The Pullman Southern Car Company, operating drawing room and
sleeping cars, hired ten of such cars to a railroad company at the
compensation of three cents per mile per car for every mile run by
its cars upon the lines of the railroad company. The railroad
company agreed, when requested, to repair the cars furnished under
the contract as it might become necessary, and, without request, to
make such repairs as were required to insure their safety,
rendering bills monthly to the Pullman Company and charging for
such repairs only the actual cost of the material and labor
expended. The railroad company assumed responsibility for damages
to the cars occasioned by "accident or casualty," while the
sleeping car company assumed responsibility for loss or damage
arising from defective heating apparatus or lights furnished by it.
The latter company was to have the exclusive right for fifteen
years to furnish drawing room and sleeping cars on all passenger
trains of the railroad company, the latter binding itself not to
contract with any other party to run said class of cars on and over
its lines during that period. If either party failed to keep and
perform its covenants, the one not in default could, upon written
notice, declare the contract at an end. The railroad company had
the option to terminate the contract at the end of five, eight or
eleven years, upon written notice served six months before the date
fixed for such termination. Two of the sleeping cars, the
Louisiana and
Great Northern, were entirely
destroyed by fire originating "from a cause unknown," the former at
the time of the fire being on the railroad track under a depot shed
used by the railroad company to store cars when not in actual
transit, and the latter being in a shop belonging to the railroad
company, known as the Pullman repair shop, which had been assigned
to the exclusive use of the sleeping car company as a place where
it could repair its own cars. This shop at the time of the fire was
in the possession of the Pullman Company, the railroad employer
having no access thereto. The
Great Northern had been in
that shop for repairs by its owner for six months before the fire,
and but for the fire would have been in condition to have been
again put in actual use by the railroad company on the day
succeeding the fire. Both the
Louisiana and the
Great
Northern were insured by the Pullman Company.
Page 139 U. S. 80
After the fire, the insurance companies paid $19,000 in full
settlement of the loss and damage, and this action was brought by
the Pullman Company against the railroad company to recover the
value of the burned cars under an agreement between it and the
insurance companies that the recovery should be equally divided by
them. There was a verdict and judgment for the plaintiff.
Held:
(1) The fire having "originated from a cause unknown," the
losses were, within the meaning of the contract, "occasioned by
accident or casualty."
(2) The collection of the insurance money did not affect or
impair the right of the sleeping car company to recover the amount
of the loss according to the contract with the railroad company.
Upon payment of the loss, or to the extent of any payment by them
on account of the loss, the insurance companies were subrogated to
the rights of the insured, and could in its name or in their joint
names, maintain an action against the railroad company for
indemnity, if the latter was liable to the insured for the loss of
the cars -- this because the liability of the railroad company was,
in legal effect, first and principal, and that of the insurer
secondary, not in order of time but in order of ultimate
liability.
(3) The contract was not void as being in general restraint of
trade or against public policy. The contract is to be interpreted
in view of the condition implied by law that the sleeping car
company should furnish cars not only adequate and safe but
sufficient in number for the use of the public traveling over the
lines of the railroad company. Such condition was not and could not
have been dispensed with. Whether the agreement is so far divisible
that the stipulation giving the sleeping car company exclusive
rights and binding the railroad company not to make similar
contracts with other parties during the stipulated term could be
separated from the other provisions,
quaere.
(4) The railroad company was responsible for the loss of the
Louisiana because it was in active service under the
contract, and was in the possession and under the exclusive control
of the railroad company for the purpose simply of being cleansed
and resupplied for another trip whenever the railroad company chose
to put it into service.
(5) The railroad company was not liable for the loss of the
Great Northern, because that car at the time of the fire
was in the exclusive possession of the sleeping car company and,
when burned, was not subject to be used by, nor under the
supervision of, the railroad company.
The case is stated in the opinion.
