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made or to be made by said the Pullman | intent of Congress. Johnson v. Southern Company, and do agree to protect, in- P. Co. 196 U. S. 1, 49 L. ed. 363, 25 Sup. demnify, and hold harmless said the Pull-Ct. Rep. 158, 17 Am. Neg. Rep. 412. It man Company with respect to any and all applies broadly to any employee of a rai!. sums of money it may be compelled to pay , road company injured while engaged in or liability it may be subject to, under any interstate commerce. Of course, if plaintiff such contract, in consequence of any in- was in the employ of defendant at the time jury or death happening to me, and this of the accident, he would be entitled to agreement may be assigned to any such maintain his action under § 5 of the act corporation or person and used in its de- of 1908, irrespective of the contract of emfense.

ployment. Hence, the case turns solely up“Sixth. I will obey all rules and regula- on the nature of plaintiff's employment. tions made or to be made for the govern- The contract between the Pullman Comment of their employees by the pany and the Baltimore & Ohio Railroad corporations or persons over whose lines of Company, whereby the latter company railroad the cars of said the Pullman Com- agreed to operate parlor and sleeping cars, pany may be operated while I am traveling was substantially a contract on the part of over said lines in the employment or service the railroad company to haul the cars of of said the Pullman Company; and I express the Pullman Company. The material stipuly declare that while so traveling I shall not lations of the agreement were that the have the rights of a passenger with respect Pullman Company should "furnish sleeping to such corporations or persons, which rights and parlor cars properly equipped and acI do expressly renounce; and I hereby, for ceptable to the railroad company sufficient myself, my heirs, executors, administrators, to meet the requirements of travel or legal representatives, forever release, ac- over" the railroad company's lines; that the quit, and discharge any and all such corpo- Pullman Company should keep its cars in rations and persons from all claims for good order and repair; that it should “have liability of any nature or character whatso the right to collect from the occupants of ever on account of any personal injury or Pullman cars, for the use of seats and death to me while in said employment or berths therein, such fares as are customary service.”

on competing lines of railroad," and that This appeal turns upon two questions : the Pullman Company should “furnish

First: Was plaintiff, at the time of agents or inspectors to supervise the conthe injury, an employee of defendant rail. duct of employees, cleanliness of cars, etc., road company, and, as such, entitled to while enroute, and the railroad company maintain his action under the provisions of will transport free over its own lines the the employers' liability act of April 22, employees, agents, or inspectors” of the 1908 (35 Stat. at L. 65, chap. 149, Comp. Pullman Company. The railroad company Stat. 1913, § 8657) ?

agreed that its ticket agents, at such offices Second: Does the contract of employ- as should be agreed upon, should "sell ment between plaintiff and the Pullman tickets for seats and berths in such cars Company constitute bar to recovery without charge to the Pullman Company;" against the railroad company?

that “the railroad company shall haul the Section 1 of the act of 1908 provides: cars furnished by the Pullman Company “That every common carrier by railroad under this agreement on its passenger trains while engaging in commerce between any of in such manner as may be necessary to meet the several states or territories, or between the requirements of travel," and "shall not any of the several states and territories, or be entitled to receive compensation from between the District of Columbia, and any of the Pullman Company for the movement of the states or territories, ... shall be lia- cars furnished under this agreement." ble in damages to any person suffering in- The Pullman Company employed plainjury while he is employed by such carrier in tiff in the capacity of porter, and he was such commerce,

resulting in whole acting as such in one of the company's cars or in part from the negligence of any of at the time he was injured. The car was the officers, agents, or employees of such not operated nor controlled by defendant. carrier, or by reason of any defect or in- Defendant, under its agreement with the sutticiency due to its negligence, in its cars, Pullman Company, was simply hauling the engines, appliances, machinery, track, road. car. True, it was hauled for the accommobed, works, boats, wharves, or other equip dation of the passengers traveling upon dement.” It is unnecessary to enter into a fendant's train; but the railroad company discussion of the rules of construction ap- assumed no responsibility for the manageplicable to this act. While it is in deroga- ment of the car or its equipment. The tion of the common law, it should be con- Pullman Company sold passengers the strued so as to give effect to the evident' tickets which entitled them to the privj.


