« AnteriorContinuar »
ceivers of a railway company to construct manager was appointed, so far as the sanie a street crossing over its tracks, and on shall be necessary to the ends of justice.” that subject said: “It
be conceded In other words, the purpose of Congress in that all the property of the company in the rassing the act was to advance the remedy hands of the receiver, including the reve. for the enforcement of a right, and the nues derived from its use, is held in trust act should receive an interpretation at the for the benefit of the creditors of the com- hands of the court as liberal as was the pany. But it does not follow that they can purpose of Congress when it passed the act. control the expenditures of money and the ! A remedial statute is entitled to receive an use of the property in all cases. It is for enlightened and liberal construction. the general benefit of all the parties in inter- ! 8. We are not inclined to the view that est that the railway of the company be the order under consideration is void beoperated, and that its tracks and appurte-cause it does not fix the exact spot upon nances be kept in a proper condition for which the station is to be built. The territhat purpose.'
tory within which the station is to be locatThis proceeding, in so far as the insol. ed is fixed with definiteness, and the appelvent railroad company is concerned, as al- lees should not complain because they are ready stated, grows out of the neglect of allowed reasonable latitude as to the exact its receivers to obey one of the general laws spot upon which the station is to be located. of this state, which law has become opera- | It seems to us, that the order, with tive in the city of Bessemer by virtue of sufficient definiteness, apportions the cost of the order of the Railroad Commission. For the proposed station among the various their neglect or refusal to obey or carry railroads. The books of the various railout the terms of this law, these receivers, roads necessarily show the amount of the or the railroad company of which they are passenger business of each railroad at receivers, are liable to a penalty fixed by Bessemer during the twelve months next the act. For the collection of this penalty, preceding the date of the order. undoubtedly an action, without first ob- Neither are we of the opinion that the taining leave of the court in which the re- crder is invalid or not final because of its ceivers were appointed, would lie. High on failure to require the building to be erectReceivers, 4th ed. p. 542, § 395b, and au- ed according to plans and specifications furthorities cited. And as this proceeding is to nished by the Commission. The order reconfer action on the part of the receivers quires the appellees to build an “adequate in a matter growing out of their manage passenger station,” and, when that order is ment of the property as receivers, and re- met, the appellees will have complied with quired of them by the law of this state, we the letter of the order. The appellees, man
reason why the above-quoted aged as they are by practical railroad men, Federal statute does not apply to this case. know how many passenger trains enter and High, Receivers, 4th ed. supra.
leave Bessemer each day, and they can, The above Federal act authorizing suits when they proceed to comply with the against receivers without the leave of the order, be presumed to know how to concourt in which they were appointed pro- struct a passenger station sufficient to meet vides that such suits “shall be subject to the requirements of the order. The mere the general equity jurisdiction of the court fact that the order has left certain details, in which such receiver or manager was ap- , in complying with the terms of the order, pointed, so far as the same shall be neces- to the reasonable discretion of appellees, sary to the ends of justice;” and, as this should in no way affect the validity of the is true, the act, being remedial in its nature postive command that appellees construct, and at the same time preserving in the for their joint use, an adequate union court in which the receivers were appointed passenger station at Bessemer. that general equity jurisdiction over all It follows from what we have above said suits brought against them “necessary to that we are of the opinion that the petition the ends of justice," should be given, not i of appellant was not subject to the demura narrow, but a liberal, interpretation in rer which was interposed to it by the appelorder that the purpose of Congress, in lees. The judgment of the court below is passing the act, may be given effect. The therefore reversed, and the cause is remandreal purpose of the act is shown by $ 2 ed to the court below for further proceedthereof, which in effect places all receivers ings not inconsistent with the views above of corporations, who are appointed in Fed- expressed. cral courts, and all such corporations, upon the same footing with reference to valid Dowdell, Ch. J., and Anderson and state laws as similar corporations not in Mayfield, JJ., concur. the hands of receivers; subject, however, at all times, to "the general equity jurisdic- Petition for rehearing denied December tion of the court in which such receiver or 118, 1913.
COLORADO SUPREME COURT. Ft. S. & M. R. Co. v. Patten, 3 Kan. App.
338, 45 Pac. 108; Louisville, C. & L. R. Co. DENVER & RIO GRANDE RAILROAD v. Mahan, 8 Bush, 184; Graves v. FitchCOMPANY, Plff, in Err.,
burg R. Co. 29 App. Div. 591, 51 N. Y.
Supp. 636; Quimit v. Henshaw, 35 Vt. 605, MARY M. DOYLE.
