2

the law applicable to this case is this: that an indictment lies against an innkeeper, who refuses to receive a guest, he having at the time room in his house; and either the price of the guest's entertainment being tendered to him, or such circumstances occurring as will dispense with that tender. This law is founded in good sense. The innkeeper is not to select his guests. He has no right to say to one, you shall come into my inn, and to another you shall not, as every one coming and conducting himself in a proper manner has a right to be received; and for this purpose innkeepers are a sort of public servants, they having in return a kind of privilege of entertaining travellers, and supplying them with what they want. It is said in the present case, that Mr. Williams, the prosecutor, conducted himself improperly, and therefore ought not to have been admitted into the house of the defendant. If a person came to an inn drunk, or behaved in an indecent or improper manner, I am of opinion that the innkeeper is not bound to receive him. You will consider whether Mr. Williams did so behave here. It is next said that he came to the inn at a late hour of the night, when probably the family were gone to bed. Have we not all knocked at inn doors at late hours of the night, and after the family have retired to rest, not for the purpose of annoyance, but to get the people up? In this case it further appears, that the wife of the defendant has a conversation with the prosecutor, in which she insists on knowing his name and abode. I think that an innkeeper has no right to insist on knowing those particulars; and certainly you and I would think an innkeeper very impertinent, who asked either the one or the other of any of us. However, the prosecutor gives his name and residence; and supposing that he did add the words " and be damned to you," is that a sufficient reason for keeping a man out of an inn who has travelled till midnight? I think that the prosecutor was not guilty of such misconduct as would entitle the defendant to shut him out of his house. It has been strongly objected against the prosecutor by Mr. Godson, that he had been travelling on a Sunday. To make that argument of any avail, it must be contended that travelling on a Sunday is illegal. It is not so, although it is what ought to be avoided whenever it can be. Indeed there is one thing which shows that travelling on a Sunday is not illegal, which is, that in many places you pay additional toll at the turnpikes if you pass through them on a Sunday, by which the legislature plainly contemplates travelling on a Sun

2 In Ansell v. Waterhouse (1817), 2 Chit. 1, HOLROYD, J., said: "This is an action against a person [a common carrier], who, by ancient law, held as it were a public office, and was bound to the public."

In Jeremy on Carriers, p. 59, it is said of a common carrier that he is "to be considered in the light of a public servant, and as such liable to an action for refusing to take charge of the goods."

}

4 Tender

5

6.

day as a thing not illegal. I do not encourage travelling on Sun-
days, but still it is not illegal. With respect to the non-tender of
money by the prosecutor, it is now a custom so universal with inn-
keepers to trust that a person will pay before he leaves an inn, that
it cannot be necessary for a guest to tender money before he goes
into an inn; indeed, in the present case, no objection was made
that Mr. Williams did not make a tender; and they did not even
insinuate that they had any suspicion that he could not pay for
whatever entertainment might be furnished to him. I think, there-
'fore, that that cannot be set up as a defence. It however remains
for me next to consider the case with respect to the hour of the
night at which Mr. Williams applied for admission; and the opin-
ion which I have formed is, that the lateness of the hour is no ex-
cuse to the defendant for refusing to receive the prosecutor into
his inn. Why are inns established? For the reception of travel-
lers, who are often very far distant from their own homes. Now, at
what time is it most essential that travellers should not be denied
admission into the inns? I should say when they are benighted,
and when, from any casualty, or from the badness of the roads,
they arrive at an inn at a very late hour. Indeed, in former times,
when the roads were much worse, and were much infested with
robbers, a late hour of the night was the time, of all others, at which
the traveller most required to be received into an inn. I think,
therefore, that if the traveller conducts himself properly, the inn-
keeper is bound to admit him, at whatever hour of the night he
may arrive. The only other question in this case is, whether the
defendant's_inn was full. There is no distinct evidence on the
part of the prosecution that it was not. But I think the conduct of
the parties shews that the inn was not full; because, if it had been,
there could have been no use in the landlady asking the prosecutor
his name, saying, that if he would tell it, she would ring for one of
the servants.
Verdict Guilty.3

