in Bishop on Contracts, section 1394. If shipper and carrier, by entering into the contract beyond this state, would incorporate binding provisions in it, limiting the duties and liabilities of carriers in this state, notwithstanding the prohibition of the constitution, it would be to put the bargains of individuals above the organic laws, and to substitute them to that public policy exercised by the state for the best welfare of the whole people of an organized society. This they ought not, and will not, be permitted to do." Our conclusion is that the contract is not only against the public policy of Virginia, but also of Kentucky. If it were valid under the Virginia code, it would not be valid here, because the cause of action arose in this state, and the contract was intended to relieve the appellee from its negligent act in Kentucky.

540 We will consider briefly the claim of appellee, that in contracting to haul the messenger and goods of the express company, it was not contracting as a common carrier, but as a private carrier. This position is sustained by the case of Baltimore & O. R. R. Co. v. Voight, 176 U. S. 498, 20 Sup. Ct. Rep. 385, 44 L. ed. 560, and the opinions of courts in some other jurisdictions. It may be true (but the question is not before us) that an express company could not compel railroad companies to provide an express-car for the transportation of its messengers and packages, but having made the contract and proceeds to execute it by transporting the messenger and its packages does not deprive it of its character as a common carrier. It carries the messenger and packages for hire. The railroad company is a common carrier by virtue of the business it conducts, and not by virtue of the responsibilities which may be placed upon it by law, or its contracts. The mere fact that it makes some special arrangement with some person or company for the transportation of persons, or property, over its line, in a particular way or under certain conditions, does not deprive it of its character as a common carrier, or convert it into a bailee for hire. The case of Greenwich Ins. Co. v. Louisville & Nashville R. R. Co., 112 Ky. 598, 99 Am. St. Rep. 313, 23 Ky. Law Rep. 2014, 66 S. W. 411, 67 S. W. 16, 56 L. R. A. 477, is not in conflict with the conclusion we have reached. There, the contract under consideration was not for the transportation of passengers or goods, but was a contract by the railroad company giving its permission to the erection of

a building upon its right of way, upon certain conditions, hence, the court held the contract was not made with reference to its business as a common 541 carrier. In the case of New York C. R. R. Co. v. Lockwood, 17 Wall. 359, 21 L. ed. 627, the question arose as to the liability of the railroad company to a drover, who under a special arrangement rode upon a freight train to look after stock which was being carried thereon. The contract with the drover provided that the carrier was not to be liable to him for injuries resulting from its negligence, and the court said: "It is argued that a common carrier, by entering into a special contract with a party for carrying his goods or person on modified terms, drops his character, and becomes an ordinary bailee for hire, and therefore may make any contract he pleases; that is, he may make any contract whatever, because he is an ordinary bailee, and he is an ordinary bailee because he has made the contract. We are unable to see the soundness of this reasoning. It seems to us more accurate to say that common carriers are such by virtue of their occupation, not by virtue of the responsibilities under which they rest. Those responsibilities may vary in different countries, and at different times, without changing the character of the employment. The common law subjects the common carrier to insurance of the goods carried, except as against the act of God, or public enemies. The civil law excepts also losses by means of any superior force, and any inevitable accidents. Yet the employment is the same in both cases. And if by special agreement the carrier is exempted from still other responsibilities, it does not follow that his employment is changed, but only that his responsibilities are changed. The theory occasionally announced that a special contract as to the terms and responsibilities of carriers changes the nature of the employment is calculated to mislead. The responsibilities of a 542 carrier may be reduced to those of an ordinary bailee for hire, while the nature of his business renders him a common carrier still. Is there any good sense in holding that a railroad company, whose only business is to carry passengers and goods, and which was created and established for that purpose alone, is changed to a private carrier for hire by a mere contract with a customer, whereby the latter assumes risks of inevitable accidents in the carriage of his goods? Suppose that the contract relates to single crate of glass or crockery, while at the same time the carrier receives from

common

the same person twenty other parcels, respecting which no such contract is made, is the company a public carrier as to the twenty parcels, and a private carrier as to the one? On this point there are several authorities which support our view, some of which are noted in the margin. A common carrier may, undoubtedly, become a private carrier, or a bailee for hire, when, as a matter of accommodation, or special engagement, he undertakes to carry something which it is not his business to carry. For example, if a carrier of produce, running a truck boat between New York City and Norfolk, should be requested to carry a keg of specie, or a load of expensive furniture, which he could justly refuse to take, such agreement might be made in reference to his taking and carrying the same as the parties chose to make, not involving any stipulation contrary to law or public policy. But when a carrier has a regular established business for carrying all of certain articles, and especially if that carrier be a corporation created for the purpose of the carrying trade, and the carriage of the articles is embraced within the scope of its chartered powers, it is a common carrier and a special contract about 543 its responsibilities does not devest it of the character."

