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press or implied, *existing, in relation to the things carried, between the express company and the principal carriers.

5. It is upon the same principle that the owner of goods is allowed to sue any of the subsequent carriers in the line of transportation, guilty of a default in duty, although his contract was made with the first carrier, to whom he delivered the goods. This is indeed but a general principle of the law of contracts, familiar to every lawyer.1

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And where a box containing goods, some of which were the property of one of the plaintiffs and some of another, was delivered to a railway company by a third party on behalf of the plaintiffs, the box being addressed to one of the plaintiffs, and was received by him at the place of destination, but the contents had been abstracted, it was held there was evidence of a joint bailment, in respect of which a joint action might be brought for the loss of the goods.5

But it was considered that the mere breaking of the box and abstraction of the contents was not evidence of the commission of felony by the company's servants which could be submitted to the jury, although shown to have occurred while in the charge of the company.5

6. In England and upon the continent, it is the practice for 3 Sanderson v. Lamberton, 6 Binney, 129.

4 Lapham v. Green, 9 Vt. R. 407; Young v. Hunter, 4 Taunt, 582; Paterson v. Gandasequi, 15 East, 62; Denman, Ch. J., in Sims v. Bond, 5 B. & Ad. 389. But see Weed v. S. & S. Railw., 19 Wend. 534, where the principals, it is said, cannot sue, on a contract made by their agent to carry his trunk and money, for expenses, if the trunk is not their property, but borrowed by the agent. In Stoddard v. Long Island Railw., 5 Sand. 180, it was held that the owners of the goods were bound, by any special contract, between the agents for forwarding, and the company upon whose trains the goods were forwarded. In Steamboat Co. v. Atkins & Co., 22 Penn. St. 522, it was considered that the forwarding merchant had such an interest in a contract made by him for forwarding goods, that he might maintain an action in his own name for a violation of it. But see King v. Richards, 6 Whart. 418; opinion of Fletcher, J., Robinson v. Baker, 5 Cush. 145. See, in confirmation of the rule laid down in the text, Langworthy v. New York & New H. Railw., 2 E. D. Smith, 195.

But in order to charge the carrier by a delivery to the servant, it must appear that it was the business, or at least the practice of the servant, to receive such parcels for carriage, otherwise the carrier is not liable. Blanchard v. Isaacs, 3 Barb. 388. Fisher v. Geddes, 15 La. Ann. 14.

'Metcalfe v. London Br. & South Coast Railw., 4 C. B. (N. S.) 307, 311.

the companies themselves to carry parcels, by express, which is here done by others chiefly, under contracts with the company.

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7. But it cannot be questioned, we think, that the express companies who receive goods for transportation to remote points, without any special undertaking except what is implied from the manner of accepting the charge, are responsible as common carriers, and so are also the companies employed by such expressmen to perform the transportation, without being entitled to claim any exemption from the full measure of their responsibility, on the ground of any special arrangement between themselves and those from whom they accepted the goods."

8. Such companies following the business of carrying parcels between New York and Brooklyn, and such as carry the baggage of passengers from one depot to another in the city of New York, are common carriers, and liable as such.8

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9. And it has been said that the courts are justified in assuming that the owners of omnibus lines are common carriers ex vi termini, and without any distinct evidence upon the point. And railways are regarded as common carriers, although not so named in their charter.10

10. We have prepared an elaborate article upon this general subject, so far as express companies are concerned, and embracing also their general duties, which appeared in the Law Register of the last year, and which we deem of sufficient convenience to the profession to be here inserted.11

• Mercantile Mutual Insurance Co. v. Chase, 1 E. D. Smith, 115; Sherman v. Welles, 28 Barb. 403.

7 Longworthy v. New York & H. Railw., 2 E. D. Smith, 195.

Richards v. Wescott, 2 Bosw. 289.

• Parmelee v. McNulty, 19 Ill. R. 556.

10 Chicago & Aurora Railw. v. Thompson, 19 Ill. R. 578.

5 Am. Law Reg. N. S. 1.

THE RESPONSIBILITIES AND DUTIES OF EXPRESS CARRIERS.

1. This article contains an epitome of the law in regard to express carriers.

2. Carriers by express responsible as common carriers.

3. And, in addition, the owners of goods have the responsibility of the carriers employed by such express company.

4. The same rule established by an early American case. Statement of facts.

5. Statement of the points decided. Responsibility of general carriers.

6. Contracts exonerating carrier for neglect against sound policy. Course of decisions, in America, upon analogous questions.

