1. A party engaged as a common carrier cannot, by declaring or
stipulating that he shall not be so considered, divest himself of
the liability attached to the fixed legal character of that
occupation.
2. A common carrier who undertakes for himself to perform an
entire service has no authority to constitute another person or
corporation the agent of his consignor or consignee. He may employ
an agency, but it must be subordinate to him, and not to the
shipper, who neither employs it, pays it, nor has any right to
interfere with it. Its acts become his, because done in his service
and by his direction.
3. Therefore where an express company engaged to transport
packages, &c., from one point to another, sends its messenger
in charge of them on the car set apart for its use by the railroad
company employed to perform the service, the latter company becomes
the agent of the former.
4. An exception in its bill of lading,
"that the express company is not to be liable in any manner or
to any extent for any loss or damage or detention of such package,
or its contents, or of any portion thereof, occasioned by
fire,"
does not excuse the company from liability for the loss of such
package by fire if caused by the negligence of a railroad company
to which the former had confided a part of the duty it had
assumed.
5. Public policy demands that the right of the owners to
absolute security against the negligence of the carrier, and of all
persons engaged in performing his duty, shall not be taken away by
any reservation in his receipt or by any arrangement between him
and the performing company.
These are actions by the plaintiffs in error to recover the
value of certain packages containing money which, on their
transportation over the Louisville and Nashville Railroad in charge
of a messenger of the defendant in error, were destroyed by fire.
There was a verdict and judgment in each case for the defendant.
The plaintiffs sued out these writs of error. The facts are set
forth in the opinion of the Court. So much of the instructions of
the court below as are referred to but not incorporated in the
opinion are as follows:
"If the jury believe that the teller of the Louisiana National
Bank presented the bill of lading to the agent of the express
company for his signature, with the blanks filled, and at such time
delivered to the agent the package of money
Page 93 U. S. 175
without disclosing who was the owner of it, but addressed to the
plaintiff at Louisville that the bill of lading was signed and
redelivered to the teller and forwarded to the plaintiff at
Louisville, then the bill of lading thus signed constitutes the
contract, and all the exceptions in it are a part of the contract,
no matter whether each or all of them were known to the Louisiana
National Bank or not, and the plaintiff is bound by the contract,
whether it expressly authorized the Louisiana National Bank to make
it or not. The evidence tending to show that the bill of lading was
not read at the time of the signing, and that nothing was said
about the exceptions contained in it, is immaterial."
"It is claimed by the plaintiff that the defendant was wanting
in care in the use of the safe or box in which the package was at
the time of the loss. If there was any such want of reasonable care
in this particular, the defendant is undoubtedly liable; but if the
safe was such as prudent persons engaged in like employment
generally use for the purpose, there was no want of care, and the
defendant is not responsible for want of care in this particular.
"
Page 93 U. S. 177
MR. JUSTICE STRONG delivered the opinion of the Court.
The defendants in each of these cases are an express company
engaged in the business of carrying for hire money, goods, and
parcels from one locality to another. In the transaction of their
business, they employ the railroads, steamboats, and other public
conveyances of the country. These conveyances are not owned by
them, nor are they subject to their control any more than they are
to the control of other transporters or passengers. The packages
entrusted to their care are at all times while on these public
conveyances in the charge of one of their own messengers or agents.
In conducting their business, they are associated with another
express company, called the Southern, and the two companies are
engaged in carrying by rail through Louisiana and Mississippi, to
Humboldt, Tenn., and thence over the Louisville and Nashville
Railroad to Louisville, Ky., under a contract by which they divide
the compensation for carriage in proportion to the distance the
package is transported by them respectively. Between Humboldt and
Louisville both companies employ the same messenger, who is
exclusively subject to the orders of the Southern Express Company
when south of the northern boundary of Tennessee and to the orders
of the defendants when north of that boundary.
Such being the business and occupation of the defendants, they
are to be regarded as common carriers, and, in the absence of
stipulations to the contrary, subject to all the legal
responsibilities of such carriers.