8 In Lane v. Cotton (1701), 12 Mod. 472, HOLT, C. J., in speaking of those engaged in common callings, said: "Wherever any Subject takes upon himself a Publick Trust for the Benefit of the rest of his fellow Subjects, he is eo ipso bound to serve the Subject in all the Things that are within the Reach and Comprehension of such an Office, under Pain of an Action against him; and for that see Kelway 50. If on the Road a Shoe fall off my Horse, and I come to a Smith to have one put on, and the Smith refuse to do it, an Action will lie against him, because he has made Profession of a Trade which is for the Publick Good, and has thereby exposed and vested an interest of himself in all the King's Subjects that will employ him in the Way of his Trade. If an Inn-keeper refuse to entertain a Guest, when his House is not full, an Action will lie against him; and so against a Carrier, if his Horses be not loaded, and he refuse to take a Packet proper to be sent by a Carrier; and I have known such Actions maintained, tho' the Cases are not reported. . . . If the Inn be full, or the Carrier's Horses loaded, the Action would not lie for such Refusal; but one that has made Profession of a public Employment, is bound to the utmost Extent of that Employment to serve the Publick."

HURLEY v. EDDINGFIELD.

156 Ind. 416. 1901.

BAKER, J. Appellant sued appellee for $10,000 damages for wrongfully causing the death of his intestate. The court sustained appellee's demurrer to the complaint; and this ruling is assigned for error.

The material facts alleged may be summarized thus: At and for years before decedent's death appellee was a practicing physician at Mace in Montgomery county, duly licensed under the laws of the State. He held himself out to the public as a general practitioner of medicine. He had been decedent's family physician. Decedent became dangerously ill and sent for appellee. The messenger informed appellee of decedent's violent sickness tendered him his fees for his services, and stated to him that no other physician was procurable in time and that decedent relied on him for attention. No other physician was procurable in time to be of any use, and decedent did rely on appellee for medical assistance. Without any reason whatever, appellee refused to render aid to decedent. No other patients were requiring appellee's immediate service, and he could have gone to the relief of decedent if he had been willing to do so. Death ensued without decedent's fault, and wholly from appellee's wrongful act.

The alleged wrongful act was appellee's refusal to enter into a contract of employment. Counsel do not contend that, before the enactment of the law regulating the practice of medicine, physicians were bound to render professional service to every one who applied. Wharton on Neg. § 731. The act regulating the practice of medicine provides for a board of examiners, standards of qualification, examinations, licenses to those found qualified, and penalties for practicing without license. Acts 1897, p. 255; Acts 1899, p. 247. The act is a preventive, not a compulsive, measure. In obtaining the State's license (permissive) to practice medicine, the State does not require, and the licensee does not engage, that he will practice at all or on other terms than he may choose to accept. Counsel's analogies, drawn from the obligations to the public on the part of innkeepers, common carriers, and the like, are beside the mark.

Judgment affirmed.1

1 Mr. Justice Holmes, in his work on The Common Law, p. 203, after quoting from Lane v. Cotton (see preceding note), to the effect that "If a man takes upon himself a public employment, he is bound to serve the

PULLMAN PALACE CAR CO. v. LAWRENCE.

