for the continuance of the relation of common carrier of goods and shipper? The vicissitudes of life, such as necessity, sickness, or accident, must frequently compel the leaving of the goods with the common carrier for temporary storage. Nor is authority lacking that the relation continues and governs this situation by its appropriate incident of negligence liability. Note the words of Chief Justice Church in Burnell v. The New York Central R. R. Co.:

"The duty of exercising care over property thus remaining in their possession, is a part of the duty of carriers, incidental it is true to their principal or main duty, but nevertheless incumbent upon them, and it is no less a duty growing out of their relation of carriers, because their liability is mitigated to that of ordinary bailees for hire. Besides this is the ordinary mode in which this business has been transacted, as the evidence in this case shows, and as all railroad companies are in the habit of doing. Baggage thus left is and always has been kept and cared for, and the manner of disposing of it, if not finally called for, was long since regulated by law (Laws of 1837, p. 311), and it is presumed that the parties contracted with reference to the existing state of facts, and to the customary manner of transacting such business.'

19 77

There are a number of conflicting views also as to the true nature of the liability for the safety of such goods. Some cases, quite properly recognizing the distinction between the corporate and unincorporated proprietor, have reached the conclusion that, since the railroad corporation was chartered solely to conduct the business of common carriage, and, therefore, possessed no legal capacity to enter into the separate and distinct public service. enterprise of warehouseman, it was merely a gratuitous bailee.

77 45 N. Y. 184, 188 (1871). Cf. Woodward, J., in McCarty v. New York & Erie R. R. Co., 30 Pa. St. 247, 251 (1858): "It is insisted upon by the plaintiffs, that the reception and retention of the goods in the defendants' storehouse was merely accessory to, and arising out of, the transportation of the goods... that the warehouse, in a word, is a mere incident to their business as common carriers, and that the duty of the carrier covers the entire contract, principal and incident. . . ." (At p. 253.) "The cases, English and American, . . . fully maintain these distinctions, and show clearly that where the contract of carriage has been fully performed, we are not at liberty to regard the storage as incidental or accessory to that contract, but as constituting a new and different relation with the owner, or consignee."

For instance, in the case of Michigan etc. R. R. Co. v. Shurtz,78 the court, in holding that the railroad company was not liable as insurer for the destruction of wheat deposited in its warehouse to await shipping instructions, said:

"By their charter the company have no right to charge as warehousemen, for storage of goods awaiting transportation. . . . While the wheat was lying in their warehouse awaiting the determination of Shurtz as to its destination, the company cannot be regarded as anything more than gratuitous bailees, and are liable only as such." 79

A like result has been reached in some instances independently of the character of the proprietor, on the ground that this custody and protection, in the absence of an express agreement to pay therefor, is but a free service.80 The fallacy of this view has been exposed in the case of Brunson v. Atlantic Coast Line R. R. Co.:

81

"Until a reasonable time has elapsed after arrival, the common carrier is practically liable as an insurer; but after that time it is only bound as a warehouseman to exercise ordinary care. As a warehouseman the railroad company has the right to exact storage charges as long as such relation exists in the particular case, and, until it ceases to be a warehouseman its liability for ordinary negligence continues. The fact that it has the right as a warehouseman to collect storage charges makes it a bailee for hire and prevents it from claiming that it was merely a gratuitous bailee, at least before it gives notice that it will not insist upon such charges, and will not longer hold possession of the property as a warehouseman. . . . Therefore, the defendant was not a gratuitous bailee and must necessarily sustain to the plaintiffs either the relation of common carrier or warehouseman."

787 Mich. 515 (1859).

79 At p. 518.

80 Basnight v. Atlantic and N. C. R. R. Co., 111 N. C. 592, 16 S. E. 323 (1892); Hapgood Plow Co. v. Wabash Ry. Co., 61 Mo. App. 372 (1895); Vaughn v. N. Y. etc. R. R. Co., 27 R. I. 235, 61 Atl. 695 (1905).

