$ 245. How sick persons must be treated.

It would seem to be plain that a public servant is under no obligation to accept a person violently sick, especially a person infected with contagious disease. On the other hand, if a person, ill or disabled and not dangerous or obnoxious to others, presents himself, with proper attendance provided by himself, it seems right to require that he shall be given adequate service. If such an ill person is accepted then a duty to take special care arises from the new risk, if known; otherwise if it is not known.6

This is a merciful rule, requiring of the public servant due care of the person whom he has accepted, even in so unforeseen

5 United States.-Thurston v. N. P. R. Co., 4 Dill. 321 (semble), Fed. Cas. 14,019 (1877); Paddock v. Atchison, T. & S. F. R. R., 37 Fed. 841, 4 L. R. A. 231 (1889).

Indiana.-Columbia Ry. v. Powell, 40 Ind. 37; Louisville, N. R. R. v. Crunk, 119 Ind. 542, 21 N. E. 31, 92 Am. St. Rep. 443 (1889).

Minnesota.-Croom v. Chicago, M. & St. P. Ry., 52 Minn. 296, 53 N. W. 1128, 38 Am. St. Rep. 557, 18 L. R. A. 602 (1893).

Mississippi.-Sevier v. Vicksburg & M. R. R., 61 Miss. 48, 48 Am. Rep. 74 (1883); Zachery v. Mobile & O. R. R., 75 Miss. 746, 23 So. 434, 65 Am. St. Rep. 617, 41 L. R. A. 385 (1898).

Tennessee.-Louisville & N. R. R. v. Fleming, 14 Lea, 128 (1884).

Wisconsin.—Walsh v. Chicago, M. & St. P. Ry., 42 Wis. 23, 24 Am. Rep. 376 (1877).

6 District of Columbia.-Lemont v. W. & G. R. R., 1 Mackey, 180 (1881). Illinois. Illinois Cen. Ry. v. Sutton, 53 Ill. 397 (1870).

Indiana.-Louisville, etc., R. Co. v. Crunk, 119 Ind. 542, 21 N. E. 31

(1889).

Louisiana.-Conolley v. Crescent City R. R., 41 La. Ann. 57, 5 So. 259, 17 Am. St. Rep. 389, 3 L. R. A. 133 (1889).

Massachusetts.-Lucas v. Railroad Co., 6 Gray 64 (1856).

New Hampshire.-Foss v. Boston & M. R. R., 66 N. H. 256, 21 Atl. 222, 49 Am. St. Rep. 607, 11 L. R. A. 367 (1890).

New Jersey.-McCann v. Newark, etc., R. Co., 58 N. J. L. 642, 34 Atl. 1052, 33 L. R. A. 127 (1896).

New York. Sheridan v. Brooklyn Cy. & N. R. R., 36 N. Y. 39, 93 Am. Dec. 490 (1867).

Texas. St. Louis, etc., R. Co. v. Finley, 79 Tex. 85, 15 S. W. 266 (1890).

an exigency. Of course those persons who have been taken with disease may properly be segregated from the others, which will be particularly true in case of contagious disease. And such persons may at convenient times be given over to proper attendance.7

TOPIC D-REFUSAL UPON PERSONAL GROUNDS.

§ 246. General obligations to serve all.

One who is engaged in public calling must by virtue of his public duty serve many whom he is very unwilling to serve,1 for one reason or another. A company cannot capriciously discriminate between passengers on account of their nativity, color, race, social position, or their political or religious beliefs. Whatever discriminations are made must be on some principle, or for some reason, that the law recognizes as just and equitable, and founded in good public policy. What are reasonable rules is a question of law, and is for the court to determine, under all the circumstances in each particular case.

7 United States.-The Steamship Hammonia, 10 Ben. 512, Fed. Cas. 6,006 (1879); Paddock v. Atchison, T. & S. F. R. R., 37 Fed. 841, 4 L. R. A. 231 (1889).

District of Columbia.-Lemont v. W. & G. R. R., 1 Mackey, 180.

Illinois. Illinois Cen. R. R. v. Sutton, 53 Ill. 397 (1870).

Louisiana.-Conolley v. Crescent City R. R., 41 La. Ann. 57, 5 So. 259, 17 Am. St. Rep. 389, 3 L. R. A. 133 (1889).

Massachusetts.-Lucas v. New Bedford & T. R. R., 6 Gray, 64, 66 Am. Dec. 406 (1856).

Mississippi.-New Orleans, J. & G. N. R. R. v. Stratham, 42 Miss. 607, 97 Am. Dec. 478 (1869).

Wisconsin.—Walsh v. Chicago, M. & St. P. Ry., 42 Wis. 23, 24 Am. Rep. 376 (1877).

1 One illustration would be "scab" workmen; it seems plain that a carrier could not refuse to accept such a person. See Chicago & A. R. R. v. Ill., 123 Ill. 9 (1827). But see Pounder v. North E. Ry. (1892), 1 Q. B. 385.

