respect to its genuineness, and it is acted upon by the sendee, and turns out a forgery. The principal is liable for the negligence of the agent.1

§ 494. The damages recoverable against a telegraphic company in an action of tort, for negligence in transmitting and delivering a false and fraudulent message, are such as result proximately and naturally from the wrongful act. The plaintiff recovers the damages he has sustained through the defendant's negligence: 3 he does not recover as damages a loss sustained by the fraudulent act of a third person, who finds his op portunity in the act of negligence. E. g., Brown leaves at defendant's office in Chicago a message to be sent to plaintiff at Rochester, requesting the latter to send him $500. Through the defendant's negligence in transmitting the message the amount is changed to $5,000; and the plaintiff, supposing the message accurate, sends to Brown that amount, and he appropriates the same to his own use and absconds. Here the defendant's negligence was not the proximate cause of the loss.5 The law regards the direct and immediate cause of the loss. It allows the damages sustained, where the defendant's negligence defeats a sale of goods; or where it prevents a purchase; or where it induces a shipment of goods, not called for by the telegram as left for transmission.9 The injured party is entitled to recover the damages resulting naturally from the defendant's negligence, or breach of his contract.

1 Elwood v. Western Union Tel. Co., 45 N. Y., 549; Lowery v. Western Union Tel. Co., 60 N. Y., 198.

2 Elwood v. Western Union Tel. Co., supra.

3 Webb v. R. W. & O. R. R. Co., 49 N. Y., 420.

4 Lowery v. Western Union Tel. Co., 60 N. Y., 198.

McGrew v. Stone, 53 Penn. St., 436, 440; Crain v. Petrie, 6 Hill, 522; Bige

low v. Reed, 51 Me., 325.

6 People v. City of Albany, 5 Lans., 524.

7 Squire v. W. U. Tel. Co., 98 Mass., 232.

Rittenhouse v. Ind. Line of Tel., 44 N. Y., 263.

9 Leonard v. N. Y. &c. Tel. Co., 41 N. Y., 544: the rule of damages is much considered in this case.

CHAPTER IX.

COMMON CARRIERS.

The internal and external carrying trade of a highly commercial people forms no inconsiderable element in the national prosperity. To the carrier, as the agent of commerce, is committed the wealth of merchandise shipped on the seas from port to port, and carried along all our rivers, railroads, canals and lakes. In the interest of a business whoso influence is so extensive in civil life, the law accords to this subject an important place in our system of jurisprudence, giving to it a consideration proportioned to the numerous and various relations which it involves.

§ 495. Who are Common Carriers. A person is not a common carrier who on a single occasion sends his servant to transport goods belonging to a particular individual, from one place to another, as from Albany to Schenectady. To constitute him a common carrier, he must be one who as a regular business, undertakes for hire or reward to transport the goods of such as choose to employ him, from place to placc.2 He is not a common carrier, unless his employment be to carry goods generally for any one, so as to imply a public engagement to serve all persons alike on being tendered a suitable reward.3 In other words, if he undertake for hire or reward to transport the goods of all persons, indifferently, that is, of all such persons as choose to employ him, from place to place, he is a common carrier; and his employment is of such a public character as obliges him to accept business whenever it is offered to him on reasonable terms.5

The character is assumed by the manner in which a man conducts his business: he is a common carrier where it is his practice to carry parcels, generally, for hire; or where he carries goods habitually for hire,

1 Satterlee v. Groat, 1 Wend. R., 272.

2 Blanchard v. Isaacs, 3 Barb. R., 388; 29 Barb., 613.

3 Trent and Mersey Nav. v. Wood, 3 Esp. R., 127; Story on Bailm., § 495.

4 Gisbourne v. Hurst, 1 Salk. R., 249; Dwight v. Brewster, 1 Pick. R., 50. 53 Hill R., 20.

in connection with another and more direct business.1 A man is not a common carrier, unless he holds himself out to the world in that capacity. And yet he may assume the obligations of a common carrier by a contract.3

