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DUTY TO CARRY FOR ALL

109. It is the duty of the common carrier of goods to accept and transport all goods offered, subject to the following limitations:

(1) The nature of his holding out.

(2) The extent of his facilities.

(3) The nature and condition of the goods.
(4) The payment of his charges in advance.

(5) The shipper's authority to deliver.

The duty of the common carrier of goods to carry for all has already been briefly discussed in connection with the question of who are common carriers. This duty is imposed by law as the result of the carrier's public profession, but it is subject to the limitations above set out which will now be considered in detail. For a violation of this legal duty, the carrier may be sued at law by the intending shipper, who may recover for the damage proximately resulting from such refusal. In a few cases, under peculiarly aggravating circumstances, exemplary damages have been allowed. In many cases, it has been held that an injunction or peremptory writ of mandamus will issue to compel the common. carrier, in the discharge of this clear legal duty, to accept and transport the goods which have been properly tendered to him."

1 Ante, § 107.

2 Reid v. Southern Ry. Co., 153 N. C. 490, 69 S. E. 618; Ayres v. Chicago & N. Ry. Co., 71 Wis. 372, 37 N. W. 432, 5 Am. St. Rep. 226; Atchison, T. & S. F. Ry. Co. v. Denver & N. O. Ry. Co., 110 U. S. 667, 4 Sup. Ct. 185, 28 L. Ed. 291; Chicago & A. Ry. Co. v. Suffern, 129 Ill. 274, 21 N. E. 824; St. Louis, A. & T. Ry. Co. v. Neel, 56 Ark. 279, 19 S. W. 963; Seasongood v. Tennessee & O. R. Transp. Co., 54 S. W. 193, 21 Ky. Law Rep. 1142, 49 L. R. A. 270; Houston, E. & W. T. Ry. Co. v. Campbell, 91 Tex. 551, 45 S. W. 2, 43 L. R. A. 225; Riley v. Horne, 5 Bing. (Eng.) 217; Crouch v. London, etc., Ry. Co., 14 C. B. (Eng.) 255; Beech Creek Ry. Co. v. Olanta Coal Mining Co., 158 Fed. 36, 85 C. C. A. 148; Louisville & N. Ry. Co. v. Higdon, 149 Ky. 321, 148 S. W. 26. It has been said (Pozzi v. Shipton, 1 Per. & D. [Eng.] 4, 12) that the carrier may be indicted, but there seem to be no records of convictions in such cases.

a Avinger v. South Carolina Ry. Co., 29 S. C. 265, 7 S. E. 493, 13 Am. St. Rep. 716.

4 Southern Exp. Co. v. Rose, 124 Ga. 581, 53 S. E. 185, 5 L. R. A. (N. S.) 619; CHICAGO & N. W. RY. CO. v. PEOPLE ex rel. HEMPSTEAD, 56 Ill. 365, 8 Am. Rep. 690, Dobie Cas. Bailments and Carriers, 183; Atwater v. Delaware, L. & W. R. Co., 48 N. J. Law, 55, 2 Atl. 803, 57. Am. Rep. 543; Sandford v. Catawissa, W. & E. R. Co., 24 Pa. 378, 64 Am. Dec. 667; People v. New York Cent. & H. R. R. Co., 28 Hun (N. Y.) 543; Menacho v. Ward (C. C.)

SAME-DUTY COEXTENSIVE WITH THE HOLDING OUT

110. As the common carrier's duty to carry is coextensive with his holding out, he is not obliged to accept goods of a kind he does not profess to carry, nor for carriage over any other route nor by any other means than those indicated by his profession.

The duty of the common carrier of goods to carry for all who offer arises from the public profession he has made, and is in turn limited by it. This public profession, therefore, not only furnishes the basis of the duty, but also defines its extent. Accordingly, as to the duty to accept goods for transportation, the carrier is a common carrier only within the limits that he has himself prescribed. If the transportation sought by the individual shipper is outside of these limits, the carrier has a perfect right, without incurring any liability, to refuse to accept the goods for shipment.

