— A common carrier, as generally defined,, is one whose usual or regular business is the transportation, for reward, of goods from one place to another, for such persons as choose to employ him. To originate the exceptional liability of the common law, although founded on reasons of public policy, and to create the relation, there must exist privity of contract, express or implied, and a title to compensation for the services. Public policy operates on those only who transport for reward or hire. Where there is no right to remuneration, the party who carries incurs no liability other than that of a gratuitous bailee. — Cit. Bank v. Nan. St. Co., 2 Story, 16; Knox v. Rives, Battle & Co., 14 Ala 249.
Between a contractor for carrying the public mails, and the sender of letters, there is no privity of contract, and the contractor has no right to, and receives no remuneration from the sender. The Government undertakes the transmission of the mails, and receives pay therefor by the postage charged. The contractor’s contract is with the Government, and by it his compensation is paid. ITe owes a duty, not to the sender of letters as an individual, but to the integral public, springing from his agreement to carry the mails. The public mail is not the proper subject" of a common carrier’s charge, and the extraordinary responsibility attached by law to such employment does not attach to a mail-contractor. He does not become an insurer of the safe transportation of mail matter; the extent of his liability is the same as that of a bailee for hire.
*365The railroad company was not transformed into a common carrier as to the mails, because, being engaged in the regular business of transporting goods for the public, it was, at the same time, carrying the mails by direction and employment of the proper department of the Government. The occupation of the company was of a dual character. It was aetiug in two capacities, created and regulated by separate and distinct contracts and employments. The liability of the defendant can not, therefore, be determined by the rules governing the responsibility of a common carrier.
It is well settled, that public officers are exempt from liability for the acts and defaults of those employed under them to assist in the performance of their official duties. Notwithstanding the vigorous dissenting opinion of Lord Holt, since the decision in Lane v. Cotton, 1 Ld. Ray. 646, it has been generally held, that neither the postmaster-general, nor an assistant or local postmaster, is responsible for the negligence or willful wrongs of the persons employed in assisting him in the discharge of his public dnties and functions. The rule rests on considerations of public policy, and on the ground that such persons are acting in the capacity of public agents, and not as the private agents of the officers. It is conceded that a public officer is liable for his own misconduct or negligence, and for the misconduct or negligence of his subordinates, where he is invested with their selection or appointment, and from carelessness or unfaithfulness appoints incompetent or untrustworthy persons.— Wiggins v. Hathaway, 6 Barb. 632. As founded on like reasons and considerations, the exemption has, by some of the cases, been extended to mail-contractors.— Connell v. Woorhees, 13 Ohio, 523; Hutchins v. Brackett, 22 N. H. 252; Foster v. Metts, 55 Miss. 77.
The idea of agency imports a delegation of power by one authorized to confer it. The relation exists between the appointee and the person who nominates or appoints, either directly or by re-delegation, or ratification — a person to whom the agent is responsible for the manner in -which he executes the authority. The responsibility of a public officer, for the acts and defaults of those employed by or under him, depends upon the question, whether such persons are acting in the public service, as agents of the Government, by direct appointment, or by authorized sub-appointment, or whether they are his private agents and servants, employed by virtue of his individual and independent authority, and paid by, and responsible to him, — whom he can employ, retain, and dismiss at will; “ in other words, whether the situation of an inferior is a public office, or private service.” — 1 Am. Lead. Cas. 785. If the subordinates are the agents and servants of the officers, not *366by an official employment, but to assist him as an individual in the discharge of his official service, the reason ceases for the non-application of the doctrine of respondeat superior, and for exemption from liability for their misconduct or negligence.
The contractor, being the person who contracts with, and is paid by the Government, and who gives a guaranty for the faithful discharge of the service, is the public agent, if such contract constitutes an agency. He is the one directly responsible to, and with whom the Government deals. He employs his own carriers, who are paid by him, and who are not known to the Government, other than as his employees. As to civil responsibility, the contractor stands between the carrier and the Government; although, for the purpose of public security, an oath may be required of the carrier, and penalties imposed for violations of the laws of the postal service. In a sense, the carrier may be said to do work for the Government, not as an agent, but as one employed by the contractor, in his own name, for his individual benefit, and on his personal responsibility, as necessary help to do the service which he has contracted to do. Laborers, employed by a contractor for the construction of naval vessels, or for the erection of public buildings, may, in the same sensb, be said to do work for the Government, but they are not public laborers. We approve and adopt the legal propositions, as to the liability of a contractor, maintained and asserted in Sawyers v. Corse, 17 Grat. 230.
