carrier, no matter with whom it has had dealings.51 Where a bill of lading is issued, delivery according to its terms will usually be considered the performance of the undertaking; and, therefore, it is often said that the carrier may require the production of the bill of lading before it can be asked to deliver the goods. A distinction should be made, however, which is not invariably observed. A carrier which has issued an "order" bill of lading delivers the goods to anyone else than the holder of the bill of lading at its peril, as the commercial community deals with such bills as representing the goods themselves.52 But it is usually held otherwise as to the "straight" bill of lading, for it would be hampering business too much to hold the carrier liable for delivering to the addressee without his producing the bill.53

104. Delivery to the designated person.-Delivery by the carrier to a person other than the person designated or his authorized agent is a misdelivery, for which the carrier is absolutely liable, even if there is no negligence that can be imputed to it.54 But if the negligence of the shipper is a factor in the mistake, then the carrier is excused, as where the address of the consignee is so wrongly given as naturally to mislead the carrier. It makes no difference what care the carrier may have taken in deciding which is the proper person to whom to de

51 Stiles v. Davis & Barton, 1 Black 101 (U. S.).

52 Arkansas Southern Ry. Co. v. German Nat'l Bk., 77 Ark. 482, 92 S. W. 522.

53 Forbes v. Boston & L. R. R. Co., 133 Mass. 154. 54 Illinois Central R. R. Co. v. Parks, 54 Ill, 294.

liver the goods.55 The rule is that the carrier must, at its peril, fulfill its obligation by delivering to the right person. There is a noteworthy conflict of authority in that class of cases where a swindler, taking a name and address practically the same as that of an established concern in good credit, orders goods shipped to him. When the carrier subsequently delivers the goods to the swindler, it is in many cases held liable for a misdelivery, and held responsible, therefore, for the loss of the goods.56 But there are strong opinions to the effect that in such cases this is delivery by the carrier to the party designated by the consignor, and that it is, therefore, a proper performance of the obligation.57

55 Lake Shore & M. S. R. R. Co. v. Hodapp, 83 Pa. St. 22.

56 Price v. Oswego & S. R. R. Co., 50 N. Y. 213.

57 Samuel v. Cheney, 135 Mass. 278, LEADING ILLUSTRATIVE CASES.

PART III

OBLIGATIONS OF PUBLIC.

EMPLOYMENT

CHAPTER XI.

JUSTIFICATION FOR REFUSING SERVICE.

105. Grounds for refusing service. The principles of public service already discussed establish the prima facie duty resting upon one who is committed to a public employment to serve all who come within his public profession. To excuse himself from rendering such service he must show justification, and that excuse must be based upon public policy. Once committed to public employment he can no longer refuse his service at his caprice. When the obligation of public service is clearly established, by showing that there is a plain case within the public undertaking, all conditions precedent being satisfied, the only method of avoiding liability is to show that there is justification for the suspension of service in general, or some special excuse for the particular refusal.

It is obvious that justification for refusal to serve must be upon reasonable grounds, relating to the performance of the service in question, and such excuse must show that the particular request is truly

improper.58 It will be noted throughout this chapter that this justification by which one engaged in public service may refuse service is not confined to those obvious cases where rendering the service would involve the proprietor as a participant in illegality of some sort. The true extent of public duty depends in last analysis upon public policy.

106. Subservience to governmental authority.— Obedience to executive orders constitutes the most obvious head of justification for refusal to serve. Thus military necessity might justify the declaration of an embargo, in which case a steamship line would be obliged to tie up its vessels and refuse further freight. Similarly departmental regulations forbidding the passing of trains into territory opened for settlement until noon of a certain day may be shown in justification of interruption of service.59 The same excuse results from obedience to the lawful commands of another of the third great departments exercising governmental authoritythe judiciary. Perhaps the plainest case of this justification was where an irrigation company of which the service was asked was under an injunction ordering it not to render such service.60 In the same way legal processes duly served excuse a carrier from making delivery of goods which it has undertaken to carry; and a carrier may suspend delivery pending litigation involving the goods in question.61

58 Regina v. Sprague, 63 J. P. 233 (Eng.), LEADING ILLUSTRATIVE CASES. 59 Decker v. Atchison T. & S. F. R. R. Co., 3 Okla. 553, 41 Pac. 610. 60 Sample v. Fresno F. & I. Co., 129 Cal. 222, 61 Pac. 1085.

61 Skinner v. Chicago & R. I. R. R., 12 Iowa 191.

62

107. Statutes expressly controlling service.—A carrier will, of course, have an excuse for not accepting additional passengers who offer themselves after the vessel has its statutory complement. So, if it is illegal for a railroad to let its cars stand in the street, it can refuse to permit goods to be loaded upon that part of a spur which is laid through a street, without being liable for discrimination in so refusing.63 Where an explicit ordinance of the Board of Health forbids the transportation of corpses except when accompanied by a person in charge having a transit permit containing specified information, a railroad may refuse transportation when all of this information is not filled in.64 And where a revenue law directed that a stamp should be affixed to a telegram, it was held that a telegraph company might refuse to accept a telegram without a stamp.65 The general principle underlying these cases is plain. The law will not drive one to disobey the law.

108. Service of aid to criminals. It is equally obvious that those who conduct a public service are not bound by their general obligation to render service to criminals, where it would furnish them with an opportunity to commit crime. Thus it would seem that a pickpocket could be refused as a passenger. A railroad should not be obliged to

66

62 The Charles Nelson, 149 Fed. 846.

63 Louisville & N. R. R. Co. v. Pittsburg & K. Coal Co., 111 Ky. Law Rep. 960.

64 Lake Erie & W. R. R. Co. v. James, 10 Ind. App. 550, 35 N. E. 395. 65 Western Union Telegraph Co. v. Waters, 139 Ala. 652, 36 So. 773.

66 Coppin v. Braithwaite, 8 Jurist 875 (Eng.).