performing his own duty of superintendence. If, therefore, the postmaster or other official is negligent in supervising the clerk or assistant in the performance of the particular act or duty, the doing of which, or the failure to do which, caused the loss or injury, then also can such postmaster be held responsible.

But when the postmaster or official has properly performed such duties of selection and supervision as rest upon him, and is not himself negligent, he cannot be held to account for the neglect or misconduct of the assistant or clerk, however gross or disastrous this may have been. The sender, in this case, must look to the offending clerk or assistant, and not to the postmaster or official, who is himself innocent.15

Acts of Private Servants

The exemption from liability of the postmaster for the defaults of his clerks and assistants is available to the postmaster only in cases where such clerks or assistants are appointed in pursuance of some law expressly authorizing it, so that, by virtue of the law and the appointment, the appointees become, in a measure, public officers themselves. The rules and regulations of the post office department provide for employment of clerks and assistants, when necessary for a proper and speedy discharge of the business of the office. When the employment is, therefore, in pursuance of such rules and regulations, these clerks and assistants are themselves employés of the government, for whose default the postmaster himself is not responsible, unless, under proper averments, it be shown there was negligence in their selection or superintendence, as stated above. But a postmaster, who without express authority therefor employs a clerk or assistant, whom he pays out of his own salary or means, is liable for the default or misfeasance of such clerk or assistant, just as any private person would be for the acts of his agent or employé.1 In such cases, the assistant or clerk is in no sense a public official or government employé, for the arrangement under which he is employed is purely a private one. He is therefore a mere private or personal agent of the postmaster or official, for whose acts, within the scope of his employment, the postmaster is liable under the doctrine of respondeat superior, just as he would be for the acts of any other of his private agents.

14 See cases cited in note 12.

15 See cases cited in note 8.

16 RAISLER v. OLIVER, 97 Ala. 710, 12 South. 238, 38 Am. St. Rep. 213, Dobie Cas. Bailments and Carriers, 265; Bishop v. Williamson, 11 Me. 495; Ford v. Parker, 4 Ohio St. 576; Christy v. Smith, 23 Vt. 663; Coleman v. Frazier, 4 Rich. (S. C.) 146, 53 Am. Dec. 727.

CONTRACTORS FOR CARRYING THE MAILS

152. Contractors for carrying the mail are responsible for damage due to their own negligence to senders of mail. By the weight of authority, mail contractors are not themselves responsible for the negligence of their agents or assistants..

Mail contractors are those who engage in carrying mail from place to place under a contract with, and subject to the regulations of, the government. The mail contractor's contract, then, is not with any individuals who use the mails. The contractor, therefore, does not carry for individuals, and receives no compensation from them. He carries for, his contract is with, and he is compensated by, the government. Any duty arising out of contract is therefore owed by the mail contractor to the government and not to the public. 17

By virtue of his relation to the mail, and thus in a sense to the public, the mail contractor, like the postmaster, owes the duty of exercising ordinary care about the mails. The sender, then, if he can. trace his loss to the negligence of the mail contractor himself, can hold the mail contractor responsible for the damage.18 The mail contractor, however, even though it be a railroad engaged in the regular transportation of goods for the public, is not, as to carrying the mail, a common carrier or responsible as such. There is substantial agreement among the courts thus far.

As to the liability of the mail contractor for the acts of his subordinates or agents, there is grave conflict. According to the weight of authority, when the mail contractor is not negligent himself, and has used proper care in selecting his agents and assistants, he is not

17 Foster v. Metts, 55 Miss. 77, 30 Am. Rep. 504; Hutchins v. Brackett, 22 N. H. 252, 53 Am. Dec. 248; BANKERS' MUT. CASUALTY CO. v. MINNEAPOLIS, ST. P. & S. S. M. R. CO., 117 Fed. 434, 54 C. C. A. 608, 65 L. R. A. 397, Dobie Cas. Bailments and Carriers, 267; Id., 187 U. S. 648, 23 Sup. Ct. 847, 47 L. Ed. 348; Boston Ins. Co. v. Chicago, R. I. & P. Ry. Co., 118 Iowa, 423, 92 N. W. 88, 59 L. R. A. 796.

18 Boston Ins. Co. v. Chicago, R. I. & P. Ry. Co., 118 Iowa, 423, 92 N. W. 88, 59 L. R. A. 796; BANKERS' MUT. CASUALTY CO. v. MINNEAPOLIS, ST. P. & S. S. M. R. CO., 117 Fed. 434, 54 C. C. A. 608, Dobie Cas. Bailments and Carriers, 267, 65 L. R. A. 397; Id., 187 U. S. 648, 23 Sup. Ct. 847, 47 L. Ed. 348.

