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A treatise on the law of carriers (Volume 4) online

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keeper has a lien upon the goods of his
guests for the price of their entertain-
ment. I know of no instance where the
proprietor of a sleeping car has ever as-
serted such lien, and it is presumed that
none such exists. The fact that he is paid
in advance does not weaken the argument,
as innkeepers are also entitled to pre-
payment. Third, the innkeeper is obliged
to receive every guest who applies for
entertainment. The sleeping car receives
only first-class passengers traveling upon
that particular road, and it has not yet
been decided that it is bound to receive
those. Fourth, the innkeeper is bound
to furnish food as well as lodging and to
receive and care for the goods of his
guests, and, unless otherwise provided
bj statute, his liability is unrestricted in
amount. The sleeping car furnishes p.'
bed only, and that, too, usually for a sin-
gle night. It furnishes no food, and re-
ceives no luggage, in the ordinary sense
of the term. The conveniences of the
toilet are simply an incident to the lodg-
ing. Fifth, the conveniences of a public
inn are an imperative necessity to the
traveler, who must otherwise depend on
private hospitality for his accommoda-
tion, notoriously an uncertain reliance.
The traveler by rail, however, is under
no obligation to take a sleeping car. I'he
railway offers him an ordinary cnach,
and cares for his goods and effects in a
van especially provided for that purpose.
Sixth, the innkeeper may exclude from
his house every one but his own servants
and guests. The sleeping car is obliged
to admit the employees of the train to
collect fares and control its movements.
Seventh, the sleeping car can not even
protect its guests, for the conductor of
the train has a right to put them off for
nonpayment of fare, or violation of its
rules and regulations."

5. Pullman Palace Car Co. z'. Lowe, 28
Neb. 239, 44 N. W. 226, 40 Am. & Eng. R.
Cas. 637, 6 L. R. A. 809, 26 Am. St. Rep.

6. I\leyer v. St. Louis, etc., R. Co., 54
Fed. 116, 4 C. C. A. 221, 58 Am. & Eng.
R. Cas. 111.

3203 palace; cars and sleepinx car companies. §§ 3531-3533

corporations," and owe, by force of law, independently of contract, certain duties
to the public as common carriers.*

§ 3532. Statutory Regulations as to Empty Berths. — It has been held
that a statute providing that the upper berths in sleeping cars shall be closed when
unoccupied, at the option of the occupant of the low^er berth, is not sustainable as
a regulation for the promotion of public health, as the option given to the occu-
pant of the lower berth indicates that it was to promote private rather than public

§§ 3533-3535. Duty to Receive Passengers— § 3533. In General.—

The duty of palace and sleeping car companies to receive all proper persons as
passengers is based on reasons very similar to those for which carriers in general
are required to accommodate all proper persons. ^'^ The liability of such companies
to persons seeking their accommodations rests solely on the breach of their im-
plied obligation to furnish such accommodations as they hold themselves out as
offering to the public. ^^ So, where a passenger, who, under the rules of a sleep-
ing car company, is entitled to a berth upon payment or tender of the usual fare,
and to whom no personal objection attaches, enters the company's car at a proper
time for the purpose of procuring accommodation, and in an orderly and respect-
ful manner applies for a berth, offering to pay or tendering the customary price
therefor, the company is bound by law to furnish it, provided it has a vacant one
at its disposal. 1- But a sleeping-car company has the right to sell a whole section
to one person, and no cause of action arises from the refusal of its conductor to
sell the upper berth in such section to another passenger, though that berth was
in fact unoccupied. ^^ And where a berth has been sold for occupancy to a cer-
tain point, no cause of action arises for the refusal of the conductor, before that
point is reached, to sell another person a ticket entitling him to such berth from
there to the end of the journey.^**

Discrimination — Reasonable Regulation. — A sleeping-car company is ob-
ligated, in(lej)endent of contract, like a common carrier, to treat all persons with-
out unjust discrimination, and is liable for breach of such duty to the party in-
jured.15 Yet the right of a person to a berth or passage on a sleeping car is not
unlimited, but is subject to reasonable regulations. i" A regulation excluding in-
sane persons is reasonable.^" And a sleeping car company is not bound to admit

7. Are public service corporations. — ■ 10. Duty to receive passengers. — See

Pullman Co. z: Riley, 5 Ala'. App. 501,59 ante, "In General," § 2118.

