ern Railway Company owns the capital stock of the defendant, but the employees are answerable in their employment to the defendant and not to the railway company.

At and for some time prior to his death, which occurred on October 9, 1917, Matthew C. Kelly, plaintiff's husband, was in the employ of the defendant express company as a warehouse man at a salary of $18 per week. Defendant's general office building, where Kelly usually worked, is at the corner of Third and Broadway streets in the city of St. Paul, and its warehouse is situated some two blocks distant therefrom near the yards of the Union Depot. There were toilet accommodations in the general office building, but there were none in the warehouse in which deceased was sent to work in sorting express, and the distance between the two buildings was such as to render it impossible for an employee at the warehouse to reach the toilet in case of an exigency. On the day of the accident decedent had been handling express at the general office building. Shortly before the accident he was directed to go to the warehouse and there assist in sorting express packages, which were to be sent by the defendant to points outside the state over the Great Northern Railway Company's lines. While at the warehouse in the course of his employment, deceased had occasion to use a toilet and sought, as a matter of necessity, shelter under a freight car standing on a side track some 30 feet distant from the warehouse. The car was moved and he was killed instantly. Although the place to which deceased resorted was an unsafe one, the trial court found that he was not guilty of wilful negligence.

It is contended that neither the defendant company nor the deceased was subject to the Workmen's Compensation Act at the time of the accident; that the defendant was owned by the Great Northern Railway Company; that it operated over the lines of that and other steam railways; that it paid a certain per cent of its revenues for its railway service, and therefore was a common carrier by steam railroad and exempt from the operation of the act.

Under the original Compensation Act, § 8202, G. S. 1913, the only common carriers exempted from its operation were those subject to Federal legislation. By chapter 193, p. 258, of the Laws of 1915, section 8202 was amended so as to provide that: "This act shall not be con

strued or held to apply to any common carrier by steam railroad." It is clear that the defendant express company is a common carrier, but it neither owns nor operates a railroad of any kind. Its employees are not subject to the Federal Employer's Liability Act. It has exclusive control over its employees. In transacting business it avails itself of the various railroads in its territory as a means of shipping express, paying stated rates therefor. We do not think it can be said that the appellant is, within the meaning of the law, a common carrier by railroad. Higgins v. Erie R. Co. 89 N. J. Law, 629, 99 Atl. 98. Evidently the legislative purpose of the amendment was to prescribe a rule exempting carriers having to do with the operation of railroads by steam. We hold that the defendant was within and subject to the provisions of the act.

We have no doubt but that the trial court was fully justified, under the showing, in finding that the accident arose out of and within the course of the employment. It occurred during working hours. There were no toilet accommodations within two blocks. Decedent was of necessity compelled to attend to his call. Defendant was negligent in not providing accommodations in the warehouse. The necessity of the decedent's immediately retiring to some available place, coupled with the absence of accommodations in the warehouse, gave rise to the danger. The case is not without precedent. Newark Pav. Co. v. Klotz, 85 N. J. Law, 432, 91 Atl. 91; Jarvis v. Hitch (Ind. App.) 65 N. E. 608; State v. District Court of St. Louis County, 129 Minn. 176, 151 N. W. 912; State v. District Court of Ramsey County, 129 Minn. 502, 153 N. W. 119, L.R.A. 1916A, 344.

Judgment affirmed.

LEGAL NEWS PUBLISHING COMPANY v. GEORGE
C. KNISPEL CIGAR COMPANY.1

Notice to discontinue

May 16, 1919.

No. 21,246.

– evidence of proper mailing evidence of receipt.

1. Proof of the proper mailing of a notice is evidence of its receipt in due course, and in this case there was sufficient evidence that the

1Reported in 172 N. W. 317.

--

acceptance of newspaper delivered

defendant mailed to the plaintiff, a newspaper publisher, a notice to discontinue sending its paper, and that the plaintiff received the notice. Contract finding not required. 2. One may accept delivery and make use of a newspaper delivered to him, just as he may of other things, under such circumstances as to make a contract implied in fact between him and the publisher; but the evidence in this case did not require the finding of such a contract.

Action in the municipal court of St. Paul to recover $37.50 subscription price of plaintiff's newspaper. The answer admitted that defendant subscribed for "Finance and Commerce," but denied that he subscribed therefor for a period of two years and six months from May 16, 1914, or that he ever agreed to pay $15 per annum for the periodical; he further alleged that the subscription having been made plaintiff on April 15, 1914, presented a bill for $6 which was paid and that plaintiff was then and there directed to discontinue the delivery of the periodical to defendant. The case was tried before Boerner, J., who made findings and ordered judgment in favor of defendant. From an order denying its motion for amended findings or for a new trial, plaintiff appealed. Affirmed.

