origin, wherever the end of the day's journey of the wayfaring man brought him, there he was obliged to stop for the night, and intrust his goods and baggage into the custody of the innkeeper. But here, the traveler was not compelled to accept the additional comfort of a sleeping car; he might have remained in the ordinary car; and there were easy methods within his reach by which both money and baggage could be safely transported. On the train which bore him were a baggage and express car, and there was no necessity of imposing this duty and liability on appellant.

It cannot be supposed that any such measure of duty or liability attached to appellant, as is declared in the quotation cited from Bacon's Abridgment to belong to an innkeeper. The accommodation furnished appellee was in accordance with an express contract entered into when he bought his berth ticket at Chicago, which was for the use of a specified couch from Chicago to St. Louis, and appellant did not render a service made mandatory by law, as in the case of an innkeeper.

But if it should be deemed that, on principle merely, this company would be required to take as much care of the goods of a lodger, as an innkeeper of those of a guest, the same may be said with reference to the keeper of a boarding house, or of a lodging house. In Dansey v. Richardson, supra, where the innkeeper's liability was refused to be extended to a boarding-house keeper, it was said by Coleridge, J.: "The liability of the innkeeper, as, in deed, other incidents to his position, do not, however, stand on mere reason, but on custom, growing out of a state of society no longer existing." In Holder v. Toulby, supra, where it was held the law imposed no duty upon a lodging-house keeper to take due care of the goods of a lodger, Calye's case, 8 Co. Rep. 32, was designated as fous juris upon this subject, where it was expressly resolved, that, though an innkeeper is responsible for the safety of the goods of a guest, a lodging-house keeper is not. And in Parker v. Flint, 12 Mod. 255, "if," says Lord Holt, "one come to an inn and make a previous contract for lodging for a set time, and do not eat or drink there, he is no guest, but a lodger, and, as such, is not under the innkeeper's protection; but if he eat or drink there, it is otherwise, or if he pay for his diet there, though he do not take it there."

The peculiar liability of the innkeeper is one of great rigor, and should not be extended beyond its proper limits. We are satisfied that there is no precedent or principle for the imposition of such a liability upon appellant.

Appellant is not liable as a carrier. It made no contract to carry. Appellee was being carried by the railroad company; and if appellant were a carrier, it would not be liable for the loss in this case, because the

་

money was not delivered into the possession or custody of appellant, which would be essential to its liability as carrier. Tower v. The Utica and Schenectady Railroad Co., 7 Hill, 47, 42 Am. D. 36. In Redf. Am. Railw. Cases, 138, it is said: "But it has never been claimed that the passenger carrier is responsible for the acts of pickpockets at their stations, or upon steamboats and railway carriages."

It would be unreasonable to make the company responsible for the loss of money which was never intrusted to its custody at all, of which it had no information, and which the owner had concealed upon his own person. The exposure to the hazard of liability for losses through collusion, for pretended claims of loss where there would be no means of disproof, would make the responsibility claimed a fearful one. Appellee assumed the exclusive custody of his money, adopted his own measures for its safe-keeping by himself, and we think his must be the responsibility for its loss.

We hold the instruction to be erroneous, and the judgment of the court below will be reversed, and the cause remanded.

Judgment reversed.

COMMON CARRIERS

WHERE THE OWNER OF A SLOOP CARRIED GRAIN OCCASIONALLY FOR OTHER PERSONS, AND NOT AS A PUBLIC BUSINESS, HE IS NOT A COMMON CARRIER

ALLEN V. SACKRIDER

37 N. Y. 341 (1867)

PARKER, J. The action was brought against the defendants to charge them, as common carriers, with damage to a quantity of grain shipped by the plaintiffs in the sloop of the defendants to be transported from Trenton, in the province of Canada, to Ogdensburgh, in this state, which accrued from the wetting of the grain in a storm.

The case was referred to a referee, who found as follows: "The plaintiffs in the fall of 1859 were partners, doing a business at Ogdensburgh. The defendants were the owners of the sloop Creole, of which Farnham was master. In the fall of 1859, the plaintiffs applied to the defendants to bring a load of grain from the bay of Quinte to Ogdensburgh. The master stated that he was a stranger to the bay, and did not know whether his sloop had capacity to go there. Being assured by the plaintiffs that she had, he engaged for the trip at three cents per bushel, and performed it with safety. In November, 1859, plaintiffs again applied to defendants to make another similar trip for grain, and it was agreed at $100 for the trip. The vessel proceeded to the bay, took in a load of grain, and on her return was driven on shore, and the cargo injured to the amount of $1,346.34; that the injury did not result from the want of ordinary care, skill or foresight, nor was it the result of inevitable accident or what in law is termed the act of God. From these facts my conclusions of law are that the defendants were special carriers, and only liable as such, and not as common carriers, and that the proof does not establish such facts as would make the defendants liable as special carriers; and therefore the plaintiffs have no cause of action against them."

