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Opinion of the Court.

as a paint shop - enclosing the same with partitions, and keeping it locked with the keys in possession of its own employés. The place so fitted up was known as the “Pullman repair shop.” The employés 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-door 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 employés 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 Opinion of the Court.

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 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

Opinion of the Court.

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, 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

Opinion of the Court.

paid by the insurer, the insured is entitled to the residue.” See also Phænix Insurance Company v. Erie Transportation Company, 117 U. S. 312, 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, 469; Hall & Long v. Railroad Companies, 13 Wall. 367, 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 Michigan, 48; Peoria Ins. Co. v. Frost, 37 Illinois, 333; Conn. Mut. Life Ins. Co. v. New York & New Haven Railroad, 25 Connecticut, 265; Swartwout v. Chicago & Northwestern Railway, 49 Wisconsin, 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.” Castella in 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

Opinion of the Court.

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, 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, 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.

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