R. A. Walsh, for appellant.

W. J. Horrigan, for respondent.

DIBELL, J.

Action to recover the subscription price of a newspaper. There were findings for the defendant and the plaintiff appeals from the order denying its motion for a new trial.

1. The plaintiff publishes a newspaper known as "Finance and Commerce" and delivers it in part by carrier and in part by mail. The defendant subscribed for the paper for one year from May 16, 1913. It was delivered to him by carrier. He claims that on April 15, 1914. when he paid the last half of the year's subscription, he ordered the paper discontinued. There is evidence that on that date he sent a notice of discontinuance by mail and that with it there was inclosed a check for the last half year. There is evidence that the notice was not received. It is conceded that the check was received in some way. Proof of proper mailing is evidence of receipt in due course. Dunnell, Minn.

Dig. and 1916 Supp. § 3445, and cases; 1 Wigmore, Ev. § 95. It may be rebutted. If the notice was in fact mailed with the check the receipt of the check definitely evidences the receipt of the notice. The claim that the notice was sent is weakened by the fact that when the defendant wrote the plaintiff's attorney in response to his demand of payment he did not assert that he had discontinued the paper, but claimed that he had subscribed and paid for one year and the plaintiff had no right to renew it. The question whether the notice was sent and received was one of fact. A finding to the effect that it was is sustained by the evidence.

2. There is evidence that after the expiration of the first year's subscription, and from May 16, 1914, to November 16, 1916, the newspaper was delivered to the defendant and received and accepted by him, and for this period it is sought to recover. There is evidence that it was not delivered nor received, or that if there was any sort of delivery at all it was in a desultory way and that there was no acceptance nor use made of the paper.

It is well understood that one may accept delivery and make use of a newspaper, just as he may of other things, under such circumstances as to make a contract implied in fact. Fogg v. Portsmouth Atheneum, 44 N. H. 115, 82 Am. Dec. 191; Austin v. Burge, 156 Mo. App. 286, 137 S. W. 618; Goodland v. LeClair, 78 Wis. 176, 47 N. W. 268; Weatherby v. Banham, 5 C. & P. 228. The evidence was not such as to require a finding of a contract implied in fact.

Order affirmed.

STATE EX REL. IDA M. BODMAN AND OTHERS v. PROBATE COURT OF COUNTY OF ST. LOUIS AND ANOTHER.1

1. Capital stock represents the interest of its owner in the corporation, and the rights of such owner rest on the laws of the state which

1Reported in 172 N. W. 318.

created the corporation. And a transfer by will of the capital stock of a domestic corporation is subject to the inheritance tax of this state, although the testator was a resident of another state and kept the certificates of stock in such state and the courts of that state could acquire jurisdiction of the corporation by service of process therein.

Same

otherwise when bonds are bequeathed.

2. The situation of a stockholder differs from that of a bondholder. State v. Chadwick, 133 Minn. 117, distinguished.

Same — severance by statute of situs of stock from domicile of decedent. 3. By exerting jurisdiction over the transfer from a nonresident decedent of the capital stock of a domestic corporation, the taxation statute severs the situs of such stock from the domicile of the decedent for the purposes of the statute.

4. Where a domestic corporation is incorporated only in this state, the tax upon a transfer by will of its capital stock is to be computed on the full value of such stock (less the exemptions allowed by statute), although the properties of the corporation may be situated in several states.

Upon the relation of Ida M. Bodman and others the supreme court granted its writ of certiorari directed to the probate court of St. Louis county and the Honorable S. W. Gilpin, judge thereof, to review the proceedings of that court in the inheritance tax upon the estate of Edward C. Bodman, deceased. Affirmed.

Francis H. DeGroat, for relators.

Clifford L. Hilton, Attorney General, and Egbert S. Oakley, Assistant Attorney General, for respondents.

TAYLOR, C.

Edward C. Bodman, a resident of the state of New York, died testate on January 21, 1917, possessed of real estate in St. Louis county, Minnesota, of the value of $16,670 and of 1,450 shares of the preferred capital stock of the Great Northern Railway Company, a Minnesota corporation, of the value of $169,650. His will was admitted to probate in the state of New York and was subsequently admitted to probate by the probate court of St. Louis county in this state. The probate court held that our statutes imposed an inheritance tax on the transfer of the capital stock of the railway company as well as on the transfer of the real estate, and