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.

172 P. 229

101 Wash. 172

CUSHING et al. v. WHITE, Pros. Atty., et al.

No. 14455.

Supreme Court of Washington

April 16, 1918

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.

WEBSTER J.

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:

'A common carrier of passengers is one who undertakes for hire, to carry all persons indifferently who may apply for passage. To constitute one a common carrier it is necessary that he should hold himself out as such. This may be done not only by advertising, but by actually engaging in the business and pursuing the occupation as an employment.' Thompson on Carriers of Passengers, p. 26, note 1.

Redfield in his treatise says:

'It is generally considered that where the carrier undertakes to carry only for the particular occasion, pro hac vice, as it is called, he cannot be held responsible as a common carrier. So, also, if the carrier be employed in carrying for one or a definite number of persons, by way of special undertaking, he is only a private carrier. To constitute one a common carrier he must make that a regular and constant business, or at all events, he must, for the time, hold himself ready to carry for all persons, indifferently, who choose to employ him.' Redfield on Carriers and Bailees, § 19.

In Dobie on Bailments and Carriers, at sections 106 and 107, the author says:

'The private carrier is one who, without engaging in such business as a public employment, undertakes by special contract to transport goods in particular instances from one place to another.

'The common carrier of goods is one who holds himself out, in the exercise of a public calling, to carry goods, for hire for whomsoever may employ him.' This author at section 164 states:

'The same considerations that distinguish the common from the private carrier of goods apply to set apart the common and private carrier of passenger.'

Hutchinson announces the rule in this language:

'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. They are not common carriers because they do not make the carriage of goods for others a business, and do not hold themselves out to the public as ready and willing to carry indifferently for all persons any particular class of goods or goods of any kind whatever.' 1 Hutchinson on Carriers (3d Ed.) § 35.

Judge Story observes:

'To bring a person within the description of a common carrier he must exercise it as a public employment; he must undertake to carry goods for persons generally, and he must hold himself out as ready to engage in the transportation of goods for hire, as a business, not as a casual occupation pro hac vice. A common carrier has therefore been defined to be one who undertakes for hire or reward to transport the goods of such as choose to employ him, from place to place.' 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:

'A private carrier is one who agrees, by special agreement or contract, to transport persons or property from one place to another, either gratuitously or for hire; one who undertakes for the transportation in a particular instance only, not making it a vocation, nor holding himself out to the public ready to act for all who desire his services. Common carriers, however, hold themselves out to carry for all persons indiscriminately.'

In volume 10, Corpus Juris, at section 1, we find:

'A carrier is one that undertakes the transportation of persons or movable property, and the authorities, both elementary and judicial, recognize two kinds or classes of carriers, namely, private carriers and common carriers. A private carrier is one who without being engaged in such business as a public employment, undertakes to deliver goods in a particular case for hire or reward. While a common carrier has been defined as one that holds itself out to the public to carry persons or freight for hire.'

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:

'To render one a common carrier, his undertaking must be general and for all people indifferently. The undertaking may be evidenced by the carrier's own notice or practically by a series of acts, by his known habitual continuance in this line of business. He must assume to be the servant of the public; he must undertake for all people. A special undertaking for one man does not render a person a common carrier. One who follows carrying for a livelihood or who gives out to the world in any intelligible way that he will take goods or other things for transportation from place to place whether for a year, a season, or less time, is a common carrier, and subject to all the liabilities of such.'

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

...