19 Central R. & Banking Co. v. Lampley, 76 Ala. 357, 52 Am. Rep. 334; BANKERS' MUT. CASUALTY CO. v. MINNEAPOLIS, ST. P. & S. S. M.

liable to senders of mail for loss or damage caused by the negligence or misconduct of such agents or assistants, who are themselves regarded as public agents.20 Thus, under this view, a rider or driver employed by the contractor for carrying the mails is considered an assistant about the business of the government. Though employed and paid, and liable to be discharged at pleasure, by the contractor, such rider or driver is viewed as being employed in the public service of the government rather than in the private service of the contractor. The contractor is therefore not liable to the sender of mail for the negligence of the rider or driver.21

This rule is sometimes difficult to apply to corporations (which now control practically all the most important contracts for carrying the mail great distances), since a corporation can act only through agents. There are certain acts, however, such as providing equipment and devising plans for the transportation of the mails, which are regarded as the acts of the corporation; while the single negligent act of a subordinate employé in actually handling the mail-bags would be regarded, for the purposes of the rule in question, as merely the individual act of the employé of the corporate mail contractor.22

In support of this rule it should be said that most of the contracts for carrying the mail necessarily contemplate and require the employment of subordinate agents, and the government recognizes these agents in certain ways and prescribes certain requirements that they must possess in order to engage at all in the business of carrying the mail, even as the agents of the mail contractor.

A few cases, however, refuse to recognize this exemption and hold the mail contractor responsible for the negligent acts of his

R. CO., 117 Fed. 434, 54 C. C. A. 608, Dobie Cas. Bailments and Carriers, 267, 65 L. R. A. 397; Id., 187 U. S. 648, 23 Sup. Ct. 847, 47 L. Ed. 348. 20 Foster v. Metts, 55 Miss. 77, 30 Am. Rep. 504; Conwell v. Voorhees, 13 Ohio, 523, 42 Am. Dec. 206, and note contending for the opposite view; Hutchins v. Brackett, 22 N. H. 252, 53 Am. Dec. 248; German State Bank v. Minneapolis, St. P. & S. S. M. R. Co. (C. C.) 113 Fed. 414; BANKERS' MUT. CASUALTY CO. v. MINNEAPOLIS, ST. P. & S. S. M. R. CO., 117 Fed. 434, 54 C. C. A. 608, Dobie Cas. Bailments and Carriers, 267, 65 L. R. A. 397; Id., 187 U. S. 648, 23 Sup. Ct. 847, 47 L. Ed. 348; Boston Ins. Co. v. Chicago, R. I. & P. Ry. Co., 118 Iowa, 423, 92 N. W. 88, 59 L. R. A. 796.

21 Conwell v. Voorhees, 13 Ohio, 523, 42 Am. Dec. 206; Hutchins v. Brackett, 22 N. H. 252, 53 Am. Dec. 248.

22 Boston Ins. Co. v. Chicago, R. I. & P. Ry. Co., 118 Iowa, 423, 92 N. W. 88, 59 L. R. A. 796; BANKERS' MUT. CASUALTY CO. v. MINNEAPOLIS, ST. P. & S. S. M. R. CO., 117 Fed. 434, 54 C. C. A. 608, Dobie Cas. Bailments and Carriers, 267, 65 L. R. A. 397; Id., 187 U. S. 648, 23 Sup. Ct. 847, 47 L. Ed. 348.

agents and subordinates.2 These cases insist that such agent or subordinate is a mere private employé of the mail contractor, for whose conduct the mail contractor should be responsible under the general rules of master and servant.

28 Sawyer v. Corse, 17 Grat. (Va.) 230, 94 Am. Dec. 445; Central R. & Banking Co. v. Lampley, 76 Ala. 357, 52 Am. Rep. 334. See, also, in support of this view, note 42 Am. Dec. 208.

CHAPTER XV

ACTIONS AGAINST CARRIERS OF GOODS

153. In General.

154. The Parties.

155. The Form of Action.

156. The Pleadings.

157. The Evidence.

158. The Measure of Damages-In General.

159.

160.

161.

162. 163.

Actions for Carrier's Refusal to Accept and Transport the Goods.
Actions for Total Loss or Nondelivery of the Goods.

Actions for Injury to the Goods.

Actions for Delay in Transportation or Delivery of the Goods.
Special Damages.

IN GENERAL

153. Since the substantive rights of the carrier of goods and those with whom he deals must, if disputed, be litigated in the courts, these rights are qualified by, and are dependent upon, the principles of law governing actions against the carrier of goods.

According to the accepted classification, actions against common carriers of goods may logically and conveniently be treated under the following heads:

(1) The parties.

(2) The form of action.

(3) The pleadings.

(4) The evidence.

(5) The measure of damages.

The substantive rights of the common carrier of goods and those with whom he deals have been considered at some length. In the present chapter, the last dealing with the carrier of goods, the subject of actions against this carrier will be discussed. Apart, in a measure, from the substantive rights already discussed, many questions arise in connection with the enforcement of these rights by action in a court. For a solution of the great majority of these questions, resort must he had to books dealing with the adjective or procedural law under the three great subjects of pleading, practice and evidence. There are certain questions in this connection, however, that can be discussed, and should be discussed, in any treatment of carriers of goods. The present chapter is therefore devoted to a brief consideration of these questions.