Page:The Green Bag (1889–1914), Volume 17.pdf/608

 DEPENDENT SERVICES OF COMMON CARRIERS is offered. This argument has the force and weakness of half-truth. All this is so; and yet if public duty plays no part in governing the arrangement 'between the railroad company and the palace-car com pany the public may without illegality be made subject to an exorbitant price by reason of the exaction of an outrageous fee for the monopoly; while, if public duty gov erns the railroad in entering into this ar rangement, it must accept as many palacecar companies as care to take the risk of entering into this business upon paying a fair charge for haulage. There would never, in fact, be much actual competition under such circumstances; but there would always be the benefit to the public which results from potential competition.

The point- has been raised a few times whether there is a duty in respect to the provision of food for passengers. In Kelly v. C. M. & St. P. R. R. (93 la. 436), it appeared that the railroad had arranged with the plaintiff to have a dining-room near the station premises at Sanborn Station where trains were stopped for meals. Later, an other arrangement was made with other parties at Spencer Station, twenty-seven miles distant; in this latter contract the railroad agreed to transport supplies free, and to furnish fuel. Thereafter, the train schedule allowed for meals at Spencer in stead of Sanborn. Plaintiff in this action alleged these discriminations. The court decided in favor of the rail road. Extracts from the opinion of Mr. Jus tice Deemer follow: "We are not inclined to commit ourselves to the doctrine that be cause a railroad company carries freight free of charge to one of its" eating-houses, and furnishes the proprietor with fuel, ice, and transportation for his family and his employes, it is bound to do so for all with out reference to the contractual relations existing between them. Again, it is charged that others doing a like business with plain

579

tiff were not charged for carrying their goods. Now, plaintiff was conducting an eating-house under an express contract for the benefit of the defendant company, in which we have held that all the conditions are fully expressed. And, under the alle gations of the pleading, others who were engaged in a like business had their freights free. It is evident, then, that the charge is that others who were conducting eatinghouses for the benefit of the defendant, under express contracts, had their freight free. According to the petition, the whole matter is relegated to the domain of con tractual relations, and there is nothing to show that plaintiff, and the others to whom he refers, had the same kind of contracts. The company may well have considered the benefits to be derived from one eating-house were much more than from another, and may have agreed to pay the proprietor of one more than it did another. Any other rule would compel the defendant company to make leases of its grounds for eatinghouse purposes on the same terms and con ditions with all persons, without reference to the difference in benefits to be derived on account of location, character of building, ability of lessee, or any other of the many considerations which always enter into such transactions. We do not think a cause of action is stated."1 The public duty here again, is to the trav eling passenger; for it cannot be denied that those who carry passengers over long dis tances owe them the duty to make provis ion for food for them. The rule is thus stated in Penniston v. Chicago, St. Louis, etc., R. R. (34 La. Am. 777), by Mr. Justice Poche1: "In conveying passengers through long journeys, such as from Chicago to New Orleans, at great speed and with rapidity, a common carrier is required by humanity, as well as by law, to provide its passengers with easy modes and to allow them reason1 It may be claimed with some truth that Perth General Station Committee v. Ross, 1897, A. C. 479, is accord.