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their business, and the fact that they alike generally use the vehicles of others in the transportation of freight." 18

§ 183. Messenger companies.

It would seem plain that the city messenger companies are common carriers of the letters and parcels taken by their employees for their patrons and should be held liable as such for losses, unless there is some special arrangement. As was said in a recent case: 19" In general this liability is found to attach because such companies hold themselves out as ready to conduct the business of carrying parcels, as well as letters or messages, and thus induce the public to intrust the carriage of such parcels to them. In the present case, if the defendant is to be held at all as a common carrier, it can only be because it has offered its service and held itself out as such; because there is no evidence whether or not such business is covered by its charter, and its title would seem to indicate that it was organized as a telegraph company, and not as a messenger company. It is in evidence, however, that it installs call boxes in houses and sends messenger boys, in response to calls, to carry out such errands as may be intrusted to them, and that this service frequently involves, to the knowledge of the company, the carrying of parcels. So far as appears, this service is confined to the carrying of such small parcels as can be carried by hand by a lad, and it does not appear that the defendant is equipped or prepared to carry more bulky merchandise. To the extent, then, that it offers its services to the public as a carrier, that is, so far as relates to small

18 Colorado.-Merchants Dispatch Co. v. Cornforth, 3 Colo. 280 (1877). Illinois.—Merchants Dispatch Co. v. Bolles, 80 Ill. 473 (1875); Merchants Dispatch Co. v. Leysor, 89 Ill. 43 (1878); Merchants Dispatch Co. v. Joesting, 89 Ill. 153 (1878).

Iowa.-Robinson v. Merchants Dispatch Co., 45 Iowa, 470 (1877); Stewart v. Merchants Dispatch Co., 47 Iowa, 229 (1877); Wilde v. Merchants Dispatch Co., 47 Iowa, 247 (1877); Bancroft v. Merchants Dispatch Co., 47 Iowa, 262 (1877).

19 Gilman v. Postal Tel. Co., 48 Misc. (N. Y.) 372, (1905).

packages, the defendant must, I think, be regarded as a common carrier, and held to be responsible in that capacity. The parcel intrusted to defendant's messenger in that case was a small one, in general appearance such as could easily be carried by hand, even by a small boy." 20

$184. Towboats.

To what extent towboats are engaged in a public employment is a vexed question; but the difficulty seems to be more on the determination of the question of fact in the cases that arose than of difference upon the legal possibilities. One of the principal cases is Bussey & Co. v. Mississippi Valley Transportation Co.21 The regular business of the defendants in that case was proved to be the towing of barges upon the route between St. Louis and New Orleans. One such barge, belonging to the plaintiff, was lost while being towed under these circumstances. The suit of the plaintiff charged the defendants as common carriers.

The court reviewed the authorities bearing upon the point; the opinion of Mr. Justice Howe concluding much as follows: "Such conflict of authority might be very distressing to the student, but for the fact that when these writers and cases cited by them are examined the discrepancy is more imaginary than real. There are two very different ways in which a steam towboat may be employed, and it is likely that Mr. Story was contemplating one method and Mr. Kent the other. In the first place it may be employed as a mere means of locomotion under the entire control of the towed vessel; or the owner of the towed vessel and goods therein may remain in possession and control of the property thus transported to the exclusion of the bailee;

20 Sandford v. Am. Dist. Tel. Co., 13 Misc. (N. Y.) 88, 34 N. Y. Supp. 144 (1895); Hirsch v. Am. Dis. Tel. Co., 48 Misc. (N. Y.) 370, 96 N. Y. Supp. 1129 (1905), accord.

Haskell v. Boston Dist. Mess. Co., 76 N. E. 215 (1906); Hirsch v. Am. Dis. Tel. Co., 98 N. Y. Supp. 371 (1906), contra.

21 24 La. Ann. 165, 13 Am. Rep. 125, B. & W. 16 (1872).

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or the towing may be casual merely, and not as a regular business between fixed termini It might well be said that under such circumstances the towboat or tug is not a common carrier. But a second and quite different method of employing a towboat is where she plies regularly between fixed termini, towing for hire and for all persons, barges laden with goods, and taking into her full possession and control, and out of the control of the bailor the property thus transported. Such is the case at bar. It seems to satisfy every requirement in the definition of a common carrier. We must think that in all reason the liability of the defendants under such circumstances should be precisely the same as if, the barge being much smaller, it had been carried, cargo and all, on the deck of their tug."

If, therefore, the towboat really makes a business of carrying, that is, if it actually takes control of the barges towed and itself transports them, the towboat is a common carrier.22

If, on the other hand, the towboat simply furnishes the motive power, the vessel towed remaining at all times under the control of her own officers, there is no bailment of the vessel or its contents to the towboat, and the towboat is therefore not a carrier.23

22 White v. Mary Ann, 6 Cal. 462 (1856); Smith v. Pierce, 1 La. 349 (1830); Clapp v. Stanton, 20 La. Ann. 495 (1868); Walston v. Myers, 5 Jones (N. C.), 174 (1857). See Ashmore v. Penn. St. Towing, etc., Co., 28 N. J. L. 180 (1860); also Vanderslice v. The Superior, 28 Fed. Cas. No. 16,843 (1850).

