“After an injury results to property intrusted to a common carrier for transportation, who upon receiving it for that purpose declined to fix the price or charge for the transportation, he cannot be allowed to come in and defeat a recovery by saying that at the time of its reception he had a secret intention, unexpressed to the shipper or consignor, and not agreed to by him, not to charge anything, and that the transportation was gratuitous and not for hire." So, where the carrier is given goods to sell and bring back the proceeds, he is a common carrier of the money while he is bringing it back. "Although no commission or distinct compensation was to be received upon the money, yet, according to the evidence, it appears to be a part of the duty attached to the employment, and in the usual and ordinary course of the business, to bring back the money when the cargo is sold for cash. The freight of the cargo is the compensation for the whole; it is one entire concern." 3 A leading case on this subject is Pierce v. Milwaukee Railroad. This was an action to recover the value of eight hundred empty grain bags which it was averred that the defendant railroad was transporting as a common carrier. It was shown at the trial that, as was customary, these bags were being carried back to the original shipper of the grain free; defendant claimed therefore that it was liable only as a gratuitous bailee. The judgment for the plaintiff was upon the theory that this was compensated carriage, which the upper court upheld. Mr. Justice Paine said: "The company, by establishing such & custom, makes the proposition to all persons, that if they will become its customers, it will carry their bags both ways without any other compensation than the freight upon the grain. Persons who become its customers in view of such a custom do so 3 Kemp v. Coughtry, 11 Johns. (N. Y.) 107 (1814). Acc. Emery v. Hersey, 4 Me. 407, 16 Am. Dec. 268 (1827); Harrington v. McShane, 2 Watts (Pa.), 443 (1834); Taylor v. Wells, 3 Watts (Pa.), 65 (1834). 4 23 Wis. 38, B. & W. 126 (1868). with that understanding. And the patronage and the freights paid are the consideration for carrying the bags. The company, in making such a proposition, must consider that this additional privilege constitutes an inducement to shippers to give it their freight. And it must expect to derive a sufficient advantage from an increase of business occasioned by such inducement, to compensate it for such transportation of the bags. And it ought not to be allowed, when parties have become its customers with such an understanding, after losing their bags, to shelter itself under the pretext that the carrying of the bags was a mere gratuity, and it is therefore liable only for gross negligence. It makes no difference that the custom is described as being to carry the bags free. In determining whether they are really carried 'free' or not, the whole transaction between the parties must be considered. And when this is done, it is found that all that is meant by saying that the empty bags are carried free is, that the customers pay no other consideration for it than the freight derived from the business they give the company. But this, as already seen, is sufficient to prevent the transportation of the bags from being gratuitous." 5 § 143. Pass issued for business reasons. Where a pass is issued for business reasons the passenger using it is not strictly a gratuitous passenger, but the carrier in transporting him is a common carrier. Thus, a pass issued to officials of another road, in accordance with a custom of railroads to exchange passes, is given for a consideration, and the person using it is not strictly a free passenger; and the same thing is true of a pass issued to a person to travel over the road on business of the road, and of a pass issued to a drover to 6 5 Acc. Aldridge v. Great Western Ry., 15 C. B. N. S. 582 (1864; semble.) 6 Steamboat New World v. King, 16 How. (U. S.) 469, 14 L. Ed. 1019 (1853). 7 Grand Trunk Ry. v. Stevens, 95 U. S. 655, 24 L. Ed. 535 (1877) (traveling on invitation of the road to show a patent coupling). travel with cattle.8 In the case of New York Central Railroad v. Lockwood," Mr. Justice Bradley said: "It may be assumed in limine that the case was one of carriage for hire; for though the pass certifies that the plaintiff was entitled to pass free, yet his passage was one of the mutual terms of the arrangement for carrying his cattle." This is further elucidated in Pennsylvania Railroad v. Henderson10 by Mr. Justice Read: "As it is absolutely necessary in carrying stock that the persons who have charge of them should be carried by the company, the price paid for the freight includes the cost of transporting the drover, who is not therefore a gratuitous but a paying passenger, and the word free is therefcre only true so far as that the conductor is not entitled to charge him separately for his passage." 