follow that, if it does this, thereby a mere privilege is transformed into a right. What would legally follow is this: The exclusive privilege granted would confer no legal rights upon the grantee and would not be binding upon the respondent. In other words it would leave the appellants, the person to whom the privilege was granted, and the respondent in the same relative situation they were in before the privilege was granted. The grantee could not enforce the contract, because illegal, and hence could be excluded from respondent's premises at its pleasure; and, since the appellants never had the permission to enter, it necessarily follows that they, too, may be excluded. The mere fact, therefore, that the grantee is not excluded, does not give appellants the legal right to enter.

Appellants further assert that respondent's property used in the business of a common carrier is dedicated to public use, and, as they are likewise engaged in a similar business, they have the right, in the interest of the public, to enter upon property that is so dedicated. No doubt, if either of them has any business with respondent, he may so enter to transact such business. If appellants desire to be carried as passengers, or intend to deliver or receive freight, they may enter upon respondent's premises as a matter of right. All or any one of them may also do this in behalf of another who has business with respondent; but this gives them no legal right to require the respondent to devote any of its property to their use for the purpose of soliciting business for themselves. Suppose the respondent, through its agents, demanded the right to enter upon appellants' vehicles for the purpose of soliciting business in its own behalf, and based this demand upon the ground that such vehicles were engaged in a public business, in that they were used in the business of common carriers; would its claim be allowed? In what way would this claim differ in principle from the one urged by appellants? Neither can we see how appellants can prevail upon the ground that the public is interested; that to deny to them the right to enter respondent's premises might result in destroying competition, and thus advance the prices the public will be required to pay for the services appellants desire to render to the public; and that it may result in making the service inefficient, if not inadequate. In making this claim appellants overlook the fact that respondent at all times is subject to regulation and control by the state; that it is a public service corporation and thus amenable to regulation. It may be required to provide reasonable conveniences for the public in the conduct of its business. It must treat all alike, and afford all an equal opportunity to transact business, and may not discriminate in its charges for services rendered. If appellants are engaged in a like business, as they claim they are,

they are subject to the same regulation and control. Indeed, the state, through its agencies, may fix the charges they may exact for transporting both persons and property to and from the trains of respondent or its depot. These regulations apply to any one to whom the respondent may grant the privilege to enter upon its premises to make arrangements with incoming passengers to either transport them or their baggage and property to any part of the city. The opportunity to do this does not prevent such passengers from engaging any other person, either in advance of their arrival or after they have arrived, for the purpose of transporting them or their property; nor are they prevented from doing this at or before the time of their departure. If the charge for the service is regulated by law or ordinance, and the facilities of transportation are reasonable and adequate, the public cannot complain. Neither is the respondent required to provide passengers with the opportunity of selecting any one of numerous competitors for their patronage the moment such passengers step from the trains of the respondent. If appellants, as common carriers, have the right to enter upon the premises of respondent to solicit and compete for business, why may not a street car company claim the same right to do so? It, too, may assert that it is in the interest of the public in that it would promote competition.

All these matters are subject to regulation by the state, and we know of no law, nor of any principle of justice, whereby one common carrier may, without compensation therefor, be compelled to provide space upon its premises for any common carrier to solicit patronage or business. If it must do this for one, it must do so for all who desire to carry on such business. If the public is inconvenienced or oppressed by any regulations the respondent may adopt, or if the service becomes inadequate or unreasonable and dilatory, the state may compel the respondent to provide reasonable and adequate means to meet the necessities of the public; but neither the public nor the state is here complaining nor resisting the application of the respondent. The appellants, therefore, may not champion the rights of the public, nor those of the state; and in no event may they do so for the sole purpose of advancing their own private interests, although such interests may in some way come in touch with the interests of the public. No doubt the respondent may not interfere with any one who solicits business outside of its own premises, so long as such solicitors do not unduly impede the ingress and egress to and from its premises. Such regulation, however, if any is to be made, belongs to the municipality or the state. Some of the courts have advanced the theory that the carrier need not provide space for all hackmen or transfer companies, but must provide only a reasonable amount of room.

