CHAPTER III.

OF CARRIERS FOR HIRE, WHO ARE NOT COMMON CARRIERS.

§ 45. Ir is proposed to consider next the liability of carriers for a reward, who are not common carriers. The liability of the mandatary, or carrier without reward, it appears by the preceding chapter, is derived from his undertaking, which, being gratuitous, excuses him in the absence of that aggravated degree of negligence, which the writers denominate "gross" negligence; but when the liability of a carrier arises from his reward, and he is not a common carrier, he is bound to "ordinary" diligence, and is responsible for "ordinary" neglect, which is the fixed mode or standard of diligence and of neglect. The latter sort of bailment, it has appeared, is called Locatum or hiring, which is always for reward; and is that branch of it denominated Locatio operis mercium vehendarum; 2 and the trust being reciprocally beneficial to the bailor and the bailee, the law exacts ordinary diligence on the part of the latter, and makes him responsible for ordinary neglect, and for that only. All

1 See ante, § 9, 10, 11.

2 See the different sorts of bailments, ante, § 13.

3 See ante, 11, 15. There is a marked difference in cases where ordinary diligence is required, and where a party is only accountable for gross neglect. Ordinary neglect is the want of that diligence, which the generality of mankind use in their own concerns; and that diligence is necessarily required where the contract is reciprocally beneficial. Per Duncan, J., in Tompkins v. Saltmarsh, 14 S. & Rawle (Penn.) R. 280. When goods are delivered to a carrier, the implied contract is to carry safely. Raphael v. Pickford, 2 Dowl. R. (N. S) 916. A laundress sent linen which she had washed to the owner, by a carrier whom she

depositaries for hire (Locatio custodia,)1 such as warehousemen, wharfingers, &c., who are bailees upon a contract of mutual interest, stand upon the same footing as persons contracting for the carriage of goods for hire, who are not common carriers and if they act with ordinary diligence and good faith, they are protected.2 The contract entered into by a booking-office keeper, who takes parcels to be forwarded. by carriers, is bound to ordinary diligence, and to that only, for their safe delivery. A booking-office keeper, who also kept a wine vault, was held liable for the omission of ordinary diligence for allowing goods to remain in front of the bar, exposed to persons coming in for liquor, even although they were of too large a size to be conveniently taken into the bar, behind the counter.1 Want of ordinary care will render liable, in Maine, the owners of a boom for the loss of logs secured thereon.5

§ 46. The difference with respect to the degree of liability, between a private carrier for hire, and a common carrier, (whose undertaking is always for hire,) is, that the latter is bound to deliver the goods intrusted to him against all events, but the acts of God and the public enemy. The responsi bility which is founded merely upon the reward, is not incurred when a certain degree of diligence has been used, whereas that which is imposed by the Common Law upon the common carrier, is derived mainly from his public employment,

paid; the carrier having lost it, it was held, that the laundress was entitled to sue the carrier for the loss. Freeman v. Birch, 3 Ad. & Ell. R. (N. S.) 483.

1 See ante, § 14; Jones on Bailm. 97.

2 Jones on Bailm. 87; Story on Bailm. § 442 et. seq.; Thomas v. Prov. & Boston Railr. Co. 10 Met. (Mass.) R. 472; Foote v. Storrs, 2 Barb. (N. Y.) R. 326; McHenry v. Railr. Co., 4 Flarring. (Del.) R. 448. See post, § 75.

3 Gilbert v. Dale, 1 Nev. & Per. R. 22; 5 Ad. & Ell. R. 543.

4 Dover v. Mills, 5 C. & Payne, R. 175.

5 Penobscot Boom Corp. v. Baker, 4 Shep. (Me.) R. 233.

and is not avoided by any quantity of diligence. Another distinction which has been made between persons undertaking the carriage of goods for hire, and to be responsible for their safe delivery, is, that a private carrier is not obliged, like a common carrier, to undertake in that way. All persons who carry under a special contract, as the driver of a stage-coach occasionally taking packages to carry for compensation, are private carriers.1 Or, as in Satterlee v. Groat,2 a person who sends his servant to transport goods belonging to another person, from one place to another, with special instructions not to take the goods of any other person, incurs no other liability than that of a private carrier for hire, in case of the loss of the goods. But as to who are common, as distinguished from private, carriers, and as to the peculiar character and responsibility of the former, the reader is referred to the chapters following; the object at present being to consider the liability of such persons only who carry for hire, and who are not common carriers. Any person carrying for hire, who does not come within the definition and explanation to be given of a common carrier, is a private carrier, and therefore bound to only ordinary diligence.