74 Miss. 782. 1897.1

WOODS, C. J. We now proceed to consider the law of the liability of the appellant in the present case. We need hardly say that the law of the state of Illinois is that to which we must look to ascertain whether a cause of action is shown, and to determine the extent and measure of the recovery sought, if appellee was entitled to recover at all. . . . It must be conceded, further, that the Pullman Palace Car Company is not technically a common carrier in the state of Illinois. Our constitution has wisely declared all sleeping car companies common carriers, but such is not the law in Illinois. In Illinois, as in many other states, sleeping car companies are regarded as nondescript corporations-sui generis. By these authorities they are said to be neither common carriers nor innkeepers. And yet they bear some marked resemblance to both. They are under the duty of not only furnishing seats in their cars to all proper persons applying therefor, but they are also under the obligation in all proper cases, and to the extent of their ability and capacity, to furnish sleeping accommodations and food to the travelling public, for proper compensation. They therefore seem to possess some of the characteristics of innkeepers. And they seem to be quasi common carriers. They own and use railway cars affording many comforts, conveniences and luxuries unknown to first-class ordinary cars of railroad companies, and these cars are to be used in the transportation of passengers from point to point, and the general travelling public is invited to become patrons of the company owning and using these luxurious coaches. The company is, in some sense, engaged in transportation, and its business is with the general public. It is unlike the private carrier, who may select his own customers, for it must take all who are proper persons, and who pay the demanded fare. So, though not technically a common carrier in Illinois, it bears marked resempublic as far as the employment extends, and for refusal an action lies," says: "An attempt to apply this doctrine at the present day would be thought monstrous. But it formed part of a consistent scheme for holding those who followed useful callings up to the mark. . . . The scheme has given way to more liberal notions; but the disjecta membra still move.' See C. K. Burdick, The Origin of the Peculiar Duties of Public Service Companies," 11 Columbia L. Rev., 514; E. A. Adler, "Business Jurisprudence," 28 Harvard L. Rev., 125, and "Labor, Capital and Business at Common Law," 29 Harvard L. Rev., 241.

44

The survivors of the ancient common callings are the common carrier by land and water, and the innkeeper. See Chap. VIII.

1 Only an extract from the opinion is here reprinted.- ED.

blance to the common carrier, and must be held to the performance of its appropriate duties in its business intercourse with the travelling public.2

STATE v. BELL TELEPHONE CO.

23 Fed. 539. 1885.1

THIS was an application on the part of the Baltimore & Ohio Telegraph Company to compel the defendant to give the petitioner telephone service. The defendant answered that it operated under a license obtained from the American Bell Telephone Company, by the terms of which defendant could only give service to telegraph companies with the consent of the licenser, and that the licenser permitted service to be given to the Western Union Telegraph Company, but would not allow service to be given to the petitioner.

BREWER, J. So, notwithstanding this licenser has given to the licensee the right to establish a telephonic system in the city of St. Louis, with telephonic communication with only certain prescribed telegraph systems, the moment it permitted the establishment of a telephonic system here, that moment it put such telephonic system within the control of the state of Missouri, and the control of the courts, enforcing the obligations of a common carrier.

A telephonic system is simply a system for the transmission of intelligence and news. It is, perhaps, in a limited sense, and yet in a strict sense, a common carrier. It must be equal in its dealings with all. It may not say to the lawyers of St. Louis, "my license is to establish a telephonic system open to the doctors and merchants, but shutting out you gentlemen of the bar." The moment it establishes a telephonic system here it is bound to deal equally with all citizens in every department of business.2

2 See also Nevin v. Pullman Palace Car Co. (1883), 106 III. 222; Pullman Palace Car Co. v. Booth (Tex., 1894), 28 S. W. 719; Searles v. Mann Boudoir Car Co. (1891), 45 Fed. 330; Lemon v. Pullman Palace Car Co. (1887), 52 Fed. 262. And see Interstate Commerce Act, § 1, as to Sleeping Car Companies.

1 The statement of facts is condensed, only part of the opinion of BREWER, J., is reprinted, and the dissenting opinion of TRENT, J., is omitted.-ED.

66

2 In Commercial Union Tel. Co. v. New England T. & T. Co. (1889), 61 Vt. 241, a telephone company is spoken of as a common carrier of speech for hire." See also State v. Nebraska Telephone Co. (Neb., 1885), 22 N. W. 237, and Bell Telephone Co. v. Commonwealth (Pa., 1886), 3 Atl. 825.