Am. R. 136; Smith v. Western Union Telegraph Co., 83 Ky. 104, 4 Am. St. E. 126; Manville v. West- ern Union Telegraph Co., 37 Iowa 214, 18 Am. R. 8; Sweetland v. Illinois & Mississippi Telegraph Co., 27 Iowa 433, 1 Am. R. 285; Brown V. Postal Telegraph Co., Ill N. C. 187, 16 S. E. R. 179, 32 Am. St. R. 793 (overruling 89 N. C. 334); Reed v. Western Union Telegraph Co., 135 Mo. 661, 37 S. W. E. 904, 58 Am. St. E. 609 (overruling 37 :\lo. 472) ; Tyler v. Western Union Telegraph Co., 60 111. 421, 14 Am. R. 38 ; Candee v. Western Union Telegraph Co., 34 Wis. 471, 17 Am. R. 452; Western Union Telegraph Jo. V. Tyler, 74 111. 168, 24 Am. E. 279. Contra: [ — ] Grinnell v. West- ern Union Telegraph Co., 113 Mass. 299, 18 Am. E. 485; Birkett v. Western Union Telegraph Co., 103 Mich. 361, 61 N. W. R. 645, 50 Am. St. E. 374; Pearsall v. Western Union Telegraph Co., 124 N. Y. 256, 26 N. E. E. 534, 21 Am. St. E. 662 ; Western Union Telegraph Co. v. Xeill, 57 Tex. 283, 44 Am. E. 589; United States Telegraph Co. v. Gil- dersleve, 29 Md. 232, 96 Am. D, 519. 174 OF TELEGEAPll COMPANIES. § 395 Stipulations on the message blank or other agreement with the sender to eseape this rigid liability for negligt-nee is bv the weight of authority contrary to public policy, and such stipulations demand unreasonable concessions and are void. AVhile the art of telegraphy was in its infancy and its appli- ances were crude, many courts upheld stipulations aKaiust liability for errors that have since overruled their earlier de- cisions and laid down the more rigid rule. Regulations ex- empting a carrier from liability for negligence are in some eases held to be void for Avant of considerati<.n. In some states constitutional or statutory provisions forbid contracts against the liability for negligence of telegrajdi eompani.-s. Those states that permit a common carrier to contract against negligence (§ 269), naturally extend the same privi- lege to telegraph companies. But there are a number of states which deny such immunity to common carriers, that havt- nevertheless permitted telegraph companies to contract against liability for negligence at least if the acts causing the injury did not amount to gross negligence, wilful misconduct or fraud. The law of the telegraph is comparatively n<-w. and is still in process of formation. The present tendency is toward applying the same principles in contracts against negligence to carriers of intelligence as have been settled upon in the case of common carriers of goods and of passengers, and it is difficult to justify any distinction, though it is still main- tained in a few states. §395. (6) Liability for delay or failure to deliver.— The undertaking of the telegraph company is not only to transmit with reasonable care and dispatch but to (.leliver the message to the sendee Avithout neglect or unnecessary delay. No dis- § 395. Barnes v. Western Union AVostem Union Telegraph Co. v. Telegraph Co., 24 Nev. 125, 50 Pae. Eubanks, 100 Ky. 591, 38 S. W. R. E. 438, 77 Am. St. R. 791; lOGS, 66 Am. St. R. 361; Western Western Union Telegraph Co. v. Union Telegraph Co. v. Broescho. Moore, 12 Ind. App. 136, 39 72 Tex. 654, 10 S. W. R. 734, 13 N. E. E. 874, 54 Am. St. E. Am. St. R. S4;!; Western Union 515; [— ] Harkness v. Western Telegraph Co. v. Hen.lorson, S9 A!a. Union Telegraph Co., 73 la. 190, 510, 7 So. R. 419, IS Am. St. 34 N. W. R. 811, 5 Am. St. E. 672; E. 14S; Francis v. Western Union Smith V. Western Union Telegraph Tclegrapli Co., 5S Minn. •-V)^. 59 Co., 83 Ky. 104, 4 Am. St. E. 126; X. W. E. 107S, 49 Am. St. R. 507. 175 5 396 ^^' QUASI-BAil^EES. tinction is to be drawn between the duty to receive and trans- mit and that to promptly deliver the message when trans- mitted. As speed is a first consideration in communicating by telegraph it results naturally that any negligence in prompt service should be regarded as a serious default. Though stipulations against liability for errors in unre- peated messages have been upheld in some of the states, it is universally conceded that such exemptions are no defence against delay or failure to deliver an unrepeated message unless the cause of the delay would have been removed by a repetition. Those courts that deny the right to stipulate against negligence in transmitting also deny the right of exemption from liability for negligent delay. 8. Termination of the Belation. § 396. Delivery where. — The relation is ordinarily ter- minated by delivery of the message. Within free delivery limits delivery should be made to the addressee in person wherever by reasonable diligence he can be found. It is of first importance that the message should be delivered to the addressee and the place of delivery is of minor importance. The place to v/hich the message is directed is but a guide and if the addressee can not be found at that address he should be sought at his office or residence. In the case of impor- tant telegrams it may.be the duty of the messenger to seek him on the street or elsewhere if there is reason to suppose he can be found. In such a case failure to use reasonable efforts to make personal delivery is negligence for which the com- pany is liable. If the company undertakes to transmit a message to one outside the free delivery limits it must perform, but an extra §396. Western Uniou Telegraph 419, 18 Am. St. E. 148 with West- Co. V. Houghton, 82 Tex. 561, 17 ern Union Telegraph Co. v. Moore, S. W. E. 846, 27 Am. St. E. 918 12 Intl. App. 136, 39 N. E. E. and note; McPeek v. Western 874, 54 Am. St. E. 515; see also Union Telegraph Co., 107 Iowa 356, [— ] Western Union Telegraph Co. 78 N. W. E. 63, 70 Am. St. E. 205 ; v. Mitchell, 91 Tex. 454, 44 S. W. llenilershot v. Western Union Tel- E. 274, 66 Am. St. E. 906; West- egraph Co., 106 la. 529, 76 N. W. ern Union Telegraph Co. v. Cooper, E. 828, 68 Am. St. E. 313; com- 71 Tex. 507, 9 S. W. E. 598, 10 pare Western Union Telegraph Co. v. Am. St. E. 772. Henaerson, 89 Ala, 510, 7 So, E. J76 OF TELEPHONE COMPANIES. §§397-399 charge may be made. Whether the burden of knowing Avhether the sendee lives within such limits re.sts on the sender or on the company is in dispute. If the sender fails to give sufficient address his contributory negligence will prevent a recovery by him for failure to deliver. § 397. Delivery to whom.