Anderson v. . Fidelity Casualty Co.

Elkus, J. This action is upon a policy of accident insurance issued by the defendant to the plaintiff. By article VII of the policy it is provided that the amounts specified to be paid by other articles shall be doubled if ;?she bodily injury is sustained by the assured “ while in or on a public conveyance {including the platform, steps and running-board thereof) provided by a common carrier for passenger service.” The stipulated facts show: On October 8, 1915, the plaintiff was at the corner of State and Pearl streets in the city of Albany in front of the office of *479 the Yellow-Taxi Service, Inc.; a cab belonging to this company was standing at the curb, awaiting engagement. Plaintiff desired to go to the Elks Club on State street near Eagle street and engaged this cab, which was operated by a chauffeur employed by the taxi company. The plaintiff entered the cab, accompanied by a friend, and gave the chauffeur the direction to take them to the Elks Club, arrived in front of the club and, as the plaintiff attempted to alight he stumbled and fell and sustained a fracture of the right patella or knee cap and was seriously injured. The question before this court is whether the taxicab in which the plaintiff received his injury is a public conveyance provided by a common carrier for passenger service within the meaning of the policy sued upon. The stipulated facts show that the Yellow Taxi Service, Inc., operate a number of Ford (automobile) cars differing in no way from other Ford cars except that they are equipped with a taximeter and that the bodies of the cars are painted yellow, and bear a serial number. There was space for additional passengers in the taxicab, but the plaintiff and his friend had the sole and exclusive occupation until his journey’s end. The Yellow Taxi Service, Inc., was organized under the Business Corporations Law (Cons. Laws, ch. 4) with the purpose, among others, “ to conduct a general livery business by means of automobiles plying for hire in the streets of any city or village within the state or on the roads and highways of the state generally, or elsewhere, whether such vehicles are propelled by steam, gasoline, electricity or any other kind of motive power for the transportation of passengers or goods.” Pursuant to the authority granted by this charter, some taxicabs of the Yellow Taxi Service, Inc., were sent to stands at various places in Albany awaiting applicants for their services, and to do a so-called “ cruising ” business seeking and accepting “ fares ” who may signal to them when they are unengaged. Others awaited calls *480 at the garage of the company. Apparently, the chauffeur was the authorized agent of the company to accept a “ fare ” and was bound to accept every proper “ fare ” presented under the provisions of chapter 14, sections 5 and 14, of-the General Ordinances of the city of Albany. This ordinance imposed a penalty of $10 on the owner or driver of any conveyance used for the carrying and transportation of passengers for hire, other than street cars, who should refuse or neglect to convey any person to any place, within certain limits around the city. The term “ common carrier ” is not of statutory origin. Its meaning is to be found in the history of the law of the early days when means of travel and communication were slow and uncertain and innkeepers and carriers were restrained from the robbery and ofttimes murder of those to whom they offered their hospitality or service, only by the imposition of heavy penalties and responsibility for the safekeeping of their patrons’ goods and persons. (Nugent v. Smith, L. R. 1 C. P. D. 423; Coggs v. Bernard, 2 Ld. Raym. 909, 1 Smith’s L. Cas. 199.) With the development in traveling facilities from the post horse to the chaise, the stage coach and to the modern railroad train or steamboat, the term “ common carrier ” has been applied to each new development catering to the public generally, and the strict rules of the old law have been relaxed but little, for with the development came new dangers of a mechanical sort inherent to swiftly-moving machines. (Palmer v. Prest., etc., D. & H. Canal Co., 120 N. Y. 170; Ingalls v. Bills, 9 Metc. 1; Hegeman v. Western Railroad Corpn., 13 N. Y. 9.) To-day, as is practically conceded by counsel for both parties in the instant case, the term “ common carrier ” should be applied to the “ jitney bus,” and to-morrow, in a proper case, it may well be that it may be applied to that most recent device for eliminating the fetters of distance, the aeroplane, presenting as it does new dangers unknown to the average man which can only be decreased by a high *481 degree of care upon the part of those in control of the mechanism which operates them. Definitions are fundamental. Their application to any given state of facts, therefore, must be by analogy. Moore on Carriers (2d edition, page 19) defines a common carrier as “ one who, by virtue of his business or calling undertakes for compensation to transport personal property from one place to another either by land or water and deliver the same for all such as may choose to employ him; and every one who undertakes to carry and deliver for compensation the goods of all persons indifferently, is, as to liability, a common carrier.” A common carrier was defined, in Gisbourn v. Hurst (1 Salk. 249), to be “ any man undertaking, for hire, to carry the goods of all persons indifferently,” and in Dwight v. Brewster (1 Pick. 50), to be “ one who undertakes, for hire, to transport the goods of such as choose to employ him from place to-place.” In Bank of Orange