The opinion of the court was delivered by
Mr. Justice McGowan.
The plaintiffs are husband and wife, and they brought this action for damages to the plaintiff, Rebecca Smith, for having been, as alleged, wrongfully ejected from the “waitiug room” of the South Carolina Railway at Graniteville, S. C. The following is a condensed statement of the allegations of the plaintiffs: Ou September 13, 1890, the plaintiff, Rebecca, being at Graniteville, and desiring to take passage on a passenger train for Aiken, S. C., went into the passenger room, at the Graniteville depot, commonly occupied by lady passengers while waiting the arrival of trains over-said railway, for the purpose of purchasing a ticket to Aiken; that she approached the window in said room where tickets were sold, and asked the agent, Fishburne, for a ticket to the desired destination; that the said agent refused to sell her a ticket, and ordered her out of the room, into one commonly occupied by male passengers. Said plaintiff refused to go into said room, and, upon her refusal so to do, the said agent, Fishburne, proceeded, in a rough and violent manner, to eject her from said waiting room, &c.
The defendant answered, admitted that he is receiver of the Soutli Carolina Railway Company, appointed by the Circuit Court of the United States, and denied each and every other allegation of the complaint. 2. For a second defence: That the court has no jurisdiction to try this action, the defendant being a receiver appointed by the United States Circuit Court, and-this action ought to have been brought therein, and ought to be transferred thereto. 3. For a third defence: That the Court of Common Pleas for Aiken County has no jurisdiction to try this action, because said county is not the residence of the defendant, who resides in the County of Charleston, &c.
.The cause came on for trial before his houor, Judge Izlar, and a jury. Both sides made requests to charge, so me of which were charged, some were refused, and others were modified. But it will not be necessary to notice any of them, except those to which objection is made in the exceptions of the plaintiffs. [541]*541The whole charge of the judge ought to appear in the report of the case. The jury, under the judge’s charge, found for the defendant, aud the plaintiffs appeal on these grounds:
1. That his honor erred in permitting the witness, Fishburne, to testify as to there being a rule which assigued separate rooms to the white and colored persons at the Granite-ville depot, such evidence not being responsive to the issue contained in the pleadings, and being in the nature of a defence of “confession and avoidance,” could not properly be considered by the jury under the pleadings.
2. Because a rule separating white and colored persons in different rooms at the depot could not be made by the station agent at the depot, unless it was also shown that such rule was adopted by the defendant, and his honor erred in ruling that such a rule could be proved simply by showing that the depot agent at Graniteville had established the same.
3. Because his honor, the presiding judge, erred in charging the jury, “that under a general denial, wheu the plaintiff alleges that she was unlawfully ejected, the defendant may give in evidence any testimony tending to show that such ejectment was not unlawful,” for it is submitted that if the defendant relies upon a rule of the defendant company to justify the conduct of its agents, such rule should be pleaded.
4. Because it was error to charge the jury that the depot agent had the right to make the rules governing his station, for it is submitted that such rules, to affect the public, must be something more than a rule of the agent; it must be shown that it was a rule promulgated, or at least ratified, by the defendant.
5. Because a regulation adopted by a railroad agent in his own mind, without showing for what time it is to apply, or that it is to be regularly enforced at all, and without any evidence of its being posted, or public notice of the same being-given, is au unreasonable rule, and his honor, the presiding judge, erred in not so charging; and he also erred in charging that such regulation would be reasonable.
■ 6. Because his honor, the presiding j udge, erred i n refusing to charge the plaintiff’s first, second, and third requests to charge.
[542]*5427. Because be erred in charging the defendant’s first request and the second request as modified.
8. Because his honor erred in charging the defendant’s third request, for, under the evidence of this case, the plaintiff had a lawful right in the “waiting room’’ for the purpose of purchasing a ticket, and while in there for that purpose, she had the right to disregard the agent’s request to leave the room.
9. A room to be equal in accommodations with another, in which chewing and smoking are not allowed, must be exempt by rule from chewing and smoking in it. It is not enough that it so happened that neither is being done while the passenger is in the room, to declare, for that reason, that the rooms are equal in accommodation. The true test is, are the regulations for the convenience, conduct, and order the same, or different for the two rooms? And if the regulations are different, then the rooms cannot be said to be equal in accommodation; and his honor erred in not so charging. He also erred in charging the jury, that they might judge of the equality of the accommodations of the rooms, from the fact, whether or not smoking or chewing were going on in the room at the time plaintiff was ordered into said room.
