BROWN tJ. MEMPHIS &; O. ,R. 00.
bill of exceptions at this time. But one eXQeption was
allytalten and saved at ,the trial, which is the one before noticed. Only such as are so saved canbe included in a bill of'exceptions. U. S. v. B'I'eitling,8up'l'a. During the trial the plaintiffs'were allowed to amend by adding. to their complaint a number counts on accounts stated. These amendments are all put into the bill as proposed by defendant, but are not properly there. The amendn1ents are all matters of record, and no bill of exception is needed to bring them on the record. The bill as prepared also contains a statement of all the testimony in the case. This cantiot avail as a special finding of facts. Norris v. Jack8on, 9 Wall. 125. Only so much of. tpe evidence as is necessary in the bill. to point the exception ought to be A billembrR.Cing' the exception stated will, if desired., be sealed and :tHad.
BROWN tJ. 'MEMPHIS
& C. Eo Co.
Court, W. D. Tennes8ee. October 30,1880.)
CoNSTITUTIONAL LAw - INTER-STATE CoMMERCE-RuLROAD&-TltII'., NEBSEB-AcT 1875, c, 130.
A state statute which abrogates all common-law remedies for the wrongful exclusion of a passenger from the cars of a railroad company is unconstitutional, so far as it relates to railroads running between two or mote it being a regulation of inter-state commerce that the state has no power to make.
2. OAltRIER OJ!' PASSENGERS-FEMALE PAllSENGER-UNCHASTITy.....REASONABLE REGULATION.
A carriernf passengers may rightfully exclude a passenger whose conduct at the time is annoying, or whose reputation for misbehavior is so notoriously bad that it furnishes a reasonable ground to believe that the person will be offensive to other passengers; but the Bocia} penalties of exclusion of ynchaste women from 'hotels, theaters, and other pUbli<: places cannot be Imported into the law of common carriers; nor can the carrier classify his passengers according to theiI respective reputations for chastity, whether they be men or women.
3. SAME OAR-EQUAL ACCOMi.rODATIONB.
" A female passenger traveling iHone is entitledt-o ride in the ladies' ,car, notwithstanding an alleged want of, chastity, if her behavior is lady-like and proper, and she cannot be compelled to accept a seat in another car offensive to her because of smoking and bad ventilation; and this whether she be white or colored.
This was a common-law action for the wrongful exclusion of the plaintiff, a colored woman, from the ladies' car of the defendant's train, upon her refusal to take a seat in the ing car. At the time of her exclusion the plaintiff held a first-class ticket over the defendant's road from Corinth, Mississippi, to Memphis, Tennessee, and her behavior while in the car was lady-like and inoffensive. The defendant pleaded that the plaintiff was a woman of color, and that the company had a regulation excluding persOIlso! color from the ladies' car, but providing equal accom-. modations in another car, which she refused to accept. This' plea, however, was subsequently withdrawn, because the defendant as a matter of fact made no distinction as to color on its cars. After the withdrawal of this plea the court refused to entertain the question of color" a.t;ld excluded it altogether from the jury, 'and charged' that' the case was to be tried as if the plaintiff were ,a white woman excluded under similar circumstances. The defendant also that the plaintiff was a notorious and publiCl courtesan, addicted to the use of profane language and offensive habits of conduct in public places j that the car was set apart exclusively for the use of genteel ladies of good character and modest deportment; from which the plaintiff was rightfully excluded because of her bad character. It also appeared that an existing statute of the state of Tennessee (Act of March 24, 1875, c. 130, § 1, p. 216) contained the following provision: "The rule of the common law giving a right of action to any person excluded from any hotel or public means of transportation, or place of amusement, is hereby abrogated j and hereafter no keeper of any hotel or public house, or carxier of passengers for hire, or conductors, drivers, or employes
:1& ,0. R. 00.
