the negligence or fault of the carrier; in which event he would be liable, not as a common carrier, but as an ordinary bailee for hire. As where the passenger placed his overcoat upon his seat in the cars instead of delivering it to a servant of the company, and forgot to take it with him when he left the car, and it was stolen, it was held that the railway company was not liable for the loss.15 Or if, being a passenger upon a steamboat, he retain the possession of his baggage, the carrier cannot be made responsible for the loss.16 Sec. 110. (§ 86.) Same subject. In such cases the owner so far from having made delivery to the carrier, has purposely withheld it. He has not trusted the carrier; and where there has been no trust reposed there can be no liability, for trust is the very basis of the liability; and it has been expressly held that if the owner of goods especially undertake to watch them, and, refusing to place confidence in the carrier, send his own servant along in charge of them, and the carrier is thereby induced to neglect his usual precaution, this negatives a bailment and no liability will exist.17 But the owner may accompany the goods and have an eye upon them, or he may send his servant with them to look after them; but the carrier must have the entire custody and control of them. Otherwise he will not be liable for their safety.18 Sec. 111. (§ 87.) Place at which delivery must be made.But it is not necessary in all cases to make the delivery to the carrier at the place appointed by him, or at his office or place of business, provided the delivery be made to a person who is authorized to receive the goods. Delivery to the agent of a in ascertaining the extent of the agent's powers, and that the owners could not be bound by a rate agreed upon with the agent in ex(ess of his authority. 15. Tower v. Railroad, 7 Hill, 47. 16. Cohen v. Frost, 2 Duer, 335. This subject of the liability of the carrier for the passenger's baggage will be more particularly treated of hereafter. Chapter 17. East India Company . Pullen, 2 Strange, 690. 18. Robinson v. Dunmore, 2 Bos. & P. 416; Hollister v. Nowlen, 19 Wend. 234; Willoughby v. Horridge, 74 Eng. C. L. R. 742; Brind v. Dale, 8 Car. & P. 207; Cohen . Frost, 2 Duer, 335. stage company has, consequently, been held good although not made at the office of the company.19 But delivery to the driver, not at the company's office and without notice to it and without its assent, has been held not to be a good delivery, the driver not being the authorized servant of the company for that purpose.20 It may be shown, however, that such was the usage known to the company and recognized by it.21 And the driver of a coach may make the company liable as a common carrier for the baggage of a passenger taken on anywhere upon the route. And where the company is a carrier of goods as well as of passengers, he may receive such goods for carriage at any point upon the route at which there is no office or agent; for, in the absence of express directions to the contrary known to the owner of the goods, the law will imply the authority. But the delivery, if made away from the office or place of business of an express company, must be made to an agent and not to an agent's assistant or clerk temporarily appointed by him. Such an assistant, it is said, may officiate for the agent at his office, and his receipt will be valid even in the absence of the agent, because that would be a delivery at the office or at the appointed place of business of the principal; but such a delivery out of the office or away from it would be unauthorized and would not bind the principal.22 Sec. 112. (88.) Must be for immediate transportation.The delivery must be to the carrier or his agent for immediate 19. Phillips v. Earle, 8 Pick. 182. 20. Blanchard v. Isaacs, 3 Barb. 388. 21. See post, § 115. 22. Cronkite v. Wells, 32 N. Y. 247. And see Southern Ex. Co. v. Newby, 36 Ga. 635. But in Witbeck v. Schuyler, 44 Barb. 469, delivery of a trunk to the captain of a steamboat was held sufficient, although the company to which the boat belonged had an agent in the same place, whose business it was to make contracts for freight, and although it was shown that the captain was only to navigate the boat, it not appearing that the shipper had knowledge of such an arrangement; and the decision was put upon the ground that the principal should be held responsible for the acts of his agent performed within the scope of the apparent authority which the principal allows him to assume. Where, however, a shipment was made upon a steamboat to be car transportation; for, if the goods are delivered to him to be stored by him for a certain time, or until the happening of a certain event, or until something further is done to prepare them for transportation, or until further crders are received. from the owner, the carrier becomes a mere depositary or bailee until the appointed time has expired or the other contingency. happened upon which the carriage is to commence, or until further orders have been given, as the case may be; for nothing could be more unjust than to permit the owner of the goods to impose upon a mere depositary or warehouseman, whether he has yet become related to the goods as carrier or not, the extremely hazardous responsibility of the common carrier so long as it might suit his interest or convenience to do so.23 But the moment such orders are given, or such other ried to the terminus of a distant railroad for further transportation, and it was lost by the steamboat, it was held in a suit against the road that the claim that the boat was the agent of the road must be distinctly proven, and it was intimated that it was doubtful whether the road could constitute an agency so foreign to the purposes of its incorporation. Missouri Coal Co. v. The Han., etc., R. R., 35 Mo. 84. 