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CHAPTER III.

WHO IS A COMMON CARRIER.

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§ 65. Hoymen, bargemen, lightermen, canal-boatmen, etc.,

are common carriers.

66. Ferrymen are common carriers when.

67. Whether ferrymen are common carriers of goods retained in the custody of passenger.

68. Proprietors of land vehicles like stage-coaches, omnibuses, carts, wagons, etc., are common carriers when. 69. Vehicles carrying passengers usually liable as common carriers only as to baggage.

70. Proprietors of local land ve-
hicles are common car-
riers.

71. Warehousemen, wharfingers
and forwarders of freight,
when common carriers.
72. Same subject-When liabil-
ity begins.

73. Water-craft, railways
express companies
chief carriers.

and

are

74. Owners of ships are usually common carriers.

75. Owners of steamboats and canal-boats are common carriers.

76. Railroad companies are common carriers.

77. Railroad receivers, trustees, etc., are common carriers.

§ 78. Street railways are com- § 90. No carrier required to car

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Sec. 47. (§ 47.) Common carrier defined.-A common or public carrier is one who undertakes as a business, for hire or reward, to carry from one place to another the goods of all persons who may apply for such carriage, provided the goods be of the kind which he professes to carry, and the person so applying will agree to have them carried upon the lawful terms prescribed by the carrier; and who, if he refuses to carry such goods for those who are willing to comply with his terms; becomes liable to an action by the aggrieved party for such refusal.1

1. The definition of a common this country is that of C. J. Parcarrier most usually adopted in ker, in Dwight v. Brewster, 1

Sec. 48. (§ 47a.) Same subject-The essential characteristics. To bring a person, therefore, within the description of a common carrier the following characteristics must appear:

Pick. 50. He is there defined to be "one who undertakes for hire to transport the goods of such as choose to employ him, from place to place." In Gisbourn v. Hurst, 1 Salk. 249, he is said to be "any man undertaking for hire to carry the goods of all persons indifferently." And this is said by C. J. Gibson, in Gordon v. Hutchinson, 1 Watts & S. 285, to be "the best definition of a common carrier in its application to the business of this country." The case of Gisbourn v. Hurst was one of trover for goods which had been put with the carrier's wagon into a barn and taken as distress for the rent due by the tenant. The carrier had been in the habit of carrying cheese to London and loading back with goods for all persons indifferently, and the court held that he was to be considered a common carrier and in the exercise of a public employment, and the goods therefore privileged from distress.

In Chitty on Carriers, the common carrier is defined to be one who, by the ancient law, held as it were a public office and was bound to the public, and who, to become liable as a common carrier, must exercise the business of carrying as a public employment, and must undertake to car ry goods for all persons indiscriminately and hold himself out as ready to engage in the transportation of goods for hire, as a business, and not as a casual occupation.

"Common carriers," says Chancellor Kent, "undertake generally, and not as a casual occupation, and for all people indifferently, to convey goods and deliver them at a place appointed, for hire, as a business, and with or without a special agreement as to price." 2 Com. 598.

"To bring a person," says Judge Story, "within the description of a common carrier, he must exercise it as a public employment; he must undertake to carry goods for persons generally, and he must hold himself out as ready to engage in the transportation of goods for hire, as a business, not as a casual occupation pro hac vice. A common carrier has therefore been defined to be one who undertakes for hire or reward to transport the goods of such as choose to employ him, from place to place." Story on Bail. § 495.

These definitions are substantially the same and are adopted and used indifferently. The one given in the text is made somewhat less general by confining the obligation to the carriage of such goods as the carrier professes to carry, and by adding the requirement on the part of the bailor of a compliance or a readiness to comply with the lawful terms prescribed by the carrier, and his liability to an action for a refusal to carry according to the course of his employment. No carrier undertakes to carry all sorts of goods, but only such as are of the

1. He must be engaged in the business of carrying goods for others as a public employment, and must hold himself out as ready to engage in the transportation of goods for persons generally as a business, and not as a casual occupation. 2. He must undertake to carry goods of the kind to which his business is confined. 3. He must undertake to carry by the methods by which his business is conducted and over his established road. 4. The transportation must be for hire. 5. An action must lie against him, if he refuses without sufficient reason to carry such goods for those who are willing to comply with his terms. And this duty or obligation to the public by reason of the public nature of the employment and the increased responsibility imposed upon him by the law upon the grounds of public policy,2 mainly distinguish the common from the mere private carrier for hire. Each of these characteristics will now be separately considered.