— Delivery to the person intended is essential to the service by the company, is part of the con- tract for transmission. An undelivered message is not trans- mitted. In general the delivery should be personal but deliv- ery to one in whose care the message is sent is sufficient, and if the addressee is stopping at a hotel the hotel clerk is pre- sumed to be his agent to receive the message. If the addressee can not be found the sender should if it is practicable be noti- fied that the message can not be delivered. § 398. Delivery to connecting lines. — Telegraph lines have so far consolidated that ([uestions of liability as between con- necting carriers are comparatively rare. Practically the .same considerations as to the duty to receive and liability for loss that have been already noticed in discussing eonneeting ear- riers of goods (§ 290 and the following) are recognized in the case of connecting telegraph lines. Telephone Companies. § 399. Telegraph and telephone companies alike occupy a (^uasi-public position and for many ])urp()ses the word "tel^"- graph" in a law has been held to include "telephone," and §397. [ — ] Western Union note and cases cited; Telephone Co. Telegraph Co. v. Mitchell, 91 Tex. v. Brown, 104 Tenn. 56, 78 Am. St. 454, 44 S. W. R. 274, 66 Am. St. R. 906. E. 906; Western Union Telegraph §399. [— ] Central Union Tcl- Co. V. Houghton, 82 Tex. 561, 17 ephone Co. v. Falley, 118 Ind. 194, S. W. E. 846, 27 Am. St. E. 918, 20 N. E. R. 145, 10 Am. St. R. 114, note; Western Union Telegraph Co. and extended note; State v. Citi- V. Young, 77 Tex. 245, 13 S. W. R. zens' Telephone Co., 61 S. C. 83, 985, 19 Am. St. R. 751; Laudie v. 39 S. E. R. 257, 85 Am. St. R 870; Western Union Telegraph Co., 126 Hudson River Telephone Co. v. N. C. 431, 35 S. E. R. 810, 78 Am. Watervliet etc. Railway Co., 135 St. R. 668; Hendricks v. Western N. Y. 393, 32 N. E. R. 148, 31 Am. Union Telegraph Co., 126 N. C. 304, St. R. 838; San Antonio etc. Rail- 35 S. E. R. 543, 78 Am. St. R. 658. way Co. v. South Western Tele- §398. Smith v. Western Union oraph & Telephone Co., 93 Tex. Telegraph Co., 84 Tex. 359, 19 S. 313, 55 S. W. R. 117. 77 Am. .«?t. W. R. 441, 31 Am. St. R. 59 and R. 884. 1- 177 55HOO-402 OF QUASI-BAILEES. '•telegTcUn" to ineliule a "telephone message." Telegraph law is therefore equally the laAV of the telephone, except in so far as the dift'ereuce in the nature of the services rendered anil in the manner of rendering them necessitates a difference. Even in such matters, the applications rather than the founda- tion principles differ. ^ 400. Not a common carrier.— The telephone has often been referred to as a common carrier of news, but such expres- sions must be understood to mean no more than it is a common carrier, just as a telegraph company is a common carrier, in that it is engaged in carrying news as a public calling, but not in that it is an insurer of its service. § 401. Duty to serve all impartially.— As the telephone has been devoted to a public use, it has become charged with a public interest and must submit to public control for the com- mon good. It is bound to serve the public indiscriminately and can not serve one and refuse another. One discriminated against may by mandamus compel the company to furnish him service like that furnished to others. § 402. Patent subject to public control.— The right to serve and refuse service at the will of the company has been urged upon the ground that the telephone is a patent under the §400 State v. Citizens' Tele- braska Telephone Co., 17 Neb, 126, phone Co., 61 S. C. 83, 39 S. E. K. 22 N. W. E. 237, 52 Am. E. 404; 257, 85 Am. St. E. 870; Hockett v. State v. Telephone Co., 36 Ohio St. State, 105 Ind. 250, 5 N. E. E. 178, 296, 38 Am. E. 583; Commercial 55 Am. E. 201 ; [— ] Central Union Union Telegraph Co. v. New Eng- Telephone Co. v. Falley, 118 Ind. land Telephone & Telegraph Co., 61 194, 20 N. E. E. 145, 10 Am. St. Vt. 241, 17 Atl. E. 1071, 15 Am. St. E. 'll4; State v. Nebraska Tele- E. 893; State v. Citizens' Tele- phone Co., 17 Neb. 126, 22 N. W. phone Co., 61 S. C. 83, 39 S. E. E. E. 237, 52, Am. E. 404; Commer- 257, 85 Am. St. E. 870. cial Union Telegraph Co. v. New § 402. State v. Telephone Co., 36 England Telephone & Telegraph Ohio St. 296, 38 Am. E. 583; Hock- Co., 61 Vt. 241, 17 Atl. E. 1071, ett v. State, 105 Ind. 250, 5 N. E. 15 Am. St. E. 893. R- 178, 55 Am. E. 201; Chesapeake § 401. [— ] Central Union Tel- & Potomac Telephone Co. v. Balti- ci)hone Co. v. Falley, 118 Ind. 194, more & Ohio Telegraph Co., 66 Md. 20 N. E. E. 145, 10 Am. St. E. 399, 7 Atl. E. 809, 59 Am. E. 167; 114; Chesapeake & Potomac Tele- Commercial Union Telegraph Co. v. phone Co. v. Baltimore & Ohio Tel- New England Telephone & Tele- egraph Co., 66 Md. 399, 7 Atl. E. graph Co., 61 Vt. 241, 17 Atl. E. 809, .59 Am. E. 167; State v. Ne- 1071, 15 Am. St. E. 893. 178 OF TELEPHONE COMPANIES. ^ 4^3 control of the patentee. That is true in su far that it pre- vents others from using his invent ir by agent, a party to the contract. And this h.- may do thoii-^'h he was undisclosed to the carrier, and though he was not the general owner, but had a mere special property, such &» that of a bailee. In the latter case he of course recovers for the benefit of the general owner. 2. Thr Action. § 409. The form of the action against the carrier depends on the nature of the complaint. A breach of the carrier's common law duty is a tort for which an action on the case will lie. For breach of a special contract the action must be in assumpsit on that contract. Where the old rules of pleading are still in force it often becomes important to choose between the action ex delicto and one ex contractu. § 410. Action ex delicto. — If there l)e doubt as to the proper parties defendant the tort action is preferable, as re- covery may be had against all or any part of the (h'fendaut'^ in a tort action. Liability of joint tort feasors is several and nonjoinder or misjoinder can not defeat the action as to the parties actually sued. A declaration in case moreover docs not reciuirc the saiii-- certainty of pleading as in assumpsit, and finally the measure of damages in some cases is larger in a tort action, covering the full loss and sometimes punitive damages as well. § 411. The action ex contractu has the advantage that with the declaration on contract may be joined the common counts in assumpsit. Furthermore, th.' action rr contractu survives to the personal representative of the plaintiff. But a count in trover can not be joined with assumpsit. nn«l failure to join all parties who are jointly liabl." for th.' wron- is fatal to an action ex contractu. ^412, Modern procediu-e in most of th.