*452] delivered to an innkeeper or his servants, he is bound to keep them

by water, like common carriers by land, in the absence of any legislative provisions prescribing a different rule, are insurers of goods shipped, and are liable in all events, and for every loss and damage, however occasioned, unless it happens from the act of God or the public enemy, or by the act of the shipper, or from some other cause, or accident expressly excepted in the bill of lading." The Maggie Hammard, 9 Wall. 435, 444 (1869). Smith Merc. Law, 168. New Jersey Steam Navigation Co. v. Merchants' Bank of Boston, 6 How. 344, 381 (1848). The common law liability of carriers exists in full force in Virginia. Murphy, Brown & Co. v. Staton, 3 Munf. 239.

Mr. Justice Daniel, in a dissenting opinion, says, "The rule which makes [a carrier] an insurer against every thing but the act of God or the public enemy, makes him an insurer as to performances only which are consistent with his undertaking as carrier." New Jersey Steam Navigation Co. v. Merchants' Bank of Boston, 6 How. 344, 417 (1848).

A temporary interruption of a voyage by an embargo does not put an end to the contract on the part of a carrier to carry goods from one point to another. Hadley v. Clark, 8 Tenn. Rep. 259, cited in Bork v. Norton, 2 McLean, 422, 428 (1841), but it is said, “A distinction, it seems to me, may well be drawn between a contract for the transportation of goods upon the high seas and over lakes of but limited extent. In the former case the risks are numerous, but, being well understood, may, to some extent, at least, be protected by an insurance. But the main difference is that transportation by sea is the only means of conveyance in the one case, while, in the other, if obstructions on the water occur by ice or otherwise, a land transportation may be adopted. And the contract is made in reference to the fact either express or implied."

The law imposes upon the common carrier the obligation of safety, as to goods whilst in his possession, and uniess relieved from "liability by the act of God" or the public enemy, he is responsible in damages, although there may be no actual negligence on his part. Davis et al. v. Wabash, St. L. & Pac. Ry. Co., 89 Mo. 340, 349 (1886).

To exempt a carrier from liability for injuries happening to goods while he is transporting them for hire, he must show that he was free from fault at the time the injury or damage happened, and that no act or neglect of his concurred in or contributed to the injury. Michaels et al. v. New York Central R. R. Co., 30 N. Y. 564 (1864).

In such cases, the shipper having shown a delivery of goods to the carrier, the onus is upon the carrier to show that the damage to or loss of the goods was caused by an act of God or otherwise, which would exempt him from liability. If, in establishing his defence, facts and circumstances also appear tending to show that his negligence co-operated to produce the damages, he must show that these facts did not directly contribute to the damage, to relieve himself of liability. Davis et al. v. Wabash, St. L. & Pac. Ry. Co., 89 Mo. 340 (1886). Wolf v. Express Co., 43 Mo. 423. Read v. Railroad, 60 Mo. 206. Pruitt v. Railroad, 62 Mo. 529. Reeves v. Railroad, 10 Wall. 189, 190. Michaels et al. v. New York Central R. R. Co., 30 N. Y. 564 (1864).

Where goods are shipped on a vessel, under a bill of lading, excepting dangers of the seas and navigation, but containing no exception of loss by breakage, if the goods be properly stowed with reference to their character and their apparent condition, the vessel will not be liable for their breakage. Twelve Hundred and Sixty-five Vitrified Stoneware Sewer Pipes, etc., 5 Ben. 402 (1871).

Where delivery of goods was prevented by the act of God, as by obstruction caused by ice forming in a stream. West v. The Steamboat Berlin, 3 Iowa, 532 (1856). Where injury is caused by sudden and violent flood. The Farragut, 10 Wall. 334, 339 (1870). The liability of a boat owner is narrowed by an exception in the bill of lading, dangers of the river which are unavoidable, and he is relieved from all liability for accidents and loss occasioned by hidden obstructions newly placed in the river, of a character such as human skill and foresight could not discover and avoid." Gordon & Walker v. Buchanan & Porterfield, 5 Yerg. (Tenn.) 71 (1833). The act of God, which will excuse a common carrier, must be a direct and violent act of nature. Friend etc. v. Woods, 6 Gratt. (Va.) 189, 196 (1849). The same doctrine declared in Forward v. Pittard, 1 Tenn. Rep. 27, by lord Mansfield is declared in McArthur v. Lears, 21 Wend. (N. Y) 196, it being said that, "no matter what degree of prudence may be exercised by the carrier and his servants; although the delusion by which it is baffled, or the force by which it is overcome, be inevitable, yet, if it be the result of human means, the carrier is responsible.'