84 Am. Dec. 646; Chicago & A. R. Co. v. (- Colo. 145 Pac. 688.)
Addizoat, 17 Ill. App. 632; Roth v. Buffalo
& State Line R. Co. 34 N. Y. 548, 90 Am. Carrier loss of baggage
Dec. 736; Wiegand v. Central R. Co. 75 Fed. claiming – inability to procure sleep. 370; Galveston, H. & S. A. R. Co. v. Smith, ing car accommodations.
81 Tex. 479, 17 S. W. 133; Kahn v. AtlanA passenger who does not claim his bag- tic & N. C. R. Co. 115 N. C. 63S, 20 S. E. gage at destination until forty-eight hours 169; Levi v. Missouri, K. & T. R. Co. 157 after its arrival cannot hold the carrier Mo. App. 536, 138 S. W. 699; Nealand v. liable as insurer for loss of the baggage Boston & M. R. Co. 161 Mass. 67, 36 N. E. twenty-four hours before by burglary, although he failed to reach destination earlier 592; Houston, E. & W. T. R. Co. v. An
147 S. W. because of inability to procure sleeping car accommodations, if he did not notify the 353; George F. Ditman Boot & Shoe Co. carrier that he would not accompany the v. Keokuk & W. R. Co. 91 Iowa, 416, 51 baggage.
Am. St. Rep. 352, 59 N. W. 257; Denver
& R. G. R. Co. v. Peterson, 30 Colo. 77, (January 4, 1915.)
97 Am. St. Rep. 76, 69 Pac. 578.
Mr. R. G. Lucas also for plaintiff in RROR to the Mesa County Court to re
Messrs. Henry R. Rhone and J. H. an action brought to recover damages for Burkhardt for defendant in error. failure of defendant to deliver a suit case when called for, which was received by it
Garrigues, J., delivered the opinion of as baggage for transportation. Reversed.
the court: The facts are stated in the opinion. This action for damages is on account
Messrs. E. N. Clark and G. P. Steele, of the failure of the railroad company to for plaintiff in error:
produce and deliver a suit case when it A passenger should demand his baggage was called for, which it, as a common carwithin a reasonable time after it has rier, had received as baggage for transarrived at destination; failing in that, the portation. liability of the carrier
insurer 1. The facts are admitted, and there is no changes to that of a warehouseman, and conflict in the testimony. Mary M. Doyle negligence on its part must be shown. came to Denver August 9, 1911, from her
4 Elliott, Railroads, 2d ed. § 1659; 3 home in Clifton, Colorado, where she had Hutchinson, Carr. 3d ed. § 1285; 2 Redf. purchased a round-trip ticket over the DenRailways, & 171; 6 Cyc. 672; Chicago, R. I. ver and Rio Grande Railroad. She started & P. R. Co. v. Boyce, 73 Ill. 510, 24 Am. to return on the evening of the 14th, and Rep. 268; Schnitzmeyer v. Illinois C. R. upon arriving at the Union Depot first Co. 147 Ill. App. 101; Kansas City, Ft. S. checked her suit case to Clifton, and then & M. R. Co. v. McGahey, 63 Ark. 344, 36 went to the Pullman office to secure L.R.A. 781, 58 Am. St. Rep. 111, 38 S. W. sleeper berth, which she was unable to do, 659, 1 Am. Neg. Rep. l; Hoeger v. Chi- for the reason that they were all sold. cago, M. & St. P. R. Co. 63 Wis. 100, 53 Feeling that she was physically unable to Am. Rep. 271, 23 N. W. 435; Kansas City, travel at night without Pullman accommo
dations, she remained in Denver without inNote. As to carrier's liability for bag, forming the company that she did not ingage after reaching destination, see notes tend to travel on the same train with her to Kansas City, Ft. S. & M. R. Co. v. McGahey, 36 L.R.A. 781; Chesapeake & o: baggage, and the next morning, the 15th, R. Co. v. Beasley, 3 L.R.A. (N.S.) 183 ; and went to Colorado Springs, where she enMilwaukee Mirror & Art Glass Works v. deavored to secure a berth on the night Chicago, M. & St. P. R. Co. 38 L.R.A.(N.S.) train, and was again informed that they 383; and see references in last-mentioned were all sold. She remained at Colorado note for annotation on related questions. Springs until the morning of the 16th, se
Generally as to liability of carrier for cured a sleeper, and left that night, arrivbaggage not accompanied by passenger, see notes to Marshall v. Pontiac, o. & N. R. Coing at Clifton on the afternoon of the 17th, 55 L. R. A. 650, and Southern R. Co. v. Din: where she called for her baggage, which the kins & D. Hardware Co. 43 L.R.A.(N.S.) company failed to deliver, and later she 806; and later case Alabama G. S. R. Co.