§ 247. Refusal to carry because of color or race.

A railroad cannot refuse to carry a person because of his color, or refuse to afford him accommodations such as other passengers enjoy for the same rates.2 This would be so even if it could be shown by the carrier that his business would suffer if he gave service to the race objected to. On the other hand it is the plain right of the carrier to assign different persons or different races to different accommodations, since the management of the business is left to the carrier. Therefore the legislation in certain States which have provided by statute that separate accommodations may be or shall be furnished by the railroads to colored passengers which are equal to those furnished white passengers is constitutional, as it is due process of law.3

8 248. Refusing distasteful people.

The mere fact that a person is distasteful or has ungentlemanly habits will not justify a carrier in refusing to carry a passenger. This question, or a very similar one, arose in Prendergast v. Compton. The plaintiff, a passenger, sued the defendant, the captain of the ship in which he was being transported, for excluding him from eating in the "cuddy," upon the ground that his conduct was vulgar and offensive. There was evidence that he was in the habit of reaching across other passengers and of taking potatoes and boiled bones in his fingers. The court held, however, for the passenger: "It would be difficult to say, if it rested here, in what degree want of polish

2 Brown v. Memphis, etc., R. Co., 5 Fed. 499, B. & W. 116 (1880); Chicago, etc., R. Co. v. Williams, 55 Ill. 185, 8 Am. Rep. 641 (1870).

3 Hall v. Decuir, 95 U. S. 485, 24 L. Ed. 547 (1878); McGuinn v. Forbes, 37 Fed. 639 and note (1889); Houck v. R. R. Co., 38 Fed. 226 (1888); Anderson v. Louisville & N. R. R., 62 Fed. 46 (1894); Crooms v. Schad (Fla.), 40 So. 497 (1905); Chesapeake, etc., R. Co. v. Wells, 85 Tenn. 613, 4 S. W. 5 (1887); Smith v. State, 100 Tenn. 494, 46 S. W. 566, 41 L. R. A. 432 (1898); Council v. Railroad Co., 1 Int. Com. Rep. 339 (1887); Heard v. Railroad Co., 3 Int. Com. Rep. 111 (1889).

48 C. & P. 454 (1837).

would, in point of law, warrant a captain in excluding a passenger from the cuddy. Conduct unbecoming a gentleman, in the strict sense of the word, might justify him; but in this case there is no imputation of the want of gentlemanly principle."

To the same effect Judge Ellison said, in Eads v. Metropolitan Street Railway: 5 "It is not all conduct which may be said. to be outside the pale of good breeding that will bar a passenger from the protection of the law against the carrier for the act of the servant in ejecting him from the car."

On this ground it was held that the fact that boys riding in a car indulged in "skylarking" did not affect their right to be carried.

8249. Refusing on moral grounds.

An excellent illustration of this general principle that there can be no refusal on merely personal grounds alone if the application is proper in itself is Brown v. Memphis Railroad. This was a common-law action for the wrongful exclusion of the plaintiff, a colored woman, from the ladies' car of the defendant's train, upon her refusal to take a seat in the smoking-car. At the time of her exclusion the plaintiff held a first-class ticket over the defendant's road from Corinth, Mississippi, to Memphis, Tennessee, and her behavior while in the car was lady-like and inoffensive. The defendant pleaded that the plaintiff was a notorious and public courtesan, addicted to the use of profane language and offensive habits of conduct in public places; that the ladies' car was set apart exclusively for the use of genteel ladies of good character and modest deportment, from which the plaintiff was rightfully excluded because of her bad character.

Hammond, district judge, charged the jury "that the same principles of law were to be applied to women as men in deter

5 43 Mo. App. 536 (1891).

6 Rosenberg v. Brooklyn H. R. R., 91 Hun, 580, 86 N. Y. Supp. 871 (1904).

75 Fed. 499 (1880).

mining whether the exclusion was lawful or not; that the social penalties of exclusion of unchaste women from hotels, theatres and other public places could not be imported into the law of common carriers; that they had a right to travel in the streets and on the public highways, and other people who travel must expect to meet them in such places; and, as long as their conduct was unobjectionable while in such places, they could not be excluded. The carrier is bound to carry good, bad and indifferent, and has nothing to do with the morals of his passengers, if their behavior be proper while travelling. Neither can the carrier use the character for chastity of his female passengers as a basis of classification, so that he may put all chaste women, or women who have the reputation of being chaste, into one car, and those known or reputed to be unchaste in another car. Such a regulation would be contrary to public policy, and unreasonable.8

8 See Brown v. Memphis, &c., R. R., 4 Fed. 37 (1880); Rellman Co. v. Bales, 80 Tex. 211, 15 S. W. 785 (1891); Coppin v. Braithwaite, 8 Jur. 875 (1844).