The shipper, then, can in this respect demand, not only service from the common carrier, but service that is fair, equal, and impartial, involving no invidious distinctions, differences, favors, or preferences.

The common law on this subject has been fortified and extended by statutes, both state and federal. Thus it is expressly prohibited by section 3 of the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) in the broadest and clearest terms, and not a few cases have been brought before the Interstate Commerce Commission involving such preferences, either as between individual shippers or communities.**

"The Express Cases"

The question has been frequently before the courts, resulting in conflicting decisions, as to the legal right of a railroad company to grant by contract to one express company the exclusive use of its passenger trains for the carrying on of the express company's business, and a denial of this privilege to all other express companies. In several of the earlier cases, in Maine,** New Hampshire, and Pennsylvania, this right on the part of the railroad was denied, as giving an undue preference."

47

48

The United States Supreme Court, however, in what are known as the "Express Cases," 50 upheld the right, and this is now the accepted doctrine. The Supreme Court held that the duty was owed to the public to provide facilities for the proper handling of express business, and not to the express companies to provide them with equal facilities for handling their business. "While railroad companies must furnish the public with an express service, such companies are not obliged to furnish express facilities to

45 For an extended discussion of the provisions of section 3 of this act, see Judson on Interstate Commerce (2d Ed.) §§ 227-287.

46 New England Exp. Co. v. Maine Cent. Ry. Co., 57 Me. 188, 2 Am. Rep. 31; International Exp. Co. v. Grand Trunk Railway Co. of Canada, 81 Me. 92, 16 Atl. 370.

24 Pa. 378, 64 Am. Dec. 667. Parker v. Ry. Co., 7 M. & G. See, also, in support of this 477–480.

47 McDuffee v. Portland & R. R. R., 52 N. H. 430, 13 Am. Rep. 72. 48 Sandford v. Catawissa, W. & E. Ry. Co., 49 This seems to be the English doctrine. 253; Pickford v. Ry. Co., 10 M. & W. 399. doctrine, 1 Wyman, Pub. Serv. Corporations, §§ 50 Memphis & L. R. R. Co. v. Southern Exp. Co., 117 U. S. 1, 6 Sup. Ct. 542, 628, 29 L. Ed. 791. Two justices, Miller and Field, dissented. The Express Cases overruled what had been the doctrine declared by the inferior federal courts. See Southern Exp. Co. v. Memphis & L. R. R. Co. (C. C.) 2 McCrary, 570, 8 Fed. 799; Wells, Fargo & Co. v. Northern Pac. Ry. Co. (C. C.) 23 Fed. 469.

all applying for them, but that they perform their whole duty to the public at large, and to each individual, when they afford the public all reasonable accommodations. If this is done, the railroad company owes no duty to the public as to the particular agencies it shall select for that purpose."

The inconveniences have also been pointed out which would follow if railroads were compelled to furnish equal facilities on their passenger trains to all express companies which duly applied for the privilege. Accordingly, if the public, to whom the carrier's duty is owed, is efficiently served, the discontented express company should not be heard to complain merely because it is not permitted to perform the service."1

LIABILITY OF THE CARRIER FOR LOSS OF, OR DAMAGE TO, THE GOODS

116. The common carrier is an insurer of goods carried in that capacity against all loss or damage except that caused by: EXCEPTIONS:

(1) The act of God.

(2) The public enemy.

(3) The act of the shipper.

(4) Public authority.

(5) The inherent nature of the goods.

Even when the loss is caused by one of the excepted perils

against which the common carrier is not an insurer, he is nevertheless liable if he fails to use reasonable care either to avoid such peril or to minimize the loss after the goods are actually exposed to the peril.

51 Pfister v. Central Pac. Ry. Co., 70 Cal. 169, 11 Pac. 686, 59 Am. Rep. 404; Sargent v. Boston & L. R. Co., 115 Mass. 416. In Atlantic Exp. Co. v. Wilmington & W. R. Co., 111 N. C. 463, 16 S. E. 393, 18 L. R. A. 393, 32 Am. St. Rep. 805, it was held that a statute providing that it shall be unlawful for any common carrier to give any unreasonable preference to any particular person, company, or locality, or any particular description of traffic, or to subject any person, company, or locality, or any particular description of traffic to any undue disadvantage, did not change or enlarge the duty imposed on railroad companies by the common law, under which they are not obliged, because they furnish facilities to one express company, to furnish other express companies with facilities for doing an express business on their roads, the same in all respects as they provide for themselves, or afford to any particular express company, where such railroad companies have never held themselves out as common carriers of express companies. A regulation concerning freight rates, which provides that no railroad company shall, by reason of any contract, with any express or other company, refuse to act as

