"Their occupation is essentially a public one; they hold themselves out to the world as ready to serve all who will employ them; and they have whatever of advantage any common carrier can derive from such a public announcement.
"They have the custody and direction of the vessel to be transported; in carrying freight, if they have the control, employment, and management thereof, are common carriers; but mere ownership will not constitute a person a common carrier, if the owner do not also manage and employ the vessel himself for the purposes of carriage.1
§ 917. Receivers appointed by a court of chancery to take possession of, run, and manage a railroad, and carrying freight over the same, or trustees of the mortgage bondholders of a railroad, being in actual possession and management of a railroad, have been declared to be common carriers, with the ordinary liabilities and duties as such.2
§ 918. Wagoners and teamsters who ply between different towns, and whose public and habitual employment is to carry goods from one to the other for hire, are common carriers.3 But it has been said that if they only undertake to carry from one part to another of the same town or city, the termini not being fixed, the carriage, cart, or truck being let by the job, it is generally fastened to the steamer in such a manner as not to he safely-detached while the two are in motion, unless by the act of those on board the steamer; and if detached while on the way, the boat is without any power of providing for her safety. The hands on board the boat, moreover, receive their orders from the steamer's captain; and, in fact, the two move on together under the sole impulse and guidance of the steamer.
"The vast interests which are daily confided to such steam-tugs, the hazards to which our internal commerce may be subjected by a want of the highest degree of skill and care on the part of those who command them, and the difficulty of drawing the line, in a court of justice, between the consequences of mismanagement and those of mere stress of weather, or, where these come together, as they often do, of assigning to each its appropriate share of influence; these considerations urge us very strongly to hold the steam-tug to the rigid accountability of a common carrier." See also Adams v. New Orleans Steam Towboat Co., 11 La. 46.
1 Tuckerman v. Brown, 17 Barb. 191; Peters v. Rylands, 20 Penn. St. 497; Jencks v. Coleman, 2 Sumner, 221; Hall v. The Connecticut Steamboat Co., 13 Conn. 319; Campbell v. Perkins, 4 Seld. 430.
2 Blumenthal v. Brainerd, 38 Vt. 408; Morse v. Brainerd, 41 Vt. 550; Paige v. Smith, 99 Mass. 396; Sprague v. Smith, 29 Vt. 421; Meara v. Holbrook, 20 Ohio St. 137 (1870).
3 2 Kent, Comm. 598, 599; Story on Bailm. § 496 and note; Gisbourn v. Hurst, 1 Salk. 249; Gordon v. Hutchinson, 1 Watts & Serg. 285; Hyde v. Trent & Mersey Nav. Co., 5 T. R. 389; Robertson v. Kennedy, 2 Dana, 430; Campbell v. Morse, Harper, 468; Powers v. Davenport, 7 Blackf. 497; Angell on Carriers, § 76.
hour, or day, to proceed to any destination appointed by the hirer, they are not common carriers.1 But this doctrine has not been approved; and the rule may now be considered as established in this country, that a wagoner, or teamster, or carman, is equally a common carrier, whether he ply from one town to another, or only from one place to another in the same town.2 A hackney-coachman or cab-driver does not assume the liabilities of a common carrier as to passengers; nor would he seem to be a common carrier as to the baggage of the person whom he takes.3 And "expressmen," or those who forward goods from place to place in conveyances owned by others, have been said not to be common carriers, but only bailees for hire.4 But the contrary is now well established.6
§ 919. A common carrier is distinguished from a private carrier, who undertakes a special carriage of goods, in his rights, duties, and responsibilities. The distinction between a common carrier and a private or special carrier is, that the former holds himself out in common, that is, to all persons who choose to employ him, as ready to carry for hire, - while the latter agrees in some special case with some private individual to carry for hire.6 The test seems to exist in the question, whether the carrier can refuse to carry in the particular case. If his employment be such that he cannot refuse to carry, he is a common carrier. If he can refuse, he is a private carrier. A mere carriage for hire in a particular case, where it is out of the usual business of the carrier, is not sufficient to make him a common carrier, - unless, indeed, the person offering to carry hold himself out in the individual case as a person engaged publicly and commonly in the business of common carriage, and thereby deceive him who sends; or unless he make a special agreement to assume the responsibilities of a common carrier in the particular case.1 If a person owning a boat hold
1 By Lord Abinger, Lyon v. Mells, 5 East, 439. See also Ross v. Hill, 2 C. B. 877; Brind v. Dale, 8 C. & P. 207.
2 Mr. Justice Story (Story on Bailm. § 496) and Mr. Chancellor Kent (2 Kent, Comm. 598) so lay down the rule. It is also sustained in Robertson v. Kennedy, 2 Dana, 430; Hyde v. Trent & Mersey Nav. Co., 5 T. R. 389; Gordon v. Hutchinson, 1 Watts & Serg. 285. See also Ingate v. Christie, 3 Car. & Kir. 61; Hellaby v. Weaver, 17 Law Times Rep., July 8, 1851.
3 See Ross v. Hill, 2 C. B. 877, 891, where a cabman was considered as not being a common carrier of luggage. It is, however, difficult to distinguish between the contract of a driver of a stage-coach and of a hackney-coachman, as to passengers and luggage. Both carry passengers for hire, and the carriage of luggage is no more incidental to the main contract of the one than of the other. Yet a stage-coach driver is liable as a common carrier for the luggage of the passengers. See post, § 768; Angell on Carriers, § 77. See also Story on Bailm. § 498.