ing room was there for the full convenience of one situated as he was. He was making the very use of the waiting room that the railroad and the law designed should be made of it. Conly was no loiterer on the depot grounds. He was no idler or trespasser; but he was there on the lawful business of an intending passenger.

We have found no case precisely like the case now on trial, but in the note to the case of Alabama, &c., Ry. Co. v. Godfrey, 130 Am. St. Rep. 76, will be found many authorities discussing this subject and sustaining the principle here announced. In section 997, vol. 2, Hutchinson on Carriers, it is said: "It would be impossible to frame a clear, precise, legal definition of the word 'passenger,' which would embrace all its essential elements." In 6 Cyc. p. 536, it is said that the relation of carrier and passenger exists, as to railroad companies, "not merely when the passenger enters the train with the ticket already purchased, giving him a contract right to ride, but when he enters upon the premises of the carrier, with intention to take a train in due course."

The case of Andrews v. Yazoo & Mississippi Valley Railroad Company, 86 Miss. 129, 38 South. 773, is no authority for any question involved in this case. In the Andrews Case it is shown. that Andrews went to the depot more than two hours before the train he desired to take was due. He went into the private office of the agent, and requested the privilege of doing some writing on account of his own affairs, thus going to the depot and making use of its private office as an office in which to transact some business of his own. While so engaged in his own business in the private office of the depot, the depot agent and Andrews got into a personal difficulty about a private matter, and the court stated. in the opinion that Andrews had gone to the depot in order that he might have a comfortable and convenient place in which to transact his own business, and was not, therefore, a passenger; and that Andrews was knowingly violating the rules of the company, and could not claim its protection under the facts of that case. But the very object of Conly's visit to the depot was in furtherance of his purpose to take passage. Everything he did while there was in accordance with the rules of the company, and he was merely availing himself of those facilities which the company had placed there for the use of passengers, and which, under the law and rules of the company, he had a right to use.

In view of what we have heretofore said, we deem it unnecessary to further discuss the questions argued on behalf of appellee. Reversed and remanded.2

2 Compare Central R. R. & B. Co. v. Perry (1877), 58 Ga. 461 (person has bought a ticket and is waiting at the station); Southern Ry. Co. v.

Smith (1898), 86 Fed. 292, Chicago & E. I. Ry. Co. v. Jennings (1901), 190 Ill. 478 (person has bought a ticket and is crossing the tracks to the station); Illinois C. R. Co. v. Laloge (1902), 113 Ky. 896 (person goes to a station five hours before train time and has not bought a ticket or been accepted for carriage).

Street Railways: Gordon v. West End St. Ry. (1900), 175 Mass. 181 (car has stopped and person has put his foot upon the step); Duchemin v. Boston El. Ry. Co. (1904), 186 Mass. 353 (car has stopped for one who has not yet reached it); Chicago Un. Tr. Co. v. O'Brien (1905), 219 IIL 303 (person running towards a car); Mishler r. Chicago, S. B. & N. I. Ry. Co. (Ind., 1916) 111 N. E. 460 (person has jumped on to the running board of a car in motion).

Note, 16 Michigan L. Rev. 443, as to what agents have authority to accept passengers.

As to when the relationship of innkeeper and guest arises and when there has been receipt of the guest's baggage see Arcade Hotel Co. v. Wiatt (1886), 44 Oh. St. 32: Malony v. Bacon (1888), 33 Mo. App. 501: Caskery v. Nagle (1889), 83 Ga. 696; Wright . Anderton (1909), 1 K. B. 209; Hill. Memphis Hotel Co. (1911), 124 Tenn. 376; Notes, 23 L. R. A. (N. S.) 1107, and 34 id. 420.

CHAPTER X.

THE INSURANCE LIABILITY AND ITS

EXCEPTIONS.

FORWARD v. PITTARD.

1 Term Reports, 27. 1785.1

This was an action on the case against the defendant as a common carrier, for not safely carrying and delivering the plaintiff's goods. This action was tried at the last Summer Assizes at Dorchester, before Mr. Baron Perryn, when the jury found a verdict for the plaintiff, subject to the opinion of the Court on the following case:

"That the defendant was a common carrier from London to Shaftsbury. That on Thursday the 14th of October 1784, the plaintiff delivered to him on Weyhill 12 pockets of hops to be carried by him to Andover, and to be by him forwarded to Shaftsbury by his public road wagon, which travels from London through Andover to Shaftsbury. That, by the course of travelling, such wagon was not to leave Andover till the Saturday evening following. That in the night of the following day after the delivery of the hops, a fire broke out in a booth at the distance of 100 yards from the booth in which the defendant had deposited the hops, which burnt for some time with unextinguishable violence, and during that time communicated itself to the said booth in which the defendant had deposited the hops, and entirely consumed them without any actual negligence in the defendant. That the fire was not occasioned by lightning."

