comes likewise liable, upon the principles of agency, to the owner of the goods, according to the terms of his contract with his employer.2 Sec. 83. (§ 71.) Same subject.-Cannot escape liability by assuming name of "forwarders."-These carriers have also attempted to escape from their liability as common carriers by assuming the name of forwarders, and by contracting to convey the goods in that character. But in this attempt they have likewise failed; and it has been held that, when they undertake the carriage of parcels, it will make no difference under what name or assumed title they may have done so. The law, regardless of forms or names, will look at the real transaction, and if the contract be in fact one for the transportation and delivery of the goods to a consignee, no matter through what agencies it is to be effected, the undertaking will be construed as that of a common carrier.3 Sec. 84. (72.) Same subject-Nor by assuming name of "dispatch company," "fast freight line," etc.-Other carriers under the names of dispatch companies, fast freight lines and the like, have also come into existence, which conduct their business upon the same principle as express companies, that is, by the employment of the means of transportation furnished to them by others, and to which, for the same reasons, the same rigid rule of responsibility as common carriers is applied. "We cannot close our eyes," says the court in The Bank of Ken 2. New Jersey S. Nav. Co. v. Merchants' Bank, 6 How. 344. 3. Christenson v. The Am. Ex. Co., 15 Minn. 270; Read v. Spalding, 5 Bosw. 404; Southern Ex. Co. v. McVeigh, 20 Gratt. 264; Bank of Kentucky v. Adams Ex. Co., 93 U. S. 174. 4. Dispatch companies are common carriers. Transportation Co. v. Bloch, 86 Tenn. 392; Merchants' Disp. Co. v. Cornforth, 3 Col. 280; Robinson v. Merchants' Disp. Co., 45 Iowa, 470; Stewart v. Merchants' Disp. Co., 47 Iowa, 229; Wilde v. Merchants' Disp. Co., 47 Iowa, 247; Bancroft v. Merchants' Disp. Co., 47 Iowa, 262; Merchants' Disp. Co. v. Bolles, 80 Ill. 473; Merchants' Disp. Co. v. Leysor, 89 Ill. 43; Merchants' Disp. Co. v. Joesting, 89 Ill. 152. 5. Fast freight lines are common carriers. Read v. Spaulding, 5 Bosw. 395. tucky v. The Adams Express Company," "to the well-known course of business in the country. Over many of our railroads, the contracts for the transportation of goods are made, not with the owners of the roads, nor with the railroad companies themselves, but with transportation agencies or companies which have arrangements with the railroad companies for the carriage. In this manner, some of the responsibilities of common carriage are often sought to be evaded; but in vain. Public policy demands that the right of the owners to absolute security against the negligence of the carrier and of all persons engaged in performing the carrier's duty shall not be taken away by any reservation in the carrier's receipt, or by any arrangement between him and the performing company." And in the case of J. II. Cowie Glove Co. v. Merchants' Dispatch Transportation Co. it is said: "To constitute a common carrier, it is not essential that the person or corporation undertaking such service own the means of transportation. If the contract is that the goods will be carried and delivered, it makes the one so contracting a common carrier, regardless of the name or the ownership of the line or lines over which the service extends." Sec. 85. (§ 73.) Special circumstances under which carrier not deemed to be common carrier. But it is not to be assumed that in all these cases the ship, the steamboat or other kind of carrier mentioned is necessarily and at all events to be held liable as a common carrier for a failure safely to transport and deliver whatever may be intrusted to it. Many of them will be presumed to be common carriers. Courts will take notice judicially of the fact that the owners of ships, railroads, steamboats, and all others whose business it is universally known is to carry goods for hire, are common carriers of certain classes of goods, and no proof will be required to establish such fact.s But it will not be presumed that the owners of a stage line are tice that railway companies are 6. 93 U. S. 174. 7. -Iowa, 106 N. W. Rep. 749. 8. Courts will take judicial no common carriers. Boyle v. Railway Co., 13 Wash. 383, 43 Pac. Rep. 344. common carriers as to goods generally, because it is well known that such lines are intended generally for the carriage of passengers and not of goods. In order, therefore, to fix upon them the liability of common carriers for anything except the baggage of their passengers, it must be shown that by usage, or by their holding themselves out as such, the public is justified in so regarding them. And even as to such carriers as are prima facie public or common carriers, it may be shown that, in the particular instance or under the circumstances of the case, they did not undertake to transport and are not liable as common carriers.9 It may be shown, for instance, that the goods were carried by the ship under a charter-party giving to the hirer its whole capacity; in which event the owner would not be a common carrier, but a bailee to transport as a private carrier for hire.10 Or if the owner employ his vessel in his own business and exclusively on his own private account, and for accommodation takes goods on board to be carried, although it may be for hire, he will not be deemed a common carrier.11 Sec. 86. ($74.) Same subject-Illustrations. Where an attempt was made to hold the owners of a steamboat liable for money or bank bills delivered to the clerk of the boat to be carried to another point on the river, it was said that they could not be held liable. It was conceded that they were common carriers as to goods and passengers, and while money and bank bills were admitted to be goods in a certain sense and for certain purposes, they were not ordinarily so considered, it was said, and the ordinary carrier of goods could not be presumed to be a carrier as to them. And the question was asked, Would the owners have been liable to an action if the clerk had refused to take the money.12 And, in several cases in which it appeared that steamboat companies had been incorporated for 9. Railroad Co. v. Wallace, 66 Fed. 506, 14 C. C. A. 257, 24 U. S. App. 589, 30 L. R. A. 161, citing Hutchinson on Carr. 10. Lamb v. Parkman, 1 Sprague, 343. 