§ 204. In actions against carriers | § 214. Facts

of goods, same law gov

erns whether the form of
action is assumpsit or
tort.

205. In actions for personal in-
juries against carriers of
passengers, lex loci delicti

Sec. 104. (81f.) In general.-In considering the question. of the carrier's liability in relation to the goods, two questions become important at the outset: (1) Have the goods been de

livered to the carrier for transportation; and (2) What evidence, receipt or contract exists or is necessary in regard to such delivery. These two questions form the subject of the present chapter and will be separately considered.

I. OF DELIVERY TO THE CARRIER.

Sec. 105. ($ 82.) The delivery must be complete.-The duties and obligations of the common carrier with respect to the goods commence with their delivery to him; and this delivery must be complete, so as to put upon him the exclusive duty of seeing to their safety. The law will not divide the duty or the obligation between the carrier and the owner of the goods. It must rest entirely upon the one or the other; and until it has become imposed upon the carrier by a delivery and acceptance, he cannot be held responsible for them. They must be delivered to the carrier himself, or to some agent of his, authorized to receive them on his behalf. The mere deposit of them in the yard of an inn from which the carrier starts, without leaving them in charge of some servant of the carrier, is not sufficient. Nor will it be enough for the owner to put them into the carrier's vehicle without his knowledge. They must be put into the actual custody of the carrier or of his servants. Thus, where the owner of the goods, having previously given notice to a railroad agent of his intention to send the goods. and having paid him the freight, sent them by his servant to the depot, where they were put upon the railroad platform and the attention of the baggageman called to them, but no notice given to the freight agent, it was held that there had been no delivery, and that the railroad company was not liable for damage done to them by a passing train. So where a per

1. Brind v. Dale, 8 Car. & P. 207; Railway Co. v. Murphy, 60 Ark. 333, 30 S. W. Rep. 419, 46 Am. St. Rep. 202, citing Hutchinson on Carr.; Railway Co. v. McFadden, 154 U. S. 155, 14 Sup. Ct. 990, 38 L. Ed. 944, citing Hutchinson on Carr.

2. Selway v. Holloway, 1 Ld. Raym. 46; Buckman v. Levi, 3 Camp. 414.

3. Leigh v. Smith, 1 Car. & P. 638.

4. Grosvenor v. The Railroad, 39 N. Y. 34.

son intending to take the train, if certain funds arrived in time, went to the depot and deposited her trunk and box on the platform, but, when the train arrived, instructed the company's servants not to put them on the train as she did not intend to take it, and went away after asking permission to leave. the things there till she got ready to go, it was held that the trunk and box had not been delivered to the railroad company for carriage, and that the company was therefore not liable as a common carrier for their loss. So where hogs which the owner desired to have transported were, when the train arrived by which he wished them to go, still in a private yard and had yet to be loaded, counted and receipted for, they were held not to be so far delivered to the railroad company as to make it liable for delay in shipping. So goods stored along the line awaiting shipment, where the owner is to load them when he can get the necessary cars, are not completely delivered to the railroad company until they are so loaded and ready for shipment. And cotton, still in the possession of a compress company, for which the railroad company has as yet given no bill of lading, and of which it has neither the actual or constructive possession nor the custody or control, is not yet delivered to the railroad company for carriage, and the latter is not liable as a carrier to the owner for its loss, though it has not furnished cars for its transportation as rapidly as it had agreed with the compress company to do.s

Sec. 106. (§ 83.) Delivery may be made to carrier's agent. -Where the carrier places a person in charge of the business at a certain depot, and holds him out to the public as being qualified with the requisite authority to receive goods for shipment, a delivery to, and an acceptance by him of the goods,

5. Little Rock, etc., R'y Co. v. Hunter, 42 Ark. 200.

6. Frazier v. Railroad Co., 48 Iowa, 571.

Ct. Rep. 554; Arthur v. Railway
Co., 139 Fed. 127, citing Edwards
& Co. v. Railroad Co. (Tex. Civ.
App.), 81 S. W. 800; Martin v.

7. Wilson v. Railroad Co., 82 Ga. Railway Co., 55 Ark. 510, 19 S. W.

386.

