ure 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. .

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. . . .

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 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. ...

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 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 indiscriminately." (Gisbourne 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 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. 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 Pa. 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 TransAtlantic 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. 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 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. 1918F, 463;* Carlton v. Boudar, 118 Va. 521; Primrose v. Casualty Co., 232 Pa. 210; Ga. Life Ins. Co. v. Easter, 189 Ala. 472; Casualty Co. v.

2 101 Wash, 172.

Joiner [Texas] 178 S. W. 806; Lemon v. Chanslor, 68 Mo. 341; Lewark v. Parkinson, 73 Kan. 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, C. J., concurs in opinion, in which all concur.

COCHRANE, J. The strict rule of the common law has declared for centuries, and still declares, that an innkeeper is the insurer of the property of his guest, and liable for its loss for any cause whatever, unless such loss occurs from the neglect of the guest or the act of God, or the public enemy. Wilkins v. Earle, 44 N. Y. 172;

Hulett v. Swift, 33 N. Y. 571. .

The

While there is no doubt about the existence of the above rule, a question arises as to its application to the facts of this case. urged by the defendants that the plaintiff was not their guest in the sense in which that term is used in the rule above referred to. idea has always existed that the relationship of innkeeper and guest involved a visit or sojourn, on the part of the latter, of a transitory nature. The primary and fundamental function of an inn seems clearly to have been to furnish entertainment and lodging for the traveler on his journey. This at all times seems to have been its distinguishing feature. This idea has been expressed in the literature of ages, in history, sacred and profane, in fiction, and in poetry. So true is this that the term "inn seems always to have been used in connection with the corresponding notion of travelers seeking the accommodation and protection of the inn. Thus the Christian era dawned on a Judean scene, where travelers away from home, who had gone up to be taxed pursuant to the decree of the Roman Emperor, sought refuge in a manger "because there was no room for them in the inn." Sir Walter Scott characterizes the inn of the old days of Merry England as "the

3 See Notes, 5 Cornell L. Quar. 442; 19 Michigan L. Rev. 94.

1 The statement of facts and a paragraph of the opinion are omitted.- ED.

free rendezvous of all travellers," of which the bonny Black Bear of Cumnor village, not conducted merely, but "ruled, by Giles Gosling, a man of a goodly person," as landlord, was a typical instance. And so the most illustrious bard of England says, referring to the time of approaching twilight, with the west glimmering with streaks of day, "now spurs the lated traveller apace to gain the timely inn." Turning from the pages of literature to those of legal lore, we find that the same idea is carried out with remarkable constancy. An inn is defined by Bacon to be a house for the entertainment of travelers and passengers, in which lodging and necessaries are provided for them and for their horses and attendants. Bacon's Abr. "Inns," B. "The guest must be a traveler. (1 Roll. Abr. 3, E, 4; 2 Brownl. 254; Rex v. Luellin, 12 Mod. 445; Ingalsbee v. Wood, 36 Barb. 452; Bacon's Abr. 'Inns,' C, 5; Parkhurst v. Foster, Salk. 383.)" In Cromwell v. Stephens, 2 Daly, 22, it is said, referring to the case of Thompson v. Lacy, 3 B. & A. 283, "Justice Bayley declares it to be a house where a traveler is furnished with everything which he has occasion for while upon his way,' and in the same case BEST, J., says it is a house, the owner of which holds out that he will receive all travelers and sojourners who are willing to pay a price adequate to the sort of accommodation provided, and who come in a situation in which they are fit to be received.''

"He [the

In Ingalsbee v. Wood, 36 Barb. 456, it is said: guest] must also be a traveler, within the meaning of the law, or have personal entertainment or accommodation as such."

And again, at page 461: "The foundation of this strict rule of liability against innkeepers was for passengers and wayfaring men. Calley's Case, reported in 8 Co. 32, is one of the oldest cases in the books of reports, and is cited with approbation in all the modern authorities. It was there held that, to entitle the plaintiff to bring the action, he ought to be a passenger'; that a neighbor shall not have the action.' That case also holds out the idea that a guest of an inn is something more than the mere stopping of a neighbor for convenience. . . . We have now seen what it is to be actually a guest of an innkeeper. An inn is a house where the traveler is furnished with everything that he has occasion for while on his way.' Thompson v. Lacy, 3 Barn. & Ald. 283, 6. "It is a house kept open publicly, for the lodging and entertainment of travelers generally, for a reasonable compensation.' (Hill. Elem. of Law, 101; Jac. L. Dic. tit. 'Inn.')" In Mowers v. Fethers, 61 N. Y. 37, 19 Am. Rep. 244, it is said: "An innkeeper, at common law, has been said to be the keeper of a common inn for the lodging and entertainment of travelers and passengers,