a rec as Mr. Justice Miller, of that court, sitting with nection with those now pending on the calender Judge McCrary in holding the circuit court. The of that court. railroad company in that case was enjoined by Let a decree be entered in both cases for the them from refusing or withholding the usual ex- plaintiff. adjudging that it has a right to have express facilities from the plaintiff. In giving hi press facilities furnished by the defendants, as conclusions, Mr. Justice Miller, among other heretofore, and continuing the injunction granted. things, held, that the express business is a branch of the carrying trade, which, by the necessities of commerce and the usages of persons engaged in transportation, has become known and EQUITY INJUNCTION TO RESTRAIN ognized so to require the court to take TRESPASS TO REAL ESTATE. notice of it as distinct from the transportation of the large mass of freight usually car TURNER v. STEWART. ried on steamboats and railroads; that the object of this express business is to carry small Supreme Court of Missour October, 1883. and valuable packages rapidly in such manner as not to subject them to the danger of loss and An injunction will lie to restrain trespasses to real estate or the commission of any legal wrong, which is damage, which to a greater or less degree attend remediable in a court of law, but which is of such fre. the transportation of heavy or bulky articles of quent occurrence that a multiplicity of suits would commerce; that it is one of the necessities of this result. business that the packages should be in the inmediate charge of an agent or messenger of the MARTIN, Com., delivered the opinion of the company, or parties engaged in it, without any court: right on the part of the railway company to open This was a petition for an injunction, the suband inspect them; that it is the duty of every stance of which we recite: railroad company to provide such conveyance, by The plaintiff states that he is the owner and in special car or otherwise, attached to their freight possession of a private wharf and landing on the or passenger trains, as are required for the safe west bank of the Osage river; that he is engaged and proper transportation of this express matter in operating a saw mill and machine for loading on their roads; that the use of these facilities and unloading cars with railroad ties, which mill should be extended on equal terms to all who are and machine he has erected on the premises at actually engaged in the express business, at fair great expense; that he is under contract to furnish and reasonable rates of compensation, to be de- and deliver a large amount of lumber to different termined by the court when the parties cannot parties, and that he has a large number of hands agree thereon; and that a court of equity has in his employment conducting his saw business; authority to compel the railroad companies to that defendants are the owners and proprietors carry this express matter and to perform the duties of a steamer called the “ Aggie;" that without in that respect. the consent of plaintiff and against his notice forThe same question has been decided substan- bidding it, defendants have at divers times since tially in the same way in other cases. the 7th of May, 1880, landed their said steamer From the decisions rendered in some of them, at said landing and discharged freight on said appeals have been taken to the Supreme Court, premises, and that they threaten to repeat and and the cases are now on its calender. Under continue said unlawful acts and trespasses; that these circumstances I have come to the conclusion by reason thereof the business of plaintiff in to follow the view expressed in them rather than sawing, receiving and delivering lumber and go into an extended consideration of the question. loading and unloading railroad ties is wholly The following cases are now pending in the Su- suspended and stopped during the time of said preme Court: acts and trespasses; that defendants are in the The Memphis and Little Rock Railroad Com - habit of landing and discharging freight, and pany v. The Southern Express Company; St. thereby interfering with and suspending the saw Louis, Iron Mountain & Southern Railroad Com- business of the plaintiff as often as two or three pany v. The Southern Express Company, and the times a day each week, varying from a half to a Missouri, Kansas & Texas Railroad Company v. whole day; that he is damaged to such an extent Dinsmore, president of Adams' Express Company. that an ordinary action at law would be a wholly In their determination the question presented inadequate remedy for the injury sustained; and will be definitely and authoritatively settled. that a continuation of said acts would work an ir As a matter of form, therefore, I shall yield to reparable damage, for which a court at law proves the conclusions of the circuit court of the Eight no adequate remedy; wherefore, the order of the circuit, which are in conformity with those ex- court enjoining defendants from further tresspressed by Judge Deady on the application for passes aforesaid is asked