leges of its car. The proceeds went to the to a Pullman porter by this court in HughPullman Company. Its conductor and por- son v. Richmond & D. R. Co. 2 App. D. C. ter looked after the accommodation of the 98, where it was held that a Pullman porpassengers while in and about the car. Inter was not an employee of the railroad fact, so far as the control of the car was company. The court, speaking through concerned, it was as complete as if the en-Chief Justice Alvey, said: “But though tire train had been operated by the Pullman the plaintiff was not a servant of the railCompany. The railroad company in its con- road company, and therefore not a coservtract with its passengers did nothing that ant with the employees of that company, limited the Pullman Company's control of and consequently not subjeet to the prinits cars. The duty which the railroad com-ciple of nonliability of the master for the pany assumed to carry its passengers safe. negligence of his servant producing an inly, whether in its cars or in the cars of jury to a fellow servant, yet the plaintiff the Pullman Company, arose from its con- was not a passenger in any such sense as tract in the sale of tickets entitling them to require of the railroad company the to transportation, and not from their pur- highest degree of skill and care in the conchase from the Pullman Company of tickets struction and maintenance of its roadway entitling them to the additional privilege and machinery, and the operation of its of riding in its cars.

road and the running of its trains, such Plaintiff insists that at the time of the as are required in the case of a passenger.” accident he stood in the relation of an em- In their relation to the railroad company, ployee of defendant company, and bases his we think there is a marked distinction be. contention chiefly upon a suggestion in the tween an express messenger and a Pullman decision in the case of Baltimore & 0. S. W. porter. As was suggested in the Voigt Case, R. Co. v. Voigt, 176 U. S. 498, 44 L. ed. the express messenger occupied a position 560, 20 Sup. Ct. Rep. 385. In that case, an created by agreement between the express express messenger had been injured through company and the railroad company. He perthe alleged negligence of the railroad com- formed duties which, if not performed by pany. As a condition of his employment him, would have to be performed by the by the express company he had executed a railroad employees. Express matter, when release exempting the railroad company received by the railroad company under its from liability for injuries he might sustain contract with the express company, like

an express messenger on the railroad. freight, has to be handled and cared for. If The release was held to constitute a bar to not looked after by the agents of the exrecovery against the railroad company. Im. press company, the duty would devolve portance is attached, however, to the fol- upon the employees of the railroad comlowing statement of the court: “The relation pany. Not so with a Pullman car. It is of an express messenger to the transporta- a vehicle of a common carrier independent tion company, in cases like the present one, of the railroad company. The mere fact seems to us to more nearly resemble that that the Pullman Company employs the of an employee than that of a passenger. railroad company to haul its cars does not His position is one created by an agreement affect its relation to the public. The railbetween the express company and the rail. road company is not under obligation to road company, adjusting the terms of a haul Pullman cars, as it is at common law joint business,-the transportation and de- to carry passengers and freight. Russell livery of


matter. His duties of v. Pittsburgh, C. C. & St. L. R. Co. 157 Ind. personal control and custody of the goods | 305, 55 L.R.A. 253, 87 Am. St. Rep. 214, and packages, if not performed by an ex- 61 N. E. 678. Passengers occupy Pullman press messenger, would have to be per- cars under contract with the Pullman Comformed by one in the immediate service of pany, and not the railroad company. The the railroad company.