On the twenty-sixth day of July, 1869, the Southern Express
Company received from the Louisiana National Bank at New Orleans
two packages, one containing $13,528.15, for delivery to the Bank
of Kentucky, Louisville, and the other containing
Page 93 U. S. 178
$3,000, for delivery to the Planters' National Bank of
Louisville, at Louisville. The money belonged to the banks
respectively to which the packages were sent. When the packages
were thus received, the agent of the Southern Express Company gave
a receipt or domestic bill of lading for each, of which the
following is a copy (the two differing only in the description of
the consignees and in the amount of money mentioned):
"
Domestic Bill of Lading"
"
SOUTHERN EXPRESS COMPANY, EXPRESS FORWARDERS"
"No. 2. $13,528.15 July 26, 1869"
"Received from Lou. Nat. Bank one package, sealed, and said to
contain thirteen thousand five hundred and twenty-eight 15/100
dollars."
"Addressed Bank of Kentucky, Louisville, Ky. Freight coll."
"Upon the special acceptance and agreement that this company is
to forward the same to its agent nearest or most convenient to
destination only, and then to deliver the same to other parties to
complete the transportation, such delivery to terminate all
liability of this company for such package, and also that this
company are not to be liable in any manner or to any extent for any
loss, danger, or detention of such package or its contents, or of
any portion thereof, occasioned by the acts of God or by any person
or persons acting or claiming to act in any military or other
capacity in hostility to the government of the United States, or
occasioned by civil or military authority, or by the acts of any
armed or other mob or riotous assemblage, piracy, or the dangers
incident to a time of war, nor when occasioned by the dangers of
railroad transportation, or ocean or river navigation, or by fire
or steam. The shipper and owner hereby severally agree that all the
stipulations and conditions in this receipt shall extend to and
inure to the benefit of each and every company or person to whom
the Southern Express Company may entrust or deliver the
above-described property for transportation, and shall define and
limit the liability therefor of such other companies or person. In
no event is this company to be liable for a greater sum than that
above mentioned, nor shall it be liable for any such loss unless
the claim therefor shall be made in writing at this office, within
thirty days from this date, in a statement to which this receipt
shall be annexed."
"Freight coll."
"For the company, SHACKLEFORD"
Page 93 U. S. 179
Across the left-hand end of said receipt was the following
printed matter:
"Insured by Southern Express Company for _____ to _____ only
except against loss occasioned by the public enemy."
"For the company --"
"Insurance, $_____"
The bills of lading were sent to the consignees at
Louisville.
Having thus received the packages, the Southern Express Company
transported them by railroad as far as Humboldt, Tenn., and there
delivered them to the messenger of the defendants (who was also
their messenger) to complete the transportation to Louisville and
to make delivery thereof to the plaintiffs. For that purpose the
messenger took charge of them, placing them in an iron safe, and
depositing the safe in an apartment of a car set apart for the use
of express companies for transportation to Louisville.
Subsequently, while the train to which the car containing the
packages was attached was passing over a trestle on the line of the
Louisville and Nashville Railroad, and while the packages were in
charge of the messenger, the trestle gave way during the night, the
train with the express car was thrown from the track, and the car
with others caught fire from the locomotive and was burned,
together with the money in the safe. The messenger was rendered
insensible by the fall, and he continued so until after the
destruction was complete. There was some evidence that some of the
timber of the trestle seemed decayed.
Upon this state of facts, the learned judge of the circuit court
instructed the jury that
"If they believed the package was destroyed by fire, as above
indicated, without any fault or neglect whatever on behalf of the
messenger or defendants, the defendants have brought themselves
within the terms of the exceptions in the bill of lading, and are
not liable."
And again, the court charged:
"It is not material to inquire whether the accident resulted
from the want of care, or from the negligence of the Louisville and
Nashville Railroad Company, and its agents, or not."