52

By the common law the common carrier is, with certain exceptions, an insurer of the goods intrusted to him. According to the very early cases, the only exceptions to the common carrier's liability as an insurer of the safe delivery of the goods were: (1) The act of God; and (2) the public enemy. To these, however, native justice and the genius of our jurisprudence have added: (3) The act of the shipper; (4) public authority; and (5) inherent nature of the goods.53

As we have already seen, the ordinary bailee is required to exercise a certain degree of care, and he is liable only for a failure to exercise this degree of care. His liability is therefore confined to a breach of duty, or negligence. Considerations of public policy seemed to demand a higher measure of responsibility on the part of the common carrier of goods. He is accordingly, with the exceptions mentioned, held liable at all hazards for loss or damage, regardless of how inevitable was the accident causing it or what degree of care he has exercised. He is, with the exceptions in question, an insurer of the safe delivery of the goods. The common carrier's responsibility is thus measured by an entirely dif

a common carrier, to transport any article proper for transportation by the train for which it is offered, does not require railroad companies to furnish an express company with facilities for carrying on its business on their roads, but simply requires them to transport articles. Id.

52 COGGS v. BERNARD, 2 Ld. Raym. (Eng.) 909, Dobie Cas. Bailments and Carriers, 1; Riley v. Horne, 5 Bing. (Eng.) 217. The common law duty is similarly phrased in many modern cases, though all five of the exceptions are recognized. A carrier is not only liable at common law for loss occurring through the negligence of itself or its servants or agents, but, in addition, is liable for loss occurring from fire, robbery, accident not attributable to negligence, or any cause other than the act of God or of public enemies. Oregon Short Line Ry. Co. v. Blyth, 19 Wyo. 410, 118 Pac. 649, 119 Pac. 875, Ann. Cas. 1913E, 288. A common carrier must use strictest care and deliver safely at the destination; he being regarded as an insurer, excusable from liability only for an act of God or public enemies. Klair v. Philadelphia, B. & W. R. Co., 2 Boyce (Del.) 274, 78 Atl. 1085.

531 Hutch. Carr. § 265; Van Zile, Bailm. & Carr. § 466; Goddard, Bailm. & Carr. § 231. A carrier, being an insurer, may not escape liability for nonperformance of the contract of transportation, except by showing that a failure to transport or deliver arose from an act of God or the public enemy, or public authority, act of the shipper, or from the intrinsic nature of the property itself. Wells v. Great Northern Ry. Co., 59 Or. 165, 114 Pac. 92, 116 Pac. 1070, 34 L. R. A. (N. S.) 818, 825. See, also, J. H. Cownie Glove Co. v. Merchants Dispatch Transp. Co., 130 Iowa, 327, 106 N. W. 749, 4 L. R. A. (N. S.) 1060, 114 Am. St. Rep. 419; Southern Ry. Co. v. Levy, 144 Ala. 614, 39 South. 95; Central of Georgia Ry. Co. v. Lippman, 110 Ga. 665, 36 S. E. 202, 50 L. R. A. 673; Lacey v. Oregon Ry. & Nav. Co., 63 Or. 596, 128 Pac. 999; Henry Bromschwig Tailors' Trimming Co. v. Missouri, K. & T. Ry. Co., 165 Mo. App. 350, 147 S. W. 175.

ferent type of standard from that of the ordinary bailee. The former's liability, we say, is measured in terms of insurance; the latter's liability, in terms of negligence. Hence, when loss or injury occurs, the only defense open to the common carrier of goods is to show that such loss or injury was due to one of the five excepted perils.

Reason of the Rule

54

The reason for the rule imposing so stringent a liability upon common carriers of goods is thus stated by Lord Holt in the great case of COGGS v. BERNARD: 5 "The law charges this person [the common carrier] thus intrusted to carry goods against all acts. but acts of God and the enemies of the king. For, though the force be ever so great, as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic establishment, contrived by the policy of the law for the safety of all persons, the necessity of whose affairs oblige them to trust these sorts of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity of undoing all persons that had any dealings with them, or combining with thieves, etc., and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon on that point."

