HADLEY, J., IN CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY CO. v. HENRY.

170 Ind. 94. 1908.1

So far as expression has been given, there is unanimity among the courts of this country that a railroad corporation, as a common carrier, is under no legal duty to haul show cars, that is, cars owned and fitted up by showmen and used exclusively by them to house and transport their employees and show property as a complete outfit from place to place over railroads. Coup v. Wabash, etc-, R. Co., 56 Mich. 111, 22 N. W. 215, 56 Am. Rep. 374; Chicago, etc., R. Co. v. Wallace, 66 Fed. 508, 14 C. C. A. 257, 30 L. R. A. 161; Robertson v. Old Colony R. R. Co., 156 Mass. 525, 31 N. E. 650, 32 Am. St. Rep. 482; Wilson v. Atlantic, etc, R. Co. (C. C. 1904) 129 Fed. 774, affirmed 133 Fed. 1022, 66 C. C. A. 486; Hutchinson on Carriers (3d Ed.) § 88, p. 84; Moore on Carriers, 38. The rule rests upon the principle that such loaded cars or vehicles are not such goods as railroads hold themselves out to carry, and in respect to which they assume a public duty to serve all alike who apply for carriage, and such cars being a class of property they do not profess to carry, and the drawing of which is inconsistent with their business, they are therefore exempt from all public duty to haul them. 1 Hutchinson on Carriers (3d Ed.) § 47, and authorities collated; Moore on Carriers, § 1. A common carrier may, however, become a private carrier, and by special agreement undertake for hire to carry that which he is under no obligation to carry. Louisville, etc., Co. v. Keefer (1896) 146 Ind. 21, 26, 44 N. E. 796, 38 L. R. A. 93, 58 Am. St. Rep. 348, and cases cited; Pittsburgh, etc., Co. v. Mahoney (1897) 148 Ind. 196, 200, 46 N. E. 917, 47 N. E. 464, 40 L. R. A. 101, 62 Am. St. Rep. 503, and cases cited; Hutchinson on Carriers (3d Ed.) § 44. In the latter section the author states: "A common carrier may undoubtedly become a private carrier, or bailee for hire, when as a matter of accommodation or special engagement he undertakes to carry something which it is not his business to carry. The relation in such a case is changed from that of a common carrier to that of a private carrier, and where this is the effect of a special arrangement a carrier is not liable as a common carrier and cannot be proceeded against as such." See, also, Baltimore, etc., R. Co. v. Voigt, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560.2

1 Only an extract from the opinion is here given.-ED.

2 See Chicago, M. & St. P. Ry. Co. v. Wallace (1895), 66 Fed. 506, 30 L. R. A. 161, and note.

"Appellee is a common carrier for hire, and as such is bound, when

ASHURST, J., IN HYDE v. TRENT AND MERSEY
NAVIGATION CO.

5 Term R. 389. 1793.1

THE inclination of my opinion on the general question is that a carrier is bound to deliver the goods to the person to whom they are directed. A contrary decision would be highly inconvenient, and would open a door to fraud; for if the liability of the carrier were to cease when he had brought the goods to any inn where he might choose to put up his coach, and a parcel containing plate or jewels, brought by him, were lost before it was delivered to the owner, the latter would only have a remedy against a common porter. It has been said, however, that it is the practice of many persons to send to the inn for their goods; but that does not prove that the carrier is not bound to deliver them, if they do not send. If the owner choose to send for his goods, that merely discharges the carrier from his liability in that case; it only dispenses with the general obligation thrown by the law upon the carrier: but it does not apply to other cases where that obligation is not dispensed with.2