And, of course, if service rendered by the porter forms no his position was that of a common employee part of the contractual duty of the railroad of both companies, he could not recover for company to its passengers. “It is no part injuries caused, as would appear to have of the contract or obligation of a common been the present case, by the negligence of carrier of passengers to furnish berths, or fellow servants."

the services of a porter to make up beds It will be observed that the court did not or perform other services for passengers. say that the express messenger was an em- The passenger pays the Pullman Company ployee of the railroad company. In dis. for the services performed by it, and not tinguishing his position from a passenger the railroad company, and if one desires it said it seemed to “more nearly resemble such services as are rendered by the Pullthat of an employee than that of a pas. man Company and its porter he must consenger.” The same distinction was made as 'tract with that company for them." Chi.


cago, R, I. & P. R. Co. v. Hamler, 215 Ill. , Pullman car was not an employee of the 525, 1 L.R.A.(N.S.) 674, 106 Am. St. Rep. railroad company over whose tracks the 187, 74 N. E. 705, 1 Ann. Cas. 42. On the Pullman car was operated.” After discussother hand, the porter performs no service ing the contract by which the Association, connected with the operation of the train consisting of the Pullman Company and the by the railroad company. In fact, when a railway company, had been formed, the passenger purchases a berth in a Pullman court further said: "It will thus be seen car he must look entirely to the Pullman that the railway company was the owner Company for the services of a porter. In of a half interest in the Pullman car upon 12 Am. & Eng. Enc. Law, 2d ed. 994, the which the deceased porter was employed, rule is laid down that, "where a palace car and that the deceased was employed by an is run as part of a train under a contract Association of which the railway company between the palace car company and the was a part. True, the Pullman Company railroad company, the employees of the two was the manager for the Association, but in companies are not, it has been held, fellow that respect it was simply an agent for the servants," citing Hughson v. Richmond & railway company. Stripped of matters of D. R. Co. supra.

This rule has been fol. mere form, the railway company and the lowed in McDermon v. Southern P. Co. 122 Pullman Company operated this car jointly Fed. 669, Russell v. Pittsburgh, C. C. & St. for their joint benefit, and employed the L. R. Co. and Chicago, R. I. & P. R. Co. porter jointly." It thus appears that there v. Hamler, supra; Denver & R. G. R. Co. v. is no such analogy between the two cases Whan, 39 Colo. 230, 11 L.R.A.(N.S.) 432, as will afford any relief to plaintiff. 89 Pac, 39, 12 Ann, Cas. 732.

This brings us to the contract of employ. Counsel for plaintiff place strong reliance ment. It is not in conflict with 5 of the upon the decision in the case of Oliver v. act of 1908, which provides: “That any Northern P. R. Co. 196 Fed. 432. In that contract, rule, regulation, or device whatcase the railroad company and the Pullman soever, the purpose or intent of which shall Company were the joint owners of the Pull- be to enable any common carrier to exempt man car in which Oliver, the porter, was itself from any liability created by this act, killed. The car was owned by the two com- shall to that extent be void.” This provi. panies under a contract which, among other sion must be construed in relation to the things, provided: “The cars owned jointly act which relates alone to railroad emby the railroad company and the Pullman ployees engaged in interstate commerce. Company shall be known as association cars, Plaintiff, not occupying that relation to dethe Pullman Company having the manage- fendant, cannot avail himself of it to defeat ment thereof; and all obligations of the his contract of employment. Stripped, therePullman Company with respect to the oper- fore, of all connection with the act of 1908, ation of said cars shall be assumed and the contract of employment furnishes a borne by the Association.

The As- complete bar to plaintiff's right to recover sociation shall furnish with each of such in this action. Baltimore & 0. S. W. R. Co. sleeping cars,

