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179. Draymen.

Whether a truckman or drayman, who makes a business of carrying for any person who employs him between one part of a city and another, is a common carrier, is a question of some difficulty, and may have to be determined upon the facts of each case;11 but there can be, of course, no doubt that he is a carrier essentially as he both takes possession of the goods of his patrons and transports them.12

11

180. Transfer companies.

The omnibus lines that transfer passengers and their baggage across cities to their destinations are obviously within the same general classification as the instances now under discussion. A square case in point is Parmelee v. McNulty. 13 One of the counts in the declaration was against the defendants upon the custom as common carriers for the loss of a trunk or valise, to

New York.-Heineman v. Grand Trunk R. R. Co., 31 How. Pr. 430 (1866); Root v. The Great N. R. R., 45 N. Y. 524 (1871).

Tennessee.-East Tenn., etc., R. R. v. Nelson, 1 Cold. 272 (1860). Vermont.-Jones v. The Western Vt. Railroad, 27 Vt. 399 (1855); Noyes v. Railroad, 27 Vt. 110 (1854).

West Virginia.-Maslin v. Baltimore, etc., R. Co., 14 W. Va. 180, 35 Am. Rep. 748 (1878).

11 See § 119, supra.

12 Delaware.-McHenry v. Philadelphia, W. & B. Ry., 4 Harr. (Del.) 448 (1846).

Georgia. Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393 (1847).
Indiana.-Powers v. Davenport, 7 Blackf. 497
Kentucky.-Robertson v. Kennedy, 2 Dana

(1845).

(Ky.), 430, 26 Am. Dec.

466 (1834); Cayo v. Pool, 21 Ky. L. Rep. 1600, 55 S. W. 887, 49 L. R. A. 251 (1900); Farley v. Lavary, 21 Ky. L. Rep. 1252, 54 S. W. 840, 47 L. R. A. 383 (1900).

New York.-Robinson v. Cornish, 13 N. Y. Supp. 577 (1890); Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 34, 52 N. E. 665, 70 Am. St. Rep. 432 (1899).

England.

Scaife v. Farrant, L. R. 10 Ex. 358 (1875); Culver v. Lester, 37 Can. L. J. (N. S.) 421 (1881).

13 19 Ill. 556 (1858).

gether with its contents. The plaintiff introduced evidence tending to show the delivery of the article to the agents of the omnibus line, and proffered in evidence a check for the baggage signed by the defendants as proprietors of the omnibus line.

It was properly held that the defendants were chargeable as common carriers. The opinion of Mr. Chief Justice Caton on that point was as follows: "It is further objected that the court assumed that Parmelee was a common carrier, without proof of that fact. The proof showed that he was the owner of an omnibus line, to the agents of which the proof tended to show the trunk was delivered. The court was authorized to take notice that the owner of an omnibus line is a common carrier, just as much as the owner of a railroad or of a line of steamboats. The court will take notice of the general meaning of words; and we know that an omnibus line means a line of coaches for the carriage of passengers and their baggage. If this line was established for other purposes, that should have been shown in defense." 14

§ 181. Express companies.

The business of transporting small or valuable goods has come largely into the hands of express companies. So far as such companies merely transmit parcels locally in their own teams, they are evidently carriers. The more important work of the companies, however, is done in connection with the carriage of parcels over a long distance over the lines of railways or steamboats. The express company has at the place of departure a local agent who receives the parcel for transmission; it is then transported over the line of a railway or steamboat, but always

14 Acc. Verner v. Sweitzer, 32 Pa. St. 208 (1858); Dibble v. Brown, 12 Ga. 217, 56 Am. Dec. 460 (1852); Parmelee v. Lowitz, 74 Ill. 116, 24 Am. Rep. 276 (1874); Parmelee v. McNulty, 19 Ill. 556 (1858); Cole v. Goodwin, 19 Wend. (N. Y.) 234, 32 Am. Dec. 455 (1838); Jones v. Voorhees, 10 Ohio, 145 (1840); Beckman v. Shouse, 5 Rawle (Penn.), 179, 28 Am. Dec. 653 (1835).

in a part of the train or boat set aside for the express company, and at all times in the control and care of an agent of the company; and upon the arrival of the train or boat at the place of destination the parcel is taken by a local agent and by him delivered to the consignee.

The express company in such a case claims that it is not a carrier; that it merely relieves the shipper of the labor of finding and contracting with a carrier; in short, that it is only a forwarding agent. In the leading case of Buckland v. Adams Express Company 15 this contention was made in elaborate form. It was urged that persons exercising the employment of express carriers or messengers over railroads and by steamboats cannot, from the very nature of the case, exercise any care or control over the means of transportation which they are obliged to adopt; that the carriages and boats in which the merchandise intrusted to them is placed, and the agents or servants by whom they are managed, are not selected by them nor subject to their direction or supervision; and that the rules of common law, regulating the duties and liabilities of carriers, having been adapted to a different mode of conducting business, by which the carrier was enabled to select his own servants and vehicles and to exercise a personal care and oversight of them, are wholly inapplicable to a contract of carriage by which it is understood between the parties that the service is to be performed, in part, at least, by means of agencies over which the carrier can exercise no management or control whatever.

