HARRINGTON v. McSHANE

(Supreme Court of Pennsylvania, 1834. 2 Watts, 443, 27 Am. Dec. 289.) Writ of error. The trial court charged the jury that if they believed the evidence the defendants were liable. Defendants assign this instruction as error.

SERGEANT, J. It appears by the evidence that it is the usage on the Western waters for steamboat owners, in addition to the business of carrying goods, to act as factors, to make sales and returns, without being paid any other consideration than the freight, and that the defendants, by their agent Hyatt, who was also part owner in the boat, received the plaintiff's flour to transport to Louisville and sell, in consideration of being paid a certain freight per barrel. The flour was taken there and sold, and the money which it produced was in the boat on its return up the river, separated from other moneys, and was destroyed by a fire which consumed the boat and its contents. This fire was the result of accident, without any neglect of the defendants or the master and crew; the latter having used every possible exertion to rescue the money from the flames.

* * *

The question of the defendant's responsibility in the present case depends on the character in which they held the money when the loss occurred. If they were merely factors, they are not responsible; if they were carriers, the reverse must be the case. Had the flour been lost on the descending voyage by a similar accident, there could be no doubt whatever of the defendants' liability; they were certainly transporting it in the character of carriers. On their arrival at the port of destination and landing the flour there, this character ceased and the duty of factor commenced. When the flour was sold, and the specific money, the proceeds of sale, separated from other moneys

ter who in a foreign port advertises that he is ready to enter into charters. The shipowner or master has a right to consider the credit and responsibility of the proposed charterer, and to reject his proposal if it be thought expedient. One who puts up his ship as a general ship does, by so doing, by the ordinary understanding of shipowners and merchants, hold himself out as ready to carry all reasonable goods brought to him. And so does a shipowner who runs a line of ships from ports to ports, habitually carrying all goods brought to him."

In Steele v. McTyer, 31 Ala. 667, 674, 70 Am. Dec. 516 (1858), there was evidence that the flatboats in which cotton was carried down the river to market were broken up for lumber at the end of a single trip. Walker, J., said: "If the appellants built or procured a flatboat, 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. * * * 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."

The statement of facts has been rewritten, and part of the opinion omitted.

in the defendants' hands and set apart for the plaintiffs, was on its return to them by the same boat, the character of carrier reattached. The return of the proceeds by the same vessel is within the scope of the receipt and of the usage of trade as proved, and the freight paid. may be deemed to have been fixed with a view to the whole course of the trade, embracing a reward for all the duties of transportation, sale and return.

If the defendants, instead of bringing the money home in their own vessel, had sent it on freight by another, there would have been to the plaintiffs the responsibility of a carrier, and there ought not to be less if they chose to bring it themselves. If they had mixed the money up with their own, they would have no excuse for nonpayment. The defendants can be relieved from responsibility only by holding that the character of carrier never existed between these parties at all, or that, if it existed on the descending voyage, it ceased at its termination, and that of factor began and continued during the ascending voyage. But if the defendants bring back in the same vessel other property, the proceeds of the shipment, whether specific money or goods, they do so as carriers, and not merely as factors. See Story on Bailm. 350.

In the cases of Kemp v. Coughtry, 11 Johns. (N. Y.) 107, and Emery v. Hersey, 4 Greenl. (Me.) 407, 16 Am. Dec. 268, the points involved in the present case were discussed, and received the same determination.

Judgment affirmed.

HONEYMAN v. OREGON & C. R. CO.

(Supreme Court of Oregon, 1886. 13 Or. 352, 10 Pac. 628, 57 Am. Rep. 20.) LORD, J. This is an action brought by the plaintiff against the defendant as a common carrier to recover damages for the alleged killing of a dog delivered to the defendant to be transported by its railway from Portland to North Yamhill. * * * Issue being taken by the reply, a jury was impaneled and sworn, and, after hearing the evidence of the plaintiff, the defendant moved the court for a nonsuit upon the ground that the plaintiff had failed to prove a cause sufficient to be submitted to the jury. The motion for nonsuit was allowed, and judgment was rendered against the plaintiff, from which this appeal was taken. * *

*

The evidence submitted and included in the bill of exceptions does not prove the duty or undertaking as alleged. The facts disclose that the defendant did not hold itself out as a common carrier of dogs, or assume their transportation in that character, but that the defendant expressly refused to accept hire and furnish tickets for their trans

Parts of the opinion are omitted.

