delivery, and that it could not be received at the delivering station until after office hours, it was held that by receiving such telegrams the telegraph company assumed the obligation of delivering it, and the company was not permitted to excuse itself for failure to deliver promptly by showing that the telegram was received after business hours at the receiving office.62 When the hour of presenting a telegram for transmission is an unusual business. hour, that fact has been held sufficient to put the sender on inquiry as to whether the telegram would not be delivered, and in the absence of a special contract on the part of the company to receive, transmit, and deliver promptly a telegram received at such an hour, it will be presumed that the sender of the telegram contracting with such company, is bound by the reasonable rules of said company as to business hours.63

62 Brown v. W. U. Tel Co., 6 Utah 219, (1889). 63 W. U. Tel. Co. v. Neel, 86 Tex. 368, (1894).

CHAPTER II

GENERAL DUTIES AND POWERS OF

COMMON CARRIERS

§ 20. Definition. A common carrier is one who undertakes for hire, to transport persons or goods, or both, from place to place, for all persons indifferently. The distinction between a common carrier and a private or special carrier is that the former holds himself out in common, that is, to all persons who choose to employ him, as ready to carry for hire, while the latter agrees in special cases with some private individual to carry for hire.1 Thus it has been held that a farmer who did hauling was a common carrier, even though transportation was not his principal business.2 The mode of transportation is immaterial; if there is a general undertaking on the part of any one for hire to transport goods or persons for all who desire such service, such an one is a common carrier. In the aggregate body of common carriers are included the owners of stagecoaches, omnibuses, wagoners, teamsters, cartmen, hackney coachmen, draymen, railroad companies, express companies, fast freight companies, masters and owners of ships, steamboats, barges, canal boats, and public ferrymen, and in general all persons who hold themselves out to the world as ready to carry for all who wish to employ them, for a reasonable compensation.*

§ 21. Distinctions between Common Carriers and Other Similar Employments. Towboats are common or special carriers, depending upon conditions of their employment and manner of discharge of their duties. If the towboat is employed as a mere means of locomotion and is under

1 Allen v. Sackrider, 37 N. Y. 341, (1867).

2 Gordon v. Hutchinson, 1 W. & S. 285, (1841).

3 Hall v. Renfro, 3 Met. (Ky.) 51.

42 Kent's Comm. 598.

entire control of the towed vessel, and the goods in the towed vessel remain in the possession of the owner thereof to the exclusion of the owner of the towboat, or if the towing is casual merely, and not a regular business between fixed points, the towboat is not a common carrier; but if the towboat plies regularly between fixed points, towing for hire, and for all persons, barges laden with goods, and takes into full control and possession the property thus transported, it is under such circumstances a common carrier. Where one had a large circus property including horses, wild animals, and various paraphernalia, which he placed on cars owned by himself for transportation from place to place, and made a written contract with a railroad company to furnish motive power to haul said cars, as a special train to and from certain places fixed in said contract, it was held as to such employment, that the railroad company was not a common carrier, and that the owner of the circus paraphernalia and train could not have demanded as a matter of right that the railroad company furnish motive power to haul the train. It appears that the main distinguishing feature between such employments as the towing of vessels under the direction of the owner of the vessel, and the hauling of the circus train, and that of a common carrier, is that in the two instances mentioned the goods remain in the custody and care of the owner, and such owner directs the motive power; while in the case of a common carrier, the custody and control of the goods is turned over to the carrier, and the carrier directs the operation of the motive power. This is in accord with the ancient grounds for the extraordinary liability of common carriers, which was based upon the carriers' actual custody and control of the goods carried and upon the opportunity thus afforded carriers for cheating and defrauding shippers by combining with thieves in taking the goods under such circumstances that the shipper would be unable to make proof of such collusion and fraud."

Bussey & Co. v. Miss. Valley Trans. Co., 24 La. Ann. 165, (1872).

• Coup v. Wabash, St. L. & Pac. Ry. Co., 56 Mich. 111, (1885). Forward v. Pittard, 1 Term. R. K. B. 27, (1785).

Illustration. A telegraph company is held not to be a common carrier for the following reasons stated by the court:

"A common carrier has exclusive possession and control of the goods to be carried with peculiar opportunities for embezzlement, and collusion with thieves, the identity of the goods received with those delivered cannot be mistaken, their value is capable of easy estimate and may be ascertained by inquiring of the consignor and the carrier's compensation fixed accordingly; and his liability and the damages for failure to carry safely are measured by the value of the goods. A telegraph company is intrusted with nothing but an order or message, which is not to be carried in the form in which it is received, but is to be transmitted or repeated by electricity, which is peculiarly liable to mistake, which cannot be the subject of embezzlement, which is of no intrinsic value; the importance of which cannot be estimated except by the sender nor ordinarily disclosed by him without defeating his own purpose; which may be wholly useless if not forwarded immediately for the transmission of which there must be a simple compensation, and the measure of damages for the failure to transmit or deliver which has no relation to any value which can be put on the message itself." 8

Express companies are common carriers. The name or style under which a company assumes to carry on its business is wholly immaterial. The real nature of its occupation and of the legal duties and obligations which the law imposes upon it are to be ascertained from the consideration of the kind of service which it holds itself out to the public as ready to render to those who have occasion to employ it. Express companies exercise the employment of receiving, carrying, and delivering goods, wares, and merchandise, for hire, on behalf of all persons who may see fit to require their services. In this capacity they take property from the custody of the owner, assume entire possession and control of it, transport it from place to place, and deliver it at a point of destination to some consignee or agent there authorized to receive it. The fact 8 Grinnell v. W. U. Tel. Co., 113 Mass. 299, (1873).

that such companies do not own the means by which the carriage is effected does not affect their liability."

§ 22. Liability of Common Carrier. The distinction between the employment of common carrier and that of other related occupations is important because of the extraordinary liability of common carriers. A common carrier by the ancient common law was held liable for all due care and diligence, and for any negligence he was suable on his contract; and further, a common carrier of freight was liable as insurer for its loss by any accident, except such as was caused by the act of God or the king's enemies. It was said by Lord Mansfield that:

"To prevent litigation, collusion, and the necessity of going into circumstances impossible to be unraveled, the law presumes against the carrier unless he shows it was done by the king's enemies or by such an accident as could not happen by the intervention of man, such as storms, lightning, and tempests. If an armed force come to rob the carrier of his goods he is liable for the reason that otherwise the carrier might contrive to be robbed on purpose and share the spoil. No matter what degree of prudence may be exercised by the carrier and his servants, although the delusion by which it is baffled or the force by which it is overcome be inevitable, yet if it be the result of human means, the carrier is responsible." 10

The term "public enemy" has in general a technical legal meaning. It applies to foreign nations with whom there is open war, and to pirates who are considered at war with all mankind, but it does not include robbers, thieves, rioters, or insurgents, whatever be their violence.11 And such remains the liability of the common carrier of goods to this day, in the absence of special agreement between the carrier and the shipper.12

§ 23. General Duties of Common Carriers. A common carrier is engaged in a public employment, and takes upon

9 Buckland v. Adams Ex. Co., 97 Mass. 174.

10 Forward v. Pittard, King's Bench, 1 Term. R. 27, (1785). 11 So. Ex. Co. v. Womack, 1 Heisk. (Tenn.) 256, (1870).

12 Cau v. Texas & Pac. Ry. Co., 194 U. S. 427, (1904).