11. Allen v. Sackrider, 37 N. Y. 341; Story on Bail. § 501. 12. Lee v. Burgess, 9 Bush, 652. the transportation of "goods, wares and merchandise," it has been held that the companies were not liable for packages of money or bank bills, they not being goods, wares or merchandise, unless the liability could be imposed by showing that, by usage and custom, the carriage of such packages had grown to be a part of their business.13 But where such usage is shown, the owners of the boat may be held liable.14 13. Sewall v. Allen, 6 Wend. 346; Citizens' Bank v. The Nantucket S. B. Co., 2 Story, 33. 14. Kirtland v. Montgomery, 1 Swan 452; Hosea v. McCrory, 12 Ala. 349. In Cincinnati, etc., Mail Co. v. Boal, 15 Ind. 345, it was shown to have been long a custom for the clerks of the boats of the line to carry packages of money from one port to another, without compensation, further than the expec tation that for the favor thus conferred the boat would be preferred for freight, in case the package was accompanied by an order for goods; but it was held that the boat owners were not liable for the loss of such packages because there was no fixed or certain remuneration, nor that any could be recovered; and because it did not appear that the custom of carrying such packages had grown up with the knowledge of the owners, or was other than a mere accommodation usage. This question as to the liability of the owners of steamboats for money packages intrusted to of ficers of the boat for carriage has been several times before the su preme court of Missouri, which has uniformly declined to hold such owners liable, because no well-known or established usage for such boats to carry money or bank-notes for compensation as was necessary to fix the liability upon the owners was proven. In Whitemore v. The S. B. Caroline, 20 Mo. 513, the language used was that the evidence showed "what usually appears in actions of this sort-that persons are willing to have their money carried as a favor, and at the same time to hold the boat liable for its loss. Freight or money must be proportioned to the risk assumed. No owner of a boat would permit her to carry money without a reward compensating for the risk if he was aware that he would be liable in the event of loss. Persons use the captains or clerks of steamboats to carry money gratuitously, and hire is never heard of until the money is lost, and then some person is hunted up to prove that some time in the course of his life he carried money on a steamboat for hire, and this is showing a usage. If boats would invariably charge a compensating hire for carrying money, and this was universally known, the business of carrying money by boats would soon be at an end. Persons cannot trust money with clerks, to be carried as a favor, and afterwards, when the money is lost, be permitted to show that it was to be transported for hire. This thing of hire is scarcely ever heard of Sec. 87. (§ 75.) Whether railroad transporting cars by contract is common carrier. And it has been held that if the owner of the goods, by contract with a railroad, hire from it cars for the loading and transportation of the goods, the road agreeing to furnish the motive power and the use of its road only in the transportation, it will not be considered that the company, in thus transporting the goods, does so in the capacity of common carrier, and that it will not be held liable for any loss or damage to the goods, under such circumstances, not occasioned by its negligence.15 This, however, has been disputed, and it has been elsewhere held that under such circumstances the railroad company is still liable, as a common carrier, for the safety of the goods.16 Sec. 88. (§ 75a.) Same subject-How, when railroad company does not own cars-Circus train.-A similar question is raised where the railroad company does not own or furnish the cars, but agrees to furnish the track and motive power for the transportation of loaded cars owned or furnished by the other party. Cases of this character, in which railroad companies have by contract, undertaken to transport circus cars, owned and regulated by circus companies, have several times come before the courts, and the views taken were that the railroad companies did not, by such contracts, assume the duties and obligations of common carriers.17 Thus in the case of Coup v. but in the case of loss; and then to make the boat or owner liable would be great injustice. There is no reciprocity in it." And see, to the same effect, Chouteau v. The S. B. St. Anthony, 16 Mo. 216, and 20 id. 519. The question was no doubt formerly of much greater importance than now, when so many other and safer modes of making remittances of money than by steamboats as carriers can be employed. 15. E. Tenn., etc., R. R. v. Whittle, 27 Ga. 535; Railroad v. Dunbar, 20 Ill. 623; Kimball v. 17. Robertson v. The Railroad, 156 Mass. 525, 31 N. E. Rep. 650, 32 Am. St. Rep. 482; Railroad Co. t. Wallace, 66 Fed. 506, 14 C. C. A. 257; 24 U. S. App. 589, 30 L. R. A. 161; Forepaugh . The Railroad, 128 Penn. St. 217, 18 Atl. Rep. 503, 15 Am. St. Rep. 672, 5 L. R. A. 508; Wilson v. The Railroad, 129 Fed. 774, affirmed, 133 Fed. 1022, 66 C. C. A. 486. |