account of its bulk and weight, and it also appears that the defendant's cart is too small for such freight." § 132. Obligation to carry all goods of a class. Whatever may have been the rule laid down in some of the English and Canadian cases, it is probable that in this country a carrier who undertakes to carry certain goods of a certain sort must carry all of the same general nature. A wagoner might certainly refuse to carry very bulky goods if he had never professed to carry them," but if a wagoner had professed to carry fruit he could not refuse to carry vegetables, or if he had professed to carry tables he could not refuse to carry chairs. Everything of the same general nature with the things carried, and readily transported in the same way and by the same means, must be taken. It would hardly be possible in this country to accept the view apparently taken by the Canadian court, that a carrier might carry all other kinds of lumber but refuse to carry cedar lumber.22 TOPIC F.-REGULAR BUSINESS. 133. Special agreement. In some kinds of carriage it is necessary to make in each case a special agreement; and it has been claimed that this is inconsistent with common carriage. This seems not necessarily to be true. If all the terms of the transaction lie in the agreement of the parties it is to be sure rather difficult to find a profession of readiness to serve all. But when further facts show that the carrier is ready and willing to undertake the service for all 21 Tunnel v. Pettijohn, 2 Harr. (Del.) 48 (1836). See, 22 Rutherford v. Grand Trunk Ry., 5 Rev. Leg. (Can.) 483, supra. also. Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393 (1847); Toy v. Long Island R. R. Co., 26 Misc. (N. Y.) 793, 56 N. Y. Suppl. 182 (1899); Pender v. Robbins, 51 N. C. 207 (1858); Johnson v. Midland R. R. Co., 4 Exch. 367, 18 L. J. Exch. 366, 6 R. & Can. Cases, 61 (1849). that apply, and that the reason why it is common to make a special agreement in each case is that the individual transactions are seldom quite alike, because each applicant generally requires a little different service, it is quite possible to regard each transaction as goverened by the law of common carriage. So also, if the only matter requiring agreement is the amount of compensation, and the reason that no regular charges are established is that the individual transactions are so various in nature that it is impossible for the carrier to frame in advance a tariff of charges, the carrier may be a common carrier.1 The court say of a truckman, holding him a common carrier: "The necessity for a different charge in each case arises, of course, out of the difference of labor in handling articles of great bulk." 134. Establishment of regular charge. The establishment by a carrier of a regular tariff charge for the carriage of a certain article is evidence that the carrier is a common carrier of that article. So where an express company received a dog to be shipped to a certain place for three dollars, which was found to be the regular charge, the court remarked that" the fact that the company had established regular charges for such freight, tends to show that they were in the transportation business." 2 135. Permanent profession. The profession to serve all makes the employment a public one; and therefore the carrier who holds himself out as ready to carry for all on a particular journey or voyage is at that moment a common carrier, though this is his first journey and he has never yet carried; and this is equally the case though he 1 Jackson A. Iron Works v. Hurlbut, 158 N. Y. 34, 52 N. E. 665 (1899). 2 Southern Express Co. v. Ashford, 126 Ala. 891, 28 So. 732 (1900), 3 Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393 (1847); Fuller v. Bradley, 25 Pa. St. 120 (1855); Brind v. Dale, 8 C. & P. 207, 2 M. & Rob. does not intend to continue the profession, and makes his offer for the single journey only.* § 136. General practice. In general it may be said that to constitute public profession the business must be carried on upon the basis of indiscriminate service. If the business is carried on upon special arrangement made in each particular case, that is proof that the undertaking is private only. Again, if the business is regular, carried on by fixed practice, it will generally be held to be upon a public basis; while if it is casual, undertaken at some special time for some special reason, it is more apt to be held private. An occasional refusal to serve is not conclusive evidence that the business is private, for it may have been a stray instance of illegal refusal to serve in a business that was nevertheless public because of general practice to serve all. And on the other hand if a man has decided upon the undertaking of public business, he is as much in public service in performing his first service for the first applicant as at any later time; though the proof may in such cases be more difficult. 80, 34 E. C. L. 692 (1837); Roussiel v. Aumais, 18 Quebec Super. Ct. 474 (1900). 4 Steele v. McTyler. 31 Ala. 667, 70 Am. Dec. 516 (1858); Harrison v. Roy, 39 Miss. 396 (1860); Gordon v. Hutchinson, 1 Watts & S. (Pa.) 285, 337 Am. Dec. 464 (1841); Moss v. Bettis, 4 Heisk (Tenn.), 661, 13 Am. Rep. 1 (1871); Chevallier v. Straham, 2 Texas, 115, 47 Am. Dec. 639 (1847); Haynie v. Baylor, 18 Texas, 498 (1857). CHAPTER V. COMMON CARRIAGE INVOLVES COMPENSATION. § 141. Common carriage is compensated carriage. TOPIC A -COMPENSATED CARRIAGE. § 142. Carriage is for hire unless it is otherwise agreed. 143. Pass issued for business reasons. 144. Carrier's services in returning goods compensated. 145. Carriage of baggage is compensated. 146. Baggage carried without compensation. 147. Baggage carried apart from the passenger. TOPIC B-GRATUITOUS ARRANGEMENTS. § 148. Gratuitous carrier liable for negligence. 149. Gratuitous passenger. 150. Carriage of children and servants. 151. Riding by mistake. TOPIC C-SPECIAL CLASSES OF PERSONS. § 152. Mail clerks and express messengers. 153. Employes of the carrier. TOPIC D-CARRIAGE OBTAINED BY MISREPRESENTATION. § 154. Persons never accepted in a proper place not passengers. 155. Carriage of goods secured by fraud. 156. Stealing a ride. 157. Riding on invalid ticket. 158. Attempt to escape conductor's notice. 159. Riding free by connivance of the conductor. 160. Guest of servant of the carrier. 141. Common carriage is compensated carriage. The receipt of compensation is a necessary part of the conception of common carriage. One who is serving gratuitously is not a common carrier. It would, of course, be outrageous to hold a person in public calling because of any acts of generosity in performing various services for various members of the public gratuitously; and therefore bind him thereafter to serve all members of the public free. At the same time, if there is in reality compensation for the act, which is apparently done free by reason of its connection with another part of the same transaction in the course of which payment is given, then it would not be right to relieve the carrier, who is thus actuated by a business motive, from the liability resting upon those who carry, on a public business merely because no separate item of compensation can be referred to the carriage in question. TOPIC A-COMPENSATED CARRIAGE. § 142. Carriage is for hire unless it is otherwise agreed. In the absence of an agreement to the contrary, when a common carrier takes goods to carry they are to be carried for hire.1 In the case of Gray v. Missouri River Packet Company,2 it appeared that plaintiff applied to one Rider, captain of the steamboat "Alice," which was being used by defendants in their business as carriers, to ship his horse and jack, and that he agreed to transport them for him. He asked Rider what would be the charge, who said in reply that it would not be much, if anything; and Rider in fact did not intend to charge him anything. Notwithstanding this intention, the defendants were held to be common carriers. Mr. Justice Norton said: We apprehend that if Gray had been sued for the transportation of his stock, it would have been no reply to the action for him to have set up as a defence that Rider said when he was applied to for the price that he would not charge him much, if anything. 1 Bastard v. Bastard, 2 Shower (Eng.), 81, B. & W. 283 (1679). See Knox v. Rives, 14 Ala. 249 (1848). 2 64 Mo. 47 (1876). |