
    Walker vs. Skipwith.
    PK1N( IPAL AND Agent. Distinction between general and, special agent — Stage contractor and agents — common carrier — limitation of liability of. A general agent has authority» not unqualified, but to act for his constituent in a multitude of instances. A particular agent’s authority is confined to a particular instance. 15 East, 408. The liability of a common carrier cannot be limited by secret instructions given to his general agent. When a stage proprietor has habitually carried in his coaches persons and baggage or packages, the regulations of his line and instructions to his agents not to receive goods to be carried, except as the baggage of passengers, or in the care of passengers, but at the risk oí the owner or of the person sending them, will not limit his liability for goods received by his agents, unless the owner or his agent was notified of the rule or instructions at the time of the receipt of the goods.
    In an action on the case, commenced on the 11th of April, 1836, in Maury circuit court, by Peyton H. Skipwith, against James Walker, the plaintiff, declared that whereas the defendant, on the day of February, 1835, was, and long before had, and since hath been, a common carrier of goods, chattels, persons and baggage, by a certain common stage coach or carriage, going and passing from the city of Nashville to the town of Columbia; and by himself and servants, hath been used and accustomed to carry the goods and chattels of all persons whatsoever requiring the carriage thereof from said city of Nashville to the town of Columbia, and also from the latter to the former, for certain hire or reward, to be therefor paid to the defendant; and the said defendant, so being such common carrier, on the day of February, 1835, at the city of Nashville, in consideration that the said plaintiff, at the special instance and request of the defendant, had delivered to the defendant a certain quantity of goods and chattels, to wit, one steel-mixed frock coat, of the value of forty; dollars, one box cigars of the value of dollars, and one pistol of the value of eighteen dollars, to be safely and securely carried by the defendant from the city of Nashyille to Columbia for a reasonable reward therefor, paid to the defendant for the carriage thereof, he, the said defendant, undertook and promised the plaintiff, safely and securely to carry and convey the aforesaid goods and chattels from Nashville to Columbia: and although the defendant then and there received the said goods to be conveyed and carried as aforesaid, yet, not regarding, &c. did not safely and securely carry and convey the said goods and chattels from Nashville to Columbia,but so carelessly and negligently and improvidently behaved himself in and about the carriage thereof, and took so little and such bad care thereof, that by and through the mere neglect and default of the defendant and his servants, by him employed in and about the carriage thereof, the said goods were wholly lost, &c.
    The defendant pleaded not guilty, and issue was thereupon joined. On the trial, at January Term, 1838, before his Honor Judge Dillahüntv, and a jury of Maury, the plaintiff proved by Orange Swan, that in the month of February, 1835, he put the articles described in the declaration in a box, — which box he delivered at the bar of the City Hotel in Nashville, to Mr. Lyle, who was then acting there as barkeeper, and also, as he had reason to suppose, as stage agent, with directions to forward it by the mail stage to Skipwithat Columbia; that he paid Lyle fifty cents for the transportation of the box; that Lyle said he would have the box entered on the way bill; that Lyle did not then, or at any previous time, tell him that the contractors would not be liable for any baggage unless under the charge of passengers; but that he did tell him <eo repeatedly after he knew that the box had been lost; and that at the time when Lyle told him that the box had been lost, he also admitted that he had not notified him of said rule of the contractors. The plaintiff also proved that Lyle was, at the time in question, stage agent for Walker, at his office at the City Hotel.
    The defendant proved that it had been one of the rules and regulations of the line, and that Lyle and all his other agents at ¡2js 0fgce jn Nashville, had been instructed, that no package or parcel of any kind should be sent on the stage, unless it constituted a part of the baggage of a passenger, or was under the care of a passenger; except at the risk of the owner, or person sending such package or article. Lyle swore that he had been so instructed, and, in consequence, had written a bill to that effect, and put it up at the bar. He also swore that when Swan brought the box, he notified him of this rule, but Swan said that Skipwith had directed him to send it by the first stage, and it would have to go at his risk; that Swan offered him fifty cents for the transportation of the package, and requested that it should be entered upon the way bill, but that he refused to receive the money or to enter the package; that Swan then called to the bar room servant to put the box upon the stage the next morning, which was done, as both the servant and the driver informed the witness. This was substantially the testimony submitted to the jury.
    His Honor instructed the jury, that a common carrier was a person who carried goods, &c. indifferently for all persons for hire; that if a man undertook for hire to carry goods from one point to another, either by land or water, he would be held liable as a common carrier; that a common carrier was liable for all losses or damages, except for those which happened by the act of God or the public enemies of the country; that if the defendant was in the habit of carrying goods for hire in his stages under any special limitation or restriction as to his liability, notice thereof must be fixed upon the plaintiff or his agent at the time the goods were received, or else the defendant would be liable as a common carrier; that no private instruction of the employer to his general agent would he binding on the plaintiff, unless he or his agent were notified thereof; that if Lyle was a special agent of the defendant, having power to receive passage money from persons who travelled in the stage, and nothing further, defendant would not be liable for goods received by him; for it was a principle of law that a special agent could not bind his principal by any act beyond the scope of his authority.