Page 139 U. S. 81
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 percent 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, ten in
number, among which were the
Louisiana and the
Great
Northern, then operated on the defendant's
Page 139 U. S. 82
lines. 2. Each of the plaintiff's cars was to be manned at its
own cost, by one or more of its employees, as might be needful for
the collection of fares and the comfort of passengers, such
employees to be subject to the rules and regulations established by
the defendant for its own employees. 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 become
Page 139 U. S. 83
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 percent 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 equaled
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
Page 139 U. S. 84
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 rights for 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 ten 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
Page 139 U. S. 85
as a paint ship, enclosing the same with partitions and keeping
it locked with the keys in possession of its own employees. The
place so fitted up was known as the "Pullman Repair Shop." The
employees 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 "originated, from a cause unknown," in the
"Pullman repair shop." It occurred about 3 o'clock on the morning
of the 27th of May, 1882, and resulted in the total destruction of
both the
Great Northern and the
Louisiana. The
Great Northern was at the time standing on the defendant's
track in the paint room of that shop, behind the barred folding
doors across the railroad tracks. It had been there since the
previous October undergoing repairs, refitting, and revarnishing,
and its name changed to that of
Chatawa. But for its
destruction, it would have been in condition on the day succeeding
the fire to be again put into service under the contract of 1879.
There was no evidence that any other car was furnished to take its
place on the defendant's road while it was in the shop undergoing
repairs. When the fire occurred, the
Louisiana was
standing on the defendant's track in New Orleans under a depot shed
belonging to it, and used to store cars when not in actual transit
-- those belonging to it as well as those belonging to the
plaintiff. That shed was called by the defendant's employees the
"Pullman Shed." The
Louisiana reached New Orleans about 3
o'clock in the afternoon of May 26, 1882, from a trip over
defendant's road, was placed in the above depot shed, and was to
have been sent out on another trip at 6 o'clock on the afternoon of
May 27, 1882. The
Great Northern, when burned, was under
the same depot shed, but, as already stated, in that part known as
the Pullman
Page 139 U. S. 86
repair shop. It is in evidence that at various times during the
existence of the contract sued on, the plaintiff took some of the
ten cars furnished under it to shops in St. Louis, Missouri, and
Pullman, Illinois, entirely off the line of the defendant's road,
in order to be repaired so as to bring them up to the designated
standard.
The question of negligence was left to the jury, which was
instructed that the plaintiff could not recover if the fire was
caused by its negligence.
1. The jury were instructed at the request of the plaintiff,
that a damage or destruction by fire is a casualty or accident,
within the meaning of the contract. This the defendant contends was
error. We do not think so. The fire that destroyed the
Great
Northern and the
Louisiana originated, as we have
seen, from a cause unknown. An accident or casualty, according to
common understanding, proceeds from an unknown cause or is an
unusual effect of a known cause. Either may be properly said to
occur by chance and unexpectedly. Webster's Dict.; Imperial Dict.
It was no doubt used in that sense by the parties to the contract
in question. They manifestly contemplated that the railroad company
should assume all responsibility for the loss of drawing room or
sleeping cars while in use or subject to be used by it, with the
single exception, distinctly made, of loss or damage occurring
"from defective heating apparatus or lights furnished" by the
Pullman Company, which assumed all responsibility for loss or
damage to its cars resulting from either of the latter causes. This
exception in respect to defective heating apparatus and lights
furnished by the plaintiff -- necessarily referring to loss or
damage by fire caused in either of those modes -- renders it clear
that the railroad company assumed responsibility for the loss of
cars used or subject to be used by it under the contract whenever
such loss was by fire occurring from a cause unknown -- that is,
accidentally or from casualty.
2. The jury were instructed that the insurance of the cars by
the plaintiff was
res inter alios acta, and had no
determining effect upon the right of the plaintiff to recover in
this action. The giving of this instruction has been assigned
for
Page 139 U. S. 87
error. We are of opinion that the obtaining of insurance by the
plaintiff, the collection of $19,000 in full settlement of its
claim against the insurance companies, and the agreement between it
and them for the bringing of this action for their joint benefit
were matters with which the railroad company had no concern, and
cannot affect the determination of this case. By the provisions of
the policies, the insurance companies were entitled, in case of
loss, to an assignment of the plaintiff's right to receive
satisfaction therefor from any other person or persons, town or
corporation, with a power of attorney to sue for and recover the
same at the expense of the insurer. Upon payment of the loss or to
the extent of any payment by them on account of such loss, the
insurance companies were subrogated to the rights of the insured,
and could, in the name of the insured or in their joint names,
maintain an action against the railroad company for indemnity if
that company was liable to the insured for the loss of the cars.
