Nevin v. the Pullman Palace Car Co..

• Decision Date: 29 March 1883
• Citation: 1883 WL 10204,106 Ill. 222,46 Am.Rep. 688
• Parties: LUKE NEVINv.THE PULLMAN PALACE CAR COMPANY.
• Court: Illinois Supreme Court

106 Ill. 222

1883 WL 10204 (Ill.)

46 Am.Rep. 688

LUKE NEVIN

v.THE PULLMAN PALACE CAR COMPANY.

Supreme Court of Illinois.

Filed at Springfield Mar. 29, 1883.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Appellate Court for the Third District;-- heard in that court on appeal from the Circuit Court of McLean county; the Hon. OWEN T. REEVES, Judge, presiding.

Messrs. TIPTON & RYAN, for the plaintiff in error:

The averments of the declaration show that the defendant was engaged in a public employment, as a regular business, for hire, and so held itself out to the traveling public.

A common carrier is one who undertakes, for hire or reward, to transport the goods of such as choose to employ him, from place to place. This may be carried on at the same time with other business. Dwight v. Brewster, 1 Pick. 53; F. and M. Bank v. Ch. Trans. Co. 23 Vt. 186; 2 Parsons on Contracts, 104, 158, 178; 2 Hilliard on Torts, 538; Parmalee v. Lowitz, 74 Ill. 116.

A common carrier need not be the owner of the conveyance employed in the business. Buckland v. Adams Express Co. 97 Mass. 124; Lowell Wire Fence Co. v. Sargeant, 8 Allen, 189; Sherman v. Wells, 28 Barb. 403; Christenson v. American Express Co. 15 Minn. 270; Rogers v. Wheeler, 43 N. Y. 598; Dickinson v. Winchester, 4 Cush. 114; Belger v. Dinsmore, 51 Barb. 69; Verrier v. Sweitzer, 32 Pa. St. 208; Place v. Union, 2 Hilt. 19; Mercantile, etc. v. Chase, 1 E. D. Smith, 115; 1 Hilliard on Torts, sec. 1.

There is an implied engagement on the part of public carriers of persons not to refuse those who apply for seats by their conveyance, the privilege of traveling in such manner, provided there is room for them, and a tender of or offer to pay the fare is made at the time. Angell on Carriers, secs. 524, 418; Brotherton v. Wood, 3 Bro. & Bing. 54; Pickford v. Grand Junction R. R. Co. 8 M. & W. 372; Bennett v. Dutton, 10 N. H. 481; Tarbell v. Central Pacific R. R. Co. 34 Cal. 616; 3 Kent's Com. sec. 599; Frink v. Schroyer, 18 Ill. 419.

Plaintiff in error has properly declared in case. A party may sue in assumpsit, according as the neglect of duty or breach of promise is intended to be relied upon as the cause of injury. Angell on Carriers, sec. 422; Brotherton v. Wood, 3 Bro. & Bing. 54; Griffin v. Farwell, 20 Vt. 151.

An action on the case includes assumpsit as well as tort. 1 Chitty's Pleading, sec. 182; Hathorn v. Calef, 53 Maine, 471; Albert v. Blue, 10 B. Mon. 92.

Defendant in error promised to furnish appellant a berth and conveyance therein, and by designating and assigning the berth, commenced upon its undertaking, and case lies for the refusal to perform that undertaking. Hyde v. Moffat, 16 Vt. 271; Frink et al. v. Schroyer, 18 Ill. 419; Bufft v. Troy and Boston R. R. Co. 36 Barb. 420; Edwards on Bailments, sec. 699.

For cases recognizing the Pullman Palace Car Company as a common carrier, see Pullman Palace Car Co. v. Baker, 4 Col. 344; Welch v. Pullman Palace Car Co. 1 Buff. (N. Y.) 457.

Messrs. FIFER & PHILLIPS, for the defendant in error, argued that the Pullman Palace Car Company was not a common carrier, in any such sense as would authorize the law to interpose, and, upon grounds of public policy, impose an obligation to exercise its calling upon proper application, independently of any contract.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

This was an action on the case, brought by Luke Nevin, the plaintiff in error, in the circuit court of McLean county, against the Pullman Palace Car Company, the defendant in error, for refusing to permit him to occupy a sleeping berth in one of its cars, which had been assigned to him, and which he was ready and offered to pay for. The circuit court sustained a general demurrer to the declaration, and the plaintiff electing to stand by his declaration, judgment was entered against him for costs, which, on appeal, was affirmed by the Appellate Court for the Third District, and the plaintiff in error brings the record here for review.