Thus a person may profess to carry a particular class of goods only, as, for instance, cattle or dry goods, in which case he could not be compelled to carry any other kind of goods; or he may limit his obligation to carrying from one place to another, as from Manchester to London, and then he would not be compelled to carry either beyond these termini or to or from intermediate places. As we have seen, the wagoner may confine his activities as a com

27 Fed. 529; Chicago, B. & Q. Ry. Co. v. Burlington, C. R. & N. Ry. Co. (C. C.) 34 Fed. 481. Where an action for damages is an adequate remedy, mandamus will not lie. People v. New York, L. E. & W. R. Co., 22 Hun (N. Y.) 533; People v. Babcock, 16 Hun (N. Y.) 313.

5 Lake Shore & M. S. R. Co. v. Perkins, 25 Mich. 329, 12 Am. Rep. 275; Tunnel v. Pettijohn, 2 Har. (Del.) 48; Knox v. Rives, 14 Ala. 249, 48 Am. Dec. 97; Powell v. Mills, 30 Miss. 231, 64 Am. Dec. 158; Carr v. Lancashire, etc., Ry. Co., 7 Exch. (Eng.) 707; Batson v. Donovan, 4 B. & Ald. (Eng.) 21. Where a carrier holds itself out as only engaged in the carriage of specified articles, it is under no obligation to carry other things. Louisville & N. R. Co. v. Higdon, 149 Ky. 321, 148 S. W. 26.

• Johnson v. Railway Co., 4 Exch. (Eng.) 367; Central R. & Banking Co. v. Lampley, 76 Ala. 357, 52 Am. Rep. 334; Honeyman v. Oregon & C. R. Co., 13 Or. 352, 10 Pac. 628, 57 Am. Rep. 20; Kimball v. Rutland & B. R. Co., 26 Vt. 247, 62 Am. Dec. 567; Pitlock v. Wells, Fargo & Co., 109 Mass. 452; Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 16, 33, Fed. Cas. No. 2,730; Sewall v. Allen, 6 Wend. (N. Y.) 335, 346; Kuter v. Michigan Cent. R. Co., 1 Biss. 35, Fed. Cas. No. 7,955. Carriers of money: Shelden v. Robinson, 7 N. H. 157, 26 Am. Dec. 726; Kemp v. Coughtry, 11 Johns. (N. Y.) 107, 109; Emery v. Hersey, 4-Greenl. (Me.) 407, 16 Am. Dec. 268; Harrington v. McShane, 2 Watts (Pa.) 443, 27 Am. Dec. 321; Merwin v. Butler, 17 Conn. 138; Dwight v. Brewster, 1 Pick. (Mass.) 50, 11 Am. Dec. 133.

mon carrier to a single city, or baggage transfer men may engage as common carriers solely in the business of transporting trunks to and from railroad stations and steamboat wharves.' The carrier may also by his profession limit the means of transportation. Thus the wagoner could not be compelled to carry by railroad, nor must the carrier by land accept goods for transportation by water.s

Again, even apart from a definite profession by the carrier, common sense would impose certain limitations on his duty to accept goods for transportation. Thus he is not compelled to accept goods tendered at an unreasonable hour, or at an unreasonable place, or even when tendered an unreasonably long time before the goods are to be shipped.10 But to the extent of his public profession the common carrier must carry for all who offer.

SAME-DUTY LIMITED BY THE EXTENT OF THE CARRIER'S FACILITIES

111. The early rule seems to have been that the common carrier's duty was strictly limited by his facilities, however insufficient they were; but the modern rule requires the common carrier of goods to provide sufficient facilities to handle all the traffic which can reasonably be anticipated.

By the early common law the duty of the carrier to accept goods for transportation seems to have been strictly limited to his facilities, however crude and insufficient these might have been.11 Thus it was said that the carter was not bound to supply more carts than he was in the habit of employing, when these were not sufficient to carry the goods tendered to him.12 And it was further held that he was not obliged to accept goods for transportation

Ante, § 107.

