
    Pullman Car Co. v. Krauss.
    
      Action for Breach of Contract of Carriage.
    
    (Decided Feb. 17, 1906,
    40 So. Rep. 398.)
    1. Carriers; Passengers; Sleeping Cars; Right to Berths; Persons Afflicted with Contagious Disease. — The right to passage on or a berth in a sleeping oar is not unlimited, but subject to such reasonable regulations as may be provided by the company; and a sleeping car company may refuse to carry persons a? passengers who are afflicted with contagious or infectious disease, or who are guilty of gross and vulgar habits, co the detriment or disturbance of its other- passengers.
    2. Same; Termination of Contract. — If such company has made a ccntract of carriage with a person afflicted with such disease, on discovering that fact, it may refuse to carry such passenger, but it is bound, in order to terminate the contract, to tender the amount paid for carriage.
    3. Trial; Issues; Evidence; Instmctions. — In the absence of evidence that an act was wilfully, wantonly and maliciously done, and the complainant avers the act to- be so done, it. is error to instruct the jury that if they believe the evidence they should find that the allegations of the complaint are true; and the fact that these allegations are immaterial does not cure the error.. \>
    
      *. Carriers; Sleeping Cars; Breach of Contract; Instructions.— Plaintiff having paid for passage on defendants sleeping ear, if entitled to recover at all, was at least entitled to recover the amount paid for carriage — which was substantial damage and instructions were properly refused which required the jury to a&sess only nominal damages in the event they believed the evidence, or believed that plaintiff was afflicted with a contagious or infectious disease.
    5. Same; Buies; Reasonableness; Question for Court. — Whether a rule promulgated by carriers in reference to the carriage of passengers is a reasonable rule, is a question of law for the court.
    6. Same. — A rule made by a sleeping car company excluding from its cars insane persons or persons afflicted with a contagious or infectious disease, is a reasonable one.
    7. Same; Instructions; Damages. — The suit being one for breach of contract for carriage, and the defense a rule of the company prohibiting the carriage of passengers afflicted with con tagious or infectious diseases, it vías error to refuse to instruct the jury that if they believe plaintiff was so afflicted they could not find for any greater amount than the price paid for carriage, with interest from date.
    Appeal from Birmingham City Court.
    Heard before Hon. Charles A. Senn.
    Action by Max Krauss against the Pullman Company. From a judgment for plaintiff, defendant appeals.
    This is an action for breach of contract of carriage. The facts necessary to an understanding of the opinion are fully stated therein. Charges requested by the defendant not set out in the opinion are as follows: Charge 1. “If you believe the evidence, you cannot assess more than nominal damages in favor of plaintiff.” Charge 2. “I charge you that the rule or regulation which has been read to you in evidence is a reasonable rule or regulation.” Charge 7. “If from all the evidence you believe that the plaintiff had a contagious or infectious disease at the time he presented himself for passage on defendant’s car, you cannot- assess more than nominal damages in his favor.” Charge 8. “If from all the evidence you believe that the plaintiff had a contagious or infectious disease at the time he presented himself for passage on defendant’s car, you can render as damages in his favor only the sum paid for the sleeping car 'space with interest thereon to date.” Charge 9. “If from all the evidence you believe that the plaintiff had an infectious or contagious disease at the time he presented himself as a passenger on defendant’s car, you must render your verdict in favor of defendant.” Charge 11. “The court charges the jury that if they believe from the evidence that plaintiff, at the time he was refused permission to ride therein, if he was denied such admission or permission, was known to have a contagious or infectious disease, they must find for the defendant.” Charge 12. “Under-the complaint and issues in this case, the jury should consider whether a person, in the exercise of reasonable care and having a proper regard for the rights of others and to the proper properties, would have admitted plaintiff to his vehicle or conveyance where other persons were, and it makes no difference in this case that defendant is a corporation. Its rights are to be measured by the same considerations that would apply to an individual, if he was sued for refusing to admit plaintiff to a vehicle where such individual had other passengers and had refused plaintiff admission under facts and circumstances similar to the facts and circumstances of this case.”
    George Huddleston, for appellant.
    Counsel filed an argument insisting npon errors assigned but cited no authorities, stating as his'reason therefor that the propositions involved were elementary.
    Campbell & Walker, for • appellee.
    As to assignments of error A., 1 and 2, we cite the following. — Paddock case, 37 Fed. 84, 4. L. K. A. 231; Hudson v. EUen B. Rhodes, 178 Mass. 67; Robinson v. Rockland, 87 Mo. 387; Pelaiier’s case, 134 111. 125; Adam’s case, 120 Ala. 594; Meyer v. Pullman, 4 Wallace, 605; A. G. S. R. R. Go. v. Carmichael, 90 Ala. 24; Duval’s case, 10 C. C. A. 331; Penn. Co. v. Roy, 102 U. S. 451. As to assignments of error 6, 10,12,18, 14, 15, 16 and 17, we cite. — Authorities supra; Peary v. Georgia Company, 81 Ga. 485; A. T. & 8. Go. v. Webber, 32 Kansas 543. As to the eighth assignment of error, Ave cite. — Montgomery’s ease, 165 N. Y. 140; Gregory’s case, 100 IoAAra 345; Wright’s ease, 78 Cal. 360; A. G. 8. It. R. Go. v. Carmichael, supra; Manning’s case, 95 Ala. 392.
   DENSON, J.

