Ft. Worth & D. C. Ry. Co. v. State.

• Court: Texas Supreme Court
• Writing for the Court: Brown
• Citation: Ft. Worth & D. C. Ry. Co. v. State., 87 S.W. 336, 99 Tex. 34, 12 Tex. Ct. Rep. 1002 (Tex. 1905)
• Decision Date: 18 May 1905
• Parties: FT. WORTH & D. C. RY. CO. et al. v. STATE.

87 S.W. 336

FT. WORTH & D. C. RY. CO. et al. v. STATE.

Supreme Court of Texas.

May 18, 1905.

Certified Questions from Court of Civil Appeals of Third Supreme Judicial District.

Action by the state of Texas against the Ft. Worth & Denver City Railway Company and another. Certified questions from the Court of Civil Appeals of the Third Supreme Judicial District.

Stanley, Spoonts & Thompson, Andrews, Ball & Streetman, and J. D. Guinn, for appellants. C. K. Bell, Jno. W. Brady, Allen & Hart, and D. A. McFall, for appellee.

BROWN, J.

This is a certified question from the Court of Civil Appeals of the Third Supreme Judicial District. The statement and questions are as follows:

"The Court of Civil Appeals of the Third Supreme Judicial District certifies that the above styled and numbered cause is now pending and undecided in this court, wherein the state of Texas was plaintiff in the court below in a suit against the defendants, the Ft. Worth & Denver City Railway Company and the Pullman Palace Car Company, to recover penalties for a violation of the antitrust laws of 1899 (Laws 1899, p. 246, c. 146) and the anti-trust statute of 1903 (Laws 1903, p. 119, c. 94). The case was tried before the court without a jury, and the trial court concluded that there had been no violation of the anti-trust law of 1899, but that there was a violation of the anti-trust statute of 1903, and assessed a penalty against each of the defendant corporations in the sum of $18,550.

"The findings of fact of the trial court, which we adopt and approve, are as follows:

"First. The Ft. Worth & Denver City Railway Company is a railway corporation chartered by a special act of the Legislature approved May 26, 1873 (Laws 1873, p. 585, c. 208), which said act is hereby made a part of this statement of facts, and acting under said charter the said company's railway line was constructed, and since its construction has been in operation, and during said time it has operated a line of railway, and still operates a line of railway, from Ft. Worth, in Tarrant county, Texas, to Texline, in Dallam county, Texas. The Pullman Company is a corporation organized, chartered, and doing business under and by authority of the laws of the state of Illinois.

"Second. That on the 1st day of February, 1899, or the 13th day of March, 1899, the Ft. Worth & Denver City Railway Company and the Pullman Palace Car Company made and entered into a contract, such contract being signed in the city of Chicago, Ill., by the vice president and secretary of said Pullman's Palace Car Company, and signed in the city of Denver, Colorado, by the president of the Ft. Worth & Denver City Railway Company, and was attested and the seal of the Ft. Worth & Denver City Railway Company affixed thereto by the secretary of said last-named company at Fort Worth, Texas, and such contract is as follows:

"`This agreement, made the 1st day of February, A. D. 1899, between Pullman's Palace Car Company, hereinafter called Pullman Company, party of the one part, and the Fort Worth & Denver City Railway Company, hereinafter called the Railway Company, party of the other part, witnesseth:

"`Whereas, on the 1st day of March, A. D. 1888, a contract was made between the Pullman Company, and the Railway Company, in pursuance of which the sleeping cars of the Pullman Company were to be operated over the lines of the railway company for a period of fifteen years from the 1st day of March, A. D. 1888; and

"`Whereas, the railway company desires to terminate said contract for the purpose of entering into a new contract, and the Pullman Company is willing to enter into such new contract:

"`Now, therefore, in consideration of the premises and of the agreements hereinafter contained, the said contract is terminated between the parties hereto, and they agree as follows:

"`Article 1.

"`Section 1. The Pullman Company shall furnish sleeping cars, properly equipped and acceptable to the Railway Company, sufficient in the judgment of the general manager or superintendent of the Railway Company, to meet the requirements of travel over the lines of railroads now owned or controlled by the railway company, and over all additional railroads which it shall hereafter own or control.

