HILLSBOROUGH,

APRIL TERM, 1792.

#### - v. Jackson.

A person, who did not make it his ordinary employment, undertook to carry goods for '.¡ire ; he is not to be taken as a common carrier, and liable to the same extent, but is bound only to common prudence.

The Plaintiff, a merchant, employed the Defendant, fbr a reward, to bring goods and merchandize from Virginia, to Hillsborough, in this State, in his waggon , the Defendant received the goods in Virginia, and in bringing them to Hillsborough, when about to cross a river, the flat receded from one of the fore wheels of the wag-gon, and it ran with the goods into the river, and the goods were greatly damaged and impaired in value, The Defendant did not make it his common and ordinary employment to carry goods, but was employed on this occasion only. Moore for the Plaintiff (at a former term when this case was on trial) insisted that any peison who undertakes for hire or reward to be given him, to *20fairy goods for another, is a common carrier, and liable to indemnify his employer against all damages that may happen to the goods, except by a public enemy, or inevitable accident. He cited L. Ray. 915. Salk. 143. Bui. NisiPrius, 170. Salk. 282./ Taylor e contra, insisted that however the law may be in respect of common carriers, who undertake, like all other persons exercising public employments, for skill and diligence in their pro-tession, no such undertaking is implied, or expected, from one who undertakes, at the request of another, to perform a business which he does not make his common einploy-merit; and he is only answerable for damages where he is guilty of gross neglect.MS Bl. Gom. 165. The jury ■found for the Defendant. The Court granted a new trial, saying the verdict was against law, as the Defendant, by reason of the reward, was to be considered as a common carrier. At this term the cause being again tried, Moore for the Plaintiff, Haywood for the Defendant, who said one part of the definition of a common carrier is, “ that he was a person liable to bo sued by the Plaintiff, if he refused to carry the goods for him, for the common reward ; and is such a person who undertakes to serve all persons indifferently.” Salk. 249. 1 Ba. M. 344. Tiie word common is added to distinguish him from one who undertakes for hire, on a particular occasion, to carry goods for another, who is not answerable in all events, bui only for neglect. Cro. Ja. 262. The latter is only subject to rules of law formed on natural justice, the former is liable to an additional rule flowing from policy and dictated by necessity — lie is a public servant, employed by every one, by those who do not know him, as well as by those who do — lie has frequent opportunities of procuring himself to be robbed, or of divesting himself of ihe goods unfairly, without, a possibility of detection, and the public would have no security unless inevitable accident or irresistible force, were his only grounds of excuse, and these to be fully and fairly proven by himself. Being a person in public employment, the law requires ofhim security to the public for his good behaviour, and obtains it by ¡imposing on him general responsibility, with only two exceptions. Salk. 282. L. Bay. 918. True it is, the books say in some instances that persons carrying goods for hire are common carriers, and they sometimes speak of carriers only, without the additional word common. But these are inaccuracies, and to he *21explained or understood in a manner which accords with the spirit, not the letter of the case. A person carrying goods for hire, most be intended of one who makes it his common employment, and the means of his livelihood.— 2 L. Bay. 918 — and where it is said a carrier is absolutely liable, must be understood of a person of that description. Suppose the Plaintiff, in the present case, had gone to the Defendant’s with the common price for the carriage of goods from Virginia to Hillsborough, and required of him to proceed to Virginia and receive the goods, and to bring them to Hillsborough — .might not the Defendant have refused ? — Was he bound to undertake the business assigned him ? No, certainly he was not. And why ? Because he had not undertaken to serve the public generally; or in the words of my L. Holt, (Salk. 249,) “all persons indifferently for hire in' carrying goods from place to place.” if he is not thus bound, he is not that common carrier spoken of in the law-books, and in the cases produced, who is liable in all events, except for the acts of God, and public enemies— and lie must then stand upon the ground of a person whose common business it is not, undertaking to do an act for another at his request and for him — the employer knowing him not to be commonly conversant in tiiat business, 3 Bl. Com. 166. In other words, he is not liable to the political rule before mentioned, but to the rule only which results from natural justice, which requires no more of him than common and usual prudence, and diligence in the performance of what he has undertaken, and does not subject him to answer for accidents which have not happened for want of that prudence and diligence. Of tliis opinion were the Court, consisting of Macay and Wihiams, and under their direction, the jury found for the Defendant.

Note. — Vide, as corroborative of this decision, Jones’s Law of Bailments, 106. On the subject of common carriers in this State, vide Spicy v. Farmer’s adm’r. 2 Hay. 339 Williamson v. Branson, 1 Mur. 417. Backhouse v. Snead, Ibid. 174. Adam v. Hay, 3 Mur. 149.