1 Exceptions 1 and 3 raise a question of evidence, whether, under the state of the pleadings, proof was admissible, that there was a rule of procedure in the depot at Granite-ville as to the place where tickets were sold to different persons. As we understand it, the point is, that testimony to prove the existence of such a rule was inadmissible under the “general denial,” being, as alleged, in the nature of a defence of confession and avoidance, which must be pleaded specially. Our Code of Procedure does not recognize special pleas. It allows only one form of action, and special pleas are not admitted. But if it were otherwise, I do not think that this is a case for such a plea. The action is not against Fishburne, the party who, as alleged, committed the wrong complained of, but against D.'H. Chamberlain, as receiver of the South Carolina Railway, the purpose being to make him or the company he represents liable civiliter in damages for the act of the depot agent at Graniteville. ■ I cannot see why Mr. [543]*543Chamberlain, in a civil proceeding, should be required to file “a confession” of an act he never committed. Under the Code, the general denial puts in issue every fact alleged in the complaint, and the plaintiffs here alleged that Mr. Fishbnrne was the depot agent of the company at Graniteville; that the plaintiff Rebecca applied to him to sell her a ticket, but he refused, and ordered her to go into the room allotted to “male passengers,”and upon her refusal to do so, the agent came into the room and approached the said Rebecca, and unlawfully, iu a rude and violent manner, ordered her to get out of said room, and upon her refusal to leave, caught hold of her, and, in a rough and unlawful manner, forced the said plaintiff to leave the room, &c. The denial of the defendant put the allegations in issue, and he offered evidence tending to show that the agent Fishburne did not
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The opinion of the court was delivered by
Mr. Justice McGowan.
The plaintiffs are husband and wife, and they brought this action for damages to the plaintiff, Rebecca Smith, for having been, as alleged, wrongfully ejected from the “waitiug room” of the South Carolina Railway at Graniteville, S. C. The following is a condensed statement of the allegations of the plaintiffs: Ou September 13, 1890, the plaintiff, Rebecca, being at Graniteville, and desiring to take passage on a passenger train for Aiken, S. C., went into the passenger room, at the Graniteville depot, commonly occupied by lady passengers while waiting the arrival of trains over-said railway, for the purpose of purchasing a ticket to Aiken; that she approached the window in said room where tickets were sold, and asked the agent, Fishburne, for a ticket to the desired destination; that the said agent refused to sell her a ticket, and ordered her out of the room, into one commonly occupied by male passengers. Said plaintiff refused to go into said room, and, upon her refusal so to do, the said agent, Fishburne, proceeded, in a rough and violent manner, to eject her from said waiting room, &c.
The defendant answered, admitted that he is receiver of the Soutli Carolina Railway Company, appointed by the Circuit Court of the United States, and denied each and every other allegation of the complaint. 2. For a second defence: That the court has no jurisdiction to try this action, the defendant being a receiver appointed by the United States Circuit Court, and-this action ought to have been brought therein, and ought to be transferred thereto. 3. For a third defence: That the Court of Common Pleas for Aiken County has no jurisdiction to try this action, because said county is not the residence of the defendant, who resides in the County of Charleston, &c.
.The cause came on for trial before his houor, Judge Izlar, and a jury. Both sides made requests to charge, so me of which were charged, some were refused, and others were modified. But it will not be necessary to notice any of them, except those to which objection is made in the exceptions of the plaintiffs. [541]*541The whole charge of the judge ought to appear in the report of the case. The jury, under the judge’s charge, found for the defendant, aud the plaintiffs appeal on these grounds:
1. That his honor erred in permitting the witness, Fishburne, to testify as to there being a rule which assigued separate rooms to the white and colored persons at the Granite-ville depot, such evidence not being responsive to the issue contained in the pleadings, and being in the nature of a defence of “confession and avoidance,” could not properly be considered by the jury under the pleadings.
2. Because a rule separating white and colored persons in different rooms at the depot could not be made by the station agent at the depot, unless it was also shown that such rule was adopted by the defendant, and his honor erred in ruling that such a rule could be proved simply by showing that the depot agent at Graniteville had established the same.
