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Fish os. Chapman & Ross.

Where a witness testifies that one is a common carrier, it must be taken that he knows what constitutes a common carrier.

Where a wagoner gives his receipt for goods restricting a liability which attaches to a common carrier, but not to a special bailee for hire, he admits himself to be a common carrier.

If a common carrier deviates from the voyage, he is liable for all losses, even those which arise from unavoidable accident. Story on Bailments, scc. 509; Wright 193; 5 Petersdorff Abr. 143; Story on Bailment, sec. 497.

The liabilities of a carrier by land and of a carrier by water are the same; or, if not the same, those of a carrier by land are greater. Story on B. 497.

A common carrier is liable for all losses which happen, except by act of God or public enemies. Act of God means something in opposition to act of man. 1 T. R. 27. Something occasioned by violence of nature. 1 Wend. R. 190, 195, 196; Story on B. seç. 511. Inevitable necessity. Ib. sec. 489; 19 Wend. R. 263.

A common carrier cannot restrict his liability by notice or express agreement in Georgia. He could not do so in England until 1796, and such restrictions then were confined almost exclusively to certain goods of great value and small bulk, and to a certain sum. He cannot, at common law, restrict his liability. insurer. 1 Esp. R. 36; 19 Wend. R. 232, 251; Story on B. 493; 1 Starkie R. 186, 172; 2 Hill R. 623.

If a common carrier can limit his liability, a promise to carry safely, unavoidable accidents only excepted, is no limitation of his liability, "unavoidable accident” being synonymous with “ act of

d."

He is an

Mr. Thomas, on same side in conclusion, contended, that if the party was not a common carrier, his obligations are precisely the same under his contract; and if any difference exists, he is even more strictly liable by his contract than a common carrier.

Story on B. sec. 36,

Unavoidable accidents and inevitable accidents are the same, and both mean whatever occurs by the act of God. Story on B. secs. 511, 457; 2 Bos. $ Pul. R. 419; Smith L. Cases, Coggs vs. Bernard, 33 Law Lib. 180.

Departing from the public road or highway when an accident happened, it is a conclusion of law that it was by negligence. Story on B. secs. 509, 413.

Fish rs. Chapman & Ross.

If the Court below erred in charging the jury that the party was a common carrier, still he was a private carrier, under as strong liability by contract as common carriers, and therefore error in this could not have controlled the verdict.

The Court did not err in charging the jury that leaving the road shows negligence.

By the Court — Nisbet, J. delivering the opinion.

The plaintiff in error, William Fish, received at the then head of the Central Rail Road from the agent of transportation on that road, certain packages of goods belonging to the defendants in error, Chapman & Ross, which by a special contract he promised to deliver in good order and condition at Macon, unaroidable accidents only excepted. In attempting to cross a stream his wagon was upset and the goods damaged. Chapman and Ross brought suit against him to recover the loss sustained by the injury done to the goods. A number of points are made in the assignment, and some of them of great practical importance in this community. They grow out of the construction which the Court below put upon the contract for the carrying of these goods above recited. I shall not consider each point separately, believing that all of them will be discussed and decided in those which I shall particularly notice.

[1.] The Court below decided that the plaintiff in error under his contract with Chapman & Ross was a common carrier, to which opinion he excepts. The evidence upon this point is the contract and nothing more. It does not appear that carrying was his habitual business; all that does appear from the record is, that he undertook upon a special contract, and upon this occasion, to haul on his own wagon for a compensation specified, the goods of the defendants from the then terminus of the Central Rail Road to the city of Macon. Does such an undertaking make him a common carrier? That is the question, and we are inclined to answer it in [2.] the negative. A common carrier is one who undertakes to transport from place to place for hire, the goods of such persons as think fit to employ him. Such is a proprietor of wagons, barges, lighters, merchant ships, or other instruments for the public conveyance of goods. See Mr. Smith's able commentary on the case of Coggs vs. Bernard, 1 Smith Leading Cases, 172; Forward vs. Pittard, 1 T. R. 27; Morse vs. Slew, 2 Lev. 69; 1 Vent. 190, 238; Rich vs. Kneeland, Cro. Jac. 330; Maring vs. Todd, 1 Stark, 72;

Fish vs. Chapman & Ross.

Brook vs. Pickwick, 1 Bing. R. 218. Rail-way companies aro common carriers. Palmer vs. Grand Junction Canal Co,4 M. & W.R.749.

“Common carriers (says Chancellor Kent,) undertake generally and for all people indifferently, to convey goods and deliver them at a place appointed, for hire, and with or without a special agreement as to price.” 2 Kent, 598.

“It is not (says Mr. Justice Story,) every person who undertakes to carry goods for hire, that is deemed a common carrier. A private person may contract with another for the carriage of his goods and incur no responsibility beyond that of an ordinary bailee for hire, that is to say, the responsibility of ordinary diligence. To bring a person under the description of a common carrier, he must exercise it as a public employment; he must undertake to carry goods for persons generally, and he must hold himself out as ready to engage in the transportation of goods for hire, as a business and not as a casual occupation "pro hac rice.Story on Bail. sec. 495.