1 Hutch. Carr. § 60; Pittsburgh, C. & St. L. Ry. Co. v. Morton, 61 Ind. 539, 28 Am. Rep. 682; Pitlock v. Wells, Fargo & Co., 109 Mass. 452.

• Pickford v. Railway Co., 12 Mees. & W. (Eng.) 766; Lane v. Cotton, 1 Ld. Raym. (Eng.) 646, 652; Louisville, N. A. & C. Ry. Co. v. Flanagan, 113 Ind. 488, 14 N. E. 370, 3 Am. St. Rep. 674; Cronkite v. Wells, 32 N. Y. 247.

10 Palmer v. Railway Co., 35 Law J. C. P. (Eng.) 289; Garton v. Railway, Co., 28 Law J. C. P. (Eng.) 306; Lane v. Cotton, 1 Ld. Raym. (Eng.) 646.

11 Jackson v. Rogers, 2 Stow. (Eng.) 327; Batson v. Donovan, 4 B. & Ald. (Eng.) 21; Riley v. Horne, 5 Bing. (Eng.) 217; Tunnel v. Pettijohn, 2 Har. (Del.) 48.

12 Wood, Browne, Carr. § 73; Johnson v. Ry. Co., 4 Exch. (Eng.) 367, 373.

when the vehicles which he employed were already full." In other words, the carrier might provide as many or as few facilities as he saw fit, the law imposed no obligation on him in this respect, and these facilities constituted the limit of his duty to accept goods to be carried.

However well these rules may have worked at a time when the wagoner and carter were the chief instruments of commerce on land, they are clearly unsuited to modern economic conditions. The part played by the railroad to-day in the development of any community, and the unique privileges (such as the power of eminent domain) which it enjoys, would emphatically forbid the lax rules under which the wagoner pursued his calling.

It is now held, therefore, that the common carrier of goods must provide facilities sufficient to handle the volume of traffic which, under the circumstances, might reasonably be anticipated.14 For his failure in this respect the carrier is correspondingly liable in damages to the shipper. To that extent, too, the carrier cannot plead the lack of facilities as an excuse for his failure to accept and transport the goods offered to him. The nature and extent of the equipment which the carrier must furnish is accordingly based on, and determined by, the reasonable demands of the traffic under the particular conditions in question. The carrier, however, is not required to provide facilities adequate for any demands that may be made upon him, and particularly is he excused from liability for his failure to provide for an unusual influx of goods, an unexpected accumulation of freight, or an extraordinary press of business. Any such requirement would be abnormal, and

15

18 See cases cited in note 11.

14 Missouri & N. A. Ry. Co. v. Sneed, 85 Ark. 293, 107 S. W. 1182; Peet v. Chicago & N. W. Ry. Co., 20 Wis. 594, 91 Am. Dec. 446; Galena & C. U. R. Co. v. Rae, 18 Ill. 488, 68 Am. Dec. 574; Chicago & A. Ry. Co. v. Davis, 159 Ill. 53, 42 N. E. 382, 50 Am. St. Rep. 143; Baker v. Boston & M. Ry. Co., 74 N. H. 100, 65 Atl. 386, 124 Am. St. Rep. 937, 12 Ann. Cas. 1072; Western New York & P. Ry. Co. v. Penn Refining Co., Limited, of Oil City, Pa., 137 Fed. 343, 70 C. C. A. 23; Atlantic Coast Line R. Co. v. Wharton, 207 U. S. 328, 28 Sup. Ct. 121, 52 L. Ed. 230. For an elaborate treatment of the common carrier's duty to provide adequate facilities, with copious citations, see 1 Wyman Public Service Corporations, c. 23. Where the shipper applies for cars, to be furnished at a certain time and place, the carrier, if unable to furnish the cars, must so notify the shipper. Ayres v. Chicago & N. W. Ry. Co., 71 Wis. 372, 37 N. W. 432, 5 Am. St. Rep. 226; Newport News & M. V. R. Co. v. Mercer, 96 Ky. 475, 29 S. W. 301.