was informed by the agent that the depot v. Knox, 49 L.R.A.(N.S.) 411.
had been burglarized the night before and
her suit case stolen. In the court below, that as a warehouseman, it was its duty plaintiff tried the case upon the theory that to store the baggage in a room reasonably under these facts the company was account. safe and secure, used for that purpose; able as a common carrier and insurer of that where a railroad company places unthe baggage, without proof of negligence, called-for baggage in its storeroom where it and rested without attempting to prove is its custom to place uncalled-for baggage, negligence. Defendant then interposed a and such room appears to be reasonably motion for a nonsuit upon the ground that secure for its safekeeping, the railroad comit was not liable as an insurer or common pany will not be liable unless guilty of neg. carrier; that it was only accountable to the ligence which caused the loss; and if they plaintiff as a bailee or warehouseman, and, found for plaintiff, the measure of damno negligence having been shown, plaintiff ages would be the value, for use by the could not recover. This motion was over plaintiff, of the property lost, at the time ruled. Defendant then introduced its evi- and place of its loss, together with legal dence from which it appeared that Clifton interest thereon from that date, all damwas a small day station, the agent remain., ages having been waived except those coming on duty from 8 a. M. to 8 P. M.; that ing within the above rule. the suit case in question arrived on the 2. The undisputed testimony shows: Auafternoon of the 15th, and, being unclaimed, gust 14, 1911, plaintiff, at the Denver Union it was stored in the baggage room used for ' Depot, checked her suitcase to Clifton, that purpose; that on the night of the 16th where it arrived August 15th, at 1:45 P. the depot was burglarized and the suit M.; it was uncalled for on its arrival, and case, with other property, stolen; that the the agent placed it in the baggage room of depot was a substantial building with doors the depot; during the night of August 16th, and windows equipped with ordinary locks' the depot was burglarized, and the suit and fastenings; that when the agent left case, with other articles, stolen; August at 8 o'clock on the night of the 16th, the 17th plaintiff arrived at Clifton at 1:10 doors and windows were securely locked and P. M., and called for the baggage, which the fastened; that the next morning it was dis- company failed to deliver, because it had covered that an entrance had been forced been stolen; that the station was a subthrough window and the building stantial building, and no negligence was burglarized.
shown in caring for the baggage, which The court, in its instructions, after stat. occasioned its loss. Plaintiff tried the case ing the issues, told the jury that they upon the theory of the company's liability should determine from the evidence and as a common carrier and insurer. The the. circumstances whether plaintiff called for ory of the defendant was that its liability her baggage within a reasonable time after as a common carrier terminated long before it arrived at Clifton; that what constituted plaintiff called for the baggage, and had a reasonable time for her to remove it after changed or shifted to that of a bailee or it arrived was a question of fact which warehouseman before the property should be determined by the jury; and in stolen, and that it was only liable as that connection that they might consider warehouseman upon proof of negligence whether her failure to demand her baggage which caused the loss. sooner was because of the inability or fail. 3. Plaintiff's railroad fare covered transure of the company to furnish her proper portation for herself and baggage to Clifand suitable accommodations for travel, i ton, and ordinarily it is presumed that considering her state of health at the time; i baggage and passenger will go by the same that the liability of the company terminated train, and that the baggage will be called
common carrier after her baggage for within reasonable time after the arrived at Clifton and a reasonable time arrival at its destination. Marshall had elapsed to remove it; that if she failed Pontiac, O. & N. R. Co. 126 Mich. 45, 55 to remove her suit case after a reasonable L.R.A. 650, 85 N. W. 242; Blumenthal v. time after it arrived, the liability of the Maine C. R. Co. 79 Me. 550, 11 Atl. 605 ; company shifted or changed from that of Wilson v. Grand Trunk R. Co. 56 Me. 60, 96 a common carrier to that of a warehouse Am. Dec. 435. man; that as a warehouseman, the company 4. While the company had charge of the was only bound to use that degree of care baggage as a common carrier, it was an and attention which a ma
man of ordinary insurer of the property, and must pay for prudence and diligence would in its value if it failed to deliver it while reference to the goods, under the circum- held in this capacity. stances, if they were his own; and if the It was the duty of the company to have
storing and caring for the goods, it would reasonable time after it reached its desti
not be liable in case of loss by burglary; 'nation, and it was the duty of the plaintiff