of such carrier or keeper;shaJLbe bound 'or under':any,obligation to, ent-ertain, carry, or admit any 'whoIn he sha.ll for any rea-gon whatever choOEfEl not to entertain, ca.rry, or admit to his house, hotel, carriage, or means of transportation, or place of nor shall any right exist in favor of any :such persons so refused admission; but the right of such keepers of hotels and public houses, carriers of passengers, and keepers of places of amusement, and their employes, to control the access and admission or exclusion of persons to or from their public houses, means of transporta. tion, and places of amusement, shall be as perfect and com. plete as that of any private person over his private 'ear. riage or private theater or place of amusement for his fam· ily." lnge Chandler, for plaintiff. Hnmes d: Postert, for defendant. Hummm, D. J., charged the jury that thisa.<lt of :the legislature, sodar as it, abrogated' the oommon-Iaw right of action for wrongful exclusion from railroad cars on roads rtln.. ning "between two or more states, wail unconstitutional; beit was a regulation of commeroe' between the states, which the legislature had no right to make, the exclusive right to make it being by the con:stitution of ,the Uni.ted States in congress. HaU v. DeCuir, 95 U. S. 485. , On the question of the plaintiff's charallter tor chastity, he charged the same principlea';of law were;tobe 'applied to women as men in determining whether the exclusion was lawful' or not; that the social ,penalties of exclusion of unchaste women from hotels, theaters, and other public places could not be imported into the law of common carriers; that they had a right to travel in the streets and on the public highways, and other people who travel must expect to meet them in such such places; and, as long as their conduct was unobjectionable while in such places, they could not be excluded. The carrier is bound to carry good, bad, and indifferent, and has nothing to do with the morals of his passengers, if their behavior be proper while traveling. Neither can the carrier
usethecharacter,fol chastity of his female passengers as 3basis of classification, so that he may put all chaste women, or women who have the reputation of being chaste, into one car, and thos13 known or reputed to be unchaste in another car. Such a regulation would be contral'Y to public policy, and unreasonable. It would put every woman purchasing a railroad ticket on trial for her virtue before the conductor as her judge, and, in case of mistake, would lead to breaches of the peace. It would practically exclude all sensible and sensitive women from traveling at all, no matter how virtuous, for fear they might be put into or unconscIously occupy the wrong car. The police power of the carrier is sufficient protection to' other passengers, and he can remove all persons, men orwomen, whose conduct at the time is annoying, or whose reputation for misbehavior and indecent demeanor in public is so notoriously bad that itfurnis'hes a reasonable ground to· believe that the person will be offensive. or annoying to others. traveling in the same .car; and this is as far as the carrierhas any right to go. He can no more classify women accord... ing to their reputation for chastity, or want of it, than he, can so grade the men. The carin which the plaintiff was required to sit was used as a car, and was at the time crowded with passen-. gers, mostly emigrants, traveling on cheap rates. with many women. and children. It was claimed by the company that its acommodations were as good as the ladies' car, and the' plaintiff had no right to refuse it. On this point the court charged that the plaintiff was entitled to first-class accommodations, which meant that those tendered were to be eq,ual illi all respects to the best which the company. offered on that train to other female passengers traveling alone as the plaintiff was. If being chaste she would have been entitled to ride in the ladies.' car, she was entitled to ride in it notwithstanding the alleged want 'of chastity, if her behavior was lady-like;. and having already acquired a seat in it she could not be excluded, nor was she compelled to accept a seat in the,
THIRD NAT. BANK Oll' BALTIMOnE V. TEAL.
()ther car, if, because of the smoking orba:a vEmtilation or .other cause's, it was disagreeable to her; there being room for her in the ladies' car. 'Verdict for'plaintiff for $3,000.
See Brown v. Memphi8 tJJ O. R. 00. 4 FED. REP. 37.
THIRD NAT. BANK OF BALTIMORE V. TEAL.
(Oircuit Oourt, D. MaryZand.
January 28, 1881.)
l.' DEcLARATION-JURIsDICTIONAL FACTS-DEMURRER,
The declaration described the plaintiff as .. The Third National Bank of Baltimore." HeZd, on demurrer, that this was not equivalent to an IIoverment that the plaintiff was a banking association established in the district of Maryland, nor that it wascstablishcd under the. law of the United States providing banking associations.; Held, also, that the declaration was demurrabie for want of an averment that the plaintiff was a corporatiolJ..
2. ATTACHMENT UNDER STATE LAW ADoPTED BY THE UNITED STATIj:S. COURTS.
The plaintiff having obtained an attachment on original process,'as provided by the Maryland state law, adopted by as authorized by section 915 of the U. B. Revised Statutes, held, that ,the circuit court must ap'ply the remedy agreeably to the construction put' upon the law by the highest appellate court of the state. Held, that; the appellate court having decided that, by the terms of the statute giving the remedy, the attachment was void if. the declaration was demurrable, the attachment in this case must be quashed.
Demurrer to declaration and motion to quash attachment. T. M. Lanahan and A. Sterling, Jr., for plaintiff.. Robert D. Morrison and George O. Ma,und, for d'efendant. MORRIS, D. J. This court having by its'rules (as author· ized by 'seCtion 915 ofthe U. S. Revised Statutes;) adopted the Maryland 'law of 1864,c. 306, giving to plaintiffs a remedy by attachment 'on original process, the plaintiff ih this case, lIpan giving bond and filing an affidavit alleging that it had good reason to believe that the defendant had disposed of Bome portion of his property with intent to defraud hiscred'· itors, 0btained which was levied on certain' of the defendant's real estate. ' '