Rogers v. Weber , 235 Mich. 180 ( 1926 )

It is settled in this State that where injury is occasioned to passengers by the concurrent negligence of two common carriers, or by the negligence of another and a common carrier, the negligence of the common carrier can not be imputed to its injured passenger. Cuddy v. Horn, 46 Mich. 596 (41 Am. Rep. 178); Galloway v. Railway, 168 Mich. 343; and whatever the rule may be in other States —

"The rule is well settled in this State that negligence of the driver of a private conveyance, in which a person of mature years is riding as a voluntary passenger, is imputable to the latter, who is held to have assumed the risk of the driver's negligence." Lake v. Township of Springville, 187 Mich. 305.

Before taking up the adjudicated cases, it may be well that we have in mind some textbook definitions. In 4 R. C. L. p. 549, it is said:

"Distinction between Private and Common Carrier. The authorities recognize two classes of carriers, viz., private carriers and common carriers. All persons who undertake, for hire, to carry the goods of another, belong to one or the other of these classes. The former, like ordinary bailees for hire, are liable only for the injury or loss of the goods intrusted to them when it results from the failure of themselves or their servants to exercise ordinary care. The latter are liable as insurers for all injury or loss not resulting from the act of God or of the public enemy. The former are not bound to carry for any reason unless they enter into a special agreement to do so. The latter are bound to carry for all who offer such goods as they are accustomed to carry and tender reasonable compensation for carrying them; and if they refuse to perform their obligation in this respect, they are liable to respond in damages. Private carriers are such as carry for hire, and do not come within the definition of a common carrier. But a private carrier may in a particular case be held to the duties and liabilities of a common carrier if by express contract he assumes the risks of a common carrier."

In the same volume, at page 1059, it is said:

"It is elementary that a common carrier of passengers, whether by land or water, is obliged to receive and carry, for a reasonable compensation, all persons who apply for passage at the proper time and place, and who comply with the regulations of the carrier as to intending passengers, if the accommodations are sufficient, unless there is a proper excuse for refusal."

In 10 C. J. p. 607, it is said:

"The distinction between a public or common carrier of passengers and a special or private carrier of the same is that it is the duty of the former to receive all who apply for passage, so long as there is room and no legal excuse for refusing, while such duty does not rest upon the latter."

Mr. Hutchinson in his work on Carriers (vol. 1 [3d Ed.], § 35), thus defines private carriers for hire:

"Private carriers for hire are such as make no public profession that they will carry for all who apply, but who occasionally or upon the particular occasion undertake for compensation to carry the goods of others upon such terms as may be agreed upon."

And in section 62 he points out that a common carrier is under legal obligation to carry for all and liable for refusal to carry. It is there said:

"Lastly, the party must be under such a legal obligation to carry that an action will lie against him for a refusal without sufficient excuse. 'The true test of the character of a party, as to the fact whether he is a common carrier or not,' says Chief Justice Simpson, 'is his legal duty and obligation with reference to transportation. Is it optional with him whether he will or will not carry, or must he carry for all? If it is his legal duty to carry for all alike who comply with the terms as to freight, etc., then he is a common carrier, and is subject to all those stringent rules which, for wise ends, have long since been adopted and uniformly enforced, both in England and in all the States, upon common carriers. If, on the contrary, he may carry or not as he deems best, he is but a private individual, and is invested, like all other private persons, with the right to make his own contracts, and when made to stand upon them.' 'One of the obligations of a common carrier,' says Nisbet, J., 'is to carry the goods of any person offering to pay his hire; with certain specific limitations this is the rule. If he refuses to carry, he is liable to be sued, and to respond in damages to the person aggrieved, and this is perhaps the safest test of his character.' "

Defendant Conger was licensed to operate a jitney on Hamilton avenue; the sign on his car so showed; he was, in operating such a jitney on Hamilton avenue, a common carrier; he was obligated to accept for carriage over his route for the stated fare all who applied for passage so long as there was room, but he was not obliged to carry any one off his route anywhere they might see fit to go, and in fact if he did so he violated the ordinance. Plaintiff knew when she made the arrangements with him that it took him off his route. Their arrangement contemplated that she should not pay a stated sum, but should herself fix the compensation. He owed no duty to accept as a passenger every one asking such service for such compensation; he owed no duty to accept plaintiff on such terms. He could accept or reject her offer. If he accepted the offer, it made a contract for private carriage under the definitions above quoted. He was bound to carry all who applied for carriage on Hamilton avenue until his conveyance was full; he was not bound to carry any one elsewhere.

Numerous cases will be found, and some have been called to our attention, where livery-stable keepers and garage owners have furnished both the conveyance and driver for an agreed consideration, in which it is held that as to third persons injured by the negligence of the driver, the driver hired by the owner of the conveyance was his agent. Illustrative of this class of cases will be found:Shepard v. Jacobs, 204 Mass. 110 (90 N.E. 392, 26 L.R.A. [N. S.] 442); Wallace v. Keystone Automobile Co., 239 Pa. 110 (86 A. 699); Gerretson v. Rambler Garage Co., 149 Wis. 528 (136 N.W. 186, 40 L.R.A. [N. S.] 457); Fairchild v. Fleming,125 Minn. 431 (147 N.W. 434). As pointed out quite clearly in the last-cited cases, this holding is based on the relation of master and servant. In the instant case this question does not arise, as the defendant Conger was both owner and driver. InBartlett v. Lanphier, 94 Wn. 354 (162 P. 532), and City ofProvidence v. Laurence, 44 R.I. 246 (116 A. 664,22 A.L.R. 888), it has been held that bonds given by jitney owners as a condition of operating in a municipality are not available to passengers injured outside the municipality.

