Blanchard v. Isaacs, 3 Barb. 388

Blanchard v. Isaacs

3 Barb. 388 | N.Y. Sup. Ct. | 1848

By the Court,

Willard, J.

A common carrier has been defined to 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 place. (Story on Bailm. § 495.) In this general sense of the term, Blanchard was not shown to be a common carrier. There was no evidence that he held him-V self out as a carrier of goods for hire, or that he ever carried any goods in his stages, other than the ordinary baggage of passengers. It is well settled, in this state, that the proprietor of a stage, which regularly carries for hire passengers and their baggage, is responsible as a common carrier for the baggage, if lost, although no distinct price be paid for its transportation. The compensation for its conveyance, in contemplation of law, is included in the fare of the passenger. And by baggage, we are to understand such articles of necessity, or personal convenience, as are usually carried by passengers for their personal use, and not merchandize or other valuables, although carried in the trunks of passengers, which are not designed for any such use, but for other purposes, such as a sale and the like. (Orange County Bank v. Brown, 9 Wend. 85. Pardee v. Drew, 25 Id. 459. Hawkins v. Hoffman, 6 Hill, 586.)

It is well settled, also, that in order to charge a common carrier as such, there must be a. delivery of the articles, for transportation, to the carrier or his servants or his agents. (Tower v. The Utica and Schenectady R. R. Co. 7 Hill, 47.) If delivered to a servant, it must be to such servant as is entrusted to receive the goods, and not to one engaged in other *390duties. In the case of Middleton v. Fowler (1 Salk. 282,) it was ruled by Holt, Ch. J. that the master of a stage coach was not chargeable for goods lost by the driver, unless the master takes a price for the carriage of the goods. And he expressed the opinion that a stagecoachman was not within the custom as a carrier, unless he takes a distinct price for the carriage of the goods. This latter intimation has been qualified by us, by considering that with respect to the mere personal baggage of the passenger, the price of transportation is included in the passenger’s fare. (See 9 Wend. 85; 25 Id. 459; 6 Hill, 586; supra.) The responsibility of a common carrier does not commence until there has been a complete delivery to him. (2 Kent’s Com. 604. Packard v. Getman, 6 Cowen, 757.) And the delivery must be to the proper person. (3 Taunt. 144.)

In the present case there was no complete delivery of the coat to Blanchard, the proprietor. The driver apprized Kelly that he had no right to enter it on the way-bill, but said he would take it to the next agent at Schuylerville and have it done. The driver was made the servant of Kelly, to take the coat to the stage agent in Schuylerville. It is not shown to have been delivered to the latter; and of course it is not shown to have come to the knowledge of the defendant below. Nothing was paid for its transportation, and it would, under the circumstances, be unjust to make the stage proprietor responsible for its loss.

There was an entire failure of proof to make the defendant liable under either count of the declaration ; and the judgment of the justice therefore must be reversed.

Judgment reversed.