CHAPTER XXVIII FAILURE IN THE UNDERTAKING § 960. General theory of the liability. Topic A. Abnormal Liability as an Insurer § 961. Early liability in common calling. 962. Subsequent development of the carrier's liability. 963. Absolute liability of the common carrier. 964. Subsequent development of innkeeper's liability. 965. Conflict in the American authorities. 966. Insurance liability not extended to persons. 967. Responsibility for animate chattels. Topic B. Abnormal Liability Rigidly Confined § 968. The service must be public. 969. The service must be upon a public basis. 970. Service undertaken gratuitously. 971. Compensation included in the whole transaction. 972. The business must be carriage. 973. Carrier's liability not extended to other similar employments. 974. The business must be innkeeping. 975. The innkeeper's liability not extended to other employments. Topic C. Extent of Normal Liability § 976. Absolute and relative liability contrasted. 977. Development of the rule requiring blameworthiness. 978. Liability of the carrier of passengers. 979. Liability of innkeepers for guests personally. 980. Liability of telegraph companies. 981. Liability of water companies. 982. Liability of gas companies. 983. Liability of electric companies. Topic D. Established Excuses from All Liability § 984. What constitutes act of God. § 989. Natural propensities of animals. 990. Interference by patron. 991. Assumption by patron. § 960. General theory of liability. In this chapter no more will be attempted than to show the basis of liability for failure in the undertaking. There will be no attempt to collect the innumerable cases that there are in the books. Most of these cases involve the general principles of liability, not the peculiar principles of public service. All that is attempted in this chapter is to bring together material enough for generalization as to the real basis for liability in public service for plain failure in the undertaking professed. What complicates the matter is that the standard of liability for some services is notably different than for other services. In the two chief examples of public calling, which have always been recognized as such, common carriage and innkeeping, our law has for a long time held the proprietors practically liable absolutely as insurers for loss of the goods intrusted to them. It should be emphasized from the outset that this liability as an insurer is as abnormal in public service as it is in private business. It is imposed only upon carriers of goods, not upon carriers of passengers; it applies to the protection of the guest's belongings, not of his person. And it is not applied to any other public callings, however similar they may be to carriage and innkeeping, although they are equally public. The most that the law normally requires of those who profess a public employment is the utmost foresight, such as the peculiar importance of public service requires. Topic A. Abnormal Liability as an Insurer § 961. Early liability in common calling. There is much in the early books concerning the liability assumed by those who professed a common calling. All 1 4 who were engaged in common employment were subjected to what was in those days an extraordinary liability in respect to the performance of their special assumption in the particular business. Thus the common smith was held to warrant against pricking the horse, but not for its protection. A common veterinarian was liable upon this implied undertaking for doing injury to a horse intrusted to his care although he made no express promise, but he could show that the horse died from other causes.2 The carrier was absolutely liable for theft while on the road with his goods, but not while putting up at an inn with them. The innkeeper must answer for theft from the guest, but apparently for no other kind of injury in the same degree. Each of these persons having assumed performance of the undertaking was bound to his public so to carry on his calling as to avoid losses by his unskillfulness in it. By undertaking this special calling he was held to warrant his special preparation for it; but there is no evidence in the case of these persons of anything approaching liability for loss of all kinds. The action was almost invariably in case on a super se assumpsit, the profession in the undertaking being the measure of the liability. By the current reasoning he was held absolutely liable for default in what he had undertaken to do, much as a special contractor would be to-day. An innkeeper was thus held liable for failure to guard if a mob broke in; and so a carrier must answer for loss by robbers. § 962. Subsequent development of the carrier's liability. In view of this consistent theory in the earlier law hold 1 F. N. B. 948. 