This suit AAras commenced on the 28th day of February, 1903, by Max Krauss against the Pullman Car Company. The complaint contained a single count, Avhich, as amended, is in this language: “Plaintiff claims of the defendant $1,950 damages for the breach of an agreement entered into by it on, to-AArit, January 30, 1903, by AArhich defendant for a valuable consideration promised to carry plaintiff as a passenger on a sleeping car from the city of Memphis, Tenn., to the city of Birmingham, Ala. Plaintiff aArers that defendant breached said promise in this: That defendant refused to carry plaintiff as said passenger. Plaintiff avers that he suffered the damage and injury naturally flowing from said breach, and in addition thereto that he was damaged by defendant’s said breach of said promise as folloAvs: That -at the time defendant made said contract to so carry him, plaintiff, as defendant kneAAg Avas sick or in delicate pr unsound condition, and desired the passage in defendant’s car in order to prevent further injury to his body and health, and the suffering and weariness incident to said travel, and that because of defendant’s said breach of said contract plaintiff was compelled to travel from said city of Memphis, Tenn., to said city of Birmingham, Ala., in a railroad passenger coach, and thus lost or Avas preAmnted from obtaining the benefit of traiveling in a sleeping car, and Avas made sick and sore, and suffered physical pain and injury and detriment to his physical condtioin, and suffered mental pain and anxiety, and aauis greatly humiliated. Plaintiff ■ further avers that said breach of said contract AAras maliciously, Avillfully, or Avantonly committed by defendant, and Avas committed in bad faith, and in a manner calculated to subject plaintiff to humiliation, ridicule and reproach, and that plaintiff was humiliated and made ashamed therein7. All to plaintiffs damages in the said sum of $1,950.”

The defendant filed several pleas in answer to the complaint. Demurrers were sustained to those numbered .4, 5, and (>, respectively. The fourth plea sets up the defense that when the plaintiff presented himself at the defendant’s car for passage the conductor and passengers who had bought berths and space in said car thought that the plaintiff had a “contagious and loathsome disease;” that his hands and arms -were wrapped in cloth, and that there were eruptions on a part of his body that were visible; that a number of passengers on the said car objected to plaintiff being allowed to ride thereon, and the conductor of said car would not allow him to take passage thereon because of the appearance of the said disease; and it is averred that the plaintiff did have a loathsome and contagious disease, to-wit, syphilitic eczema. The fifth plea set up a rule of the defendant company against carrying persons infected with a contagious disease; and it is averred plaintiff had such a disease, to-wit, syphilitic eczema. The sixth plea is in effect the same as the fourth plea, with the additional averment that at the time plaintiff purchased his ticket he did not communicate to the agent who sold him the ticket the fact that he had a contagious disease, and that the agent did not know that the plaintiff had a contagious disease.