Cases of this type can usually be explained on other grounds, as Professor Beale has pointed out with reference to the Basnight case. Joseph H. Beale, "The Beginning of Liability of a Carrier of Goods," 15 YALE L. J. 207, 213. 81 76 S. C. 9, 13, 56 S. E. 538, 539 (1907). See Brown Shoe Co. v. Hardin, 77 W. Va. 611, 87 S. E. 1014 (1916). See also 4 ELLIOTT, RAILROADS, 3 ed., 793.

Indeed, no more is needed to refute this theory of gratuitous bailment than the common-law definition of common carrier: one who carries from point to point for all men indifferently for hire. His acceptance of the goods in the way of his employment, i.e., to be transported immediately, or after certain matters have been adjusted, is a service which the shipper, as a reasonable man, must know is rendered for reward. It follows that he would be liable on the common count quantum meruit for the reasonable charges for such services as he receives.82 The South Carolina court, therefore, correctly held that to constitute the carrier a gratuitous bailee, it must appear that he has affirmatively waived his right to a reasonable remuneration.

Other courts and text-writers have attempted to hedge with respect to the doctrine of shifting relations by saying that when goods were held for the convenience of the shipper or at destination after the actual transit had been completed, the relation of carrier had ceased and the proprietor was simply liable as a bailee for hire.83

This is still the doctrine of shifting relations, however, only cloaked in a more plausible form. It substitutes a shifting from the relation of common carrier of goods and shipper to the ordinary bailment-for-hire relation, a doctrine logically and analytically of the same nature as that which it purports to replace or avoid.

84

Mr. Justice Bradley, rejecting a like contention with respect to the effect of a contract limiting the carrier's liability, in his famous opinion in Railroad Co. v. Lockwood, employed language equally applicable here:

"The theory occasionally announced, that a special contract as to the terms and responsibilities of carriage changes the nature of the em

82 Bastard v. Bastard, 2 Show. 82 (1679); Knox v. Rives, Battle & Co., 14 Ala. 249, 260 (1848); Johnson v. Pensacola etc. R. R. Co., 16 Fla. 623, 660 (1878); Louisville etc. R. R. Co. v. Wilson, 119 Ind. 352, 21 N. E. 341 (1889). See ANGELL, CARRIERS, 4 ed., § 392.

83 Parler v. Davis, 115 S. E. 818 (S. C., 1923); Fort Worth etc. R. R. Co. v. Tomson, 250 S. W. 747 (Tex. Civ. App., 1923). See 2 HUTCHINSON, CARRIERS, 3 ed., § 684; 4 R. C. L. 761-763.

84 Contrary to the general impression, the common-law bailment is relational rather than contractual in nature. See 2 WILLISTON, CONTRACTS, §§ 1032,

ployment, is calculated to mislead. The responsibilities of a common carrier may be reduced to those of an ordinary bailee for hire, whilst the nature of his business renders him a common carrier still. Is there any good sense in holding that a railroad company, whose only business is to carry passengers and goods, and which was created and established for that purpose alone, is changed to a private carrier for hire by a mere contract with a customer, whereby the latter assumes the risk of inevitable accidents in the carriage of his goods? " 85

As pointed out above by Chief Justice Church, the duty of caring for the property transported, "is a part of the duty of carriers, incidental it is true to their principal or main duty, but nevertheless incumbent upon them, and it is no less a duty growing out of their relation of carriers, because their liability is mitigated to that of ordinary bailees for hire." 86

Consequently, the carrier rightly exercises his common-law lien as carrier for the entire charges, and need not assert two distinct liens, — the one as common carrier for the freight, and the other as warehouseman for storage charges. 87

86 Burnell v. New York Central R. R. Co., 45 N. Y. 184, 188 (1871). Professor Beale, with his usual acumen, makes this precise point in respect to the ferryman: "In the case of a ferry, the fact that the owner usually goes along with goods and often retains the entire charge and management of them... materially modifies the relation of carrier and shipper so that the carrier may not be responsible for any injury caused by defect in placing or managing the property; but this does not affect the position of the ferryman as carrier. While his liability is less in amount, it is the same in kind as that of an ordinary carrier, and the time of its beginning is settled upon the same principle." Joseph H. Beale, "The Beginning of Liability of a Carrier of Goods," 15 YALE L. J. 207, 216.