To excuse a carrier from liability, when the loss of the goods is occasioned by the act of God, the act of God must be the proximate cause, and there be no concurrence of his negligence, with the act of God producing the loss. New Brunswick Steamboat & Canal Transfer Co. v. Tiers et al., 24 N. J. L. 697 (1853).

Questions of negligence are not a matter of law, but must be submitted to the jury Barber v. Town of Essex, 27 Vt. 62 (1854). Northern Central Ry. Co. v. State of Maryland etc., 29 Md. 420 (1868).

safely, and restore them when his guest leaves the house. (t)(77) If

(t) Eriz. Co. 212

As a rule, a carrier is bound to account to a bailor for damages caused to the articles entrusted for carriage by any negligence on the part of the carrier. Negligence, however, is the absence of care according to the circumstances. Frankford v. Bristol Turnpike Co. v. Philadelphia & Trenton R. R. Co., 54 Pa. St. 345 (1867).

(77) Story on Bailments (9 ed.) 59, 68, 406, 407. An innkeeper holds out a general invitation to all travelers to come to his house and receives a reward for his hospitality. The law, in return, imposes on him corresponding duties, one of which is to protect the property of those whom he receives as guests. Clute v. Wiggins, 14 Johns. (N. Y.) 175 (1817).

The liability of an innkeeper for a loss by his guest extends to all the movable goods and money, which are placed within the inn, and is not restricted to such things and sums only, as are necessary and designed for the ordinary travelling expenses of the guest. Berkshire Woolen Co. v. Proctor et al., 7 Cush. 417 (1851). Wilkins v. Earl, 44 N. Y. 174, 179. Kellogg v. Sweeney, I Lans. (N. Y.) 397. Pinkerton v. Woodward, 33 Cal. 357. Sneider v. Geiss, 1 Yeates (Pa.) 34.

To render an innkeeper liable for goods of a guest lost or stolen from his house, it is not necessary that the goods should be delivered into his special keeping; nor to prove negligence. Clute v. Wiggins, 14 Johns. (N. Y.) 175 (1817). On authority of Calye's Case, 8 Co. 32. Bennet v. Miller, 5 Term Rep. 273.

A guest cannot recover of a common innkeeper for property lost by fire, occasioned by inevitable casualty or superior force, unaccompanied by negligence on the part of the innkeeper or his servants. Merritt v. Claghorn, 23 Vt. 177 (1851). Cutler et al. v. Bonney et al., 30 Mich. 259 (1874).

The goods of the guest being in the inn will charge the innkeeper with liability in case of loss. McDonald v. Edgerton, 5 Barb. 560. Burrows v. Trieber, 21 Md. 320. Packard v. Northcroft, 2 Met. (Mass.) 439. When goods are within an inn. Norcross v. Norcross, 53 Me. 164.

When the relation of innkeeper and guest is established. Ross v. Mellin, (Minn.) 32 N. W. Rep. 172.

When it ends. Wintermate v. Clarke, 5 Sandf. 262. McDaniels v. Robinson, 28 Vt. 387. Lawrence et al. v. Howard, 1 Utah, 142 (1874). Murray v. Marshall, 13 Pac. Rep. 589. Lasseen v. Clark, 37 Ga. 242. Cookendale v. Eaton, 40 How. Pr. (N. Y.) 266. Á hotel kept by a corporation is an inn and the corporation an innkeeper and liable for the safety of the property of its guests. Magee v. Pacific Improvement Co., 98 Cal. 678 (1893). Fay v. Pacific Improvement Co., 93 Cal. 253.

