HOLLISTER v. NowLEN.

Supreme Court of the State of New York, May, 1838, (19 Wend. R. 234.)

Stage-coach proprietors and other common carriers cannot restrict their Common Law liability by a general notice, that the "BAGgage of PasseNGERS IS AT THE RISK OF THE OWNERS."

THIS was an action against the defendant as a common carrier for the loss of the plaintiff's trunk and contents. A case was agreed on between the parties, stating the following facts: The defendant was a member of a company, the proprietors of three daily lines of stage-coaches running between Canandaigua and Buffalo, one of which was called the Telegraph line. The defendant resided at Avon, and with his teams and coaches ran that part of the route lying between Avon and Le Roy. East of Canandaigua the line was owned by other proprietors. The plaintiff resided at Utica, and at that place entered as a passenger in the Telegraph line for Buffalo. His baggage consisted of a trunk, containing clothing to the value of $116.75. The fare was duly paid. On the 20th July, 1833, before daylight in the morning, the plaintiff left Avon in the defendant's coach on his way to Buffalo. The trunk was placed in the boot behind the coach, which was carefully secured by strong leather covering, fastened with strong leather straps, and buckles, and was made secure against any loss except by violence. After proceeding about three miles it was discovered that the straps confining the cover of the boot had been cut and the plaintiff's trunk with its contents had been feloniously stolen and carried off. There was no negligence on the part of the defendant or his servants in relation to the trunk, further than may be implied from the facts above stated. The plaintiff left the stage, went back to Avon and reported his loss; and the defendant offered a reward, and made all proper efforts for the recovery of the property, but without success.

The Telegraph line was established in 1828. A public notice, that baggage sent or carried in the Telegraph line, would be at the risk of the owner thereof, printed on a large sheet, had been uni

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formly kept placarded in most of the stage offices and public houses from Albany to Buffalo; and particularly such notice had been continually affixed up in the stage-office and principal public houses at Utica, where the plaintiff had resided for the last three years before the trunk was lost. It was stipulated that should the Court be of opinion that the plaintiff was entitled to recover, judgment should be entered in his favor for $116.75, and interest from July 20, 1833, besides costs.

This cause was twice argued; the first time in July term, 1835, by C. P. Kirkland, for the plaintiff, and by M. T. Reynolds, for the defendant; and the second time in July term, 1837, by C. P. Kirkland, for the plaintiff, and by P. Gridley for the defendant. At this term the following opinion was delivered :

By the Court, BRONSON, J. Stage-coach proprietors, and other carriers by land and water, incur a very different responsibility in relation to the passenger and his baggage. For an injury to the passenger, they are answerable only where there has been a want of proper care, diligence, or skill; but in relation to baggage they are regarded as insurers, and must answer for any loss not occasioned by inevitable accident or the public enemies. As the point, though made, was not discussed by the defendant's counsel, I shall content myself with referring to a few cases to prove that they are liable as common carriers, for the loss or injury of the property of the passenger. Orange Co. Bank v. Brown, 9 Wend. R. 85; Camden Company v. Burke, 13 Id. 611; Brooke v. Pickwick, 4 Bing. 218; 4 Esp. R. 177; 2 Kent, 601. The fact that the owner is present, or sends his servant to look after the property, does not alter the case. Robinson v. Dunmore, 2 Bos. & Pull. 418. Chambre, J. said, "It has been determined, that if a man travel in a stage-coach and take his portmanteau with him, though he has his eye upon the portmanteau, yet the carrier is not absolved from his responsibility, but will be liable if the portmanteau be lost." The liability of a carrier is like that of an innkeeper; and it was said in Calye's case, 8 Co. 63, that "it is no excuse for the innkeeper to say that he delivered the guest the key of the chamber in which he lodged, and that he left the door open; but he ought to keep the goods and chattels of his guest there in safety." When there is no fraud, the fact that the owner accompanies the property

cannot affect the principle on which the carrier is charged in case of loss.

The principal question in the cause arises out of the notice given by the coach proprietors, that baggage carried by the Telegraph line would be at the risk of the owner; and the first inquiry is, whether there was sufficient evidence to charge the plaintiff with a knowledge of the notice. If we are to follow the current of modern English decisions on this subject, it cannot be denied that there was evidence to be left to a jury, and upon which they might find that the plaintiff had seen the notice. But I think the carrier, if he can by any means restrict his liability, can only do so by proving actual notice to the owner of the property. I agree to the rule laid down by Best, C. J., in Brooke v. Pickwick, 4 Bing. 218, decided in 1827, when the Courts of Westminster Hall had commenced retracing their steps in relation to the liability of carriers, and were endeavoring to get back on to the firm foundation of the Common Law. He said: "If coach proprietors wish honestly to limit their responsibility, they ought to announce their terms to every individual who applies at their office, and at the same time to place in his hands a printed paper, specifying the precise extent of their engagement. If they omit to do this, they attract customers under the confidence inspired by the extensive liability which the Common Law imposes upon carriers, and then endeavor to elude that liability by some limitation which they have not been at the pains to make known to the individual who has trusted them."

