But the motion was denied, because, even if it had been undertaken without reward, the defendant was liable if he had been grossly negligent in its execution. Sec. 18. (§ 18.) Undertaking to carry is a sufficient consideration. And where the plaintiff declared against the defendant for losing a hare which he had undertaken to carry for the plaintiff, on demurrer to the declaration because the plaintiff had not declared upon the custom of the realm, and that, therefore, the defendant must be taken to have been a private person, and because there being no consideration laid, the promise alleged was merely nudum pactum, it was determined according to Coggs v. Bernard, that though it did not appear that the defendant was to be compensated for his service, and was not, therefore, obliged to undertake it, yet, having voluntarily undertaken it, he became liable for the damage arising from his negligence; and judgment was accordingly given for the plaintiff.5 So, though an agreement by a railroad company, after carrying goods safely to their destination, to transfer them to another carrier for more convenient delivery to the consignee, is a mere nudum pactum, yet, if it enters upon the performance of the agreement, but performs it so negligently that the goods are thereby lost, the company is liable. Sec. 19. (§ 19.) Carriage not gratuitous where carrier has right to demand compensation.-The test of the liability in such cases is, therefore, the gross negligence of the bailee; and this is to be determined, not by any definite or fixed rule-for as we have seen, this is impossible from the very nature of the subject, but by the application of the facts of each case, of the knowledge derived from common experience and observation in the affairs of life, which may be called the common sense of mankind. Preliminary, however, to the question of negligence, it must be ascertained whether the bailment was in fact accepted as a mere gratuity, or the service undertaken 6. Melbourne v. Railroad, 88 Ala. 443. 5. Hutton v. Osborne, 1 Sel. N. P. 420. under such circumstances as preclude the carrier from the right to set up a claim for compensation. And this is a question which is not always free from difficulty. Thus, where a package of money was delivered for carriage to the clerk of a steamboat, and the proof was that at the time nothing was said about compensation for the carriage, and that it was not usual for boats engaged in that trade to charge for carrying such packages, it was contended on behalf of the defendant that the bailment was a mere mandate and that, therefore, he was bound to only ordinary diligence; but it was held that, no express agreement having been made as to the compensation, the carrier was entitled to it if he chose to demand it, and that he was, therefore, a common carrier of the package for hire and was bound as such, and not as a carrier without hire. So it can make no difference what the intentions of the carrier were, if those intentions have not been communicated to the bailor in such a manner as to induce him to conclude that no compensation will be charged, or so as to influence his conduct in the transaction.8 And where goods were delivered to the carrier to be sold at the place of his destination, the proceeds to be returned to the owner of the goods by the carrier, it was held that in bringing back the proceeds the carrier was not acting gratuitously, but as a carrier for hire, although he was only to be paid the usual freight upon the goods.9 Sec. 20. (§ 20.) Presumption that carriage is gratuitous, when. These were, however, cases of common carriers, and it is evident that, when the question is whether such carriers, or others usually or even occasionally employed in the business of carrying goods for others for hire, have performed the service gratuitously in a particular instance, the presumption will be that it was done upon their usual terms as to compensation, and not as a mere gratuity, especially if the goods be 7. Kirtland v. Montgomery, 1 Swan, 452. 9. Kemp v. Coughtry, 11 Johns. 107; Harrington v. M'Shane, 2 8. Gray v. Packet Co., 64 Mo. Watts, 443. of the kind which they are in the habit of carrying. But in bailments to persons not so employed, the presumption would ordinarily be the other way, unless from all the circumstances it appeared that the bailee was to be paid. Sec. 21. (§ 21.) Not gratuitous where indirect compensation derived.