They were to wait over for exhibitions, and the times were fixed with reference to these exhibitions, and not to suit the defendant's convenience. There was also a divided authority, so that, while defendant's men were to attend to the moving of the trains, they had nothing to do with loading and unloading cars, and had no right of access or regulation in the cars themselves. It cannot be claimed on any legal principle that plaintiff could, as a matter of right, call upon defendant to move his trains under such circumstances and on such conditions, and, if he could not, then he could only do so on such terms as defendant saw fit to accept. It was perfectly legal and proper, for the greatly reduced price, and with the risks and trouble arising out of moving peculiar cars and peculiar contents on special excursions and stoppages, to stipulate for exemption from responsibility for consequences which might follow from carelessness of their servants while in this special employment. How far, in the absence of contract, they would be liable in such a mixed employment, where plaintiff's men as well as their own had duties to perform connected with the movement and arrangement of the business, we need not consider."

123. Private excursion trains.

When a railroad company hires a train to a private individual or association to use as an excursion train, the railroad in running the train is not strictly a common carrier, and cannot be compelled to carry any person on the train who is not invited by the lessee.1 "The railroad company, having provided for meeting the reasonable demands of the public for the carriage of passengers, is at liberty to employ its trains in its own way, with the proviso that these trains must, as a matter of public policy, be operated and run by its own qualified servants, for the protection and safety of life and property." 5 Neverthe

4 Moore v. St. Louis, I. M. & S. Ry., 67 Ark. 389, 55 S. W. 161 (1900). 5 Bunn, C. J., in his dissenting opinion in Moore v. St. Louis, I. M. & S. Ry., supra.

less the railroad is under the same duty toward any person invited by the lessee, or to whom the latter sells a ticket, that it is under to any passenger. It is therefore liable to one who having been allowed by the lessee to buy a ticket is then refused by him permission to ride, or is assaulted or insulted by other excursionists, or is negligently injured by an accident to the train.8

§ 124. Establishment of train on guaranty of an individual. If a regular train is established upon the guaranty by an individual of the expense of maintaining it, the railroad is none the less a common carrier in running the train, and it cannot give the guarantor an advantage over his business rivals. This question was raised and elaborately discussed in the case of Memphis News Publishing Company v. Southern Railway." In that case it appeared that a railroad company contracted with a newspaper publisher, agreeing to run a special early morning train carrying only the newspapers of the publisher, in consideration of the publishing company guarantying to it a certain revenue from the operation of the train. This train became one of its scheduled trains, and was advertised as such. It was controlled exclusively by the company, and all the revenue derived from its operation in the carrying of passengers and freight was its property. It was held that the railroad could not, relying on its contract, refuse to carry on such train newspapers tendered it by a rival publishing house, which offered to comply with all the conditions as to guaranty, indemnity, etc., complied with by the house making the contract, and the fact that the publishing company solicited the institution

6 Moore v. St. Louis, I. M. & S. Ry., supra.

7 Texarkana & F. S. Ry. v. Anderson, 67 Ark. 123, 53 S. W. 673 (1899); White v. Norfolk & S. R. R., 115 N. C. 631, 20 S. E. 191 (1894); Collins

v. Texas & P. Ry., 15 Tex. Civ. App. 169, 39 S. W. 643 (1897).

8 Skinner v. London, B. & L. C. Ry., 5 Ex. 787 (1850).

9110 Tenn. 684, 75 S. W. 941 (1903).

of the train service and supported it by a large outlay of money during its early days did not change the rule, nor make the train a special one, chartered for a special purpose. In delivering the opinion of the court Mr. Chief Justice Beard said: "If the contract complained of in this case was one which granted an exclusive right and privilege to the Commercial Publishing Company to sell its newspapers on this train, and the complainant was here seeking to interfere with this contract and to force the railroad to grant it an equal privilege, then there would be presented a special agreement which the courts would not intermeddle with; and this upon the ground that as a common carrier it owed no duty to furnish newspapers to the traveling public, and was not bound to permit another to do so. If it chose, however, to grant this privilege, another to whom it was refused would not be heard to complain.