The declaration, omitting mere formal averments and unnecessary verbiage, charges, in substance, that the plaintiff, on the 4th day of August, 1881, at Dubuque, Iowa, purchased of the Illinois Central Railroad Company, for his niece, wife and himself, respectively, three first-class passenger tickets over that company's railway, from Dubuque, Iowa, to Chicago, this State; that having provided himself with these tickets, he, together with his wife and niece, about ten o'clock of the night of that day, and just before the train from Dubuque to Chicago started out, entered a sleeping car called “Kalamazoo,” belonging to and constituting a part of said train, which said sleeping car was then in the possession and under control of the defendant; that upon entering the car he engaged of the conductor of said car two lower berths, at one dollar and fifty cents each; that the conductor thereupon assigned one berth to his niece, and one to plaintiff and his wife, promising to have them made up a little later in the night; that he and his wife took the seats in the berth assigned to them, and remained sitting up, in an orderly manner, until about twelve o'clock, frequently, in the meantime, requesting the conductor to have the berths made up, so they could retire to rest, and at the same time tendering to him the price agreed to be paid therefor; that on the arrival of the train at Lena, this State, about the hour just stated, plaintiff temporarily left his seat, and stepped out on the platform of the sleeper, intending to return immediately to his berth, when the conductor instantly closed and secured the outer doors of said sleeper, and thereby prevented him from again entering the same; that plaintiff endeavored to open said doors and reënter said car, and frequently requested the conductor to permit him to do so, but that said conductor, instead of complying with his request, removed his satchel, coats and shoes from the berth so assigned to him and his wife, to another car, and ejected the latter from said sleeper, by means of which plaintiff was compelled to take and occupy a seat in a common passenger car on said train till its arrival in Chicago, by reason of which plaintiff was deprived of his rest and sleep, in consequence of which “he became exceedingly weary and sick, and was greatly humiliated,” etc.; that his expulsion from his berth in the manner stated was done willfully and maliciously, and that the only reason assigned by the conductor for refusing the price of the berths was, “that they were not made up.”

It is not claimed or pretended, as we understand counsel, that the facts alleged in the declaration do not show a good cause of action, but the claim rather is, that they disclose a right to recover in assumpsit, and not in case,--or, in other words, the contention is, that the plaintiff has misconceived his action; that the only wrong complained of consists of a breach of an express contract, and therefore the action should have been brought in form ex contractu, and not in form ex delicto, as it was.

We shall not attempt a review of the authorities, with a view of extracting from them some general principle or rule by which the question in hand may be satisfactorily solved, but shall content ourselves with adverting to such general rules and principles relating to the subject as are fully established by the authorities, and which we regard as conclusive of the question. We have been led to adopt this course mainly from two considerations. In the first place, the cases bearing on the question are so very numerous that a general review of them would be an almost endless undertaking; and in the next place, it would be impossible to harmonize all that has been said by the courts, even of the highest character, in attempting to define the true and exact limits of an action on the case.

To proceed, then, it is agreed by all the authorities the gravamen of the charge in an action on the case is the tort or wrong of the defendant, notwithstanding such tort or wrong may be also a breach of an express or implied contract, whereas in an action ex contractu the gist of the action is the breach of the contract, without regard to the tortious character of the act of the defendant. It follows, therefore, if there is a right of recovery at all in this case, it must be upon the ground the defendant has been guilty of some tort or wrong resulting in damage to the plaintiff. That the conduct of the defendant was wrong and indefensible, and that the plaintiff was subjected to great inconvenience and suffering in consequence of it, is not, and can not be, denied; but the contention is, that all the defendant did on the occasion was a mere breach of the special contract between the parties, and that the remedy therefore is on the contract, and not in tort,--and this is the vital question in the case.

Without stopping, for the present, to inquire whether the position of the defendant is well founded to the extent claimed, but conceding it to be so for the purposes of the argument, is it true, as a universal proposition, that this form of action will not lie in any case where the conduct complained of is a direct breach of an express contract? Certainly not. A simple illustration will demonstrate the fallacy of such a position. Suppose A contracts with B to keep the latter's horse for an indefinite period at fifty cents a day, the horse to be returned to B on demand, and A, after having been paid all charges for the keep of the horse, should refuse to redeliver him to B, on demand, no one, in such case, would question for a moment the right of B to maintain an action of trover against A for the horse, which is one species of the action on the case,--and yet, in the case supposed, the refusal of A to redeliver the horse, the real cause of action is, in the strictest sense of the term, a direct breach of the special contract between the parties. While the fact that the act or acts complained of constitute...