An innkeeper's liability for the baggage of his guest is not terminated the instant the guest pays his bill and leaves the hotel, but continues for such a reasonable time thereafter as may be necessary for him to secure its removal, or, if the innkeeper, in the ordinary course of his business, undertakes its removal to a railroad or to some other common carrier, until he has made performance. Maxwell v. Gerard, 84 Hun. 537 (1895).

It has been held in New York that a restaurant keeper, in whose custody wraps and other articles of wearing apparel have been temporarily placed for safe-keeping, is liable as a bailee under the rule laid down in Bunnell v. Stern, 122 N. Y. 539, and Bird v. Everard, 4 Misc. Rep. (N. Y.) 104; S. C. 53 N. Y. St. Rep., 210. Buttman v. Dennett, I Misc. Rep. 462 (1894). But a restaurant keeper is not an insurer of the effects of his customers; only the ordinary care called for by the circumstances is required of him. Simpson v. Rourke, 13 Misc. Rep. (N. Y.) 230 (1895).

When a guest and not a boarder. Magee v. Pacific Improvement Co., 98 Cal. 678 (1893).

Before a traveller will be considered a guest of an innkeeper he must have actually taken up his abode in the inn. Lynor v. Massop, 36 Upp. Can. (Q. B.) 230. Gastenhoper v. Clair, 10 Daly. (N. Y.) 265. Arcade Hotel Co. v. Wiatt, 2 West. Rep. 368. Strauss v. County Hotel & Wine Co., 49 L. T. Rep. (N. S.).

Where held a guest and not a boarder. Hancock v. Rand, 17 Hun. (N. Y.) 279. Mowers v. Fethers, 61 N. Y. 34. Pinkerton v. Woodward, 33 Cal. 557. Shoecroft v. Bailey; 25 Iowa, 553. Hall v. Pike, 100 Mass. 495. Guest distinguished from a boarder. Stewart v. McCready, 24 How. Pr., 62.

One who commits his horse to an innkeeper to be fed, is a guest, although he does not lodge at the inn or receive any refreshment therein. Mason et al. v. Thompson, 19 Pick. (Mass.) 280 (1830).

An innkeeper will be liable for loss of wearing apparel of his guests entrusted to a servant while taking their meals, if it be the custom of the house, notwithstanding, there is another place provided for the checking of such articles. Leabold v. Southern Hotel Co., 54 Mo. App. 567 (1893).

A traveling salesman may recover damages for injury to his goods while a guest of an

a man takes in a horse, or other cattle, to graze and depasture in his grounds, which the law calls agistment, he takes them upon an implied contract to return them on demand to the owner. (u)(78) If a pawnbroker receives plate or jewels as a pledge, or security, for the repayment of money lent thereon at a day certain, he has them upon an express contract or condition to restore them, if the pledger performs his part by redeeming them in due time:(w)(79) (u) Cro. Car. 271. (w) Cro. Jac. 245. Yelv. 178.

innkeeper, caused by want of ordinary care. 555.

Scheffer v. Corson, (S. D.) 58 N. W. Rep.

In a Minnesota case an innkeeper has been held liable for the loss of goods by one visiting a boarder. Lusk v. Belote, 22 Main. 468.

To make one liable as an innkeeper, at common law, for loss of the goods entrusted to his care, it must appear that the owner visited the inn for the purpose which the common law recognizes as the purposes for which inns are kept. Carter v. Hobbs, 12 Mich. 52 (1863). Fitch v. Casler, 17 Hun. (N. Y.) 126. Curtis v. Murphy, 63 Wis. 4. Where persons are boarders and not guests. Manning v. Wells, 9 Humph. (Tenn.) 746. Kisten v. Hildebrand, 9 B. Monr. (Ky.) 72, 74. Norcross v. Norcross, 53 Me. 163.

An innkeeper is bound to extraordinary diligence in preserving the property of his guests entrusted to his care, where they have complied with all reasonable rules of the inn. Adams v. Clem, 41 Ga. 65, 67 (1870).

"At common law the negligence of the guest in the care of his goods generally exempts the landlord from liability for their loss." Earl J., in Rosenplanter v. Roselle, 54 N. Y

268.