In Forbes v. Reinman Wolfort, 112 Ark. 417 (166 S.W. 563, 51 L.R.A. [N. S.] 1164), Forbes hired of defendant an automobile and driver to drive around the city of Little Rock. The question of what care and diligence was required was before the court. If defendants were common carriers one rule applied, if they were private carriers another. After considering the rules laid down by Hutchinson, it was said:

"So it may be said at the outset that the relation between the hirer of the vehicle and the owner is that of bailee and bailor, and the liability of the owner is governed by the rules applicable to such a contract of bailment. Appellees hired to Forbes an automobile and driver to be used by him and his guests in driving around the city of Little Rock; and thus they became a private carrier for hire, and as such were required to use ordinary care and diligence in the performance of the duty imposed upon them by the contract."

In Georgia Life Ins. Co. v. Easter, 189 Ala. 472 (66 So. 514, L.R.A. 1915C, 456), the Harris Transfer Warehouse Company did a transfer business and also let out picnic wagons with drivers to parties who desired to drive into the country on picnics. One Margaret Easter was killed while a passenger in one of these picnic wagons. She carried insurance and the question before the court was whether she met her death "while a passenger in or on a public conveyance by a common carrier for passenger service." It was held:

"In this case, under the law, the facts show that, in the particular business in which this transfer company was engaged when the plaintiff's intestate was killed, it was not a common carrier, but only a private carrier for hire."

A somewhat similar question arose in Rathbun v. OceanAccident Corp., 299 Ill. 562 (132 N.E. 754, 19 A.L.R. 140). Rayle Bros. were licensed taxicab operators in Danville. Dr. Rathbun frequently obtained from them automobiles with drivers to make his calls. On one of these occasions when out in the country he received a fatal injury and the question involved was whether there was double liability under his policy in defendant company. It was said by the court:

"The main question in this case is whether or not Plaintiff in error's liability is a single liability of $6,000 and interest or a double liability of $12,000 and interest. This question is to be determined solely upon the single proposition whether or not Rayle Bros. were common carriers in the service they were rendering Dr. Rathbun at the time that he was accidentally killed. * * * As to the services performed by Rayle Bros. for Dr. Rathbun, as already suggested, we are unable to see that such services amounted to more than the ordinary services performed by livery-stable keepers. The fact that Rayle Bros. were licensed in Danville to run taxicabs, if such be the case, can have nothing to do in determining the question whether or not they were common carriers in rendering the services in question. The license conferred no privileges beyond the city limits of Danville. The advertisement in the telephone directory for similar reasons has no direct bearing on the question. There is no evidence that Rayle Bros. were running a jitney or taxicab line from Danville to Missionfield or from Danville to any other town. When Dr. Rathbun hired the car it was for a special service to him and he had control of both the car and the driver. It certainly could not be successfully contended that Rayle Bros. owed him the extraordinary duty of a common carrier, or that they were liable to him, as such, for any injury that he might sustain on such trip. The automobile was not a passenger car in the sense in which we are now using that term. It was, in fact, a car contracted for by Dr. Rathbun by a private contract for his use in his profession and under his control."

In Terminal Taxicab Co. v. District of Columbia, 241 U.S. 252 (36 Sup. Ct. 583), the company brought suit to restrain the public utilities commission from exercising jurisdiction over it. Thirty-five per cent. of the company's business was taxicab service from the Union Station; 25 per cent. was taxicab service from hotels, and 40 per cent. consisted in furnishing automobiles from its central garage on orders. It was held that, as to the taxicab service amounting to 60 per cent. of its business, it was a public utility and subject to regulation as to this portion of its business, but that, as to the furnishing of automobiles amounting to 40 per cent. of its business, it was not a public utility and not subject to the regulation of the commission. It was not, as to this business, a common carrier. A somewhat similar question was before this court in People v. Carr, 231 Mich. 246. Defendants were convicted for violating Act No. 209, Pub. Acts 1923; they insisted that they maintained no regular schedules and only carried passengers as hired so to do for each trip; in short, they claimed they were not common carriers and not within the purview of the act; there was, however, conflict in the testimony, and this court held that, if they did no more than they claimed they had done, they did not violate the act, but if they did what the people claimed they did, they violated the act, and as the testimony was in conflict we affirmed the conviction.

We are persuaded that the question so clearly submitted to us by counsel of whether the defendant, in his relation to plaintiff, was, when the accident occurred, a common carrier, must be answered in the negative, and, under a long line of decisions not necessary to cite, his negligence was imputable to plaintiff.

The judgment against defendant Weber should be reversed and as to him a new trial should be granted. He should recover costs of this court.

SNOW, STEERE, and CLARK, JJ., concurred with FELLOWS, J.