23 United States.-Steamer New Philadelphia, 1 Black, 62, 17 L. Ed. 84 (1861); The Quickstep, 9 Wall. 665, 19 L. Ed. 767 (1869); Steamer Webb, 14 Wall. 406, 20 L. Ed. 774 (1871); The Margaret, 94 U. S. 494, 24 L. Ed. 146 (1876); Transportation Line v. Hope, 95 U. S. 297, 24 L. Ed. 477 (1877); The Princeton, 3 Blatch. 54, Fed. Cas. 11,434 (1853); The Lyon, 1 Brown's Adm. 59, 15 Fed. Cas. 8,645 (1861); Steamboat Angelina Corning, 1 Ben. 109, Fed. Cas. 384 (1867); The Stranger, 1 Brown's Adm. (U. S.) 281, Fed. Cas. 13,525 (1871); The Oconto, 5 Biss. 460, Fed. Cas. 10,421 (1873); The Merrimac, 2 Sawyer, 586, Fed. Cas. 9,478 (1874).

Illinois. Knapp v. McCaffrey, 178 Ill. 107, 52 N. E. 898, 69 Am. St. Rep. 290.

Kentucky. Varble v. Bigley, 14 Bush, 698, 29 Am. Rep. 435 (1879).

TOPIC B-CARRIERS OF PASSENGERS.

§ 185. Ferrymen.

Ferrymen, too, are met with in our earliest law reports, as may be seen in the following report of an interesting early case:1 "I. de B. complains by his writ that G. de F. on a certain day and year at B. upon Humber had undertaken to carry his mare taken on his boat over Humber water safe and sound; whereas the said G. overloaded his boat with other horses, by reason of which overloading the mare perished, to his wrong and damage, etc. Richmond. Judgment of the writ; for he does not allege any tort in us; he only proves that he would have an action by a writ by way of covenant, not by way of trespass; wherefore, etc. Bankwell, J.: It seems that you committed a trespass when you overloaded the boat, whereby his mare perished, etc.; therefore answer. Richmond. Not guilty."

The ferryman, of course, remains in public calling to this day. Obviously a ferryman is a common carrier of goods if it is shown that he has taken the goods into his control; but he does not usually do so. He more commonly takes passengers only, and if the passengers have goods they commonly keep possession

Maryland.—Penn., etc., Steam Nav. Co. v. Dandridge, 8 Gill & J. 248, 29 Am. Dec. 543 (1836).

Massachusetts.-Sproul v. Hemingway 14 Pick. 1 (1833).

New York. Caton v. Rumney, 13 Wend. 387 (1835); Alexander v. Greene, 3 Hill, 9, 7 Ibd. 533 (1842); Wells v. Steam Nav. Co., 2 N. Y. 204 (1849); Wells v. Steam Navigation Company, 2 Com. 204, 4 Seld. 375 (1853); Merrich v. Brainard, 38 Barb. 574 (1860); Arctic Fire Ins. Co. v. Austin, 54 Barb. 559 (1869); Abbey v. St. Stephens, 22 How. Pr. 78 (1861); Emilinsen v. Penn. R. Co., 30 N. Y. App. Div. 203, 51 N. Y. Suppl. 606 (1898).

Pennsylvania.-Leonard v. Henrichson, 18 Penn. St. 40 (1851); Hayes v. Paul, 51 Penn. St. 134 (1865); Brown v. Clegg, 63 Penn. St. 51 (1869); Hayes v. Millar, 77 Penn. St. 238 (1874).

England. The Julia, 14 Moore P. C. 210 (1860); Symonds v. Pain, 6 Hurl & N. 709 (1861); The Minnehaha, 1 Lush, 335 (1861).

1 Y. B. 22 L. ib., Assis. pl. 41, B. & W. 192 (1348).

of their property. But whether he carries passengers only or goods also, he is obviously a carrier by all tests.2

186. Stage coaches.

The common method of carrying passengers before the invention of railways was by stage-coach; and there can, of course, be no doubt that the public coaches were common carriers of passengers. But though the principal business of a stage-coach was to carry passengers, coaches were frequently in the habit of carrying goods also; and when that was the case, the coach was also a common carrier of goods.3 Thus in an early English case Mr. Justice Jones "was of opinion that if a coachman commonly carry goods, and take money for so doing he will be in the same case with a common carrier and is a carrier for that purpose, whether the goods are a passenger's or a stranger's; the

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2 The following cases, among others, establish that the ferryman is a common carrier:

Alabama.-Babcock v. Herbett, 3 Ala. 392, 37 Am. Dec. 695 (1842); Frierson v. Frazier, 37 So. 825 (1904).

Arkansas.-Harvey v. Rose, 26 Ark. 3, 7 Am. Rep. 595 (1870).
California.-May v. Hanson, 5 Cal. 360, 63 Am. Dec. 135 (1855).

Georgia.-Self v. Dunn, 42 Ga. 528 (1871).

Illinois-Claypool v. McAllister, 20 Ill. 504 (1858).

Iowa.-Whitmore v. Bowman, 4 Green, 148 (1853).

Kentucky.-Hall v. Renfo, 3 Met. 51 (1860).

Massachusetts.-Le Barron v. East B. Ferry Co., 11 Allen, 312, 87 Am. Dec. 717 (1865).

Mississippi.-Powell v. Mills, 37 Miss. 691 (1859).

Missouri.-Pomeroy v. Donaldson, 5 Mo. 36 (1837).

New York.-Wyckoff v. Greens County Co., 52 N. Y. 32, 11 Am. Rep. 650 (1873).

Ohio.-Wilson v. Hamilton, 4 Ohio St. 722 (1855).

Pennsylvania.-Smith v. Seward, 3 Pa. St. 342 (1846).

Tennessee. Saunders v. Young, 1 Head (Tenn.), 219, 73 Am. Dec. 175 (1858).

Texas.-Albright v. Perrin, 14 Tex. 290 (1855).

3 Beckman v. Shouse, 5 Rawle (Pa.), 179, 28 Am. Dec. 653 (1835). 4 Lovett v. Hobbs, 2 Shower, 127 ((1680).

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