And again:
"But when he [the common carrier] has limited his liability, so
as to make himself responsible for
Page 93 U. S. 180
ordinary care only, and the shipper to recover against him is
obliged to aver and prove negligence, it must be his negligence, or
the negligence of his agents, and not the negligence of persons
over whom he has no control. If in his employment he uses the
vehicles of others, over which he has no control, and uses
reasonable care -- that is, such care as ordinarily prudent persons
engaged in like business use in selecting the vehicles -- and if
the loss arises from a cause against which he has stipulated with
the shipper, he shall not be liable for the same unless it arises
from his want of care or the want of care of his employees."
At the same time, the learned judge instructed the jury as
follows:
"Without, therefore, deciding whether or not the evidence
adduced in the case tends to establish any want of reasonable or
ordinary care on the part of the Louisville and Nashville Railroad
Company, I instruct you that such evidence is irrelevant and
incompetent, and that you should disregard it -- that is, give no
more effect to it than if it had not been adduced."
These extracts from the charge, to all of which exception was
duly taken, exhibit the most important question in these cases,
which is whether the stipulations of the carriers' receipt or bill
of lading relieved them from responsibility for the negligence of
the railroad company employed by them to complete the carriage. The
circuit court was of opinion, as we have seen, that they did, and
practically instructed the jury that under the modified contract of
bailment, the defendants were liable for loss by fire only to the
extent to which mere bailees for hire, not common carriers, are
liable -- that is, that they were responsible only for the want of
ordinary care exercised by themselves or those who were under their
control. With this we cannot concur, though we are not unmindful of
the ability with which the learned judge has defended his
opinion.
We have already remarked, the defendants were common carriers.
They were not the less such because they had stipulated for a more
restricted liability than would have been theirs had their receipt
contained only a contract to carry and deliver. What they were is
to be determined by the nature of their business, not by the
contract they made respecting the liabilities which should attend
it. Having taken up the occupation,
Page 93 U. S. 181
its fixed legal character could not be thrown off by any
declaration or stipulation that they should not be considered such
carriers.
The duty of a common carrier is to transport and deliver safely.
He is made by law an insurer against all failure to perform this
duty except such failure as may be caused by the public enemy or by
what it denominated the act of God. By special contract with his
employers, he may, it is true, to some extent be excused if the
limitations to his responsibility stipulated for are, in the
judgment of the law, reasonable and not inconsistent with sound
public policy. It is agreed, however, that he cannot, by any
contract with his customers, relieve himself from responsibility
for his own negligence or that of his servants, and this because
such a contract is unreasonable and contrary to legal policy. So
much has been finally determined in
Railroad
Company v. Lockwood, 17 Wall. 357. But can he, by a
contract made with those who entrust property to him for carriage
and delivery -- a contract made at the time he receives the
property -- secure to himself exemption from responsibility for
consequences of the negligence of a railroad company or its agents
not owned or controlled by him, but which he employs in the
transportation? This question is not answered in the
Lockwood case. It is raised here, or rather the question
is presented whether a common carrier does relieve himself from the
consequences of such negligence by a stipulation that the shall not
be liable for losses by fire.
The exception or restriction to the common law liability
introduced into the bills of lading given by the defendants, so far
as it is necessary to consider it, is
"that the express company are not to be liable in any manner or
to any extent for any loss or damage, or detention of such package
or its contents, or of any portion thereof, occasioned by
fire."
The language is very broad, but it must be construed reasonably,
and if possible consistently with the law. It is not to be presumed
the parties intended to make a contract which the law does not
allow. If construed literally, the exception extends to all loss by
fire, no matter how occasioned, whether occurring accidentally or
caused by the culpable negligence of the carriers or their
servants, and even to all losses by fire caused by willful
Page 93 U. S. 182
acts of the carriers themselves. That it can be operative to
such an extent is not claimed. Nor is it insisted that the
stipulation, though assented to by the shippers, can protect the
defendants against responsibility for failure to deliver the
packages according to their engagement when such failure has been
caused by their own misconduct or that of their servants or agents.