§ 496. The burden of proof rests with the party seeking to charge a person or a company as a common carrier. Where a steamboat company has been in the habit of carrying money for hire, or have held themselves out to the public as common carriers of money and bank bills, they are answerable in that capacity. And the company is not liable for the loss of packages of bank bills, entrusted to the captain of their boat, unless it is shown that they have made the carriage of such packages a part of their ordinary business; in the absence of such proof, a delivery of a package of bank bills to the captain to be carried, from one point to another on his trip, is to be deemed a personal trust; especially where the compensation is a personal perquisite, and the package is delivered to the captain as a trustworthy person, without authority to receive and carry such packages. Carriers, like other people, have the right to limit the scope of the business they carry on; they are not obliged to enter upon the business of transporting money packages.

§ 497. No person is a common carrier, in the sense of the law, who is not a carrier for hire. It is not necessary that the compensation should be fixed by an agreement, and it is not necessary that the goods or property should be entered upon a freight list, or that the contract should have any written form. The law implies the contract from the delivery of the goods, properly addressed; 7 from a delivery which places them within the carrier's custody for transportation. A delivery to his agent

1 Gordon v. Hutchinson, 1 Watts and Serg., 285; Sheldon v. Robinson, 7 N. H., 157; Dwight v. Brewster, 1 Pick. R., 50; 29 Barb., 602, 612; Hale v. N. J. Steam Nav. Co., 15 Conn., 539.

2 Allen v. Sackbrider, 37 N. Y., 341; Fish v. Clark, 49 N. Y., 122.

3 Stephens and Condit Transp. Co. v. Tuckerman, 33 N. J. (Law), 543.

4 Citizens Bank v. Nantucket S. Co., 2 Story R., 16.

Sewell v. Allen, 6 Wend., 335; S. C., 2 Wend., 327; Blanchard v. Isaacs,

3 Barb., 383. If the driver of a stage is allowed as a part of his compensation, to carry packages, and ho does so, and the agreement is not known to the party delivering a parcel to be carried, the employers are liable. Bean v. Sturtevant, 8 N. H., 146.

6 Halsey v. Brown, 3 Day R., 346; Renner v. Bank of Columbia, 9 Wheat., 590.

7 Citizens Bank v. Nantucket S. Co., 2 Story, 16; Harmon v. N. Y. and Erie R. Co., 23 Barb., 323; McCotter v. Hooker, 8 N. Y., 497; 6 Wend., 335, 350. Merriam v. Hartford and N. H. R. Co., 20 Ct., 354; Trowbridge v. Chapin, 23 Ct., 595.

or servant of such goods as it is the carrier's custom to receive, is a delivery to himself; and this is so where the goods are so nearly within the line of the business that the person delivering them has reason to believe that they are fairly within the scope of the agent's authority to receive and transport.1

§ 498. A carrier of passengers is liable as a common carrier of their baggage. Thus, a company using steamboats and railroads for the transportation of passengers and their baggage, are liable as common carriers for damages happening to the baggage from a defect in the vehicles or machinery used, although the company is not chargeable with actual negligence, or want of skill, in securing the safety of the baggage; and nothing will excuse the company but inevitablo accident arising from superhuman causes, or the acts of the enemies of the country. The rule fixing the responsibility of common carriers, does not apply to the carrying of passengers or intelligent beings: and so the company are not liable in damages for injuries to passengers, where they have done all that human care and foresight can do to insure their safety.3

§ 499. We have two classes of common carriers, namely, carriers by sea, and inland carriers, by land or water; and in the aggregate body are included railroad companies, the owners of stage wagons and coaches, who carry goods as well as passengers for hire; wagoners, teamsters, cartmen, the masters and owners of ships, vessels and all water-craft, including steam vessels, belonging to internal as well as coasting and foreign navigation, lightermen, ferrymen, and express companies; all who engage in business as general carriers. It is the mode of transacting the business, and not the ownership of the conveyances employed in it, that renders a party liable as a common carrier.5

§ 500. Cartmen, draymen and porters are not common carriers, when they are employed by a person accompanying them, or continuously by a single firm; and they are common carriers when they make it their business to carry goods or packages, from one part of the town to another, for so much a load or parcel, at the request of any person; they

Halsey v. Brown, supra, and Renner v. Bank of Columbia, supra, and 6 Wend., 350.

