Chicago, St Co v. Pullman South Car Co

• Decision Date: 02 March 1891
• Citation: 11 S.Ct. 490,35 L.Ed. 97,139 U.S. 79
• Parties: CHICAGO, ST. L. & N. O. R. CO. v. PULLMAN SOUTH. CAR CO
• Court: U.S. Supreme Court

139 U.S. 79

11 S.Ct. 490

35 L.Ed. 97

CHICAGO, ST. L. & N. O. R. CO. v. PULLMAN SOUTH. CAR CO.

March 2, 1891.

[Syllabus from pages 79-80 intentionally omitted] James Fentress, T. J. Semmes, and Girault Farrar, for plaintiff in error.

Thos. F. Hargis, Geo. B. Eastin, E. H. Farrar, B. F. Jones, and E. B. Kruttschnitt, for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

This action was brought by the Pullman Southern Car Company to recover from the Chicago, St. Louis & New Orleans Railroad Company the damages alleged to have been sustained on account of the destruction by fire of two of the plaintiff's sleeping-cars, the Great Northern and the Louisiana, while on the premises of the defendant. There was a verdict and judgment for the sum of $19,000, with interest from September 20, 1886, the date of judicial demand, at the rate of 5 per cent. per annum until paid, with costs. The assignments of error relate entirely to instructions given on behalf of the plaintiff, and to the refusal to give instructions asked by the defendant.

The action is based upon a written agreement between these corporations, dated April 5, 1879, showing that the business of the plaintiff was to operate drawing-room and sleeping cars which it hired, under written contracts for a term of years, to be used and employed on and over the lines of railway companies, receiving therefor income and revenue by the sale to passengers of seats, berths, and accommodations therein; and that the defendant was desirous of availing itself of their use, on its own routes, and also of connections, by means of such drawing-room and sleeping cars, with other railroads over which the plaintiff was running its cars. In order to effect the objects of the parties it was, among other things, agreed as follows:

