been shown that by his professions, or previous course of business, he has held himself out as such a carrier, or when it must be so presumed from the very nature of his employment. Thus, in Samms v. Stewart,11 a case was presented which was very similar to that of Gordon v. Hutchinson. In this case it appeared that Samms was a farmer, living at or near New Hope, in the vicinity of Cincinnati, and had been in the habit for many years of carrying marketing from New Hope to Cincinnati, and that, when about going to the latter city with marketing, he frequently asked the merchants of New Hope for return loads of goods. On one such occasion he received from Stewart & McKibben a box of goods to be carried from Cincinnati to New Hope in his wagon. The box was stolen from his wagon on the way, and the action was brought to charge him with the value of the goods as a common carrier. The court below, relying on Gordon v. Hutchinson, held him so liable, but the supreme court reversed the judgment, holding that case to be opposed to the current of authorities. "We see no reason," said the court, "why the law applicable to a common carrier should be applied to a farmer who makes a personal application to a merchant for a load of goods on his return trip from market. The merchant has it in his power to make such special bargain as he chooses as to what shall be the liability of the farmer in case the goods are lost. The farmer has assumed no character to the community entitling him to peculiar confidence, and the merchant is left, as in ordinary cases, to an inquiry as to his character and qualifications. Nor do we suppose it would make any difference how could procure employment in that way. Under these circumstances, he was held liable as a common carrier, the court saying that there were no grounds in reason why the occasional carrier, who periodically, in every recurring year, abandons his other pursuits and assumes that of transporting goods for the public, should be exempted from any of the risks incurred by those who make the many applications of this kind had been made by the party thus carrying, or to how many different persons they may have been made, they would still remain so many special and individual transactions." So in Fish v. Clark,12 the facts were very nearly the same as in the foregoing case of Moss v. Bettis. The defendants, one of whom was a manufacturer of staves and the other a cooper, owned a boat in common for the purpose of transporting their staves and barrels to market. Wanting employment for their boat, one of them applied to the plaintiffs for a load of freight to New York, which was given them. Defendants furnished hands, and one of them commanded the boat, plaintiffs only furnishing the freight. On the trip, by a breakage in the canal, and without fault or negligence of the defendants, the boat was sunk. It was proven that on one or more occasions during the previous year the defendants had carried for the plaintiffs in the same way. The question was, whether, under these circumstances, the defendants were common carriers, and it was held that they were not. "According to all the authorities," say the court, "it is an essential characteristic of the common carrier that he hold himself out as such to the world; that he undertake generally, and for all persons indifferently, to carry goods and deliver them for hire, and that his public profession of his employment be such that, if he refuse without some just ground to carry goods for any one in the course of his employment, and for a reasonable and customary price, he is liable to an action." By this test it seemed clear that the defendants had not performed the service for the plaintiffs in the character of common carriers; and it was further considered that the fact that the defendants had applied for the employment could not affect the question of their liability or the capacity in which they had been employed. Sec. 55. (§ 53a.) Same subject-Further illustrations. So in Steele v. McTyer,13 it appeared that a custom existed in 12. 2 Lans. 176; s. c. 49 N. Y. 122. 13. 31 Ala. 667. A boat used by its owners and Alabama to build flat boats, load them with cotton of any person having cotton for transportation, and of then running the boats down the river to Mobile, where the boats, when unloaded, were sold for wood or lumber, without making any further trips. In accordance with this custom, defendants had had a flat boat constructed, and, after taking on board the cotton of the plaintiff and three other persons at their respective landings, had started down the river to Mobile. On the way the boat was sunk, and the cotton of the plaintiff was lost, and an action was brought to charge the defendants as common carriers. "If the appellants (the defendants) built or procured a flat boat," said Walker, J., "with which to carry cotton down the Cahaba river and thence to Mobile, though only for a single trip, and held themselves out as ready and willing to carry cotton on their boat for the people generally who wished to send their cotton to Mobile, then they would be common carriers, and those who placed cotton upon the boat could not be affected by any private instructions which might have been given to the master of the boat as to the point on the river above which he was to take on no cotton. On the contrary, if the appellants did not hold themselves out as ready and willing to carry cotton for the public generally, to the extent of a proper load of the boat, or, in other words, did not constitute themselves the servants of the public in that business, but only proposed to take the cotton of some particular persons with whom engagements were