
    Sophie Robinson, Pl’ff, v. George H. Cornish, Def’t.
    
      (City Court of New York,
    
    
      Trial Term,
    
    
      Filed December, 1890.)
    
    Carrier—Expressman—Liability fob goods entrusted to him.
    A person who makes it a business to solicit from the public the carriage of trunks and packages for hire is a common carrier, and is bound to use ordinary diligence in the custody of goods entrusted to him. When the goods have been stolen from him, he is bound to show that he used the utmost care that a prudent man would use to protect his property from such casualties, and, in the absence of such proof, is liable for the value of the goods.
    The parties have by stipulation submitted this cause upon the following agreed state of facts:
    1. That for several years past, the defendant has earned on the business of a city expressman, with a place of business at 168 East Sixty-eighth street, in the city of New York, and that as such expressman he was licensed by* a permit or license from the mayor of the city of New York in the usual form issued to city express-men ; which license or permit may be produced upon the trial and offered in evidence
    2. That on the 11th day of June, 1889, the plaintiff called at defendant’s said place and requested him to carry a parcel for her from 111 East Sixty-ninth street to 65 West Ninety-seventh street, in said city.
    3. That the defendant’s express wagon, in charge of and driven by David Thomas, called at 111 East Sixty-ninth street and took said package from the hands of Minnie Collins, who had been entrusted with it by plaintiff to deliver to the defendant.
    4. That the said wagon was driven by said David Thomas, and taken care of by Mm, and that the said package was stolen from the defendant’s wagon at some time or place after the receipt of the same, and before any offer of delivery of it to 65 West Ninety-seventh street. . That it was not stolen by the said driver, nor with the knowledge or connivance of the said driver or the defendant.
    5. That the value of the articles in the package was one hundred and eighty four ($184) dollars.
    
      James J. Thomson, for pl'ff; Fromme Brothers, for def't.
   Ehrlich, J.

A person who makes it a business to solicit from the public the carriage of trunks and packages from place to place for hire-is to all intents and purposes a common carriel’. The test seems to be whether he holds out, either expressly or by a course of conduct, that he will carry, for hire, the goods of all persons indifferently who send them to him. See 4 Lawson’s Eights and Eem., § .1789: The definition given fits the defendant’s occupation.

The defendant received a license from the mayor “to set up and keep two public express wagons * * * to be used and employed in the conveyance and transportation of goods, wares and other things, from place to place in said city, for hire, wages or pay for such transportation, he conforming to and obeying in all things the ordinances of the common council.” One of these ordinances provides that the licensee shall be responsible for all articles intrusted to the driver of the wagon. See Eev. Ord. of 1881, p. 251, § 383. In Richards v. Westcott, 2 Bosw., 589, it was held that a city express company, engaged in carrying parcels between the city of New York and Brooklyn, and in carrying trunks of travelers to and from the passenger depots of the various railroads, are common carriers, and perform their duties under the responsibilities of common carriers.

A similar ruling was made by thesupreme court of Illinois. Parmelee v. Lowitz, 74 Ill., 116. The courts of New York have, in several cases, held that joint stock companies engaged in the express business were common carriers. See Russell v. Livingston, 19 Barb., 346; Sherman v. Wells, 28 id., 403; Sweet v. Barney, 23 N. Y., 335 ; Lawson on Carriers, § 1. As the character rather than the magnitude of the business is the test of the liability, it is difficult to discover any distinction between the cases cited and the one at bar. The loss complained of not having been caused by the act of Grod, or the public enemies, the defendant, as a common carrier, is bound to make reparation.

Even a private carrier is bound to use ordinary diligence, and is liable if he does not. Open theft by superior force is excusable, but secret purloining shifts the burden of proof, and compels the carrier to show that' he used the utmost care which a prudent man would use to protect his property from such casualities. Browne on Carriers, Ed. of 1873, pp. 30, 31. The defendant gives no information whatever concerning the loss, and I am unable to learn when, where or how it occurred. In short, the defendant seems to be in a blissful ignorance concerning these important elements, and his driver has given no satisfactory account of the disappearance of the property. Aside from liability as a common carrier, the defendant, even as a private carrier or as a bailee for hire, would be liable on the facts, on the theory of negligence. Upon the facts, the plaintiff is entitled to the value of the property, with interest thereon from the time of the loss.

Judgment accordingly, with costs.  