Sec. 58. (§ 56.) Same subject-How common carrier compares with innkeeper.-There is the same difference between the common or public carrier for hire as between the innkeeper He must thus assume to be the servant of the public; he must undertake for all people. A special undertaking for one man does not make a wagoner or anybody else a common carrier. I am very well aware of the importance of holding wagoners in this country to a rigid accountability; they are from necessity greatly trusted; valuable interests are committed to them, and they are not always of the most careful, sober and responsible class of our citizens. Still the necessity of an inflexible adherence to general rules we cannot and wish not to escape from. To guard this point, therefore, we say that he who follows wagoning for a livelihood, or he who gives out to the world in any intelligible way that he will take goods or other things for transportation from place to place, whether for a year, a season or less time, is a common carrier and subject to all his liabilities. "One of the obligations of a common carrier, as we have seen, is to carry the goods of any person offering to pay his hire; with certain specific limitations, this is the rule. If he refuse to carry, he is liable to be sued and to respond in damages to the person aggrieved, and this is perhaps the safest test of his character. this test, was Mr. Fish a common carrier? There is no evidence to make him one but his contract with Chapman & Ross. Suppose, after executing this contract, another application had been made By to him to carry goods, which he refused, could he be made liable in damages for such refusal upon this evidence? Clearly not. There is not a case in the books but one to which I shall presently advert, which would make him liable upon proof of a single carrying operation. In con an осса flict with these views, it has been held in Pennsylvania that ‘a wagcner who carries goods for hire is a common carrier, whether transportation be his principal and direct business or sional incidental employment.' Gibson, C. J., in Gordon v. Hutchinson, 1 W. & S. 285. This decision no doubt contemplates an undertaking to carry generally without a special contract, and does not deny to the undertaker the right to define his liability. There are cases in Tennessee and New Hampshire which favor the Pennsylvania rule, but there can be but little doubt that that case is opposed to the principles of the common law, and its rule wholly inexpedient." And in Harrison v. Roy, 39 Miss. 396, it was said that while, under the circumstances of that case, the wagoner had made himself liable as a common carrier, if the transaction had been a mere isolated undertaking, such as he had not been in the habit of engaging in, and which was foreign to his regular and usual business, there would have been force in the position that he could not be so held. and the man who occasionally, and not as a public business, entertains travelers; and the test for determining whether he who carries is to be regarded as a common carrier is the same as that which must be applied when the question is whether he who entertains travelers or strangers is an innkeeper. There should be the same necessity in both cases for a public profession, or a course of dealing which will be equivalent to a profession of being engaged in the business for the accommodation of the general public, and there must be the same obligation to receive and become accountable for the goods of all who apply; and to make one liable as an innkeeper there can be no question, upon the authorities, but that there must be such an assumption of the character or "public holding out" in the business as will put the party under legal compulsion to entertain the traveling public. "To render a person liable as a common innkeeper," says the court in Lyon v. Smith,1G "it is not sufficient to show that he occasionally entertains travelers. . . The person who occasionally entertains others for a reasonable compensation is no more subject to the extraordinary responsibility of an innkeeper than is he liable as a common carrier who, in certain special cases, carries the property of others from one place to another for hire.' Sec. 59. (§ 56a.) 2. Goods must be of kind he professes to carry. In the second place, in order to charge one as a common carrier of goods, the goods in question must be of the kind to, which his business is confined. No carrier undertakes to carry all kinds of goods, but only such as are of the description which he professes to carry. A common carrier is, therefore, not liable as such where, by special engagement or as a matter of accommodation merely, he undertakes to carry a class of goods which it is not his business to carry.17 Illustrations of this rule will be given in a subsequent section.18 16. 1 Iowa,* 184. 17. See ante, § 44; Kimball v. Railroad, 26 Vt. 249; Honeyman v. Railroad Company, 13 Oreg. 352; Central Railroad, etc., Co. V. Lampley, 76 Ala. 357; Railroad v. Wallace, 24 U. S. App. 589, 14 C. C. A. 257, 66 Fed. 506, 30 L. R. A. 161, citing Hutchinson on Carr. 18. See post, §§ 90, 91. Sec. 60. (§ 56b.) 3. Must undertake to carry by customary means and route.-Common carriers of goods do not undertake to carry by any or all means, but only by those means and methods19 and over the route 20 to which their business is confined. Thus common carriers by wagon cannot be required to carry by railroad, nor can carriers by water be required to carry by land, nor can a carrier be required to carry to a point or by a route to which his business does not extend. And even if a carrier should, in a particular instance, undertake by a special contract to carry goods by unusual and exceptional methods or routes, his liability would be based upon his contract and not by the ordinary rules governing common carriers.21 Sec. 61. (§ 57.) 4. Carriage must be for hire. In the fourth place, compensation to the carrier in some form, either by the payment of his price, or a promise, express or implied, to pay it,22 or a payment or promise to pay for something which 19. Coup v. Wabash Ry. Co., 56 Mich. 111. 20. Pitlock v. Wells, Fargo & Co., 109 Mass. 452; Pittsburg, etc., R. Co. v. Morton, 61 Ind. 539. 