Bean v. Sturtevant

8 N.H. 146

Opinion

Parker, J.

As a general rale, if the proprietors of a stage coach for passengers carry goods also for hire, they are in respect to such goods to be deemed common carriers. Story on Bailments, 325. This rule, however, cannot be applied, with justice, where a large sum of money is committed to them for transportation, and the compensation paid is such as is usually received for a trifling errand. 7 N. H. Rep. 164, Shelden vs. Robinson. But it is not necessary to consider this matter farther here. If these defendants are to be considered as mere bailees to carry for hire, and responsible for ordinary negligence only, they are answerable for the diligence and fidelity of those acting in their employ, and the result must be the same as if they were common carriers. If they were the bailees, so that any responsibility rested upon them, as the money was never delivered the duty imposed by the bailment has not been discharged ; and it is not pretended that the case furnishes any legal ground of excuse. The question then is, whether the defendants can be held chargeable with the custody of the money, or whether the drivers alone are to be considered as the bailees.

In Allen vs. Sewall, 2 Wend. Rep. 327, the supreme court of New-York held that “ an arrangement between ‘ the owners of steam-boats and their captains, allowing the ‘ avails of carrying bank bills as a privilege to the latter, ‘ does not discharge the owners, unless the shipper contracts ‘ with the captain himself, knowing that he receives the ‘goods on his own account, as part of his privilege, and not ‘ in his character of agent for the owners.” Vide, also, Story on Bailments 327; 1 Pick. 51, Dwight vs. Brewster.

* The owners of the steam-boat were held in that case to be common carriers ; but whether common carriers or bailees to carry for hire, the same principle must govern in this respect.

In the present case, reference was had, in the original contract between the defendants and Drake, to the amount of compensation which the latter would probably receive for carrying small packages, and that formed a part of the consideration for which he was to serve in the employ of the defendants. It may well admit of doubt whether, under these circumstances, the defendants were not chargeable with the custody of whatever was committed to Drake to carry, even by a party who had knowledge of the agreement, unless such party made a contract with Drake as principal. Probably Bickford was employed under a contract similar to that made with Drake, although this does not distinctly appear. But, whatever might have been his contract, there is nothing in the case to show that the plaintiff had any knowledge that the compensation for carrying this package of money was not to be accounted for to the defendants, in the same manner as the fare of passengers, or the sums received for conveyance of goods of greater bulk.

The sum paid may be regarded as part of the wages given by the defendants to the drivers for their services; but if it were not so, as the authority of the drivers to appropriate it to their own use was from an arrangement between them and the defendants, of which the plaintiff does not appear to have had knowledge, the defendants are chargeable with the custody of the money through their servants, and must be responsible for its loss.

Judgment for the plaintiff.

14 Pick. 289, Cobb vs. Abbot.