87 Boston and Maine R. R. v. Oceanic Steam Nav. Co., 226 Mass. 509, 116 N. E. 260 (1917); Kawcabany v. Boston & Maine R. R., 199 Mass. 586, 85 N. E. 846 (1908); Cooley v. Minn. Transfer Ry. Co., 53 Minn. 327, 331, 55 N. W. 141 (1893); Illinois Central R. R. Co. v. Alexander, 20 Ill. 23 (1858). See Western Transp. Co. v. Barber, 56 N. Y. 544 (1874); Wabash R. R. Co. v. Pearce, 192 U. S. 179 (1904). See also SCHOULER, BAILMENTS, 3 ed., § 543; 2 MOORE, CARRIERS, 635. The Uniform Bill of Lading Act, § 26, has adapted this view. Cf. 2 HUTCHINSON, CARRIERS, 3 ed., § 866.

The English law, on the contrary, is said to restrict the carrier's lien to the charges for carriage only. See 4 HALSBURY, LAWS OF ENGLAND, 93-94. The case cited for this view, Great Northern Ry. Co. v. Swaffield, L. R. 9 Exch. 132 (1874), contained dicta on both sides of this question. See the excellent criticism of this case in this respect in "The Rights and Duties of Carriers as Warehousemen," 57 L. T. 207.

But what of the practical aspects of this doctrine? The common law, growing as it does by analogy to precedent, is peculiarly susceptible to the influence of a rule of thumb, and when that rule is one which the judge learned as school-boy law, its power is well-nigh irresistible. This is especially true amid the hurry and bustle of the present-day overburdened courts. Fortunately, the doctrine of shifting relations has been pretty well confined to the public service relations of common carrier and warehouseman and to the fact situations within the law of carriers, to meet which it originated. It is inherently a sweeping doctrine, however, and its true character should be brought home to bench and bar, that it may not become a source of further confusion in the law of public utilities.

88

The courts, when forced to really think the matter through, have here, as in the case of the so-called insurer liability, awakened to their error. Reference has been made to the Lockwood case, in which the United States Supreme Court rejected in no uncertain terms the attempted logical extension of this doctrine to effect a shifting from the public service relation of common carrier of goods to the private relation of bailee for hire, to correspond with a diminished measure of liability, denouncing the whole theory as impracticable and unfounded in law. It should be noted that this was decision, not dictum. The only basis for denying the supremacy of the express contract of the parties, purporting to eliminate both the non-fault and negligence incidents of liability, must be the continuance of the public relationship of common carrier of goods and shipper. Other cases have, with the Burnell case,89 repudiated the practical as well as

The authorities are also in conflict as to the carrier's right to a lien for demurrage:

The majority American view sustains the lien. Miller v. Mansfield, 112 Mass. 260 (1873); Schumacher v. Chicago etc. Ry. Co., 207 Ill. 199, 69 N. E. 825 (1904); Baltimore & Ohio R. R. Co. v. Luella Coal Co., 74 W. Va. 289, 81 S. E. 1044 (1914). Contra, Wallace v. B. & O. R. R. Co., 216 Pa. St. 311, 65 Atl. 665 (1907); Birley v. Gladstone, 3 M. & S. 205 (1814).

88 Supra, note 62.

89 See note 77, supra. Other cases in accord with the Burnell case are: Matteson v. N. Y. C. etc. R. R. Co., 76 N. Y. 381, 384 (1879); National Line Steamship Co. v. Smart, 107 Pa. St. 492, 500-501 (1884); Brown Shoe Co. v. Hardin, 77 W. Va. 611, 87 S. E. 1014 (1916). See 4 ELLIOTT, RAILROADS, 3 ed.,