So. 761; Pullman Co. v. Lutz, 154 Ala. 11. Calhoun ?■. Pullman Palace Car Co.,

517, 45^ So. 675, 14 L. R. A., N. S., 907. 149 Fed. 54G; Pullman's Palace Car Co.

8. Kevin v. Pullman Palace Car Co., r. Kin^, 99 Fed. 380, ,39 C C A 573

100 111. 222, 4 Ky. L. Rep. 926, 46 Am. 12. Xevin v. Pullman Palace Car Co.,

Rep. 688, cited in Pullman Palace Car 100 111. 222, 4 Ky. L. Rep. 926, 46 Am

Co. V. Lawrence, 74 Miss. 782, 22 So. 53. Rep. 688. See Pullman Palace Car Co.

See post, "Duty to Receive Passengers," 7'. Lawrence, 74 Miss. 782, 22 So. 53.

§§ 3533-3535. 13. Refusal to sell engaged but unoccu-

9. Statutory regulations as to empty pied berth.— Searles z: Mann lioudoir
berths.— State 7'. Kednion, 134 Wis. 89, Car Co., 45 Fed. 330.

"•*^ ^.'n^'^u- ^^^'^'■ ^■^•^' ^^''^'^'■^'" ^^^^ '^°V''t 14. Refusal to sell berth before vacated

sa,d: The law is not, in reality, a po ice by occupant.-Scarles v. Mann Boudoir

regulation but an unwarranted interfer- q^^. q„ .,- j.-^.,] ■y^^^

cnre with property ri^^hts; an attempt in ',■. y-.". ■^. '.' ' .r • r, „

the circumstances specified to give to any ,,\^- Discrimination NVv.n r. Pullman

person, at his option, who pays for apart l,^}''^ ^''' SV' ''*'']"• '''■'• ^ ^^■'- '- '^'^''•

of a section in a sleeping car the use, free ""'^' ^^' '^'"- '^^'P" ^"^^•

of charge, of the balance tlicreof. ♦ * * 16. Reasonable regulation binding. —

Ft is not intendc-d to foreclose the ques- Pullman Co. z'. Kraiiss, 115 Ala. 395, 40

tion of whether the scope of jjoiice power ^'^- ■•••^- *. '•• R- A., N. S.. 103.

extends to preventing, as a rule, tlie let- Regulations as to tickets. — See post,

ting down of upper l)erths in sleeping "IvcKulatiniis as to 'i'iokets," § 3535.

cars when not r)ccui)ied or engaged, in 17. Insane persons. — I'uliman Co. z:

cases where the lower ones are occu- Kranss, 115 .Ala. 395, 40 So. 398, 4 L. R.

P'c'l" A.. .\'. S., 103.

4 Car— 7



persons as passengers on its cars who are afflicted with a contagious or infectious
disease, so that there would be a probability of other passengers contracting the

Right of Railway Company to Determine. — A sleeping car company not
being a common carrier, and its cars being under the control of the railroad com-
pany, except as to furnishing lodging to those who may pay for it, the agents of
the railroad company are entitled to determine who shall occupy the sleeping cars,
as part of the train. i''

