20

which are likely to injure other goods which he is transporting. The carrier, therefore, owes no duty to accept goods which are from their very nature dangerous.2 Thus the common carrier is justified in refusing to receive such highly explosive substances as dynamite or nitro-glycerine.21 The same is true of goods affected with contagious diseases, goods prohibited by law from being carried,22 or goods the transportation of which might precipitate a dangerous riot.28 When the carrier has reasonable grounds for suspicion that the goods are dangerous, he may refuse to receive such goods, unless he is permitted to open such goods or otherwise acquaint himself with their real nature." Ordinarily, he has no right to insist upon being informed as to the contents of packages offered to him for shipment.25

Even though the goods are not dangerous by nature, the carrier may refuse to receive them if, in their then condition, they are unfit for shipment. The carrier may also refuse to accept goods which are improperly packed for shipping.20 Thus the carrier could refuse eggs merely placed in an open basket, or liquids packed in vessels so fragile that they are certain to be broken in transportation.

20 The Nith (D. C.) 36 Fed. 86; California Powder Works v. Atlantic & P. Ry. Co., 113 Cal. 329, 45 Pac. 691, 36 L. R. A. 648.

21 Nitro-Glycerine Case, 15 Wall. 524, 21 L. Ed. 206.

22 Milwaukee Malt Extract Co. v. Chicago, R. I. & P. Ry., 73 Iowa, 98, 34 N. W. 761; State v. Goss, 59 Vt. 266, 9 Atl. 829, 59 Am. Rep. 706.

28 Edwards v. Sherratt, 1 East (Eng.) 604; Porcher v. Northeastern R. Co., 14 Rich. (S. C.) 181, 184; Pearson v. Duane, 4 Wall. 605, 18 L. Ed. 447. 24 Nitro-Glycerine Case, 15 Wall. 524, 21 L. Ed. 206; Brass v. Maitland, 6 El. & Bl. (Eng.) 485; Crouch v. Railroad Co., 14 C. B. (Eng.) 285, 291; Riley v. Horne, 5 Bing. (Eng.) 217, 222.

25 Nitro-Glycerine Case, 15 Wall. 524, 21 L. Ed. 206; Crouch v. Railroad Co., 14 C. B. (Eng.) 285, 291; Dinsmore v. Louisville, N. A. & C. R. Co. (C. C.) 3 Fed. 593. The right of the company to have parcels opened extends only to those suspected to contain dangerous articles. They have no general right, in all cases, and under all circumstances, to be informed of the contents tendered to be carried. Crouch v. Railway Co., 14 C. B. (Eng.) 255. Where a customer negligently fails to inform the carrier of the dangerous nature of a parcel, he will be liable for damages caused by it. Farrant v. Barnes, 31 Law J. C. P. (Eng.) 137, 11 C. B. (N. S.) 553.

20 Elgin, J. & E. Ry. Co. v. Bates Mach. Co., 98 Ill. App. 311, affirmed 200 Ill. 636, 66 N. E. 326, 93 Am. St. Rep. 218; Vicksburg Liquor & Tobacco Co. v. United States Exp. Co., 68 Miss. 149, 8 South. 332; Union Exp. Co. v. Graham, 26 Ohio St. 595. Goods packed so defectively as to entail upon the carrier extra care and risk may be refused. Munster v. Railway Co., 27 Law J. C. P. (Eng.) 308, 312; Hart v. Baxendale, 16 Law T. N. S. (Eng.) 396.

SAME-DUTY LIMITED BY THE CARRIER'S RIGHT TO DEMAND PAYMENT IN ADVANCE

113. The common carrier may refuse to carry the goods offered unless the transportation charges are paid in advance.

Since the common carrier of goods cannot choose with whom he will deal, but must carry indifferently for all who apply, it is but just that his compensation should be absolutely assured to him. Therefore the law treats him as it does the innkeeper, and not only gives him a lien upon the goods carried for his reasonable charges, but also authorizes him to require payment in advance.27 The detailed consideration of this subject will be postponed to the chapter dealing with the rights of the common carrier of goods. 28

Payment in advance is treated here solely as an excuse for the common carrier's refusal to carry the goods offered to him. This duty on the part of the carrier to carry for all falls away when the carrier demands the payment of his reasonable charges in advance, and this is refused by the shipper.20 If such prepayment is not made on demand, the carrier is then under no obligation whatsoever to transport the goods. The money is not required to be paid down however, until the carrier receives the goods which he is bound to carry. A carrier should therefore first accept the goods, and then demand payment as a condition precedent to transporting them.31 The right to exact payment in advance may, of course, be waived, and is waived by any conduct on the part of the carrier inconsistent with the continuance of the right, such as an actual acceptance of the goods for carriage without a demand for prepayment of the charges.

80

88

27 Fitch v. Newberry, 1 Doug. (Mich.) 1, 40 Am. Dec. 33; Pickford v. Railway Co., 8 Mees. & W. (Eng.) 372; Wyld v. Pickford, 8 Mees. & W. (Eng.) 443.