But the circuit court ruled the exception did extend to negligence
beyond the carriers' own and that of the servants and agents
appointed by them and under their control -- that it extended to
losses by fire resulting from the carelessness of a railroad
company, employed by them in the service which they undertook, to
carry the packages, and the reason assigned for the ruling was that
the railroad company and its employees were not under the control
of the defendants. With this ruling we are unable to concur. The
railroad company, in transporting the messenger of the defendants
and the express matter in his charge, was the agent of somebody --
either of the express company or of the shippers or consignees of
the property. That it was the agent of the defendants is quite
clear. It was employed by them and paid by them. The service it was
called upon to perform was a service for the defendants -- a duty
incumbent upon them and not upon the plaintiffs. The latter had
nothing to do with the employment. It was neither directed by them
nor had they any control over the railroad company or its
employees. It is true, the defendants had also no control over the
company or its servants, but they were its employers, presumably
they paid for its service, and that service was directly and
immediately for them. Control of the conduct of an agency is not in
all cases essential to liability for the consequences of that
conduct. If anyone is to be affected by the acts or omissions of
persons employed to do a particular service, surely it must be he
who gave the employment. Their acts become his because done in his
service and by his direction. Moreover, a common carrier who
undertakes for himself to perform an entire service has no
authority to constitute another person or corporation the agent of
his consignor or consignee. He may employ a subordinate agency, but
it must be subordinate to him, and not to one who neither employs
it nor pays it nor has any right to interfere with it.
Page 93 U. S. 183
If, then, the Louisville and Nashville Railroad Company was
acting for these defendants and performing a service for them when
transporting the packages they had undertaken to convey, as we
think must be concluded, it would seem it must be considered their
agent. And why is not the reason of the rule that common carriers
cannot stipulate for exemption from liability for their own
negligence and that of their servants and agents as applicable to
the contract made in these cases as it was to the facts that
appeared in the case of
Railroad Company v. Lockwood? The
foundation of the rule is that it tends to the greater security of
consignors, who always deal with such carriers at a disadvantage.
It tends to induce greater care and watchfulness in those to whom
an owner entrusts his goods and by whom alone the needful care can
be exercised. Any contract that withdraws a motive for such care or
that makes a failure to bestow upon the duty assumed extreme
vigilance and caution more probable takes away the security of the
consignors and makes common carriage more unreliable. This is
equally true whether the contract be for exemption from liability
for the negligence of agencies employed by the carrier to assist
him in the discharge of his obligations, though he has no control
over them, or whether it be for exemption from liability for a loss
occasioned by the carelessness of his immediate servant. Even in
the latter case, he may have no actual control. Theoretically he
has, but most frequently, when the negligence of his servant
occurs, he is not at hand, has no opportunity to give directions,
and the negligent act is against his will. He is responsible
because he has put the servant in a place where the wrong could be
done. It is quite as important to the consignor and to the public
that the subordinate agency, though not a servant under immediate
control, should be held to the strictest care as it is that the
carrier himself and the servants under his orders should be.
For these reasons, we think it is not admissible to construe the
exception in the defendants' bills of lading as excusing them from
liability for the loss of the packages by fire if caused by the
negligence of the railroad company to which they confided a part of
the duty they had assumed.
There are other reasons of weight which deserve
consideration.
Page 93 U. S. 184
Express companies frequently carry over long routes, at great
distances from the places of destination of the property carried,
and from the residence of its owners. If in the course of
transportation a loss occurs through the want of care of managers
of public conveyances which they employ, the carriers or their
servants are at hand. They are best acquainted with the facts. To
them those managers of the public conveyances are responsible, and
they can obtain redress much more conveniently than distant owners
of the property can. Indeed, in many cases, suits by absent owners
would be attended with serious difficulties. Besides, express
companies make their own bargains with the companies they employ,
while they keep the property in their own charge, usually attended
by a messenger. It was so in the present case. The defendants had
an arrangement with the railroad company under which the packages
of money, enclosed in an iron safe, were put into an apartment of a
car set apart for the use of the express company. Yet the safe
containing the packages continued in the custody of the messenger.
