120 Ky. 728 | Ky. Ct. App. | 1905
Opinion by
Reversing.
The Aberdeen Coal & Mining Company operated two boats — tbe Carson and I. N. Hook — on Green River. Bassett & Stone made a contract witb tbe company to bring a lot of brick from Evansville to Rochester for $160, tbe brick to be loaded by them at Evansville on a barge belonging to it, and then to be towed by it np to Rochester. Tbe contract was made by telephone, and afterwards confirmed by letter. "While tbe boat I. N. Hook was going up tbe river tbe barge struck a bidden snag and was sunk. Bassett & Stone then filed this suit against tbe company to recover for tbe loss of tbe brick, alleging that
The only question which need be considered' on the appeal is whether there was sufficient evidence to go to the jury on the question whether the defendant was a common carrier. The proof on this subject is as follows:
J. L. Dent testified as follows: “I requested plaintiffs to ship their stuff from Evansville to Rochester with defendant because I had done considerable shipping with them on Green river, and the defendant had requested me to get the company any business I could. * * * I did considerable shipping with the defendant on the Hook and Wilford and other boats on Green river. At the time I represented a fertilizer company. I shipped my fertilizers on their boats at so much per ton, to be delivered at different points on Green river; freight being paid by the parties receiving it in some cases and by me in some cases. I have known the defendant’s boat to carry passengers, flour, chickens, eggs, oil and other goods and merchandise for merchants doing business along the river.”
Noah Daugherty made these statements: “I am wharfmaster at Morgantown Ferry. The defendant operated towboats on Green river up to the time they went out of the river. They did the business of common carriers. They brought freight to my wharf and took freight from there. They did this in 1900 and 1901. The boats were the Hook and Carson.” Cross-examined: “Witness said they had no regular times for coming and going, no fixed terminals, Their
W. H. Fuller testifies as follows: “I was wharf - master at Morgantown wharf from — till —, 19, — . I know the defendant company. They were doing business on Green river between Evansville and Bowling Green, and operated towboats. The I. N. Hook and J. T. Carson were common carriers. They brought freight to my wharf from Bowling Green and Evansville, Ind. They received all the freight offered to them at my wharf. ” Cross-examined: “Ire-member they brought some drummer’s trunks on a barge. They brought some brick for the town, and charged no freight for same. They would not land and take on freight and passengers regularly like other boats, but only occasionally. Their chief business was towing ties.”
In appellee’s letter head was this: “Towing a specialty,” and in letter to appellants it said: “This rate we gave you is confidential, and we would not like to hear it spoken of by outsiders.”
■ The proof for defendant by J. D. Render was as follows: “I am secretary and treasurer of the Aberdeen Coal & Mining Company. We owned the Hook and Carson. They were towboats, and operated on Green and Barren rivers. We did a general towing business. We only took freight by contract, and carried it on barges. We did not hold ourselves out to the public to take freight for all who wanted to ship, but only by private contract. George Fletcher applied to me to tow the freight sued for. He talked to me by telephone from Rochester. I offered to do it for $160, he to be responsible for barge and cargo. The contract was finally settled through Mr. Walker, my bookkeeper. I told him he
Grace Davis, the pilot, testified as follows: “Occasionally she would tow a barge of stuff for others, in order to fill out her tow; and on this occasion she was towing a barge of brick. This occurred only a few times.”