- states has §410. Hutchinson on Carriers, § 41J. Hutohinson on Curriert, 740-742. 740-74S. § 411. Hutcbiuson on Carriers, 743. 183 §§ 413-414 OF ACTIONS AGAINST C'AEEIERS. assimilated tort and contract actions to the same rules. Yet occasionally, even now, it is important to sue upon contract rather than upon the common law duty. This is so where the carrier has by special contract undertaken some duty not imposed by law. For breach of this duty the suit must be upon the contract. On the other hand it is better to sue for breach of the com- mon law duty where as is usually the case the contract of shipment limits the liability of the carrier. This throws upon the carrier the burden of pleading and proof of such special terms. 3. The Pleadings. § 413. Show case or assumpsit. — Even under modern prac- tice codes it is important to know whether the plaintiff sues for breach of duty or of contract, as the nature of the defence may depend upon the form of the declaration. If breach of duty is relied on this duty must be set out with particularity and its violation and the resulting damage must be averred. If the suit be upon the contract it must be set out verbatim or according to its legal effect. Some codes require a de- scription of the contract accompanied by its profert or ex- hibit. Such description and exhibit will of course be con- clusive that the plaintiff had elected to rely upon the contract. Without further mention in this connection the usual rules of pleading are to bie understood as applicable to actions against carriers. 4. The Evide7ice. § 414. Burden of proof. — The only departure from the ordi- nary rules of evidence calling for remark in this connection is that the burden of proving the cause of the injury or loss rests, not upon the party affirming the loss, but upon the carrier. § 413. Hutchinson on Carriers, Indiana Eailroad Co., 16 Mich. 79, 749; Tallehassee Falls Mfg. Co. v. 93 Am. D. 208; Turney v. Wilson, Western Eailway Co., 117 Ala. 520, 7 Yerg. (Tenn.) 340, 27 Am. D. 23 So. R. 139, 67 Am. St. R. 179, 515; Tallehassee Falls Mfg. Co. v. note. Western Railway Co., 117 Ala 520, § 414. Hutchinson on Carriers, 23 So. E. 139, 67 Am. St. R. 179 and 766-767; [ — ] Railroad v. Reeves, note; Lamb v. Camden & Amboy etc. 10 Wall. (U. S.) 176; [— ] McMil- Co., 46 N. Y. 271, 7 Am. R. 327. Ian V. Michigan Southern & Northern Compare Shriver v. Sioux City & St. 184 ACTIONS AGAINST CARRIERS OF GOODS. §§ 41541G The plaintiff must prove delivery to the carrier, the car- rier's undertaking and the loss or damat^e. To excuse himself the carrier then rests under the burden of showing: that the loss was caused by one of the excepted perils, or that it wan due to a cause from which he is by contract cxcusi.mI. Whether the carrier must go farther and estalilish his own freedom from negligence is a disputed question. 5. The Damages. § 415. For injury or loss the damages recoverable have been said to depend on the nature of the action. The tort- feasor is liable for "all the injurious consecjuences of h'w tortious act, which, according to the usual course of eventH and the general experience, were likely to ensue." It does not matter that he did not actually contemplate the resulting injury as the probable consequence of his wrongful act. For the breach of the contract the damages extend only "to the direct consequences of the breach; to such as usually occur from the breach of such a contract, and as wvrv within the contemplation of the parties, when the contract was entered into, as likely to result from a breach." The greater foresight, at the time of the breach, of the defaulting party as to the probable consequences of his act will not incn-a-s*- his responsibility in contract, but in tort it does. This dis- tinction is often ignored and it is sometimes denied that the character of the wrong declared upon can affect the damages. § 416. Proximate cause.— The default of the carrier must have been the proximate cause of the injury. For l<>s.s..s Paul Railway Co., 24 Minn. 506, 326, 47 X. E. R. 101.1. 61 Am. St. M Am R 353- Hull v. Chicago etc. R. 288; Brown v. Chicago, Milwau- Railway Co., 41 Minn. 510, 43 N. W. kee & St. Tuul Railway Co.. .".4 W.^ R 391, 16 Am. St. R. 722; Adams 342, 11 N. W. R. :^m, 41 Am. R. Express Co. v. Stettaners, 61 111. 41; Brock v. (iale. 14 Fla. .Vj:i. 14 184, 14 Am. R. 57. Am. R. 3.16. §415. Compare Hutchinson on §416. Ha.llcy v. Buxcn.ble. 9 Carriers, 768 b (quoting Sutherland Exch. 341; Gritlin v. Culver. 16 N. on Damages), and 5 Am. & Eng. Y. 489, 69 Am. D. 718; l"! ^^'-un- Ency of Law, 394; see also [-1 Sa- nah etc. Railway Co. v. Pntchanl. vannah etc. Railway Co. v. Pritch- 77 Ga. 412. 1 S. E. R 261. 4 Am. ard 77 Ga. 412, 1 S. E. R. 261, 4 St. R. 92; Brown v. ( h.onRo. .Mil- Am'. St. R. 92; Swift River Co. v. waukoo & St. Paul Kailwav Co M Fitchburg Railroad Co., 169 Mass. Wis. 342. 11 N. XN. H. .