15 Toledo, W. & W. Ry. Co. v. Lockhart, 71 Ill. 627; Galena & C. U. R. Co. v. Rae, 18 Ill. 488; Faulkner v. Railroad Co., 51 Mo. 311; Condict v. Railway Co., 54 N. Y. 500; Chicago, St. L. & P. R. Co. v. Wolcott, 141 Ind. 467, 39 N. E. 451; ST. LOUIS SOUTHWESTERN RY. CO. v. CLAY COUNTY

would impose an unreasonable, and often even an impossible, condition upon the carrier. But if the carrier by the exercise of reasonable diligence could have provided adequate facilities to handle this press of business, then the carrier should not be excused for his failure in this respect.10

16

Though the rule imposing upon the common carrier the duty of furnishing reasonable facilities ample for handling traffic which reasonably might have been foreseen is held by modern cases to be a duty derived from the common law, many states have passed statutes on the subject." The same duty, however, is recognized by the federal Interstate Commerce Act, 18 while the right of enforcing this duty by mandamus is specifically conferred on the United States courts.10

SAME-DUTY LIMITED BY THE NATURE OR CONDITION OF THE GOODS

112. The common carrier is not obliged to accept for transportation goods of a dangerous or suspicious nature, or goods in such condition as to be unfit for shipment.

The high degree of responsibility as to the goods in his charge is sufficient in itself to excuse the carrier from accepting goods

GIN CO., 77 Ark. 357, 92 S. W. 531, Dobie Cas. Bailments and Carriers, 185; Wallace v. Pecos & N. T. Ry. Co., 50 Tex. Civ. App. 296, 110 S. W. 162; Yazoo & M. V. Ry. Co. v. McKay, 91 Miss. 138, 44 South, 780. It is the duty of a railroad company to provide cars sufficient to transport goods offered in the usual and ordinary course of business, but it is not bound to anticipate and prepare for an exceptional and extraordinary press of business. Southern Ry. Co. v. Atlanta Sand & Supply Co., 135 Ga. 35, 68 S. E. 807. See, also, Montana, W. & S. Ry. Co. v. Morley (D. C.) 198 Fed. 991.

16 Hansley v. Jamesville & W. R. Co., 117 N. C. 565, 23 S. E. 443, 32 L. R. A. 543, 53 Am. St. Rep. 600; Ayres v. Chicago & N. W. Ry. Co., 71 Wis. 372, 37 N. W. 432, 5 Am. St. Rep. 226; Illinois Cent. Ry. Co. v. Cobb, 64 Ill. 128; Dallenbach v. Illinois Cent. Ry. Co., 164 Ill. App. 310.

17 See Oliver & Son v. Chicago, R. I. & P. Ry. Co., 89 Ark. 466, 117 S. W. 238; Murphy Hardware Co. v. Southern Ry. Co., 150 N. C. 703, 64 S. E. 873, 22 L. R. A. (N. S.) 1200, 17 Ann. Cas. 481. Some of these statutes, imposing stringent and unreasonable duties on the carrier, have been declared void by the federal courts. See Houston & T. C. Ry. Co. v. Mayes, 201 U. S. 321, 26 Sup. Ct. 491, 50 L. Ed. 772; St. Louis, I. M. & S. Ry. Co. v. Hampton (C. C.) 162 Fed. 693.

18 Interstate Commerce Act Feb. 4, 1887, c. 104, §§ 1, 3, 23, 24 Stat. 379, 380 (U. S. Comp. St. 1901, pp. 3154, 3155, 3171).

19 See the deficiency appropriation bill of October 22, 1913, abolishing the Commerce Court (which formerly exercised this jurisdiction), and conferring on the United States District Court the powers formerly possessed by the Commerce Court.

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