by plaintiff, and such injunction in these cases, and will order a decree other and further relief as he may be entitled to. for the plaintiff in both. The defendants will thus To this petition defendants filed a demurrer be enabled to take an appeal at once to the Su- for want of facts sufficient to constitute a cause of preme Court, and have their cases argued in con- action. It is urged that an injunction will not be granted to restrain trespasses unless the parties State against the defendants, as a corporation are insolvent or the injury irreparable. It is also duly established and having a place of business at insisted that the jurisdiction of the matter com- Exeter, in the same State, for personal injuries plained of belongs to the courts of admiralty and sustained through the fault of the defendants, at not to the State courts. The court sustained the Lawrence, in the State of Massachusetts, setting demurrer, and thereupon entered final judgment, her damages at more than $500. The defendants dismissing the petition, from which action of the in due season filed their petition, and moved to court plaintiff prosecutes his writ of error. remove the action to this court. The justice reIt is not necessary that the defendants should fused to order the removal, and his ruling has be insolvent or the wrong irreparable to sustain been sustained by the full bench of the Supreme the right to equitable relief against trespass. It is Court of New Hampshire. The defendants were provided in our statute that the remedy by writ first incorporated in New Hampshire by their of injunction shall exist in all cases where are present name, and certain short lines of railroad injury to real or personal property is threatened, were from time to time constructed in Massachuand to prevent the doing of any legal wrong setts, which together made a continuous line of whatever, whenever in the opinion of the court an road from Boston to the State of New Hampshire, adequate remedy cannot be afforded by an action and was known as the Portland and Boston Rail. for damages. Rev. Stat. 1879, sec. 2722. road. There was a railroad chartered in Maine, The business of the plaintiff was constantly in- under which certain parts of what is now the road terrupted at the pleasure of the defendants. He of the defendants in this State were built and opwas subjected to a grievance recurring at irregu- erated. The corporations in the three States were lar intervals. His immediate damages would be afterwards consolidated under substantially identdifficult to estimate on account of the nature of the ical laws by which the Boston and Maine Rail. business. road was chartered in Maine and Massachusetts, For consequential damages, a loss of profits in as it already had been in New Hampshire. The his contracts it would be different, if not impossi- interests of the stockholders were united upon ble, to obtain anything for in an action at law. It equitable conditions agreed upon by them, while is also clear that no single action for damages each State required certain things to be done anwould afford him redress. He would have to nually by the corporation which it had chartered. sue for every time the defendants landed, and the Marston & Eastman, for plaintiff; Copeland, for burden of carrying on such a multiplicity of law defendant. suits would make his remedy as grievous as the LOWELL, J., delivered the opinion of the court: injury. Under this state and the decisions con- The Supreme Court has decided that when the straining it I am satisfied the plaintiff was entitled same corporation owning a road which runs to the remedy asked for and that a suit at law through several States, is chartered by each of would not be an adequate remedy. State Saving them, it is, by a useful fiction, to be considered Bank v. Kerchival, 65 Mo., 682; Damschroeder v. for the purposes of jurisdiction, a citizen of each Tho3, 51 Mo., 100; Echelcamp v. Shroder, 45 Mo. of the States. Ohio, etc. R. Co. v. Wheeler, 1 505; Hayden v. Tucker, 37 Mo., 214; McPike v. Black, 286. The operation of this rule is now West, 71 M0., 199; Wright v. Moore, 38 Ala., 593; usually avoided by chartering the company in a Watson v. Southerland, 5 Wall, 78. In the second single State, and merely authorizing that identpoint of the demurrer there can be no doubt the ical company to do business in other States. In trespass was against real estate within the powers such a case, it remains always a citizen of the of the statute. The judgment is reversed aud first State. Railroad Co. v. Koontz, 10+ U. S. 5; the case remanded. Missouri, etc. R. Co. v. Texas, etc. R. Co., 10 Fed. al States, the corporation when sued in one of REMOVAL OF CAUSES · CITIZENSHIP them as a citizen of that State cannot set up that RAILROAD INCORPORATED IN SEV. it likewise is a citizen of another. Thus in R. R. ERAL STATES. Co. v. Whitton, 13 Wall. 290, a corporation chart ered by Illinois and Wisconsin was sued as a citiHORNE v. BOSTON, ETC. R. Co. zen of Wisconsin by a citizen of Illinois; after wards the plaintiff himself removed the cause to United States Circuit Court, D. New