28 See post, § 147.

29 Wilder v. St. Johnsbury & L. C. R. Co., 66 Vt. 636, 30 Atl. 41; Illinois Cent. Ry. Co. v. Frankenberg, 54 Ill. 88, 5 Am. Rep. 92. But, unless the carrier demands prepayment, failure on the shipper's part to tender the charges will not justify the carrier's refusal to transport the goods. Galena & C. U. Ry. Co. v. Rae, 18 Ill. 488, 68 Am. Dec. 574.

30 Pickford v. Ry. Co., 8 Mees. & W. (Eng.) 372. 811 Hutch. Carr. § 150.

32 Louisville & N. R. Co. v. Allgood, 113 Ala. 163, 20 South. 986; Hannibal & St. J. Ry. Co. v. Swift, 12 Wall. 262, 20 L. Ed. 423.

33 Grand Rapids & I. Ry. Co. v. Diether, 10 Ind. App. 206, 37 N. E. 39, 1069, 53 Am. St. Rep. 385; Southern Indiana Exp. Co. v. United States Exp. Co. (C. C.) 88 Fed. 659.

SAME-DUTY LIMITED TO AN OFFER OF THE GOODS BY THE OWNER OR HIS AGENT

114. The common carrier may refuse to accept goods offered for transportation by one who is neither the owner of the goods nor the owner's authorized agent.

Common carriers are bound to accept goods for transportation only when they are offered by their lawful owner or his agent with authority to make the shipment. If the goods are innocently accepted by the common carrier from a person not the owner, and who has no such authority from the owner, then not only is the contract of carriage not binding personally against the owner, but such contract, as against the owner, does not even bind the goods. The owner could therefore demand the goods from the carrier, defeating the latter's lien." The carrier, acting in good faith, it is usually held, does not become liable for conversion merely by innocently shipping the goods. The carrier may become liable for conversion by refusing to deliver the goods to their rightful owner. When, however, the carrier, with knowledge of the situation, receives and transports the goods, the carrier then becomes an active participant in the wrong and is liable 'accordingly. From these considerations it is clear that the carrier, in refusing to accept goods for transportation, finds more than ample justification in the fact that the one offering the goods is neither the owner nor his authorized ågent."

DUTY TO FURNISH EQUAL FACILITIES TO ALL

115. Not only must the common carrier of goods serve the public, but he must serve the public impartially, without any preference or discrimination among shippers as to the facilities which are furnished.

84 Drake v. Nashville, C. & St. L. Ry. Co., 125 Tenn. 627, 148 S. W. 214; Fitch v. Newberry, 1 Doug. (Mich.) 1, 40 Am. Dec. 33; Gurley v. Armstead, 148 Mass. 267, 19 N. E. 389, 2 L. R. A. 80, 12 Am. St. Rep. 555.

35 Fitch v. Newberry, 1 Doug. (Mich.) 1, 40 Am. Dec. 33; Gurley v. Armstead, 148 Mass. 267, 19 N. E. 389, 2 L. R. A. 80, 12 Am. St. Rep. 555.

36 Gurley v. Armstead, 148 Mass. 267, 19 N. E. 389, 2 L. R. A. 80, 12 Am. St. Rep. 555.

37 A common carrier need not receive for transportation goods from any person other than the owner or his duly authorized agent. Drake v. Nashville, C. & St. L. R. Co., 125 Tenn. 627, 148 S. W. 214.

It is the purpose of the present section to discuss the question of preference or discrimination among shippers in regard to the carrier's facilities or the nature of the service. Discrimination in the rates charged for the service is left for subsequent consideration.38

40

39

The duty of the common carrier of goods is not limited to serving the public, but he must serve them impartially. He does not perform his full duty, then, as to two shippers, by serving them both. He must go further, and not prefer the one to the other as to the way in which he serves them. The service must be disinterested, with nothing in it of favoritism. This is true, not only as to the facilities furnished by the carrier and the general nature of the service, but is equally applicable to the highly important element of time. Shippers should be served in the order of their application. The carrier violates its duty of impartiality by withholding cars from one shipper and furnishing them sooner to one who subsequently applied.".

39 ST. LOUIS SOUTHWESTERN R. CO. v. CLAY COUNTY GIN CO., 77 Ark. 357, 92 S. W. 531, Dobie Cas. Bailments and Carriers, 185; Memphis News Pub. Co. v. Southern R. Co., 110 Tenn. 684, 75 S. W. 941, 63 L. R. A. 150; Loraine v. Pittsburg, J., E. & E. Ry. Co., 205 Pa. 132, 54 Atl. 580, 61 L. R. A. 502; Strough v. New York Cent. & H. R. R. Co., 181 N. Y. 533, 73 N. E. 1133; New England Exp. Co. v. Maine Cent. R. Co., 57 Me. 188, 2 Am. Rep. 31; International Exp. Co. v. Grand Trunk Railway of Canada, 81 Me. 92, 16 Atl. 370; Houston & T. C. Ry. Co. v. Smith, 63 Tex. 322; McDuffee v. Portland & R. R. R., 52 N. H. 430, 13 Am. Rep. 72; Messenger v. Pennsylvania R. Co., 37 N. J. Law, 531, 18 Am. Rep. 754; CHICAGO & N. W. RY. CO. v. PEOPLE ex rel. HEMPSTEAD, 56 Ill. 365, 8 Am. Rep. 690, Dobie Cas. Bailments and Carriers, 183.