88 S.

description he professes to carry, inson on Carr.; Bassett & Stone and even these he is not compelled v. Mining Co., Ky. to carry unless their owner will W. Rep. 318. comply with his terms, in prescribing which he is allowed considerable latitude, as we shall see. The obligation by law to carry is essential to constitute the vocation of the common carrier, and the liability to an action for a refusal to carry is said by Nesbit, J., in Fish v. Chapman, 2 Ga. 349, to be perhaps the safest criterion of the character of the carrier. But a refusal to carry cannot be made the ground for an action without a compliance or offer to comply with such terms of the carrier as he may lawfully impose as the condition of the service. See, also, Varble v. Bigley, 14 Bush, 698; Schloss v. Wood, 11 Col. 287; Lang v. Brady, 73 Conn. 707, 49 Atl. Rep. 199; Railway Co. v. Lippman, 110 Ga. 665, 36 S. E. Rep. 202, 50 L. R. A. 673, citing Hutch

2. The rule rendering common carriers liable for every loss, except that which is caused by the act of God or the king's enemies, was not a part of the ancient common law. It is a comparatively modern innovation, intro. duced in consequence of the growing commercial relations of the country, an imperfect police, imperfect protection from the government, and frequent losses by robbery. "The first case in which the principle was recognized and settled is that of Woodliefe and Curtis in the thirty-eighth year of the reign of Elizabeth. And the reason of the rule is not, as stated by Sir Edward Coke, solely or principally because the carrier hath his hire; for other bailees for hire and private carriers for hire are not liable in the same

Sec. 49. ($48.) 1. His employment must be public in its nature. What circumstances will be sufficient to invest the employment of the carrier in particular cases with the character of a public one, and what professions or course of dealing on his part will be considered as enough to constitute him a common carrier instead of a private carrier for hire, is, however, sometimes a question of no little difficulty, and has given rise to considerable diversity of opinion and controversy. The criterion by which it is to be determined whether he belongs to the one class or the other is generally considered to be, whether he has held himself out or has advertised himself in his dealings or course of business with the public as being ready and willing, for hire, to carry particular classes of goods for all those who may desire the transportation of such goods between the places between which he professes in this manner his readiness and willingness to carry. If he has done so, he is of course to be regarded as a common carrier; but if not, he will be treated only as a private carrier for hire.3

manner and to the same extent." Per Bockee, Sen., in Van Santvoord v. St. John, 6 Hill, 157. But per Holt, C. J., in Lane v. Cotton, 1 Salk. 143: "A carrier is liable in respect of his reward, and not of the hundreds being answerable over to him; for the hundred is liable by the statute of Winchester, but he was So at common law; and the reason why robbery did not excuse him was, because it might be by consent and combination carried on in such a manner that no proof could be had of it."

3. In Nugent v. Smith, L. R. 1, Common Pleas Div. 19 and 423 (1875), it was considerably discussed in both the common pleas court and in the court of appeal, to which the case was carried. In the former court, Brett, J., after

referring to the case of Fish บ. Chapman, supra, as "a powerful and business-like judgment," proceeded to say that "the real test whether a man is a common carrier, whether by land or water, therefore, really is, whether he has held out that he will, so long as he has room, carry for hire the goods of every person who will bring goods to him to be carried. The test is not whether he is carrying as a public employment or whether he carries to a fixed place, but whether he holds out, either expressly or by a course of conduct, that he will carry for hire, so long as he has room, the goods of all persons indifferently who send him goods to be carried. If he does this, his first responsibility naturally is that he is bound by a promise, implied by

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