Judgment reversed, with costs, and cause remanded with instructions for a new trial, and further proceedings consistent herewith.

Indications of Private Business.

ALLEN v. SACKRIDER.

37 N. Y. 341. 1867.

PARKER, J. (after stating the testimony). The only question in the case is, were the defendants common carriers? The facts found by the referee do not, I think, make the defendants common carriers. They owned a sloop; but it does not appear that it was ever offered to the public or to individuals for use, or ever put to any use, except in the two trips which it made for the plaintiffs, at their special request. Nor does it appear that the defendants were engaged in the business of carrying goods, or that they held themselves out to the world as carriers, or had ever offered their services as such. This casual use of their sloop in transporting plaintiff's property falls short of proof sufficient to show them common carriers.

A common carrier was defined, in Gisbourn v. Hurst, 1 Salk. 249, to be, "any man undertaking, for hire, to carry the goods of all persons indifferently"; and in Dwight v. Brewster, 1 Pick. 50, to be, "one who undertakes, for hire, to transport the goods of such as choose to employ him, from place to place." In Orange Bank v. Brown, 3 Wend. 161, Chief Justice Savage said: "Every person who undertakes to carry, for a compensation, the goods of all persons indifferently, is, as to the liability imposed, to be considered a common carrier. The distinction between a common carrier and a private or special carrier is, that the former holds himself out in common, that is, to all persons who choose to employ him, as ready to carry for hire; while the latter agrees, in some special case, with some private individual, to carry for hire." (Story on Contracts, § 752, a.) The employment of a common carrier is a public one, and he assumes a public duty, and is bound to receive and carry the goods of any one who offers. "On the whole," says Prof. Parsons, "it seems to be clear that no one can be considered as a common carrier, unless he has, in some way, held himself out

to the public as a carrier, in such manner as to render him liable to an action if he should refuse to carry for any one who wishes to employ him." (2 Pars. on Cont. [5th ed.] 166, note.)

The learned counsel for the appellant in effect recognizes the necessity of the carrier holding himself out to the world as such, in order to invest him with the character and responsibilities of a common carrier; and, to meet that necessity, says: "The 'Creole' was a freight vessel, rigged and manned suitably for carrying freight from port to port; her appearance in the harbor of Ogdensburgh, waiting for business, was an emphatic advertisement that she sought employment." These facts do not appear in the findings of the referee, and, therefore, cannot, if they existed, help the appellants upon this appeal.

It is not claimed that the defendants are liable, unless as common carriers. Very clearly, they were not common carriers; and the judgment should, therefore, be affirmed.

All the judges concurring.

Judgment affirmed.

Extent of Public Profession.

MEMPHIS NEWS PUBLISHING COMPANY v. SOUTHERN RAILWAY COMPANY ET AL.

110 Tenn. 684, 75 S. W. 941. 1903.

Defendant railway company contracted with defendant Commercial Publishing Company, agreeing to run a special early morning train, carrying only the newspapers of said publisher, in consideration of said publishing company guaranteeing to it certain revenue from the operation of the train. This train became one of its schedule trains and was advertised as such, and was controlled exclusively by the railway company, which received all the revenues derived from the operation of said train, both in the carrying of passengers and freight.

Complainant, publishing the Memphis Morning News, demanded of defendant railway company the right to ship as freight its packages of newspapers to its several agents at various stations along the line of railway where the train was scheduled to stop, and tendered the usual charges on the same; but said defendant refused to transport said newspapers, alleg

ing as grounds of its refusal, the obligations of its contract with defendant Commercial Publishing Company.

BEARD, C. J. *

One of the duties imposed upon a railroad as a common carrier is that it shall deal fairly and impartially with all who seek, as passengers or shippers of freight, to avail themselves of its service. Impressed, as it is, by its grant of franchises, with a trust to the public, this trust can only be discharged by extending equal facilities to each member constituting the public. It fails of its duty, therefore, when discriminating between individuals in like condition, it gives one an advantage in the carriage of his person or property which it refuses to another, and it follows that any contract made by it, by which one or more members of a class are fostered at the expense of or to the detriment of others of the same class, who demand like service, is unenforceable.