In Varble v. Bigley, 77 Ky., 698, 29 Am. Rep., 435, it was held that a towboat is not a common carrier, but in that case the boat which was sought to be held liable had been simply hired to move some coal barges belonging to the plaintiff. The boat was simply furnishing the motive power. In the case before us the barge belonged to the defendant. It is not easy to see why there should be a distinction between freight put on the#steamboat Hook and freight put on the barge which it propelled, both* being the property of the defendant, and controlled by it. Whether it would carry the freight on the steamboat or on the barge was for it to determine, and its liability in either case will depend upon whether it was acting as a common carrier or a private carrier for hire. In the case referred to, the court, after examining the authorities, thus laid down the rule for determining whether a person is chargeable as a common carrier: “When a person has assumed the character of a common carrier, either by expressly offering his services to all who will hire him or by so conducting his business as to justify the belief on the part of the public that he meant to become the servant of the public, and to carry for all, he may be safely presumed to have intended to assume the liabilities of a common carrier, for he was bound to .know that the law' would so charge him, and, knowing, must have intended it. But, in order to impress upon him the character and impose upon him the liabilities of a common carrier, his conduct must amount to a public offer to carry for all who tender him such
After elaborating on this the court thus summed up the matter: “Our conclusion, then, is that a carrier of goods is not liable as a common carrier, unless he was under a legal obligation to accept the goods and carry them, and would have been liable to an action if, without' reasonable excuse, he had refused to receive them; and that he could not be liable to such an action unless he had expressly and publicly offered to carry for all persons indifferently, or had, by his conduct and the manner of conducting his business, held himself out as ready to carry for all. We are aware that the rule has not always, and perhaps not generally, been thus restricted. But, as we have already said, the law applicable to common carriers is peculiarly rigorous, and it ought not to be extended to persons who have not expressly assumed that character, or by their conduct and from the nature of their business justified the belief on the part of the public that they intended to assume it.” This case is in accord with the great weight of authority. (Hutchinson on Carriers, secs. 47-57.)
Appellants rely upon Gordon v. Hutcherson (Pa.), 37 Am. Dec., 464, Chevallier v. Strahan (Tex.), 47 Am. Dec., 639, and the cases therein cited. But these cases are exceptional, and nothin keeping with the general current of authority (Hutchinson on Carriers, secs. 49, 52), and are the authorities referred to by the court in Varble v. Bigley when it said: “We are aware that the rule has not always, and perhaps not.
The case of Robertson v. Kennedy, 2 Dana, 430, 26 Am. Dec., 466, is not in conflict with it, for in that case the plaintiff introduced proof showing that the defendant was in the habit of hauling for hire for all who applied to him. The same is true of the case of Farley v. Lavary, 107 Ky., 523, 21 Ky. Law Rep., 1252, 54 S. W., 840, 47 L. R. A., 383.
' After collecting a large number of cases, Hutchinson on Carriers, sec. 55, thus states the rule: “These cases undoubtedly state the law as it is settled in England and generally understood in this country, and it would seem clear that no one should be treated as a common carrier unless he has in some way held himself out to the public as a carrier in such manner as to render himself liable to an action if he should refuse to carry for any one who wished to employ him in the particular kind of service which he thus proposes to undertake; otherwise he does not come within the description, nor can he be subjected to the liability of the common carrier when the goods have been lost without negligence.”
The question we are to determine is whether under this rule there was any evidence that the defendant held itself out to the public as a carrier in such a manner as to render it liable to an action if it had refused to carry the plaintiff’s brick when applied to for that purpose. While one of the witnesses states that the boats did the business of common carriers, and another states that they were common carriers, this seems a mere expression of an, opinion óf law. The witnesses may have used the words in their popular sense, meaning that the boats carried for the public generally or without-distinction. But, however this may be, the court must determine the law from the
The rule is thus stated in 6 Cyc., 366: -‘A common carrier is one who holds himself out as ready to engage in the transportation of goods for hire as a public employment, and not as a casual occupation. It is sometimes said that one who undertakes for a single occasion only to carry goods for any person who desires to employ him for that occasion is a common carrier for that transportation. But the cases of this kind will be found to be those in which, whilst the business of carriage is not the exclusive, or perhaps the principal, business of the one sought to be charged as a carrier, it is incidentally his business for the time being. In general, the liability of carrier does not attach to one who does not hold himself out as pursuing that business, but in the particular case, and in each particular case, acts only in consequence of a special employment.”
Under the rule that if there is a scintilla of evidence the question is for the jury, we conclude that under the evidence the jury should have been left to.
The court should have instructed the jury that if the defendant had expressly and publicly offered to carry for all persons indifferently, or had by its conduct and the manner of conducting its business held itself out as ready to carry for all on such trips as the boat was then making, then it was a common carrier,, and they should find for the plaintiffs, although there was. no negligence on the part of the defendant in the loss of the brick; but if it had not offered to carry for all persons indifferently, or by its- conduct or the manner of conducting its business held itself out as ready to carry for all, but only in each case acted in consequence of a special employment, it was not a common carrier, and was not liable, unless.the bricks were lost by its negligence.
Judgment reversed, and cause remanded for a new trial and further proceedings consistent herewith.