-Sometimes, also, the consideration for the carriage consists, not in a direct compensation to the carrier for the transportation, but in some incidental or consequential advantage which he derives or expects to accrue to him from the carriage; and if this be the inducement to its performance, he will not be allowed to rely upon the defense, when the goods have been lost by his negligence, that he was a mandatary in the carriage, even when the agreement was in terms that nothing should be charged for it. And, accordingly, when by either contract or usage the shipper of grain, or any other commodity which is carried in sacks, has the right to the carriage of the sacks when emptied free of charge, the carrier cannot, if they are lost by his negligence, claim that they were carried gratuitously and thereby escape liability.10 And, upon the same principle, it has been often held that, when the shipper of goods who pays freight upon them is permitted to travel upon the same conveyance nominally as a free passenger and without paying any distinct consideration for his passage, he is not carried gratuitously, but for a consideration which makes the carrier liable to the same degree as though he had purchased and paid for his ticket.11 And so it is well settled that, when one has paid to become a passenger upon a public conveyance, the carrier is not a gratuitous bailee of his baggage, but that the price of the passage is also compensation for the carriage of his baggage, and that, as to such baggage, the carrier becomes a common carrier for hire.12 Sec. 22. (§ 22.) Question of gross negligence one of fact.-Having ascertained that the carriage is gratuitous, it then be 10. Pierce v. The Railroad, 23 Wis. 387; Aldridge v. The Rail way, 15 Com. B. N. S. 582. 11. See post, § 1021. comes necessary to decide whether the carrier has made himself liable for their loss by that degree of negligence which the law characterizes as gross, which is of course a question to be decided by no legal rule, but by the exercise of common reason and by comparison with that conduct which, under the same circumstances, experience and common knowledge would lead us to expect of men of ordinary sense and prudence. Analogous cases can afford but little guidance in forming our conclusions in any particular case, because there are always points of difference in the circumstances, which, however much the cases may resemble each other superficially, would make it unsafe to make the one a test of the other. The question in every case is almost exclusively one of fact, and its determination belongs therefore to the jury and not to the law. Still it may not be inappropriate to refer to some few of those which have been determined in reference to the question of negligence in carriers as mandataries. Sec. 23. (§ 23.) Not liable for loss by robbery unless negligent. The carrier without hire will not be held liable for the loss of the property by theft or robbery, provided he has used ordinary prudence. Where a box, belonging to one who intended going upon the vessel but was casually left behind, was broken open by the captain after the vessel had got to sea, upon the suggestion that it might contain contraband goods, and its contents, which were valuable, exposed to the view of the passengers, and instead of being nailed up in the box as before were put into the captain's chest in the cabin and were stolen, Lord Ellenborough instructed the jury that where a person does not carry for hire, he is bound to take proper and prudent care of that which is committed to him, and that when the captain opened the box and intermeddled with its contents, he was bound at least to replace it in its former state of security and to restore all the guards with which it had been before protected, and that having learned the value of the property and exposed it to view, the duty of vigilance was enhanced. He therefore left it to the jury whether the de fendant had been guilty of negligence, and they found a verdict for the plaintiff.13 Sec. 24. (§ 24.) Degree of negligence which creates liability -Instances-In one case14 gold dust was sent from Sacramento to San Francisco by a steamer, notwithstanding notice that it would not charge or become responsible for such merchandise. It was, however, accepted and carried on these terms, and when the boat reached its destination late at night, the clerk went up into the city leaving the gold dust in his office, no otherwise secured than by the locking of the door of the office, and in his absence the door was opened and the dust stolen. An action was brought to recover its value from the owners of the steamer as common carriers, but the court thought that there had been no such negligence as to charge them as gratuitous carriers, and that no recovery could be had against them as common carriers, as they had received no compensation for the service. Sec. 25. (§ 25.) Same subject-Further illustrations. But in another case the passenger on a steamboat was urged by the clerk to deposit his money in the iron safe of the boat, as there were thieves on board, and the passenger thereupon did give it to him, and it was locked up in the safe with the understanding that no charge would be made for keeping it. When the boat arrived in port an extra guard was put over the office while the clerk went ashore to attend to the business of the boat, after having locked up the safe and office, taking the keys with him. Notwithstanding these precautions, however, the office and safe were both opened and the money of the passenger stolen. In the action for its recovery against the owner of the boat, it seems to have been thought by the court that, though a mandatary, the carrier had not "used a degree of diligence and attention adequate to the performance of the 13. Nelson v. Mackintosh, 1 Starkie, 237. See, also, Ouder kirk v. Bank, 119 N. Y. 263. 14. Fay v. Steamer New World, 1 Cal. 348. |