The acceptance of a given amount from the insurance companies in
full discharge of their liability did not affect the right of the
plaintiff to recover from the railroad company the whole amount of
the loss for which the latter was responsible under its contract.
The plaintiff could recover only one satisfaction for the loss, and
if the amount recovered from the railroad company, increased by the
sum collected from the insurance companies, was more than
sufficient for its just indemnity, the excess would be held by it
in trust for the insurance companies. The inquiry in this action is
as to the amount for which the railroad company is bound on its
contract with the plaintiff, and the recovery is not affected or
limited by the amount collected from the insurance companies. As
said in
Mobile & Montgomery Railway v. Jurey,
111 U. S. 584,
111 U. S. 593,
which was a suit against a carrier:
"Although the suit is brought for the use of the insurer, and it
is the sole party beneficially interested, yet its rights are to be
worked out through the cause of action which the insured has
against the common carrier. The legal title is in the insured, and
the carrier is bound to respond for all the damages sustained by
the breach of his contract. If only part of the loss has been
Page 139 U. S. 88
paid by the insurer, the insured is entitled to the
residue."
See also Phoenix Insurance Company v. Erie Transportation
Company, 117 U. S. 312,
117 U. S.
320-321. This is because, as said by Chief Justice Shaw
in
Hart v. Western Railroad Corporation, 13 Met. 99, the
liability of the railroad company is, in legal effect, first and
principal, and that of the insurer secondary, not in order of time,
but in order of ultimate liability. So in
Weber v. Morris &
Essex Railroad, 35 N.J.Law 409:
"Notwithstanding such payment, an action will lie by the insured
against the railroad company. The insurance is to be treated as a
mere indemnity, and the insured and insurer regarded as one person;
therefore payment by the insurer before suit brought cannot affect
the right of action."
To the same effect are numerous other cases.
Fretz v.
Bull, 12 How. 466,
53 U. S. 469;
Hall v. Railroad
Companies, 13 Wall. 367,
80 U. S. 370;
Merrick v. Van Santvoord, 34 N.Y. 208;
Conn. Fire Ins.
Co. v. Erie Railway, 73 N.Y. 399;
Clark v. Wilson,
103 Mass. 219;
Hayward v. Cain, 105 Mass. 213;
Gales
v. Hailman, 11 Penn.St. 515;
Perrott v. Shearer, 17
Mich. 48;
Peoria Ins. Co. v. Frost, 37 Ill. 333;
Conn.
Mut. Life Ins. Co. v. New York & New Haven Railroad, 25
Conn. 265;
Swarthout v. Chicago & Northwestern
Railway, 49 Wis. 625. The principle is thus stated by Lord
Blackburn in
Burnand v. Rodocanachi, 7 App.Cas. 333,
339:
"The general rule of law (and it is obvious justice) is that
where there is a contract of indemnity -- it matters not whether it
is a marine policy, or a policy against fire on land, or any other
contract of indemnity -- and a loss happens, anything which reduces
or diminishes that loss reduces or diminishes the amount which the
indemnifier is bound to pay, and if the indemnifier has already
paid it, then, if anything which diminishes the loss comes into the
hands of the person to whom he has paid it, it becomes an equity
that the person who has already paid the full indemnity is entitled
to be recouped, by having that amount back."
Castellain v. Preston, 11 Q.B.D. 380. It results that
the court was right in holding that the insurance upon the cars and
the collection by plaintiff of the insurance money were immaterial
matters in
Page 139 U. S. 89
this litigation. The action was well brought in the name of the
plaintiff, pursuant to its agreement with the insurance
companies.
3. It is assigned for error that the court refused to instruct
the jury that the agreement sued on was void as against public
policy because of the exclusive rights given to the plaintiff for
the term of fifteen years in respect to drawing room and sleeping
cars furnished by it to the defendant, supplemented by the
stipulation that the defendant would not "contract with any other
party to run the said class of cars on and over said lines of road
during said period of fifteen years," and because the law will not
permit individuals to oblige themselves by a contract when the
thing to be done or omitted is injurious to the public.
