Private and Common Carriers of Goods

The private carrier of goods bears substantially the same relation to the common carrier of goods that the boarding house keeper bears to the innkeeper. The nature of the business carried on by the private and common carrier may be the same; but the former pursues it as a private, the latter as a public, calling. The private carrier, unlike the common carrier, does not hold himself out as ready and willing to serve indifferently all who apply. He is a carrier who carries, not by virtue of a public profession, but according to the special contracts which he makes in individual cases. He is therefore not obliged by law to accept and transport the goods of whatever persons may apply. He may pick and choose as to those with whom he will do business, and arbitrarily in specific instances may refuse to carry the goods which are offered to him. Though formerly numerous, private carriers of goods are now comparatively

rare.

· Private Carriers of Goods are Ordinary Bailees

The private carrier of goods, making no public profession, is an ordinary bailee, and subject to the same rules governing other ordinary bailees. He is vested with no exceptional rights and incurs no extraordinary responsibilities.

When the private carrier transports goods without a contemplated reward, the bailment resulting from such gratuitous carriage is simply a mandatum.' The rights and duties of the bailor and the private carrier as bailee are governed by the rules applicable in general to bailments of that class. In chapter III, "Bailments for the Bailor's Sole Benefit," these rights and duties have been already sufficiently considered. Since a compensation, as we shall see, is one of the essential elements in the relation of common carrier, the mere fact alone that the carriage of the goods is gratuitous necessarily stamps the carrier, as to that particular transaction, as a private carrier.

When there is an intended compensation for the carriage of the goods by the private carrier, the bailment is an ordinary one of the hiring of services about a chattel, or, as this particular bailment is called in the Roman terminology, "locatio operis mercium vehen

Piedmont Mfg. Co. v. Columbia & G. R. Co., 19 S. C. 353.

6 COGGS v. BERNARD, 2 Ld. Raym. (Eng.) 909, Dobie Cas. Bailments and Carriers, 1; Varble v. Bigley, 14 Bush (Ky.) 698, 29 Am. Rep. 435.

7 The private carrier being then a mere mandatary, carrying without a reward, is liable, just as other bailees in bailments for the bailor's sole benefit, only for his failure to exercise even slight care. Beauchamp v. Powley, 1 Moody & R. (Eng.) 38.

• Post, § 107.

darum." The principles discussed in chapter VI, "Bailments for Mutual Benefit-Hired Services About Things," are therefore applicable here.

Liability for Negligence

As in other cases of bailments for hired services, a private carrier for hire must exercise ordinary diligence in the performance of his undertaking. By ordinary care or diligence is again meant such care or diligence as the man of ordinary prudence is accustomed to exercise in the conduct of his own affairs under similar circumstances.10 Ordinary care is here, as elsewhere, a purely relative term, to be judged according to the peculiar circumstances of each individual case.

Unlike the common carrier, the private carrier of goods for hire is not an insurer, unless he has made himself so by special contract," or by his positive wrong; and he is therefore, like other ordinary bailees, liable for loss of, or damage to, the goods only when it is due to his negligence.12

Though there is conflict on the point, it seems that, though this privilege is denied to the common carrier, the private carrier of goods, like other ordinary bailees, may by special contract stipulate against liability for his negligence, but not against his active wrong doing or fraud.18 The private carrier of goods may by con

1 Hutch. Carr. § 37; Story, Bailm, § 399; Ang. Carr. § 47; Ames v. Belden, 17 Barb. (N. Y.) 513, 517; Samms v. Stewart, 20 Ohio, 70, 73, 55 Am. Dec. 445; Wyld v. Pickford, 8 Mees. & W. (Eng.) 443; Jaminet v. American Storage & Moving Co., 109 Mo. App. 257, 84 S. W. 128; Central of Georgia R. Co. v. Glascock & Warfield, 117 Ga. 938, 43 S. E. 981.

10 United States v. Power, 6 Mont. 271, 273, 12 Pac. 639.

11 Wells v. Steam Nav. Co., 2 N. Y. 204.

12 White v. Bascom, 28 Vt. 268; Varble v. Bigley, 14 Bush (Ky.) 698, 29 Am. Rep. 435; Pennewill v. Cullen, 5 Har. (Del.) 238; Forsythe v. Walker, 9 Pa. 148; Baird v. Daly, 57 N. Y. 236, 246, 15 Am. Rep. 488; Bush v. Miller, 13 Barb. (N. Y.) 481, 488; Stannard v. Prince, 64 N. Y. 300; Roberts v. Turner, 12 Johns. (N. Y.) 232, 7 Am. Dec. 311; Platt v. Hibbard, 7 Cow. (N. Y.) 497; Brown v. Denison, 2 Wend. (N. Y.) 593; Holtzclaw v. Duff, 27 Mo. 392; Beck v. Evans, 16 East (Eng.) 244.

