While plaintiff was alighting from a taxicab in the city of Albany he met with an accidental injury. At the time he held a policy issued by the defendant insuring him against injury through accidental means which provided that the amount to be paid in case of such an injury should be doubled if it was sustained by the assured "while in or on a public conveyance * * * provided by a common carrier for passenger service." By the judgment which has been recovered for double payment under this clause, the question has been presented whether the taxicab in which plaintiff was riding was a public conveyance provided by a common carrier for passenger service. The important facts by which this question is to be determined are as follows:
The Yellow Taxicab Service, Incorporated, operated taxicabs in the city of Albany. It had a garage and part of its service was rendered by taxicabs on calls sent in to the garage. In addition to this, however, it stationed taxicabs in various public places in the city where they stood awaiting and desiring engagement by any person who was free from reasonable or legal objections and was able to pay the required fare. The taxicab in which plaintiff was riding was one of the latter class. When a person engaged one of these cabs on a public stand it became subject to his orders as to destination and duration of service and the proffered engagement of any other *Page 488 person would not be accepted while it was engaged in carrying out the first engagement, even though there was room for other people. The company did not put in use the same number of cabs each day. It pursued with them no definite routes, had no schedule of any kind, the fares were fixed by it and were not in any way controlled or governed by the public service commission. There was in the city of Albany an ordinance which required a license fee for use of taxicabs and which imposed a penalty upon any driver who refused to convey any person within certain limits within the city and which limits included the service being rendered for plaintiff at the time of his accident. The taxicab company had taken out, and was operating, under such a license.
We think that upon these facts it has been properly held that the taxicab was a public conveyance and that the company which operated it was a common carrier.
In answer to the first question involved, it is difficult to see how the taxicab in use on this occasion can be regarded as other than a "public conveyance." We are not now considering the status of a cab which might be ordered by special call from the garage, as a conveyance might be ordered from a liveryman, but the case of one which was stationed upon the street for the purpose of securing business from any one who might come along who seemed to be an acceptable customer. Such a conveyance, stationed in a public place awaiting and accepting for carriage, subject to reasonable regulations which will be discussed later, any member of the public who desired it, and upon terms apparently uniform and common to all, seems clearly to be a public conveyance. It is a public conveyance because indiscriminately it conveys the public. It is not private because its use is not limited to certain persons and particular occasions or governed by special terms. If any persuasive authority is needed for this proposition it is found in the case of Terminal Taxicab Co., Inc., v. Dist. of Columbia *Page 489 (241 U.S. 252, 253). This case considered a statute relating to public utilities which latter were defined as including "every corporation * * * controlling or managing any agency or agencies for public use for the conveyance of persons," and it was held that the law applied to a company which carried passengers to and from hotels and railroad terminals, respectively, under contracts which gave it the exclusive right to solicit taxicab business from persons at either place. This was only part of the public and it was assumed that there was the same feature of control by the first person engaging a taxicab as appears in this case, yet it was held that such cabs were for "public use for the conveyance of persons."
We then come to the remaining question whether the Yellow Taxicab Service was a "common carrier" for passenger service in respect of the taxicab in which plaintiff was riding at the time he received his injuries. And again in this connection it may be stated that the status of the company in respect of such a cab and in respect of those stationed in its garage and employed by and on special call for special purposes is not necessarily the same. I think and for the purposes of this discussion shall assume that as to such latter taxicabs it would more nearly have the character of a liveryman and would not be a common carrier. (Stanley v. Steele, 77 Conn. 688; McGregor v. Gill,114 Tenn. 521; Siegrist v. Arnot, 86 Mo. 200, 205; Erickson v.Barber, 83 Iowa 367; Copeland v. Draper, 157 Mass. 558;Conn v. Hunsberger, 224 Penn. St. 154.)
This immediate question will be discussed on the theory that the taxicab which was used by the plaintiff was stationed upon a public street and in a public place intended to serve and serving indiscriminately those of the public who might desire it under common conditions and upon common rates of fare. I am aware that it will be contended by the appellant that this is not an accurate statement of the situation because the services were *Page 490 subject to certain conditions, limitations and restrictions and, therefore, there will be considered first these limitations for the purpose of determining whether in any substantial or legal sense they did change the status of the taxicab as I have stated it to be.