40 In State ex rel. Cumberland Telephone & Telegraph Co. v. Texas & P. Ry. Co., 52 La. Ann. 1850, 28 South. 284, mandamus was held proper to compel the carrier to furnish to one telephone and telegraph company the facilities extended to its rival. See, also, Loraine v. Pittsburg, J., E. & E. Ry. Co., 205 Pa. 132, 54 Atl. 580, 61 L. R. A. 502, when the discrimination was due to the selfish private interests of the president of the railroad; CHICAGO & N. W. RY. CO. v. PEOPLE ex rel. HEMPSTEAD, 56 Ill. 365, 8 Am. Rep. 690, Dobie Cas. Bailments and Carriers, 183, involving delivery to some grain elevators and not to others.

41 Rhodes v. Northern Pac. Ry. Co., 34 Minn. 87, 24 N. W. 347; Nichols v. Oregon Short Line Ry. Co., 24 Utah, 83, 66 Pac. 768, 91 Am. St. Rep. 778; Houston & T. C. Ry. Co. v. Smith, 63 Tex. 322; Great Western Ry. Co. of Canada v. Burns, 60 Ill. 284; CHICAGO & N. W. R. CO. v. PEOPLE ex rel. HEMPSTEAD, 56 Ill. 365, 8 Am. Rep. 690, Dobie Cas. Bailments and Carriers. 183; Chicago & A. R. Co. v. People ex rel. Koerner, 67 Ill. 11, 16 Am. Rep. 599; Wibert v. New York & E. R. Co., 12 N. Y. 245; Keeney v. Grand Trunk R. Co. of Canada, 47 N. Y. 525.

DOB.BAILM.-21

43

It is said that the discrimination resulting from a refusal to serve one shipper differs from the discrimination when the carrier serves one shipper better than another only in degree and not in kind. 42 The public nature of the common carrier's calling forbids any partiality in his service which might easily be used to foster monopolies or to crush the business of individuals or even communities. Not merely absolute fairness is required in each case, but comparative fairness when that case is contrasted with another. As was said of railroad companies in an Indiana case: "Every one constituting a part of the public for whose use they are constructed is entitled to an equal and impartial participation. in the use of the facilities for transportation which they afford." In the rule that no favors, no distinctions, are permissible between shippers as to the carrier's facilities, the word "facilities" is used in its broadest sense. It includes, not only rolling stock, but stational facilities, warehouses, docks, pens for facilitating the loading of animals, as well as the many and varied appliances and instrumentalities used in his vast business by the modern carrier.

42 "That is not, in the ordinary legal sense, a public highway, in which one man is unreasonably privileged to use a convenient path, and another is unreasonably restricted to the gutter; and that is not a public service of common carriage, in which one enjoys an unreasonable preference or advantage, and another suffers an unreasonable prejudice or disadvantage. A denial of the entire right of service, by a refusal to carry, differs, if at all, in degree only, and the amount of damage done, and not in the essential legal character of the act, from a denial of the right in part by an unreasonable discrimination in terms, facilities, or accommodations. Whether the denial is general, by refusing to furnish any transportation whatever, or special, by refusing to carry one person or his goods; whether it is direct, by expressly refusing to carry, or indirect, by imposing such unreasonable terms, facilities, or accommodations as render carriage undesirable; whether unreasonableness of terms, facilities, or accommodations operate as a total or a partial denial of the right; and whether the unreasonableness is in the intrinsic, individual nature of the terms, facilities, or accommodations, or in their discriminating, collective, and comparative character-the right denied is one and the same common right, which would not be a right if it could be rightfully denied, and would not be common, in the legal sense, if it could be legally subjected to unreasonable discrimination, and parceled out among men in unreasonably superior and inferior grades at the behest of the servant from whom the service is due." McDuffee v. Portland & R. R. R., 52 N. H. 430, 450, 13 Am. Rep. 72.

43 As to the service of communities and the distribution of facilities between different stations and parts of the carrier's lines, see Ballentine v. North Missouri R. Co., 40 Mo. 491, 93 Am. Dec. 315; Ayres v. Chicago & N. W. Ry. Co., 71 Wis. 372, 37 N. W. 432, 5 Am. St. Rep. 226; Martin v. Great Northern Ry. Co., 110 Minn. 118, 124 N. W. 825; Chicago, St. L. & P. R. Co. v. Wolcott, 141 Ind. 267, 39 N. E. 451, 50 Am. Rep. 320.

44 Louisville, E. & St. L. Con. Ry. Co. v. Wilson, 132 Ind. 517, 32 N. E. 311, 18 L. R. A. 105.