"`Section 2. The Pullman Company remaining the owner of all the sleeping cars furnished hereunder, and maintaining the same except as herein provided, shall have the right to collect such fares from railroad passengers occupying such cars for the use of seats and berths therein, as are customary on competing lines of railroads where equal sleeping car accommodations are furnished; no more room in said sleeping cars shall be furnished to any person or persons than is usually furnished to passengers by railroad companies which use their own sleeping cars, unless by the assent of the proper officer of the Railway Company.

"`Section 3. The Pullman Company shall furnish with each of such sleeping cars one or more employés, as may be necessary, whose duties shall be to collect fares from railroad passengers, occupying said cars, for the use of seats or berths therein, and generally to wait upon and provide for the comfort of passengers therein; such employés at all times shall be subject to the rules of the railway company governing its own employés.

"`Section 4. The Pullman Company, except as hereinafter provided, shall keep all of such sleeping cars in good order and repair and shall renew and improve the same so far as may be necessary to keep them up to the average standard of approved sleeping cars furnished by the Pullman Company for general use on competing lines.

"`Section 5. The Pullman Company shall save harmless the Railway Company from damages, costs and expenses, growing out of, or incident to, any claim that may be made to the effect that any of such sleeping cars or any part thereof, or any improvements therein or thereon, is an infringement upon Letters Patent of the United States covering like cars, or like parts thereof, or like improvements thereon or therein; provided the Railway Company shall first give the Pullman Company written notice of any such claim, when made, in order that it may resist the same should it desire to do so.

"`Section 6. The Pullman Company will place its tickets for seats and berths on sale in such of the railroad ticket offices as either party may consider necessary for the convenience and accommodation of passengers.

"`Section 7. The Pullman Company shall furnish free passes to the general and division officers of the railway company, for use in said sleeping cars, over the lines of railroad now owned or controlled by the railway company, and over any additional railroads which it may hereafter own or control..

"`Article 2.

"`Section 1. The Railway Company shall haul all said sleeping cars furnished by the Pullman Company hereunder that may at any time be necessary in operating the lines of railroad now owned or controlled by the Railway Company, and any additional railroads which it shall hereafter own or control; and shall use such cars as a part of all passenger trains controlled, in whole or in part by it, where sleeping cars are required, in such manner as shall best accommodate passenger travel.

"`The Railway Company shall also, in consideration of the use of said sleeping cars for the transportation of its passengers, bear the costs of maintaining the running gear and bodies of such cars, and other parts thereof as are essential to ordinary first class passenger cars, and are not incidental to a sleeping car, which cost is understood and agreed to amount to an average of two cents per mile run, and shall, except as hereinafter provided, pay to the Pullman Company, in satisfaction of such obligation, two cents per car per mile for every mile run by said sleeping cars upon the roads of the railway company, or upon the roads of other railroad companies by direction of the officers of the Railway Company.

"`The Railway Company shall pay one cent per car per mile for every mile run by tourist or second class sleeping cars furnished under this contract.

"`Section 2. The Railway Company shall haul, without charge to the Pullman Company said sleeping cars to and from repair shops, and to and from other points on the lines of railroads at any time owned or controlled by it, as may be necessary in order that such sleeping cars may be put in good order and repair or be renewed or improved as required hereunder. No mileage shall be paid on the cars so hauled.

"`Section 3. The Railway Company shall furnish and apply to said sleeping cars all necessary lubricating material, ice and water, fuel for heating, and oil, fluids or other proper material for lighting; and shall wash and clean said cars; and shall replace bell cords and couplings and air-brake hose and couplings, as often as necessary.

"`Section 4. The Railway Company shall pay to the Pullman Company the cost of repairing and making good all damages to any of its sleeping cars resulting from accident or casualty on the lines of its roads, or on any other roads upon which any of said cars may be run by direction of the Railway Company, except damages resulting from accident or casualty arising from defective heating or lighting apparatus, or from the actual negligence of the employés of the Pullman Company in the line of their employment.

"`Section 5. The Railway Company shall promptly make all such repairs as may be necessary to put any of said sleeping cars in good order, whenever requested by the Pullman Company so to do; and shall, without request, make such repairs as may be required at any time to insure the safety of said cars, and when the Pullman Company is, by the terms hereof, under obligation to make such repairs, shall, at the end of each month, render to the Pullman Company bills therefor, charging the actual cost of material and labor expended on such repairs, with an addition of ten per cent. to cover general...