Hampshire, the circuit court, and the defendant company October 13, 1883. moved to remand it on the ground that it was a A railway corporation incorporated in the several citizen of Illinois; but the court held that when States through which it runs, is, by a fiction of the sued in Wisconsin as a citizen of that State it law, for all purposes of jurisdiction, a citizen of each could not deny its citizenship there. The only of the States; and it can not remove a cause to the difference between that case and this is that here Federal courts on the ground of its citizenship in the other States. the plaintiff is a citizen of the State where the ac tion is brought; but this does not affect the arguThe plaintiff, a citizen of New Hampshire, ment that the defendant company should not be brought her action in one of the courts of that permitted to deny its citizenship in this State. So it has been held in three circuits: C. & W. I. R. Co. v. L. S. & M. S. R. Co. 5 Fed. Rep. 19; Uphoff v. Chicago, etc. R. Co. 5 Ib. 545, and see the very able opinion of Judge Hammond in that case; Johnson v. Philadelphia, etc. R. Co. 9 Ib.6. "The case of Chicago, etc. R. Co. v. Chicago, etc. R. Co. 6 Biss. C. C. 219, is distinguished by Judge Drummond, who decided both cases in 5 Fed. Rep. pp. 19, and 515. supra, and his remarks will apply to Nashua, etc. R. Co. v. Boston, etc.R. Co. 8 Ib. 458. See, also, the note of the learned reporter to Johnson v. Philadelphia, etc. R. Co. 9 Fed.Rep.6. This being the State of the authorities, I will only add that the fiction which makes two or three corporations out of what is in fact one, is established for the purpose of giving each State its legitimate control over the charters which it grants, and that the acts and neglects of the corporation are done by it as a whole. It is not material in considering the question of jurisdiction that the damage complained of was suffered within the limits of Massachusetts, and that the judginent will bind the corporation in that State. See Uphoff v. Chicago, etc. R, Co. 5 Fed. Rep. 545. Motion to remand granted. COMMON CARRIER-CONTRACT LIMITING LIABILITY-NEGLIGENCE. should not exceed $100, and that in no case would a breach of its contract make its liability exceed that sum. The jury returned a verdict for the plaintiff and assessed the amount of its recovery at $250. Judgment was entered thereon and the railroad company prosecuted its writ of error. HORTON, C. J., delivered the opinion of the court: It is contended on part of plaintiff in error that as the horse was transported by the railroad company under a special written contract entered into between the company and one William Towne, that Towne was the only person authorized to sue for a breach thereof, and that the plaintiff could not recover. Nowithstanding the fact that the railroad company contracted with Towne alone, and had no knowledge that Towne was acting merely as agent of Simpson, Simpson was, in fact, “the real party in interest” and could maintain an action for any loss sustained by him under the contract. It is well settled in this state that where a contract is made by an agent for the benefit of his principal, the principal may sue on the contract, and this is so even where the contract is made in the name of the agent and the principal's name is not disclosed. Railway Co. v. Thatcher, 13 Kas., 566. Pomeroy on Remedies and Rights, 170. The trial court instructed the jury substantially that if the horse was injured by the negligence of the railroad company, the owner thereof was not limited in his recovery by the words "value not exceed $100" expressed in the contract. To this direction the plaintiff in error excepted and alleges that the contract was supported by good consideration, which to the carrier consisted in the diminuiion of risk assumed by him, and to the shipper in the reduced rate at which service was to be performed in cousequence of the risk assumed by himself as to the measure of damage in case of loss or injury. Several of the decisions cited sustain this proposition, but not disposed to follow their lead. It was stated in Kallman v. Express Co., 3 Kas., 205, that it is only when carriers act in good faith and use due care and diligence in and about their business that the law permits them to have the benefit of limitations restricting the measure of damages in case of loss of property entrusted to them. In the late case of Railroad Co. v. Lockwood, the Supreme Court of the United States, after the most exhaustive examination of American and English authorities have laid down the principle that a common carrier, whether of goods or passengers, cannot stipulate for exemption from responsibility for the negligence of himself or his servants. In support of this principle, the learned justice delivering the opinion said, "If the customer had any real freedom of choice; if he had a reasonable and practice able alternative, and if the employment of a car. rier were not a public one, charging him with the duty of accom ommodating the public in the line of is employnaent, then, if the customer chose to RAILROAD CO. V. SIMPSON. Supreme Court of k'ansas, Nov. 9, 1883. 