If this be sound, then it follows that, if the space cannot accommodate all, some must be excluded. If some may be excluded in this way, why may not all be except one? Moreover, one cab or transfer company may alone have more vehicles than can at one time be admitted to the grounds. If this condition exists, and the carrier need not provide space for all, why is it that the arrangement he may make with one only, who occupies all the space, is void? If it be said that the carrier must allow at least more than one the right to enter, but need not provide space for all, then, again, the carrier must necessarily select those that may enter from the whole number who desire to do so. In this selection the carrier must necessarily discriminate in favor of one or more and against others, Is it not more in consonance with reason and common sense to permit the carrier to regulate the whole matter, subject to the control of the state in case the carrier abuses his privilege as a quasi public servant? Can the law confer the right upon one person to carry on a part of his own business upon the property of another under the guise of regulating the business of transporting persons and property? This may, perhaps, be done in case the state imposes this condition in granting the charter or privilege under which the business is conducted. The courts, however, have no right to impose such condition under the mere claim that it is sanctioned by the elastic term of public policy. The principles adverted to are well stated and illustrated in the cases of Pennsylvania Company v. City of Chicago, 181 Ill. 289, 54 N. E. 825, 53 L. R. A. 223, and Donovan v. Pennsylvania Company, 120 Fed. 215, 57 C. C. A. 362, 61 L. R. A. 140, which is affirmed in 199 U. S. 279, 26 Sup. Ct. 91, 50 L. Ed. 192. The last two cases cited go over the whole subject and treat it both from the standpoint of statutory regulation and the fundamental principles involved, and they clearly sustain the injunction granted in this case. We are convinced that the judgment of the district court is in harmony with the underlying principles involved and is sustained by sound reason.

The judgment is therefore affirmed, with costs to respondent.

MCCARTY, C. J., and LEWIS, District Judge, concur.

(42 Colo. 150)

REYNOLDS v. HART. (Supreme Court of Colorado. Feb. 3, 1908.) 1. APPEAL -REVIEW-VERDICT-CONFLICTING EVIDENCE.

The rule that a verdict based on conflicting evidence will not be disturbed on appeal does not apply, where the case is not submitted under proper instructions, or where an issue has been submitted which is not in the case.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3316-3330.]

2. TRIAL-INSTRUCTIONS-APPLICATION TO IS.

SUES.

Where, in an action for breach of a contract of employment, there was no issue of abandonment of the contract by plaintiff, instructions authorizing a verdict for defendant if plaintiff ceased work under his contract for an unreasonable time, or if he informed defendant that he might not return and that defendant was at liberty to employ another to take his place,

were erroneous.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, §§ 587-595.]

3. MASTER AND SERVANT-CONTRACT OF EMPLOYMENT ABANDONMENT- - RESCISSION WAIVER.

-

• Where defendant permitted plaintiff to resume work under a contract of employment after he had been absent for an unreasonable time, and failed to notify plaintiff that he elected to terminate the contract because of his default and to accept plaintiff's offer to permit defendant to obtain another to finish the work, he waived his right to rescind the contract because of plaintiff's default or to take advantage thereof.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 36.]

4. SAME-ACTIONS FOR WRONGFUL DISCHARGE INSTRUCTIONS - OMISSION OF MATERIAL

FACTS.

Where, in an action for breach of a contract of employment, it was contended that there was a question for the jury as to whether plaintiff had abandoned the contract by his absence from the work for an unreasonable time, and whether he had relieved defendant by notifying him that he was at liberty to employ some one to take plaintiff's place, but there was evidence that defendant had waived his right to insist on abandonment and had not accepted plaintiff's offer to rescind the contract, instructions on the first proposition omitting the question of waiver, and as to the second the question whether defendant had accepted plaintiff's offer to release him from the contract, were erroneous, under the rule that, when the court instructs on what state of facts a verdict must be returned against a defendant, the instructions must include all the facts material to the right of such party. 5. SAME-REQUEST TO CHARGE.

Where, in an action for breach of an employment contract, there was a conflict as to whether the contract was for work by the shift or for a definite amount of work, an instruction on the issue of plaintiff's abandonment of the work, failing to require that the jury must find that the contract was for a definite amount of work in order to find for plaintiff, was properly refused.

Appeal from El Paso County Court; James A. Orr, Judge.

Action by J. A. R. Reynolds against Frank Hart. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Frank J. Baker, for appellant. George Gardner, for appellee.

GABBERT, J. Appellant, plaintiff below, brought suit before a justice of the peace to recover from appellee, as defendant, damages which he claimed to have sustained in not being permitted to complete a contract which he claims to have entered into with the defendant. The case was appealed to the county court, and there tried before a jury. A verdict was rendered for the defendant, from which the plaintiff appeals.