^.6, 41 Am. 185 §§417-418 OF ACTIONS AGAINST CAEEIERS. that are remote, speculative or possible merely there can be no recovery. But for losses due to its default the carrier is liable if they are the usual and natural consequences of such default, or can fairly be said to have been within the con- templation of the parties at the time the contract of shipment was made as the natural and probable consequences of such default provided the losses are the proximate and not the remote consequences of the default, and are certain in their nature and not speculative and contingent. In tort the car- rier is liable for all the natural and proximate results of the wrongful act complained of whether reasonably expected or not. § 417. The measure of damages for loss or injury is, in general, the value of the goods at the destination with interest on such value from the time when they should have been delivered, together with any other loss of which the carrier's fault was the proximate cause. From this must be deducted any unpaid charges of the carrier and any value the goods may have had if accepted in an injured condition. The same rule applies where the carrier has been guilty of conversion. Goods so injured as to be practically worthless need not be accepted at all. § 418. Value how determined. — The value of the goods is ordinarily the market value or the cost of obtaining other goods of like kind.- Embarrassment is met in framing a E. 41; Swift River Co. v. Fitch- Connecticut etc. Railroad Co., 124 burg Railroad Co., 169 Mass. 326, Mass. 421, 26 Am. R. 673; Bowman 47 N. E. R. 1015, 61 Am. St. R. 288; v. Teall, 23 Wend. (N. Y.) 306, 35 Brock V. Gale, 14 Fla. 523, 14 Am. Am. D. 562; Hand v. Baynes, 4 R. 356; Harvey v. Connecticut etc. Whart. (Pa.) 204, 33 Am. D. 54. Railroad Co., 124 Mass. 421, 26 Am. § 418. Hudson v. Northern Pacific R. 673; Deming v. Grand Trunk Railway Co., 92 Iowa 231, 60 N. W. Railway Co., 48 N. H. 455, 2 Am. R. 608, 54 Am. St. R. 550 j R. 267; Ward v. New York Central [— ] Cooper v. Young, 22 Ga. 269, Railroad Co., 47 N. Y. 29, 7 Am. R. 68 Am. D. 502 ; Sisson v. Cleveland 405 ; [— ] Mentzer v. Western Union & Toledo Railroad Co., 14 Mich. 489, Telegraph Co., 93 Iowa 752, 62 N, 90 Am. D. 252; Jones v. St. Louis, W. R. 1, 57 Am. St. R. 294. Iron Mountain & Southern Railway §417. McGregor v. Kilgore, 6 Co., 53 Ark. 27, 13 S. W. R. 416, Ohio 359, 27 Am. D. 260; Blumen- 22 Am. St. R. 175; [— ] Green v. thai V. Brainerd, 38 Vt. 402, 91 Am. Boston & Lowell Railroad Co*., 128 1). 349; [— ] Cooper v. Young, 22 Mass. 221, 35 Am. R. 370; Fairfax Ga. 269, 68 Am. D. 502; Harvey v. v. New York Central Railroad Co., 186 ACTIONS AGAINST CARRIERS OF GOODS. §* 4194*^ proper rule of damages for property having special value to the owner, but no market value. It has been said that it is compensated at the actual value to the owner, n«it at a fanci- ful price but at the actual money loss he sustains, and that of this value only a jury can be the judges. No rule has been suggested that is definite, satisfactory and logical. TIm- eff.^-t of fixing the value in the contract of sliipnient has been pre- viously discussed (§ 270). § 419. The measure of damages for default in carrying, either because of delay, or failure or refii.sal to carry at all. is th.- difference between the market value of the goods at the place where they were to be delivered and at the tinje they should have arrived and their value when they did arrive or at the place where they were refused. To this should be added in- terest from the time when they should have been delivered, and such other damages as result proximately from the car- rier's default. This will include reasonable expen.ses of the owner incurred in trying to prevent lo.ss including any reason- able charges that may have been paid to other carriers to per- form the service for which the defendant carrier is in default. § 420. Expected profits from a business can not be recov- 73 N. Y. 167, 29 Am. R. 119; Hous- Chicago Railroa.l Co., 26 111. 20(5, ton & Texas Central Railroad Co. v. 79 Am. D. 369; Griffin v. Colvor. 16 Burke, 55 Tex. 323, 40 Am. R. 808. X. Y. 489, 69 Am. 1). 71S; Foanl v. Compare Watt v. Nevada Central Atlantic & North Carolina Railroad Railroad Co., 23 Nev. 154, 44 Pac. Co., 8 Jones's L. (N. C.) 235, 78 R, 423, 46 Pac. R. 52, 726, 62 Am. Am. D. 277; Cooper v. Young. 22 St. R. 772 with note to the same, Ga. 269, 68 Am. D. 502; Harvey v. 62 Am. St. R. 791. Connecticut etc. Railroad Co., 124 §419. [— ] Savannah etc. Rail- Mass. 421, 26 Am. R. 673; way Co. V. Pritchard, 77 Ga. 412, [ — ] Ayres v. Chicago & North West- 1 S. E. R. 261, 4 Am. St. R. 92; em Railway Co., 71 Wis. 372, 37 [— ] Cooper V. Young, 22 Ga. 269, N. W. R. 432, 5 Am. St. R. 226: 68 Am. D. 502; Deming v. Grand Missouri Pacific Railroad Co. r. Trunk Railway Co., 48 N. H. 455, Fagan, 72 Tex. 127, 9 S. W. R. 749. 2 Am. R. 267; Ward v. New York 13 Am. St. R. 776; [ — 1 Onlciui Central Railroad Co., 47 N. Y. 29, etc. Railroad Co. v. Rae, IS 111. 4S8, 7 Am. R. 405; Hudson v. Northern 68 Am. D. 574; Sisson v. Cievclaml Pacific Railway Co., 92 Iowa 231, & Toledo Railroad Co.. 14 Mich. 60 N. W. R. 608, 54 Am. St. R. 489. 90 Am. D. 252; Pect v. Chicago 550; Ward's etc. Co. v. Elkins, 34 & North Western Railway Co.. 20 Mich. 439; Devereaux v. Buckley, Wis. 624. 91 Am. D. 446. 34 Ohio St. 16, 32 Am. R. 342; §420. Swift River Co. v. I-^tfh- Priestley v. Northern Indiana & l>nrg Railroad Co., 169 Mm*. 326, 187 §§421-422 OF ACTIONS AGAINST CAERIEES. ered where they are speculative and uncertain, or where the carrier had no notice that such damages might ensue from his non-performance. But profits that are certain, and that may fairly be said to have been within the contemplation of tlio parties may be recovered. B. Actions Against Carriers op Passengers. 1. The Parties. s 421. The injured party at the common law was the proper person to bring an action for personal injuries. For loss of services because of such injuries the master, parent or husband might maintain an action. If the injury caused death there was no right of action, as all right to services ceased at death. Lord Campbell's Act, however, in various forms, has been enacted in all the states but not by the federal congress. According to its provisions the right of action for injury causing death survives to the personal representative of the deceased. Actions under these statutes must be governed strictly by the statutes, and the action will be defeated if brought by any other person than the party named in the statute. 