1. A common carrier may relieve himself from the strict liability imposed on him by the common law, by a special contract, but he can not contract for exemption from the consequences of his own or his agent's negligence. 2. Where a horse was shipped by rail, and the bill of lading was signed by the carrier and the agent of the shipper, and provided among other things, "value not to exceed $ 100,” which was inserted arbitrarily in the bill of lading by the carrier, and through the carrier's negligence the horse was injured: Held, in an action by the shipper for damages, that his recovery was not limited by the words, "value not to exceed $100." we are Error from Atchison County. Action by Richard D. Simpson against the Kansas City, St. Joseph and Council Bluffs Rail. road Company to recover $300 for damages alleged to have been sustained by the negligence of the railroad company in injuring a horse transported by it from East Atcbison, Mo., to St. Joseph, Mo. The railroad company, in its answer, among other things, averred that it was induced to and agreed to carry and deliver the horse at the price of $4.00 only by reason of a contract that its risk, in case of injury or damage thereto, assume the risk of negligence, it could with more reason be said to be his private affair and no concern of the public; but the condition of things is entirely different, and especially so under the modified arrangements which the carrying trade has assumed. The business is mostly concentrated in a few powerful corporations whose position in the body politic enables them to control it. They do, in fact, control it and make such conditions on the travel and transportation as they see fit, which the public is compelled to accept. These circumstances furnish an additional argument if any were needed, to show that the conditions imposed by the common carrier ought not to be adverse, to say the least, to the dictates of public policy and morality. The status and relative position of the parties render any such condition void. Conceding, therefore, that special contracts made by a common carrier with his customers, limiting his liability, are good and valid so far as they are just and reasonable, to the extent for example, of excusing them for all loss happening by accident without any negligence or fraud on his part; when he asks to go still further and to be excused for negligence-an excuse so repugnant to the law of his foundation and to the public good-he has no longer any plea of justice or reason to support such stipulation, but the contrary." In Missouri, where the bill of lading or contract was signed, the law is, that while a common carrier may limit his liability by contract, he can not exempt himself from that responsibility which every bailee assumes for ordinary care and common honesty. Lawson on Carriers, sec. 50. In Levering v. Union Trans. etc.Co., 42 Mo., 88, it is said “the argument in favor of the right of the carrier to vary his liability by introducing conditions into his acceptance, is founded on a misconception in considering that his liability is voluntary and arises ex contractu. The law attaches the responsibility to his employment or calling, and if he assumes that calling, he has no power over the duties which the law annexes to his calling. His assuming the character of a common carrier de on his right, touching the character and good faith of a common carrier, is an agreement against public policy and welfare, and is therefore void; and as an agreement that his negligence shall be cheap, must operate in this way, it necessarily falls within that principle.” Galt v. Express Co., S. C. D. Mss.; Lawson on Carriers, 134, 435. See, also, Goggin v. Railroad Co., 12 Kan. 416; Railroad Co. v. Caldwell, 8 Kan. 241; Railroad Co. v. Reynolds, 8 Kan. 623; Kallman v. Express Co., supra; Railroad Co. v. Nichols, 9 Kan. 225; Railroad Co. v. Piper, 13 Kan. 505; Railroad Co. v. Maris, 16 Kan. 333; The Emily v. Carney, 5 Kan. 685; Railroad Co. v. Peavey, 29 Kan. 169. While the provision in a bill of lading or contract between the shipper and carrier, that the latter will not be liable beyond a certain sum expressed in the contract, may be valid to limit the liability of the carrier as an insurer, a condition of this character which seeks to cover the negligence of the carrier is void; therefore, the direction of the trial court was not erroneous. The present case furnishes a strong illustration of the oppression and injustice of a contrary doctrine. Simpson, the owner of the horse, sent his rider, Towne, a young boy, to ship the horse to St. Joseph, Mo., and enter him in the races there. He did not authorize him to fix any limitation on the value, in transporting him, and the horse was worth more than $300. The agent of the company shipping the animal supposed the horse was fancy stock, or a racehorse, and without any inquiry as to its actual value, arbitrarily inserted in the bill of lading, "value not to exceed $100." Towne told the agent that he did not want the contract limited, but afterwards signed it with the clause