7. Finally settled, that carriers may contract for exemption from that extraordinary responsibility imposed by common law.

8. It was next attempted to allow them to contract for exemption from all responsibility. English statute. American rule much the

same.

9. It is upon this ground that carriers are held

COMMON CARRIERS.

responsible for parcels carried by their servants, in the due course of their business. 10. The distinctive character of express carriers is, that they make personal delivery to the consignees upon their route.

11. Stipulations in the bills of lading executed by express companies, how far binding upon the owners of goods.

12. There should be the clearest evidence of free assent, or the conditions excusing the carrier from responsibility should not be held binding. 13. How far the consignor, or his agent, may stipulate for the transportation.

14. By the construction of the English statute against carriers making discrimination among their customers, it is held they cannot receive parcels of express companies and close their offices against others.

15. Illustration, from an English case, as to what degree of evidence will charge the owner of goods with knowledge of conditions inserted in the bill of lading.

16. The English rule as to responsibility of different carriers constituting a continuous line. The first carrier alone responsible to the owner. 17. The American rule allows the owner to sue any of the companies in fault.

18. Where there is no contract and no business connection extending to the entire route, the first carrier is only responsible for his own line.

19. Express carriers held responsible for safe transportation over their own line, and safe delivery to next carrier.

§ 153.

20. Analysis of more recent decisions, and new questions affecting express carriers.

(1). Dangerous character of goods must be com-
municated to carrier.

(2). Held, in New Jersey, that carrier cannot
stipulate for exemption from responsibility,
for his own negligence.
(3). The first carrier, as to the transportation
beyond his own route, is responsible only
as a forwarder, for ordinary care and dil-
igence. Lien.

(4). General duty of carriers. English statute.
Duty as to delivery.

(5). Express companies should deliver at place
of business of consignee, within business
hours, and as soon as possible after ar-
rival.

(6). If they undertake, for hire, the collection of
bills and notes, they are all responsible
for all defaults in the course pursued,
caused by their own neglect or mistake.
(7). Railways, in drawing cars over their road,
responsible as carriers.

(8). The form of action and the extent of the re-
covery.

(9). The damages recoverable of the carrier for loss or injury of the goods is limited to that affecting the goods; expected profits not included.

(10). The carrier is entitled to a receipt for goods, as delivered in good condition, and the owner, to time and opportunity to examine

1. In attempting to give an outline of the responsibilities and duties of what are known familiarly, in this country, as express carriers, but more commonly called, in England, carriers of packed parcels, we shall be able to do little more than to epitomize what we have said in other parts of the work, with the additional convenience of bringing all the cases bearing upon the subject into one continued section.

2. There was, for a time, some question made in the courts how far these express carriers were to be subjected to the responsibilities of common carriers of goods and merchandise. But it seems to be now conceded, on all hands, that the express carrier is clearly responsible to those interested in any goods committed to his care for transportation, to the full extent of the responsibility of common carriers of goods. This has been so often declared by different courts of the highest authority, that there seems now no ground to question its entire soundness; and it will scarcely be useful to repeat here the numerous decisions upon the point. The following will show sufficiently the general current of the cases in this country, in all which it is held that express companies are responsible as common carriers: The Mercantile Mutual Insurance Co. v. Chase, 1 E.

D. Smith, 115; Sherman v. Wells, 28 Barb. 403; Baldwin v. The American Express Co., 23 Ill. R. 197; s. c. in error, 26 Ill. R. 504; Lowell Wire-Fence Co. v. Sargent, 8 Allen, 189.

3. In England, and upon the continent of Europe, so far as we know, the railway companies act to a considerable extent as the carriers of parcels of all sizes and kinds, although, as before stated, they also carry packed parcels addressed to different consignees, and in the charge of some general or special agent acting on behalf of the consignees. In all such cases, whether such packed parcels are in charge of a general express agent, who makes that his constant employment, between certain points, and who would thereby himself incur also the responsibilities of a common carrier, or of a special agent of the consignees, acting upon a single occasion, and who would thereby himself incur only the responsibility of an ordinary agent, in both cases the owners have a right to resort to the responsibility of the company conveying the packages, and to hold them responsible to the full extent of common carriers generally, unless there is some stipulation between the company and the agents from whom they received the goods that they shall incur a less degree of responsibility. Redfield on Railw., § 153, pl. 6; Baxendale v. Western Railw. Co., 5 C. B. N. S. 336; Garton v. Bristol & Exeter Railw. Co., 7 Jur. N. S. 1234; Branly v. Southeastern Railw. Co., 9 Jur. N. S. 329.