    The jury found for the plaintiff, and assessed his damages at 58 dollars, 75 cents. The' defendant moved for a new trial, which was refused, and the court gave judgment upon the verdict, from which the defendant appealed in error.
    January 28.
    Pillow and Cook for the plaintiff in error.
    Cahal, for the defendant in error,
    said — The points raised by this record are, 1st, as to Walker’s liability as a common carrier. 2. As to his right to have a general agent in his employment, with secret instructions unknown to those with whom he transacted the business of his principal; and 3d. The notice necessary to limit the ordinary responsibility of a carrier. As to what persons come under the denomination of common carriers, see 2 Kent, 598; 1 Saund. Pi. 320; Chit, on Con. 149; Comyn on Con. 294; Story on Bail. 322.
    As to their liabilities, see 1 Stark, 202; 2 Kent, 597, 600, 1-2; 2 Comyn on Con. 291-2-3; Story Bail. 317 and 324-5. Jeremy’s Law of Car. 11, 12, 24; 10 John. 1; 11 John 107. In Tennessee, Peck 260, and Turney vs. Wilson, 7 Yer. 340.
    1. Whether Walker was a common carrier in the common law definition of the term, cannot affect the decision in this case. Perhaps, in the strict sense of the term, there are few persons in this country who fall under the denomination. The question, whether a man is a common carrier or not, can only arise in an action on the case where a carrier has refused to transport goods when the freight has been tendered to him. But whether he is a carrier or not, if he does undertake to carry goods for hire, he is liable as a common carrier. No matter what his ordinary occupation may be, the undertaking to carry goods for hire does* pro hac vice, constitutes him a common carrier, and of course makes him liable for losses not occasioned by the act of God or a public enemy; and the burden of proof is thrown upon him to show that the loss was occasioned in a manner that will exempt him from liability. In the case of Turney vs. Wilson, 7 Yer. 340, the court say: “It has so frequently been holden by this court, that one who undertakes for a reward, to convey goods, or produce of any sort, from any place upon the river to another, becomes thereby liable as a common carrier, that it is only necessary to refer to the cases.” It was not even mooted in that case, that if had undertaken to by land for hire, he would have been subject to all the liabilities of a common carrier, but it was insisted that there was a special exemption in favor of flat boat owners on the Mississippi, and that the principles of the common law of England, established to regulate transportation on the comparatively little rivers of Great Britain, were wholly inapplicable to the unknown dangers of the Mississippi, with its constantly shifting channel, its sawyers, cut oils and eddies; and that as human skill and sagacity could not avoid many of the perils incident to the ever-changing current, and falling in banks of this great river, a special custom among boatmen might exist as to the meaning of the words “dangers of the river,” and that the court ought to allow' proof of the custom, and apply a new rule to limit the ordinary liability of a carrier; and hence we find the rule laid down in this case as applicable to carriers by water. It was always the same by land. The policy on which the rule is founded as necessary, is equally applicable to every species of transportation, and Kent, vol. 2, page 608, says explicitly, “there is no distinction between a carrier by land and a carrier by water, whether the water navigation is internal or. foreign.
    2. On the question of agency, see Paley, 162-3-4-5-6; 2 Kent, 620-1; Chit. Con. 58-9; Reeves, 368; 15 Johns. 53-4; 15 East, 400.
    Kent lays down the correct rule, which is supported by the other authorities. In treating of the powers of a general and special agent, in vol. 2, p. 620, he says, “The acts of a general agent; or one whom a man puts in his place, to transact all his business of a particular kind, will bind his principal so long as he keeps within the general scope of his authority, though he may act contrary to his private instructions; and the rule is necessary to prevent fraud and encourage confidence in dealing.”
    On the question of notice limiting the ordinary responsibility of a carrier, see Chit, on Cont. 153; 1 Saund. 333; 2 Kent. 606; Storey on Bailm. 357; 2 Stark. 203.
    Chitty lays down the law, on the authority of an adjudicated case, that “it lies on the carrier, when sued for the loss of goods, to adduce clear and explicit evidence, fixing the plaintiff, or his agent, with full knowledge of the existence of the particular notice by which such carrier attempts to obviate or limit his presumed liability.”
    January 29.
    Kent, vol. 2, p. 606, says: “According to the modem English doctrines, which may be applicable with us, carriers may limit their responsibility by special notice of the extent of what they mean to assume. The goods in that case are understood to be delivered on the footing of a special contract, superseding the strict rule of the common law; and it is necessary in order to give effect to the notice, that it be previously brought home to the actual knowledge of the bailee, and be clear, explicit and consistent.”
    At page 607, he says: “The English judges have thought that the doctrine of exempting carriers from liability had been carried too far; and its introduction into Westminster Hall, has been much lamented.” He says he “does not know whether the doctrine has been judicially established in this country, but presumes it will be, as there seems to be a disposition to abate the severity of the English rule.”
    These authorities, it is conceived, sustain the charge of the court, and the facts warranted the verdict of the jury.
   Green, J.,

