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 Railroad 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 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 conveyance of goods. See Mr. Smith's able commentary on the case of Coggs v. Bernard, 1 Smith Leading Cases, 152; Forward v. Pittard, 1 T. R. 27; Morse v. Slew, 2 Lev. 69; 1 Vent. 190, 238; Rich v. Kneeland, Cro. Jac. 330; Maving v. Todd, 1 Stark, 72; Brook v. Pickwick, 1 Bing. R. 218. Railway companies are common carriers. Palmer v. Grand Junction Canal Co. 4 M. & W. R. 749.

"Common Carriers (says Chancellor Kent), undertake generally 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. . .

...

1 The statement of facts, argument of counsel and parts of the opinion are omitted.- ED.

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 v. Rogers, 2 Show. 327; Riley v. Horne, 5 Bing. R. 217; Lane v. Cotton, 1 Ld. Ray. R. 646; Edwards v. Sheratt, 1 East. R. 604; Batson v. Donovan, 1 B. & A. R. 32; 2 Kent, 598; Elsee v. 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 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 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 anybody else, a common carrier. I am very well aware of the importance of holding wagoners in this country 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 livelihood, 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 aggrieved, 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. . . .

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 v. 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 the 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, 597.2 . . .

2 In Gisbourne v. Hurst (1701), 1 Salk. 249, it was resolved "that any man undertaking for hire to carry goods of all persons indifferently, as in this case, is as to this privilege a common carrier."

See Lloyd v. Haugh (1909), 223 Pa. 148: Hinchliffe v. Wenig Teaming Co. (1916), 274 Ill. 417; Joest v. Clarendon & R. P. Co. (1916), 122 Ark. 353.

As to the status of towing companies compare Bussey & Co. v. Mississippi Valley Tr. Co. (1872), 24 La. Ann. 165: Hungerford v. Winnebago Tg Bt. & Tr. Co. (1873), 33 Wis. 303: The Syracuse (1870), 12 Wall. 167: The Margaret (1876), 94 U. S. 494. See also Cleveland, C., C. & St. L. Ry. Co. v. Henry, supra p. 117 and note.

Pullman and telegraph companies have sometimes been classed as carriers. See Pullman Pal. Car Co. v. Lawrence, supra, p. 10, and State v.

WOODS v. DEVIN.

13 Ill. 746. 1852.1

TREAT, C. J. This was an action on the case brought by Devin against Woods. The declaration alleged, in substance, that the plaintiff, on the 7th of August, 1851, delivered on board the steamboat Governor Briggs, then lying at Peoria, and owned by the defendant and used by him in the transportation of passengers and freight on the Illinois River between Peoria and LaSalle, a carpetbag containing one case of duelling pistols, one pocket-pistol, and various articles of wearing apparel, of the value of $200, to be carried on said boat from Peoria to LaSalle for a certain reward, and that the defendant received the same for the purpose aforesaid; yet the defendant, not regarding his duty in the premises, did not deliver the carpet-bag and contents at LaSalle, but, on the contrary, lost the same. The plea was not guilty.

It appeared, in evidence, that on the 7th of August, 1851, the plaintiff was about to take a journey from Peoria to the city of New York, and engaged his passage for LaSalle in the steamboat Governor Briggs, then owned by the defendant, and run by him on the Illinois River between Peoria and LaSalle for the conveyance of passengers and freight; that the plaintiff sent his trunk and carpet-bag to the boat as she was about to leave Peoria for LaSalle, and the same were received on board by the direction of the defendant; that the plaintiff left the boat temporarily, and while absent on shore the carpet-bag was stolen and rifled of its contents, and the same were never recovered by him; that he did not proceed on his journey in consequence of the loss of the carpet-bag; that the plaintiff did not pay his fare for the passage, nor was there any express contract for the carriage of the trunk and carpet-bag; that the carpet-bag contained articles of wearing apparel of the value of $36, a pair of duelling-pistols of the value of $25, and a pocketpistol of the value of $15.

The court refused to give the following instructions asked by the defendant: "That if the carpet-bag was merely baggage as is usual for passengers to carry, and was designed as such by the

Bell Tel. Co., supra, p. 11. But see Telegraph Co. v. Griswold (1881). 37 Ohio St. 301, 309. As to transmission of money by telegraph see Lehre v. Western Un. Tel. Co. (1918), 175 N. C. 561, and Reaves v. Western Un. Tel. Co. (1918), 110 S. C. 233.

See also The Pipe Line Cases, supra, p. 79.

1 The statement of the case and argument of counsel are omitted.- ED.