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 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 & M. R. Co. v. Jurey, 111 U. S. 584, 593, 16 Am. & Eng. R. Cas. 132, 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 paid by the insurer, the insured is entitled to the residue. See, also, Phoenix Ins. Co. v. Erie & W. Transp. Co., 117 U. S. 312, 320, 321, 11 Am. & Eng. Corp. Cas. 597. This is because, as said by Chief Justice SHAW in Hart v. Western R. Corp., 13 Met. (Mass.), 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 & E. R. Co., 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. (U. S.), 466, 469; Hall 7. Nashville & C. R. Co., 13 Wall. (U.S.), 367, 370; Merrick v. Van Santvoord, 34 N. Y. 208; Connecticut F. Ins. Co. v. Erie R. Co., 73 N.. Y. 399; Clark v. Wilson, 103 Mass. 219; Hayward Cain, 105 Mass. 213; Gales v. Hailman, 11 Pa. St. 515; Perrott 2. Shearer, 17 Mich. 48; Peoria M. & F. Ins. Co. v. Frost, 37 Ill. 333 Connecticut Mut. Life Ins. Co. v. New York & N. H. R. Co., 25 Conn. 265; Swarthout v. Chicago & N. W. R. Co., 49 Wis. 625, 1 Am. & Eng. R. Cas. 625. The principle is thus stated by Lord BLACKBURN in Burnand 2. Rodocanachi, L. R. 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." Castellain v. Preston, 11 Q. B. Div. 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 this litigation. The action was well brought in the name of the plaintiff, pursuant to its agreement with the insurance companies.

grounds of

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 re- Agreement spect to drawing room and sleeping cars furnished not void on by it to the defendant, supplemented by the stipu- public policy. lation 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 inju rious to the public. Oregon Steam Navigation Co. v. Winsor, 20 Wall, 64, 66; Chappel v. Brockway, 21 Wend. (N. Y.) 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, 23 Am. & Eng. R. Cas. 545. 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. It is, however, a fundamental condition in all such contracts that their provisions must not be injurious to the public. As said by this court in Cherokee Nation v. So. Kan. R. Co.,135 U. S. 641,657, 44 Am. & Eng. R. Cas. 26, a railroad is a public highway, established primarily for the convenience of the people and to subserve public ends. A railroad corporation cannot, therefore, without the sanction of the government creating it," make any agreement that militates against the public convenience, or that will defeat the public objects for which it was established. If the contract in suit was liable to objection upon these grounds, a different question would be presented for our determination. But we are of opinion that public policy did not forbid the railroad company from employing the Pullman Southern Car Company to supply drawing room and sleeping cars to be used by its passengers, and, as a means of inducing the plaintiff to perform this public service and to incur the expense and hazard incident thereto from giving it an exclusive right to furnish cars for that purpose. The defendant did not, by such an agreement, abandon the duty it owed to the public; for the cars so furnished while in its possession and use, became, as between it and its passengers, its own cars, subject to such regulations as it might properly establish for the comfort and safety of passengers on its trains. Pennsylvania Co. v. Roy, 102 U. S. 451, 457, I Am. & Eng. R. Cas. 225. And the contract is to be interpreted in view of the condition, implied by law, that the plaintiff should furnish cars not only adequate and safe, but sufficient in number for the use of the public desiring to travel over the defendant's roads. These conditions exist

independently of the particular clause giving the railroad company the option to terminate the agreement at the end of five or eight or eleven years. Being imposed by law, as necessary to the public interests, they could not be dispensed with by agreement of the parties. The designation of particular periods of time, at the end of either of which the defendant might, of right and upon notice, terminate the agreement, did not tie its hands so that it could not continuously discharge its duty to the public in respect to the adequacy or safety of cars in which it conveyed passengers. The stipulation, therefore, that the plaintiff, not being in default, should have the exclusive right for 15 years to furnish drawing room and sleeping cars for the defendant's use, and that the defendant should not, during that period, contract for cars of that kind with any other party, rightly construed, is not unreasonable, and properly performed, will promote the convenience of the public, in that it enables the defendant to have on its lines, at all times, and as the requirements of travel demand, drawing room and sleeping cars for use by passengers. It is a stipulation that does not interfere in any degree with its right and duty to disregard the contract whenever the plaintiff fails in furnishing cars that are adequately safe and sufficient in number for the travel on defendant's lines. The suggestion that the agreement is void upon grounds of public policy or because it is in general restraint of trade, cannot, for the reasons stated, be sustained. Besides it is not clear that the agreement is so far indivisible that the stipulation giving the plaintiff the exclusive rights in question, and binding the defendant not to make similar contracts with other parties for drawing room and sleeping cars to be used on its lines, cannot be separated from the other provisions. If that stipulation were held to be void, upon the grounds suggested, we should be inclined to hold that, as between the parties, the provision making the railroad company liable for loss or damage, arising from casualty or accident, to the plaintiff's cars, while in the possession of and subject to use by the defendant, remained in force. Erie R. Co. v. Union Locomotive & Exp. Co., 35 N. J. Law, 246.

Railroad lia

4. There can be no doubt that the railroad company was, under the evidence, liable to the plaintiff on account of the loss by fire of the Louisiana. The contract covered cars that were assigned by the plaintiff to the defendant's use, while they were in actual transit over its lines or over the lines of other companies on whose roads they were sent by the defendant. It equally covered such as were under the defendant's im47 A. & F. R. Cas.-28

ble for loss of cars in its pos

session.

mediate control while in its own yards or sheds for the purpose simply of being cleansed and resupplied for another trip when the defendant chose to put them in actual service. That was the situation at the time of the loss by fire of the Louisiana. It had a few hours before come from active service on the defendant's road, and, but for its destruction, would have been put upon the road for another trip in the afternoon of the very day of the fire. Such a case is plainly embraced by both the letter and spirit of the contract. Á peremptory instruction to find for the plaintiff in respect to the Louisiana would not have been erroneous.

5. The remaining instructions involved the liability of the defendant on account of the destruction by fire of the car

But not for loss of car in plaintiff's shop.

Great Northern. The defendant asked the court to instruct the jury as follows: "That if the jury believe from the evidence that the defendant company, by arrangement with the plaintiff company, in the year 1879, set apart at their depot in the city of New Orleans a certain portion of said depot for the exclusive use and benefit of plaintiff as a repair shop, wherein the cars of the plaintiff mentioned in the contract sued on were to be repaired by the plaintiff at its own expense, and the said space was inclosed, fastened, and locked, and the keys thereof were kept by the plaintiff or its agents so that access thereto by the defendant or its agents was only such. access as was necessary to enable the defendant company to take possession of repaired cars when tendered for service by the plaintiff, and that at the time of the fire, on the 27th of May, 1882, the car Great Northern was in the said repair shop, and had been there for a period exceeding six months, for the purpose of being repaired, and that at the time of the fire said car had not been tendered for service as a car completely repaired and equipped for service to the defendant, although ready to be tendered, then the jury must find that the defendant is not liable for the loss of the said car Great Northern, or for any damage thereto by fire aforesaid." This instruction was refused, except with this modification: "Unless the jury further find that the said car had been withdrawn from the dominion of the contract, and it was held, according to the understanding of both parties, for some other purpose, that is, for some other purpose than those of the contract." The court, in its general instructions to the jury, said: "It was undoubtedly competent for the parties to this action to have withdrawn their cars from the dominion of the contract, but to constitute such a withdrawal there must be the intent of the plaintiff to retain them for some purpose other than to continue their use under the con