It is said that the taxicab company did not at all times furnish the same number of cabs for public service, that it would not receive for carriage persons subject to certain objections, that it fixed its own rates of fare and moved from no fixed termini on fixed routes or regular schedule, and lastly that when it had received for carriage one individual or one group of individuals it was not open to other engagement until that trip had been finished. It is also said in attempted solution of this question that the company operating the taxicab would not be subject to action if it refused to accept a passenger and that it was not subject to the high measure of liability which attaches to a common carrier. So far as concerns these last propositions they seem to me to involve an argument which moves backward and which attempts to determine a status by consideration of results which flow from the status if established. The liabilities which have been mentioned cannot be regarded as creating the status of a common carrier; they arise from the condition of being a common carrier if that is once established.
I do not think that any of the special conditions and limitations which have been mentioned destroy or impair the fundamental and substantial character of the operator of the taxicab in question. We can easily see that there is nothing decisive in the facts that the company did not at all times operate the same number of cabs, that it rejected undesirable persons, as those intoxicated or diseased, proposing to use its conveyances and that it fixed its own rates of fare. These are all privileges commonly exercised by common carriers subject to statute or contract and to the modern device of regulation *Page 491 by public service commissions and except for such control or regulation even a railroad company would not be regarded as losing or shedding its character of a common carrier if from day to day it varied the number of its trains, rejected undesirable persons as passengers or fixed its fares.
Neither has it ever been regarded or held to be indispensable to the creation of the status of common carrier that its conveyances should move between fixed termini upon fixed routes. It is true that until modern times common carriers, taking the ordinary stage coach as an illustration, did ordinarily thus move, but no case has been cited or found which holds that such characteristics are indispensable. In fact the contrary has been held. (Parmelee v. Lowitz, 74 Ill. 116; Pennewill v.Cullen, 5 Harr. [Del.] 238.) It has even been held that fixed charges are not an essential attribute of a common carrier of goods. (Jackson Agr. Iron Works v. Hurlbut, 158 N.Y. 34.)
This leaves the limitation upon service which is most urgently emphasized by appellant, namely, the one that when the taxicab had been engaged by one member or group of members of the public no other person was received for carriage even though room was still left in the conveyance, until the first trip had been completed. This in our judgment did not take defendant out of the character of common carrier. As has been said in a thoughtful discussion of this general question in respect of this particular feature, "It would seem that in every case of general obligation to serve, the custom of service qualifies the nature of the duty." (Columbia Law Review, Dec. 1917, pp. 710, 713.) The custom under which, as we know by ordinary observation, a taxicab, such as that in which plaintiff was riding, after having accepted from the public an individual or a group of individuals refuses to receive others is not only well-nigh universal but is almost indispensable. Moving on no *Page 492 definite route, but having taken passengers for delivery at one destination, it could not well or conveniently discharge its service to them if it received other individuals desiring to go to another destination or in an opposite direction. It does not absolutely and unqualifiedly refuse to serve these latter people but simply relegates them to service by another conveyance. Its refusal to carry the public goes no farther than conditions and limitations which it can reasonably and conveniently make and more than this a common carrier is not required to do.
While a company operating sleeping cars is not a common carrier, it still is engaged in rendering public and common service and it has been held that such a company is not compelled to sell an upper berth, although unoccupied, when the entire section has been engaged by another occupant. (Searles v. MannBoudoir Car Co., 45 Fed. Rep. 330; Nevin v. Pullman P.C.Co., 106 Ill. 222.) An hotelkeeper is not compelled to accommodate a proposed guest by setting up an extra bed in a room already engaged although there is plenty of space in such apartment for such extra bed. (Browne v. Brandt, 1902, 1 K.B. 696.) And as was held in the case of Terminal Taxicab Co.,Inc., v. Dist. of Columbia (241 U.S. 252), above cited, the status of a taxicab as a "public" conveyance is not impaired by the observance of a custom or regulation such as we are now commenting on, and of course the feature of indiscriminate public service, there said not to be impaired by such regulation, is the essence of and foundation upon which rest the character and status of a common carrier.
