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powers, it is a common carrier, and a special contract about its responsibility does not divest it of the character." 17

$131. Other special classes of goods.

If the goods, while similar in bulk and in manner of use to goods actually carried, are fragile or dangerous, or otherwise require special treatment, a carrier who has never professed to carry them may refuse to accept them as a common carrier. So where an express company had never professed to carry glass as a common carrier, and on the terms required of a common carrier, writ of mandamus to compel the company to receive and carry glass on such terms was refused.18 And so where the goods are of a dangerous nature, it seems clear that the carrier may refuse to receive them on the ground that he has never professed to carry goods of that kind.19 For as has been seen many times in the course of this discussion, there are for various natural reasons different classes of goods, and a practice of taking goods of one class does not establish any profession to take goods of another class. Thus in an early case in Delaware, Tunnel v. Pettijohn,20 a carter who usually carried parcels of moderate size, but who had taken a hogshead of molasses after first refusing it because of its size, was held not responsible for it as a common carrier. The grounds of the court were: There seems to be good reason for distinguishing between this and other kinds of goods, on

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17 Cited from Hutchinson on Carriers, § 44, and from New York C. R. R. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627 (1873).

18 People ex rel. Walker v. Babcock, 16 Hun (N. Y.), 313 (1818); Toy v. Long Island Railroad, 26 Misc. (N. Y.) 792, 56 N. Y. Suppl. 182 (1899). See, also, Pender v. Robbins, 51 N. C. 207 (1858).

19 California Powder Works v. Atlantic, etc., R. Co., 113 Cal. 329, 45 Pac. Rep. 691, 36 L. R. A. 648 (1896); Farrant v. Barnes, 11 C. B. N. S. 553, 8 Jur. N. S. 868, 31 L. J. C. P. 137, 103 E. C. L. 553 (1862), per Erle, C. J.; Alston v. Herring, 11 Exch. 822, 25 L. J. Exch. 177 (1856). 202 Harr. (Del.) 48 (1836).

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

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