3. Because his honor, the presiding judge, erred in charging the jury, “that under a general denial, wheu the plaintiff alleges that she was unlawfully ejected, the defendant may give in evidence any testimony tending to show that such ejectment was not unlawful,” for it is submitted that if the defendant relies upon a rule of the defendant company to justify the conduct of its agents, such rule should be pleaded.
4. Because it was error to charge the jury that the depot agent had the right to make the rules governing his station, for it is submitted that such rules, to affect the public, must be something more than a rule of the agent; it must be shown that it was a rule promulgated, or at least ratified, by the defendant.
5. Because a regulation adopted by a railroad agent in his own mind, without showing for what time it is to apply, or that it is to be regularly enforced at all, and without any evidence of its being posted, or public notice of the same being-given, is au unreasonable rule, and his honor, the presiding judge, erred in not so charging; and he also erred in charging that such regulation would be reasonable.
■ 6. Because his honor, the presiding j udge, erred i n refusing to charge the plaintiff’s first, second, and third requests to charge.
[542]*5427. Because be erred in charging the defendant’s first request and the second request as modified.
8. Because his honor erred in charging the defendant’s third request, for, under the evidence of this case, the plaintiff had a lawful right in the “waiting room’’ for the purpose of purchasing a ticket, and while in there for that purpose, she had the right to disregard the agent’s request to leave the room.
9. A room to be equal in accommodations with another, in which chewing and smoking are not allowed, must be exempt by rule from chewing and smoking in it. It is not enough that it so happened that neither is being done while the passenger is in the room, to declare, for that reason, that the rooms are equal in accommodation. The true test is, are the regulations for the convenience, conduct, and order the same, or different for the two rooms? And if the regulations are different, then the rooms cannot be said to be equal in accommodation; and his honor erred in not so charging. He also erred in charging the jury, that they might judge of the equality of the accommodations of the rooms, from the fact, whether or not smoking or chewing were going on in the room at the time plaintiff was ordered into said room.
1 Exceptions 1 and 3 raise a question of evidence, whether, under the state of the pleadings, proof was admissible, that there was a rule of procedure in the depot at Granite-ville as to the place where tickets were sold to different persons. As we understand it, the point is, that testimony to prove the existence of such a rule was inadmissible under the “general denial,” being, as alleged, in the nature of a defence of confession and avoidance, which must be pleaded specially. Our Code of Procedure does not recognize special pleas. It allows only one form of action, and special pleas are not admitted. But if it were otherwise, I do not think that this is a case for such a plea. The action is not against Fishburne, the party who, as alleged, committed the wrong complained of, but against D.'H. Chamberlain, as receiver of the South Carolina Railway, the purpose being to make him or the company he represents liable civiliter in damages for the act of the depot agent at Graniteville. ■ I cannot see why Mr. [543]*543Chamberlain, in a civil proceeding, should be required to file “a confession” of an act he never committed. Under the Code, the general denial puts in issue every fact alleged in the complaint, and the plaintiffs here alleged that Mr. Fishbnrne was the depot agent of the company at Graniteville; that the plaintiff Rebecca applied to him to sell her a ticket, but he refused, and ordered her to go into the room allotted to “male passengers,”and upon her refusal to do so, the agent came into the room and approached the said Rebecca, and unlawfully, iu a rude and violent manner, ordered her to get out of said room, and upon her refusal to leave, caught hold of her, and, in a rough and unlawful manner, forced the said plaintiff to leave the room, &c. The denial of the defendant put the allegations in issue, and he offered evidence tending to show that the agent Fishburne did not use force; that the room she was iu was not “the ladies’ room,” but one for the use of the “whites,” and ■that the other room referred to was not for “males,” but for “blacks” of both sexes; and that there was a regulation so designating the rooms, of which she was informed. We concur with the Circuit Judge, that this was fairly in response to the issue and testimony of the plaintiff, and in rebuttal of the allegation of unlawful ejectment.
2 Exceptions 2, 4, 5, 6, 7, and 8, including the refused requests to charge, may all be considered together, as, in different forms, they are all upon the same general subject, and make the point, that it was error to charge that a depot agent, in charge of the houses, offices, and grounds connected with the depot, has the power, as incident to his position, without the express authority or ratification of his company, to make a regulation requiring white and colored persons to purchase their tickets in different rooms, without posting it or giving-previous formal notice. The judge did substantially so charge; but be left it to the j ury to decide whether Fishbnrne, the agent, was in unrestricted control of the depot; whether he established such a regulation as to his manner of doing business; whether he informed the plaintiff of the existence of such a regulation, and. whether equal accommodations were provided in. both rooms.