made, they were not common carriers. If the appellants, having engaged a part of the loading for the boat, held themselves out as ready to carry for any person or persons to the extent of the remaining capacity of the boat, then they would be liable as common carriers to such persons as availed themselves of such offer of their services to the public generally as carriers. These questions, under the proof, should have been left to the jury. managers for their own purposes and those of others who agree to pay certain rates for the transportation of their goods from one point to another, and which is not shown to have been held out as a common carrier, cannot be declared to be such at the instance The evidence that the defendants had been in former years engaged for the public generally in the transportation of cotton to Mobile on flat boats, would be proper for the consideration of the jury in determining the question whether they were common carriers; but it would not necessarily be conclusive. It might be that, notwithstanding they had previously acted as common carriers, they had abandoned the service of the public, and were simply engaged in the execution of special contracts. To constitute them common carriers, they must be engaged in the service of the public." Sec. 56. (§ 54.) Same subject-Other cases illustrating general rule. The question of his liability had been previously determined in favor of the carrier by the New York court and upon the same ground in Allen v. Sackrider,14 in which the facts were similar. The defendants being the owners of a sloop, but not engaged with it in the business of carrying goods generally, and not holding themselves out to the world as carriers generally, were applied to by the plaintiffs to make a trip for them and bring back goods, as they had done on a previous occasion for them. On her return the sloop was driven ashore and her cargo injured, for which the plaintiffs sued. The liability of the defendants turned entirely on the question whether they were common carriers in the undertaking for the plaintiffs, and it was held that such casual use of the sloop did not make its owner a common carrier. Sec. 57. ($55.) Same subject-The general rule well settled. These cases undoubtedly state the law as it is settled in England and generally understood in this country; and it would seem clear that no one should be treated as a common carrier unless he has in some way held himself out to the public as a carrier, in such manner as to render him liable to an action if he should refuse to carry for any one who wished to of such agreeing parties. Flautt v. Lashley, 36 La. Ann. 106. A vessel chartered to transport a specific cargo only is not a common carrier. The Dan, 40 Fed. Rep. 691; Sumner v. Caswell, 20 Fed. Rep. 249. 14. 37 N. Y. 341. See, also, Fish v. Clark, 49 N. Y. 122. employ him in the particular kind of service which he thus proposes to undertake. Otherwise he does not come within the description, nor can he be subjected to the liability of the common carrier when the goods have been lost without negligence.15 15. Story on Bail. 495; 2 Kent's Com. 598; Satterlee v. Groat, 1 Wend. 272; Citizens' Bank v. Nantucket S. B. Co., 2 Story, 17; Dwight v. Brewster, 1 Pick. 50; Forward v. Pittard, 1 Term. 27; Palmer v. G. J. Railway, 4 M. & W. 749; Riley v. Horne, 5 Bing. 217; Lane v. Cotton, 1 Ld. Raym. 646; Crouch v. Railway Co., 14 Com. B. 255; Coggs v. Bernard, 1 Smith's Lead. Cas. 283 and notes. It would be useless to multiply the citation of authorities upon a proposition which has become one of the elementary principles of the law in reference to carriers. Only a few, therefore, of the cases upon the subject, which may be considered leading, are referred to. But as the opinion of Nesbit, J., in Fish v. Chapman, 2 Ga. 353, expresses the law upon the subject with great force, and, as generally admitted, with accuracy, we append a portion of it. This, like the Pennsylvania case of Gordon v. Hutchinson, ante, was the case of the employment of a farmer who, never having held himself out as a carrier generally, was employed by the plaintiff to carry goods, which, in crossing a stream upon the way, were injured by the upsetting of the wagon. After giving the definitions of a common carrier from Kent's Com. and Story on Bail. and stating that he was obliged to receive and carry for all who offered their goods, and could not either by contract or notice lessen the liability which the law imposes upon him, the learned judge proceeded: "It is from these definitions and the two propositions stated, that we are to determine what constitutes a person a common carrier. I infer, then, that the business must be habitual and not casual. An occasional undertaking to car ry goods will not make a person a common carrier; if it did, then it is hard to determine who, in a planting and commercial community like ours, is not one. There are few planters in our state owning a wagon and team who do not occasionally contract to carry goods. It would be contrary to reason and excessively burdensome, nay, enormously oppressive, to subject a man to the responsibilities of a common carrier who might, once a year or oftener at long intervals, contract to haul goods from one point in the state to another. Such a rule would be exceedingly inconvenient to the whole community; for if established, it might become difficult in certain districts of our state to procure transportation. "The undertaking must be general and for all people indifferently. The undertaking may be evidenced by the carrier's own no tice or practically by a series of acts, by his known habitual continuance in this line of business. |