An innkeeper may show himself absolved from liability for the loss of goods or property of his guest by showing affirmatively that the loss is not attributable to any fault or want of care on the part of himself or his servants. Metcalf v. Hess, 14 Ill. 129 (1852). The innkeeper may also relieve himself from liability for such losses by showing that the loss is attributable to the negligence of the guest. Fowler v. Dorlon et al., 24 Barb. (N. Y.) 384 (1856). Cases involving the negligence of guests. Burgess v. Clements, 14 M. & S., 306. Armistead v. White, 29 Law J. (Q. B.) 524.

(78) Underhill's Law of Torts (6 ed.) 48. Agistors of cattle are only bound to exercise ordinary care. Umlauf v. Bassett, 38 Ill. 96 (1865). They will only become liable for loss or injury to such property where there is a want of such care. Mansfield v. Cole, 61 Ill. 191 (1871). Where cattle are in the hands of agistors for delivery upon sale by the owners, they will only be required in the matter of care and delivery to act with reasonable care and diligence, and in accordance with the usages and customs of carrying on their business. Union Stock Yard & Transit Co. v. Mallory & Zimmerman Co., 157 Ill. 554; s. c. 41 N. E. Rep. 888 (1895).

When live stock is in charge of an agistor, he is required to take the same care only that an ordinarily prudent man would take of his own property. Murray v. Rhodes, 3 Lack. Jur. (Pa.) 123. Brush v. Clarendon Land Investment & Agency Co. (Lim.) et al., 2 Tex. Civ. App. 188, 192 (1893). O'Keefe v. Talbot, 84 Iowa, 233 (1892).

An agistor claiming a lien for feeding live stock cannot enforce the same, except in pursuance of a statute providing a method; and, in case he sell the horse without providing the method prescribed by statute, the owner of the stock may resume possession of the stock or bring an action for its conversion. Greenawalt v. Wilson Recr. etc., 52 Kan. 109 (1893).

Where a horse is taken by one on trial, to purchase if pleased, is returned to the owner injured, to relieve the bailee from liability for the injury or loss of the horse, he must show that the injury was without fault on his part, or prove that he used such ordinary care that the proper inference would be that the injury was unavoidable. Nichols v. Balch, 8 Misc. Rep. (N. Y.) 452, 455; s. c. 28 N. Y. Supp. 667 (1894).

Mr. Justice Story says: "A bailment is a delivery of a thing in trust for some special object or purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust. Story on Bailm. 2. In this the learned author closely follows

Blackstone, to whose language, however, he takes exception, as making use of one or two ambiguous expressions. Sir William Jones on the other hand has defined bailment as a delivery of goods "on condition," or (as he elsewhere says) "in trust on a contract" that they shall be eventually restored or redelivered. Jones Bailm. 1, 117. Chancellor Kent defines bailment to be a delivery of goods in trust, upon a contract, express or implied, that the trust shall be duly executed, and the goods restored by the bailee, as soon as the purpose of the bailment shall be answered. 2 Kent Com. 558. Schoulers Bailments and carriers (2 ed.) 2.

(79) I Schoul. on Pers. Prop. (2 ed.) 466. A pledgee of notes as collateral security for a debt is bound, so far as the general owner of the notes is concerned, to use reasonable

for the due execution of which contract many useful regulations are made by statute 30 Geo. II. c. 24. And so if a landlord distrains goods for rent, or a parish officer for taxes, these for a time are only a pledge in the hands of the distrainors, and they are bound by an implied contract in law to restore them on payment of the debt, duty, and expenses, before the time of sale: or, when sold, to render back the overplus. (80) If a friend delivers any thing to his friend to keep for him, the receiver is bound to restore it on demand;(81) and it was formerly held that in the mean time he was answerable for any damage or loss it might sustain, whether by accident or otherwise; (x) unless he expressly undertook(y)(82) to keep it only with the same care as his own goods, and then he should not be answerable for theft or other accidents. But now the law seems to be settled,(z) that such a general bailment will not charge the bailee with any loss, unless it happens by gross neglect, which is an evidence of fraud: but, if he undertakes specially to keep the goods safely and securely, he is bound to take the same care of them as a prudent man would take of his own.(a)(83)

In all these instances there is a special qualified property transferred from the bailor to the bailee, together with the possession. It is not an absolute property, because of his *contract for restitution; the bailor [*453 having still left in him the right to a chose in action, grounded upon such contract. (84) And, on account of this qualified property of the bailee, he may (as well as the bailor) maintain an action against such as injure or take away these chattels. (85) The tailor, the carrier, the innkeeper, the

(z) Co. Litt. 89.