delivered the opinion of the court.

In this case the law was stated with great accuracy and precision by'the circuit court, in the charge to the jury. But although no'exception is taken to the charge of the court, it is contended, that the evidence shows Lyle, to whom the box was delivered, to have been a special, and not a general agent of the defendant, because he was not authorised to forward goods by the stage, unless they were put in charge of some passenger, and therefore the jury found a verdict contrary to the law.

In order the better to apply the facts of this case to the principles of law, we will consider what is a general and what a special agency.

“By a general agency is understood, not merely a person substituted in place of another, for transacting all manner of business, since there are few instances in common use of an agency of that description, but a person whom a man puts in his place to transact all his business of a particular kind, as to buy and sell certain kind of wares, to negotiate certain contracts and the like.” Paley on Agency, 162-3. But a special agent is where one is employed about “one specific act, or certain specific acts only.” Paley on Agency, 164.

It will be seen from this definition of a general agency, that if a stage contractor puts a man in his place to transact all his business of a particular kind, as to receive, and forward passengers and baggage in the stage, and to receive payment therefor, at any particular stand or stage office, such person is the general agent of the contractor or owner of the stage. In such case, though the owner of the stage may limit the agent by a private order or direction, still he is bound for all his agent’s acts, though not conformable to his direction, if within the scope of his employment, unless this limitation upon the power of the agent be known to the party dealing with him. Paley on Agency, 163.

It is not therefore a limitation, by private instructions to the agent, that constitutes a special agency. That is a matter between the principal and agent alone, unless it be disclosed to ibe party dealing with the agent. If the agent has not acted in conformity to his commission, he is responsible to his principal. By placing the party in the situation of a general agent, the principal has been instrumental in producing the injury through his agent’s misconduct, and he ought to suffer for it, rather than a stranger, who is equally innocent with himself.

Apply these principles to the facts of this case, Lyle was the agent of the plaintiff in error, to receive money for him at Nashville, for the transportation in his stages of passengers, baggage, packages, and whatever else they were in the habit of transporting in the stage. But he was instructed to send no baggage, or package, unless it were under the care of a passenger. Now, this constituted him a general agent, for a “general authority,” says Lord Ellenborough, “does not import an unqualified one, but that which is derived from a multitude of instances; whereas a particular authority is confined to an individual instance.” Whitehead vs. Tuckett, 15 East. 400. Therefore if a general factor sell for a less price than he is authorised to take, bis sale is nevertheless valid. So if he have usually been employed to purchase silks, and he buy a commodity of a different kind, the principal is chargeable. Paley; Agency, 169.

Had Lyle’s agency, instead of extending to the business of the stage office in Nashville generally, been restricted to a few specific acts, his employer would not have been bound, unless his authority had been strictly pursued, for then it would have been the business of the party dealing with him to examine his authority. Paley on Agency, 164. But when he was constantly in the habit of receiving money for the transportation of baggage, packages, &c., and superintending and giving directions as to who, and what should be conveyed in the stages, thus exercising a general agency in the business, how was the public to know that he had private instructions never to send articles except in charge of a passenger?

If such instructions, in such a case as this, would excuse the principal from liability, innocent persons dealing with an unfaithful agent, would be constantly liable to loss; while his principal, by employing, and giving him credit with the public, would be liable to no responsibility for his frauds, provided he had given him private instructions.

This would be reversing the rule of law upon this subject. The rule is, that where one of two innocent persons must suffer, by the fraud of a third, he who enabled that person, by giving him credit to commit the fraud, ought to be the sufferer. 3 T. R. 70.

We think there is no error in the judgment, and order it to be affirmed.  