rigidly confine it to the exact situation for which the law was originally laid down.

§ 969. The service must be upon a public basis.

2

By the same law a common carrier, who has in the particular case undertaken the service upon a private basis, is not liable as an insurer. Nor is the innkeeper, who has accepted in some other capacity than as a guest one lodging with him, liable for more than due care. As all of these distinctions have been elaborately made in previous chapters it will not be necessary to repeat here what has been said as to the difference between a public employment and a private enterprise, nor need the distinction which exists between acceptance upon the public basis and acceptance upon a private basis be emphasized further.

§ 970. Service undertaken gratuitously.

It has already been seen that the prepayment of a rea

1 See particularly:

United States.-Chicago, M. & St. P. Ry. Co. v. Wallace, 66 Fed. 506, 30 L. R. A. 161 (1895).

Arkansas.-Harvey v. Rose, 26 Ark. 3, 7 Am. Rep. 595 (1870).

Indiana. Cleveland, C., C. & St. L. Ry. Co. v. Henry, 170 Ind. 94, 83 N. E. 710 (1908).

Massachusetts.-Robertson v. Old Colony R. R. Co., 156 Mass. 525, 31 N. E. 650, 32 Am. St. Rep. 482 (1892).

Michigan.-Goup v. Wabash St. L. & P. Ry. Co., 56 Mich. 111, 22 N. W. 215, 56 Am. Rep. 374 (1885). New Jersey.-Dudley v. Camden & P. Ferry Co., 42 N. J. L. 25, 36 Am. Rep. 501 (1880).

Pennsylvania. - Fore paugh v. Delaware L. & W. R. R. Co., 128

Pa. St. 217, 18 Atl. 503, 15 Am. St.
Rep. 672, 5 L. R. A. 508 (1889).

See generally, Chapter XXII.
2 Arizona.-Haff V. Adams, 6
Ariz. 395, 59 Pac. 111 (1899).
Connecticut.-Walling v. Potter,
35 Conn. 183 (1868).

Iowa. Shoecraft v. Bailey, 25 Iowa, 553 (1868).

Maine.-Norcross v. Norcross, 53 Me. 163 (1865).

Massachusetts.-Hall v. Pike, 100 Mass. 495 (1868).

Tennessee.-Meacham v. Galloway, 102 Tenn. 445, 52 S. W. 859, 73 Am. St. Rep. 886 (1899).

Vermont.-Read v. Amidon, 41 Vt. 15, 98 Am. Dec. 560 (1868). England. Shaw v. Ray, 1 Cr. & Dix. C. C. (Ire.) 84 (1839).

See generally, Chapter XXII.

sonable compensation may be required in all public services, and that waiving that right in particular cases does not disable one from insisting on such prepayment in other cases.' And it has also been pointed out that it is possible for a person in a public service to go still further and waive all payment, and assume gratuitously the full obligations attached to the particular service. But naturally, persons engaged in public service, when acting gratuitously are disposed to cut down their liability so far as that is possible. This is peculiarly true of the carrier and the host who are held liable as insurers of goods intrusted to them when they are acting in their public capacity. But as a free service is not common service, they are not liable absolutely for goods which they have taken upon a private basis. Indeed it is said that in gratuitous service one is only liable for wanton action or gross negligence. And it is usually enough that the carrier or the innkeeper takes as much care of the goods so deposited as he would of his own. The distinction between gratuitous service and compensated service must, therefore, be made with some nicety in these two services, as it has fundamental importance in determining liability. Numerous decisions illustrate the application of these principles to common carriers 3 and innkeepers.1

1 See Chapter XIII, Topic A. See Chapter XXII, Topic D. See generally:

Alabama.-Louisville & W. R. R. Co. v. Gerson & Sons, 102 Ala. 409, 14 So. 873 (1893).

California.-Fay v. Steamer New World, 1 Cal. 348 (1850).

Connecticut.-Beers v. Boston & A. R. R. Co., 67 Conn. 417, 34 Atl.

* See generally:

Arkansas.-Wear v. Gleason, 53

541, 52 Am. St. Rep. 293, 32 L. R. A. 535 (1896).

Indiana.-Perkins v. Wright, 37 Ind. 27 (1871).

Illinois.-Rice v. Illinois Central Ry. Co., 22 Ill. App. 643 (1887).

Iowa.-Warner v. Burlington & M. R. R. R. Co., 22 Iowa, 166, 92 Am. Dec. 389 (1867).

Ark. 364, 12 S. W. 756, 20 Am. St.
Rep. 186 (1889).