18 Cleveland, C., C. & St. L. R. Co. v. Henry, 170 Ind. 94, 83 N. E. 710; Wells v. Steam Nav. Co., 2 N. Y. 204; Alexander v. Greene, 3 Hill (N. Y.) 9. See ante, p. 19. In 1 Hutch. Carr. § 40, it is said: "Negligence being in the nature of an omission simply of that degree of care which, under all the circumstances, is the bailee's duty, without any criminality of purpose, and being, at least within a certain degree, entirely consistent with good faith, the private carrier may, by contract with his employer, exonerate himself from liability on account of his inattention or want of diligence or skill in the execution of the trust. He may, stipulate that he shall in no event be liable, except for fraud or its equivalent.”

tract increase his responsibility indefinitely." Such private carrier, however, cannot by contract make himself a common carrier. He may assume the liability of the common carrier, but he cannot by mere special agreement change the nature of his relation to the public. In spite of contracts enlarging his liability, the private carrier of goods remains a private carrier and should be sued in that character.15

Lien

Though authority on the subject is scant, the private carrier for hire should, on principle at least, have a lien on the goods carried for his compensation.18 Whatever may have been the early rule on the subject, when only those pursuing a public calling and later those who conferred additional value in the goods had a lien, according to the modern doctrine, when the lien is given generally to bailees for hire, no satisfactory reason can be advanced for denying it to the private carrier for hire. That there are expressions in the books denying him the lien, however, cannot be gainsaid."

COMMON CARRIERS OF GOODS

107. The common carrier of goods is one who holds himself out, in the exercise of a public calling, to carry goods, for hire, for whomsoever may employ him.

From this definition, it appears that the essential characteristics of the common carrier of goods are:

(a) He must carry as a public employment by virtue of his general holding out.

(b) He must carry for hire, and not gratuitously.

14 Wells v. Steam Nav. Co., 2 N. Y. 204; Robinson v. Dunmore, 2 Bos. & P. (Eng.) 416.

15 1 Hutch. Carr. § 45; Robinson v. Dunmore, 2 Bos. & P. (Eng.) 416; Kimball v. Rutland & B. R. Co., 26 Vt. 247, 62 Am. Dec. 567.

161 Hutch. Carr. § 46. "Upon general principles, there seems to be no reason why a private carrier should not have a lien for performing services similar to those rendered by a public carrier." 1 Jones, Liens, § 276. Even if it be conceded that no such lien existed at common law, the private carrier might well claim a lien by virtue of general provisions in modern statutes favoring and extending the liens of bailees in general.

17 See Fuller v. Bradley, 25 Pa. 120, though it is open to very serious question whether, in this case, the so-called carrier was not a mere servant, hired for his services and the use of his boat, and not a bailee at all. In Riddle, Dean & Co. v. New York, L. E. & W. R. Co., 1 Interst. Com. Comm'n R. 594, 604, this language was used: "The compensation of the common carrier is assured to him by a lien upon the goods, a right which is not enjoyed by a private carrier." In Thompson v. New York Storage Co., 97 Mo. App. 135, 70 S. W. 938, the court said: "We have searched the books and found no case allowing a lien to a private carrier." See, also, Van Zile, Bailm. & Carr. § 404.

As the result of his public profession, the law imposes on him, as as a legal duty, that:

(c) He must carry, with limitations subsequently to be discussed, for all those who choose to employ him, and is liable in an action for his refusal thus to carry.

Public Employment

In an English case,18 decided in the reign of Queen Anne, a common carrier of goods was said to be "any man undertaking, for hire, to carry the goods of all persons indifferently." The most commonly accepted judicial definition, in this country, is that of Parker, C. J., in Dwight v. Brewster,19 "One who undertakes, for hire or reward, to transport the goods of such as choose to employ him, from place to place." In another English case 20 it was said: "The criterion is whether he carries for particular persons only, or whether he carries for every one. If a man hold himself out to do it for every one who asks him, he is a common carrier; but if he does not do it for every one, but carries for you or me only, that is a matter of special contract."

The same underlying idea is found in all of these cases. Whether one is a common or private carrier is to be tested primarily by his holding out. If he professes to serve indifferently all who choose to employ him, then he is a common carrier. In the absence of

18 Gisbourn v. Hurst, 1 Salk. (Eng.) 249.

191 Pick. (Mass.) 50, 53, 11 Am. Dec. 133.

21

20 Ingate v. Christie, 3 Car. & K. 61. Other English cases to the same effect are: COGGS v. BERNARD, 2 Ld. Raym. 909, 1 Smith, Lead. Cas. Eq. 283, and notes, Dobie Cas. Bailments and Carriers, 1; Lane v. Cotton, 1 Ld. Raym. 646, 651; Forward v. Pittard, 1 Term R. 27; Nugent v. Smith, 1 C. P. Div. 19; Palmer v. Grand Junction Ry. Co., 4 Mees. & W. 749; Riley v. Horne, 5 Bing. 217, 220; Benett v. Peninsular & O. Steamboat Co., 6 C. B. 775.