more employees, as v. Voigt, 176 U. S. 498, 44 L. ed. 560, 20 may be required, whose duties shall be to Sup. Ct. Rep. 385. collect fares from passengers occupying There is no importance to be attached such cars, for the use of seats or berths, to the mere fact that after the execution and generally to wait upon and provide for of the contract of employment plaintiff's the comfort of passengers therein; such salary was increased, and he was assigned employees at all times to be subject to the the additional duty of occasionally collectrules of the railroad company governing its | ing railroad tickets. This did not relieve own employees. The Association shall also him from the obligations of his contract. furnish employees who shall have charge of It did not affect his waiver of right to mainall the sleeping cars used under this con- tain this action against defendant company. tract.” Distinguishing that case from the He was originally employed as a Pullman cases of the class to which the one at bar porter, and at the time of the alleged accibelongs, the court said: “The relations ex- dent still retained that position. isting between the railway company and The other errors assigned are of no imthe Pullman Company in this case, and con- portance, and will not be considered. The sequently the relations existing between judgment is afirmed with costs. the railway company and the porter on the Pullman car, differ widely from those dis- Affirmed by the Supreme Court of the closed in the numerous cases cited in argu- United States, April 5, 1915, 237 U. S. 84, ment, where it was held that a porter on a ' 59 L. ed. 35 Sup. Ct. Rep. 491.

one or


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KANSAS SUPREME COURT. commenced under $$ $751 and 9752 of the

General Statutes of 1909, which provide: STATE OF KANSAS, Appt.,

“Sec. 14. A print, or package of butter

shall contain 16 ounces avoirdupois, and BELLE SPRINGS CREAMERY COM

when a print or package of butter containPANY.

ing less than 16 ounces avoirdupois shall

be sold its net weight shall be disclosed by (83 Kan. 389, 111 Pac. 474.)

the seller to the buyer, or a statement of

the net weight be made upon a label atDefinition person,

tached thereto, 1. The word "person” being the second “Sec. 15. A person who, by himself or word in § 9752, Gen. Stat. 1909, includes a by his servant or agent, or as the servant corporation as well as a natural person. or the agent of another, uses a weight, Indictment statutory language. measure, balance or measuring device that

2. The complaint set forth in this case is false and does not conform to the aucharges the offense substantially in the thorized standard for determining the language of $ 9752, Gen. Stat. 1909, except quantity of any commodity or article of as to the proviso at the end of such section, merchandise, or sells or exposes for sale less and is not defective by reason of the failure than the quantity which he represents, or to negative such proviso. Weights and measures

sells or offers for sale commodities in a

statutory reg. ulation - constitutionality.

manner contrary to law, shall be deemed 3. Sections 9751 and 9752, Gen. Stat. guilty of a misdemeanor, and shall, upon 1909, are not unconstitutional and void as conviction thereof, be fined in a sum of not being repugnant to either § 17, art. 2, of less than $5 nor more than $100, or by the Constitution of the state of Kansas, imprisonment in the county jail for not or to the 14th Amendment to the Constitu- more than ninety days, or by both such fine tion of the United States.

and imprisonment. He shall also be liable

to the injured party in double the amount (November 5, 1910.)

of the property wrongfully taken or not PPEAL by the State from a judgment recovered in any court of competent juris

given, and $10 in addition thereto, to be A of the District Court for Saline

diction. The selling and delivery of any County, sustaining a motion to quash the commodity or article of merchandise shall amended complaint in a prosecution charg. be prima facie evidence of representations ing de endant with selling butter under

on the part of the vendor that the quantity statutory weight. Reversed.

sold and delivered was the quantity bought

by the vendee. There shall be taken into Statement by Smith, J.:

consideration the usual and ordinary leakThis is a prosecution commenced before age, evaporation or waste that there may D. R. Wagstaff, a justice of the peace of the be from the time the package is filled by city of Salina, in Saline county, Kansas, the vendor until the selling of the same; against P. F. Edquist and the Belle a slight variation from the stated weight, Springs Creamery Company, a corporation. measure or quantity for individual packThe defendant Edquist filed his

mo- ages is permissible, provided this variation tion to quash the amended complaint on is as often above as below the weight, measFebruary 9, 1910, which motion was by Jus- ure or quantity stated.” tice Wagstaff denied. Thereafter trial The first count of the amended complaint was had, Edquist was acquitted, and the reads: “A. E. Ice, being duly sworn accreamery company was convicted. The cor-cording to law, on oath says: That the poration appealed its case to the district said defendant on or about the 3d day of court and there refiled the motion to quash. September, 1909, in the said county of The district court sustained the motion Saline and state of Kansas, then and there and the state appeals. The prosecution was did unlawfully expose for sale and sell and

deliver to D. W. Witwer and J. C. Stevens, Headnotes by SMITH, J.