21. Railroad Co. v. Wallace, 24 U. S. App. 589, 14 C. C. A. 257, 66 Fed. 506, 30 L. R. A. 161, citing Hutchinson on Carr. 22. In Citizens' Bank v. The Nantucket S. B. Co., 2 Story, 16, Judge Story disposes of the question of compensation to the carrier in the following language: "In the next place, I take it to be exceedingly clear that no person is a common carrier in the sense of the law who is not a carrier for hire; that is, who does not receive or is not entitled to receive any recompense for his services. The known definition of a common carrier in all our books fully establishes this result. If no hire or recompense is payable er debito justitiæ, but something is bestowed as a gratuity or voluntary gift, then, although the party may transport either persons or property, he is not in the sense of the law a common carrier, but he is a mere mandatory or gratuitous bailee, and of course his rights, duties and liabilities are of a very different nature and character from those of a common carrier. In the present case, therefore, it is an important inquiry whether, in point of fact, the respondents were common carriers of money and bank notes and checks for hire or recompense or not. I agree that it is not necessary that the compensation should be a fixed sum or known as freight, for it will be sufficient if a hire or recompense is to be paid for the service in the nature will include the carriage as an incident thereto, is essential to constitute him a common carrier; for if, as we have seen,23 he receives no hire, he is merely a gratuitous bailee or mandatary and can be held liable only for gross negligence.24 But, though he has received no direct compensation for the particular service and would not be entitled to recover for it eo nomine, and even though by his express contract he was to receive nothing for it, yet if, when all the circumstances are taken together, it appears that the compensation was paid or promised for the entire service, he will not be considered as a gratuitous bailee as to any part of it. As where grain was shipped in sacks, and the agreement was that the carrier was not to charge for returning the empty sacks, it was held that he was not a gratuitous carrier in bringing back the sacks, the compensation paid nominally for the carriage of the grain covering also the service as to the empty sacks.25 So where of a quantum meruit, to or for the benefit of the company. And I further agree that it is by no means necessary that, if hire or freight is to be paid, the goods or merchandise or money or other property should be entered upon any freight list, or the contract be verified by any written memorandum. But the existence or non-existence of such circumstances may nevertheless be inportant in ascertaining what the true understanding of the parties is as to the character of the bailment." And see to the same purport, Kirtland v. Montgomery, 1 Swan, 452. Where an individual or corpora tion constructs a railroad wholly upon its own land, and for the conduct of its own private business, the fact that it occasionally permits persons to ride gratuitously upon its cars does not constitute it a carrier of passengers. Wade v. Lutcher, etc., Co., 41 U. S. App. 45, 20 C. C. A. 515, 74 Fed. 517, 33 L. R. A. 255, citing Hutchinson on Carr. 23. Ante, § 16. 24. "To originate the exceptional liability of the common carrier," says Clopton, J., "although founded on reasons of public policy, and to create the relation, there must exist privity of contract, express or implied, and a title to compensation for the services. Public policy operates on those only who transport for reward or hire. Where there is no right to remuneration, the party who carries incurs no liability other than that of a gratuitous bailee." In Central Railroad, etc., Co. v. Lampley, 76 Ala. 357, citing Citizens' Bank v. Nantucket S. B. Co., 2 Story, 16; Knox v. Rives, 14 Ala. 249. 25. Pierce v. The Railroad, 23 Wis. 387; Aldridge v. The Railway, 15 Com. B. N. S. 582. the carrier was to sell the goods and return the proceeds, the freight paid upon the goods would also be regarded as compensation for bringing back the proceeds.26 Sec. 62. (§ 57a.) 5. Action must lie for refusal to carry.— Lastly, the party must be under such a legal obligation to carry that an action will lie against him for a refusal without sufficient excuse.27 "The true test of the character of a party, as to the fact whether he is a common carrier or not," says Chief Justice Simpson, "is his legal duty and obligation with reference to transportation. Is it optional with him whether he will or will not carry, or must he carry for all? If it is his legal duty to carry for all alike who comply with the terms as to freight, etc., then he is a common carrier, and is subject to all those stringent rules which, for wise ends, have long since been adopted and uniformly enforced, both in England and in all the states, upon common carriers. If, on the contrary, he may carry or not as he deems best, he is but a private individual, and is invested, like all other private persons, with the right to make his own contracts, and when made to stand upon them. ''28 "One of the obligations of a common carrier," says Nisbet, J., "is to carry the goods of any person offering to pay his hire; with certain specific limitations this is the rule. If he refuse to carry, he is liable to be sued, and to respond in damages to the person aggrieved, and this is perhaps the safest test of his character."29 Sec. 63. (§ 57b.) Regular trips or fixed termini not necessary. It is not necessary, where the other elements exist, that the carrier should make regular trips30 or travel only between fixed termini.31 26. Kemp บ. Coughtry, 11 Johns. 107; Harrington v. McShane, 2 Watts, 443; Emery v. Hersey, 4 Greenl. 407; Mosely v. Lord, 2 Conn. 389. 27. Fish v. Chapman, 2 Ga. 349; Nugent v. Smith, L. R. 1 C. P. Div. 19, 423; Piedmont Manuf. Co. v. The Railroad, 19 S. C. 353. 28. In Piedmont Manfg. Co. v. Railroad Co., supra. 29. In Fish v. Chapman, supra. See also, Lanning v. Railroad Co., 1 N. J. Law J., 21. 30. Pennewill v. Cullen, 5 Harr. 238. 31. Liver Alkali Co. v. Johnson, L. R. 7 Ex. 267; 9 id. 338. |