Oregon Steam Nav. Co. v.
Winsor, 20 Wall. 64,
87 U. S. 66;
Chappel v. Brockway, 21 Wend. 157, 159. Such a contract,
it is argued, is in general restraint of trade. The authorities
cited in support of this contention have no application to such a
contract as the one before us. The defendant was under a duty,
arising from the public nature of its employment, to furnish for
the use of passengers on its lines such accommodations as were
reasonably required by the existing conditions of passenger
traffic. Its duty as a carrier of passengers was to make suitable
provisions for their comfort and safety. Instead of furnishing its
own drawing room and sleeping cars, as it might have done, it
employed the plaintiff, whose special business was to provide cars
of that character, to supply as many as were necessary to meet the
requirements of travel. It thus used the instrumentality of another
corporation in order that it might properly discharge its duty to
the public. So long as the defendant's lines were supplied with the
requisite number of drawing room and sleeping cars, it was a matter
of indifference to the public who owned them.
Express
Cases, 117 U. S. 1,
117 U. S. 24-25.
We cannot perceive that such a contract is at all in restraint of
trade. The plaintiff was at liberty, so far as that contract was
concerned, to make similar arrangements for the accommodation of
passengers on all other railroads in the country, even those that
are rivals or competitors in business with the defendant.
Page 139 U. S. 90
It is, however, a fundamental condition in all such contracts
that their provisions must not be injurious to the public. As said
by this Court in
Cherokee Nation v. Kansas Railway Co.,
135 U. S. 641, a
railroad is a public highway, established primarily for the
convenience of the people and to subserve public ends. A railroad
corporation cannot, therefore, without the sanction of the
government creating it, make any agreement that militates against
the public convenience or that will defeat the public objects for
which it was established. If the contract in suit was liable to
objection upon these grounds, a different question would be
presented for our determination. But we are of opinion that public
policy did not forbid the railroad company from employing the
Pullman Southern Car Company to supply drawing room and sleeping
cars to be used by its passengers, and, as a means of inducing the
plaintiff to perform this public service and to incur the expense
and hazard incident thereto, from giving it an exclusive right to
furnish cars for that purpose. The defendant did not by such an
agreement abandon the duty it owed to the public, for the cars so
furnished, while in its possession and use, became, as between it
and its passengers, its own cars, subject to such regulations as it
might properly establish for the comfort and safety of passengers
on its trains.
Pennsylvania Company v. Roy, 102 U.
S. 451,
102 U. S. 457.
And the contract is to be interpreted in view of the condition,
implied by law, that the plaintiff should furnish cars not only
adequate and safe but sufficient in number for the use of the
public desiring to travel over the defendant's roads. These
conditions exist independently of the particular clause giving the
railroad company the option to terminate the agreement at the end
of five or eight or eleven years. Being imposed by law as necessary
to the public interests, they could not be dispensed with by
agreement of the parties. The designation of particular periods of
time at the end of either of which the defendant might, of right
and upon notice, terminate the agreement, did not tie its hands so
that it could not continuously discharge its duty to the public in
respect to the adequacy or safety of cars in which it conveyed
passengers.
Page 139 U. S. 91
The stipulation, therefore, that the plaintiff, not being in
default, should have the exclusive right for fifteen years to
furnish drawing room and sleeping cars for the defendant's use, and
that the defendant should not during that period contract for cars
of that kind with any other party, rightly construed, is not
unreasonable, and, properly performed, will promote the convenience
of the public in that it enables the defendant to have on its lines
at all times, and as the requirements of travel demand, drawing
room and sleeping cars for use by passengers. It is a stipulation
that does not interfere in any degree with its right and duty to
disregard the contract whenever the plaintiff fails in furnishing
cars that are adequately safe and sufficient in number for the
travel on defendant's lines. The suggestion that the agreement is
void upon grounds of public policy or because it is in general
restraint of trade cannot, for the reasons stated, be
sustained.
