paid by said hotel proprietor to such guest; and if not demanded within six months from the date of such sale, such residue or remainder shall be deposited by such hotel proprietor with the county treasurer of the county in which such hotel is situated. * **"4 Inasmuch as innkeepers have often had to deal with persons who attempt to evade paying for board or lodging, most states have passed statutes making it a misdemeanor to procure board or lodging at a hotel with the intent to defraud the hotel. Of such statutes, the following is typical: "Section 1. Any person who shall obtain food, lodging or other accommodation at any hotel, inn, boarding or eating house with intent to defraud the owner or keeper thereof, shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine not exceeding one hundred dollars or imprisonment in the county jail not exceeding thirty days. "Sec. 2. Proof that lodging, food or other accommodation was obtained by false pretense, or by false or fictitious show or pretense of baggage, or that the party refused or neglected to pay for such food, lodging or other accommodation on demand, or that he or she absconded or left the premises without paying or offering to pay for such food, lodging or other accommodation, or that he or she surreptitiously removed or attempted to remove his or her baggage, shall be prima facie proof of the fraudulent intent mentioned in section one of this act, but this act shall not apply to regular boarders, nor when there has been an agreement for delay in payment.” 5 4 Smith-Hurd's Rev. St. Ill. 1923, c. 71, § 2. 5 Smith-Hurd's Rev. St. Ill. 1923, c. 38, §§ 300, 301. SECTION 1.-INTRODUCTION AND CLASSIFICATION A carrier is one who carries the goods or person of another. Carriers are divided, along one line, into carriers of goods and carriers of passengers. Along another line, they are divided into gratuitous carriers and carriers for hire. A highly important classification is that under which they are divided into private carriers and common carriers or public carriers. The carriage of goods in which we are most interested is the carrying of goods of a bailor by a bailee under the terms of a contract of bailment. The carriage of passengers cannot be under a contract of bailment, inasmuch as the passenger, being a person and not goods, cannot be bailed by an owner to a bailee. The contract for carriage of a passenger, varying considerably in its nature from that for carriage of goods, is necessarily governed by somewhat different rules, as we shall see. As we have already learned in the law of bailments, usage, as recognized in our law, has not generally required of the gratuitous bailee quite so high a degee of care and watch fulness over the thing bailed as would be required, under otherwise similar circumstances, of the bailee for hire. As we might naturally expect, the law does not exact so much of care of the gratuitous carrier as it exacts of the carrier for hire, for the bailment for carriage is, in this respect, governed by the general rule as to bailments. The carrier of passengers, though not a bailee of the person of the passenger, is held to a very high degree of care as would naturally be expected when one considers the fact that lack of care may result in the serious injury or death of a passenger. The private carrier is engaged in a private, and not a public, calling. The private carrier carries only for such persons as he chooses to serve. He does not hold himself out generally to the public as being willing to serve. As contrasted with the private carrier, the common carrier holds himself out to the general public as being willing to contract with any person to carry his goods or to carry him as a passenger. A common carrier may be a carrier of both goods and passengers, or he may be a carrier of goods only or of passengers only. SECTION 2.-WHO IS A COMMON CARRIER DWIGHT v. BREWSTER. (Supreme Judicial Court of Massachusetts, 1822. 1 Pick. 50, 11 Am. Dec. 133.) * * The defendants contended that they were not liable as common carriers, their business being the conveyance of passengers and their luggage; that the taking small packages was an affair of the drivers, who received the compensation, and who were answerable for negligence only; and that the proprietors were not responsible, though it appeared that less wages were paid to the drivers, in consequence of the opportunity they had of earning small sums of money in this way, whereas large packages were usually entered on the waybill and the proprietors received the compensation for the transportation. PARKER, C. J. * On the second count, which charges the defendants as common carriers, we think the facts proved are sufficient to constitute them such. Packages were usually taken in the stagecoach for transportation; large packages were entered in the book kept for the proprietors, and compensation taken for their use. That the principal business was to carry mail and passengers is no reason why the proprietors should not be common carriers of merchandise, etc. A common carrier is one who undertakes, for hire or reward, to transport the goods of such as choose to employ him from place to place. This may be carried on at the same time with other business. The instruction of the judge in this particular, that the practice of taking parcels for hire, to be conveyed in the stage-coach, constituted the defendants common carriers, we think was right. * ROBERTS v. TURNER. (Supreme Court of New York, 1814. 12 Johns. 