74. Liability as an insurer.-As to the carrier of goods there is a tradition that its extreme responsibility as a virtual insurer by law is a result of its vocation, which gives it peculiar opportunities for appropriating the property of the shipper. As a matter of fact, there was no case holding the carrier responsible as an insurer until the time of Lord Mansfield.51 But as the law has been since that time a carrier is thus liable as an insurer, whether or not the loss or injury is its fault, or whether or not it contributes in any way to the loss. The most striking cases of this sort in modern times were those holding carriers liable for the damage done to goods in their charge by such fires as the Chicago fire, where not the slightest negligence could be imputed to them in any respect.52 In England53 today the innkeeper is held liable for all loss, except that caused by the act of God, or the king's enemies. In America 54 perhaps a majority of the states hold the innkeeper liable to the same extent as a common carrier; but there are many jurisdictions which hold him liable. only for failing to guard the goods of guests.

75. No insurance for personal injuries.-Strange as it may seem, this law that holds the common carrier of goods as an insurer of them does not extend to public carriers of passengers, such carriers being held liable only for negligence. Until the middle of the nineteenth century this whole matter was in doubt both in this country and abroad. Carriage 51 Forward v. Pittard, 1 T. R. 27 (Eng.), LEADING ILLUSTRATIVE CASES. 52 Merchants' Despatch Co. v. Smith, 76 Ill. 542.

53 Richmond v Smith, 8 B. & C. 9 (Eng.).

54 Mason v. Thompson, 9 Pick. 280 (Mass.).

of passengers is comparatively recent, and in the first cases there was a disposition to hold the proprietor of the coach to warrant its roadworthiness.55 Soon after the introduction of the railroad it was established by the courts that there was a difference, founded upon substantial reasons, between the liability of the common carrier of goods and the common carrier of passengers.56 The former was held to warrant the safe carriage of the goods, except against loss or damage from the act of God or the public enemy; but the latter was held to contract only for due and proper care in the carriage of passengers. The same applies to innkeeping; the innkeeper is at most responsible for proper care in the protection of his guest; whereas he is liable as an insurer of the belongings of the guest within his inn.58

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76. Only compensated service insured.-It has always been law that free service is not common carriage within the rule holding carriers as insurers.5" But many services, loosely spoken of as free, may be seen not to be gratuitous upon an examination of all the facts. Thus, where in the case of grain shipments the bags are returned without further charges it is properly held that there is sufficient considera

55 Compare Bremner v. Williams, 1 C. & P. 414 (Eng.), LEADING ILLUStrative Cases, and Ingalls v. Bills, 9 Met. 1 (Mass.).

56 See Readhead v. Midland Ry. Co., L. R. 4 Q. B. 379 (Eng.), and Thayer v. Old Colony St. Ry. Co., 101 N. E. 368 (Mass.).

57 Boyce v. Anderson, 2 Pet. 150 (U. S.), (not an insurer of slaves), LEADING ILLUSTRATIVE CASES.

58 Sandys v. Florence, 47 L. J. C. P. 598 (Eng.), (not an insurer of guests).

59 Fay v. The New World, 1 Cal. 348.

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tion for the whole transaction to make the carrier liable as an insurer when bringing them back. So, in the case of shipments C. O. D., it is properly held that the carrier is liable strictly as such in bringing back the funds collected.61 Where the service is in reality gratuitous, however, the carrier is liable only for wanton injury or gross negligence.62 Not being in the least engaged in public employment in gratuitous service the carrier is not bound therein to the utmost care, or even due care.

77. Carriage of baggage compensated.-The carrier from time immemorial has taken the necessary luggage of the passenger along with him without additional charge. The carriage of this proper baggage is included, according to the general understanding, in the price paid by the passenger for his transportation. But baggage strictly includes only those things necessary for the convenience of the traveler during his journey. The carrier is liable for the traveling paraphernalia of the passenger, such as clothing and toilet articles. But it is not liable for any merchandise which he may be taking along with him in his trunks, such as cloths and bric-a-brac. Moreover, as haggage is theoretically for use during the journey, it must go with the carrier.65 If, therefore, it is sent otherwise than along with the passenger, the carrier is not responsible.

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60 Pierce v. Milwaukee & St. P. R. R. Co., 23 Wis. 387. 61 The Emma, Fed Cas. No. 18218.

62 Perkins v. Wright, 37 Ind. 27.

63 New York C. & H. R. R. Co. v. Fraloff, 100 U. S. 24.

64 Michigan Central R. R. Co. v. Carrow, 73 Ill. 348.

65 Beers v. Boston & A. R. R. Co., 67 Conn. 417, 34 Atl. 541. 66 Wilson v. Grand Trunk R. R. Co., 56 Me. 60.

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But, if the carrier forwards it by another conveyance for its own convenience, the case is different.

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78. Abnormal liability rigidly confined.-It is significant that the carrier's liability as an insurer is not extended to other employments, however analogous, even when conducted upon a public basis. Bridge proprietors are differentiated from carriers, because they do not take possession; and wharfingerses are held not to be carriers, because they do not transport. Telegraph companies have been called carriers, and irrigation companies conveyors; but never have the courts acted upon this language to the extent of holding them liable as insurers. The treatment of employments analogous to innkeeping, has been similar. A restaurant, as has been seen, is not considered an inn, because only food can be had there; and a lodging house is not an inn, because one may only sleep there. Although a steamboat 69 with rooms and meals is much like an inn, and a sleeping-car70 with a buffet differs but little, the cases are almost unanimous in holding that there is no insurance liability in connection with these

services.

79. Extent of normal liability.-Illustrations of the true extent of liability in public employment according to modern notions, may be drawn from the other public callings indiscriminately. These are all businesses of the highest importance, requiring a proportionate degree of care in their conduct. To

67 Kentucky & I. Bridge Co. v. Louisville & N. Ry. Co., 37 Fed. 567. 68 Chattock & Co. v. Bellamy Co., 64 L. J. Q. B. 250 (Eng).

69 Clark v. Burns, 118 Mass. 275.

70 Dings v. Pullman Co., 154 S. W. 446 (Mo. App.).

require an extraordinary degree of care and skill in the business of sending messages by telegraph"1 well exemplifies the general rule of care proportioned to the service undertaken. This requires special skill as well as unusual care; if the work is peculiarly difficult, greater skill is required. Similar rules are laid down for the provision of proper service by telephone companies. They must maintain the plant according to the highest standard of the art.72 In the case of water supply the companies are not held to guarantee the purity of the water furnished; and, indeed, nothing like absolute purity is to be expected when the supply must be taken from the turbid streams of the locality." But the company will be held liable for supplying polluted water, where their negligence in not safeguarding their water supply is shown.

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80. Public businesses requiring peculiar care.— In regard to the liability of gas companies to their patrons in course of supplying them, the cases from the outset have held the companies to that high degree of care which the peculiar circumstances of this service demands. They deal in, and furnish to, their patrons a dangerous, deadly, explosive, and inflammable element; and they are, therefore, held to the highest degree of care and caution, including a continuing duty of oversight and inspection. It is

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71 Leonard v. New York A. & B. E. M. Telegraph Co., 41 N. Y. 544, LEADING ILLUSTRATIVE CASES.

72 McLeod v. Pacific Telephone Co., 52 Ore. 22, 94 Pac. 568.

73 Green v. Ashland Water Co., 101 Wis. 258, 77 N. W. 722.

74 Grand Junction Water Co. v. Grand Junction, 14 Colo. App. 424, 60 Pac. 196.

75 Holly v. Boston Gas Light Co., 8 Gray 123 (Mass.).