§ 3534. Right to Demand Compensation. — The payment of iirst-class
fare does not entitle one to demand carriage in a car equipped with adjustable re-
clining chairs and lavatory and served by a special porter. And where a railway
company furnishes sufficient first-class cars with the usual appliances and service,
for the accommodation of those entitled to first-class passage, and upon the same
train carries a chair car which furnishes extra service and accommodations, it
may lawfully demand a reasonable extra compensation of passengers who from
choice take passage in it. and this right is not denied or restricted by a statute
which limits the sum railways may charge for first-class passage.-"' But it is held
that a passenger may take a seat in a drawing room car without the payment of
additional compensation where there are no vacant seats in the ordinary
coaches.-"^ The right of the holder of a first-class ticket who enters a train com-
posed of sleepers only is subject to observance of all reasonable rules adopted by
the carrier, including the requirement of payment of Pullman car fare, though
he have no notice of such rules. -^ And an advertisement by a railway company
in which it was stated generally that free reclining-chair cars would be run upon
its road, and specially that free reclining-chair cars would be run to a certain
point, does not warrant the inference that such cars were free to all passengers
under all circumstances ; but if such inference could be drawn it would not war-
rant a recovery, except upon a showing that the plaintiff had been misled in that
regard, and thereby sustained some loss. 2-

§ 3 53 5. Regulations as to Tickets. — A sleeping car company may law-
fully require those seeking to be carried to purchase tickets when convenient fa-
cilities to that end are afforded, to exhibit them to the person designated by the
company for that purpose, and to surrender them, after securing their seats, when
required by the person in charge. Such requirements are reasonable ones to pro-
tect it against imposition and the fraud of its employees.-^

Requiring First-Class Ticket. — Where a sleeping car company, under. its ar-
rangement with a railroad company, is bound to comply with its reasonable regu-
lation requiring a passenger to have a first-class ticket before he can be assigned
to a berth in a sleeping car, it is not liable for refusing to assign a berth to one
not holding a first-class ticket.-^ It is held that when a passenger agent who was
engaged in selling tickets, both for railroad fare and for sleeping car berths, re-

18. Persons afflicted with contagious R. A., N. S.. 1139, holding that a railway
diseases. — PuUman Co. v. Krauss, 145 rule governing trains composed exclu-
Ala. 395, 40 So. 39S, 4 L,. R. A., N. S., sively of sleepers requiring passengers
103. boarding a train before 7 o'clock a. m.

19. Right of railway company to de- to pay a sleeping berth rate is not unrea-

termine. — Lemon v. Pulhnan Palace Car sonable. _ „ . . , .

Co .")2 Fed '^62 2^- Advertisement offermg free chaxr

o,Jx r,- 1 / I ~' J J ^-^ cars. — St. Louis, etc.. R. Co. v. Hardy, 55

20 Right to demand compensation.- ^^^^_ ^^ g '^^, .^^

?., ^^"q' w'-%i!- ?°- Xai J. -'' r A 23. Regulation as to tickets.-Pullman

l.U, 17 S. W. 711. See Wright ^.Cahfor- pj ^-^ ^^ ^, ^^^^ ,. jH ,^

ma Cent. R. Co., 78 Cal. 360, 20 Pac. 740. ^^^ ^^^ ,32 ^^^ PuUman Palace

20a. Thorpe v. New York, etc., R. Co., Car Co. v. Marsh, 24 Ind. App. 129, 53 X.

76 X. Y. 402, 32 Am. Rep. 325. £ 782.

21. Trains composed exclusively of 24, Requiring first class ticket. — Pull-
sleeping cars.— Dohortv v. Xorthern Pac. man Palace Car Co. v. Lee, 49 111.
R. Co., 43 :Mont. 294, 115 Pac. 401, 36 L. App. 75.


fused to sell a sleeping car berth to a passenger, on the ground that the latter
had not a first-class ticket, in determining that the ticket was not first-class, the
agent acted as the agent of the railroad company, and the car company was not
responsible therefor.-'^'

§§ 3536-3544. Contracts for Accommodations— § 3536. In Gen-
eral. — The relation between the sleeping car company and the purchaser of a
check for a seat or berth is created through the sale of such check by the duly
authorized agent of the company.-*^ When a passenger buys a right to a berth in
a sleeping car, the ticket he receives is not a contract, but little more than a sym-
bol indicating to the sleeping car company's agents that the passenger is entitled
to passage on the car named in the ticket, and, if the ticket is incorrect by reason
of the fault of the selling agent, the sleeping car company is bound by the con-
tract in fact made.-" While, as between the conductor of a sleeping car and a
passenger, the passenger's ticket is the sole evidence of the contract, yet the com-
pany is charged with knowledge of the real contract made by its agent, and if by
mistake of such agent the ticket does not evidence the contract actually made, the
sleeping car company can not shield itself from liability for nonperformance of
the actual contract, on the ground that it had made a regulation which precluded
its conductors from making any inquiries as to the real contract, or from carry-
ing it out.-^

