Sec. 50. (§ 49.) Same subject-Exceptional cases-Gordon v. Hutchinson. This, however, seems not to be the universal test; and some of the cases upon this subject in this country have denied the necessity for any public profession or undertaking, in order to impose upon the carrier the character and the consequent liability of the common carrier, and have held that one who has never assumed the character of a public carrier, and although his contract to carry may be confined to the one particular instance or pro hac vice, as it is termed, may assume, thereby, all the responsibility of the common carrier, if he and the class of carriers to which he belongs have been in the occasional habit of accepting the goods of others for transportation for hire. The leading case upon this theory of the responsibility incurred by such carriers is that of Gordon v. Hutchinson, which carries the great weight of the authority of C. J. Gibson, who delivered the opinion of the court in favor of that view of the question under the circumstances of difficulty which then existed in the carrying business of this country. In this case, the defendant, who was a farmer, applied at the store of the plaintiff, to be employed to haul a

4

law, to receive and carry for a reasonable price the goods sent to him upon such an invitation. This responsibility is not one adopted from the Roman law on grounds of policy; it arises according to the general principles which govern all implied promises. And his second responsibility, which arises upon reasons of policy, is that he carries the goods upon a contract of insurance. This policy has fixed the latter liability upon common carriers by land and water, not because they hold themselves out to carry for all persons indifferently; if that were all, there would be no ground for the policy; it would be without reason; many other persons hold themselves out to act in their

trade or business for all persons indifferently who will employ them, and the policy in question is not applied to such trades; the policy is applied to the trade of common carriers, because when the common law adopted that policy the business of common carriers in England was exercised in a particular manner and subject to particular conditions which called for the adoption of that policy."

See also, Roussel v. Aumais, (Canada) Rap. Jud. Que. 18 C. S. 474; Memphis News Publishing Co. v. Railway, 110 Tenn. 684, 75 S. W. Rep. 941, 63 L. R. A. 150, citing Hutchinson on Carr. 4. 1 Watts & S. 285.

load of goods for him, from Lewistown to Bellefonte, on his return from the former place, to which he was going with a load of iron. He received an order from the plaintiff and loaded the goods upon his wagon for his return trip. On the way, the head came out of a hogshead of molasses and it was wholly lost. An action was brought against the carrier for its value, and it was held that the farmer, under the circumstances, had made himself in this service a common carrier and was liable as such.

Sec. 51. (§ 50.)

Same subject-The rule in England.-It was, however, admitted that the rule was different in England, and the decision was rested entirely upon the difference in the occupations of the people and in the means of transportation. "Rules," it is said, "which have received their form from the business of a people whose occupations are definite, regular and fixed, must be applied with much caution and no little qualification to the business of a people whose occupations are vague, desultory and irregular. In England, one who holds himself out as a general carrier is bound to take employment at the current prices, but it will not be thought that he is bound to do so here. In England, the obligation to carry at request, upon the carrier's particular route, is the criterion of the profession; but it is certainly not so with us. The defendant is a farmer, but has occasionally done jobs as a carrier. That, however, is immaterial. He applied for the transportation of these goods as a matter of business, and consequently on the usual conditions. His agency was not sought in consequence of a special confidence reposed in him. There was nothing special in the case. On the contrary, the employment was sought by himself, and there is nothing to show that it was given on terms of diminished responsibility." And the same judge, in the case of Steinman v. Wilkins, speaking of the common carrier, observed that in England he was bound by the custom of the realm to carry for all employers, "but it is by no means certain," said he, "that our

5. 7 Watts & S. 466.

47

ancestors brought the principle with them from the parent country as one suited to their condition in a wilderness. We have no trace of an action for refusing to carry, and it is notorious that the wagoners, who were formerly the carriers between Philadelphia and Pittsburg, frequently refused to load at the current price."

Sec. 52. (§ 51.) Same subject-The rule in Tennessee.-In the case of Moss v. Bettis, the facts were that the defendant was a farmer, but "after his crops were laid by," he would run boats for himself or any one else who would employ him. He had built a flat-boat to transport to market a cargo of his own staves, but, at the instance of the plaintiff, abandoned that project and loaded his own and another boat furnished by the plaintiff with plaintiff's lumber, and undertook to carry it by river to market. The boats struck some obstruction in the river and were sunk, occasioning the loss of some of the lumber; and it was held in the action against him by the plaintiff to recover its value, that he was a common carrier in the performance of the service for the plaintiff and was liable as such. The decision was based mainly upon several previous Tennessee cases,8 which were supposed to sustain the conclusion of the court.

Sec. 53. (§ 52.) Same subject-Further of the Tennessee rule. But this exception by the Tennessee courts to the common law, which has brought into the family of common carriers a class which does not properly belong there, seems to be confined to carriers by river craft, and to have been first made because the prevalence of this mode of transportation seemed to make it necessary that such carriers should be held to a

6. 4 Heisk. 661.

7. In this case it was said by the court that the liability of the defendant did not in any degree depend upon the fact that the application for his employment in the service had come from the plaintiff. But in Gordon v. Hutchinson, supra, it will be noticed

that great importance seemed to be given to the fact that the defendant had applied for employment to the plaintiff.

8. Craig v. Childress, Peck, 270; Johnson v. Friar, 4 Yer. 48; Gordon v. Buchanan, 5 id. 71; Turney v. Wilson, 7 id. 340.

stricter accountability than mere private carriers. To this extent it has been adhered to as established by precedent, although it may now and then occasion a hardship to the accommodating carrier, even when he is not to blame, as it seems to have done in the case last stated. As to carriers by land, the rule seems to be as at common law. And although the Pennsylvania cases, which extend the exception to carriers by land, are often referred to as authority of weight for rigidly including in the class of common carriers all who legitimately belong there, the opinion expressed in them, that the commonlaw definition of a common carrier is inapt and inappropriate in a new country, and was not brought to this country with the great body of the law from the mother country, has received judicial sanction in no other state except Tennessee.10

9. Walker v. Skipwith, Meigs, question whether he was liable as 502.

10. Several cases in other states are uniformly cited in connection with that of Gordon v. Hutchinson as giving support to the posi tion there taken, that one may become a common carrier from a casual employment pro hac vice. But they will be found upon examination to add but little if any weight to that view of the question. Powers บ. Davenport, 7 Blackf. 497, was the case of a wagoner, who undertook to carry goods for the plaintiff from Ciucinnati to Crawfordsville, under a written contract to deliver them in good order and condition, was proven that the defendant, in order to visit his house, deviated from the direct and customary route, and while so doing a bridge over which he was passing broke down and the goods were thereby injured. He was sued upon his special undertaking, and the court expressly declined to consider the

It

a common carrier, saying that the question whether he was carrying the goods in that capacity was immaterial. But he was held liable upon his special undertaking. He would have been unquestionably liable aside from his contract, even as a private carrier for hire. He had no legal excuse for the deviation, and when he made it for his own convenience or pleasure, he of course took upon himself the risk of the consequences from any accident which would not have occurred upon the direct route which it was a plain violation of his duty not to keep, and in not keeping it he was guilty of at least ordinary negligence. In McClure v. Richardson, Rice, 215, defendant was sued as the owner of a boat of which one Howzer was the patroon or captain, and on which the defendant used to carry his own cotton to market, occasionally, however, taking cotton for his neighbors when he did

Sec. 54. (§ 53.) Same subject-These exceptional cases not elsewhere followed-Illustrations.-Elsewhere no such exception has been made, and the carrier has been subjected to the extraordinary liability of the common carrier only when it has