Besides, it is not clear that the agreement is so far
indivisible that the stipulation giving the plaintiff the exclusive
rights in question, and binding the defendant not to make similar
contracts with other parties for drawing room and sleeping cars to
be used on its lines, cannot be separated from the other
provisions. If that stipulation were held to be void upon the
grounds suggested, we should be inclined to hold that as between
the parties, the provision making the railroad company liable for
loss or damage arising from casualty or accident to the plaintiff's
cars while in the possession of and subject to use by the defendant
remained in force.
Erie Railway Co. v. Union Locomotive &
Express Co., 35 N.J.Law 246.
4. There can be no doubt that the railroad company was, under
the evidence, liable to the plaintiff on account of the loss by
fire of the
Louisiana. The contract covered cars that were
assigned by the plaintiff to the defendant's use while they were in
actual transit over its lines or over the lines of other companies
on whose roads they were sent by the defendant. It equally covered
such as were under the defendant's immediate control while in its
own yards or sheds for the purpose simply of being cleansed and
resupplied for
Page 139 U. S. 92
another trip when the defendant chose to put them into actual
service. That was the situation at the time of the loss by fire of
the
Louisiana. It had a few hours before come from active
service on the defendant's road, and but for its destruction would
have been put upon the road for another trip in the afternoon of
the very day of the fire. Such a case is plainly embraced by both
the letter and spirit of the contract. A peremptory instruction to
find for the plaintiff in respect to the
Louisiana would
not have been erroneous.
5. The remaining instructions involved the liability of the
defendant on account of the destruction by fire of the car
Great Northern. The defendant asked the court to instruct
the jury as follows:
"That if the jury believe from the evidence that the defendant
company, by arrangement with the plaintiff company, in the year
1879, set apart at their depot in the City of New Orleans a certain
portion of said depot for the exclusive use and benefit of
plaintiff as a repair shop, wherein the cars of the plaintiff
mentioned in the contract sued on were to be repaired by the
plaintiff at its own expense, and the said space was enclosed,
fastened, and locked, and the keys thereof were kept by the
plaintiff or its agents so that access thereto by the defendant or
its agents was only such access as was necessary to enable the
defendant company to take possession of repaired cars when tendered
for service by the plaintiff, and that at the time of the fire, on
the 27th of May, 1882, the car
Great Northern was in the
said repair shop, and had been there for a period exceeding six
months for the purpose of being repaired, and that at the time of
the fire, said car had not been tendered for service as a car
completely repaired and equipped for service to the defendant,
although ready to be tendered, then the jury must find that the
defendant is not liable for the loss of the said car
Great
Northern or for any damage thereto by fire aforesaid."
This instruction was refused, except with this modification:
"Unless the jury further find that the said car had been
withdrawn from the dominion of the contract, and it was held,
according to the understanding of both parties, for some other
purpose -- that is, for some other purpose that those of the
contract. "
Page 139 U. S. 93
The court, in its general instructions to the jury, said:
"It was undoubtedly competent for the parties to this action to
have withdrawn their cars from the dominion of the contract, but to
constitute such a withdrawal, there must be the intent of the
plaintiff to retain them for some purpose other than to continue
their use under the contract, and if the jury find that there was a
placing of the cars in the separate room or apartment with the
intent on the part of the plaintiff to use them independently of
the contract, and not under it, then the defendant would not be
liable for their destruction. If, on the other hand, the jury find
that though there was a placing of the cars in the separate room or
apartment, but with the intent to continue to use them under the
contract, and to hold them so placed merely for the purpose of
repair under the contract, and the defendant shared this intent,
then the defendant would be responsible for their destruction by
fire. In determining this question, the jury will consider all the
facts and circumstances established, including the fact that the
cars remained on the tracks of the defendant, and will further
consider whether the defendant is shown to have any relations to
these cars except under the contract."
The defendant also asked this instruction:
"That if the jury believe that the two cars,
Louisiana
and
Great Northern, were destroyed by fire at the depot of
the defendant company while the said cars were not in actual use
and service by the defendant company, then they must find a verdict
for the defendant."
The court refused to give this instruction, saying:
"I refuse that instruction, provided you find that they were
being repaired under the contract. That's the test which the court
gives you all the way through -- whether these cars, according to
the meaning of the parties, were or were not under the contract,
the contract providing for repairing as well as running."