A common carrier is bound to convey the goods of any person offering to pay his hire unless his carriage be already full, or the risk sought to be imposed upon him extraordinary, or unless the goods be of a sort which he cannot convey, or is not in the habit of conveying. Jackson vs. Rogers, 2 Show. 327; Riley vs. Horne, 5 Bing. R. 217; Lane vs. Cotton, 1 Ld. Ray R. 646; Edwards vs. Sheratt, 1 East. R. 604; Batson vs. Donovan, 1 B. & A. R. 32; 2 Kent, 598; Elsee vs. Gatwood, 5 T. R. 143; 1 Pick. R. 50; 2 Sumner R. 221; Story on Bail. 322, 323; Dudley S. C. Law and Eq. R. 159.

It will be seen hereafter we hold that according to the common law as of force in this country in 1776, a common carrier cannot vary or limit his liability by notice or special acceptance, and shall advert to this subject again. For the present we state the proposition broadly, that he is in the nature of an insurer of the goods entrusted to his caro, and is responsible for every injury sustained by them occasioned by any means whatever, except only the act of God and the King's enemies. 1 Inst. 89; Dale vs. Hall, 1 Wils. 281; Covington vs. Willan, Gow 115; Davis vs. Garrett, 6 Bing. 716; 2 Kent, 597; Coggs vs. Bernard, 2 Ld. Ray, 918;1 T. R. 27; 3 Esp. R. 127; 5 Bing. R. 217.

It is from these definitions and from the two propositions stated, that we are to determine what constitutes a person a common carrier. I infer then that the business of carrying must be habitual and not casual. An occasional undertaking to carry goods will not make a

Fish vs. Chapman & Ross. person a common carrier; if it did, then it is hard to determine who, in a planting and commercial community like ours, is not one; there are few planters in our own State owning a wagon and team, who do not occasionally contract to carry goods. It would be contrary to reason, and excessively burdensome, nay, enormously oppressive, to subject a man to the responsibilities of a common carrier, who might once a year or oftener at long intervals, contract to haul goods from one point in the State to another. Such a rule would be exceedingly inconvenient to the whole community, for if established, it might become difficult in certain districts of our State to procure transportation.

The undertaking must be general and for all people indifferently. The undertaking may be evidenced by the carrier's own notice, or practically by a series of acts, by his known habitual continuance in this line of business. He must thus assume to be the servant of the public, he must undertake for all people. A special undertaking for one man does not make a wagoner, or any body else, a common carrier. I am very well aware of the importance of holding wagoners in this couutry to a rigid accountability; they are from necessity greatly trusted, valuable interests are committed to them, and they are not always of the most careful, sober and responsible class of our citizens. Still the necessity of an inflexible adherence to general rules we cannot and wish not to escape from. To guard this point therefore, we say, that he who follows wagoning for a livelyhood, or he who gives out to the world in any intelligible way that he will take goods or other things for transportation from place to place, whether for a year, a season, or less time, is a common carrier and subject to all his liabilities.

One of the obligations of a common carrier, as we have seen, is to carry the goods of any person offering to pay his hire; with certain specific limitations this is the rule. If he refuse to carry, he is liable to be sued, and to respond in damages to the person ag. grieved, and this is perhaps the safest test of his character. By this test was Mr. Fish a common carrier ? There is no evidence to make him one but his contract with Chapman & Ross. Suppose that after executing this contract, another application had been made to him to carry goods, which he refused, could he be made liable in damages for such refusal upon this evidence ? Clearly not. There is not a case in the books, but one to which I shall presently advert, which would make him liable upon proof of a single carrying operation.

Fish vs. Chapman & Ross.

The extent of his liability, and his inability to vary that liability by notice or special acceptance, is another test. A common carrier is liable at all events, but for the act of God and the King's enemies; and he cannot limit or vary that liability. Whereas a carrier for hire in a particular case, is only answerable for ordinary neglect, unless he by express contract assumes the risk of a common carrier; his liability may be regulated by his contract. We do not think this undertaking would give to Mr. Fish that character which would preclude him from defining his liability in any other contract. By this contract he may be liable pro

hac vice as a common carrier, for that is a different thing.

Upon these views we predicate the opinion, that the plaintiff in error was not a common carrier. From the way in which the opinion of the court is expressed in the bill of exceptions, I am left somewhat in doubt whether the able judge presiding in this cause, intended to say that the plaintiff in error was a common carrier, or that under his contract he was liable as such. If the former, we think he erred; and if the latter, as we shall more fully show, we think with him. In either event we shall not send the case back; for if he meant to say that the plaintiff upon general principles was a common carrier, thinking as we do that he is liable under this contract as such, he will not be benefited by the case's going back.

In conflict with these views, it has been held in Pennsylvania, that “a wagoner who carries goods for hire, is a common carrier, whether transportation be his principal and direct business, or an occasional and incidental employment." Gibson, Chief Justice, in Gordon vs. Hutchinson, 1 Watts & Serg. R. 285. This decision no doubt contemplates an undertaking to carry generally without a special contract, and does not deny to the undertaker the right to define his liability. There are cases in Tennessee and New Hampshire which favour the Pennsylvania rule, but there can be but little doubt that that case is opposed to the principles of the common law, and its rule wholly inexpedient. See Story on Bail. secs. 457, 495; Bac. Ab. Carrier A.; 2 Bos. & Pul. 417; 4 Taunt. 787; Jones Bail. 121; 1 Wend. R. 272; 6 Taunt. R. 577; 2 Kent, 597.

Assuming then that Mr. Fish was not a common carrier, what is he? This is a bailment for hire, "locatio operis mercium vehendoram;" the fifth in the learned classification of bailments, made by Holt C. J. in Coggs vs. Bernard. Mr. Fish is a private person con tracting to carry for hire. The next question is what are !

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