[544]*544The statute law of the State does not undertake to fix the conduct of business at railroad depots, but, after announcing certain general principles, leaves the details to the officers of the company as long as they make reasonable regulations. Section 1494 of the Geueral Statutes declares that “railroads shall erect and keep at every office where tickets are sold two good rooms or apartments of reasonable size for the amount of travel at such office, which shall be provided with comfortable seats, for the accommodation of passengers,” &c. Section 1502, General Statutes, provides “that every railroad company shall provide reasonable accommodations for the convenience and safety of passengers.” And by section 1516, “Station or depot agents are hereby declared conservators of the peace, and they and each of them shall have the same power to make arrests that a constable now has,” &c.
We think the authorities cited show conclusively that it is settled that depot agents have the power, as incident to the office, to make reasonable regulations as to the conduct of business at their depots respectively, unless restricted, limited, or controlled in that respect. See 1 Redf. Rail., sec. 2 (5th edit.); Commonwealth v. Power, 7 Metc., 596, reported in 41 Am. Dec., 465. This last case is so precisely in point, and so full, that we ask indulgence for giving a larger extract from the judgment of Chief Justice Shaw than is usual. He said: “The court áre of opinion that the railroad corporation, both as the owners and proprietors of the houses and buildings connected with the railroads, and as carriers of passengers, have authority to make reasonable and suitable regulations in regard to passengers intending to pass and repass on the road in the passenger cars, and in regard to all other persons making use of such houses and buildings. This authority is incident to such ownership of the real estate, and to their employment as passenger carriers; and all such' regulations will be deemed reasonable which are suitable to enable them to perform the duties they undertake, and to secure their own just rights in such employment, and also such as are necessary and proper to insure the safety and promote the comfort of passengers. * * * We are also of opinion that the power which the [545]*545company has to regulate their several depots they may delegate to suitable officers. Indeed, it is the only mode in which a corporation can exercise their powers. And when they have appointed a superintendent, with authority, by himself and his assistants, to have charge of the depot and manage its concerns, it is incident to this authority to exclude, or direct the exclusion of, persons who persist in violating the reasonable regulations prescribed, and thereby interrupt the officers and servants of the company in the discharge of their respective duties. * * * That this power and authority of the corporation extended to the reasonable regulation of the conduct of all persons using the railroad, or having occasion to resort to the depots for any purpose; that this power was pro-. perly to be exercised by a superintendent adapting his rules . and regulations to the circumstances of the particular depot under his charge; and that it was not necessary that such regulations should be prescribed by by-laws of the corporation; that the opening of depots and platforms for the sale of tickets, for the assembling of persons going to take passage or landing from the cars, amounts in law to a license to all persons, prima facie, to enter the depot, and that such entry is not a trespass; but it is a license conditional, subject to useful and reasonable regulations; and on non-compliance with such regulations, the license is revocable, and may be revoked, either as to an individual or as to a class of individuals, by actual or constructive notice to that effect,” &c.
To this case' of Power, as reported in 41 Am. Dec., supra, there is a note upon the kindred subject of railroad cars for the races, as follows: “A rule providing for the separation of white and colored passengers, by seating them in different cars, or in different parts of the same car, is, in the absence of any statute to the contrary, undoubtedly reasonable, if it is for the accommodation of the passengers generally, and if owing to a repugnance between the races, a promiscuous seating of persons belonging to each is likely to' promote tumult or disorder, provided that the accommodations afforded to each are substan- _ tially equal. In the case of Heard v. The Georgia R. R. Company, 1 Inter-State Com. Rep., 426, the law is stated as follows: [546]*546“Separation of white and colored passengers paying the same fare is not unlawful, if accommodations equal in all respects are furnished to both, and the same care and protection observed. Circumstances and conditions may exist to justify such separation, and it may be in the interest of both that it should be done.”
3 As to exception 9, we cannot say that the judge committed error in holding that, if no chewing and smoking were going on at the time in the room to which the plaintiff, Rebecca, was directed, the mere circumstance that there had been at some time chewing and smoking in that room, and not the other, was not conclusive of the question whether the accommodations of the two rooms “were substantially equal.”
The judgment of this court is, that the judgment of the Circuit Court be affimed.