Authority of Agent. — In an action against a sleeping car company for breach
of contract in failing to furnish apartments, evidence that certain railway agents
were in the habit in the usual course of business of making such contracts for the
sleeping car company, and that plaintiff had previously transacted the same char-
acter of business with such agents, and that the sleeping car company had always
ratified such authority and fulfilled the contracts, was sufficient to show that such
agents had authority to bind the company.-^ Where the porter of a sleeping car
acts in the capacity of both conductor and porter, collects fares, assigns passen-
gers to their berths, and is the sole representative of the company on that car, he
must be regarded as a vice principal and his acts are binding on the company.-'^ ^

§ 3537. Operation and Effect in General. — A sleeping car company
which sells a ticket on a certain sleeper from one place to another, to one having
a railroad ticket between such places, undertakes to furnish him a berth in that
or another sleeper, if the railroad company haul it.^^ A traveler purchasing a
particular berth in a particular sleeping car, and receiving therefor a ticket pur-
porting to entitle him to the same between certain stations, becomes thereby en-
titled to a continuous passage in such berth, on such car, or to an ecjually desirable
berth in the same locality in that car or another of equal safety, convenience,' and
comfort. ^2 Where plaintiff was entitled to Pullman accommodations on a partic-
ular train, but was required at an intervening point to leave that train and accept
accommodations on the second section thereof, there was a breach of contract;
but it was held that there could be no recovery of damages where both sections
arrived at the same time.^'' Where plaintiff contracted for a sleeping car accom-
modation between certain points on a particular train, but not for space in the
slecjiing car in which her relatives also purchased accommodations, she couUl not

25. Lemon <■. PnlliiKin Palace Car Co., App. 238.

.02 Fcrl. '.'(-<•>. 30. Morrow v. Pulhnan Palace Car Co.,

26. Creation of relation.— ruHnrni Co. !).s .Mo. Ai)p. ■^'>^, 7:i S. W. 281.

V. Custer Cl'cx. Civ. .App.), 110 S. W. S47. 31. Operation and effect.— Pulliiian Pal-

27. Ticket not a contract. — I'ullmaii ace Car Co. ?•. Cain, 1.". Tex. Civ. .'\pp.
Co. 7'. Riley, .5 Ala. App. r,r,i, .-io So. 7G1. r,():i. w S. W. ;::.'().

28. Pullman Co. 7: Riley, .'3 Ala. App. 32. Right of passenger to berth pur-
r,r,\, :,u So. T'.l. chased. — rullman Palace Car Co. 7\ Tay-

29. Authority of agent. I'ullnian Co. ?-. lor, Or, Ind. 1;"):!, 32 Am. Rep. .'')7.
Willett, 27 (). C. C. 010. And sec Smith 33. IMiMnian Co. v. Riley, 5 Ala. App,
t'. I'ulhnan Co., ll'J S. W. 1072, 138 .\lo. :.r,\, r,\) So. TCi.

§§ 3537-3540 carriers. ~ 3206

recover damages because of her subsequent separation from them on being re-
quired to accept a berth in a car transported on a second section of such train. ^•^
A contract to carry a negro in a sleeping car from a point outside of, to a
]:)oint in, Texas, is not in violation of the Texas statute prohibiting the carrying of
white and negro passengers in the same car, so as to prevent recovery for his be-
ing put out of that sleeper, on arrival at the state line, without being furnished a
berth in another sleeper ; he having a right to assume that at the state line he
would be furnished like accommodations in a car separate from white passen-