But Mr. Justice Bigelow said: "We are unable to see any valid reason for the suggestion that the defendants are not to be regarded as common carriers. The name or style under which they assume to carry on their business is wholly immaterial. The real nature of their occupation and of the legal duties and obligations which it imposes on them is to be ascertained from a consideration of the kind of service which they hold themselves

15 97 Mass. 124, 93 Am. Dec. 68, B. & W. 135 (1867).

out to the public as ready to render to those who may have occasion to employ them. Upon this point there is no room for doubt. They exercise the employment of receiving, carrying, and delivering goods, wares, and merchandise for hire on behalf of all persons who may see fit to require their services. In this capacity they take property from the custody of the owner, assume entire possession and control of it, transport it from place to place, and deliver it at a point of destination to some consignee or agent there authorized to receive it. The statement embraces all the elements essential to constitute the relation of common carriers on the part of the defendants towards the persons who employ them."

This case has been universally followed, and the express company held to be a common carrier of goods.16

16 United States.-Bank of Kentucky v. Adams Exp. Co., 93 U. S. 174, 23 L. Ed. 872; Missouri, K. & T. Ry. v. Dinsmore, 108 U. S. 30, 27 L. Ed. 640, 2 Sup. Ct. 9 (1884), reversing s. c. 10 Fed. 210; The Express Cases, 117 U. S. 1, 29 L. Ed. 791 (1886); Southern Exp. Co. v. St. Louis, I. M. & So. R. Co., 3 McCrary, 872 (1876), 10 Fed. 210, Final Decree, 10 Fed. 869 (1882); United States v. Pacific Exp. Co., 15 Fed. 867 (1883). Alabama.-Southern Express Co. v. Crook, 44 Ala. 468, 4 Am. Rep. 140 (1870); Southern Express Co. v. Hess, 53 Ala. 19 (1875).

Colorado.-Overland Express Co. v. Carroll, 7 Col. 43 (1883).

District of Columbia.-Galt v. Adams Express Co., MacArthur and M. 124, 48 Am. Rep. 742 (1879).

Florida.-Southern Express Co. v. Van Meter, 17 Fla. 783 (1880). Georgia.-Southern Express Co. v. Newbry, 36 Ga. 635, 91 Am. Dec. 783

(1867).

Illinois. Gulliver v. Adams Express Co., 38 Ill. 503 (1865); Boscowitz v. Adams Express Co., 93 Ill. 523 (1879).

Indiana.-American Express Co. v. Hockett, 30 Ind. 250, 95 Am. Dec. 691 (1868); United States Express Co. v. State, 164 Ind. 196, 73 N. E. 101 (1905).

Kansas.-Adams Exp. Co. v. McConnell, 27 Kans. 238 (1882).

Massachusetts.-Mather v. American Express Co., 138 Mass. 55 (1884). Michigan. United States Exp. Co. v. Root, 47 Mich. 231, 10 N. W. 351 (1881).

Minnesota.-Christenson v. American Express Co., 15 Minn. 270, 2 Am. Rep. 122 (1870); Bardwell v. American Express Co., 35 Minn. 344, 28 N. W. 925 (1886).

182. Dispatch companies.

The same question came up several times for decision in regard to the fast freight lines or dispatch companies. These lines again claimed that they were forwarders only and not carriers at all; but the courts held consistently that as they took possession they were carriers, and that as they professed a common calling they were common carriers. One representative case where these companies were charged as common carriers will do for all--Transportation Company v. Bloch Brothers.17

In that case Mr. Justice Caldwell said: "This instruction properly treats the defendant as a common carrier. The duties which it undertakes, and which it holds itself out to the public as willing to undertake and perform, give it that character. In very many cases it has been expressly adjudged to be a common carrier, and in others such has been assumed to be its character without a discussion of the question. The text-writers say that despatch companies are common carriers, and class them with express companies because of the many points of similarity in

Missouri.-Kirby v. Adams Express Co., 2 Mo. App. 369 (1876).

New York. An earlier N. Y. case contra is overruled; in Hersfield v. Adams, 19 Barb. 577 (1855); Place v. Union Express Co., 2 Hilt. 19 (1858); Belger v. Dinsmore, 51 N. Y. 166, 10 Am. Rep. 575 (1872); Landsberg v. Dinsmore, 4 Daly, 490 (1873).

Ohio.-United States Express Co. v. Backman, 28 Ohio St. 144 (1875); American Express Co. v. Smith, 33 Ohio St. 511 (1878); Bernstine v. Union Exp. Co., 40 Ohio St. 451 (1884).

Oregon.-Bennett v. Northern Exp. Co., 12 Ore. 49 (1885).

Pennsylvania.-Grogan v. Adams Exp. Co., 114 Pa. St. 523 (1886);

Union Express Co. v. Ohleman, 92 Penn. St. 323 (1879).

South Carolina.-Stadhecker v. Combs, 9 Rich. Law, 193 (1856).
Tennessee.-Southern Exp. Co. v. Wormack, 1 Heisk. 256 (1870).
Texas.-Pacific Exp. Co. v. Darnell, 62 Texas, 639 (1884).
Vermont.-Hadd v. United States Exp. Co., 52 Vt. 335 (1880).

Wisconsin.-Wells v. American Exp. Co., 55 Wis. 23, 11 N. W. 537, 12 N. W. 441 (1882).

17 86 Tenn. 392, 6 Am. St. Rep. 847, 6 S. W. 881 (1888).

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