Cushing v. White
Decision Date | 16 April 1918 |
Docket Number | 14455. |
Citation | 172 P. 229,101 Wash. 172 |
Court | Washington Supreme Court |
Parties | CUSHING et al. v. WHITE, Pros. Atty., et al. |
Department 1. Appeal from Superior Court, Spokane County.
Suit by Frank Cushing and others against John B. White, Prosecuting Attorney of Spokane County, and others. From a judgment for defendants, plaintiffs appeal. Affirmed.
McCarthy & Edge, of Spokane, for appellants.
John B White and Wm. C. Meyer, both of Spokane, for respondents.
This action was brought by appellants to enjoin respondents from enforcing as against them the provisions of chapter 57, Laws 1915, entitled:
'An act relating to and regulating common carriers of passengers upon public streets, roads and highways, providing for the issuance of permits; prescribing penalties for violations, and providing when this act shall take effect.'
The trial court found the following facts: That appellants are engaged in what is known as the automobile rent business that each of them is the owner of an automobile which he drives for hire, either at a charge of so much per trip or so much per hour; that each of them has a fixed stand where, when not engaged with customers, or not otherwise using the car, they are available to prospective customers during many hours of the day and night; that none of them has a fixed route or routes over which they operate their motorcars; that they do not, when engaged by one person for a trip or trips, ever carry any passenger or passengers other than those directed by the original hirer, whether their automobile capacity is exhausted or not; that none of them has or maintains any fixed schedule of rates for the transportation of passengers, either for a single trip or by the hour; and that each of them 'do now and have always reserved the right to transport passengers or refuse to transport them whether they are occupied or not occupied with other engagements.' Upon these facts the trial court concluded that the business conducted by the several appellants falls within the provisions of the act and is subject to its regulations. A decree was entered accordingly, from which this appeal is prosecuted.
Appellants insist that, under the facts found by the court, they are not common carriers of passengers, hence not within the purview of the act. For the purpose of this opinion it will be assumed that the statute applied only to common carriers of passengers in motor-propelled vehicles. State v. Ferry Line Auto Bus Co., 93 Wash. 614, 161 P. 467. The sole inquiry therefore is whether, under the facts set forth, appellants are such carriers. The precise question thus presented is of first impression in this court, and its importance seems to justify an extended discussion of the authorities.
'Carriers' may be defined as persons or corporations who undertake to transport or convey goods, property, or persons, from one place to another, gratuitously or for hire, and are classified as private or special carriers, and common or public carriers; the class to which a particular carrier is to be assigned depending upon the nature of his business, the character in which he holds himself out to the public, the terms of his contract, and his relations generally to the parties with whom he deals and the public. 1 Moore on Carriers (2d Ed.) §§ 1 and 2. The books abound with definitions of both common and private carriers from which the distinguishing features may be gathered. Judge Thompson submits the following:
Thompson on Carriers of Passengers, p. 26, note 1.
Redfield in his treatise says:
Redfield on Carriers and Bailees, § 19.
In Dobie on Bailments and Carriers, at sections 106 and 107, the author says:
Hutchinson announces the rule in this language:
1 Hutchinson on Carriers (3d Ed.) § 35.
Story on Bailments, § 495.
Chancellor Kent says:
'Common carriers undertake generally, and not as a casual occupation, and for all people indifferently, to convey goods and deliver them at a place appointed, for hire, as a business, and with or without a special agreement as to price.' 2 Kent's Commentaries, 598.
In volume 1, at page 3, Mitchie on Carriers, it is said:
'A common carrier of passengers is one who undertakes for hire, to carry all persons indifferently who may apply for passage.'
In volume 1, Moore on Carriers, at section 4, the author says:
In volume 10, Corpus Juris, at section 1, we find:
Passing from the definitions given by the text-writers to a few of the pertinent cases, we find the following in which the distinguishing features are applied:
In McHenry v. Railroad Co., 4 Har. (Del.) 448, it was held that the owners of stage wagons, stagecoaches, and railroad cars, who carry goods, as well as passengers, for hire; wagoners, teamsters, and cartmen, who undertake as a common employment to carry goods for hire, from one town to another; the masters and owners of ships, vessels, steamboats, barge owners, canal boatmen, and ferrymen, employed in the like business--are all 'common carriers'; the test applied being:
'A common carrier is one who undertakes and exercises, as a public employment, the transportation or carriage of goods for persons generally, from place to place, whether by land or by water, and to deliver them at the place appointed, for hire or reward, and with or without a special agreement as to price.'
In Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393, it was held:
In Varble v. Bigley, 14 Bush (Ky.) 698, 29 Am. Rep. 435, it is said:
'When a person has assumed the character of a common carrier, either by expressly offering his services to all who will hire him, or by so conducting his business as to justify the belief on the part of the public...
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