to take it away within a reasonable time. I houseman, because there was no proof of If the baggage remained uncalled for, it negligence. was the duty of the defendant to store it 7. Plaintiff attempted to show, as a spein the baggage room at the station or in cial circumstance excusing her from some other suitable place, and if plaintiff moving the baggage on the afternoon of the failed to take it away within a reasonable day it arrived, that she endeavored to, but time after its arrival, the liability of the could not, get a sleeper until the night company as a common carrier and insurer of the 16th, and did not feel able to travel changed or shifted to that of a bailee or without one. In this way she sought to exwarehouseman. It then held the property tend the reasonable time to remove the bagin storage; its liability as an insurer or gage after it arrived at Clifton. If plaincommon carrier 'no longer existed, and in tiff had used ordinary care, thoughtfulness, case of its loss, plaintiff could only recover and prudence, it must have occurred to her against the company as a warehouseman, that if she waited until a few minutes beupon proof that its negligence caused the fore train time, she might have difficulty, loss. 4 Elliott, Railroads, 2d ed. § 1659; at that season of the year, in securing a 3 Hutchinson, Carr. 3d ed. $S 1285 et seq.; berth. Without making any inquiry or 2 Redf. Railroads, $ 171; 6 Cyc. 672. knowing whether or not she could procure a 5. A reasonable time
sufficient berth, she first went to the baggage room time within reason to remove baggage after and checked her suit case, expecting and init, not the passenger, arrives. Where the tending to take the same train upon which facts are not disputed, what constitutes a it would go. Learning, upon inquiry, that reasonable time for a passenger to remove she could not get a berth, she decided not his baggage after arriving at its destination to take that train, but to wait until she is a question of law which the court must could secure sleeper accommodations. She determine. Denver & R. G. R. Co. v. allowed her baggage to go on, and it Peterson, 30 Colo. 77–87, 97 Am. St. Rep. reached its destination two days in ad76, 69 Pac. 578; Chicago, R. I. & P. R. Co. vance of her arrival, when she could easily v. Bovce, 73 Ill. 510, 24 Am. Rep. 268; have checked it for the train on which she Schnitzmeyer v. Illinois C. R. Co. 147 III. was to travel. Under such circumstances, App. 101; Kansas City, Ft. S. & M. R. Co. all the company could do was to store it v. Patten, 3 Kan. App. 333, 45 Pac. 108; in its baggage room on its arrival. There Louisville, C. & L. R. Co. v. Mahan, 8 Bush, was no delinquency on the part of the com184; Graves v. litchburg R. Co. 29 App. pany in transporting either plaintiff or her Div. 591, 51 N. Y. Supp. 636; Quimit v. baggage which would excuse her for not Henshaw, 35 Vt. 605, 84 Am. Dec. 646; calling for and removing it without delay Chicago & A. R. Co. v. Addizoat, 17 I. , upon its arrival, or which would extend App. 632; Galveston, H. & S. A. R. Co. v. the reasonable time for its removal after Smith, 81 Tex. 479, 17 S. W. 133; Kahn v. it arrived. It was the fault of the passen. Atlantic & N. C. R. Co. 115 N. C. 638, 20 ger that the baggage was not called for and S. E. 169; George F. Ditman Boot & Shoe delivered upon its arrival. Co. v. Keokuk & W. R. (o. 91 Iowa, 416, By motion for a nonsuit, by requested in51 Am. St. Rep. 352, 59 N. W. 257. structions, by a request for directed
6. The court left the jury to determine verdict, and by motion for a new trial, the from all the admitted facts and circum- court was given ample opportunity to have stances whether plaintiff called for her bag. disposed of the case according to law. It gage within a reasonable time, and whether not having done so, the judgment is rethe liability of the company had shifted versed, and the cause remanded, with from that of a common carrier to that of a
directions to dismiss the action. warehouseman. This was error. Plaintiff's baggage arrived at 1:45 P. M., on the 15th,
Musser, Ch. J., and Hill, J., concur. and remained in the baggage room until the night of the 16th without being called for, and it was the duty of the court to IDAHO SUPREME COURT. have held, as a matter of law, that the
E. H. JENNINGS, Respt., baggage was not demanded within a reasonable time after it arrived. Plaintiff could not recover against the IDAHO RAILWAY, LIGHT, & POWER
COMPANY et al., Appts. company as a common carrier or insurer of the baggage as a matter of law. She did (26 Idaho, 703, 146 Pac. 101.) not demand or take it away within a rea
Attachment foreign corporation sonable time after it arrived, and she could
effect of compliance with local laws. not recover against the company as a ware- A statute giving foreign corporations
which comply with the local laws all the one residence, and one citizenship, and that rights and privileges of like domestic cor- is in the state issuing its charter and mainporations, and subjecting them to the laws taining supervision and control over the of the state applicable to like domestic cor corporation. porations, does not exempt them from the
Cowardin v. Universal L. Ins. Co. 32 operation of the statute authorizing an at: Gratt. 445; Barbour v. Paige Hotel Co. 2 tachment in actions against defendants not residing in the state.