23. Mt. Vernon Co. v. Railroad Co., 29 Ala. 296, 8 So. Rep. 687; Barron v. Eldredge, 100 Mass. 455; O'Neill v. Railroad Co., 60 N. Y. 138; Basnight v. Railroad Co., 111 N. Car. 592, 16 S. E. Rep. 323; Dixon v. Railway Co., 110 Ga. 173, 35 S. E. Rep. 369; Schmidt v. Railway Co., 90 Wis. 504, 63 N. W. Rep. 1057; Railway Co. v. Bank, 112 Fed. 861, 50 C. C. A. 558, 56 L. R. A. 546; Railway Co. v. Riggs, 10 Kan. App. 578, 62 Pac. Rep. 712. Thus where an initial carrier places a loaded car on the sidetrack of a connecting carrier, with out notice to the latter, and withcut any mark of the name and address of the consignee, or any way-bill or shipping directions, the connecting carrier is only a bailee of the car, and its stringent liability as a common carrier does not attach until such way-bill or directions are given, or until it is informed to what place the car is to be forwarded and to whom delivered. Mt. Vernon Co. v. Railroad Co., supra. So where the goods are yet to be graded, classified, marked or set apart from others by the shipper. before they are ready for shipment, they cannot be deemed to be delivered to the carrier for car. riage. Iron Mt. Ry. Co. v. Knight, 122 U. S. 79. A common carrier is only liable as such for a passenger's baggage when delivered to it for immediate transportation. If it is brought to the depot for a certain train and on finding that it cannot go until a later train, the passenger leaves it at the depot for such later train, conditions are fulfilled, the carrier having accepted them with that understanding, his duties and responsibilities as carrier begin.24 Sec. 113. (§ 89.) Same subject-When liability begins.— But if the delivery be made at the warehouse or other place of business of the carrier for as early transportation as can be made in the course of the carrier's business, and subject only to such delays as may necessarily occur in awaiting the departure of trains, vessels, or other vehicles of transportation, or from the performance of prior engagements by him, he becomes, the moment the delivery is made, a carrier as to the goods, and his responsibility as such at once attaches.25 And although there be considerable delay and long storage of the goods until the carrier can secure cars in which to make the shipment, if he receives them solely for transportation, he at once assumes the liability of a common carrier; and it makes the railroad company is liable in the interim as a warehouseman only. Goodbar v. Railway Co., 53 Mo. App. 434. Where baggage which cannot be checked until a ticket is presented is given to the carrier on Saturday, and no ticket is presented until the following Monday, the carrier in the meantime is liable only as a warehouseman. Murray v. Steamship Co., 170 Mass. 166, 48 N. E. Rep. 1093, 64 Am. St. Rep. 290. 24. Railway Co. v. Murphy, 60 Ark. 333, 30 S. W. Rep. 419, 46 Am. St. Rep. 202, citing Hutchinson on Carr. See ante, § 72. 25. Clark v. Needles, 25 Pa. St. 338; Blossom v. Griffin, 3 Kern. 569; Wade v. Wheeler, 47 N. Y. 658; Michigan R. R. v. Shurtz, 7 Mich. 515; Gregory v. Railway Co., 46 Mo. App. 574, citing Hutchinson on Carr.; Railway Co. v. Murphy, 60 Ark. 333, 30 S. W. Rep. 419, 46 Am. St. Rep. 202, citing Hutchinson on Carr. Thus, where goods are delivered to a railroad company for transportation at its earliest convenience, nothing further remaining to be done in reference to them by the owner, the company is liable as a common carrier if the goods are burned before shipment. Grand Tower, etc., Co. v. Ullman, 89 III. 244. Where goods are properly marked for shipment and placed inside the carrier's freight house with the agreement on the part of the carrier's agent to ship them on the following morning, shipment being delayed until that time because no car is available, the company will be liable as a common carrier while the goods are so awaiting shipment. Meloche v. Railway Co., 116 Mich. 69, 74 N. W. Rep. 301. no difference, it has been said, whether the loading is to be performed by the shipper himself or by the carrier.26 And the general and well-settled rule is, that the liability of the comnon carrier commences whenever and as soon as the goods have been delivered to and accepted by him solely for transportation, although they may not be put immediately in itinere, but are, at first, for his own convenience and preparatory to the voyage or journey for which they are intended, temporarily deposited in his wharf or store room. In such cases, the deposit is a mere accessary to the carriage, and does not postpone his liability as common carrier to the time when they shall be actually put in motion towards their place of destination.27 And a delivery to the carrier with the name and address of the consignee marked upon the goods is, in the absence of some directions or agreement otherwise, equivalent to an express direction to transport them to such consignee at once; and the reception of the goods under such circumstances imposes upon him, immediately, the obligation to forward forthwith, and the responsibility of a common carrier,28 unless the habitual course of dealing between the parties has been otherwise. And so, after the relation of carrier to the goods has become established by their delivery to him for immediate transportation, it may be changed to that of warehouseman by subsequent orders by the owner to delay the forwarding of them. Thus, where the goods had been delivered to the railroad company for shipment, and they were loaded upon its cars for that purpose and were about to be started, but the 26. But when the cars or vehicles are furnished, and a delay in loading them is occasioned by the act of the shipper, and in the meantime the goods are destroyed through no fault of the carrier, the carrier will not be liable. London & L. Insurance Co. v. Railroad Co, 144 N. Y. 200, 39 N. E. Rep. 79, 43 Am. St. Rep. 752. na, 6 Gray, 539; Story on Bail. §§ 534, 536; Rogers v. Wheeler, 52 N. Y. 262; North German Lloyd S. S. Co. v. Bullen, 111 Ill. App. 426; Cooke v. Railroad Co., 57 Mo. App. 471, citing Hutchinson on Carr. 28. Witbeck v. Holland, 45 N. Y. 13; Shelton v. Merchants' Des. Trans. Co., 36 N. Y. S. C. 527; s. c., 59 N. Y. 258; Gregory v. 27. Fitchburg, etc., R. R. v. Han- Railway Co., supra. |