The right of a person to a berth or passage on a sleeping car is not an unlimited right. But it is subject to such reasonable regulation as the defendant had prescribed for the due'accommodation of passengers and for the safety and comfort of passengers. Sleeping car companies are not bound to admit persons as passengers on its cars who are guilty of gross and vulgar habits of conduct, or who make disturbances on board, and, a fortiori, persons who are afflicted with contagious or infectious disease, so that there would be a probability of other passengers contracting the disease with which said afflicted person was suffering. As is said in Hutchinson on Carriers with respect of common carriers: “As, therefore, the common carrier holds himself out as the carrier of only such goods as are in a fit condition to be carried, and may, as has been seen, notwithstanding his public profession, refuse to accept such as are unfit to be carried on account of their kind, the unsuitable manner in which they are prepared for transportation, or the insecurity or damage -which they may occasion to the goods of other shippers or to the carrier himself, so the carrier of passengers, however public he may hold himself out or be engaged as such carrier, may refuse to accept persons offering themselves as passengers who are unfit to be carried, either because such person, from bad character, from being afflicted by contagious disease, from apprehended evil designs, either upon the carrier himself or his passengers, or from drunkenness or insanity, would be unfit associates for them or unsafe for the carrier.” — Hutchinson on Carriers (2d Ed.) § 540 ; Nevin v. Pullman Palace Car Co., 106 Ill. 222, 46 Am. Rep. 688 ; Wood’s Ry. Law, 1035 ; Putnam v. Railroad Co., 55 N. Y. 108, 14 Am. Rep. 190 ; Paddock v. A. T. & S. R. R. Co., (C. C.) 37 Fed. 841, 4 L. R. A. 231.

Then, in the first instance, the defendant company, if the plaintiff was afflicted'with a contagious or infectious disease, loathsome in its nature, would have been justifiable in refusing to contract with plaintiff to carry him as a passenger or to furnish him a berth in its cars; or if, after receiving him as a passenger or making the contract with him to carry him, the defendant became aware that the plaintiff was afflicted with such disease, the defendant, in consideration of the duty it owed the other passengers to protect them from the misfortune of this one passenger, would have been justified in putting an end to the contract and in declining to admit or carry him as a passenger. — Conolly v. Crescent City R. Co., (La.) 5 South. 259, 6 South. 526, 3 L. R. A. 133, 17 Am. St. Rep. 389 ; Paddock v. A. T. & S. R. R. Co., supra. But, the action here being in assumpsit for a breach of the contract, to perfect a recission of the contract — a putting an end to it — the defendant must have offered the purchase price of the ticket or consideration paid by plaintiff on the agreement to carry, hack to him. In ‘this respect pleas 4, 5 and 6 were had, having been pleaded, as they were, in bar of the entire cause of action. Hence the demurrer was properly sustained to them.

After demurrer was sustained to pleas .4, 5, and C>, the defendant filed other pleas which conformed to'the ruling of the court with respect to pleas 4, 5, and 6, and the trial was had on said other pleas.

The other assignments of error that are insisted upon relate to a charge given at the plaintiff's request and to charges refused to the defendant.

Charge 2, given for the plaintiff, was in this language: “Gentlemen of the jury, I charge you that, if you believe the evidence, you must find that the allegations of plaintiff's complaint are true.” We find that the complaint avers that the breach of the contract was maliciously, willfully, or wantonly committed by defendant, and committed in bad faith. We have found in the record no evidence of bad faith or malicíe on the part of the defendant or its agents, yet under this instruction the jury was required to find, that these averments of the complaint Avere true. But it is urged that these averments in the complaint Avere immaterial. If so, the charge should have been formulated so that it Avould have excluded them. We cannot say that the charge Avas harmless in its effect, and the giAing of it was reversible error. This makes it unnecessary to consider the other insistence of the appellant Avith respect of this charge.

Charges 1 and 7, refused to the defendant, Avere calculated to lead the jury to the belief that they could not aAvard the plaintiff damages equal to the amount paid for the ticket or berth, or that they might aAvard him damages less than the amount paid therefor. The plaintiff, if entitled to recoArer, was entitled at least to recover the amount that Avas paid for the ticket; and this, although it may hace been a small amount, Avas substantial damages, as contradistinguished from nominal clamges. The charges were properly refused.

