Day v. Owen

• Decision Date: 15 October 1858
• Citation: 5 Mich. 520
• Court: Michigan Supreme Court
• Parties: William H. Day v. John Owen

5 Mich. 520

William H. Day v. John Owen

Supreme Court of Michigan

October 15, 1858

Heard May 26, 1858; May 27, 1858 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne Circuit.

The action was case against the defendant as a common carrier.

The first count in the declaration alleged that the defendant was the owner of the steamer Arrow, plying between Detroit and Toledo, and that the plaintiff applied on board of said steamboat for a cabin passage from Detroit to Toledo, and offered to pay for the same, which was averred to be a usual mode of conveyance of passengers upon said boat; that although there was room, the defendant refused to give the plaintiff a cabin passage, whereby the plaintiff was put to great expense, trouble and delay, and obliged to travel in the night a hundred miles out of his way to reach Toledo. A second count alleges that the defendant was a common carrier, by water, of passengers in and by the cabin and deck of said steamboat, for the conveyance of travelers, in and by said cabin, or in and upon said deck, according as such travelers may require, for reasonable hire and reward, which was greater in case conveyance was required in the cabin than in case it was required upon the deck; and was the proprietor of said cabin, or covered room, and of said open deck, as well as of all parts of said vessel; that the plaintiff went on board of said boat and demanded to be carried in said covered room to Toledo; but although the plaintiff tendered the greater hire and reward, and although the vessel was ready to start, and said covered room was not full of passengers, and there was no ground for refusal, yet the defendant refused to carry plaintiff in said cabin, etc., causing plaintiff great expense, loss and mortification. A third count alleged a refusal to carry generally, stating that the defendant set up no ground of refusal, except that the plaintiff was a colored man. This count contained no averment that plaintiff offered, or was ready and willing to pay the fare.

The defendant pleaded the general issue, and appended thereto three notices of special matter to be shown at the trial:

1. That the plaintiff was a colored man, and not a white man; and that by the custom of navigation, and the usage prevailing among steamboats employed in carrying passengers on Detroit river and lake Erie, colored persons were not allowed the privileges of cabin passengers.

2. That by the regulation and established course of business of said boat, colored persons were not received as cabin passengers, and were not allowed to use the cabin as such passengers; and said regulation and course of business were averred to be reasonable.

3. That the plaintiff, by his color and his race, was excluded from ordinary social and familiar intercourse with white persons by the custom of the country, and that his admission into the cabin of said steamboat would have been offensive to the other cabin passengers.

General demurrer by the plaintiff, which was overruled and judgment for defendant for costs rendered; and thereupon the plaintiff brought error.

Holding said notices a sufficient defense is assigned as error.

Judgment affirmed with costs.

Walkers & Russell, for plaintiff in error:

It is the common law duty of a common carrier of passengers to receive all persons who apply for transportation: Angell on Car., 494 to 508, and cases cited. And if he have different modes of transportation by the same conveyance, he is bound to carry the person applying in the mode which the latter may select: Long v. Horne, 1 C. & P., 610.

The obligation to carry is subject to certain qualifications. There must be an offer of the fare prescribed for the particular mode of conveyance desired; the application must be made at the proper place and hour; there must be sufficient room in the conveyance; no unusual danger of the way; the person applying must not be notoriously and unequivocally of bad character, so as to raise a just presumption that his conduct in the conveyance will be unlawful; nor disorderly in his conduct; nor one who refuses to submit to reasonable regulations, in regard to conduct; nor one whose object in obtaining a passage is to interfere with the proprietors of the conveyance, so as to make their business of transportation less: Angell, supra, and cases cited; Rex v. Ivens, 7 C. & P., 213. This enumeration comprehends every qualification to be found in any reported case, or affirmed by any text writer; and we perceive no distinction based upon color.

The rule of law and its exceptions being, then, such as above stated, it is clear that the law will not recognize the mere fact of an existing custom or usage among common carriers navigating particular waters not to carry a certain class of persons ex mero motu as altering the rule, or releasing a given carrier from his obligation to receive. See The Schooner Reeside, 2 Sumn. 567.

Nor will the mere fact, that a given class of persons and another given class do not associate together, or that individuals of the former class would be "offensive" to individuals of the latter, provided they should chance to meet on the same conveyance, constitute any legal ground of refusal on the part of the carrier to carry.

The custom set up in the second notice, we submit, is not a regulation in its legal meaning; that the adjudged cases show that regulations, legally so termed, have reference, solely, to the active conduct of the applicant for carriage, requiring his obedience after his reception, and to nothing else--that they are what might be called internal or police regulations. See Jencks v. Coleman, 2 Sumn. 221; Commonwealth v. Power, 7 Metc. 596; Markham v. Brown, 8 N. H., 523; Bennett v. Dutton, 10 N. H., 481; Hall v. Power, 12 Metc. 482.

It follows that a common carrier can not refuse to carry any person of legal conduct and intention upon the ground of any physical or personal quality or defect, or to suit the preference or antipathies of other passengers.

[The counsel further argued, that, though the defendant's course of business not to carry colored persons in his cabin was in no legal sense a regulation, yet, considering it such for the purposes of the argument, it was not reasonable.]

S. T. Douglass, for defendant in error:

Neither of the first two counts show a prima facie cause of action. Defendant was not bound to provide the plaintiff, or any other person, with accommodation on any particular part of the boat: Fell v. Knight, 8 M. & W., 269.

But if they be held to show a prima facie cause of action, the notice is a valid defense. The right of the carrier to make all reasonable regulations in respect to the conduct of the passengers, which a regard for the safety, convenience comfort, or interests, either of the passengers or carriers, may dictate, can not be questioned: Redf. on Railw., Chap. 6. Whether any particular regulation which is pleaded is reasonable, is a question of mixed law and fact, to be determined upon evidence of all the circumstances tending to show that it was necessary and proper, or otherwise; and which can not be determined by the court, as a pure question of law. It is like the question as to the reasonableness of time, care, or...