§ 47. Ordinary diligence, to which a private carrier for hire is bound, is such diligence as every prudent man commonly takes of his own goods, and ordinary negligence is therefore the want of such diligence. As it is ordinarily a good defence for a private carrier for hire, that the loss or injury to the goods was occasioned by unavoidable accident, or by such means that he could not have guarded against it

1 Beekman v. Shouse, 5 Rawle (Penn.) R. 179; Sheldon v. Robinson, 7 N. Hamp. R. 157.

2 Satterlee v. Groat, 1 Wend. (N. Y.) R. 272.

3 See Ross v. Hill, 2 Man. Grang. & Scott, R. 877.

4 See ante, § 6, 9, 11.

5 See ante, § 10.

6. See Greenl. Ev. § 219.

by any ordinary diligence,1 he will not be liable for any loss by robbers, or from any taking from him or his servants by force. According to Lord Holt, in Coggs v. Bernard, if a bailiff or factor carries goods, and is robbed, he is not answerable to the owner, although he is to be paid for his service," because it is only a particular office and private trust, and he doth the best he can, as the nature of the thing puts it in his power to perform it." 3 This doctrine has been recognized in the modern case of Brind v. Dale,1 by Lord Abinger, who considers, that "if a man agrees to carry goods for hire, although not a common carrier, he thereby agrees to make good all losses arising from the negligence of his servants, although he would not be liable for losses by thieves or by any taking by force."

§ 48. But the propriety of the distinction taken in the Civil Law between a public palpable robbery by force, and a secret theft or purloining of goods, is obvious. It is, that in the one case, the bailee relieved himself from responsibility for the loss by proof of the mere fact of the robbery; 5 it being very sensibly considered, that individual vigilance could avail but little against the open attack of the determined robber." In the other case, he was bound to make good the loss, unless he could show, that he had taken the greatest care of the thing intrusted to him; and that it had been purloined,

1 Per the Court, by Bronson, J., in Hollister v. Newman, 19 Wend. (N. Y.) R. 239. And see Hodgson v. Fullarton, 4 Taunt. R. 487; Hatchwell v. Cooke, 6 Ib. 577; Beekman v. Shouse, 5 Rawle (Penn.) R. 179. 2 Story on Bailm. § 457.

3 Coggs v. Bernard, Appx.

4 Brind v. Dale, 8 C. & Payne, R. 207.

5 Dig. Lib. 17, tit. 2, lex 52, 53; Inst. Lib. 3, tit. 15, § 2, 3; cited in Add. on Contr. 773.

6 Adversus latrones parum prodest custodia; adversus furem prodesse potest si quis advigilet. Gothofred, Jur. Civ., cited in Jones on Bailm.

44.

There are

notwithstanding every precaution for its safety. cases in which it has been considered, that, by the Common Law, a loss by secret purloining of goods in the hands of a carrier for reward, is primâ facie evidence of a want of ordinary diligence in keeping, and this presumption the carrier must rebut by showing that he had observed ordinary diligence, or, in other words, that he had taken all such precautions as appear to be necessary to guard against the theft. In an action against the commander of a ship of war for the loss of a quantity of bullion, the plaintiff declared, that in consideration that he had caused to be delivered to the defendant certain casks of dollars, to be carried on a voyage from the river Plate to London upon freight for certain hire and reward, the defendant undertook to take care of them, and assigned for breach, that he took so little care of them, that they were lost; and it appeared on the trial, that on the arrival of the ship in the Thames, two of the casks had been opened and plundered by the crew; it was considered, that the very occurrence of the loss was primâ facie evidence of negligent keeping on the part of the defendant, and it was held, that he was responsible for the loss.2

1 Ad casus, autem, fortuitos non sunt referendi illi casus qui cum culpâ conjuncti esse solent; cujusmodi sunt furta. Quamobrem, qui rem furto amissam dicit, si diligentiam suam probare debet. Vin. Com. ad Inst. lib. 3, tit. 15, § 5; Pothier, Pret. à Usage, art 53; Robinson v. Ward, Ry. & Mood. R. 276; and see Add. on Contr. 773.

2 Hodgson v. Fullarton, 4 Taunt. R. 787; and see also Hatchwell v. Cooke, 6 Ib. 577. Sir William Jones has given an opinion, that a loss by private theft is presumptive evidence of ordinary neglect. Jones on Bailm. 38, 40, 66, 77, 109. But Story has endeavored to prove, that the Common Law warrants no such presumption as Sir William Jones supposes. "Abstractedly speaking," says he, "there is nothing in the case of theft from which we have a right to infer, that, because a loss has happened by it, there must have been some neglect (Vere v. Smith, 1 Vent. 121; S. C. 2 Lev. 3.) On the contrary, no degree of vigilance will always secure a party from losses by theft. A store may be broken open however securely locked; a person may be robbed while riding in a stage-coach, or while asleep; a servant may be faithless, and betray the