I am unable to concur in the decision rendered by this court, in so far as it affirms the judgment of the lower court rendered for appellee against the appellant the Pullman Palace Car Company, and respectfully dissent from the conclusion reached by the majority of the court.
I dissent because I think the decision is supported neither by reason nor by authority. Not a single adjudicated case is cited in the opinion which sustains the proposition upon which the opinion is based, to-wit, that by the sale to appellee, by the agent of the appellant, in the city of St. Louis, of a sleeping-car ticket which reads, substantially: "Car Silicia from St. Louis to Galveston; Conductor McGlasson; berth, upper No. 2," — the appellant obligated itself, jointly with its co-appellant, the International Great Northern Railroad Company, to transport the appellee to Galveston in the said car Silicia, or in one of equal accommodations and comfort. The opinion cites (and it is its only citation of authority) language used by the Supreme Court of this State in the case of Car Co. v. Pollock, 69 Tex. 120 [69 Tex. 120], — a case in which another and different question was involved than the one presented here. In that case the question was whether or not the Palace Car Company was liable to a passenger occupying a berth on its car for the loss of his baggage by theft, through the negligence of the servants of the car company, and without negligence on the part of the passenger; and the court held, in conformity to the decisions of the courts of other jurisdictions, without exception, I think, that the owner of the car was liable.
The sale by the owner of a berth in a palace car is, it is said, an invitation to the passenger to sleep, with an implied promise on the part of the proprietor of the car that, while the passenger sleeps, reasonable care will be taken to protect his property — including wearing apparel, as much baggage as is usually carried by passengers in their hands, and a reasonable amount of money for his expenses — from thieves and burglars. From this decision of our Supreme Court, which imposes but a limited liability upon the owners of sleeping cars, and which expressly declares that they are not charged with the duties or responsibilities of either common carriers or innkeepers, we are authorized, in the opinion of this court, to affirm the judgment of the lower court awarding damages to appellee against the palace car company for the act of its codefendant in ejecting the appellee from the sleeper, and in failing to provide him with another car with like comforts and conveniences. Such a conclusion is, in my judgment, clearly a non sequitur. The decision *Page 508 in the case of Car Co. v. Pollock is not authority for the decision rendered in this case.
The question in this case is, if a traveler procures a contract, by the purchase of the customary ticket from a railway company, for his transportation to a distant city, and then purchases from the owner of a sleeping car, which is one of the cars composing the train then on the track of the railroad company, a ticket which entitles him to occupy a berth on that sleeper during his journey, and who well knows that it is a sine qua non for the sale to him of a berth in the sleeper that he first procure a contract with the railway company for transportation upon its train of cars, and when the evidence shows beyond cavil that the sleeper and the conductor and porter are all under the control of the railroad officials, can such passenger hold the owner of the sleeper liable for injuries suffered by the passenger by the acts of the railroad company?
To state the question, it seems to me, is to answer it in the negative. There are a number of adjudicated cases by courts of high respectability in which it is held that the servants of the owner of a sleeping car, who are employed by the owner and placed upon the car for the purpose of ministering to the wants and comforts of passengers who occupy the sleeper, are all subject to the orders of the conductor or other official in command of the train, and that the acts of the servants upon the sleeper are the acts of the railroad company, and not the acts of the owner of the sleeping car, and that the railroads, acting through their officials, have the right to determine who shall occupy the palace cars, and upon what conditions.
In Lawrence v. Car Co., 144 Mass. 1, it was held that the Pullman Company was not liable for the act of its conductor in refusing to sell a berth to a passenger in violation of a rule of the railway company, nor for aiding in ejecting the passenger from the car by order of the conductor of the train. To the same effect is the decision in the case of Car Co. v. Lee, 49 Ill. App. 75. These decisions hold that the acts of the servants and officers of the Pullman car are the acts of the railroad company, and not the acts of the Pullman Company.
If the Pullman Company is not responsible for the acts of its servants done in obedience to the orders of the railroad officials, how can the Pullman Company be held responsible for the same acts when committed by the railroad officials? Such decisions can only be made upon the ground that by selling to a passenger who holds a ticket from a railroad for his transportation the privilege of occupying a berth in one of its sleeping cars, which is a part of the railroad train, the owner of the sleeper does not contract for the transportation of the sleeper or of the passenger, but contracts only to furnish the passenger with the accommodations and comforts of the sleeper so long as the railroad company will transport him therein.