21 Fish v. Clark, 2 Lans. (N. Y.) 176, 49 N. Y. 122; Allen v. Sackrider, 37 N. Y. 341; Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393; Piedmont Mfg. Co. v. Columbia & G. R. Co., 19 S. C. 353; Orange County Bank v. Brown, 3 Wend. (N. Y.) 158, 161; Satterlee v. Groat, 1 Wend. (N. Y.) 272; Chevallier v. Straham, 2 Tex. 115, 47 Am. Dec. 639; Samms v. Stewart, 20 Ohio, 70, 55 Am. Dec. 445; Harrison v. Roy, 39 Miss. 396; Mershon v. Hobensack, 22 N. J. Law, 372; Verner v. Sweitzer, 32 Pa. 208; McClures v. Hammond, 1 Bay (S. C.) 99, 1 Am. Dec. 598; The Dan (D. C.) 40 Fed. 691; Doty v. Strong, 1 Pin. (Wis.) 313, 40 Am. Dec. 773; Honeyman v. Oregon & C. R. Co., 13 Or. 352, 10 Pac. 628, 57 Am. Rep. 20; Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 34, 52 N. E. 665, 70 Am. St. Rep. 432; Caye v. Pool's Assignee, 108 Ky. 124, 55 S. W. 887, 49 L. R. A. 251, 94 Am. St. Rep. 348; Hahl v. Laux, 42 Tex. Civ. App. 182, 93 S. W. 1080; W. C. Agee & Co. v. Louisville & N. R. Co., 142 Ala. 344, 37 South. 680; United States v. Ramsey, 197 Fed. 144, 116 C. C. A. 568, 42 L. R. A. (N. S.) 1031; Kettenhofen v. Globe Transfer & Storage Co., 70 Wash. 645, 127 Pac. 295.

such a profession, his undertaking is not a public one, and as a private carrier he serves such employer by virtue of a special contract, into which he, of his own choice, voluntarily entered. As has been indicated, the common and private carrier of goods, in the field of transportation, correspond, respectively, to the innkeeper and boarding house keeper, in the field of furnishing entertainment. Indeed, the common carrier-innkeeper and private carrier-boarding house keeper analogy is quite a close one. The same considerations as those already discussed, of what express declarations, what course of dealing, what conduct, will constitute, such a public holding out as to render one an innkeeper,22 are equally applicable, mutatis mutandis, in working out the question of who is, or is not, a common carrier and responsible accordingly.

Like the innkeeper, the common carrier of goods need not be engaged in the business of transportation either continuously or exclusively. He may profess (though this is unusual) to serve

23

22 Ante, § 90. Just as the innkeeper need not own the house in which the inn is conducted, to constitute one a common carrier, it is not essential that the person or corporation undertaking such service own the means of transportation. Blakiston v. Davies, Turner & Co., 42 Pa. Super. Ct. 390; J. H. Cownie Glove Co. v. Merchants' Dispatch Transp. Co., 130 Iowa, 327, 106 N. W. 749, 1 L. R. A. (N. S.) 1060.

23 The Niagara v. Cordes, 21 How. 7, 16 L. Ed. 41; Dwight v. Brewster, 1 Pick. (Mass.) 50, 53, 11 Am. Dec. 133. "It is true that common carriers undertake generally, and not as a casual occupation, and for all people indifferently; but, in order to make them such, it is not necessary that this should be their exclusive business, or that they should be continuously or regularly employed in it. They may combine it with another and several avocations, and yet be common carriers, subject to the extraordinary liabilities which have been imposed upon them in consequence of the public nature of their employment." Moss v. Bettis, 4 Heisk. (Tenn.) 661, 13 Am. Rep. 1. All persons who transport goods from place to place for hire, for such persons as see fit to employ them, whether usually or occasionally, whether as a principal, or an incidental and subordinate, occupation, are common carriers, and incur all their responsibilities. Chevallier v. Straham, 2 Tex. 115, 47 Am. Dec. 639. "The distinctive characteristic of a common carrier is that he transports goods for hire for the public generally, and it is immaterial whether this is his usual or occasional occupation, his principal or subordinate pursuit. There are no grounds, in reason, why the occasional carrier, who, periodically, in every recurring year, abandons his other pursuits, and assumes that of transporting goods for the public, should be exempted from any of the risks incurred by those who make the carrying business their constant or principal occupation. For the time being, he shares all the advantages arising from the business, and, as the extraordinary responsibilities of a common carrier are imposed by the policy, and not the justice, of the law, this policy should be uniform in its operation, imparting equal benefits, and inflicting the like burdens upon all who assume the capacity of public carriers, whether temporarily or permanently, periodically or continuously." Id.