(1) The plaintiff was to furnish drawing-room and sleeping cars 'sufficient to meet the requirements of travel,' on and over the defendant's railway, and such roads as the latter then or thereafter controlled as owner, lessee, or otherwise; the cars so furnished to be satisfactory to the general manager or superintendent of the railroad company, and to be in part certain named cars, 10 in number, among which were the Louisiana and the Great Northern, then operated on the defendant's lines. (2) Each of the plaintiff's cars was to be manned, at its own cost, by one or more of its employes, as might be needful for the collection of fares and the comfort of passengers; such employes to be subject to the rules and regulations established by the defendant for its own employes. (3) 'In consideration of the use of the aforesaid cars,' the defendant was to haul them on passenger trains on its own lines of railroad, and on passenger trains on which it might, by virtue of contracts or running arrangements with other roads, have the right to use them, 'in such manner as will best accommodate passengers during the use of said cars.' (4) By article sixth of the agreement, all necessary lubricating material, ice, fuel, and material for lights were to be supplied, and the washing and cleansing of the cars furnished under the contract to be done, by the defendant at its expense, which should also renew and replace, as often as necessary, links, pins, bell-cord, and couplings for air-brake hose, without charge to the plaintiff. (5)The plaintiff was to keep the cars furnished under the contract in good order and repair; renew and improve them, when necessary, at its own expense; keep them up to the average standard of the best and most approved sleeping-cars on any road using an equal number of cars, 'excepting repairs and renewals provided for in article sixth of this agreement, and such as are made necessary by accident or casualty, it being understood that the railway company shall repair all damages to said cars of every kind occasioned by accident or casualty during the continuance of this contract, except that the Pullman Company assumes all responsibility for any loss or damage occurring to said cars arising from defective heating apparatus or lights furnished by it.' (6) As proper compensation for the maintenance of the running gear and bodies of the cars, the defendant was to pay plaintiff 'three cents per car per mile for every mile run by said cars upon the road of the railway company or upon the roads of other companies, by direction of the officers of the railway company, while in service under this contract;' and at all times, when requested by the plaintiff, to make promptly such repairs to the cars furnished under the contract as might from time to time be- come necessary, and, without request, make such repairs as were required 'to insure their safety, rendering bills monthly to the Pullman Company for repairs to cars, and charging for the same only the actual cost of material and labor expended on such repairs, with an addition of ten per cent. to cover general expenses, all settlements and payments for mileage and repairs to be made monthly between said companies.' (7) Whenever the revenue from sales of seats and berths equalled an average of $7,500 per car per annum upon the number of cars furnished under the contract, then, and while such revenue continued, the defendant should not pay mileage for any car so furnished; the plaintiff, in such case, to bear the expense of all repairs and improvements to its cars, 'except such repairs as are rendered necessary by accident or casualty, and such as are provided for in article sixth of this agreement, which shall be made by the railway company, as hereinbefore mentioned.' (8) The plaintiff was to have the exclusive right, for a term of 15 years from the date of the agreement, to furnish drawing-room and sleeping cars for the defendant's use on all its passenger trains on roads then or subsequently controlled or owned by it, and on roads over which it had the right to run such cars; the defendant not to 'contract with any other party to run said class of cars on and over said lines of road during said period of fifteen years.' (9) In case either party failed to cleanse or repair any of the cars, according to the conditions of the agreement, and the party so in default should neglect and refuse to perform its agreement in this respect within a reasonable time after notice of such default, the other party had the right to cleanse and make or cause to be made all necessary repairs and renewals to said cars, at the cost of the party in default. (10) If either party failed, at any time, to keep and perform its covenants, as set forth in the agreement, the one not in default, after the expiration of a reasonable time from the service of written notice of such default, was at liberty to declare the contract at an end. (11) The defendant was given the option to terminate the contract at the end of five, eight, or eleven years, upon written notice to the plaintiff, served six months before the day fixed for such termination; and, if the contract was so terminated, without default upon the part of the plaintiff, the defendant was required to purchase the cars and equipments of the Pullman Company 'then in use, or assigned and accepted for use,' under the contract, or such interest therein as the defendant may not have previously acquired under the provisions of this contract, 'at the actual cash value of the same,' with the right to use them without charge for patent-righs f or their interior arrangements. For the purposes of the option given to terminate the contract, it was agreed 'that the cars now [then] running on said railroad, and which should form part of the cars and equipments to be furnished under this contract, together with such additional cars and equipments as may hereafter be assigned to the railway company, shall be appraised,' etc. (12) The taxes upon all cars furnished to the defendant by the plaintiff were to be paid equally by the parties.

It was in proof that at the time of the fire the cars Great Northern and Louisiana were insured for the plaintiff; that before the commencement of this action the insurance companies paid to it, in full settlement of the loss and damage, the sum of $19,000; and that this action is prosecuted under a written agreement, between the plaintiff and the insurance companies, that it should be conducted jointly by their counsel, and the amount recovered by suit, settlement, or compromise, equally divided between them.

The 10 cars mentioned in the agreement of April 5, 1879, were furnished to the defendant, and were used on its road. Subsequently to that date, the plaintiff having complained of the manner in which its cars were repaired at the defendant's shops in McComb City, on its road about 105 miles above New Orleans, the latter, by its president, suggested that the plaintiff repair its own cars. Thereupon, in order to facilitate such repairing, a part of the passenger-car depot shed of the defendant in New Orleans was set apart to the exclusive use and control of the plaintiff, which, at its own expense, fitted up the portion so assigned to it,—one part as a linen room, one as a carpenter shop, one as an upholstery room, and one as a paint ship,—inclosing the same with partitions, and keeping it locked with the keys in possession of its own employes. The place so fitted up was known as the 'Pullman Repair Shop.' The employes of the defendant had no right of access to it. Although the tracks of the defendant extended into this repair shop, there were folding-doors across them that were closed by an iron bar on the inside. The plaintiff paid nothing for the use of this shop. The watchman over the whole premises was maintained by the defendant. With the permission and consent of the defendant, the plaintiff, on one or two occasions, repaired and varnished in that shop cars assigned by it to other railroads, and not covered by the agreement in question.

The fire in question ...