Shelden vs. Robinson, 7 N.H. 157

Parker, J. The term common carrier is technically descriptive, and does not embrace every person who undertakes to carry goods for hire. “ To bring a person within the description of a common “ carrier, he must exercise it as a public employment; he “ must undertake to carry goods for persons generally; and “ he must hold himself out as ready to engage in the trans- “ portation of goods for hire, as a business and not as a “ casual occupation, pro hac vice.

A common carrier has, “ therefore, been defined to be one who undertakes, for hire “ or reward, to transport the goods of such as choose to “ employ him, from place to place.” Story on Bailment 322. The employment of a common carrier is attended with peculiar responsibilities. And these are defined by law, unless restricted by special notice or agreement. Thus he is bound to take all goods offered, if he has the requisite, convenience to carry ; and a refusal, without some just ground, subjects him to an action.

More than ordinary diligence is required of him, for he is answerable for all accidents, and thefts, and even for a loss by robbery. Story 328 ; 2 Kent's Com. 464 ; 4 N. H. Rep. 306, Moses vs. Norris ; 5 Bing. 217, Riley vs. Horne; 11 Pick. 42, Hastings vs. Pepper. Undoubtedly the proprietors, and the drivers, also, of stage coaches, may become answerable as common carriers. Story 325, 327 : 1 Pick. 50, Dwight vs. Brewster ; 2 Wend, 327, 340, Allen vs. Sewall. It has not been suggested that the proprietors are liable in this case ; and the evidence does not show the defendant a common carrier.

It does not show him to have exercised the business of carrying packages as a public employment, because his public employment was that of adriver of a stage coach, in the employ of others. It does not show that he ever undertook to carry goods or money for persons generally, although he may in fact have taken all that was offered, as a matter of convenience ; or that he ever held himself out as ready to engage in the transportation of whatever was requested, notwithstanding it may have been unusual for him and other drivers to carry it.

This was not his general employment, and there is nothing to show that he would have been liable had he refused to take this money — especially as he was in the service of another, and as such servant might have had duties to perform inconsistent with the duty of a common carrier. The amount to be paid for transportation is also to be considered. A common carrier is an insurer, and entitled to be paid a premium for his insurance. 5 Bing. 217 ; 4 Barn. & Ald. 21, Batson vs. Donovan ; 3 Taunt. 264, Harris vs. Packwood.

There being no evidence that any compensation was agreed on between these parties, it is to be presumed that the usual compensation was to be paid. The plaintiff might have relied on the usage upon a claim for payment. And as the sum was small, and uniform whatever might be the amount of money, it would seem very clear that no one committing a package of money to the defendant, under such circumstances, and without any special agreement, could have considered him an insurer of safety.

The law applicable to common carriers has been said to be one of great rigor, and it would be unjust to impose the responsibilities of a common carrier upon an individual, until he has so conducted, or held himself out, as to have fairly assumed them. 2 Peters 150, Boyce vs. Anderson; 12 Johns. 233, Roberts vs. Turner. A party who, without special agreement, pays the hire of a bailee, comes with an ill grace to require of the other to answer for a risk for which he has received no reward.

From the case the defendant, if he is the party answerable to the plaintiff, was a bailee to carry for hire, and as such responsible for ordinary negligence ; and this was substantially the direction to the jury. That it was put upon the general understanding is not material. Upon the first count therefore the plaintiff cannot recover. But it does not appear that the defendant is not answerable on the count for money had and received. He received the money of the plaintiff, and has never delivered it. It is incumbent on him to show that his failure to deliver has not been the result of negligence on his part.

He attempted to show that the money was stolen from him — and for this purpose he proved that he usually carried his packages in a box near his seat — that the Globe Bank had charged the Piscataqua Bank with a sum of money, as sent by the defendant on the same day, which had not been received, but had been allowed and paid — and that a person had been arrested in New-York from whom the Piscataqua Bank had received a sum of money, as part of the sum so sent, and who acknowledged that he took it from the stage that day.

If this is sufficient, a bailee may discharge himself from liability for all goods that can be concealed, by proof of the loss of a single package. The evidence, such as it is, relates entirely to a larceny of a different parcel, and that from a place where this money does not appear to have been deposited. It would be going very far, were the larceny of the other package fully proved by competent evidence, to presume that this package was put in the same place, and stolen also.

The inadmissibility of res inter alios acta, as a general rule, is well settled; and the exceptions which have been relied on, of entries in books or acts of deceased persons against their interest, and relating to facts and transactions which must have been within their knowledge, do not apply. The individual who allowed the money to the Globe ‘ Bank is not dead, but was introduced as a witness.

It did not appear that he had any actual knowledge that the money he allowed had been lost without the fault of the defendant, or that there had been an actual loss; and the confession of the individual in New-York is no part of the res gestee, and cannot bind this plaintiff in relation to money to which the confession had no reference, and which was not on that occasion in question in any manner whatever. The authorities, also, relative to the admission of the party himself, as a witness, in case of robbery, cannot avail in this case.

If they could prove any thing, it would be, not that this evidence was admissible, but that the defendant himself might be examined ; but no question of that character arises in this case to require an opinion. Verdict set aside, and new trial.