There being no written pleadings, the issues

between the parties must be determined from the testimony. Plaintiff testified that he was employed by the defendant to do 30 feet of assessment work on mining claims, for which he was to receive $2.50 per shift. He worked 17 shifts, and was then, as he claims, discharged without cause. He was paid for the work performed. Defendant testified that the contract with plaintiff was for no definite amount of work, but by the day or shift only; that the mines upon which the work was to be performed were situated at or above timber line, and that it was necessary to perform the work on these claims before snowfall; that the contract between the parties was entered into some time in the month of September; that plaintiff quit the job and stayed away for 9 or 10 days; and that plaintiff voluntarily relieved him from the contract by writing him a letter to the effect that he might consider himself at liberty to hire some one else to do the work which he had engaged to perform. It further appears from the testimony, which is undisputed, that plaintiff did cease work for about 9 days; that he notified defendant that his cessation of work was caused by the illness of his wife; that he would resume work by a certain date, if he was not notified to the contrary; that he did go to the property where the work was to be performed on that date, and on his way up met the defendant, and notified him that he was going to work; that the defendant made no objection to his resuming work; that he did work 2 days, and was then discharged.

It is evident that there were two issues which the parties sought to litigate: (1) Whether the contract was for a definite amount of work at so much per shift, or whether it was by the shift only; and (2) an abandonment of the contract by plaintiff, either by ceasing work for such a length of time that defendant was justified in discharging him, or that plaintiff voluntarily released him from the contract. The case having been submitted to a jury, and a verdict rendered in favor of the defendant, his counsel here invoke the rule that a verdict based on conflicting testimony will not be disturbed on review. There are two reasons why this rule is not applicable to the present case: (1) It does not apply if the case is not submitted under proper instructions; and (2) when an issue has been submitted to the jury which is not in the case. Instructions given submitted the case to the jury upon the theory that a verdict should be returned for the defendant if it appeared from the testimony that . plaintiff ceased work under his contract for an unreasonable length of time, or if plaintiff, while absent from work, informed the defendant that he might not return, and defendant was at liberty to employ another to take his place. From the testimony it is clear there was no issue of abandonment of the contract by plaintiff, either by ceasing work for an unreasonable length of time or notifying de

fendant that he was at liberty to employ some one to take his place. An instruction which submits to the jury a question not in the case is erroneous. Walsh v. Jackson, 33 Colo. 454, 81 Pac. 258; Big Hatchet Con. M. Co. v. Colvin, 19 Colo. App. 405, 75 Pac. 605. Assuming that, in view of the season of the year, the character of the work to be performed, and the location of the properties upon which the work was to be done, the defendant would be authorized to treat the contract as abandoned on the part of the plaintiff in the event he ceased work for an unreasonable length of time, and that plaintiff's ceasing to work for 9 or 10 days was an unreasonable length of time, it appears that defendant failed to take advantage of his rights in this respect. He admits that he was notified by plaintiff that he would go up to work on a certain day, unless he was notified to the contrary; that plaintiff did go that day, and on his way up met him; that he knew plaintiff was going to resume work, but he did not notify him that he had elected to consider the contract terminated. It further appears that plaintiff did actually resume work for 2 days. A party who has the right to rescind a contract because of the default of another to such contract must at least act with a reasonable degree of promptness after knowledge of such default; otherwise, he waives his right to rescind because of such default. Auld v. Travis, 5 Colo. App. 535, 39 Pac. 357; Tilley v. Montelius Piano Co., 15 Colo. App. 204, 61 Pac. 483; 7 Current Law, 821; Dunn v. Steubing, 120 N. Y. 232, 24 N. E. 315. So that the failure of the defendant to inform plaintiff that he had elected to terminate the contract because of his default, and permitting him to resume work without objection thereafter, was clearly a waiver of his right to take any advantage of plaintiff's default, if he had that right.

The same rule applies to the instruction on the subject of plaintiff having offered to release defendant from his contract. He did not accept the offer, allowed plaintiff to resume work without objection, and neither by act nor deed indicated that he intended to avail himself of the privilege extended by plaintiff. Outside of the question of damages, we think there was but one issue between the parties; 1. e., the terms of the contract. If, however, it could be successfully contended that there was such a conflict in the testimony on the question of abandonment or the release of defendant by plaintiff as to justify the submission of these questions to the jury, then the instructions were erroneous, because they omitted, as to the first proposition, the question of whether or not the defendant had waived his right to insist on an abandonment, and, as to the second, whether he had accepted the offer of plaintiff to release him from his contract. When a court instructs a jury upon what state of facts a verdict must be returned against a party, the instruction must include all the facts material

to the right of such party. Gallagher v. Williamson, 23 Cal. 332, 83 Am. Dec. 114; Deasey v. Thurman, 1 Idaho, 775; Holmes v. State, 23 Ala. 17.