(y) 4 Rep. 84.

(z) Lord Raym. 909. 12 Mod. 487.

(a) By the laws of Sweden the depositary or bailee

of goods is not bound to restitution in case of acci

dent by fire or theft, provided his own goods perished in the same manner; "jura enim nostra," says Stiernhook, "dolum præsumunt, si una non pereant.” De jure Sucon. l. 2, c. 5.

diligence to protect the security and see that it does not outlaw. Northwestern National Bank of Aberdeen v. J. Thompson & Sons' Manufg. Co., 71 Fed. Rep. 113 (1895). A pawnee cannot sell the pledge without a previous demand of payment, although the debt is technically due immediately. Stearns v. Marsh, 4 Denio (N. Y.) 227.

Where the pledgee of shares of stock, as collateral security for a debt, improperly disposes of the same, the bailor is entitled to recover the precise number of shares from the bailee. Krouse v. Woodward, 110 Cal. 638; s. c. 42 Pac. Rep. 1084 (1895). Atkins v. Gamble, 42 Cal. 86 (1871). And where such a pledge has been wrongfully sold so that it cannot be restored, the pledger is not bound to tender the debt in order to entitle himself to maintain an action for the wrongful sale. 443.

(80) Cony v. Forest, 126 Mass. 97, 101 (1879).

contract.

(81) Montgomery Adm'r, etc. v. Evans, 8 Ga. (82) Price v. Stone, 49 Ala. 543, 551 (1873).

p. 69.

Wilson v. Little et al., 2 Const. (N. Y.)

There cannot be a bailment without a

(83) Griffith v. Zipperwick et. al., 28 Ohio St. 388, 401 ((1876). Ames v. Belden, 17 Barb. (N. Y.) 513, 517 (1854). Angell on Carriers (5 ed.) 52. Story on Bailments (9 ed.) 70. Foster et. al, Exc'r v. Essex Bank, 17 Mass. 479, 500 501 (1821).

(84) Story on Bailments (9 ed.) 107.

(85) Bateman on Com. Law, 451. I Comyn's on Contracts, 38. Doctrine of Contracts, Verplank 33. A bailee is not liable for loss of goods by inevitable accident under his command and responsibility, Sturm v. Boker, 150 U. S. 312, 330 (1893).

The right of recovery against a gratuitous bailee is based upon the existence of gross negligence. Mason v. Union Stock Yards Co., 60 Mo. App. 93 (1894).

If a chattel in the possession of a hirer is lost through his fault or neglect, or that of his servant acting within the scope of his employment, the hirer is liable for its value to the owner. United States v. Yukesr, 60 Fed. Rep. 641, 642 (1894).

While the failure to return a chattel or its return in a damaged condition, by a hirer, may be prima facie evidence of negligence on his part, the bailee may relieve himself of liability by showing that it was not lost or injured as the result of the carelessness or negligence of himself or his servants. McLaughlin v. New York Lightering & Transportation Co., 7 Misc. Rep. (N. Y.) 119, 121, s. c., 27 N. Y. Supp. 248 (1894). Claflin v. Myer, 75 N. Y. 260. Siegman v. Keeler, 4 Misc. Rep. (N. Y.) 530.

agisting farmer, the pawnbroker, the distrainor, and the general bailee, may all of them vindicate, in their own right, this their possessory interest,

The rule that a gratuitous bailee is responsible only for the want of care which is taken by the most inattentive, cannot be applied to all cases of bailment without reward. When securities are deposited with banks accustomed to receive such deposits, they are liable for any loss thereof occurring through the want of that degree of care which good business men should exercise in keeping property of such value. Gray et. al. v. Merriam, 148 Ill. 179, 187, 188 (1893). Bank v. Zent, 39 Ohio St. 105.