partners doing business under the firm

name and style of Witwer & Stevens, one Note. – As to criminal responsibility of certain print and package of butter, which corporation, see pages 40 et seq. of the note said print and package of butter, after to Com. v. Sacks, 43 L.R.A. (N.S.) 2, cover- taking into consideration the usual and ing the general subject of the criminal lia- ordinary leakage, evaporation, and waste bility of master for acts of servant.

from the time the same was filled until it Specifically, as to the criminal responsibility of a corporation for homicide, see

was sold and exposed for sale as aforesaid, note to People v. Rochester R. & Light Co. I did not then and there weigh 16 ounces 21 L.R.A.N.S.) 998.

avoirdupois, and which said print and package of butter did not then and there have state of Kansas, and is not repugnant to a label attached thereto with the net weight § 17 of article 2 of the Constitution. thereon, and the said defendant did not Noffzigger v. McAllister, 12 Kan. 321; then and there disclose the net weight of Keyes v. Snyder, 15 Kan. 143; McBride v. said print and package of butter so sold Reitz, 19 Kan. 123; Norton County v. and exposed for sale as aforesaid to the Shoemaker, 27 Kan. 77; State v. Butts, 31 buyer thereof, and that the said defendant, Kan. 537, 2 Pac. 618; Koester v. Atchison the Belle Springs Creamery Company, is a County, 44 Kan. 141, 24 Pac. 65; Eichcorporation duly organized and doing busi- holtz v. Martin, 53 Kan. 486, 36 Pac. 1064; ness under the laws of the state of Kansas; McAunich v. Mississippi & M. R. Co. 20 contrary to the statutes in such cases made Iowa, 338; Iowa Electric Medical College and provided, and against the peace and Asso. v. Schrader, 87 Iowa, 659, 20 L.R.A. dignity of the state of Kansas.” Each of 355, 55 X. W. 24; Chicago v. Bowman the other counts of the complaint is sim- Dairy Co. 234 Ill. 294, 17 L.R.A. (N.S.) 684, ilar to the first count, except that other and 123 Am. St. Rep. 100, 84 N. E. 913, 14 Ann. different sales are alleged in each count Cas. 700; Chesney v. McClintock, 61 Kan. from that specified in the first count. 100, 58 Pac. 993; Campbell v. Labette

County, 63 Kan. 377, 65 Pac. 679; State ex Messrs. F. S. Jackson, Attorney Gen- rel. Godard v. Downs, 60 Kan. 788; Tareral, John Marshall, and Charles D. man v. Atchison, 69 Kan. 483, 77 Pac. 111; Shukers, Assistant Attorneys General, and Parker-Washington Co. v. Kansas City, 73 Frank T. Knittle, for the State:

Kan. 722, 85 Pac. 781; State ex rel. JackWhere the statute sets out the acts which son v. Butler County, 77 Kan. 527, 94 Pac. constitute an offense, a complaint or infor- 1004. mation which follows the statute is suffi- The statute is within the police power of cient.

the state, and is for the purpose of preventState v. Seely, 65 Kan. 185, 69 Pac. 163; | ing fraud, and to compel persons and cor. State v. Foster, 30 Kan. 365, 2 Pac. 628; porations to give 16 ounces of butter for a State v. Bellamy, 63 Kan. 144, 65 Pac. 274, pound. 14 Am. Crim. Rep. 497; 10 Enc. Pl. & Pr. 19 Cyc. 1087; Chicago v. Bowman Dairy 483; State v. Tanner, 50 Kan. 365, 31 Pac. Co. 234 Ill. 294, 17 L.R.A. (N.S.) 684, 123 1096; State v. Ready, 44 Kan. 697, 26 Pac. Am. St. Rep. 100, 84 N. E. 913, 14 Ann. Cas. 58; State v. Gavigan, 36 Kan. 327, 13 700; Com. v. McArthur, 152 Mass. 522, 25 Pac. 554; State v. Beverlin, 30 Kan. 612, 2 N. E. 836; Blaker v. Hood, 53 Kan. 509, 24 Pac. 630; Com. v. Bartholomew, 17 Ky. L. L.R.A. 854, 36 Pac. 1115; State v. Wilson, Rep. 1133, 33 S. W. 840.