The only question in the case is, were the defendants common carriers? The facts found by the referee do not I think make the defendants common carriers. They owned a sloop; but it does not appear that it was ever offered to the public or to individuals for use, or ever put to any use, except in the two trips which it made for the

plaintiffs, at their special request. Nor does it appear that the defendants were engaged in the business of carrying goods, or that they held themselves out to the world as carriers, or had ever offered their services as such. This casual use of the sloop in transporting plaintiffs' property falls short of proof sufficient to show them common carriers.

A common carrier was defined in Gisbourn v. Hurst, 1 Salk. 249, to be "any man undertaking for hire, to carry the goods of all persons indifferently;" and in Dwight b. Brewster, 1 Pick. 50; 11Am. Dec. 133. to be "one who undertook for hire to transport the goods of such as choose to employ him from place to place." In Orange Bank v. Brown, 3 Wend. 161, Chief Justice Savage said: Every person who undertakes to carry for a compensation, the goods of all persons indifferently, is as to the liability imposed, to be considered a common carrier. 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." Story Cont., paragraph 752, a. The employment of a common carrier is a public one, and he assumes a public duty and is bound to receive and carry the goods of any one who offers. "On the whole," says Prof. Parsons, "it seems to be clear that no one can be considered as a common carrier unless he has in some way held himself out to the public as a carrier in such a manner as to render him liable to an action if he should refuse to carry for any one who wished to employ him." 2 Pars. Cont. (5th ed) 166, note.

The learned counsel for the appellant on effect recognizes the necessity of the carrier holding himself out to the world as such in order to invest him with the character and responsibilities of a common carrier; and to meet that necessity says: "The Creole was a freight vessel, rigged and manned suitably for carrying freight from port to port; her appearance in the harbor of Ogdensburgh, waiting for business, was an emphatic advertisement that she sought employment." These facts do not appear in the findings of the referee, and therefore can not, if they existed, help the appellants upon this appeal.

It is not claimed that the defendants are liable unless as common carriers. Very clearly they were not comnon carriers; and the judgment should therefore be affirmed.

All concurring.

Judgment affirmed.

IT IS THE DUTY OF A RAILROAD COMPANY ENGAGED AS A COMMON CARRIER OF LIVE STOCK TO FURNISH A SUFFICIENT NUMBER OF SUITABLE CARS TO SHIPPERS ON REASONABLE NOTICE OF WHAT IS REQUIRED

AYRES V. CHICAGO AND NORTHWESTERN RAILWAY Co.

71 Wis. 372 37 N. W. R. 432 (1888)

Action against defendant as a common carrier of live stock or damages due to delay in furnishing seven cars ordered for the shipment of live stock. Two cars were furnished at the required time, but the other five were not, nor was plaintiff notified that the cars could not be furnished as ordered, in consequence of which he brought sufficient live stock to the stations to load all the cars. Verdict of $825.97 for plaintiff because of cost of care and feeding, and depreciation in value and shrinkage due to the delay.

CASSODAY, J. There is no finding of any agreement on the part of the defendant to have the cars in readiness at the stations on Tuesday morning, October 17, 1882. There is no testimony to support such a finding. One of the plaintiffs testified, in effect, that he told the agent that he would want the cars on the morning of the day named; that the agent took down the order, put it on his book, and said: "All right," he would try and get them, but that they were short because they were then using more cars for other purposes; that nothing more was said. It appears in the case that the cars were in fact furnished. It also appears that, as the shipments were made, special written contracts therefor were entered into between the parties, whereby it was, in effect, agreed and understood that the plaintiffs should load, feed, water, and take care of such stock at their own expense and risk, and that they would assume all risk of injury or damage that the animals might do to themselves or each other, or which might arise by delay of trains; that the defendants should not be liable for loss by jumping from the cars or delay of trains not caused by the defendant's negligence. The court, in effect, charged the jury that there was no evidence of any negligence on the part of the defendant causing delay in any train after shipment, and hence that the delay of the two cars admitted to have been furnished in time was not before them for consideration. This relieves the case from all liability on contract. It also narrows the case to the defendant's liability for the delay of two days in furnishing the five cars at the stations named, as ordered by the plaintiffs, and in the absence of any contract to do so.

In Richardson v. Chicago etc. R'y Co., 61 Wis. 601, 18 Am. & Eng.