2 Camden and Amboy R. and T. Co. v. Burke, 13 Wend., 611.

3 Boyce v. Anderson, 2 Peters U. S. R., 150; Christio v. Griggs, 2 Campb., 80; Carroll v. Staten Island R. R. Co., 58 N. Y., 125.

42 Kent's Comm., 598, 599; Sweet v. Barney, 23 N. Y., 335. 6 Rogers v. Wheeler, 43 N. Y., 598; 9 Allen, 47; 20 Vt., 421. 6 Ante § 393 shows the relation in which Robinson v. . Dunmore, 2 Bos. and Pul. R.,

they stand to their employers; 417; Brind v. Dale, 8 Carr. and P., 207.

come within the general definition, and have been adjudged liable as common carriers.' On the same ground, a city express company, engaged in carrying baggage to and from the different railroad depots, are treated and held liable as a common carrier. Practically no discrimination can be made between carriers, grounded on the length of the route over which they carry goods or parcels.

§ 501. The Wagoner. Formerly, in this country as well as in Lagland, much of the carrying business by land was done by wagoners and teamsters, who followed it as a regular employment, holding themselves out to the community as ready to receive and carry any goods that might be offered to them on their route; and they were held common carriers; the word common being used to distinguish them from one who undertakes for hire, to carry goods for another, on a particular occasion.♦ In some of the States, farmers carried their own goods to market, and on their return transported goods into the interior of the State, taking such loads as they could find; and though the carrying of goods in this manner was not their principal business, they were considered commen carriers. Without questioning the authorities to this effect, it deserves to be noticed that a man cannot be held liable as a common carrier unless he engages in the business; that he becomes a common carrier of only that class or line of goods which he assumes to carry, generally, for hire; and that he has a right to withdraw from the business.

§ 502. Proprietors of Stage Coaches. Originally the proprietors, running a line of stage coaches, were not regarded as common carriers in any sense; they carried passengers for a compensation, without making any

1 Robertson v. Kennedy, 2 Dana, 430; Dibble v. Brown, 12 Georgia, 217. 2 Richards v. Westcott, 2 Bosw., 589; S. C., 7 Bosw., 6; Verner v. Sweitzer, 32 Penn. St., 208.

In this State, before the Erie Canal was opened, goods were usually carried westward from Albany, to the young and thriving towns of middle and western New York, in great wagons drawn by three and four horses, in charge of a competent teamster; and the business was both important and lucrative. There was no other mode of transportation. When Adam Smith's "Wealth of Nations" was first published, 1776, "a broad wheel wagon, attended by two men, and drawn by eight horses, carried and brought trade between London and Edinburgh in about six weeks' time”—a slow-going and yet solid looking picture of olden times.

Gisbourne v. Hurst, 1 Salk., 249; Cro. Eliz., 596.

Gordon v. Hutchinson, 1 Watts and S., 285; Powers v. Davenport, 7 Blackf., 497; Lecky v. M'Dermot, 8 Serg. and R., 500; Chevallier v. Straham, 2 Texas,

115.

Satterlee v. Groot, 1 Wend., 272; see discussion in Alexander v. Greene, 7 Hill, 533; see Fish v. Chapman, 2 Kelly, 349; McClure v. Richardson, 1 Rice, 215; Jenkins v. Pickett, 9 Yerg., 480.