After proving that the defendant had rules with reference to person afflicted with contagious or infectious disease, the defendant offered in evidence a rule of the company, which was shown to be in effect at the time plaintiff was refused passage on the sleeper, and which was in words as follows. “Persons known to be afflicted with any contagious or infectious disease, or to be insane, will not be permitted in the cars of this company.” •' By amended plea 8, upon which issue was joined, the rule was pleaded in defense of the action, and it was averred in the plea that the rule was a reasonable regulation. Charge 3, refused tO1 the defendant, is in this language: “The court charges the jury that the rule set up in defendant’s plea 8, if said rule has been proved to the reasonable satisfaction of the jury, is a reasonable rule.” We think that there can be no doubt that the defendant had not only the power, but that it was its duty, to make rules and regulations to insure the safety and comfort of its patrons. — A. G. S. R. R. Co. v. Carmichael, 90 Ala. 19, 8 South. 87, 9 L. R. A. 388 ; Man-ning v. L. & N. R. R. Co. 95 Ala. 392, 11 South. 8, 16 L. R. A. 55, 36 Am. St. Rep. 225 ; Montgomery v. Buffalo Ry. Co., 165 N. Y. 140, 58 N. E. 770 ; Barker v. Central Park, 151 N. Y. 237, 45 N. E. 550, 35 L. R. A. 489, 56 Am. St. Rep. 626. It seems to have been settled by this court that the reasonableness of any given rule or regulation of a carrier is a question of law to be determined by the court, and not one of fact for the jury. — M. & C. R. R. Co. v. Graham, 94 Ala. 545, 10 South. 283, 9th h. n. We have found very satisfactory reasoning upon which to predicate this rule in Railroad Co. v. Fleming, 14 Lea (Tenn.) 145, where it was said: “The rules and regulations of a railroad company, as of other corporations, are subject to the requirements that they must be reasonable, 1 Whether they are reasonable or not.is a question for the court, and not for the jury; and this is for the obvious reason that there must be uniformity in the construction, which can be always obtained by the decision of the court. If left as a question of fact to the jury, the result might vary with each jury, and the corporation could have no certainty that any rule would stand the test with every jury. So the necessity of holding this to be a question of law, and therefore within the province of the court to settle, is apparent from the consideration that it is only by so holding that fixed and permanent relations can be established. If this question can be left to juries, one rul’e Avould be applied by them today and another tomorroAV. In one trial a company Avould be liable, and in another, presenting the same question, not liable." — Gregory v. C. & N. W. Ry. Co., 100 Iowa 345, 69 N. W. 532 ; Ry. Co. v. Wittemore, 43 Ill. 420, 92 Am. Dec. 138 ; Arery v. Ry. Co., 121 N. Y. 44, 24 N. E. 20 ; Vedder v. Fellows, 20 N. Y. 126 ; Chilton v. R. R. Co., 114 Mo. 89, 21 S. W. 457, 19 L. R. A. 269 ; Ry. Co. v. Wysor, 82 Va. 250, 261 ; Commonwealth v. Worcester, 3 Pick. (Mass.) 462 ; Vandine Case, 6 Pick. (Mass.) 187, 17 Am. Dec. 351. The rule in question, it would seem, was adopted for the safety'and comfort of defendant's patrons or passengers, and, Avhether the defendant is to be treated as a common carrier or otherAvise, the rule is a Avise and salutary one, and Ave have no difficulty in reaching the conclusion that it is a reasonable one, and that the court should have so declared, as requested in charges 2 and 3, refused to the defendant. The refusal of these charges constitutes reversible error.

If the defendant Avas, at the time he presented himself for passage on defendant’s car, afflicted Avith a contagious or infectious disease, then, under the issues formed, the defendant Avas entitled to have the jury instructed as requested in refused charge 8. Refused charges 9 and 11, presenting a kindred proposition to that presented in charge 8, Avere properly refused, for the reason that they precluded any recovery for the sum paid for the sleeping car space or berth.

Charge 12 possessed the vice of being argumentative, and for this reason, if for no other Avas properly refused. Under the issues made by the pleading and evidence adduced, the affirmative charges requested by the defendant Avere properly refused.

For the errors pointed out,the judgment Avill be reversed, and the cause remanded.

EeA'ersed. and remanded.

Haralson, Doavdell, Simpson, and Anderson, JJ., concur.  