144. Carrier's services in returning goods compensated. A carriage may be for hire, though no compensation is paid for it specifically, if it forms part of an entire transaction for which compensation is paid, which most commonly happens where the carriage in question consists of bringing back to a shipper some portion of or payment for goods for the carriage of which payment has been made. Such a case was Spears v. Lake Shore & Michigan Southern Railroad.11 The plaintiff owned tanks, used for transporting oil, which were fastened to platform cars. The oil was billed to the owner, no mention being made of the tanks; and no freight was paid for the tanks, either full or empty. The tanks and contents were destroyed by accidental fire while on the defendant's line. It was held that 8 New York C. R. R. v. Lockwood, 17 Wall. (U. S.) 357, 21 L. Ed. 627, B. & W. 498 (1873); Flinn v. Philadelphia R. R., 1 Houst. (Del.) 469 (1857); Illinois C. R. R. v. Beebe, 174 Ill. 13, 50 N. E. 1019, 43 L. R. A. 210 (1898); Pennsylvania R. R. v. Henderson, 51 Pa. St. 315 (1865). 9 Supra. 10 Supra. 11 67 Barb. (N. Y.) 513 (1876). defendant was liable as a common carrier, freight being included in the freight paid for the oil. So, where goods are shipped C. O. D., one charge being made for the entire transaction, the carrier is compensated by the single payment for returning the money, and he is therefore a common carrier of the money. 12 § 145. Carriage of baggage is compensated. The carrier of passengers is bound to carry with the passenger certain articles of personal use which the passenger must keep with him on the journey. For carrying such baggage along with the passenger the carrier might make a separate charge. 13 But it is customary for the carrier to carry mere personal baggage without charging an additional sum for it. The carriage is not gratuitous in such a case; the compensation for it is included in the fare for carrying the passenger." 14 The baggage which the company so carries in consideration of the passenger's fare comprises merely the ordinary personal effects of the passenger, which he will need on his journey.15 12 Zollinger v. The Emma, Fed. Cas. No. 18,218 (1876). 13 Vin. Abr. 220. 14 Great Northern Ry. v. Shepherd, 8 Ex. (Eng.) 30 (1852); Woods v. Devin, 13 Ill. 746, 56 Am. Dec. 483, B. & W. 130 (1852); Perkins v. Wright, 37 Ind. 27 (1871); Smith v. Boston & Me. R. R., 44 N. H. 325 (1862); Orange County Bank v. Brown, 9 Wend. (N. Y.) 85, 24 Am. Dec. 129 (1832); First Nat. Bank v. Marietta R. R., 20 Ohio St. 259, 5 Am. Rep. 655 (1880); Runyan v. Cent. R. Co., 61 N. J. L. 537, 41 Atl. 367, 68 Am. St. Rep. 711, 43 L. R. A. 284 (1898). 15 It is obviously impossible to discuss at length the question of what constitutes baggage. The subject can be sufficiently examined in the following cases: United States-Hannibal & S. J. R. R. v. Swift, 12 Wall. (U. S.) 262, 20 L. Ed. 423 (1870); New York C. & H. R. R. R. v. Fraloff, 100 U. S. 24, 25 L. Ed. 531 (1879). Connecticut-Hickox v. Naugatuck R. R., 31 Conn. 281 (1863). Illinois-Woods v. Devin, 13 Ill. 746, B. & W. 130 (1852); Michigan Cent. R. R. v. Carrow, 73 Ill. 348 (1874). Devin, 16 to quote from one case, an of the general law is given by "The principle of the authorities In Woods v. excellent summary Chief Justice Treat: is, that the term 'baggage' includes a reasonable amount of money in the trunk of a passenger intended for travelling expenses, and such articles of necessity and convenience as are usually carried by passengers for their personal use, comfort, instruction, amusement or protection; and that it does not extend to money, merchandise, or other valuables, although carried in the trunks of passengers, which are designed for different purposes. And regard may with propriety be had to the object and length of the journey, the expenses attending it, and the habits and condition in life of the passenger." A more definite rule cannot well be laid down. The remarks of Bunson, J., in Hawkins v. Hoffman, 17 are pertinent. He says: "It is undoubtedly difficult to define with accuracy what shall be deemed baggage within the rule of the carrier's liability. I do not intend to say that the articles must be such as every man deems essential to his comfort; for some men carry nothing, or very little, with them when they travel, while others consult their convenience by carrying many things. Nor do I intend to say that the rule is confined to wearing apparel, brushes, razors, writing apparatus, and the like, which most persons deem indis Indiana-Ohio & Miss. R. W. Co. v. Nickless, 71 Ind. 271 (1880); Staub v. Kendrick, 121 Ind. 226, 23 N. E. 79 (1889). Kansas-Kansas City F. S. & G. R. R. v. Morrison, 34 Kan. 520, 9 Pac. 225 (1886). Massachusetts-Connolly v. Warren, 106 Mass. 146 (1870); Blumantle v. Fitchburg R. R., 127 Mass. 322 (1879). Missouri-McLean v. Rutherford, 8 Mo. 109 (1834) North Carolina-Bland et al. v. Womack, 2 Murphy, 373 (1818). Wisconsin-Gleason v. Transportation Co., 32 Wis. 85 (1873). England-Hudston v. Midland Ry., L. R. 4 Q. B. 366; Macrow v. Great Western Ry., L. R. 6 Q. B. 121 (1871). 16 Supra. 176 Hill (N. Y.), 586 (1845). |