v. Brown (3 Wend. 161), Chief Justice Savage said: “ Every person who undertakes to carry, for a compensation, the goods of all persons indifferently, is, as to the liability imposed, to be considered a common carrier.” “ The distinction between a common carrier and a private or special carrier is, that the former holds himself out in common, that is, to all persons who choose to employ him, as ready to carry for hire; while the latter agrees, in some special case, with some private individual, to carry for hire.” (Story on Contracts, sec. 752-a.) The employment of a common carrier is" a public one, and he assumes a public duty, and is bound to receive and carry the goods of any one. • “ On the whole, ” says Prof. Parsons, “ it seems to be clear that no one can be considered as a common carrier, unless he has, in some way, held himself out to the public as a carrier, in such manner as to render him liable in an action if he should refuse to carry for any *482 one who wished to employ him.” (2 Pars. on Cont. [5th ed.] 166, note; Allen v. Sackrider, 37 N. Y. 341, 342.) In the early days there was no common carrier, except of goods. Common carriers of persons as such were unknown until recent times. Travel was unusual and he who traveled did not travel in wagons or conveyances furnished by a common carrier. Thereafter, the term “ common carrier ” acquired a broader meaning and now applies to one who carries passengers as well as one who carries goods, either when he carries the passenger and his merchandise or baggage or when he carries a traveler without his goods. (Bretherton v. Wood, 3 B. & B. 54; Nolton v. Western Railroad Corp., 15 N. Y. 444.) The distinction as to liability of á carrier of goods and of passengers is illustrative. Chief Justice Mansfield said: “For the goods the carrier is answerable in all events; but he does not warrant the safety of his passengers. His undertaking to them goes no farther than this —■ that as far as human care and foresight can go he will provide for their safe conveyance.” (Christie v. Griggs, 2 Camp. 79; Camden & A. R. R. & Transp. Co. v. Burke, 13 Wend. 611, 616; Hollister v. Nowlen, 19 Wend. 234, 236.) This distinction in liability arises out of the difference in control exercisable over human beings and mere goods. In Jackson Architectural Iron Works v. Hurlbut (158 N. Y. 34, 38) this court held that it was not error to refuse to instruct a jury that one whose business is that of a general truckman, whose particular specialty was moving heavy machinery, for which he kept and maintained a large number of trucks and horses and necessary help for the transaction of this business was not a common carrier. Judge O’Brien, who wrote the opinion of this court, said: “ A common carrier is one who, by virtue of his calling, undertakes, for compensation, to transport personal property from one place to another for all such as may choose to employ him, and every one who under *483 takes to carry for compensation the goods of all persons indifferently is, as to liability, to be deemed a common carrier.” (Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 34 at 38; Bank of Orange v. Brown, 3 Wend. 158; Schouler on Bailments & Carriers [2d ed.], 351; Story on Bailments, secs. 495, 496; 2 Kent’s Commentaries [4th ed.], pp. 598, 599; 2 Parsons on Contracts, 165, 175; Angell on Carriers, 870; Allen v. Sackrider, 37 N. Y. 341; Lough v. Outerbridge, 143 N. Y. 271.) If we omit the words “ the goods of,” we find a perfect definition of a common carrier of persons and, when the history of the change of common carriers from goods to persons is traced, we find that reason, custom and common sense support this definition. Does not the term “ common carrier ” have a different significance than the narrow definition given by Moore, to the layman who negotiates an insurance contract, by which he is to be paid a specified sum provided his injury takes place while traveling in a public conveyance provided by a common carrier? The insurance contract certainly meant something and its meaning was not limited by the old definition of “ common carrier.” Its indemnity was for personal injuries. Did not “ common carrier” include in the mind of the assured and in the mind of the ordinary man, a street car, busses, jitneys, taxicabs, and all means of conveyance which are publicly offered to travelers whether accompanied by their luggage or not, regardless of whether the offer is made by a carrier of goods and persons or merely of persons? The certificate of incorporation of the company owning the taxicab in question states that it is organized for the transportation of passengers or goods. Why, then, is it not a “ common carrier ” within the meaning of the insurance policy in the instant case? That the company itself was a common carrier within the meaning of the policy, there can be, I think, little doubt. The tendency of the law is to ehminate distinctions *484 which no longer continue in the mind of the ordinary-man. The Supreme Court of the United States well says in Little v. Hackett (116 U. S. 366, 379), Field, J.: “ There is no distinction in principle whether the passengers be on a public conveyance like a railroad train or an omnibus, orbe on a hack hired from a public stand in the street for a drive.” And in distinguishing the passenger in a public conveyance from the owner, said: “The owner of a public conveyance is a carrier, and the driver or the person managing it is his servant. Neither of them is the servant of the passenger, and his asserted identity with them is contradicted by the daily experience of the world.” (Field, J., Little