Self v. Dunn & Brown

McCay, J. As a general rule, a ferryman is a carrier, and, under certain circumstances, he is a common-carrier: Angell on Carriers, section 82. But a carrier is one who transports goods for hire: Revised Code, section 2039. A common-carrier is one who pursues the business constantly or continuously, for any period of time or any distance of transportation : Code, section 2040. One who “ pursues the business.” What business? The business of carrying goods for hire. A carrier is bound to ordinary diligence. A common-carrier can give no excuse for loss or damage but the act of God and the enemies of the State, and even then he must use extraordinary diligence: Revised Code, sections 2039, 2040. And this is but a restatement of the common law, by Jones, Story, Angell and other writers upon the subject. To make one a common-carrier, he must be entitled, either by the bargain or by implication, to toll or hire. This whole question, in a case very like this, in all its details, was before the Supreme Court of South Carolina, in the case of Littlejohn vs. Jones, 2 McMullin’s Reports, 366. That was a case of a ferry — a private ferry — used like this, as an appendage to a mill. There, however, it often happened that pei’sons, other than customers to the mill, passed and paid ferriage; but it was understood that the payment was optional, and went to the servant, the main purpose of the ferry being to pass the customers to the mill. The Court held, in that case, that the mere fact that persons paid was not sufficient; the circumstances must be such, as that there [531] is either an express or an implied promise to pay. The use of it, as an appendage to the mill, did not alter the ease. The ferryman, in this case, was a mere mandatary, a bailee, not for hire, and is only liable for gross negligence: Revised Code, 2078. This was not even a chartered ferry, but a simple accommodation of the mill-owner to his customers. It is very subtle reasoning to say that the increased custom to his mill was his compensation. But one rarely does any act of favor to others that does not, at length, repay him. Is it fair to call that hire? We have given a good deal of search to find a case where such incidental benefits, coming to a mandatary, have been held to change his character and make him a bailee for hire, but have found none. We think the charge was wrong on this point. The defendant was only liable for gross neglect, unless he was in the habit of charging toll: Revised Code, section 734. Judgment reversed.