8. St. Louis, etc., R'y Co. v. Insurance Co., 139 U. S. 223, 11 Sup.

Rep. 314. See, also, Atlantic Natl.
Bank r. Railway, 106 Fed. 623.

will be a delivery to the carrier. In the case of Rogers v. The Railroad, the owner of a trunk sent it to the defendants' depot by an expressman, who placed it within the inclosure of the depot beside the baggage crate, which was locked, and then went into the ticket-office and informed the ticket agent of the fact, who replied "all right;" and it was held that the case should have gone to the jury upon the question of delivery, the court saying that it was enough to establish a delivery, in the first instance, to prove that a person acting as the agent of the company, received and accepted the property for transportation, even if there should be, in fact, another person having charge of the business of receiving freight. "The ticket agent," said the court, "was apparently in charge of the depot. The company which sanctions his employment and thus holds him out to the world as its agent is not at liberty to repudiate his acts.'10

Sec. 107. (§ 84.) Not sufficient when made to agent not authorized to receive it.-A delivery, however, to an employe whose employment is such as to negative a reasonable belief in the owner's mind that he has authority to receive goods for shipment will not be a delivery to the carrier, unless it can be shown that such an employe was, in fact, authorized to receive the goods. Thus, delivery to one of the crew or deck hands of a steamboat is not good delivery although made upon the boat, and will not bind the owner of the boat as a carrier. Where the goods were taken on board and put down by a porter in a certain spot by direction of one who was a deck hand employed to sweep the deck, and it was proven that the clerk of the boat was the only authorized person to receive freight and give receipts for it, a majority of the court were of the opinion

9. 2 Lans. 269.

10. A passenger upon a railroad train is justified in regarding the man whom he sees handling the baggage as the agent of the company and in giving him directions as to the disposition to be made of his baggage. Quimit v. Henshaw,

35 Vt. 605. So a delivery to a person apparently employed in a freight office, who receives and receipts for the goods in the presence and with the knowledge of the agent, who does not object, is a good delivery to the carrier. Harrell v. Railroad, 106 N. C. 258.

that, as the deck hand was not the agent of the boat for the purpose of receiving freight, the owners had incurred no liability. But some of the judges were of a different opinion, upon the ground that the porter had a right to presume that the deck hand had been left in charge by the proper officers of the boat.11 And, in another case, it was held that to make a delivery to a deck hand good as against the owners of a boat, it must be shown that he was authorized to receive freight, or that it was delivered to him in pursuance of some special contract or usage.12

Sec. 108. (§ 84a.) Delivery to carrier by agent of shipper. -The delivery to the carrier or his agent may be made not only by the shipper in person, but also by his authorized agent. Where the owner of goods places them in the hands of an agent to secure their transportation by a carrier, the latter, in the absence of a known limitation upon the agent's authority, is justified in considering the agent authorized to exercise all the powers necessary to effect the purpose of the agency,13 and the acts of the agent in that respect will be binding upon the principal, as in giving directions as to the time or manner of shipment or the terms and conditions upon which the transportation is to be undertaken.14

Sec. 109. (§ 85.) No delivery when owner retains custody -Passenger retaining custody of baggage. If the owner, traveling as the carrier's passenger, retain the custody of his baggage instead of delivering it to the carrier or his servant, he thereby assumes the responsibility and cannot hold the carrier liable for the loss of it, unless the loss should occur from

11. Trowbridge v. Chapin, 23 Railway, 5 H. & N. 867; Squire v. Conn. 595.

12. Ford v. Mitchell, 21 Ind. 54. And see Leigh v. Smith, 1 Car. & P 638, and post, §§ 115-118.

Railroad, 98 Mass. 239; York Co. v.
Railroad, 3 Wall. 113; Jennings v.
Railway, 52 Hun. 227.

In Hayes v. Campbell, 63 Cal.

13. See Mechem on Agency, § 143, it is held that knowledge on 311.

14. See post, § 457; Nelson v. Railroad, 48 N. Y. 498; London v. Railway, 7 H. & N. 600; Lewis v.

the part of the carrier that the person effecting the carriage was but an agent for others was sufficient to put the carrier on inquiry