The court having, in this connection, instructed the jury at
plaintiff's request, that
"the said contract covers the said cars while standing on the
tracks of the defendant in the yards, and under the sheds used for
storing cars while not in transit,"
said that the contract covered the cars
"while standing on the tracks of the defendant in its
Page 139 U. S. 94
yards and under the sheds use for storing cars while not in
transit, but while held for transit or repair on defendant's tracks
under the contract."
It was not error to refuse that one of defendant's requests for
instructions predicated upon the theory that its liability for the
loss of a car from accident or casualty depended upon such car
being at the time, in its "actual use and service." Of course, the
defendant meant by this instruction, and the jury would have
understood, that a car was not in actual service while it was
standing on the defendant's tracks, "between trips." That theory
would have relieved it from responsibility for the loss of the
Louisiana, although that car had come from the road only a
few hours previous to the fire and was, when destroyed, in the
immediate possession and control of the railroad company, being
cleansed and prepared for the use of passengers on another trip to
be entered upon in the afternoon of the day of the fire. We have
already said that this interpretation of the contract was unsound
But we are of opinion that the court below erred in not giving,
without modification, the first of the above instructions asked by
the defendant. By the terms of the agreement, the railroad company
was bound, upon request, to make promptly such repairs of the cars
furnished to it as might from time to time become necessary, and,
without request, to make such as their safety demanded. The length
of time the
Great Northern was in the repair shops
indicated either that repairs were necessary to its safety or that
"the requirements of travel" did not make it necessary to assign
another sleeping car in its place. But whatever may have been the
fact on that regard, the
Great Northern was not, within
any fair interpretation of the contract, in the possession or under
the control or supervision of the defendant or subject to be used
under and for the purposes of the contract while it was in a repair
shop of which the plaintiff had the keys, and to which the
defendant's employees had no access. We do not mean to say that a
car, furnished by the plaintiff, ceased to be under "the dominion
of the contract" while it was being repaired as provided for in the
contract. On the contrary, if the
Great Northern had
Page 139 U. S. 95
been destroyed by fire, the result of accident or casualty,
while in the possession of the defendant undergoing ordinary
repairs, it would have been liable for the loss. No doubt the
defendant's assent to liability for losses or damages resulting
from accident or casualty was because the agreement contemplated
that the cars furnished to and held by it under the contract would
be, all the time -- whether they were on its road in actual
service, or in its shops undergoing repairs -- in its immediate
possession and control, thereby insuring the safety of the cars, so
far as the vigilance of its own employees was concerned, from loss
or damage from the causes named. But the Pullman Company became
dissatisfied with the manner in which the repairs were made by the
defendant, and undertook itself to make such repairs in a shop set
apart to it for that specific purpose and placed under its
exclusive control, and to which the defendant's agents had no
access. The defendant agreed to be liable for loss or damage from
accident or casualty if the loss occurred while the cars were in
its possession, subject to be used by it or subject to its control,
care, and supervision, but not otherwise. That is the meaning of
the contract. Looking at the whole agreement and giving full force
to all its provisions, the defendant cannot be held to have agreed
to be liable for loss or damage accruing from accident or casualty
while the cars were in the exclusive possession and subject to the
entire control of the plaintiff, and not subject to be used,
controlled, or cared for by the defendant, until the plaintiff
chose to surrender its exclusive possession and return the cars to
the possession and control of the railroad company. Upon the theory
sanctioned by the court below, we do not perceive but that the
defendant would have been liable for the loss of the
Great
Northern if it had been removed to the shops of the Pullman
Palace Car Company at Pullman, Illinois, to be repaired, and, after
being there from October, 1881, until May, 1882, had been burned up
while in those shops -- a result that surely could not have been
contemplated by the parties. In our opinion, the evidence did not
disclose a case of liability under the contract, upon the part of
the defendant, for the destruction by fire of the
Great
Page 139 U. S. 96
Northern, and an instruction to the jury to that effect
would not have been improper.
The judgment is reversed, and the cause remanded for a new
trial in conformity with this opinion.
MR. JUSTICE BLATCHFORD, did not sit in this case or take any
part in its decision.