I concur in the conclusion reached in the majority opinion upon the sole ground that the trial court erred in failing to give Seaboard's proposed instruction No. 13 defining a contract carrier. The definition of a contract carrier contained in the instruction which the court gave was incomplete and may have operated to confuse the jury. This was the view taken by. the trial court in ruling on the motion for a new trial, and it is impossible for us to say that such was not the case. If the instruction proposed by Seaboard had been given, the jury would then have had before it a correct definition of a contract carrier and would have been in a better position to determine the liability of Rampone Brothers for the loss sustained by Seaboard.
I do not agree with what is said in the majority opinion relative to the instructions given by the trial court defining a common carrier. I see no inconsistency in these instructions and they are both correct. The instruction criticized in the majority opinion as being too broad is as follows: “Everyone who offers to the public to carry persons, property or messages, is a common carrier of whatever he thus offers to carry. To impress upon one the character of a common carrier, it must be shown that he undertakes generally and for all persons indifferently to carry goods and deliver them for hire; and that his public profession of his employment be such that if he refuses, without some just ground, to carry goods for every one, in the course of his employment, and for a reasonable and customary price, he will be liable to an action. ...” While the foregoing instruction defines a common carrier in general terms, I do not believe it can be said to contain an incorrect statement relative to the requirements of the law necessary to create the status of a common carrier or responsibility which one assumes in acquiring such status. It is true that as stated in another instruction given by the court to the jury: “A ‘highway common carrier’ is one who dedicates and holds out his transportation services generally to the public, or a substantial portion thereof, for compensation, for the transporta*794tion of some certain variety or varieties of freight, at rates filed with the Railroad Commission of the State of California and who usually or ordinarily operates between fixed termini or over a regular route. ’ ’ The definition contained in the instruction last quoted is more limited and specific than that contained in the portion of the instruction first quoted, but it is clear that the instruction first quoted deals with common carriers generally and the instruction last quoted deals specifically with “highway common carriers” which operate upon the highways in this state. While the court would have been justified in this case in submitting to the jury a definition of a “highway common carrier” only, I do not think it can be said that the court committed prejudicial error in giving a definition in general terms as to what constitutes a common carrier.
Furthermore, it was the contention of Seaboard that in the hauling of the particular load of army supplies involved in this action Rampone Brothers was not operating under a certificate of public convenience and necessity as a “highway common carrier” but was acting as a “radial highway common carrier” and it was the contention of Rampone Brothers that they were acting as a “highway contract carrier.” Such being the contention of the respective parties, there is little likelihood that the jury could have been confused by anything said in the instructions relative to common carriers generally.