4 Hersfield v. Adams, 19 Barb. 577.
5 Ante, § 916.
6 See Fish v. Clark, 49 N. Y. 122 (1872).
1 This distinction is borne out by the statement of Mr. Justice Story (Story on Bailments, 496), who says, "To bring a person within the description of a common carrier, he must exercise it as a public employment; he must undertake to carry goods for persons generally; and he must hold himself out as ready to engage in the transportation of goods for hire, as a business, not as a casual occupation pro hac vice." See Liver Alkali Co. V. Johnson, Law R. 7 Ex. 267 (1872). So, also, in Shelden v. Robinson, 7 N. H, 157, 163, this same doctrine, totidem verbis, is laid down. The court goes on to say, "The employment of a common carrier is attended with peculiar responsibilities. He is bound to take all goods offered, if he has the requisite convenience to carry; and a refusal, without some just ground, subjects him to an action." In this case a package of money was lost, which had been sent by a stage-coach driver, who it appeared had been in the habit of carrying packages for the convenience of persons who employed him, and receiving payment therefor, but who had never held himself out as a common carrier, agreeing to carry whatever packages of this kind should be presented. "The evidence does not show," says the court, "the defendant a common carrier. It does not show him to have exercised the business of carrying packages as a public employment, because his public employment was that of a driver of a stage-coach, in the employ of others. It does not show that he ever undertook to carry goods or money for persons generally, although he may in fact have taken all that was offered, as a matter of convenience; or that he ever held himself out as ready to engage in the transportation of whatever was requested, notwithstanding it may have been unusual for him and other drivers to carry it. This was not his general employment, and there is nothing to show that he would have been liable, had he refused to take this money, - especially as he was in the service of another, and as such servant, might have had duties to perform inconsistent with the duty of a common carrier." The defendant, was, therefore, held to be " a bailee to carry for hire, and responsible for ordinary negligence." So, also, in Dwight v. Brewster, 1 Pick. 50, the jury were instructed that "the practice, if proved, of carrying small packages, letters, etc, containing money, whenever applied to, for hire, constituted the defendant a common carrier." This ruling was supported by the court, on a subsequent hearing, and they say, " a common carrier is one who undertakes, for hire or reward, to transport the goods of such as choose to employ him, from place to place." himself out as ready to carry goods for all who wish to send, he may be a common carrier, although he expects to make only
In The Citizens' Bank v. The Nantucket Steamboat Co., 2 Story, 17, the court proceed upon the same doctrine, confining the liability as common carrier to cases where there has been a public undertaking for hire. See Gisbourn v. Hurst, 1 Salk. 249; Satterlee v. Groat, 1 Wend. 272; Upston v. Slark, 2 C. & P. 598; Gilbart v. Dale, 1 Nev. & Per. 22; Anonymous v. Jackson, 1 Hayw. 14; Vanderslice v. Steam Towboat Superior, 13 Law R. 402 (1850); Jenkins v. Picket, 9 Yerg. 480. A different doctrine has, however, been declared in Pennsylvania, in Gordon v. Hutchinson, 1 Watts & Serg. 285, where it was held 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" Mr. Chief Justice Gibson, in the judgment of the court, says: "The defendant is a farmer, but has occasionally done jobs as a carrier. That, however, is immaterial. He applied for the transportation of these goods as a matter of business, and consequently on the usual conditions. His agency was not sought in consequence of a special confidence reposed in him - there was nothing special in the case; on the contrary, the employment was sought by himself, and there is nothing to show that it was given on terms of diminished responsibility. There was evidence of negligence before the jury; but, independent of that, we are of opinion that he is liable as an insurer." And again, in commenting on the case of Gisbourn v. Hurst, he says: "It is true the court went no further than to say the wagoner was a common carrier as to the privilege of exemption from distress; but his contract was held not to be a private undertaking, as the court was at first inclined to consider it, but a public engagement, by reason of his readiness to carry for any one who would employ him, without regard to his other avocations; and he would consequently not only be entitled to the privileges, but be subject to the responsibilities of a common carrier; indeed, they are correlative, and there is no reason why he should enjoy the one without being burdened with the other." See also, to the same effect, Turney v. Wilson, 7 Yerg. 340; Craig v. Childress, Peck, 270; M'Clures v. Hammond, 1 Bay, 99. In Moses v. Norris, 4 X. H. 305, the facts are not fully enough stated to determine the value of the decision. It is certain, however, that the court assume the question which here occupies us; for it says, "In the first place, it is not mentioned whether the defendant was a carrier for hire or not; we are, however, inclined to think that it must be presumed, from the facts stated, that he was a carrier for hire." The words carrier and common carrier are, throughout the opinion, used as synonymous terms. If the doctrine stated by Mr. Chief Justice Gibson be correct, there seems to be but very slight difference, if there be any, between a private carrier and a common carrier. If the distinction be, that where a person offers to another to carry goods, he is a common carrier, when, if he is requested by the other party to carry them, he is not, it is difficult to perceive a sound reason for it. The contract one voyage.1 But a person who is owner of a vessel, and specially employed to transport a cargo of wheat, is not a common carrier, but only a special carrier.2 would apparently be the same in each case, unless the party sending were actually misled, which would constitute a ground of deceit or mistake, where the innocent party ought not, on general principles, to suffer. See Fish v. Chapman, 2 Kelly, 349, in which the case of Gordon v. Hutchinson is stated to be "opposed to the rules of the common law, and wholly inexpedient." The doctrines on the point in question are so clearly and ably stated, that I gladly avail myself of a portion of the judgment. Mr. Justice Nisbet says, in delivering the judgment of the court, "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 public conveyance of goods. See Mr. Smith's able commentary on the case of Coggs v. Bernard, 1 Smith, Lead. Cas. 172; Forward v. Pittard, 1 T. R. 27; Morse v. Slue, 2 Lev. 69; s. c. 1 Vent. 190, 238; Rich v. Kneeland, Cro. Jac. 330; Maving v. Todd, 1 Stark. 72; Brooke v. Pickwick, 4 Bing. 218. Railway companies are common carriers. Palmer v. Grand Junction Railway Co., 4 M. & W. 749." After quoting the section above cited (§ 495) from Mr. Justice Story's work on Bailments, and a passage from Mr. Chancellor Kent's Commentaries (vol. ii. p. 598), to the same effect, he continues: "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. Home, 5 Bing. 217; Lane v. Cotton, 1 Ld. Raym. 646; Edwards v. Sherratt, 1 East, 604; Batson v. Donovan, 4 B. & Al. 32; 2 Kent, 598; Elsee v. Gat-