Therefore as we think, subject to these particular features which regulated without destroying its service, the owner of this cab was engaged in indiscriminately carrying such members of the public as might apply on common terms and it came within the definition of a common carrier.
As we well know the vocation of a common carrier of *Page 493 passengers is an evolution from that of a common carrier of goods. Classical definition of the latter is "any man undertaking for hire to carry the goods of all persons indifferently." (Gisbourn v. Hurst, 1710, 1 Salk. 249.) And again, "To bring one 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." (Story on Bailments, § 495.)
In extension of this definition the common carrier of passengers has been with accuracy defined as "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.)
The meaning and extent of these definitions of a common carrier are emphasized by recognized definitions of a private carrier. "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 themselves or others a business and they 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." (Hutchinson on Carriers [3d ed.], § 35.)
The learned counsel for the appellant in his earnest and thorough argument for a different view calls to our attention many cases asserted to lead to a different conclusion. Some of these are in our opinion so readily *Page 494 distinguishable from the present one that it is unnecessary to comment on them at length. There are, however, cited four cases which merit brief comment for the purpose of distinguishing them from the present case.
In Darnell v. Fidelity Casualty Co. (Sup.Ct. of Tenn., 46 Insurance L. Journal, 523) the taxicab involved had been employed on a special call to the garage and the business of the owner and operator of it was described "as in the nature of a livery stable business." As has already been indicated we think that the status of such a conveyance may readily be distinguished from that of the conveyance in which plaintiff was riding.
Oppenheimer v. Maryland Cas. Co. (70 Penn. Super. Ct. 383) dealt with an automobile which was hired under special contract from one who so far as appears kept a garage and did not station his cars upon the street for public service, and the court disposed of the case on the theory that it involved and was controlled by the principles applicable to a livery stable keeper.
The case of City of New York v. Hexamer (59 App. Div. 4) involved the consideration of a licensing ordinance and it was simply held that the right to license the business of hackmen and to fix a license did not authorize the passage of an ordinance imposing a license fee upon a person engaged in conducting a livery stable in New Jersey and who at intervals sent his carriages into the city of New York for the purpose of meeting the steamers of the Trans-Atlantic Line and conveying the passengers to their respective destinations. It was the view of the court that such a person so conducting a livery stable and sending forth his hackmen was not "a public hackman."
The case of Brown v. N.Y.C. H.R.R.R. Co. (75 Hun, 355) involved the question whether an owner of two carriages with teams of horses which were used in the transportation of passengers about the city of Niagara Falls was a common carrier within the meaning *Page 495 of a statute regulating the admission of persons upon the station premises of the defendant for the purpose of soliciting custom. There are contradictory expressions in the opinion upon the question of common carrier. It is stated that the plaintiff's business did come within the general definition of a common carrier but that ordinarily in speaking of common carriers, hackmen were not understood to be included therein. The important fact in respect of the decision, however, is that the question whether the plaintiff was a common carrier or not was not necessary to the disposition of the case which proceeded to the same conclusion whether he was or was not.
On the other hand, we think that there is quite an abundance of decisions, some of them accompanied by well-considered opinions, which support the view that the operator of the modern public taxicab or of its prototype, the old-fashioned public hack, was and is a common carrier. (Cushing v. White, L.R.A., 1918 F, 463; Carlton v. Boudar, 118 Va. 521; Primrose v. CasualtyCo., 232 Penn. St. 210; Ga. Life Ins. Co. v. Easter,189 Ala. 472; Fidelity Casualty Co. v. Joiner, [Texas]178 S.W. Rep. 806; Lemon v. Chanslor, 68 Mo. 341; Lewark v.Parkinson, 73 Kans. 553.)
We think also that the Terminal Taxicab Co. case, above cited, when carefully considered strongly tends to sustain the view which we have taken.
We, therefore, are led to the conclusion that the judgment appealed from should be affirmed, with costs.
CHASE, HOGAN, CARDOZO, McLAUGHLIN and CRANE, JJ., concur with ELKUS, J., and HISCOCK, Ch. J., concurs in opinion, in which all concur.
Judgment affirmed. *Page 496