§ 3538. Breach of Contract to Reserve Berth. — A person who has con-
tracted with a sleeping car company through its proper agent for the reservation
of a berth for him in one of its cars, may recover damages resulting to him from
the breach of the contract to reserve the berth. ^^ It is no excuse for the sleep-
ing car company that another person demanded it before plaintifif presented him-
self to pay for and occupy it, and that there was no other unoccupied. ^'^ And
the sleeping car company can not relieve itself from liability to one who has pur-
chased a berth by an offer to refund his money. ^^ But where the conductor by
mistake sells a berth reserved for passengers getting on at a certain station, and,
a reasonable lime before reaching such station, notifies the passenger to whom he
has sold it of his error, and tenders another berth equally good, such passenger
has no cause of action if she refuses to accept the berth so offered, and voluntar-
ily leaves the car.^*^

§ 3539. Contract for Use of Berth in Daytime. — It has been held that a
sleeping car company is liable in damages for the breach of its contract to allow
one of its berths to be used as a bed during the daytime.'*'^

§ 3540. Failure of Railroad Company to Haul Sleeper. — It is held that
a sleeping car company which sells accommodations in its cars between points on
a railroad to passengers of the railroad company, the cars being hauled by the
railroad company in its trains under a contract between the two companies, is not
liable to a passenger for breach of contract because the car in which such pas-
senger is riding is diverted by the railroad company on account of a wreck and
does not reach the passenger's point of destination, in consequence of which he
is compelled to change into another car.*^ And a sleeping-car company, which
furnishes a suitable car with proper connections and in readiness for a contin-
uous passage, is not liable to a passenger therein for the failure of a connecting
line to send forward the train, on account of a riot.'*- But it is also held that
where a sleeping car company, operating its cars under a contract with a railroad
company, contracts to furnish sleeping car accommodations to a passenger from
one point to another, but breaches its contract before the destination is reached,
it is not absolved from liability by reason of the railroad company's failure to
haul the sleeper further ; such condition not having been expressed in the con-
tract of transportation with the passenger, who had no knowledge of the contract

34. Pullman Co. v. Riley, 5 Ala. App. 39. Mann Boudoir Car Co. v. Dupre, 54
561, 59 So. 761. Fed. 646, 4 C. C. A. 540, 21 L. R. A. 289.

35. Duty as to negro passenger. — Pull- . 40. Contract for use of berth in day-
man Palace Car Co. v. Cain, 15 Tex. Civ. time. — Pullman Palace Car Co. v. Fowler,
App. 503, 40 S. W. 220. 6 Tex. Civ. App. 755, 27 S. W. 268.

36. Contract to reserve berth. — Pullman 41. Failure of railroad company to haul
Palace Car Co. v. Nelson, 22 Tex. Civ. sleeper. — Louisville, etc., R. Co. v. Fisher,
App. 223, 54 S. W. 624. 83 C. C. A. 584, 155 Fed. 68, 11 L. R. A.,

37. Pullman Palace Car Co. v. Booth N. S., 926; Duval v. Pullman's Palace Car
(Tex. Civ. App.), 28 S. W. 719. Co., 62 Fed. 265, 10 C. C. A. 331, 33 L. R,

38. Offer to refund money. — Braun v. A. 715.

Webb, 65 N. Y. S. 668, 32 Misc. Rep. 243, 42. Simms V. Pullman Southern Car

affirming 62 N. Y. S. 1037, 31 Misc. Rep. Co., Fed. Cas. No. 12,869a.



between the railroad company and the sleeping car company."*^

§ 3541. Voluntary Abandonment of Contract Rights. — Where a per-
son having a contract with a sleeping car company for accommodations voluntary
abandons the contract, he has no right of action for the failure of the company
to perform its contract.'*-* So though a pass entitled plaintiff and his wife, but
not his son, to sleeping accommodations, plaintifif could not recover, where the
son, at the consent of plaintifif, occupied the berth, on the theory that the son was
a trespasser, whom the sleeping-car company permitted to occupy the berth,
while it excluded plaintifif from the accommodations to which he was entitled. ^^
And it has been held in an action against a sleeping car company and a railway
company by a passenger compelled to leave a sleeping car before reaching her
point of destination, and to complete the journey in a chair car, the railway com-
pany desiring to use the sleeper for the accommodation of passengers on one of
its trains bound in the opposite direction, that if plaintiff left the sleeper in order
to accommodate an acquaintance and his family who desired a sleeper on such
train, it was voluntary and she could not recover."*''