2. The Form of Action. § 422. The choice of action is governed largely by the same considerations as those already noted in actions against carriers 47 N. E. E. 1015, 61 Am. St. E. St. R. 397; Morgan v. Southern Pa- 288 . f _] Savannah etc. Eailway Co. cifie Co., 95 Cal. 510, 30 Pae. E. 603, V. Pritehard, 77 Ga. 412, 1 S. E. E. 29 Am. St. E. 143; [— ] Louisville 261, 4 Am. St. E. 92; [ — ] Cooper etc. Eailway Co. v. Goodykoontz, V. Young, 22 Ga. 269, 68 Am. D. 119 Ind. Ill, 21 N. E. E. 472, 12 502; Eocky Mount Mills V. Wilming- Am. St. E. 371 and note; Usher v. ton etc. Eailroad Co., 119 N. C. 693, West Jersey Eailroad Co., 126 Pa. 25 S. E. E. 854, 56 Am. St. E. 682 ; St. 206, 17 Atl. E. 597, 12 Am. St. Priestley v. Northern Indiana & E. 863; Dwyer v. Chicago etc. Eail- Chicago Eailroad Co., 26 111. 206, way Co., 84 Iowa 479, 51 N. W. E. 79 Am. D. 369; Foard v. Atlantic & 244, 35 Am. St. E. 322; Hawkins v. North Carolina Eailroad Co., 8 Front Street Cable Co., 3 Wash. 592, Jones's L. (N. C.) 235, 78 Am. D. 28 Pae. E. 1021, 28 Am. St. E. 72; 277; Brock v. Gale, 14 Fla. 523, 14 McDonald v. Chicago & North West- Am. E. 356. ern Eailway Co., 26 Iowa 124, 96 § 421. Kelley v. New York, New Am. D. 114; Carey v. Berkshire Eail- Haven & Hartford Eailroad Co., 168 road Co., 1 Cush. (Mass.) 475, 48 Mass. 308, 46 N. E. E. 1063, 60 Am. Am. D. 616 and note. 188 ACTIOXS AGAINST CAKKTKR8 OF PASSENGERS. §§ 42;i424 of goods. If exemplary or punitive damages are desired th.» declaration must be in case for the. tort of the carrier. '■i. The Pleadings. i 423. Special damages because of the plantiff's staii..n in life, business, or relation to membei-s of a d.-pi-ndent family, must be specially pleaded. But if an injury be set forth injuries naturally and proximately flowing from it nee. 418, vania Railroad Co., 64 Pa. St. 225, note; Philadeli.hia etc. Railroad Co. 3 Am. R. 581; Hawkins v. Front v. Anderson, 72 .Mil. 519. 20 All. R. Street Cable Railroad Co., 3 Wash. 2. 20 Am. St. R. 490. n..to: Ala- 592, 28 Pac. E. 1021, 28 Am. St. R. bama Great Southern Railroad Vo. 72; Spellman v. Lincoln Rapid v. Frazicr. 93 Ala. 45. 9 So. R. 303. Transit Co., 36 Xeb. 890, 55 X. W. 30 Am. St. R. 28 and note at |Mig» R. 270, 38 Am. St. R. 753; Louis- 40, see al-so note to 43 Am. D. 363. 189 §§ 425-426 01'' ACTIONS against carkieks. 5. The Damages. I 425. Compensation for the injury is the measure of dam- ages to a passenger who has suffered from the negligence or wrongful act of the carrier. This includes inconvenience, loss of time, pecuniary loss, medical expenses, and pain and suf- fering of mind and body, past and also future, if such future suffering seems reasonably inevitable. Future damages caused by diminution of earning power, or in case of death, earnings durmg the probable duration of life, are properly considered as well as the number and sta- tion of those dependent on the deceased. But all damages must be the natural and proximate conse- quence of the injury. "Whether sickness and disease follow- ing the injury are so caused by it as to be within the rule of proximate cause depends partly on the circumstances and partly on the jurisdiction where the case is tried. Some courts are more liberal than others in their view of what is to be included as a proximate result. § 426. Damages for wrongful ejection from the train, or for rightful ejection with unnecessary force or in an improper § 425. Goodhart v. Pennsylvania Georgia Eailroad Co. v. Hayden, Railroad Co., 177 Pa. St. 1, 35 Atl. R 71 Ga., 518, 51 Am. R. 274; McHugh 191, 55 Am. St. R. 705 ; [— ] Filer v. Schlosser, 159 Pa. St. 480, 28 Atl. V. New York Central Rai4road Co., E. 291, 39 Am. St. R. 699; Dwyer 49 N. Y. 47, 10 Am. R. 327; Mc- v. Chicago etc. Railway Co., 84 la. Donald v. Chicago & North "Western 479, 51 N. W. R. 244, 35 Am. St. R. Railway Co., 26 Iowa 124, 96 Am. D. 322 ; Morgan v. Southern Pacific Co., 114; Brown v. Chicago, Milwaukee 95 Cal. 510, 30 Pac. R. 603, 29 Am. & St. Paul Railway Co., 54 Wis. St. R. 143; Pennsylvania Railroad 342, 11 N. W. R. 356, 41 Am. R. 41; Co. v. Books, 57 Pa. St. 339, 98 Am. Barker v. Ohio River Railroad Co., D. 229; Hansley v. Jamesville etc. 51 W. Va. 423, 41 S. E. R. 148, 90 Railroad Co., 115 N. C. 602, 20 S. Am. St. R. 808; Louisville, New E. R. 528, 44 Am. St. R. 474; Gulf, Albany & Chicago Railway Co. v. Colorado & Santa Fe Railway Co. Snyder, 117 Ind. 435, 20 N, E. R. v. Hayter, 93 Tex. 239, 54 S. W. E. 284, 10 Am. St. R. 60; Terre Haute 944, 77 Am. St. R. 856; Hawkins v. etc. Railroad Co. v. Buck, 96 Ind. Front Street Cable Co., 3 Wash. 592, 346, 49 Am. R. 168; Turner v. Great 28 Pac. R. 1021, 28 Am. St. R. 72; Northern Railway Co., 15 Wash. 213, see also the extended note to 85 46 Pac. R. 243, 55 Am. St. R. 883; Am. St. R. 835 and 70 Am. St. R. [ — J Louisville etc. Railway Co. v. 669. Goodykoontz, 119 Ind. Ill, 21 N. E. § 426. Kansas City Railroad Co. R. 472, 12 Am. St. R. 371, note; v. Foster, 134 Ala. 244, 32 S. R. 190 ACTIONS AGAINST (AKKIEKS OF PASSENGERS. §427 manner, include compensation for expenses actually incurred for the loss of time and interruption of bu.siuess.'for bodily suffering and for mental pain caused by the injury to hu-ViusH, annoyance, vexation and humiliation resulting from the in! dignity. If the ejection has been accompanied by insulting treatment or by wilful, wanton or malicious conduct on the part of the carrier's servants, such conduct may properly be conHidered as aggravating the injury and increasing the (laniatr.-s. § 427. Damages for mental suffering or fright alone. neither accompanied nor followed by physical injury are never allowed. On the other hand if physical injuries are accom- panied by mental pain or fright the damag.-s may cover the consequences of the mental as Avell as of the physical suffer- 773, 92 Am. St. E. 25; Cleveland etc. & Pacific- Railroad Co., 15 Miun. 49. Railway Co. v. Kinsley, 27 Ind. 2 Am. R. 1(»2. App. 135, 60 N. E. E. 169, 87 Am. § 427. Mittlicil v. RochciJtor Rail- St. E. 245; [ — ] Forsee v. Alabama way Co., 151 N. Y. 107, 45 N. E. Great Southern Railroad Co., 63 K. 354, 56 Am. St. R. 604- Miss. 66, 56 Am. E. 801; Hot |— ] Spade v. Lynu & Boston Rail- Springs Eailroad Co. v. Deloney, 65 r(-ad Co., 168 Mass. 2S5, 47 N. E. Ark. 177, 45 S. W. E. 351, 67 Am. R. 88, 60 Am. St. R. 393. 