This rule has been declared as to the liability of banks acting as gratuitous bailees in the care of special deposits; such bailees are bound to exercise such reasonable care as men of common prudence usually bestow for the protection of their own property of a similar character. Gross negligence in the case of such bailees is nothing more than a failure to bestow the care which the property in its situation demands; and the omission of the reasonable care required is the negligence which creates the liability, and whether this existed is a question of fact for the jury to determine. Preston v. Prather, 137 U. S. 604.

Where a chattel, for instance a picture, is placed by its owner in the gallery of another for a reciprocal benefit, the latter is not a gratuitous bailee, and is bound to ordinary care in its safe custody. Hardegg v. Willards, 12 Misc. Rep. (N. Y.) 15 (1895). A corporation which borrowed coins for exhibition in its museum has been held liable for their loss by reason of its gross negligence. Smith v. Library Board of City of Minneapolis (Minn.) 59 N. W. Rep. 979.

"In a depository's contract the engagement to keep safely increases his obligation, though it can hardly be held to bind him absolutely for the safety of the goods. It binds him according to its terms, giving to these a fair and reasonable interpretation." Edwards on Bailments (2 ed.) 45.

A private carrier is bound to use ordinary diligence and is consequently responsible only for losses resulting from ordinary negligence. Verner et. al. v. Sweitzer, 32 Pa. St. 208, 212 (1858).

Common carriers are liable for losses by fire, though guilty of no neglect, unless it happens by lightning. Mr. Justice Woodbury, in New Jersey Steam Navigation Co. v. Merchants' Bank of Boston, 6 How. 344, 425 (1848). Gilmore v. Carman, citing I Smedes & Marsh (Miss.) 279. King et al. v. Shepherd, 3 Story's Rep. 360 and other authorities.

The decision in 6 How. 344 caused the enactment of an act of Congress passed on the 3d of March, 1851, (9 Stat. at L. 635,) entitled, "An act to limit the liability of shipowners, and for other purposes. This act provides that no owner of any ship or vessel shall be liable to answer for any loss or damage which may happen to any goods or merchandise which shall be shipped on board any such ship or vessel, by reason of any fire happening on board the same, unless such fire is caused by design or neglect of such owner, with a proviso that the parties may make such contract between themselves on the subject as they please. The 7th section of this act that "This act shall not apply to the owner or owners of any canal-boat, barger, or lighter, or to any vessel of any description whatsoever, used in rivers or in canal navigation.' This exception was held by the Supreme Court of Michigan not to include vessels used on the great lakes, and the owner of a boat destroyed by fire on Lake Erie was held not responsible for the loss of goods which were being transported from New York to Detroit. American Transportation Co. v. Moore et al., 5 Mich. 368 (1858). Affirmed on writ of error, to United States Supreme Court, in Moore et al. v. American Transportation Co., 24 How. I (1860).

A bailee may, by express contract, either increase or limit his common law responsibility. Farmers' & Mechanics' Bank v. Champlain Transportation Co., 23 Vt. 186, 205 (1851). So may a common carrier. Cooper et al. Exers. etc. v. Berry et al., 21 Ga. 526 (1857). But while the implied liability of a common carrier may be gratified by express contract or general notice, the burden of proof is on the party setting it up. Verner et al. v. Sweitzer, 32 Pa. St. 208, 213 (1858).

But no notice or contract can exonerate a common carrier from liability for damage occasioned by his negligence or misconduct. Sager v. Portsmouth, S. & P. & E. R. R. Co., 31 Me. 228, 235. Cole v. Goodwin, 19 Wend. (N. Y.) 251. Wyld v. Pickford, S Mees. & Welsh, 443. Hinton v. Dibbin, 2 Ad. & Ell. (N. S.) 646.

Carriers cannot, even by a special agreement with the owner, discharge themselves from the ordinary care encumbent on a bailee for hire. Rogers, J., Camden & Amboy R. R. Co. v. Baldauf, 16 Pa. St. 67, 77 (1851).

And although they may limit the export of their liability to discharge them from responsibility, it is necessary to show clearly that the persons with whom they deal are fully informed of the terms and effect of the notice. Camden & Amboy R. R. Co. v.

Baldauf, 16 Pa. St. 67, 78 (1851).