N. BOND for the plaintiff. The question is, whether a carrier is liable for the loss of goods occasioned by fire, without any negligence in him or his servants. The general proposition is, that a carrier is liable in all cases, except the loss be occasioned by the act of God, or the King's enemies. (Lord Raymond, 909, 1 Wils. 281.) And this doctrine has lately been recognized by this Court, in the case of the Company of the Trent Navigation v. Wood (East. 25 Geo. 3. B. R. rep. 3 Esp. C. 127.) The only doubt is

1 The citations which are contained in footnotes in the report are here placed in parentheses in the text.-ED.

580

cause.

on the construction of the words "the act of God." It is an effect immediately produced without the interposition of any human In Amies and Stephens (1 Stra. 128), these words were held to include the case of a ship being lost by tempest. In the books, under the head of "waste," there is an analogous distinction to be found: if a house fall down by tempest, or be burned by lightning, it is no waste; but burning by negligence or mischance is waste. (Co. Litt. 53. a. b.)

Before the 6th of Anne (6 Ann. c. 31) an action lay against any person in whose house a fire accidentally began; this shews that an accidental fire was not in law considered as the act of God; but the person was punishable for negligence. Suppose a fire happens in a house where there are different lodgers, each of whose lodgings is considered as a separate house: if the fire be communicated from one lodging to another, and the Court say the first fire was the act of man, at what time will it be said that it ceases to be the act of man, and commences to be the act of God? if it were not the act of man in the first house, it is impossible to draw the line. In the case of the Company of the Trent Navigation and Wood, Lord Mansfield said, "By the act of God is meant a natural, not merely an inevitable, accident."

If it be contended for the defendant, that it is here stated that there was no actual negligence, that will not serve for him; for this action was not founded in negligence. Lord Holt says, there are several species of bailments, and different degrees of liability annexed to each: and a carrier is that kind of bailee, who is answerable though there be no actual negligence.

BOROUGH, for the defendant, observed, that the point in this case was not before the Court in any of the cases cited. The general question here is, whether a carrier is compellable to make satisfaction for goods delivered to him to carry, and destroyed by mere accident, in a case where negligence is so far from being imputed to him, that it is expressly negatived? This action of assumpsit must be considered as an action founded on what is called the custom of the realm relating to carriers. And from a review of all the cases on this subject it manifestly appears that a carrier is only liable for damage and loss occasioned by the acts or negligence of himself and servants, that is, for such damage and loss only as human care and foresight can prevent; and that there is no implied contract between him and his employers to indemnify them against unavoidable accidents. The law with respect to land carriers and water carriers is the same. Rich v. Kneeland, Cro. Jac. 330. Hob. 17. 5. Burr. 2827.

In Vid. 27, the declaration, in an action against a waterman for

negligently keeping his goods, states the custom relative to carriers thus," absque substractione, amissione, seu spoliatione, portare tenetur, ita quod pro defectu dictorum communium portatorum seu servientium suorum, hujusmodi bona et catalla eis sic ut prefertur deliberata, non sint perdita, amissa, seu spoliata." It then states the breach, that the defendant had not delivered them, and "pro defectu bonae custodiae ipsius defendentis et servientium suorum perdita et amissa fuerunt." In Brownl. Red. 12. the breach in a declaration against a carrier is, "defendens tam negligenter et improvide custodivit et carriavit, etc." In Clift. 38, 39, Mod. Intr. 91, 92, and Herne 76, the entries are to the same effect. In Rich and Kneeland (Hob. 17) the custom is stated in a similar way and in the Exchequer Chamber it was resolved, "that though it was laid as a custom of the realm, yet indeed it is common law.” On considering these cases, it is not true that "the act of God, and of the King's enemies," is an exception from the law. For an exception is always of something comprehended within the rule, and therefore excepted out of it; but the act of God and of the King's enemies is not within the law as laid down in the books cited.

All the authorities cited by the counsel for the plaintiff are founded on the dictum in Coggs v. Bernard 2 (2 Lord Raymond, 909), where this doctrine was first laid down; but Lord Holt did not mean to state the proposition in the sense in which it has been contended he did state it. He did not intend to say, that cases falling within the reason of what are vulgarly called "acts of God," should not also be good defences for a carrier. After saying (Lord Raymond, 918) "the law charges the persons, thus intrusted to carry goods, against all events, but the acts of God and of the enemies of the King," he proceeds thus, "for though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic establish

2" As to the fifth sort of bailment, viz. a delivery to carry or otherwise manage, for a reward to be paid to the bailee, those cases are of two sorts; either a delivery to one that exercises a public employment, or a delivery to a private person. First, if it be to a person of the first sort, and he is to have a reward, he is bound to answer for the goods at all events. And this is the case of the common carrier, common hoyman, master of a ship, &c., which case of a master of a ship was first adjudged 26 Car. 2, in the case of Mors v. Slew. Raym. 220, 1 Vent. 190, 238. The law charges this person, thus intrusted to carry goods, against all events but acts of God, and of the enemies of the king. For though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic 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: for else these carriers might have an opportunity of undoing all persons that had any dealings with them. by combining with thieves, &c., and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon in that point." Coggs v. Bernard (1703), 2 Ld. Raym. 909, 917.