Granting that goods not dangerous in their nature and not unfit for shipment are offered at a proper place and time, and that the cost of carriage is tendered, and the railroad has facilities for shipment, then it must accept and transport them. In doing this it can show no favor, nor make distinctions which will give one employer an advantage over another, either in the time or order of shipment, or in the distance of the carriage, or in the conveniences or accommodations which may be afforded. Hutchinson on Carr., sec. 297.

These general principles are conceded by the defendants to be sound, but it is insisted they do not control the present case. It is admitted-or it is true, whether admitted or not-that the railway company, as to the train in question, was a common carrier of passengers and their baggage, and of mail and express; but it is contended that it was, by reason of its contract with the Commercial Publishing Company, a private carrier of newspapers, and therefore was under no obligations to admit the newspapers of the complainant on its train.

It is true "a common carrier may become a private carrier or bailee for hire, when as a matter of accommodation or special agreement he undertakes to carry something which it is not his business to carry." Hutchinson on Carr., sec. 44. For example, "if a carrier of produce, running a truck boat, should be requested to carry a keg of silver or a load of furniture, he

might justly refuse to receive such freight, except by such an agreement as he might choose to make. But when a carrier has a regularly established business for carrying all or certain articles, and especially if that carrier be a corporation created for the purpose of the carrying trade, and the carriage of the articles is embraced within the scope of its chartered powers, it is a common carrier, and a special contract about its responsibility does not divest it of the character."

Profession Limited to Facilities Devoted.

BROWNE v. BRANDT.

(1902) 1 K. B. 696 (Eng.).

Affirmed.

LORD ALVERSTONE, C. J. The plaintiff in this case contends that the defendant has broken his common law duty as an innkeeper to provide accommodation for travelers, and that this action can be maintained if the defendant had a room at the inn in which the plaintiff could have passed the night. The county court judge has found that the defendant's house was full as regarded proper sleeping accommodation; that there was no empty bedroom; that there were two rooms available for the accommodation of the plaintiff, and that that accommodation was refused. I do not think the question whether the plaintiff demanded to take the one sitting-room was submitted to the county court judge, but I do not wish to decide this case on narrow grounds; we must assume that there was some place in the house where the defendant might have permitted the plaintiff to stay for the night. I think that we should be straining the common law liability of an innkeeper if we were to hold that the plaintiff has a good cause of action. The true view is, in my opinion, that an innkeeper may not pick and choose his guests; he must give the accommodation he has to persons who come to the inn as travelers for rest and refreshment. I cannot think that the authorities to which we have been referred show that where an innkeeper provides a certain number of bedrooms and sitting-rooms for the accommodation of guests he is under a legal obligation to receive and shelter as many people as can be put into the rooms without overcrowding. I think a person

who comes to the inn has no legal right to demand to pass the night in a public sitting-room if the bedrooms are all full, and I think that the landlord has no obligation to receive him. The landlord must act reasonably; he must not captiously or unreasonably refuse to receive persons when he has proper accommodation for them. Here the county court judge has found, in effect, that the defendant did act reasonably. For these reasons I am of opinion that the appeal must fail.

Obligation of Community Service.

CROUCH v. ARNETT.

71 Kans. 49, 79 Pac. 1086. 1905.

WILLIAM R. SMITH, J. This was an action in mandamus, brought by plaintiff in error in the district court to compel the firm of Arnett & Hobart, doing business as the Iola Telephone Company, to replace in his residence a telephone instrument which, it is alleged, was arbitrarily removed therefrom by the company.

Testimony introduced on behalf of the telephone company tended to show that telephones were installed in manufactories outside of the city-cement plants and brick-works-but that none of them was in the vicinity of Mr. Crouch's residence, the nearest being about half a mile. The zinc smelter adjoining the city to the northwest, the ice plant, a laundry, the waterworks company and the pest-house west of the city limits were also supplied with telephones. Instruments were also furnished at the residences of four persons outside of the corporate limits of Iola, but these persons either furnished or paid for their own lines and poles. *

*

It may be conceded that defendants below, by devoting their property to public employment, and by putting it in the service of the public, thereby subjected it to the regulation of the legislature and control of courts to the same extent as other common carriers are controlled. We also agree with counsel that such companies cannot lawfully discriminate between subscribers of the same class, and that a company or partnership doing a general telephone business in a city must treat impartially all persons whom they undertake to serve. Also, when doing a general business outside a city, all patrons in the vicinity must be dealt