v. Hackett, 116 U. S. 366, 375.) The modern meaning of common carrier is well expressed in the California Code as follows: “ Every one who offers to the public to carry persons, property or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry.” (Calif. Civil Code, sec. 2168.) The crux of the present case, therefore, narrows down to the point whether the taxicab furnished to the plaintiff in which he was riding and from which he was alighting, at the time of his injury was a public conveyance. If this be so, and the company furnishing it being a common carrier, the conditions of the policy providing for double indemnity are fulfilled. The stipulated facts show that the Yellow Taxi Service, Inc., sent its taxicabs, equipped with taximeters, on the streets of Albany under the control of their chauffeurs to wait at stands or when traveling upon the streets and unemployed to transport any applicant for their service. The city ordinance clearly applies to them and penalizes both the chauffeur and the owner for any refusal to accept any proper applicant. Certainly the owners and drivers of purely private conveyances cannot be subjected to this penalty. *485 In Primrose v. Casualty Co. (232 Penn. St. 210, 214) it was said: “ The words ‘ public conveyance provided for -passenger service and propelled by gasoline' are to receive a reasonable meaning. All conveyances are either for public or private use. The automobile in the case at bar was not for merely private use. It belonged to a company which, as already stated, was engaged in the business of hiring automobiles for general public use. The use of no one of its machines was limited to any particular person, but any one able to pay the price for the privilege of riding in it, while it was under the control of and being operated by one of the company’s employes, could do so. In some cases a fare per head was charged for the use of the machine for a stipulated time or for a specified journey; in other instances there was a charge for the use of the car of so much by the hour, and under this arrangement the deceased and his friends hired the car in which they were riding. * * The facts in the Primrose case were very similar to those in the case at bar and while it may be that that decision was too broad, in that it applies to a rented automobile under contract for a day or an hour or other specified time, it is clear that a taxicab equipped with a taximeter “ cruising ” along the streets of a city offering its services to the first comer, looking for “ fares ” to any place within the city limits at a fixed price to be controlled by the distance and recorded by a taximeter is a public conveyance within the usual concept of the term and also legally. Its character does not change by reason of some passer-by accepting the offer publicly made of its services. It was a public offer of conveyance which he accepted and the instrument of conveyance must remain as to him a public conveyance to his journey’s end or his dismissal of the cab. There does not seem to be much reason in the argument that, if all the seats were occupied, the conveyance was a public one, but that if only two or three of the four *486 available seats were occupied, it was a private conveyance. The fact that, by custom, when engaged by a “ fare,” taxicabs proceed under the direction of that “ fare ” to the destination desired by him and accept no other passengers does not change the means or character of the conveyance. The custom is the result of business convenience, inherent in the successful conduct of the taxicab business. Those employing taxicabs desire greater speed and convenience in transacting their business or journey than is furnished by the ordinary street car or jitney bus. This means of speed and convenience is offered by the taxicab, and that is what warrants its higher rate of charge. (Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 34.) The exclusive right to use does not alter the situation. In Campbell v. Perkins (8 N. Y. 430, 435), in which the owners of a canal boat carrying passengers and goods for hire, chartered a boat bearing their name to another company for a single trip, a passenger, apparently knowing nothing of the charter party, engaged passage on the boat and during the trip from New York to Albany some of his luggage was lost and he brought action against the owner. It was held “ that the defendants as owners of the boat were hable to the plaintiff in their character as common carriers, notwithstanding there was no privity of contract between them and the plaintiff; that they had a duty to perform as common carriers and were liable for their failure to perform such duty.” An express train which may not .be filled to capacity, passes by ordinary stations, even cities, where passengers may be waiting, willing and anxious to board it, but its services belong to those few persons who entered, it for specific destinations without intermediate stop. Passengers often pay an extra fare to travel on these trains. Inns cannot be compelled to fill every room to capacity, nor Pullman companies to let unoccupied berths in sections already rented. These limitations do not *487 alter their pubhc characters. (Jencks v. Coleman, 2 Sumner, 221.) This would make it appear that the test of the meaning of “ pubhc conveyance ” is not whether all the seats are occupied or whether a passenger takes one or more seats in a taxi, paying for those he himself does not occupy. The test is the pubhc offer of conveyance at a fixed fare to all. The judgment of the Appellate Division and order appealed from should be affirmed, with costs.