1

§ 971. Compensation included in the whole transaction. In many cases, service is held to be for compensation although a charge was not expressly stipulated for. In the absence of an agreement to the contrary, when a common carrier takes goods to be carried the presumption is that he is a carrier for hire; 1 and even the intent upon the part of a carrier not to charge for his service, if not disclosed before the carriage is undertaken, will not make the service gratuitous. Many services called "free" are properly held not gratuitous upon an examination of all the facts. Thus when grain bags are by a recognized custom returned to the shipper of grain without further payment in addition to the established freight rate, the transportation of the bags back was held not gratuitous; 3 and in a similar case the carrier was held liable as an insurer for oil tanks being returned to the shipper. An important application of this principle is seen in the case of ship

Kentucky.-Adams Express Co. v. Cressap, 6 Bush. 572 (1869). Maine.-Knowles v. Atlantic & St. L. R. R. Co., 38 Me. 55, 61 Am. Dec. 234 (1854).

Michigan.-Flint & P. M. R. R. Co. v. Weir, 37 Mich. 111, 26 Am. Rep. 499 (1877).

Georgia. Stewart & P. v. Head, 70 Ga. 449 (1883).

Missouri.-Wiser v. Chesley, 53 Mo. 547 (1873).

New York.-Coykendall v. Eaton, 55 Barb. 188, 37 How. Pr. 438 (1869).

4

3

New Hampshire.-Graves v. Ticknor, 6 N. H. 537 (1834).

New York.-Beardslee v. Richardson, 11 Wend. 25, 25 Am. Dec. 596 (1833).

Virginia. Chesapeake & O. R. R. Co. v. Wilson, 21 Gratt. 654 (1872).

2 Ad. & El. 256, 4 Nev. & M. 170, 4 L. J. K. B. 29 (1834).

Canada.-Holmes v. Moore, 17 L. C. R. 143 (1867).

1 Knox v. Rives, Battle & Co., 14 Ala. 249, 48 Am. Dec. 97 (1848).

2 Gray v. Missouri River Packet Co., 64 Mo. 47 (1876).

3 Pierce v. Milwaukee R. R. Co., 23 Wis. 38 (1868).

4 Spears & G. v. Lake Shore & M. S. R. R. Co., 67 Barb. 513 (1876).

1

ments made C. O. D.; 1 it is properly held in these cases that the carrier is strictly liable as such in bringing back the funds. One important instance of this general situation has already been discussed in another connection; the carriage of proper baggage is included in the price paid for the passenger's transportation; and hence the carrier is liable as an insurer for the loss of such baggage.3 But the payment of fare only covers the transportation of proper baggage, and if the transportation of goods which are not within the limitations as to what is baggage, is imposed on the carrier, he will not be liable as a common carrier is.1

§ 972. The business must be carriage.

It is significant also that the courts have stood stiffly by their definition of carriage and refused to extend to anything else the extraordinary liability in common carriage. Services of almost exactly the same nature are not held to be subject to this law, even when these services are public in character. The courts insist upon two requisites to meet their conception of carriage; first, that the carrier shall have possession, second, that the carrier shall transport. It will be remembered that these tests came out in the earliest chapters where the public callings were discussed separately. That bridge proprietors 5 and ferrymen were not held liable as insurers as carriers

6

1 Zollinger v. The Emma, Fed. Cas. No. 18,218 (1876).

2 Kemp v. Coughtry, 11 Johns. (N. Y.) 107 (1814).

See Woods v. Devin, 13 Ill. 746 (1852).

What is properly baggage is discussed in § 875, supra.

'See Michigan Central R. R. Co. v. Carrow, 73 Ill. 348 (1874).

What is not properly baggage is discussed in § 876, supra.

See particularly:

United States.-Kentucky & I.
Bridge Co. v. Louisville & N. Ry.
Co., 37 Fed. 567 (1889).

South Carolina.-Griegsby
Chappelle, 5 Rich. 443 (1852).
See generally, § 53.
See particularly:

V.

were, although their service was recognized as public, was because they did not take possession; and the same thing was held later of towage and switching. On the other hand although wharfingers and warehousemen * took possession they did not transport, and hence were not held liable as carriers; and the cases as to log drivers 5 and flume proprietors are thus explained.

§ 973. Carrier's liability not extended to other employ

It is to be noted further that this liability of the carrier as an insurer has not been extended by the courts to employments which might possibly be considered similar enough. Even when confronted with former dicta to the effect that a certain employment was like common carriage the courts promptly said that it was not enough like it to apply the insurance liability to it. It has been said at various times as to many a calling that it was