CHAPTER 38 EXTRAORDINARY BAILEES § 296. Public service business. $297. Innkeepers. § 298. Common carrier defined. § 299. Common carrier's duty of indiscriminate service. § 296. (Sales, Sec. 9.) Public service businesses. (Note: Businesses or callings may be divided into those that are public ("touched with a public use") and those that are private. "Those in a public calling have always been under the extraordinary duty to serve all comers, while those in a private business may always refuse to sell if they please. So great a distinction as this constitutes a difference in kind of legal control rather than merely one of degree. The causes of this division. are, of course, rather economic than strictly legal; and the relative importance of these two classes at any given time, therefore, depends ultimately upon the industrial conditions which prevail at that period." [Wyman, Public Service Corporations, Sec. 1.] In this book we cannot develop this subject. It is mentioned to show the character of the common carrier, and innkeeper, "extraordinary or exceptional bailees." The public service corporation or person must serve all who come, must not discriminate in price or conditions of service, and must serve at reasonable rates. The state exercises unusual control, and in turn often gives unusual privileges, as right to use streets and to take property by eminent domain. The chief public service occupations are those of 1. Common carriers of goods and persons. 2. Telegraph and telephone companies. 3. Gas and electric light companies. 4. Waterworks companies. 5. Elevators and warehouse companies. 6. Innkeepers.) § 297. (Sales, Sec. 10.) Innkeepers. (Note: The innkeeper is mentioned here as an exceptional bailee. The law governing innkeepers is hardly a subject of general business law. We may notice, however, that the liability of the innkeeper for safety of his guest's goods is a strict one. Statutes permit a qualification by posting notices to deposit such valuables with the innkeeper. But the guest is entitled under such statutes to keep with him the usual personal belongings. The innkeeper has a lien for his charges.) § 298. (Sales, Sec. 11.) Common carrier defined. (Note: There are common carriers of goods, common carriers of passengers, and common carriers of both goods and passengers. A carrier is a public or common carrier when he has made it his calling to carry for the public generally. Having entered this calling he must serve the public indiscriminately and subject to public control. He has undertaken a calling that is "touched with a public interest." His business is one of public service. The carrier of goods may lawfully confine his business to certain classes of goods, as light parcels; unless, as in case of a railroad business, the general law requires service for all classes of goods.) § 299. (Sales, Sec. 12.) Carrier's duty of indiscriminate service. Case 273. Missouri Pacific Rwy. v. Larrabee Mills, 211 United States Reports, 619. MR. JUSTICE BREWER: 66* While no one can be compelled to engage in the business of common carrier, yet when he does so, certain duties are imposed Whenever one engages in that business, the obligation of equal service to all arises, and that obli gation, irrespective of legislative action or special mandate, can be enforced by the courts." Question 273: What is the rule as to indiscriminate service by carriers? § 300. (Sales, Sec. 13.) Common carrier's duty to transport goods safely. (Note: The common carriers' duty in respect to the safety of the goods carried, as developed by the common law is as follows: General rule. The carrier is an insurer, that is, absolutely liable regardless of the question of care or lack of care on its part. Exceptions: (1) Loss or damage by Act of God. An "Act of God" is a violent eruption of nature, not caused by man's intervention and which could not be foreseen or guarded against. Earthquakes, violent storms, floods, lightning, are "Acts of God." The Johnstown flood, the Ohio floods, the San Francisco earthquake and the loss by fire thereby caused were Acts of God. The Chicago fire was not an Act of God. In case of loss caused by Act of God the carrier is excused. (2) Act of public enemy. If the goods are seized, destroyed or damaged by a public enemy the carrier is not liable. A public enemy is an organized force engaged in war upon the country. Mobs are not public enemies. (3) Loss or damage by inherent defect of thing carried. The carrier in such case is not liable, but must, however, take all reasonable precautions as icing, watering, etc., to protect the thing carried according to its nature, and must furnish proper facilities to enable the shipper to ship safely. Limitation of liability. The carrier was permitted to limit his common law liability to that of loss not caused by his negligence. That is to say, the carrier by special contract, assented to by the shipper, could assume the liability of an ordinary bailee, that of liability for loss caused by negligence only; but the carrier was not permitted to avoid liability for loss arising out of his negligence. By Federal statute it is now provided that carriers of inter state shipments shall issue receipts of bills of lading and be liable to the lawful holder thereof for loss or damage or injury caused by the carrier or caused by any connecting carrier, to which the property shall be delivered, and no limitation in any such bill of lading or receipt exempting the carrier from liability shall be valid to exempt it from any loss caused by it or by any connecting carrier to which it delivers the goods. If the bill of lading or receipt limits the amount of loss to a declared valuation, same shall be binding in cases where the interstate commerce commission establishes rates dependent upon such agreed valuation, except in case of ordinary live stock. The carrier shall not provide a less time than ninety days for giving notice of loss, four months for filing claim, or two years for bringing suit, and if the loss is caused by its negligence then no notice of loss or filing of claim shall be requisite to recovery.) § 301. (Sales, Sec. 14.) Common carrier's duty to transport without delay. (The carrier is not an insurer of prompt shipment. It must however exercise care to transport promptly: Delay is excused by facts beyond its control.) § 302. (Sales, Sec. 15.) Freight and demurrage. (Note: The word "freight" is used to describe the goods carried by a carrier and the charge made by it for carriage. It has a right to make a reasonable charge and can lawfully insist upon payment in advance. It has a lien on the goods for this charge by virtue of which it can hold the goods and sell them. Demurrage is a charge made for delay on the part of the consignee of the goods removing them from the cars whereby the cars are kept out of service. The carrier must give the owner a reasonable time for removal and after that may make a demurrage charge.) CHAPTER 39 BILLS OF LADING AND WAREHOUSE RECEIPTS § 303. Documents of title defined. § 304. Assignability at common law. § 305. Legislation upon documents of title. § 306. § 307. Bills and receipts are negotiable and nonnegotiable, as drawn. § 308. How negotiation of documents accomplished. § 309. Results of transfer of document to transfer title to goods. § 310. Warranties of transferror. § 311. The use of documents as security. $312. Right of transferee of negotiable document against the issue thereof. § 303. (Sales, Sec. 16.) Documents of title defined. Case 274. Uniform Sales Act, Sec. 76. "Document of title to goods' includes any bill of lading, dock warrant, warehouse receipt or order for the delivery of goods, or any other document used in the ordinary course of business in the sale or transfer of goods, as proof of the possession or control of the goods, or authorizing or purporting to authorize the possessor of the document to transfer or receive, either by indorse or delivery, goods represented by such document." Question 274: What are the three common forms of documents of title? Is a bill of sale a document of title? A certificate of stock a document of title? (Note: The term "documents of title" "is limited to such documents as will authorize the holder to obtain specific goods from whoever has possession of them, such possessor ordinarily being a common carrier or a warehouseman." Millard v. Green, 94 Conn. 597, 110 Atl. 177. This definition is perhaps defective in not conveying the idea that the party in possession of the goods is the issuer of the document. The idea to be conveyed is that goods are placed with another who thereupon issues a |