172 .Masu. St. E. 913 ; Gillingham v. Ohio Eiver 488, 52 N. E. R. 747, 70 Am. St. R. Eailroad Co., 35 W. Va. 588, 14 S. E. 298; Turner v. Groat Northern Kail- E. 243, 29 Am. St. E. 827; Jefferson- uay Co., 15 Wash. 213, 46 Pac. R, villa Eailroad Co. v. Eogers, 28 Ind. 243, 55 Am. St. R. SS3; Goodhart 1, 92 Am. D. 276; Duggan v. Balti- v. Pennsylvania Railroad Co., 177 more & Ohio Eailroad Co., 159 Pa. Pa. St. 1. 35 Atl. R. 191. 55 Am. 8t. St. 248, 28 Atl. E. 182, 39 Am. St. R. 705; .Morgan v. Southern Parific E. 672; Georgia Eailroad & Banking Co., 95 Cal. 510, 30 Pac, R. 603, Co. v. Eskew, 86 Ga. 641, 12 S. E. 29 Am. St. R. 143; Hot Sprinff* E. 1061, 22 Am. St. E. 490; Eailroad Co. v. Deloney. 65 Ark. 177, [— ] Carsten v. Northern Pacific 45 S. W. R. 351. 67 Am. St. R. 913; Eailroad Co., 44 Minn. 454, 47 N. W. Contra, Gulf. Colorado & Santa Fe E. 49, 20 Am. St. E. 589 ; Hansley Eailway Co. v. Hayter, 93 Tex. 239, V. Jamesville etc. Eailroad Co., 115 54 S. W. R. 944. 77 Am. St. R. K56; N. C. 602, 20 S. E. R. 528, 44 Am. sec note at p. 859. Triyp v. St. Ix)uis St. R. 474; Gorman v. Southern Pa- dc Railroad Co.. 74 .Mo. 147. 41 cific Co., 97 Cal. 1, 31 Pac R. 1112, Am. R. .305; (—1 Mentror v. \V«l- 33 Am. St. R. 157; Pittsburg etc. ern Union Telegraph Co., 93 la. Eailway Co. v. Reynolds, 55 Ohio 752, 62 N. W. R. 1, 57 Am. St. R. St. 370, 45 N. E. R. 712, 60 Am. 294; Wadsworth v. Western I'nion St. E. 706; Philadelphia etc. Eail- Tolegrai)h Co.. MS Tcnn. 695. 8 8. road Co. v. Larkin, 47 Md. 155, 28 W. R. 574. 6 Am. St. R. 864; we Am. R. 4-12; Du Lauraus v. St. Paul post, sec. 437. 191 §§ 428-429 OF ACTIONS AGAINST CAKKIEKS. ' ing. All are part of the injury. But by the weight of author- ity there can be no recovery for fright, not accompanied but followed by physical injuries, both because such physical injuries are regarded as too remote and uncertain to be a proper element of damage, and because allowance of them would open the door to a flood of litigation over imaginary and fictitious claims. Some of the courts have adopted a broader rule and have allowed damages even in this last case. § 428. Exemplary damages.— The cases can not be recon- ciled as to the circumstances that justify, in addition to com- pensatory damages, an allowance by way of "smart money." It is a general rule that for the wanton, wilful, malicious or recklessly negligent conduct of the carrier, or of his agents or servants in the course of their employment, the law allows not only damages by way of compensation for the injury but also exemplary damages as a salutary example to induce upon the part of carriers that regard for human life and personal safety which the law so highly regards and so carefully pro- tects. C. Actions Against Carriers of Intelligence. (/. Carriers of the Mails. § 429. No action can be maintained against the Post Office Department, as the government can not be sued, and a private person has no action against a contractor for carrying the mail, since he is employed and owes his duty to the govern- ment to which alone he is responsible (§ 379). § 428. Goddard v. Grand Trunk 123 Pa. St. 140, 16 Atl. K. 607, 10 Eailway Co., 57 Me. 202, 2 Am. K. Am. St. E. 517, note; Pullman 39; Spellman v. Richmond & Dan- Palace Car Co. v. Eeed, 75 111. 125, ville Eailroad Co., 35 S. C. 475, 14 S. 20 Am. E. 232 ; Hansley v. James- E. R. 947, 28 Am. St. E. 858 and ex- ville etc. Eailroad Co., 115 N. C. tended note; Gillingham v. Ohio Eiv- G02, 20 S. E. E. 528, 44 Am. St. E. er & Eailroad Co., 35 W. Va. 588, 474; Barker v. Ohio Eiver Eailroad 14 S. E. E. 243, 29 Am. St. E. 827 ; Co., 51 W. Va. 423, 41 S. E. E. Frink v. Coe, 4 G. Green (Iowa) 148, 90 Am. St. E. 808; Phlladel- 555, 61 Am. D. 141; Gorman v. phia etc. Eailroad Co. v. Larkin, 47 Southern Pacific Co., 97 Cal. 1, 31 Md. 155, 28 Am. E. 442, see also Pac. E. 1112, 33 Am. St. E. 157; note to 59 Am. St. E. 602. Pittsburg etc. Eailway Co. v. Lyon, 192 ACTIONS AGAINST CARRIERS OF IXTELLIGENCE. |§ 430-431 6. Telegraph and Telephone Companies. 1. The Parties to the Action. 2. Th( Form of the Action. § 430. Contract or tort action. — Actions again.st telejfraph companies may be on the contract to transmit thr nn-ssasre, or in tort for breach of the duty the company owes tlje public to serve all impartially and faithfully. Actions against tele- phone companies as carriers usually arise over refusal to fur- nish service. The use of mandamus to compel the telephone company to fulfill its public function in such cases has already been sufficiently explained (§ 401). § 431. An action on the contract may be maintained by the sender, for he, as principal or agent, makes the contract with the company and may hold it to a faithful performance of the agreement. Moreover any one for whose benefit the sender made the contract is in effect a principal, disclosed or undis- closed, and as such is a proper party plaintiff in an action on the contract made by his agent on his behalf. It has been said, with less reason, that the telegraph com- pany is the agent of the party who selects that means of com- munication. If therefore the sendee has so selected the tele- graph company then the company is liable to him as an agent to his principal. And by some courts this principle is ex- tended to cases generally and it is said that the addressee who has suffered actual damage may sue the telegraph company as his agent. §431. [—1 Harkness v. West- R. 23; Shingleur v. Western Union em Union Telegraph Co., 73 Iowa Telegraph Co., 72 Miss. 1030, 18 So. 190, 34 N. W. R. 811, 5 Am. St. R. R. 425, 48 Am. St. R. 604 ; Cnrland 672; Western Union Telegraph Co. v. Western Union Telegraph Co., V. Adams, 75 Tex. 531, 12 S. W. US Mich. 369, 76 N. W. R. 762. R. 857, 16 Am. St. R. 920; Wads- 74 Am. St. R. .394; (-) Montxor worth V. Western Union Telegraph v. Western Union Telegraph Co., 93 Co., 86 Tenn. 695, 8 S. W. R. 574, Iowa 752, 62 N. W. R. 1, 57 Am. 6 Am. St. R. 864; Western Union St. R. 294; Coit v. Western Union Telegraph Co. v. Henderson, 89 Ala. Telegraph Co., 130 Cal. 657. 63 510, 7 So. R. 419, 18 Am. St. R. Pac. R. 83, 80 Am. St. R. 153; But- 148. [_] Ayer v. Western Union ler v. Western Union Telcgmpb Co., Telegraph Co., 79 Me. 493, 10 Atl. 62 S. C. 222, 40 S. E. R. 162. 