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And so the obligations of an innkeeper towards his guest are those which the law attaches to this status, irrespective of whether the parties in the particular instance may have made any agreement covering the contingency.56

23. Real party in interest.-It is commonly said of public employments that the whole public is peculiarly interested in having them carried on. But this should be no justification for giving a private right to any person not clearly entitled thereto. Most of the American cases permit the sendee of a telegram to recover damages for fault of the company in the transmission of the message.57 But such an action it seems may only be justified when it appears that the sendee and not the sender is the real party in interest. A similar conflict arises when a suit is brought by a householder whose premises have been destroyed by fire against the water company supplying the district. The cases are divided as to whether he may recover damages in his own right for the failure to maintain water pressure sufficient to cope with fires.58 This public duty is necessarily limited to responding to the proper applications of those who are desirous of the sort of service which has been professed. A householder using electricity for lighting his house will seek in vain to have the gas company compelled by the courts to continue to maintain its connec

56 Holland v. Pack, Peck 151 (Tenn.).

57 For a discussion of the authorities, see Western Union Telegraph Co. v. Allen, 66 Miss. 549, 6 So. 461.

58 For a discussion of the authorities, see Lovejoy v. Bessemer Water Works Co., 146 Ala. 374, 41 So. 76.



tions for his occasional use." And one who is applying for service with the desire simply of being refused service so as to bring a law suit, will defeat his own ends.6

24. Nature of the relationship.—The condition under which public service is performed is, therefore, not similar to contract, but is more like status. It would be difficult to find present all the essential elements of contract in arranging for public service. And it would be impossible to find all the obligations of the status in any agreement which the parties actually make. The applicant need not even have the capacity to contract; an infant or a married woman may demand service.61 Nor need the proprietor himself be capable; a man not sane enough to make contracts or a corporation acting beyond its powers cannot escape. The relationship is established by actual acceptance, although the payment is made by another person. But the relationship itself is so personal that the right to have the service completed may not be assigned.°4 It is but a half truth that those who commit themselves to a public employment are bound to serve the whole public. It is but a half truth that the public servant may altogether decide as to the ex




69 Fleming v. Montgomery Light Co., 100 Ala. 657, 13 So. 618, LEADING ILLUSTRATIVE CASES.

60 Southern Pacific Co. v. Robinson, 132 Cal. 458, 64 Pac. 572.

61 Watson v. Cross, 2 Duv. 147 (Ky.), (infant). Vanderberg v. Kansas City, Missouri, Gas Co., 126 Mo. App. 600, 105 S. W. 17 (married woman).

62 Cross v. Andrews, Cro. Eliz. 622 (Eng.), (insane proprietor); Albion Lumber Co. v. De Nobra, 72 Fed. 739 (ultra vires corporation).

63 Mims v. Seaboard Air Line Ry., 69 S. C. 338, 48 S. E. 269. 64 Sullivan v. Chicago Bd. of Trade, 111 Ill. App. 492.


tent to which he will commit himself to public service. The real truth is that by entering upon the service one comes within the law requiring him to meet the necessities of the situation but no more. The obligations are thus the involuntary ones of a legal status—not the defined ones of a specific assumption.

25. Special needs of travelers.—The duty as thus defined is not to all men, but to a certain public limited in various ways according to the necessary profession. An innkeeper or a carrier does not owe a duty to all who apply, but only to wayfarers and travelers. The innkeeper need not entertain a resident of his own town;45 and a carrier need not take as a passenger one who wants to sell things while he is on board. It is only as to dealings with travelers that these callings have been felt to be affected with a public interest. There is special reason in the nature of the case why innkeepers should be bound to entertain weary wayfarers, and why carriers of passengers must take up travelers bound their way. Moreover, it is well agreed that the innkeeper and the carrier are under a similar duty to the patron to receive persons incidentally affected by the principal service. The innkeeper must treat one summoned by the guest to a call upon him at his inn with the same consideration as the guest himself.67 A person who comes to the carrier's premises in order to be of assistance to the

65 Meacham v. Galloway, 102 Tenn. 415, 52 S. W. 859. 66 The D. R. Martin, 11 Blatch. 233 (U. S.) 67 Markham v. Brown, 8 N. H. 523.

departing passenger, though not a passenger, is entitled to be admitted to the station; and he may even, in order to assist a passenger, demand admittance to a

26. Peculiar rights of occupiers.—In several of the public services the obligation is limited to the supplying of the occupiers of premises. Such is obviously the case in regard to the water companies, the gas companies, the electric companies and the telephone companies which undertake to distribute their product or perform their services generally throughout the city. They do not undertake to serve every person as such, for it is obvious that their services are necessary only in connection with the use of buildings. Their obligation is, therefore, properly held to be limited to the occupiers of premises by the general character of their customary undertaking. As a Vice-Chancellor in New Jersey 69 said, it would be quite absurd to say that a person destitute of any local habitation within the corporate limits of Jersey City has the least right to demand a supply of gas. According to this analysis of the situation the occupiers of every house within the territory served have a right to be supplied. The Montanacase is therefore sound which holds that a rule of the company to the effect that it would only deal with owners, ignored the fundamental rights of tenants to have the service. Making occupancy the test gives rise to some nice problems as to the supply to apartment houses or to buildings with common ownership.72 If there are separate holdings there should be separate supply; there is no obligation to supply such unattached persons as mere boarders.

68 McKone v. Michigan Central R. R., 51 Mich. 601, 17 N. W. 74.

69 Public Service Corp. v. American Lighting Co., 67 N. J. Eq. 122, 57 Atl. 482.

70 State ex rel. Milstead v. Butte City Water Co., 18 Mont. 199, 44 Pac. 966, LEADING ILLUSTRATIVE CASES.

27. Obligations toward dependent services.A special problem under the general head of the true extent of public duty is whether in dealing with dependent services those who conduct the principal service may make such arrangements as they please with those who apply for such special privileges, or whether there is a public duty in the premises requiring that equal facilities shall be granted. The railroad company surely owes no duty to expressmen themselves, as is shown by the fact that the railroad may do all the express business on the line itself. On the other hand, passengers coming in their own carriages could not be refused entrance to a station; and hacks ordered to meet passengers may come in and await them. Even when it is once established that there is a public duty toward their own patrons in respect to the subsidiary service involved, there remains the conflict of authority as to the extent to which this duty goes. According to the conservative view, the principal company fulfills its duty by making proper provision for the service desired. Thus a railroad by many courts is allowed to make an exclusive contract with one hack concern to use the station

71 Ferguson v. Metropolitan Gas Light Co., 37 How. Pr. 189 (N. Y.). 72 United States v. American Water Works Co., 37 Fed. 747.

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