packages, the defendant must, I think, be regarded as a common carrier, and held to be responsible in that capacity. The parcel intrusted to defendant's messenger in that case was a small one, in general appearance such as could easily be carried by hand, even by a small boy." 20 $184. Towboats. To what extent towboats are engaged in a public employment is a vexed question; but the difficulty seems to be more on the determination of the question of fact in the cases that arose than of difference upon the legal possibilities. One of the principal cases is Bussey & Co. v. Mississippi Valley Transportation Co.21 The regular business of the defendants in that case was proved to be the towing of barges upon the route between St. Louis and New Orleans. One such barge, belonging to the plaintiff, was lost while being towed under these circumstances. The suit of the plaintiff charged the defendants as common carriers. The court reviewed the authorities bearing upon the point; the opinion of Mr. Justice Howe concluding much as follows: "Such conflict of authority might be very distressing to the student, but for the fact that when these writers and cases cited by them are examined the discrepancy is more imaginary than real. There are two very different ways in which a steam towboat may be employed, and it is likely that Mr. Story was contemplating one method and Mr. Kent the other. In the first place it may be employed as a mere means of locomotion under the entire control of the towed vessel; or the owner of the towed vessel and goods therein may remain in possession and control of the property thus transported to the exclusion of the bailee; 20 Sandford v. Am. Dist. Tel. Co., 13 Misc. (N. Y.) 88, 34 N. Y. Supp. 144 (1895); Hirsch v. Am. Dis. Tel. Co., 48 Misc. (N. Y.) 370, 96 N. Y. Supp. 1129 (1905), accord. Haskell v. Boston Dist. Mess. Co., 76 N. E. 215 (1906); Hirsch v. Am. Dis. Tel. Co., 98 N. Y. Supp. 371 (1906), contra. 21 24 La. Ann. 165, 13 Am. Rep. 125, B. & W. 16 (1872). or the towing may be casual merely, and not as a regular business between fixed termini It might well be said that under such circumstances the towboat or tug is not a common carrier. But a second and quite different method of employing a towboat is where she plies regularly between fixed termini, towing for hire and for all persons, barges laden with goods, and taking into her full possession and control, and out of the control of the bailor the property thus transported. Such is the case at bar. It seems to satisfy every requirement in the definition of a common carrier. We must think that in all reason the liability of the defendants under such circumstances should be precisely the same as if, the barge being much smaller, it had been carried, cargo and all, on the deck of their tug." If, therefore, the towboat really makes a business of carrying, that is, if it actually takes control of the barges towed and itself transports them, the towboat is a common carrier.22 If, on the other hand, the towboat simply furnishes the motive power, the vessel towed remaining at all times under the control of her own officers, there is no bailment of the vessel or its contents to the towboat, and the towboat is therefore not a carrier.23 22 White v. Mary Ann, 6 Cal. 462 (1856); Smith v. Pierce, 1 La. 349 (1830); Clapp v. Stanton, 20 La. Ann. 495 (1868); Walston v. Myers, 5 Jones (N. C.), 174 (1857). See Ashmore v. Penn. St. Towing, etc., Co., 28 N. J. L. 180 (1860); also Vanderslice v. The Superior, 28 Fed. Cas. No. 16,843 (1850). 23 United States.-Steamer New Philadelphia, 1 Black, 62, 17 L. Ed. 84 (1861); The Quickstep, 9 Wall. 665, 19 L. Ed. 767 (1869); Steamer Webb, 14 Wall. 406, 20 L. Ed. 774 (1871); The Margaret, 94 U. S. 494, 24 L. Ed. 146 (1876); Transportation Line v. Hope, 95 U. S. 297, 24 L. Ed. 477 (1877); The Princeton, 3 Blatch. 54, Fed. Cas. 11,434 (1853); The Lyon, 1 Brown's Adm. 59, 15 Fed. Cas. 8,645 (1861); Steamboat Angelina Corning, 1 Ben. 109, Fed. Cas. 384 (1867); The Stranger, 1 Brown's Adm. (U. S.) 281, Fed. Cas. 13,525 (1871); The Oconto, 5 Biss. 460, Fed. Cas. 10,421 (1873); The Merrimac, 2 Sawyer, 586, Fed. Cas. 9,478 (1874). Illinois. Knapp v. McCaffrey, 178 Ill. 107, 52 N. E. 898, 69 Am. St. Rep. 290. Kentucky. Varble v. Bigley, 14 Bush, 698, 29 Am. Rep. 435 (1879). TOPIC B-CARRIERS OF PASSENGERS. § 185. Ferrymen. Ferrymen, too, are met with in our earliest law reports, as may be seen in the following report of an interesting early case:1 "I. de B. complains by his writ that G. de F. on a certain day and year at B. upon Humber had undertaken to carry his mare taken on his boat over Humber water safe and sound; whereas the said G. overloaded his boat with other horses, by reason of which overloading the mare perished, to his wrong and damage, etc. Richmond. Judgment of the writ; for he does not allege any tort in us; he only proves that he would have an action by a writ by way of covenant, not by way of trespass; wherefore, etc. Bankwell, J.: It seems that you committed a trespass when you overloaded the boat, whereby his mare perished, etc.; therefore answer. Richmond. Not guilty." The ferryman, of course, remains in public calling to this day. Obviously a ferryman is a common carrier of goods if it is shown that he has taken the goods into his control; but he does not usually do so. He more commonly takes passengers only, and if the passengers have goods they commonly keep possession Maryland.