89 Am. R. 495, 1 Am. St. R. 353; Western St. R. 893; Unite*! Stated TcIcRmph Union Telegraph Co. v. Wilson, 93 Co. v. Gilderslevo. 29 Md. Ala. 32, 9 So. R. 414, 30 Am. St. Am. D. .'>19. 13 \\r.] §§432-434 OF ACTIONS AGAINST CAEKIEES. In England the addressee is held not to be a party to the contract, and therefore he can not sue upon it, but in this country that view has never prevailed. There is so great diversity of view as to the ground upon which an action can be brought that general statements are difficult, but the above seem to be the most rational explanations of the contract rela- tions of the parties. § 432. A tort action may be maintained by any one to whom the company owes the duty of correct transmission and prompt delivery. When, therefore, it undertakes to deliver a message to an addressee it is liable for legal injuries to him, and also to the sender, and to any third party who is the real party in interest, for the faithful performance of the duty undertaken. But this does not extend to third parties who may or may not have an interest in the message, who are strangers to the company, and to whom it owes no duty; nor does it extend to any one who has suffered no legal wrong. 3. The Pleadings. § 433. Governed by general rules. — No special mention of the pleadings in actions against telegraph companies is called for. The general rules of pleading control. 4. The Evidence. % 434. Burden of proof.— Error or delay in transmitting a message raises a presumption of negligence which casts upon the company the burden of proving that the fault was due §432. Western Union Telegraph R. 153; Butler v. Western Union Co. V. Dubois, 128 111. 248, 21 N. E. Telegraph Co., 62 S. C. 222, 40 E. 4, 15 Am. St. E. 109; [— ] Webbe S. E. E. 162, 89 Am. St. R. 893; V Western Union Telegraph Co., Young v. Western Union Telegraph 169 111. 610, 48 N. E. E. 670, 61 Co., 107 N. C. 370, 11 S. E. E. 1044, Am. St. E. 207; Gray v. Telegraph 22 Am. St. E. 883; Clay v. Western Co., 108 Tenn. 39, 64 S. W. E. 1063, Union Telegraph Co., 81 Ga. 285, 91 Am. St. E. 706; Pegram v. West- 6 S. E. E. 813, 12 Am. St. E. 316; ern Union Telegraph Co., 100 N. C. Shingleur v. Western Union Tele- 28, 6 S. E. E. 770, 6 Am. St. E. graph Co., 72 Miss. 1030, 18 So. E. .5.^7; Western Union Telegraph Co. 425, 48 Am. St. E. 604. V. Henderson, 89 Ala. 510, 7 So. §434. [— ] Ayer v. Western R. 419, 18 Am. St. R. 148; Coit v. Union Telegraph Co., 79 Me. 493, Western Union Telegraph Co., 130 10 Atl. R. 495, 1 Am. St. R. 353; Cal. 657, 63 Pac. R. 83, 80 Am. St. |— ] Telegraph Co. v. Griswolcl, 37 194 ACTIONS AGAINST (JAREIERS OF IXTELLrcl. .^ - to causes beyond its control, or of showing that it exercise.1 all proper care and diligence commensurate with the imd-T- taking. Some cases hold that, when the company assumes liabflily for errors only in case the message is repeated, that in the case of unrepeated messages the burden is nn th<- plaintiff to show that the errors were due to negligence. In such ease a mere error is not prima facie evidence of negligent transmiwioii. 5. TJie Damages. § 435. The measure of damages lor loss due to the negli- gence of the company is the damage sustained. This may include the price paid for the message and any other inj:-.- which flowed proximately and naturally from the and which is certain and not speculative and contingent m its nature (sec. 416). Exemplary damages may be added where malice or aggravating circumstances are shown. Illustrations of damages allowed because of a mistake in the telegram or a delay in its transmission are : loss of time or expense incurred, loss of a claim against a debtor, Ioks of an opportunity to buy or sell property, purchase at an in- creased or a sale at a decreased price, and loss or destruction Ohio St. 301, 41 Am. R. 500; 433, 1 Am. R. 285; Aiken v. West- [ — ] Harkness v. Western Union tern Union Telegraph Co., 69 lown. Telegraph Co., 73 la. 190, 34 N. W. 31, 28 N. W. R. 419, 58 Am. R. 210; R, 811, 5 Am. St. R. 672; Fowler v. Western Union Telegraph Co. v. Western Union Telegraph Co., 80 Neill, 57 Tex. 283, 44 Am. R. 5*<9; Me. 381, 15 Atl. R. 29, 6 Am. St. Womack v. Western Union Telo- R. 211; Western Union Telegraph graph Co., 58 Tex. 17(>, 44 .\ni, R. Co. V. Crall, 38 Kan. 679, 17 Pae. R. G14. 309, 5 Am. St. R. 795; Western §435. Smith v. Western Union Union Telegraph Co. v. Dubois, 128 Telegraph Co., 83 Ky. 104, 4 Am. 111. 248, 21 N. E. R. 4, 15 Am. St. St. R. 126; Pegram v. Wentom R. 109; Reed v. Western Union Tele- Union Telegraph Co.. lOn .\. C. 2S. graph Co., 135 Mo. 661, 37 S. W. R. 6 S. E. R. 770, 6 Am. St. R. r>.^7 : 904, 58 Am. St. R. 609; Hendricks |— 1 Ayer v. Western Tnion T.'L- V. Western Union Telegraph Co., graph Co.. 79 Mo. 493. 10 AtJ. R. 126 N. C. 304, 78 Am. St. R. 658; -J95, 1 Am. St. R. 353: | — 1 I' Tyler v. Western Union Telegraph ness v. Western Union ToIcKrapt Co., 60 111. 421, 14 Am. R. 38. 73 Iowa 190, 34 N. W. R. Hll. S Contra: United States Telegraph Am. St. R. 672; Western Uniou TH- Co. V. Gildersleeve, 29 Md. 232, 96 ograph Co. v. Reynol.ls. 77 Viu 173. Am. D. 519; Sweetland v. Illinois & 46 Am. R. 715; Squire v. W. ^•. Mississippi Telegraph Co., 27 Iowa Tnion Telegraph Co., 9S Ma*v 11)3 §436 OF ACTIONS AGAINST CARRIERS. of property. But damages cannot be recovered for a failure to gain possible, but uncertain profits. It is always the duty of the injured party to use all reasonable diligence to avoid or lessen the damages. § 436. Duty to disclose importance of message. — The de- cisions are sc^uarely in conflict as to the liability for loss when the company was not informed of the special importance of the message and of the loss that may result for default in its proper transmission and delivery. The authorities agree that the loss must result naturally, and in the usual course of busi- ness from failure to send or deliver the dispatch correctly or promptly. But they differ as to what results are natural and in the usual course of business. One line of decisions holds that there is a presumption when the parties resort to the telegraph that they have mat- 93 Am. D. 157; Tyler v. Western Union Telegraph Co., 60 111. 