The drover in this case could have compelled the railroad company to have accepted his fare and transported him on its passenger trains as a passenger, and the mere fact that it agreed to do so on a freight train did not deprive him of his relation to the railroad as a passenger. The express messenger could have compelled the railroad company to have accepted fare and transported him upon a passenger train. The mere fact that it did so in the express-car did not deprive him of his relation to the railroad company as a passenger entitled to all the relief which the law guaranteed him. In the case of Baltimore & O. S. W. Ry. Co. v. Voight, 176 U. S. 498, 20 Sup. Ct. Rep. 385, 44 L. ed. 560, the supreme court endeavored to distinguish that case from New York C. R. R. Co. v. Lockwood, 17 Wall. 359, 21 L. ed. 627. In our opinion the reasoning in the Lockwood case applies with great force to the case under consideration. Several of the supreme courts of the states have taken the view of the law that we have herein expressed. In our opinion, the contract under consideration is against public policy, and not enforceable.

The judgment is reversed for proceedings consistent with this opinion.

The Relation of Express Companies and Their Employés to other car riers is discussed in the note to Pittsburgh etc. Ry. Co. v. Mahoney, 62 Am. St. Rep. 513. The question whether express messengers are passengers is considered in the note to Illinois Cent. R. R. Co. v. O'Keefe, 61 Am. St. Rep. 98. It has been decided in Wisconsin that an express messenger is not a passenger of the railway company, and that it may by contract relieve itself from liability for negligence toward him while riding on its trains: Peterson v. Chicago etc. Ry. Co., 119 Wis. 197, 100 Am. St. Rep. 879, and see the cases cited in the cross-reference note thereto; and in Illinois it has been held that a contract of employment as porter for a sleeping-car company which releases the railroad company from liability for injuries to him is not against public policy: Chicago etc. Ry. v. Hamler, 215 Ill. 525, 106 Am. St. Rep. 187.

CRICE V. ILLINOIS LIFE INSURANCE COMPANY. [122 Ky. 572, 92 S. W. 560.]

LIFE INSURANCE-Right to Pledge Policy.-One who takes out a policy of insurance on his life in which his wife is named as beneficiary, and which provides for an assignment or change of beneficiaries with the consent of the company, may, without her consent, assign it to the company as collateral security for a loan, and, when the debt is due, surrender the policy at its cash value to the company in payment. (p. 492.)

John W. Ray, for the appellant.

Robbins & Thomas and Long & Rice, for the appellee.

573 SETTLE, J. On the sixth day of February, 1900, the Mutual Life Insurance Company of Kentucky, in consideration 574 of fifty-four dollars and seventy-eight cents then paid it, by Frederick G. Crice, and his undertaking to thereafter annually pay it, on the same date, a like sum, issued and delivered to him a policy of insurance on his life, numbered 32,000, whereby it agreed to pay at his death, to his wife, the appellant, Elizabeth Crice, the sum of two thousand dollars. By a written contract of date August 1, 1902, the Mutual Life Insurance Company of Kentucky, for a valuable consideration, and with the approval of its policy-holders, sold and assigned its assets, premium lists, and property of every kind to the appellee, Illinois Life Insurance Company, and the latter company thereby became subrogated to its rights, assumed its liabilities to the holders of its policies, and issued to each of them a certificate to that effect. The Mutual Life Insurance Company of Kentucky then quit busi

.

ness, and the premiums that were thereafter paid on the policies it had issued were received from the policy-holders by the Illinois Life Insurance Company. The policy of two thousand dollars on the life of Frederick G. Crice was of the number upon which the latter company, under its contract with the Mutual Life Insurance Company of Kentucky, became liable. On August 7, 1904, Frederick G. Crice died in Ballard county, and shortly thereafter his widow, the appellant, Elizabeth Crice, instituted this action against appellee in the Ballard circuit court to recover of it two thousand dollars, the amount of insurance specified in the policy referred to; it being alleged in the petition that the policy, though in appellee's possession at the time of her husband's death, was then in full force, that appellee by virtue of its contract with the Mutual Life Insurance Company of Kentucky assumed its payment, and is liable therefor, and that 575 appellant, as the beneficiary named in the policy, is entitled to its proceeds. The answer of appellee admits the contract with the Mutual Life Insurance Company, and its undertaking to carry out the contracts of that company with its policy-holders, including Frederick G. Crice, and also admits its possession of the policy in controversy, but denies any liability thereon, or that it was in force at the time of his death. It is averred in the answer that, after the payment by Frederick G. Crice of four annual premiums upon the policy in question, he borrowed of appellee one hundred and five dollars, for which he at the time executed to it his promissory note of date May 14, 1903, due one year thereafter, and to secure its payment assigned and delivered to appellee the policy in controversy, as permitted by a clause in the policy containing this provision: "This policy is issued and accepted upon the express condition that the said Frederick G. Crice may, with the consent of the company, at any time assign it, or before assignment, change the beneficiaries therein, or make any other change." The answer contains, in substance, the further averments- that, after thus executing to appellee his note for the one hundred and five dollars borrowed of it, and assigning his policy of insurance as collateral security for its payment, Frederick G. Crice failed to pay the annual premiums on the policy which became due February 6, 1904, and by reason thereof the policy by its terms lapsed and became void, except as to its cash value, which at the time of the default in the payment of the pre