103 F. 597 | U.S. Circuit Court for the District of Eastern New York | 1900
The demurrer is to a in effect that the petitioner, while on his way to the marshal’s office in the post-office building in the city of Brooklyn, was injured by the incompetence of a person in charge of an elevator in said building, operated by the United States, which was a breach of an implied contract whereby the United States agreed to carry the petitioner safely. The cause of action exists, if at all, under that part of tlie Tucker act, of March 8, 1887 (24 Stat. 505), which permits recovery against the United States for claims founded “upon any contract, expressed or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty, if the United States were suable.” The elevator is the usual passenger elevator employed in buildings of the United States, and is devoted solely to the purposes of the government. The United States was not a cbmmon carrier in the operation of such elevator, for “no one can be considered 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 him liable to an action if he should refuse to carry for any one who wished to employ him.” Allen v. Sackrider, 37 N. Y. 341, 342. Neither did the United States expressly stipulate with the petitioner for his carriage, nor did the law imply such undertaking. The law does not imply a contract to carry even in the case of common carriers. It often happens that a common carrier of goods does make a contract for their transportation. Under existing modes of business such contracts are usually made by such carriers, and perhaps less frequently by common carriers of passengers. - If an expressed contract to carry exists, the declaration may be upon the contract, although the offended person may declare upon the duty imposed by law. But when there is a mere refusal to carry, or injury or delay, the declaration should be upon the duty implied by law, and not upon the contract, unless there be some negotiation between the parties tantamount to an agreement; in other words, a contract to carry is not implied. If it exists, it is because it has been expressed; for, where the law imposes the duty to carry, it would be idle to imply a contract to carry. When the law commands something to be done, it need and does not resort to the fiction that the party commanded impliedly contracted to do the act. Hence there is no implied contract for the reasons stated, even if the United States be regarded as a common carrier. But the true relation of the parties in fact and legal theory is this: For the purpose of transacting business