421, 14 Am. R. 38; Manvillc v. Western Union Telegraph Co., 37 Iowa 214, 18 Am. R. 8; McPeek v. Western Union Telegraph Co., 107 Iowa , 356, 78 N, W. R. 63, 70 Am. St. R. 205; Barnes v. Western Union Telegraph Co., 24 Nev. 125, 50 Pae. R. 438, 77 Am. St. R. 791 ; Western Union Tel- egraph Co. V. Dubois, 128' 111. 248, 21 N. E. R. 4, 15 Am. St. R. 109; Reed v. Western Union Telegraph Co., 135 Mo. 661, 37 S. W. R. 904, 58 Am. St. R. 609 ; Pepper v. Telegraph Co., 87 Tenn. 554, 11 S. W. R. 783, 10 Am. St. R. 699; Western Union Telegraph Co. v. Sheffield, 71 Tex. 570, 10 S. W. R. 752, 10 Am. St. R. 790; Alexander v. Western Union Telegraph Co., 66 Miss. 161, 5 So. K. 397, 14 Am. St. R. 556; Gulf etc. Railway Co. v. Loonie, 82 Tex. 323, 18 S. W. R. 221, 27 Am. St. R. 891; Clay V. Western Union Telegraph Co., 81 Ga. 285, 6 S. E. R. 813, 12 Am. St. R. 316; [— ] True v. Inter- national Telegraph Co., 60 Me. 9, 11 Am. R. 156; Western Union Tele- graph Co. V. Graham, 1 Colo. 230, 9 Am. R. 136; Shingleur v. Western Union Telegraph Co., 72 Miss. 1030, 18 So. R. 425, 48 Am. St. R. 604. As to a telephone company see Cum- berland Telephone and Telegraph Co, V. Hurdon, — Ky. — , 60 L. R. A. 849. § 436. The following cases illus- trate the first rule: Pepper v. Tele- graph Co., 87 Tenn. 554, 11 S. W. R. 783, 10 Am. St. R. 699; Western Union Telegraph Co. v. Edsall, 74 Tex. 329, 12 S. W. R. 41, 15 Am. St. R. 835; Western Union Tele- graph Co. V. Adams, 75 Tex. 531, 12 S. W. R. 857, 16 Am. St. R. 920; Postal Telegraph Co. v. Lathrop, 131 111. 575, 23 N. E. R. 583, 19 Am. St. R. 55 ; Hendershott v. Western Union Telegraph Co., 106 Iowa 529, 76 N. W. R. 828, 68 Am. St. R. 313 ; Davis V. Western Union Telegraph Co., 107 Ky. 527, 54 S. W. R. 849, 92 Am. St. R. 371 ; [— ] True v. In- ternational Telegraph Co., 60 Me. 9, 11 Am. R. 156; Tyler v. Western Union Telegraph Co., 60 111. 421, 14 Am. R. 38; Western Union Tele- graph Co. V. Reynolds, 77 Va. 173, 46 Am, R. 715, note; Daughtery v. 196 THE ACTION AND DAMAGES. §437 ters of importance, especially if th<' message shows on its face that it relates to a commercial transaction or other im- portant matter. The unimportant mt'ssage is to be rfgartled as the exception and not the rule, and if the coiupany d'Mreg fuller information it should seek it. But the weight of authority is that, if the im-s.sa{4L- i.s in cipher or does not on its face show that it relates to trans- actions of importance, the rule of Hadley v. Baxendale ap- plies, and the company is not liable for special losses unb»ii8 their agent was informed of the importance of the luesKatfe when it was offered for transmission. § 437. Damages for mental suffering and injury to feeling? resulting from default in delivering a telegram, by the weiyhl of authority, can not be recovered, unless there is other Bub- stantial injury which is aggravated by the sufTerings of the mind. The rule has already been stated (see. 427 i as applitnl to carriers of passengers. But there are many ca.ses, and the American Union Telegraph Co., 75 Ala. 168, 51 Am. R. 435; Western Union Telegraph Co. v. Hyer, 22 Fla. 637, 1 Am. St. R. 222. Contra, Smith v. Western Union Telegraph Co., 83 Ky. 104, 4 Am. St. R. 126; f — ] Fergusson v. Anglo- American Telegraph Co., 178 Pa. St. 377, 35 Atl. R. 979, 56 Am. St. R. 770; Baldwin v. United States Tele- graph Co., 45 N. Y. 744, 6 Am. R. 165; Candee v. Western Union Tele- graph Co., 34 Wis. 471, 17 Am. R. 452; Hibbard v. Western Union Telegraph Co., 33 Wis. 558, 14 Am. R, 775; United States Telegraph Co. V. Gildersleeve, 29 Md. 232, 96 Am. D. 519; Western Union Telegraph Co. V. Wilson, 32 Fla. 527, 37 Am. St. R. 125 (overruling Hyer case, supra). §437. For liability: [— ] Ment- zer V. Western Union Tele- graph Co., 93 Iowa 752, 62 N. W. R. 1, 57 Am. St. R. 294; [_] Western Union Telegraph Co. V. Van Cleave, 107 Ky. 464, 54 S. W. K. 827, 92 Am. St. R. 366; Wadswortli v. Western Union Tele- graph Co., 86 Tenn. 695, 8 S. W. R. 574, 6 Am. 8t. R. 864; Ciraliam V. Western Union Telegraph Co. (1903), La. Ann. 34 a R. 91 ; Western Union Telegraph Co. V. Cooper, 71 Tex. 507, 9 8. W. R. 598, 10 Am. St. R. 772, and ex- tended note; Western Union Tele- graph Co. V. Nations, 82 Tex. 539, ]g S. W. R. 709, 27 Am. St. R. 918, note; Western Union Telegraph Co. V. Wilson, 93 Ala. 32, 9 So. H. 414, 30 Am. St. R. 23. (Compare West- ern Union Telegraph Co. v. Ayer«, 131 Ala. 391, 31 S. R. 78, 90 Am. 8t. R. 92.) Butler v. Western Union Telegraph Co., 62 S. C. 222. 40 8. E. R 162, 89 Am. St. R. 893. note; Young V. Western Union Telegraph Co., 107 X. C. 370, 11 S. E. R. 1044, 22 Am. St. H. «S3. Contra, Francis v. Western Union Telegraph Co., .IS Minn. 252. 59 N. W. R. 1078, 49 Am. St. R. 507; 1 — 1 West V. Western Union TcJ«'- graph Co., 39 Kan. 93. 17 Par. R, S07, 7 Am. St. R. 530; Chapman 197 § 437 OF ACTIONS AGAINST CARRIERS. number is growing, in which it is held that the very purpose of a telegram may be a mere matter of feelings, and that as the company undertakes a duty with referenee to such feelings it is justly chargeable with the direct and proximate results of failure faithfully to perform such duty. The most serious objection to such an extension of the rule is the uncertainty of the damage, the opportunity for fraud and the encouragement to litigation. Though the weight of authority is still against it, the modern tendency is marked toward the broader view which makes the company liable for the breach according to the nature of the contract, and which often furnishes the only basis for damages in cases where the company has been guilty of the grossest dereliction of duty. V. Western Union Telegraph Co., 88 egraph Co. v. Henderson, 89 Ala. Ga. 763, 15 S. E. R. 901, 30 Am. 510, 7 So. R. 419, 18 Am. St. R. St. R. 183; Morton v. Western 148. In many of the states the Union Telegraph Co., 53 Ohio St. question has not as yet been passed 431, 41 N. E. R. 689, 53 Am. St. upon with reference to telegraph R. 648; see also Western Union Tel- companies. r 198 Tr^T... ^^^ LIBRARY UNIVERSITY OF CALIPORNIS