61 Kan. 32, 47 L.R.A. 71, 58 Pac. 981; The word "person,” as used in the stat. McLean v. State, 81 Ark. 304, 126 Am. St. ute, inc. udes corporations.

Rep. 1037, 98 S. W. 729, 11 Ann. Cas. 72; Williams v. Metropolitan Street R. Co. Kansas P. R. Co. v. Mower, 16 Kan. 573; 68 Kan. 17, 64 L.R.A. 794, 104 Am. St. Rep. Eaton v. Kegan, 114 Mass. 433; People v. 377, 74 Pac. 600, 1 Ann. Cas. 6; State ex Wagner, 86 Mich. 594, 13 L.R.A. 286, 24 rel. Kellogg v. Atchison County, 44 Kan. Am. St. Rep. 141, 49 N. W. 609; Powell 138, 24 Pac. 87; State v. Herold, 9 Kan. v. Pennsylvania, 127 U. S. 678, 32 L. ed. 194; North Missouri R. Co. v. Akers, 4 | 253, 8 Sup. Ct. Rep. 992, 1257; 30 Am. & Kan. 470, 96 Am. Dec. 183; Standard Oil Eng. Enc. Law, 451, 456; Meffert v. State Co. v. State, 117 Tenn. 618, 10 L.R.A.(N.S.) Bd. of Medical Registration (Meffert v. 1015, 100 S. W. 706; West Virginia Transp. Packer) 66 Kan. 710, 1 L.R.A. (N.S.) $11, Co. v. Standard Oil Co. 50 W. Va. 611, 5672 Pac. 247; Isenhour v. State, 157 Ind. L.R.A. 804, 88 Am. St. Rep. 895, 40 S. E. 591; 517, 87 Am. St. Rep. 229, 62 N. E. 40;

Beach, 155 Ind. 131, 50 L.R.A. 64, 10 Cyc. 1208, 9 8; Thomp. Corp. 2d ed. Blue v. § 5455; United States v. MacAndrews & F. / 80 Am. St. Rep. 195, 56 N. E. 89; State Bd. Co. 149 Fed. 835; State v. Baltimore & o. of Health v. Roy, 22 R. I. 538, 48 Atl. 802;

State ex rel. Atty. Gen. v. Capital City R. Co. 15 W. Va. 362, 36 Am. Rep. 803 ; Dairy Co. 62 Ohio St. 350, 57 L.R.A. 181, Telegram Newspaper Co. v. Com. 172 Mass.

57 N. E. 62. 294, 44 L.R.A. 159, 70 Am. St. Rep. 280,

Messrs. G. W. Hurd, Arthur Hurd, and 52 N. E. 445; State v. Williams, 74 Kan. Ferry, Doran, & Magaw, for appellee: 180, 85 Pac. 938; State v. Boogher, 3 Mo.

The complaint is insufficient. · Arp. 442; State v. Bancroft, 22 Kan. 170.

Evans v. United States, 153 ('. S. 598, A general law has a uniform operation 38 L. ed. 835, 14 Sup. Ct. Rep. 934, 9 Am. throughout the state, if it applies to all Crim. Rep. 668; 1 Archbold, Crim. Pr. & persons operating within its terms. This is Pl. p. 263, note 1; State v. Godfrey, 24 a general act applying to all persons who | Me. 232, 41 Am. Dec. 382; 1 Chitty, Crim. expose for sale and sell butter within the Law, p. 284; State v. Gurney, 37 Me. 149;

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