inserted. According to the testimony of the agent, the rules of the company required him to insert this clause in transporting fine stock, whether the shipper wanted it or not. At St. Joseph, the car containing the horse was run up in the yard of the company, a flying switch made, and the car run about 200 yards without any brakeman or other person on it to stop or control it, at such a speed that the horse was knocked down upon his knees and injured he undertakes that occupation, the liabilities "The other questions submitted have been fully which come upon him in respect to goods brought or borne to him to be carried, are imposed by law and not created by assent or agreement.” “The principle of law which, for considerations of public welfare, forbids a common carrier to bargain in particular cases for complete exemption from responsibility for a violation of his duties, forbids him to impair his obligations to the community by bargaining in particular cases for an exemption from a considerable part of that responsibility. The ground on which the rule is based that even the shipper's perfect consent cannot wholly relieve the carrier, is that the object which he undertakes to regulate by contract is not his own, but a public right. The principle of the rule is, that any agreement which operates to interfere with a public examined, but we do not think it necessary to comment thereon, as it is clearly shown from the evidence that the agent knew that the horse was going to the fair at St. Joseph, and considered it more valuable than ordinary stock at the time of giving the bill of lading. The judgment of the district court must be affirmed. All the justices concurring. * * WEEKLY DIGEST OF RECENT CASES. IOWA, KENTUCKY, MARYLAND, MASSACHUSETTS, MINNESOTA, NEW HAMPSHIRE, NEW JERSEY, NEW YORK, PENNSYLVANIA, SOUTH CAROLINA, VERMONT, 22 18 7, 12, 27, 35 3, 19 11, 32 6, 24 26 29 14, 33 2, 3, 10, 13, 15, 16, 25 VIRGINIA, 21 WISCONSIN, FEDERAL CIRCUIT COURT, ENGLISH, 17, 20, 23, 28 4, 5, 30, 31, 34 1. ATTACHMENT--AFFIDAVIT OF ATTORNEY. The affidavit of an attorney in his client's behalf, need not state the affiant's grounds for his belief, to make the attachment valid. Anderson v. Mehe, S. C. Wis.; 6 Wis. L. N., Dec. 8, 1883. 2. BANKRUPTCY-EFFECT OF DISCHARGE-FOREIGN CREDITOR. A debt contracted and payable in a foreign country is not barred by a discharge under the United States Bankrupt Act, where the creditor was not a party to and had no personal notice of the proceedings in bankruptcy. McDougall v. Carpenter, S. C. Vt.; 28 Alb. L. J. 372. 3. CONFLICT OF LAWS-WAREHOUSE RECEIPT-LEX LOCI. An indorsement and delivery in another State, of a receipt for goods stored in a private warehouse in this State, are to be governed by the law of this State. Hallgarten v. Oldham, S. C. Mass., April, 1883; 10 Ohio L. Bul. 117. 4. CONTEMPT-PRIVILEGE OF ATTORNEY FROM AR REST. OF TRADE "GOOD WILL"-PERSONAL COVENANTS. When a person enters the service of another, "covenanting to never carry on the same business within one mile of the covenantee's shop,'' such agreement is not affected by the removal of the shop. 2. Such an agreement is not personal, but may be assigned to a third person, who may bring a bill to restrain the breach thereof. 3. In a sale by the covenantee of the "good-will" of his business, such agreement passed with the assignment. Jacoby v. Whitmore, Eng. Ct. App., July 30, 1883; 32 W. R. 18. 6. CORPORATIONS-ULTRA VIRES. A corporation can not become a stockholder in another corporation, unless such power is given by its charter or is necessarily implied in it. Pearson v. Railroad Co., S. C. N. H., Aug. 30, 1883; 28 Alb. L. J. 366. 7. EMINENT DOMAIN-RIGHT OF LEGISLATURE TO FIX COMPENSATION. The legislature has no right to fix the compensation for the taking of land under the right of eminent domain, but the compensation must be awarded by a jury. Pennsylvania R. Co. v. Baltimore, 8. EVIDENCE-BREACH OF PROMISE-DAMAGES. As bearing on the question, when payment was to In an action for injuries received while travelling on the highway, caused by a collision with a runaway team whose driver had been thrown from the sled in consequence of a bad place in the road about fifty rods back of the place where the accident occurred, evidence that such team had the habit of running away is not admissible for the defendant.-Cheney v. Ryegate, S. C. Vt. February Term, 1883. Reporter's Advance Sheets. 11. EVIDENCE · NEGLIGENCE - SUBSEQUENT REPAIRS-SIMILAR ACCIDEnt. In an accident for negligence in maintaining an alleged defective switch, evidence that the defendant subsequently repaired the switch is not competent. 2. But it may be shown that similar accidents occurred at the same place and by reason of the same alleged defect. Morse v. R. Co. S. C. Minn., June 14, 1883. 12. EVIDENCE-NUISANCE-ACTS DONE PRIOR TO PERIOD EMBRACED IN INDICTMENT. In a trial for maintaining a nuisance in a factory 13. CONDITIONAL EVIDENCE-SALE-INNOCENT A person whose name had been forged as maker to 15. EXEMPTION-INSURANCE. 16. GIFT-DELIVERY AND ACCEPTANCE. |
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