Plaintiff requested an instruction, which was refused, to the effect that if he went to work with the consent of defendant, and worked two days after the alleged abandonment of his contract, before he was discharged, the defendant waived his right of pleading plaintiff's abandonment, and a verdict should be returned in favor of the plaintiff. This instruction was rightly refused, because, if there was any issue of abandonment in the case to be submitted to the jury, the instruc tion requested did not state all facts necessary for the jury to consider in connection with that question, in that both parties' rights further depended upon whether the contract was by the shift only, or for a definite amount of work.

There is another question in the case, not mentioned, however, by counsel for defendant, and that is whether there is any testimony to establish that plaintiff really suffered any damages; but, as it is not discussed, we express no opinion upon it. We mention it, however, so that it will not be assumed, in case of a retrial, that this court held that the testimony in the present record established damages in favor of plaintiff, in case he established the contract as contended by him.

The judgment of the county court is reversed, and the cause remanded for a new trial.

Reversed and remanded.

STEELE, C. J., and CAMPBELL, J., con

cur.

(42 Colo. 89)

UNION DEPOT & RY. CO. v. MEEKING et al.

(Supreme Court of Colorado. Feb. 3, 1908.) CARRIERS-REGULATION OF STATION GROUNDS -DISCRIMINATION AS TO HACKMEN.

A railroad or depot company owning a strip of land at a passenger station for the accommodation of travelers on railroads may lawfully exclude some hackmen or carriers of baggage from using it as a hack stand for the purpose of plying their vocation, while it gives to others permission to do so; they being allowed free access to deliver outgoing and receive incoming passengers.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 28, 29.]

Error to District Court, City and County of Denver; John I. Mullins, Judge.

Action by Abe Meeking and others against the Union Depot & Railway Company. There was judgment for plaintiffs, and defendant brings error. Reversed.

Wolcott, Vaile & Waterman and Dorsey & Hodges, for plaintiff in error.

CAMPBELL, J. The defendant corporation was organized under the laws of this state for the accomplished purpose of ac

quiring and maintaining in the city of Denver a union depot or passenger station which is situate near the terminal points of several railroads to which defendant furnishes the usual facilities of a depot or passenger station for the accommodation of the traveling public. The plaintiffs are licensed hackmen conducting in this city the business of carrying passengers and baggage for hire, particularly to and from this union depot. About 25 years before the beginning of this action the fire and police board of the city of Denver and defendant's grantor designated a certain strip of land leading from Wynkoop and Seventeenth streets into the union depot as a hack stand, and permitted plaintiffs and other hackmen in the city of Denver to occupy it for such purpose. Shortly before this action was begun plaintiffs were ordered by defendant no longer to occupy this strip of ground as a stand for their hacks, and immediately to vacate the same, and not to enter thereon to receive or discharge passengers destined to, or leaving, the union depot. In the complaint in which the foregoing facts are alleged plaintiffs say that this strip of ground is a part of the public highway, and belongs to the city and county of Denver, and the defendant has no control over, or interest in, it. It is further averred that if defendant carries out its threats to exclude plaintiffs therefrom while awaiting the arrival of travelers, or ejects them from these premises, or impedes or annoys them in the conduct of their business as they have theretofore conducted it for a long time, they and the public at large, particularly such portion of the public as are from time to time traveling on trains running into the depot, will suffer great loss, inconvenience, and damage which is incapable of being estimated. Therefore they pray for an injunction to restrain defendant from excluding them from occupying the premises, or ejecting them therefrom, or preventing them from using the same as they had theretofore been accustomed to do. Defendant filed an answer, and plaintiffs a replication, and upon issues thus joined hearing was by the court without a jury. Special findings of fact were made from which the court concluded that the equities were with plaintiffs, and upon such findings rendered a decree enjoining defendant from discriminating against plaintiffs in favor of a corporation to which defendant had granted the privilege, which plaintiffs claimed as a legal right, of entering upon defendant's grounds and there soliciting patronage.

It would seem that the case as made by the complaint was not, in all respects, proved by the evidence or upheld by the findings. No objection was made by defendant at the trial to the departure, and no error is assigned or argued to the variance between the allegations of the complaint and the proofs. Both parties apparently consented to have the law applied to the facts as found by the

court, though they are not the facts which the plaintiffs allege in their complaint as their cause of action. We mention this, not because our decision is in any way affected by it, but as a reminder that we have not overlooked it.