Therefore, as between the defendants and the railroad company, it
may be doubted whether the relation was that of a common carrier to
his consignor, because the company had not the packages in charge.
The department in the car was the defendants' for the time being,
and if the defendants retained the custody of the packages carried
instead of trusting them to the company, the latter did not insure
the carriage.
Miles v. Cattle, 6 Bing. 743;
Towers v.
Utica & Syracuse R. Co., 7 Hill (N.Y.) 47; Redf. on
Railw., sec. 74.
Now can it be a reasonable construction to give to the contract
between the defendants and the plaintiffs that the former, who had
agreed to carry and deliver the packages at Louisville, reserved to
themselves the right to employ a subordinate carrier, arrange with
him that he should be responsible only for ordinary vigilance
against fire, and by that arrangement relieve themselves from what
without it would have been their clear duty? Granting that the
plaintiffs can sue the railroad company for the loss of the
packages through its fault, their right comes through their
contract between it and the defendants. They must claim through
that.
47 U. S. 6 How.
381. Had the packages
Page 93 U. S. 185
been delivered to the charge of the railroad company, without
any stipulation for exemption from the ordinary liability of
carriers, it would have been an insurer both to the express company
and to the plaintiffs. But, as they were not so delivered, the
right of the plaintiffs to the extremest constant vigilance during
all stages of the carriage is lost, if the defendants are not
answerable for the negligence of the railroad company,
notwithstanding the exception in their bills of lading. We cannot
close our eyes to the well known course of business in the country.
Over very many of our railroads the contracts for transportation of
goods are made, not with the owners of the roads, nor with the
railroad companies themselves, but with transportation agencies or
companies which have arrangements with the railroad companies for
the carriage. In this manner, some of the responsibilities of
common carriage are often sought to be evaded, but in vain. Public
policy demands that the right of the owners to absolute security
against the negligence of the carrier, and of all persons engaged
in performing the carrier's duty, shall not be taken away by any
reservation in the carrier's receipt, or by any arrangement between
him and the performing company.
It has been urged on the part of the defense that though the
contract does not attempt to exempt, and could not have exempted,
the express company from liability for loss occasioned by the
neglect of itself or its servants, yet when it is sought to charge
the company with neglect, it must be such as it is responsible for
upon the general principles of law, and that upon those principles,
no one is responsible for damage occasioned by neglect unless it be
the neglect of himself, his servants, or agents. The argument
mistakes, we think, when it asserts that upon general principles of
law, no one is responsible for the consequences of any neglect
except his own or that of his agents or servants. Common carriers
certainly are, and for very substantial reasons. These defendants,
it is agreed, were common carriers, and they remained such after
the exception in their receipt. If it be said the exception reduced
their responsibility to such an extent as to make them liable only
for such neglect as fastens a liability upon persons who are not
common carriers, the answer is such an averment assumes the
Page 93 U. S. 186
very thing to be proved, and even if the argument were sound,
the question would still remain whether the railroad company
employed by the defendants to effect the carriage is not properly
to be regarded as their agent, though not under their control. That
question we have already considered.
Again it is urged that though the defendants remained common
carriers notwithstanding their contract, their responsibility was
limited by their receipt to that of an ordinary bailee for hire,
and as such a bailee is not held liable for the neglect of persons
over whom he has no control, it is argued that these defendants are
not liable for the negligence of the railroad company. This also
assumes what cannot be admitted. Although we are told all the
authorities agree that when a common carrier has by special
contract limited his liability, he becomes, with reference to that
particular transaction, an ordinary bailee -- a private carrier for
hire -- or reduces his responsibilities to those of an ordinary
bailee for hire, yet we do not find that the authorities assert
that doctrine if by the phrase "that particular transaction" is
meant the undertaking to carry. Certainly those to which we have
been referred do not. We do not deny that a contract may be made
which will put a common carrier on the same level with a private
carrier for hire as respects his liability for loss caused by the
acts or omissions of others. The consignor may, by contract,
restrain him; may direct how and by what agencies he shall carry.