§ 3542. Right of Husband and Wife to Occupy Same Berth. — When
a berth is contracted for by the husband, either with an express understanding
that it is engaged for the joint occupancy of himself and wife, or under circum-
stances that are not misleading within themselves, the refusal to permit such
joint occupancy, without other reason than the difference of sex, and when such
refusal would be a breach of contract, would give the injured party a right of
action for damages. But where a wife engages one berth and her husband en-
gaged another she has no right of action against the railroad company for being
excluded from the one occupied by her husband, though the employees of the
company acted with great rudeness."*"

§ 3543. Condition Precedent to Rescission of Contract. — Where, after
a sleeping car company has contracted to furnish plaintiff a berth in a sleeping
car, it elects to rescind the contract for proper cause (e. g. contagious disease of
plaintifif J, it is bound as a condition precedent to such rescission to ofifer to re-
turn the purchase price of the ticket. "*''^

§ 3544. Implied Agreement of Passenger. — Where a berth in a sleeping
car is engaged, the passenger impliedly agrees to conduct himself in a (|uiet and
orderly manner, to take due and jjroper care of the berth while in his possession,
and surrender the same at the end of his journey in as good condition as when
assigned to him, necessary wear excepted. ^^

§§ 3545-3548. Duties and Liabilities as to Person of Passenger —
§ 3545. In General. — Where a berth in a sleeping car is engaged, the sleeping
car company imijlicdly stipulates to use all reasonable and proper means to pre-
serve order and decorum in the sleeper, to furnish and keep on hand such sup-
plies and conveniences as are usually found in like sleepers, and are necessary

43. I'ullnian Palace Car Co. v. Mocker, regard to tlic rigiu of the lnisl)and and
41 Tex. Civ. Api). 007, o:? S. W. 1009. wife to occupy the same hcrtli in a sleep-

44. Voluntary abandonment of con- inj? car. At the same time, the proprie-
tractcd rights. — I'ullin.ui I'al.ut- Car Co. tors of sucli conveyances imperatively
V. IlocUer. n Tex. Ci\. App. Ml, m S. W. owe to the traveliii}^ pnl>lic tlie ckity of
1009. seeing? that men and wonuii wlio do not

45. PuUnian I'alacc Car Co. r. Marsh, occupy to lacli otlicr that relation shall
."j-'J .\'. I'*. 7k:.', ;j4 Ind. Apj). 129. not occuiiy tlie same one."

46. I'ullman I'alace Car Co. v. Hocker, 48. Condition precedent to rescission of
41 'I'cx. Civ. App. r.or, o:; S. \V. 100'.). contract.— Pullman Co. v. Krauss, Ilo

47. Right of husband and wife to occupy Ala. :i9.'.. lo So. ;{'.)S, i I,. \i. A., N. S., lo!.
same berth, -i'ullman I'alace Car Co. v. 49. Implied agreement of passenger. —
Bales t'l'ex.). II S. W. K.'i.''), wherein the .N'evin r. I'nllm.iii I'alace Car Co., UXl Ml.
court said: "No question can exist with '.1:12, 4 Ky. 1.. Rep. 'XIW, HI Aiu. Rep. OSS.

§ 3545



to the health, comfort and safety of passengers, and also to permit the passen-
ger to quietly and peaceahly occupy his berth for the time engaged.^" The com-
pany owes to the passenger the duty of exercising care in protecting him from
injury. ^1 A sleeping car company, however, is bound to exercise only ordinary
and reasonable care and diligence in watching over its passengers to protect them
from injury."'- Where there has been no negligence, or failure to exercise this,
ordinary care and diligence, there can be no right of action against the sleeping

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 19 of 214)