portation. The evidence shows that when the party having in charge the dogs applied to the ticket agent of the defendant for transportation for himself and dogs the agent refused tickets for the dogs, and referred him to the baggage master, who told him, "You know the rules about dogs;" but, as an accommodation, consented to take the dogs in his car, and promised to look after them, for which he received two dollars. These circumstances do not show that it was the business of the defendant to carry dogs, or to receive pay for their transportation, but that, as a matter of accommodation to a passenger, it permitted the baggage master, after the party was notified of the rules, to carry them in his car, and to accept pay for his care of them. It is true, as Mr. Justice Bradley said: "A common carrier may, undoubtedly, become a private carrier, or a bailee for hire, when, as a matter of accommodation, or special engagement, he undertakes to carry something which it is not his business to carry." Railroad Co. v. Lockwood, 17 Wall. 357 [post, pp. 445, 446]. Even in this view, if the arrangement, under the circumstances, made with the baggage master, may be construed to have any binding effect upon the defendant, the defendant can only be charged as a private carrier, or bailee, who undertook to carry what the facts show was not its business to carry, as a matter of accommodation, under a special arrangement. In such a case, as Isham, J., said, "the relation is changed from a common carrier to a private carrier, and when such is the effect of the special agreement, they are not liable as common carriers; neither can they be declared against as such. It is possible there has been a breach of that express contract, and the plaintiff is, perhaps, entitled to damages. for the injuries he has sustained; but the action should have been brought on that contract, or for a breach of duty arising out of it, and not on the duty and obligation imposed on common carriers." Kimball v. Rutland R. Co., 26 Vt. 249, 62 Am. Dec. 567.

The complaint must set out the facts of the undertaking or duty as it is. A plaintiff cannot declare upon one undertaking, duty, or obligation, and recover upon another. So that in any view of the facts, as presented by this record, there would seem to be no error, and the judgment must be affirmed.'

7 See, also, Chicago, etc., Co. v. Wallace, 66 Fed. 506, 14 C. C. A. 257, 30 L. R. A. 161 (1895), transportation of circus.

PART II

THE CARRIER'S UNDERTAKING

CHAPTER I

THE CONDUCT OF TRANSPORTATION

SECTION 1.-DISPATCH

TAYLOR v. GREAT NORTHERN RY. CO.

(Court of Common Pleas, 1866. L. R. 1 C. P. 385.)

Appeal from the county court of Lincolnshire. The action was. brought to recover the sum, amongst others, of £4 16s. 6d., for damage. sustained by the plaintiff in consequence of a delay in the delivery of three hampers of poultry, which he had sent by the defendants' railway for the early London market. There was no special contract made by the defendants to deliver the goods in time for any particular market. The delay was wholly occasioned by an accident which occurred on the defendants' line between Hitchin and London, to a train of the Midland Railway Company, who have running powers over that portion of the defendants' line. The accident resulted solely from the negligence of the servants of the Midland Railway Company. The county court judge decided in favor of the plaintiff on the ground that as the Midland Railway Company used the said railway by the permission of the defendants, the latter were responsible for delay caused by the negligence of the servants of the former company, and, therefore, that the delivery in this case was not within a reasonable time. The defendants having appealed from this decision,

ERLE, C. J. I am of opinion that our judgment should be for the defendants. I think a common carrier's duty to deliver safely has nothing to do with the time of delivery; that is a matter of contract, and when, as in the present case, there is no express contract there is an implied contract to deliver within a reasonable time, and that I take to mean a time within which the carrier can deliver, using all reasonable exertions. The ground upon which the decision went

against the defendants was that, as the Midland Railway Company used the Great Northern line by the defendants' permission, the defendants were responsible for a delay caused by the Midland Company on their Great Northern line. But in so deciding I think the county court judge took an erroneous view of the relations between the two companies. The legislature have declared by many acts that it is for the public advantage that railway companies should have running powers over each other's lines, and it has specially declared it to be so in the case of the present agreement, which is confirmed by 23 Vict. c. 67. The Midland Railway Company, therefore, were not merely using the line by the defendants' permission but were exercising a statutory right, and the defendants were not responsible for their acts.

BYLES, J. I am of the same opinion. The first duty of a common carrier is to carry the goods safely, and the second to deliver them, and it would be very hard to oblige a carrier, in case of any obstruction, to risk the safety of the goods in order to prevent delay. His duty is to deliver the goods within a reasonable time, which is a term implied by law in the contract to deliver; as Tindal, C. J., puts it, when he says, "the duty to deliver within a reasonable time being merely a term ingrafted by legal application upon a promise or duty to deliver generally." Raphael v. Pickford, 5 M. & G., at page 558.

My Brother HAYES treats ordinary and reasonable time as meaning the same thing, but I think reasonable time means a reasonable time looking at all the circumstances of the case. The delay in this case was an accident, as far as the defendants were concerned, entirely beyond their control, and therefore I think they are not liable. Judgment for the defendants.1

THE ELIZA.

(District Court, D. Maine, 1847. 2 Ware, 318, Fed. Cas. No. 4,348.) This was a libel filed against the schooner Eliza, for the breach of a parol contract for the transportation of a quantity of lumber from the port of Saco to New York. The libel was filed on the 4th of February, and the contract was entered into on the last day of November, or the first of December. The cargo was put on board, December 1st, while the schooner lay at the upper ferry, and she then dropped down to the lower ferry to avoid being detained by the ice, which began to be made in the river. She lay there, without proceeding on her voyage, to the time of the filing of the libel, and in fact continues there to

1 Keating and Montague Smith, JJ., delivered concurring opinions. Acc. Conger v. Hudson R. Co., 6 Duer (N. Y.) 375 (1857), post, p. 374; Vicksburg, etc., Co. v. Ragsdale, 46 Miss. 458 (1872); Brown, J., in The Caledonia, 157 U. S. 124, 140-144, 15 Sup. Ct. 537, 39 L. Ed. 644 (1895) and cases cited.