App. D. C. 174; Shinn, Attachm. $ 105;
Boyer v. Northern P. R. Co. 8 Idaho, 74, (January 20, 1915.)
70 L.R.A. 691, 66 Pac. 826; New York L.
Ins. Co. v. Pike, 51 Colo. 238, 117 Pac. 899; A
PPEAL by defendant from an order of 5 Thomp. Corp. 2d ed. § 6629; Cook, Corp. the District Court for Ada County re
7th ed. § 1; Waechter v. 'Atchison, T. & S. fusing to dissolve an attachment alleged to F. R. Co. 10 Cal. App. 70, 101 Pac. 41; have been improperly issued certain
Note to Stonega Coke & Coal Co. v. Southproperty of the defendant railway company.
ern Steel Co. 31 L.R.A.(N.S.) 278. Afirmed. The facts are stated in the opinion.
Budge, J., delivered the opinion of the
court: Messrs. Cavanah, Blake, & MacLane, for appellants:
On the 6th of November, 1911, the Idaho No attachment can be issued against a Railway, Light, & Power Company, a cordomestic corporation in an action on poration organized under the laws of the secured debt, and therefore, if foreign cor
state of Maine, made, executed, and deporations have the same rights and privi- livered its promissory note to one E. H. leges, and are subject to like laws, no at- Jennings for $180,000, payable two years tachment can be issued against them in after date, bearing interest at the rate of such cases.
6 per cent per annum from July 6, 1912. 6 Thomp. Corp. 1895 ed. p. 6420, § 8060; In order to secure the payment of the above Farnsworth v. Terre-Haute, A. & St. L. R. obligation, the Idaho Railway, Light, & Co. 29 Mo. 75; Martin v. Mobile & 0. R. Power Company deposited with the said Co. 7 Bush, 116: Burr v. Co-operative
Jennings collateral security 1,200 Constr. Co. 162 Ill. App. 512; Hacketts- shares of the preferred stock and 2,884 town Bank v. Mitchell, 28 N. J. L. 516; shares of the common stock of the Boise
After the Blair v. Winston, 84 Md. 356, 35 Atl. 1101; Railroad Company, Limited. Herbert v. Herbert, 49 N. J. Eq. 70, 22 loan had been negotiated and the stock of Atl. 789; Munroe v. Williams, 37 S. C. 81, the Boise Railroad Company pledged, as. 19 L.R.A. 665, 16 S. E. 533.
aforesaid, the Idaho Railway, Light, & Messrs. Richards & Haga and McKeen Power Company, being then the owner of F. Morrow, for respondent:
all of the stock of the Boise Railroad ComThe domicil, residence, and citizenship pany, elected its employees or officers as of a corporation are in the state where it is directors and officers of the Boise Railroad created, and, where the corporation is not Company, and immediately thereafter domesticated, it can have but one domicil, caused said officers to convey by proper conNote. - Liability of foreign corporation procuring the appearance of a defendant,
which has complied with conditions and is not to be resorted to when the ordiof doing business in state to attach- nary process of the law can be used, though ment as nonresident.
the legal domicil of the defendant may be
out of the state. The earlier cases upon the above ques- In Edwards Mfg. Co. v. Ashland Sheet. tion are gathered in the note accompanying Mill Co. 31 Ohio C. C. 414, it was held Stonega Coke & Coal Co. v. Southern Steel that an affidavit for attachment upon the Co. 31 L.R.A. (N.S.) 278, and the present ground that the defendant is a foreign cornote includes only the decisions since the poration must affirmatively show that such writing of that note.
corporation is not within the exceptions In Burr v. Co-operative Constr. Co. 162 contained in subdiv. 1, § 5521, Rev. Stat. Ill. App. 512, under an attachment act (which apparently exempts foreign corpormaking nonresidence, and not noncitizen- ations which have complied with the reship, the ground of attachment, it was held quirements for doing business in the state that a foreign corporation licensed to do from attachment as nonresidents), and a business in the state was a resident, and sworn averment stating that the defendant not a nonresident, within the meaning of was doing business, at a certain place in the act. The court stated that it agreed another state was held not to aid the affiwith the court in Hackettstown Bank v. davit, since such statement did not exclude Mitchell, 28 N. J. L. 516, that the word the fact that the corporation might also be "resident” as used in the attachment laws doing business in Ohio and owning or using has a peculiar meaning, and that the writ a part of its capital or plant in that state. of attachment is an extraordinary mode of
J. T. W.