55

Speaking on the same subject, Chief Justice Best, in Riley v. Horne, said: "When goods are delivered to a carrier, they are usually no longer under the eye of the owner. He seldom follows or sends any servant with them to the place of their destination. If they should be lost or injured by the grossest negligence of the carrier or his servants, or stolen by them, or by thieves in collusion with them, the owner would be unable to prove either of these causes of loss. His witnesses must be the carrier's servants, and they, knowing that they could not be contradicted, would excuse their masters and themselves. To give due security to property, the law has added to that responsibility of a carrier which immediately arises out of his contract to carry for a reward-namely, that of taking all reasonable care of it-the responsibility of an insurer." Though these reasons are by no means so cogent as when these opinions were written, owing to rapid advances in civilization and methods of transportation, yet, as the power and importance of the carrier have grown apace, other considerations have justified the expediency and practical wisdom of the common-law rule.

54 2 Ld. Raym. (Eng.) 909, 918, Dobie Cas. Bailments and Carriers, 1. 555 Bing (Eng.) 217.

56 Roberts v. Turner, 12 Johns. (N. Y.) 232; Thomas v. Boston & P. R. Corp., 10 Metc. (Mass.) 472, 43 Am. Dec. 444; Hollister v. Nowlen, 19 Wend. (N. Y.)

This remains, accordingly, in the absence of statute or special contract, the test of the liability of the common carrier of goods."" Retention of Custody by Shipper

58

Where the shipper does not put the goods in the exclusive custody and control of the carrier, but, on the contrary, the shipper himself or his servant accompanies them and retains possession of them, then the extraordinary liability of a common carrier does not attach. The unusual liability is imposed on the common carrier only when there is a bailment of the goods. If, therefore, the shipper retains possession of the goods, there is no real delivery to the carrier, and without such a delivery to him the carrier is not clothed with his extraordinary responsibility. This liability presupposes a trust reposed in the carrier by vesting him with possession of the goods." Then, too, to be thus responsible, the carrier must be given a control over the goods commensurate with his responsibility.

Thus, where one who shipped goods by boat, put a guardian on board, who locked the hatches, and went with the goods to see that they were delivered safely, the owner of the boat was held not liable as a common carrier, because there was no trust reposed in the carrier, and the goods were to be considered as having been in the possession of the shipper's servant rather than in the pos

234, 32 Am. Dec. 455; Elkins v. Boston & M. R. Co., 23 N. H. 275; Moses v. Boston & M. R. R., 24 N. H. 71, 55 Am. Dec. 222; Henry Bromschwig Tailors' Trimming Co. v. Missouri, K. & T. Ry. Co., 165 Mo. App. 350, 147 S. W. 175.

57 Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393; Williams v. Grant, 1 Conn. 487, 7 Am. Dec. 235; MERRITT v. EARLE, 29 N. Y. 115, 86 Am. Dec. 292, Dobie Cas. Bailments and Carriers, 188; Parsons v. Hardy, 14 Wend. (N. Y.) 215, 28 Am. Dec. 521; Colt v. McMechen, 6 Johns. (N. Y.) 160, 5 Am. Dec. 200; Wood v. Crocker, 18 Wis. 345; Welsh v. Pittsburg, Ft. W. & C. R. Co., 10 Ohio St. 65, 75 Am. Dec. 490; Parker v. Flagg, 26 Me. 181, 45 Am. Dec. 101; Blumenthal v. Brainerd, 38 Vt. 402, 91 Am. Dec. 349; Hooper v. Wells, Fargo & Co., 27 Cal. 11, 85 Am. Dec. 211; Adams Exp. Co. v. Darnell, 31 Ind. 20, 99 Am. Dec. 582; Gulf, C. & S. F. Ry. Co. v. Levi, 76 Tex. 337, 13 S. W. 191, 8 L. R. A. 323, 18 Am. St. Rep. 45; Daggett v. Shaw, 3 Mo. 264, 25 Am. Dec. 439; Farley v. Lavary, 107 Ky. 523, 54 S. W. 840, 21 Ky. Law Rep. 1252, 47 L. R. A. 383; McFadden v. Missouri Pac. Ry. Co., 92 Mo. 343, 4 S. W. 689, 1 Am. St. Rep. 721; The Niagara v. Cordes, 21 How. 7, 16 L. Ed. 41.

58 Tower v. Utica & S. R. R. Co., 7 Hill (N. Y.) 47, 42 Am. Dec. 36; East India Co. v. Pullen, 1 Strange (Eng.) 690. Thus, where a steerage passenger in a ship retained exclusive possession and custody of his trunk, and trusted to his own care and vigilance to protect it against loss, the shipowner was held not to be liable as a common carrier. Cohen v. Frost, 2 Duer (N. Y.) 335. 591 Hutch. Carr. § 110.