This was the decision in the case of Duvall v. Car Co. (decided by the Circuit Court of the United States for the Western District of Texas on appeal from the District Court of that district). 10 Cir. Ct. App., *Page 509 331, 62 Fed. Rep., 265. The plaintiff, Mrs. Duvall, an aged lady and a cripple, being unable to walk, was in Denver, Colorado, with her daughter, and, wishing to return to her home, in Austin, Texas, purchased a ticket from Denver to Fort Worth over the Union Pacific Railway Company, and also a ticket from the Pullman Palace Car Company entitling her to the use of the drawing room of one of its cars, which was then attached to the train of the Union Pacific Company. She entered the drawing room of the car, and started from Denver in the afternoon of the 27th of September, and at the hour of 12 o'clock in the night of that day she and her daughter were compelled by the conductor and porter of the car, acting under orders of the railroad officials, to leave their beds, and go from the car and take lodgings in an inferior car, the accommodations of which were unsuitable for an aged and invalid lady, where she was compelled to remain for 24 hours. The train on which she had left Denver, by reason of washouts on the road between the point at which she was forced to leave the sleeper and Fort Worth, was ordered by the officials of the railroad to return to Denver; and, upon the arrival of the next train from Denver for Fort Worth, Mrs. Duvall was taken aboard. But she was unable to return to the drawing room of the sleeper from which she had been ejected on the previous night, there being no car with a drawing room attached to the train, and, when she applied for berths in the sleeper for herself and daughter, she was informed that all the berths but one — and that one was in the upper tier of berths — were occupied; and she was compelled to ride from midnight until the train reached Fort Worth, at 1 o'clock next day, in an ordinary day coach. The evidence showed, also, that when the officer of the Pullman Company sold the ticket, Mrs. Duvall's condition was made known to him, and he was expressly informed that unless she could have the occupancy of the drawing room of the car, Mrs. Duvall, in her enfeebled condition, would not undertake the trip; and that she was unable to sleep in the inn in which she was compelled to remain, or on the coach in which she subsequently rode to Fort Worth; and that she suffered, in consequence, great pain. The District Court upon these facts, ordered the jury to return a verdict for the defendant, and upon appeal to the Circuit Court the judgment was affirmed; that court holding, under the facts (which were similar to the facts of this case), that the Pullman Company, by sale to the appellant of a ticket giving her the right to occupy the drawing room of the car, did not contract for her conveyance to Fort Worth in that or in any other car, but it only contracted for her use and occupancy of the drawing room so long as the railroad company would convey the car.
I do not dissent from the views expressed in the opinion touching the liability of the other appellant, the International Great Northern Railroad Company. That company by its connections with the railway which undertook and agreed to convey the appellee from St. Louis to Galveston in a sleeper, made itself subject to the provisions of the *Page 510 interstate commerce law; and under that law, as I construe the first and third sections of the act of Congress entitled "An act to regulate commerce," approved February 4, 1887, as amended by act of March 2, 1889, the International Great Northern Railroad Company were under obligations, when they removed the appellee from the car Silicia, as it was their duty to do in obedience to the statute of Texas, to furnish him with a berth and other accommodations equal to those of which they deprived him by his ejection from the sleeper, and for which he paid when he purchased the ticket from the Pullman Company in St. Louis.
The contention of appellant that the railway which sold to appellee, in St. Louis, a ticket for transportation over its road, and the railroads in connection with it, to Galveston, could not bind appellant to carry appellee in a car set apart for the exclusive use of white passengers, and which was occupied by such passengers, because such contract was a violation of the laws of Texas, may be conceded. But the contractual relations of the two railway companies subjected the appellant, as we have said, to the provisions of the interstate commerce act, which forbids discrimination between passengers. And the law of Texas does not prohibit railways from carrying negroes in sleeping or palace cars. It only prohibits the carrying of white and negro passengers in the same car. And the appellee, in his pleadings, does not deny that it was the right of appellant to remove him from the car Silicia, provided he was furnished with equal accommodations and comfort for which he had contracted in St. Louis. It seems clear, therefore, that the appellant railway is liable for appellee for failing to provide him with like accommodations as those offered by the sleeper from which he was ejected.
For the error of the lower court in holding the Pullman Palace Car Company liable in damages for the act of the appellant the International Great Northern Railroad Company, the judgment, in my opinion, should be reversed, and the cause remanded.
ON MOTION FOR REHEARING.