2 Y. B. 43 Ed. III, 33, pl. 38. Anon., Dall. 8; Y. B. 42 Lib. Assis. 260, pl. 17. Y. B. 42 Ed. III, 3, pl. 11, Doctor and Student, c. 38. The citations in this section are owed to Professor Ames, being taken from his articles on the History of Assumpsit, 2 Harvard Law Review, 1. ing all in common calling to the standard of the profession that they had assumed, the subsequent development in the law making common carriers absolutely liable for all losses, which did not fall within arbitrary exceptions later developed, can hardly be explained on any other ground than spontaneous variation. True it is that in some early cases bailees are apparently held to a strict accountability1 but this was applied to all bailees indifferently. The dicta in Coggs v. Barnard,2 particularly the elaborate disquisition of Lord Holt are sometimes referred to as the starting point of the modern law. But taking these dicta together there is not enough to show that the carrier was thought to be liable for wholly unvoidable catastrophes. It was not until Forward v. Pittard,3 as late as 1785, that there was squarely presented a loss of goods without fault by the carrier, caused in that case by an accidental fire for which the carrier was not in any way responsible. It remained for Lord Mansfield in that case to utter the portentous words "A carrier is in the nature of an insurer." § 963. Absolute liability of the common carrier. As the law has stood for some time, therefore, the carrier of goods is absolutely liable for their loss or for injury to them. And he is thus liable as an insurer, whether the loss or injury is his fault or he contributes in any way to the loss or not. The most striking cases of this are those holding him liable for the damage done to his goods 1 See Southcote's Case, 4 Coke, 836. 22 Ld. Raym. 909. 1 T. R. 27 (1785). The citations in this section are owed to Professor Beale, being taken from his article on The Carrier's Liability: Its History, in 11 Harvard Law Review, 158. The insurance liability with its peculiar excuses is discussed in the following cases among others: United States.-Pendall v. Rench, 4 McLean, 259 (1847). Alabama.-Southern Ry. Co. v. Levy, 39 So. 95, 144 Ala. 614 (1905). California.-Jackson V. Sacramento & V. R. R. Co., 23 Cal. 268 (1863). Georgia.-Van Winkle v. South by a fire which originated outside his control, where not the slightest negligence can be imputed to him in any respect. And so a shipmaster is held liable, for an accidental loss of his vessel for which he could not be said to be in any way to blame.' It should be said that there are certain exceptions to this absolute liability in the modern law, most of which can be traced back to an early time when they had a logical place in the general scheme. These are discussed with some detail later on in this chapter. It will be sufficient at this point to give the list of these established excuses from absolute liability—(1) act of God, (2) public enemies, (3) vice of the goods and (4) interference of the party. § 964. Subsequent development of innkeeper's liability. The protection of the weary wayfarer from nocturnal Carolina R. R. Co., 38 Ga. 32 (1868). Illinois. Illinois Central R. R. Co. v. Frankenberg, 54 Ill. 88, 5 Am. Rep. 92 (1870). Iowa.-Cownie Glove Co. v. Merchants' Dispatch Transp. Co., 106 N. W. 749, 130 Iowa, 327 (1906). Kentucky.-Farley v. Lavary, 21 Ky. L. Rep. 1252, 54 S. W. 840, 47 L. R. A. 383 (1900). Maine.-Parker v. Flagg, 26 Me. 181, 45 Am. Dec. 101 (1846). Massachusetts.-Gage v. Tirrell, 9 Allen (Mass.), 299 (1864). Nebraska. St. Joseph & G. I. Ry. South Carolina.-Campbell V. Tennessee.-Craig v. Childress, Peck, 270, 14 Am. Dec. 751 (1823). Wisconsin.-Klauber v. American Express Co., 21 Wis. 21, 91 Am. Dec. 452 (1866). England.-Trent Nav. Co. V. Wood, 1 T. R. 28, 3 Esp. 127; Nugent v. Smith, 1 C. P. D. 423 (1876). As may be seen in the cases just cited that the utmost care has been exercised is no excuse. See particularly: California.-Agnew v. Steamer Contra Costa, 27 Cal. 425, 87 Am. Dec. 87 (1865). New Jersey.-Mershon v. Hobensack, 22 N. J. L. 372 (1850). |