5 Mich. 520 | Mich. | 1858
Lead Opinion
The declaration contains three counts. The first and second for refusing to carry the plaintiff in the cabin; the third for refusing to carry him generally.
This last count is bad, as it contains no averment that plaintiff offered, or was ready and willing, to pay the fare.
The notice accompanying the general issue sets up three, several grounds of defense to the declaration, and may therefore be considered as three separate notices. The demurrer is to the whole notice; and if any one of these defenses is good to the other counts in the declaration, the demurrer was properly overruled, and the judgment of the Court below must be affirmed.
The second ground of defense, stated in the notice, is, That, by the regulations and established course of business of the steamer, colored persons were not received as cabin passengers, and were not allowed to use the cabin as such passengers; and avers such regulations and course of business to be reasonable.
The second count of the declaration states two modes of carrying passengers, — one on deck and the other in the cabin. It then alleges that passengers were carried either way as they might require, on paying the necessary fare— that is, cabin fare if they wished to go in the cabin, and deck fare if on deck.
The right to be carried, is a right superior to the rules and regulations of the boat, and can not be affected by them. If defendant • had refused to carry the plaintiff generally, he would be liable, unless he could show some good excuse, releasing him from the obligation. While this is a right that can not be touched by rules and regulations, the
The right to be carried is one thing — the privileges of a passenger on board of the boat, what part of it may be occupied by him, or he have the right to use, is another thing. The two rights are very different. The latter, and not the former right, is subject to reasonable rules and regulations, and is, where such rules and regulations exist, to be determined by them. Hence the allegation we have already adverted to in the second count, as it relates to the accommodation of passengers while being transported, must be understood as a statement of a right that is subject to rules and regulations where they exist; and so far, therefore, as that count, in the statement of that right, conflicts with the defendant’s notice, or the notice with it, the notice is a denial of the right itself, or, more properly speaking, an admission and avoidance of the 'prima facie case of the plaintiff.
The refusal to allow plaintiff the privilege of the cabin, on his tendering cabin fare, was nothing more or less than denying him certain accommodations, while being transported, from which he was excluded by the rules and regulations of the boat.
All rules and regulations must be reasonable; and to be so, they should have for their object the accommodation of the passengers. Under this head we include everything calculated to render the transportation most comfortable and least annoying to passengers generally; not to one, or two, or any given number carried at a particular time, but to a large majority of the passengers ordinarily carried. Such rules and regulations should also, be of a 23ermanent nature, and not be made for a particular occasion or emergency. In pleading, it is sufficient to state the rule or regulation, that plaintiff comes within it, and to aver its reasonableness. It is not necessary ■ to spread upon the record the
The notice states plaintiff is a colored person, and that by the rules and regulations of the boat, colored persons were excluded from the cabin. The reasonableness of the rule, if it be reasonable, does not depend upon the color of the plaintiff, or on the class of persons to which he belongs, all of whom are alike excluded, but on the effect the carrying of such persons in the cabin would have, not on the defendant’s business as a carrier — although it might be to his advantage — but on the accommodation of the mass of persons who have a right, and are* in the habit of traveling on his boat. As the duty to carry is imposed by law for the convenience of the community at large, and not of individuals, except so far as they are a component part of the community, the law would defeat its own object if it required the carrier, for the accommodation of particular individuals, to incommode the community at large. He may do so if he chooses, but the law does not impose it on him as a duty. It does not require a carrier to make any rules whatever, but if he deems it for his interest to do so, looking to an increase of passengers from the superior accommodations he holds out to the public, to deny him the right would be an interference with a carrier’s control over his own property in his own way, not necessary to the performance of his duty to the public as a carrier.
The judgment below must be affirmed with costs.
Concurrence Opinion
concurred. Camp-. Sell J. did not sit in this case, having been of counsel for one of the parties.