We proceed, therefore, to dispose of the cause on the special findings of fact. So far as they are material to the question of law involved, these findings are that this strip of land which plaintiffs and other hackmen have for a long time been accustomed to use as a hack stand, and from which the complaint alleges that defendant has ordered them to withdraw, and threatened to eject them from the same if they occupied it, is not, as the complaint alleges, a public highway, but, as the answer says, the private property of defendant. There was a finding that the chief of police of the city of Denver, with the license and consent of defendant's grantor, designated this strip as a hack stand, and that it had been so used by plaintiffs and others in the conduct of their business in carrying passengers to and from the depot, and that defendant had notified the hackmen, including plaintiffs, that they could no longer use this strip of land for the purpose of a hack stand, or to solicit patronage thereon. The important finding of fact, on which it based the decree, was stated by the court in the following language: "The court further finds that the defendant, the Union Depot & Railway Company, has entered into a certain contract between itself, the defendant company, and the Denver Omnibus & Cab Company, conferring upon and granting to the said the Denver Omnibus & Cab Company the exclusive privilege of entering with its hacks upon the grounds of the defendant company, and using the same and particularly the strip of land above referred to for the purpose of carrying on its business as an omnibus and cab company, and there soliciting the patronage of incoming passengers, to the exclusion of the plaintiffs from the right to a similar entry upon, and use of the premises of, the said defendant company." The court also made a finding-which seems to be a conclusion rather of law-that the exclusive right to solicit business from incoming passengers, and standing their hacks or vehicles on this strip of land, would give to the one who enjoyed the same an advantage over other hackmen or busmen who were excluded therefrom, and that such exclusive contract operated as a discrimination in favor of the Denver Omnibus & Cab Company against the plaintiffs, and tended to create a monopoly in its favor. It was upon this supposed unlawful discrimination against plaintiffs in favor of the cab company, to which the exclusive privilege was given, that the court concluded as a matter of law that the equities were with plaintiff, and rendered a decree prohibiting defendant company from enforcing the contract that purported to con94 P.-2

fer the privilege. The finding above quoted may be ambiguous, since it might be inferred therefrom that the purpose of defendant was to exclude plaintiffs from entering upon the depot grounds, or into the passenger station, while engaged in carrying passengers and baggage to and from the same. The answer, however, expressly denies that such was its purpose or intention, and there is an express averment therein that plaintiffs and each of them were notified that they might at all reasonable hours and times enter the depot and upon the depot grounds as the agents or representatives of persons whom they, or any of them, had contracted to deliver at, or carry from, the depot. The finding evidently meant that defendant's purpose was and is to prevent plaintiffs from using its grounds as a place for standing their vehicles, or as a place whereon to solicit patronage, while it conferred upon, and granted such rights to, the Denver Omnibus & Cab Company.

But we think the court did not intend to find that defendant had ordered, or threatened to order, plaintiffs not to enter upon its premises to deliver or receive passengers. The plaintiffs made such an allegation in the complaint, but they produced no evidence whatever to prove it, while defendant's superintendent positively testified that no such order of exclusion had ever been made or threatened, but, on the contrary, plaintiffs were specifically told they might enter upon its premises freely at all reasonable hours both to receive incoming, and to deliver outgoing, passengers. And that this is so becomes plain when it is considered that there is no clause in the decree which restrains defendant from refusing plaintiffs free access to its grounds to carry passengers to and fro, obviously because there was no evidence that such was its intention, while the only acts it is enjoined from doing are such as tend to obstruct plaintiffs in their claim of right to use the designated strip of land as a hack stand, and as a place where they might freely ply their vocation. The question of the right of plaintiffs to free access to the depot for taking thereto departing, or receiving arriving, passengers with whom plaintiffs might have a contract of carriage, is not in this case. Such right is not questioned, but directly recognized, by defendant.

The vital question, then, in the case, and the only one determined below, may thus be stated: May defendant lawfully permit the Denver Omnibus & Cab Company to have the sole right to stand, and solicit patronage, upon the premises of the defendant, and exclude all other hackmen from standing and soliciting thereon? The question is one of first impression in this jurisdiction. It has been ruled differently by different courts. Some of the earlier cases, apparently based upon the ruling of the Supreme Court of New Hampshire in Markham v. Brown, 8 N. H. 523, 31 Am. Dec. 209, hold that such a con