"But this is not the case at bar. Under the contract the railway company is carrying the newspapers of the Commercial Publishing Company as property, and the complainant is insisting that, having the means of doing so, it should equally and impartially carry its packages of papers upon the same terms as merchandise. It would hardly be contended that a railroad by making a special and exclusive contract to transport shoes manufactured by one party in a community, could strip itself of its common-law character, and decline, without any reason save the existence of said contract, to transport boxes of shoes for another manufacturer in the same community. If this be so, where is the controlling difference between such a case and the one now before us? Packages of newspapers are as much property as shoes, and the principle which controls in the one case, it seems to us, must equally apply to the other. If this be not so, by parceling out its means of transportation to the full extent of its carrying capacity, it would be possible for a railroad to build up a few in a community to the destruction of the many who equally seek shipment. This the law

will not tolerate in one who holds himself out as common carrier. As has been already said, he must accord equal privileges to all who are in like condition. He cannot foster monopolies. He will not, by making special preferential agreements, be permitted to build up one set of shippers at the expense of another. He must carry for all alike.

A

"These general principles being established, what is there to prevent their application in this case? We see nothing. railroad by its very nature, as has been seen, is a common carrier. The train in question is a scheduled one, advertised to the world as such. An invitation is given to the public to take passage and ship freight upon it. Its own employes, managers, and the railway company appropriate all its revenues. So far as the record shows, it receives on this train merchandise from every other member of the community, and refuses carriage alone to that of this complainant; and this refusal is based, not upon a lack of carrying capacity, but exclusively upon the ground that it has contracted away its duty, in respect to such property as the complainant has tendered, to another party. Such an excuse cannot relieve the railway company from its obligations to complainant as one of the public."

TOPIC E-EXTENT OF THE PUBLIC PROFESSION.

125. To what goods the profession to carry extends.

A common carrier does not by professing the public employment of carriage thereby undertake to carry any kind of property or person. His employment extends only as far as his profession; he is not bound to carry every description of goods, but only such as he has publicly professed to do. A person may profess to carry a particular description of goods only in which case he could not be compelled to carry any other kind of goods." It has accordingly been held that a railroad which

1

1 Parke, B., in Johnson v. Midland Ry., 4 Ex. 367, 373 (1849).

has not professed to do so cannot be compelled to carry coal,2 or cedar lumber, after public announcement has been made that no more will be accepted. Apparently lumber of any other kind was carried. An express company, it has been held, can be forced to carry fish only if it is shown that it has made a profession of carrying fish.1 And a railroad carrying mail is not a common carrier so as to be liable as an insurer; but is liable only for negligence as a bailee.5 Upon these principles it is held that a railroad company not having professed to do so cannot be compelled to carry dogs on passenger trains.

§ 126. Money.

An ordinary carrier of goods is not necessarily a common carrier of money, but if the carrier is in the habit of carrying money, or makes any profession of carrying it, he will be held as a common carrier of it. The fact that the railroad carries

8

2 Johnson v. Midland Ry., 4 Ex. 367 (1849).

3 Rutherford v. Grand Trunk Ry., 5 Rev. Leg. (Can.) 483 (1873). Leonard v. American Exp. Co., 26 Up. Can. Q. B. 533 (1867).

5 Central Railroad & Banking Co. v. Lampley, 76 Ala. 357 (1884); Boston Ins. Co. v. Chicago, etc., R. R. Co. (Iowa), 92 N. W. 88 (1902); Bankers' Mutual Casualty Co. v. Minneapolis, etc., R. Co., 117 Fed. 434 (1902) (approving 113 Fed. 414 [1901]).

6 Lee v. Burgess, 9 Bush (Ky.), 652 (1873); Honneyman v. Oregon, etc., R. R., 13 Ore. 352, 57 Am. Rep. 20 (1886). But see Union S. S. Co. v. Ewart, 13 N. Z. L. R. 9 (1892).

7 Citizens' Bank v. Nantucket Sb. Co., 2 Story, 16, B. & W. 8 (1841); Kuter v. Michigan C. Ry., 1 Biss. 35, 14 Fed. Cas. No. 7,955 (1855); Chicago, etc., R. Co. v. Thompson, 19 Ill. 578 (1858); Lee v. Burgess, 9 Bush (Ky.), 652 (1873); Mechanics' & T. Bk. v. Gordon, 5 La. Ann. 604 (1850); Choteau v. St. Anthony, 16 Mo. 216 (1852); Allen v. Sewall, 6 Wend. (N. Y.) 335 (1830); Pender v. Robbins, 6 Jones (N. C.) 207 (1858). 8 Anonymous, 12 Mod. 3 (1680); Hosea v. M'Crory, 12 Ala. 349 (1847); Dwight v. Brewster, 1 Pick. (Mass.) 50, 11 Am. Dec. 133 (1822); Allen v. Sewall, 2 Wend. (N. Y.) 327 (1829); Farmers & M. Bank v. Champlain Tr. Co., 23 Vt. 186, 56 Am. Dec. 68 (1851); Kirtland v. Montgomery, 1 Swan 452 (1852).