I should be content to place my opinion upon the single ground, that if a notice can be of any avail, it must be directly brought home to the owner of the property; and that there was no evidence in this case which could properly be submitted to a jury to draw the inference, that the plaintiff knew on what terms the coach proprietor intended to transact his business. But other questions have been discussed; and there is another case before the Court,' where the Judge at the Circuit thought the evidence sufficient to charge the plaintiff with notice. It will, therefore, be proper to consider the other questions which have been made by the counsel.

Can a common carrier restrict his liability by a general notice,

1 The case of Cole v. Goodwin and Story, post.

in any form, brought home to the opposite party? Without intending to go much at large into this vexed question, it will be necessary to state some leading principles relating to the duties and liabilities of the carrier, and the ground upon which his responsibility rests.

The rules of the Common Law in relation to common carriers, are simple, well defined, and what is no less important, well understood. The carrier is liable for all losses, except those occasioned by the act of God or the public enemies. He is regarded as an insurer of the property committed to his charge, and neither destruction by fire, nor robbery by armed men, will discharge him from liability. Holt, C. J., in pronouncing his celebrated judgment in the case of Coggs v. Bernard, 2 Ld. Raym. 918, said: "This is a political 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." In Forward v. Pittard, 1 T. R. 27, where the carrier was held liable for a loss by fire, Lord Mansfield says, that "to prevent litigation, collusion, and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carrier, unless he shows it was done by the king's enemies, or by such act as could not happen by the intervention of man, as storms, lightnings and tempests." And in relation to a loss by robbery, he said, "the true reason is, for fear it may give room for collusion, that the master may contrive to be robbed on purpose, and share the spoil." The rule has been fully recognized in this State. Colt v. McMechen, 6 Johns. R. 160; Elliot v. Rossell, 10 Johns. R. 1; Kemp v. Coughtry, 11 Johns. R. 107. In Robberts v. Turner, 12 Johns. R. 232, Spencer, J. said, the carrier "is held responsible as an insurer of the goods, to prevent combinations, chicanery and fraud."

A common carrier exercises a public employment, and consequently has public duties to perform. He cannot, like the tradesman or mechanic, receive or reject a customer at pleasure, or charge any price that he chooses to demand. If he refuse to receive a passenger or carry goods according to the course of his particular employment, without a sufficient excuse, he will be liable to an action; and he can only demand a reasonable compensation for his services and the hazard which he incurs. 2 Ld.

Raym. 917; Bac. Abr. Carriers, (B.); Skin. 279; 1 Salk. 249, 250; 5 Bing. 217; 3 Taunt. 272, per Lawrence, J.; 2 Kent, 599; Story on Bailm. 328; Jeremy on Carriers, 59.

It has been said, that the carrier is liable in respeet of his reward. Lane v. Cotton, 1 Salk. 143. Lord Coke says, " he hath his hire, and thereby implicitly undertaketh the safe delivery of the goods delivered to him." Co. Litt. 89, a. The carrier may no doubt demand a reward proportioned to the services he renders and the risk he incurs; and having taken it, he is treated as an insurer, and bound to the safe delivery of the property. But the extent of his liability does not depend on the terms of his contract; it is declared by law. His undertaking, when reduced to form, does not differ from that of any other person who may agree to carry goods from one place to another; and yet, one who does not usually exercise this public employment, will incur no responsibility beyond that of an ordinary bailee for hire; he is not answerable for a loss by any means against which he could not have guarded by ordinary diligence. It is not the form of the contract, but the policy of the law, which determines the extent of the carrier's liability. In Ansell v. Waterhouse, 2 Chit. R. 1, which was an action on the case against the proprietor of a stagecoach for an injury to the plaintiff's wife, Holroyd, J. said, "this action is founded on what is quite collateral to the contract, if any; and the terms of the contract, unless changing the duty of a common carrier, are in this case quiet immaterial. The declaration states an obligation imposed upon him by the law. action against a person, who, by ancient law, held, as public office, and was bound to the public. This action is founded on the general obligation of the law." In Forward v. Pittard, 1 T. R. 27, Lord Mansfield said, "It appears from all the cases for a hundred years back, that there are events for which the carrier is liable, independent of his contract. By the nature of his contract, he is liable for all due care and diligence; and for any negligence, he is suable on his contract. But there is a further degree of responsibility by the custom of the realm, that is, by the Common Law; a carrier is in the nature of an insurer." Hide v. Proprietors, &c., 1 Esp. R. 36.

This is an it were, a

See also

The law in relation to carriers has, in some instances, operated with severity, and they have been charged with losses against which