gency acquire a superinduced authority as agent from the very nature and necessity of the case, and his acts under such authority will be completely binding upon the owner of the goods. But this agency arises strictly from the necessity of the case, and if it can be shown not to have existed, all his acts, not relating to the purpose for which the goods have been bailed to him, will be nullities so far as their owner is concerned.27 But aside from such exceptional cases, he is a stranger to the goods except for the purposes of carriage and preservation according to his contract, and must be regarded as a contractor with the owner and not as his agent or servant. 28

Sec. 14. (§ 14.) Bailees liable for malfeasance and fraud.All bailees are liable for malfeasance and fraud under all circumstances. And as the policy of the law forbids all contracts to exonerate parties from liability for their own frauds or tortious acts to the injury of another, no carrier or other bailee will be permitted to provide, even by the most solemn stipulations, for his immunity from their consequences. Private carriers and other ordinary bailees upon whom the law casts no obligation to accept the bailment or to undertake the duty it imposes, but merely an obligation to execute the trust with proper diligence when it has been undertaken, may, however, protect themselves against accountability for negligence or misfeasance, as these consist only of omissions of diligence and not of acts implying moral turpitude or of positive wrong. Being free to engage in the particular service or not as they may please, they may do so upon whatever terms may be agreed upon with the other party short of irresponsibility for unfaithful or dishonest conduct.29 But common or public carriers upon whom the law imposes the duty of carrying for all who may apply according to their professions, are held more absolutely answerable for their defaults, and, according to the

27. Story on Agency, § 118.

Comstock, 204; 4 Selden, 375. 28. Wells v. The Nav. Co., 2 29. See post, § 40.

weight of authority in this country, as will hereafter be seen, will not be permitted to provide by contract or in any other manner against being made responsible for the negligence of themselves or their servants.30

30. See post, § 450.

Sec. 15. (15.) In general.-Bailees of goods for carriage, as has been already indicated, are of three kinds, viz.: carriers

without hire or reward, private carriers for hire, and common or public carriers for hire. Neither carriers without reward nor other private carriers are, as to their responsibility, in any wise distinguishable from other ordinary bailees; and, after what has been already said upon the general subject of bailments, but little difficulty will be found in ascertaining or applying the rules by which their responsibility is to be measured. Common carriers, however, in company with innkeepers, are exceptions in many respects in the government of the general law, being bailees upon whom it imposes extraordinary liabilities. The law applicable to the former two classes of carriers may therefore be disposed of, after what has been already said, with a brevity commensurate with its actual importance as compared with that which relates to the common carrier.

I. CARRIERS WITHOUT HIRE.

Sec. 16. (§ 16.) Who deemed to be.-All carriers without hire may be said to be private carriers. It is true that one engaged in the business of a common carrier may carry the goods of another if he chooses without compensation, as a mere matter of gratuity, but in so doing he becomes, as to the particular goods, a private carrier; for the law, as we shall hereafter see, will not subject even the common carrier to the extraordinary responsibilities of that vocation unless he has been paid for the service he undertakes, or has a right to his hire, either by express or implied contract. If, therefore, he has accepted the goods to be carried without charge from motives of friendship or charity, or from any consideration which the law does not regard in the light of pecuniary or valuable compensation, he becomes responsible for their safety only in the character of an ordinary unpaid bailee, known to the law of bailments as a mandatary. But cases of gratuitous carriage most frequently occur in bailments to persons who have never undertaken to carry for others, but who, for an1. See post, § 61.

other's convenience or accommodation, are induced in the particular instance, when about to commence a journey for purposes of their own, and not for the purpose of carrying the goods, to accept sums of money or articles of value to be carried with them and delivered according to the request of the sender; and such offices of friendship or kindness are usually undertaken with no thought of the responsibility assumed, and without the knowledge that in doing so they make themselves carriers in the eyes of the law. One of the reasons assigned for the infrequency of actions against such bailees is the extreme reluctance on the part of bailors to make their friends the victims of a meritorious, although it may be a negligent, kindness.2 Still, the authorities furnish numerous instances of suits against gratuitous bailees or mandataries, a number of which have been against carriers without reward.

Sec. 17. (§ 17.) Liability for gross negligence. The question whether a bailee under such circumstances should be held liable at all, even for the grossest negligence, would seem to be one about which casuists might differ, and was, it seems, never settled in the common law until it was unanimously resolved by the judges in the celebrated case of Coggs v. Bernard3 that such liability was incurred by the gratuitous bailee for carriage. This was the only question for decision in that case, although it was made the occasion for "the elaborate judgment of Lord Hold, which contains the first well-ordered exposition of the English law of bailments."4 The facts of the case were simply that the defendant had undertaken to remove certain casks of brandy from one cellar to another, but did it so carelessly that one of the casks was burst and the brandy spilled. After judgment for the plaintiff, a motion for its arrest was made, because the declaration had not averred that the defendant had undertaken the service, either in the character of a common porter or carrier or for reward, but, for aught that appeared, had undertaken it gratuitously.

2. Story on Bailments, § 218.
3. Ld. Raym. 909; 1 Smith's

8

Ld. Cas. (9th Am. Ed.), 354.

4. Idem. note.