4. The same rule was established in this country, as it were, in the very infancy of transportation by express companies, in a case where the property was of considerable value ($ 18,000), and where the subject was considered and discussed in all its bearings by the Supreme Court of the United States. New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344. The leading opinion of the court was here delivered by Mr. Justice Nelson, and concurred in by Chief Justice Taney and Justices McLean and Wayne. Some of the other judges concurred in the result, but upon other grounds, and others dissented, but chiefly upon the ground of want of jurisdiction in the court, the suit being instituted in admiralty. This case must be considered as the leading American case, in regard to the duties of railways and steamboats, in the transportation of express packages, while in charge of the express agent.

The package in question in this case, had been intrusted by the plaintiffs below to William F. Harnden, a resident of Boston, and the originator, probably, of this mode of transportation upon railways and steamboats, who was, at the time, engaged in carrying "small packages of goods, specie, and bundles of all kinds, daily, for any persons choosing to employ him, to and from the cities of Boston and New York, using the public conveyances between those cities as the mode of transportation." He had entered into an agreement with the plaintiffs in error, the defendants below, by which, for $250 per month, he was allowed to transport upon their steamers his crate of pareels, "contents unknown"; the crate and its contents to be at all times at Harnden's risk, and the company not, in any event, to be responsible, either to him or his employers, for the loss of any goods or other things transported under the contract." Public notice was required to be given by Harnden to this effect, and he was also required to insert this condition, exempting the steamboat company from responsibility, in the

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receipt which he gave for goods transported by him upon their boats. This condition was in the following terms: "Take notice. William F. Harnden is alone responsible for the loss or injury of any articles or property committed to his care; nor is any risk assumed by, nor can any be attached to, the proprietors of the steamboats in which his crate may be and is transported, in respect to it, or its contents, at any time." The $ 18,000 was specie which the plaintiffs had employed Harnden to collect for them in the city of New York.

5. The points decided in this case are thus stated: The general owner of specie, who has employed an expressman to transport it for him, may maintain an action against the carriers employed by such expressman, and who are the proprietors of a steamboat upon which the same is transported, for its loss, through the fault of such proprietors, or their agents. But in such cases, the rights of the general owner are controlled by a valid contract between the expressman and the carriers employed by him. A stipulation, however, in such contract, that the carriers are not to be responsible in any event for loss or damage, cannot be construed to exonerate them for losses caused by their own want of ordinary care. We are not aware that these propositions have been seriously questioned or essentially qualified in the subsequent cases.

6. How far an express stipulation, on the part of the owner of goods committed to carriers for transportation, that the carrier shall be exonerated from all responsibility, even for the gross neglect of himself and his servants, can be regarded as a binding contract, and consistent with sound policy, is a question of too great extension and importance to be discussed here, as incidental to our main purpose. It is safe to assume, as the courts universally do, that no such result will be allowed to come about by anything less than the use of the most unequivocal language to that effect. All intendments and constructive inferences will be carried in the opposite direction. And when it becomes impossible to understand the contract between the carrier and the owner of the goods, in any other sense except that of exonerating the former for gross neglect, or even ordinary neglect, we trust the courts will maintain sufficient self-respect to declare the contract void. Redfield on Railways, § 161. It seems to involve a very curious anomaly, in the history of the progress of jurisprudence, that when a point, strenuously contested for years, is once finally conceded, it will generally give rise to serious efforts to carry the matter quite into the extreme of the reductio ad absurdum, in the opposite direction. This is very well illustrated, upon the point we are now considering, by briefly adverting to the course of the decisions upon the question, whether it was competent for common carriers, by express contract or general notice, to exonerate themselves from that extraordinary responsibility imposed upon them by the common law, whereby they are made insurers for the safe delivery of all goods committed to their custody. It was for a long period seriously and strenuously urged, by the courts, and by some text-writers perhaps, that such relaxation was wholly inadmissible. That was so held in Gould v. Hill, 2 Hill, 623; Hollister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, Id. 251; and these cases are quoted, with approbation, by Mr. Justice Nelson, in N. J. Steam Nav. Co. v. Merchants' Bank,

supra.

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