requested, to receive for transportation over its lines cars of other common carriers, and as to such cars it holds the same relation as to ordinary freight received by it for transportation, and is held to the same measure and character of liability to the owners of the cars, as would attach with respect to any other property received by it for carriage. (Peoria & P. U. Ry. Co. v. Chicago R. I. & P. Ry. Co., 109 Ill. 135; East St. Louis C. Ry. Co. v. Wabash St. L. & P. Ry. Čo, 123 id. 594; Peoria & P. U. Ry. Co. v. U. S. R. S. Co., 136 id. 643; Schumacher v. Chicago & N. W. Ry. Co., 207 id. 199.)" Pittsburgh C. C. & St. L. Ry. Co. v. City of Chicago (1909), 242 Ill. 178, 188. Accord: Chicago, B. & Q. R. R. Co. v. Curtis (1897), 51 Neb. 442, 453; Mackin v. Boston & A. R. Co. (1883), 135 Mass. 201; Hudson V. Ry. Co. v. Boston & M. R. R. (1905), 106 App. Div. (N. Y.) 375 (statutory); Baldwin v. Chicago R. I. & P. Ry. Co. (1879), 50 Ia. 680 (statutory); Thomas v. Missouri P. R. Co. (1892), 18 S. W. (Mo.) 980 (statutory); Michigan C. R. Co. v. Smithson (1881), 45 Mich. 212 (statutory); Louisville & N. R. Co. v. Boland (1892), 11 So. (Ala.) 667 (statutory). Contra: Oregon S. L. & V. N. Ry. Co. v. Northern P. R. Co. (1892), 51 Fed. 465, 474; Little Rock & M. R. Co. v. St. Louis S. W. R. Co. (1894), 63 Fed. 775; and see Atchison T. & S. F. R. Co. v. Denver & N. O. R. Co., infra, p. 122. As to the duty of the initial carrier to surrender loaded cars to a connecting carrier see Pittsburg, C. C. & St. L. Ry. Co. v. Morton (1878), 61 Ind. 539; Louisville & N. R. Co. v. Central Stock Yards Co. (1909), 212 U. S. 132; Michigan Cent. Ry. Co. v. Michigan R. R. Comm. (1915), 236 U. S. 615.

1 Only an extract from the opinion of ASHHURST, J., is reprinted.- ED. 2" The offer of the defendant presupposes, what is now conceded, and is indeed extremely well settled, that prima facie the carrier is under an obligation to deliver the goods, to the consignee personally." Gibson v. Culver (1837), 17 Wend. 305, 306. And see Starr v. Crowley (1825), 1 McClel. & Young, 129; Fish v. Newton (1845), 1 Denio, 45.

"Common carriers are ordinarily bound to carry goods entrusted to their conveyance to the residence or place of business of the consignee; but whether this rule can be conveniently applied to the business usually transacted by canal and railroad may admit of doubt." Eagle v. White (1841), 6 Whart. (Pa.) 505, 517.

"Prima facie, there must be actual delivery, or in the case of a carrier

BULLARD v. AMERICAN EXPRESS CO.

107 Mich. 695. 1895.1

MONTGOMERY, J. This is an action in case, commenced in justice court. The declaration, in substance, alleges that plaintiff is a large shipper of celery by express from Kalamazoo to places throughout the United States, upon lines of the defendant, a common carrier; that the defendant, to collect celery and other articles for shipment in the city of Kalamazoo, and to deliver packages received by it, maintains and employs a large number of men, horses, and wagons; that since December 1, 1893, plaintiff's place of business has been at No. 506 Douglas avenue, in said city; that during the celery season plaintiff makes large daily shipments over defendant's lines, and has consigned to him packages of money in payment of celery shipped C. O. D., and other articles, of all of which defendant had notice; that plaintiff repeatedly requested defendant to call at his place of business for his shipments, and to deliver packages to him, which defendant refused to do; that defendant collects for shipment from and delivers to a large number of shippers of celery and other articles, under substantially the same circumstances, conditions, and situation as the plaintiff, and for shippers at a greater distance from its place of business than plaintiff's place, and for shippers in the same locality as the plaintiff, and has unlawfully discriminated against the plaintiff by such refusal; that plaintiff has been damaged by being compelled to convey his celery to defendant's office for shipment, and procure his packages from its office. The plaintiff had judgment in the justice court. In the circuit court the court directed a verdict for the defendant.

The evidence on the trial showed that the defendant's agents, acting in unison with the agents of other express companies, had established limits in the city, beyond which they did not go to receive goods for shipment or to deliver packages. In some instances these limits extended a greater distance from the defendant's office than plaintiff's place of business. It was also in by water, a landing at the wharf, or usual landing place, with due and reasonable notice to the consignee of the arrival of the goods. But this rule may be varied by contract, or affected by a well-established, reasonable and generally known custom and usage." Huston v. Peters, Hardin & Co. (1858), 1 Metc. (Ky.) 558, 562.