232, 7 Am. Dec. 311.) Action on the case against defendant as a common carrier. Defendant resided at Utica, and pursued the business of forwarding merchandise and produce from Utica to Schenectady and Albany. The ordinary course of this business is for the forwarder to receive the merchandise or produce at his store, and send it by the boatman, who transports goods on the Mohawk river, or by wagon to Schenectady or Albany, for which he is paid at a certain rate per barrel, etc.; and his compensation consists in the difference between the sum which he is obliged to pay for transportation, and that which he receives from the owner of the goods. The defendant received from the plaintiff, who resided in Cazenovia, in Madison county, by Aldrich, his agent, twelve barrels of pot ashes, to be forwarded to Albany, to Trotter; the ashes were put on board a boat, to be carried down the Mohawk to Schenectady, and whilst proceeding down the river, the boat ran against a bridge and sunk, and the ashes were thereby lost. The defendant's price for forwarding goods to Schenectady was twelve shillings per barrel, and the price which he had agreed to pay for the transporting the goods in question to that place was eleven shillings; the defendant had no interest in the freight of the goods, and was not concerned as an owner in the boats employed in the carriage of merchandise. The judge, being of the opinion that the testimony did not make out the defendant to be a common carrier, nonsuited the plaintiff, and a motion was made to set aside the nonsuit. SPENCER, J. On the fullest reflection, I perceive no grounds for changing the opinion expressed at the circuit. The defendant is in no sense a common carrier, either from the nature of his business, or any community of interest with the carrier. Aldrich, who, as the agent of the plaintiff, delivered the ashes in question to the defendant, states the defendant to be a forwarder of merchandise and produce from Utica to Schenectady and Albany, and that he delivered the ashes, with instructions from the plaintiff to send them to Col. Trotter. The case of a carrier stands upon peculiar grounds. He is held responsible as an insurer of the goods, to prevent combinations, chicanery, and fraud. To extend this rigorous law to persons standing in the defendant's situation, it seems to me, would be unjust and unreasonable. The plaintiff knew, or might have known (for his agent knew), that the defendant had no interest in the freight of the goods, owned no part of the boats employed in the carriage of goods, and that his only business in relation to the carriage of goods consisted in forwarding them. That a person thus circumstanced should be deemed an insurer of goods forwarded by him, an insurer, too, without reward, would, in my judgment, be not only without a precedent, but against all legal principles. Lord Kenyon, in treating of the liability of a carrier (5 T. R. 394), makes this criterion to determine his character; whether, at the time when the accident happened, the goods were in the custody of the defendants as common carriers. In Garside v. Proprietors of the Trent & Mersey Navigation, 4 T. R. 581, the defendants, who were common carriers, undertook to carry goods from Stone Port to Manchester, and thence to be forwarded to Stockport, and were put into the defendants' warehouse, and burnt up before an opportunity arrived to forward them. Lord Kenyon held, the defendants' character of carriers ceased when the goods were put into the warehouse. This case is an authority for saying that the responsibilities of a common carrier and forwarder of goods rest on very different principles. In the present case, the defendant performed his whole undertaking; he gave the ashes in charge to an experienced and faithful boat Among common carriers of goods are the following: Railroad companies, steamship companies, stagecoach companies, express companies, transfer companies, and many draymen. Some draymen, however, are not common carriers, inasmuch as they do not hold themselves out to carry for the public, but carry only for such persons as they may themselves choose to serve. Proprietors of tugboats are held not to be common carriers, as they are not bailees of goods and have no direct control of any kind over the freight of the vessel in tow. For the same reason, a railroad company is not a common carrier of the goods carried on a special circus train for which the railroad company merely furnishes motive power and track. In interstate business, by virtue of congressional enactment, pipe lines carrying all oil offered are common carriers. In large cities, the handling of freight is simplified and expedited by the use of terminals and belt lines, which are sometimes controlled and operated by companies other than the railroad companies. As the conditions under which terminal companies and belt line. companies operate are essentially those of any railroad, it was to be expected that these companies would be adjudged to be common. carriers, and such has been the finding in these cases. Attempts have sometimes been made to hold postmasters, postal employees, and railroads carrying the mails as common carriers; but such attempts have been unsuccessful. None of these persons contracts as a carrier with any owner, the relations of all of them being with the government.1 The most common types of common carrier of passengers are: Railroads, omnibus companies, proprietors of taxicabs and hacks, "jitney" proprietors, steamship companies, and ferries. However, the fact of an express or implied holding out to the public is essential to the existence of the relation of common carrier of passengers, and therefore we find that some proprietors of "jitney" automobiles and hacks and ferries are not to be classed as common carriers of passengers, for the simple reason that they hold themselves out as carriers to only a limited few, and not to the general public. Strictly speaking, the owner of a building in which a passenger elevator is conducted for tenants and patrons is not a common carrier, though he is held to the same high degree of care as is the common carrier of passengers, and has often been held to be a common carrier of passengers. KORNER et al. v. COSGROVE. (Supreme Court of Ohio, 1923. 108 Ohio St. 484, 141 N. E. 267, 31 A. L. R. 1193.) Action by Gladys Cosgrove against C. H. Korner and Clayton Korner, doing business under the firm name of C. H. Korner & Son. Judgment for plaintiff was affirmed by the Court of Appeals, and defendant brings error. MARSHALL, C. J. The plaintiff in this action, a passenger in a public taxicab, sued to recover damages from Korner & Son, as owners and operators of a line of public taxicabs then being operated for hire in the city of Bucyrus, Ohio. It was alleged in the petition and admitted in the answer that the defendant did at the time complained of own and operate a line of taxicabs for hire. It was claimed that plaintiff, at about the hour of 12 o'clock at night, went to the place of business of 1 For many citations of cases on these points, see 10 C. J. 39 et seq. |