Under such an arrangement he may become a mere forwarder and cease
to be a carrier. But what we have to decide in these cases is
whether the contract proved has that operation. We have already
said we think it has not. The exception in the bills of lading has
sufficient to operate upon without being a cover for negligence on
the part of any persons engaged in the service undertaken by the
carriers. It exempts the defendants from responsibility for loss by
fire caused by the acts of omissions of all persons who are not
agents or agencies for the transportation.
That is a large restriction, and beyond that, in our judgment,
the exception in the present case does not extend.
To the opinion we have thus expressed we find direct support in
the case of
Hooper v. Wells, Fargo, & Co., 27 Cal.
11.
Page 93 U. S. 187
There an express company had undertaken to transport gold dust
and bullion from Los Angeles to San Francisco and deliver to
address. The receipt for the property contained the following
stipulation:
"In no event to be liable beyond our route, as herein receipted.
It is further agreed, and is part of the consideration of this
contract, that Wells, Fargo, & Co. are not to be responsible
except as forwarders, nor for any loss or damage arising from the
dangers of railroad, ocean, or river navigation, fire, &c.
unless specially insured by them, and so specified in this
receipt."
In the course of the transportation, the messenger of the
carriers who had the property in charge took it on board a steam
tug, for the purpose of placing it on a steamer bound to San
Francisco. On the way to the steamer, the boiler of the steam tug
exploded in consequence of carelessness of its officers, and the
gold dust and bullion were thereby lost. The steam tug did not
belong to the express company, nor was it or its officers under
their control. Yet the court adjudged that the managers and
employees of the steam tug were in legal contemplation the managers
and employees of the carrier, and that the restrictive clause in
the receipt did not exempt the carriers from liability for loss
occasioned by the carelessness of those employees. To the same
effect is the case of
Christensen v. American Ex. Co., 15
Minn. 270, and the case of
Machu v. London & South western
Railway Company, 2 Exch. 415, though arising under the Carrier
Acts of 11 Geo. IV. and 1 Wm. IV., is very analogous. The statute
declared that the carrier should be liable to answer for the
felonious acts of any coachman, guard, bookkeeper, porter, or other
servant in his employ. The court considered that all parties
actually employed in doing the work which the carrier undertook to
do, either by himself or his servants, were to be regarded as his
servants within the meaning of the act. Baron Rolfe said the right
as against the carriers arises not from the relation of master and
servant, but by virtue of the contract into which they have entered
to deliver the goods. This was said in answer to an argument like
the one relied upon in this case, that the relation of master and
servant could not exist between the carriers and the servants of a
subcontractor.
Page 93 U. S. 188
The other objections urged against the charge given by the court
below to the jury require but brief notice.
We find no error in what the circuit judge said upon the
question whether the bills of lading, with the exceptions,
constituted the contract between the parties. The charge in this
particular is justified by very numerous authoritative decisions.
York Company v. Central
Railroad Company, 3 Wall. 107;
Grace v.
Adams, 100 Mass. 505;
Wells v. Steam Nav. Co., 2
Comst. 204;
Dorr v. New Jersey Steam Nav. Co., 1 Kern.
485;
47 U. S. 6 How.
344;
70 U. S. 3 Wall.
107; 6 Blatchf. 64;
Kirkland v. Dinsmore, 62 N.Y. 161.
Nor was there error in the instruction given respecting the iron
safe. Taken as a whole, it was correct.
The charge covered the whole case, and, except in those
particulars in which we have indicated our opinion that it was
erroneous, we find no just reason to complain of it.
But for the errors we have pointed out, new trials must be
awarded.
Judgment in each case reversed, and the record remitted with
directions to award a venire de novo.