"It is not the customary duty of a railroad company to tender the goods to the consignee, but the goods are kept at the depot or warehouse until the consignee calls for them." Jarrett v. Great N. Ry. Co. (1898), 74 Minn. 477, 480.

1 The statement of facts and arguments of counsel are omitted.- ED.

evidence that the plaintiff knew of these limits before moving into his present place of business, and before transacting the business with defendant in which the inconvenience arose which, it is alleged, caused damage to plaintiff.

At the common law, a carrier of goods was not bound to accept delivery at any place other than his place of business, or the line of travel, in the absence of the custom of receiving goods at other places. Hutch. Carr. §§ 82, 87; Blanchard v. Isaacs, 3 Barb. 388. But it is insisted that the defendant in this case, having practiced the custom of receiving goods for shipment at other points in the city than its office, was bound to furnish equal facilities to all shippers who occupy a similar position. We are not impressed with the force of this reasoning, as applied to the facts in this case. We are cited to no case in which it has been held that a carrier is bound to go beyond its line to receive goods, and, while it would not be competent for a common carrier to discriminate against shippers within its fixed limits, it is not perceived why, if the company is entitled to limit its receipt of goods to its own office or place of business, it may not enlarge these limits at its discretion, without being bound to go beyond them.

The duty to deliver to the consignee is somewhat broader. Carriers on land, receiving packages, were, at the common law, generally bound to deliver to the consignee, at his residence or place of business. This rule has not been applied to carriers by water, or railroad companies, which must, of necessity, be confined to a fixed route. It has been said, however, that express companies owe their origin to this very fact, and that the nature of their business is to furnish a means of transportation and delivery to the consignee. Wood's Browne, Carr. § 230; Hutch. Carr. 379. The question of how far this duty may be escaped by usage is not well settled. It has been held, however, that, when the business of an office is so small that the company cannot or does not keep a messenger to make personal delivery, it is not unreasonable to require the consignee to call at the office. Hutch. Carr. § 380. If this may be done, it would seem to follow that the company may, so long as the public have notice of the custom, fix limits beyond which its agents are not required to go for delivery. If it cannot do this, it is difficult to say where would be the limit. It is clear that a reasonable limit is not in all cases the city limit. Conditions are often varied. If not the city limit, can it be said that a certain number of miles from the office, in either direction, would be a reasonable limit? We think, where the company, in ap

parent good faith, has assumed to fix limits, having regard to the public requirements, that, with regard to persons who have dealt with them, having knowledge of this fact, they are not bound to deliver beyond these limits. We do not determine what the right of one not having knowledge of these limits would be. This is not such a case, but in this case we think the court committed no error in directing a verdict for the defendant. Judgment will be affirmed.

MCGRATH, C. J., did not sit. LONG, GRANT, and HOOKER, J. J., concurred.

WALWORTH, C., IN VAN SANTVOORD v. ST. JOHN.

6 Hill, 157. 1843.1

THE evidence shows that the plaintiffs in error were not common carriers between New York and Little Falls, but only common carriers of goods from New York to Albany; and were mere forwarders of such goods by the canal lines when they were directed to places beyond Albany, on the canal route. And St. John & Tousey had no more right to expect that these carriers between New York and Albany would themselves carry the box of clothing in question to Little Falls, than they had to suppose they would deliver the other box, forwarded by their towboat at the same time, to Hubbard at Chicago. As to both, they must have understood and expected that the owners of the tow-boat line would transport the boxes to the place where their business as common carriers terminated, and send them on in the usual way as forwarders, from that place.2

PULLMAN PALACE CAR CO. v. LAWRENCE.
74 Miss. 782. 1897.

Supra p. 10.

1 Only part of CHANCELLOR WALWORTH's opinion is reprinted.— ED. 2 "The question whether a railroad company can make a valid contract for the transportation of freight beyond the limits of its own road, as their limits are fixed by its charter, as we understand the decision of the Court of Appeals, in West v. The Rensselaer and Saratoga R. R. Co. (4 Seldon, 37), must now be regarded as finally settled. It is only on the supposition that such a contract is valid, that the decision in that case can be explained. It is, therefore, needless to refer to the recent decisions in England, or to prior decisions in our own courts, which countenance, if they do not establish, the same doctrine." Schroeder v. Hudson River R. R. Co. (1885), 5 Duer, 55, 61.