—Penn., etc., Steam Nav. Co. v. Dandridge, 8 Gill & J. 248, 29 Am. Dec. 543 (1836). Massachusetts.-Sproul v. Hemingway 14 Pick. 1 (1833). New York. Caton v. Rumney, 13 Wend. 387 (1835); Alexander v. Greene, 3 Hill, 9, 7 Ibd. 533 (1842); Wells v. Steam Nav. Co., 2 N. Y. 204 (1849); Wells v. Steam Navigation Company, 2 Com. 204, 4 Seld. 375 (1853); Merrich v. Brainard, 38 Barb. 574 (1860); Arctic Fire Ins. Co. v. Austin, 54 Barb. 559 (1869); Abbey v. St. Stephens, 22 How. Pr. 78 (1861); Emilinsen v. Penn. R. Co., 30 N. Y. App. Div. 203, 51 N. Y. Suppl. 606 (1898). Pennsylvania.-Leonard v. Henrichson, 18 Penn. St. 40 (1851); Hayes v. Paul, 51 Penn. St. 134 (1865); Brown v. Clegg, 63 Penn. St. 51 (1869); Hayes v. Millar, 77 Penn. St. 238 (1874). England. The Julia, 14 Moore P. C. 210 (1860); Symonds v. Pain, 6 Hurl & N. 709 (1861); The Minnehaha, 1 Lush, 335 (1861). 1 Y. B. 22 L. ib., Assis. pl. 41, B. & W. 192 (1348). of their property. But whether he carries passengers only or goods also, he is obviously a carrier by all tests.2 186. Stage coaches. The common method of carrying passengers before the invention of railways was by stage-coach; and there can, of course, be no doubt that the public coaches were common carriers of passengers. But though the principal business of a stage-coach was to carry passengers, coaches were frequently in the habit of carrying goods also; and when that was the case, the coach was also a common carrier of goods.3 Thus in an early English case Mr. Justice Jones "was of opinion that if a coachman commonly carry goods, and take money for so doing he will be in the same case with a common carrier and is a carrier for that purpose, whether the goods are a passenger's or a stranger's; the 4 2 The following cases, among others, establish that the ferryman is a common carrier: Alabama.-Babcock v. Herbett, 3 Ala. 392, 37 Am. Dec. 695 (1842); Frierson v. Frazier, 37 So. 825 (1904). Arkansas.-Harvey v. Rose, 26 Ark. 3, 7 Am. Rep. 595 (1870). Georgia.-Self v. Dunn, 42 Ga. 528 (1871). Illinois-Claypool v. McAllister, 20 Ill. 504 (1858). Iowa.-Whitmore v. Bowman, 4 Green, 148 (1853). Kentucky.-Hall v. Renfo, 3 Met. 51 (1860). Massachusetts.-Le Barron v. East B. Ferry Co., 11 Allen, 312, 87 Am. Dec. 717 (1865). Mississippi.-Powell v. Mills, 37 Miss. 691 (1859). Missouri.-Pomeroy v. Donaldson, 5 Mo. 36 (1837). New York.-Wyckoff v. Greens County Co., 52 N. Y. 32, 11 Am. Rep. 650 (1873). Ohio.-Wilson v. Hamilton, 4 Ohio St. 722 (1855). Pennsylvania.-Smith v. Seward, 3 Pa. St. 342 (1846). Tennessee. Saunders v. Young, 1 Head (Tenn.), 219, 73 Am. Dec. 175 (1858). Texas.-Albright v. Perrin, 14 Tex. 290 (1855). 3 Beckman v. Shouse, 5 Rawle (Pa.), 179, 28 Am. Dec. 653 (1835). 4 Lovett v. Hobbs, 2 Shower, 127 ((1680). like of a waterman or Gravesend boat, which carries both men and goods." So in the leading case of Dwight v. Brewster,5 the defendants, who were the proprietors of a satge-coach, contended that they were not liable as common carriers, their business being the conveyance of passengers and their luggage; that the taking small packages was an affair of the drivers, who received the compensation, and who were answerable for negligence only, and that the proprietors were not responsible, though it appeared that less wages were paid to the drivers, in consequence of the opportunity they had of earning small sums of money in this way; whereas large packages were usually entered on the waybill, and the proprietors received the compensation for the transportation. The court, however, held them liable as common. carriers of goods. Chief Justice Parker said: "On the second count, which charges the defendants as common carriers, we think the facts proved are sufficient to constitute them such. Packages were usually taken in the stage-coach for transportation; large packages were entered in the book kept for the proprietors, and compensation taken for their use. That the principal business was to carry the mail and passengers is no reason why the proprietors should not be common carriers of merchandise, etc. 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. This may be carried on at the same time with other business. The instruction of the judge in this particular, that the practice of taking parcels for hire, to be conveyed in the stage-coach, constituted the defendants common carriers, we think was right." 51 Pick. (Mass.) 50, 11 Am. Dec. 133 (1822). 6 Delaware.-McHenry v. Phil., W. & B. R. Co., 4 Harr. (Del.) 448 (1846). Iowa. Frinke v. Coe, 4 G. Greene, 555 (1854); Sales v. Western Stage Co., 4 Iowa, 547 (1857). Massachusetts.—Dwight v. Brewster, 1 Pick. 501 (1822). New Hampshire.-Bennett v. Dutton, 10 N. H. 481, B. & W. 105 (1839). |