The mail-pouches were carried on the baggage in the baggage-car, to which persons employed on the train had access, and neither the conductor, nor any one else, had been sworn as a mail-carrier. It was held in Bishop v. Williamson, 2 Fairf. 295, that the postmaster was liable for the acts of one whom he permitted, without having been sworn, to have the care and custody of the mail in his office. Such person was said to be acting as the agent or servant of the postmaster.
The regular and usual business of the defendant was a carrier of passengers and goods. Its railroad was, by law, an established post-road ; and by direction of the post-office department, was carrying the mails between Eufaula and Clayton. The agents and servants on the train were not employed for the special business of transporting the mails. They were employed in the general business of transportation, and, under such employment, were used in the incidental service of carrying the mail matter. Being thus generally engaged, and rendering such general service, as the private agents and servants of the defendant, the incidental service in carrying the mails does not impart to them the character of public agents and servants. If the money of the plaintiff, inclosed in a registered letter, was lost by the negligence or want of care of the agents *367or servants of the defendant, the defendant would be liable in a proper form of action.
We have said the defendant is not a common carrier in the transportation of mails, and does not incur the extraordinary-liability imposed by the common law on carriers; that the liability of the defendant is that of a bailee for hire. A bailee for hire is not responsible for the willrul wrongs of his agent, unless done in the course of his employment. If the money of the plaintiff was stolen, and the negligence of the defendant did not cause the theft, the defendant is not liable. The law “ raises no presumption either way, from the mere fact of theft. It neither imputes the theft to the neglect of the party, nor, on the other hand, exempts him from responsibility from that fact alone. But it decides upon all the circumstances of the case, and thence arrives at the conclusion, that there has been, or there has not been, a due degree of care used.” — Story on Bail. § 39 ; Foster v. Essex Bank, 17 Mass. 479 ; Moore v. May. & Ald. of Mobile, 1 Stew. 284. The burden is on the plaintiff, to show that the theft was occasioned by the negligence of the defendant.
Whether the extent of the liability of the defendant be the exceptional liability of a common carrier, or the analogous liability of a bailee for hire, it must be enforced on proper pleadings, and in a proper form of action. “A conversion, in the sense of the law of trover, consists either in the appropriation of the thing to the party’s own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it, in exclusion or defiance of the plaintiff’s right, or in withholding the possession from the plaintiff, under a claim of title inconsistent with his own.” — 2 Green, on Ev. § 642; Conner & Johnson v. Allen & Reynolds, 33 Ala. 515. Where the circumstances do not amount to an actual conversion, a demand and refusal must be shown. A refusal to deliver on demand is evidence of a conversion, and not a conversion itself; and the demand and refusal must occur prior to the commencement of the suit, as the plaintiff’s cause of action must be complete at that time. — 2 Green, on Ev. § 644; Parker v. Middlebrooks, 24 Conn. 207. Trover will lie, only, where the defendant is guilty of a conversion, which implies a wrongful disposition, appropriation, worsting, destruction, or withholding of the property. The essential element of a conversion is m.alfeasanoe. The action will lie against a common carrier, for a misdelivery, or an appropriation of the property to his own use, or for any act of dominion or ownership, antagonistic to, and inconsistent with the plaintiff’s claim or right. But trover will not lie against a carrier, for goods lost by accident or stolen, or for non-delivery, unless there be a refusal to deliver while *368having possession ; nor for any act or omission, which amounts to negligence merely, and not to an actual wrong. — Packard v. Getman, 4 Wend. 613; Maynin v. Dinsmore, 70 N. Y. 410. So, also, a bailee is not liable for a conversion, who deals negligently with goods intrusted to him. — Heald v. Carey, 11 C. B. 977. On like principles, trover will not lie against a mail-contractor, for money lost by negligence, or stolen, unless the theft was authorized by him.
We do not understand, as is insisted on, that the evidence shows, or tends to show, that the defendant is guilty of any wrongful disposition, or appropriation, or withholding of the letter containing the money, other than a failure to deliver on the commencement of the suit. It appears that the letter was stoleu by some one; but whether by a third person, or a servant of the defendant, the defendant is not liable as for a conversion. In Conner & Johnson v. Allen & Reynolds, 33 Ala., supra, it was said: “ Trover is one of the actions, the boundaries of which are distinctly marked, and carefully preserved by the Code. A conversion is now, as it has ever been, the yist of that action, and without proof of it the plaintiff can not recover, whatever else he may prove, or whatever may be his right of recovery in another form of action.” On the facts shown by the record, the defendant is not liable as for a conversion of the money.
Reversed and remanded.