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the law implies a promise that he will do so. So one Here then the defendant did not in fact contract or ought to pay a judgment rendered against him, or a promise to pay this judgment, or the interest thereon. penalty which he has by his misconduct incurred, and The law made it his duty to pay the interest, and imhence the law implies a promise that he will pay. plied a promise that he would pay it. That duty is There is no more contract to pay the judgment than discharged by paying such interest as the law, during there is to pay the penalty; he has neither promised the time of default in paying the principal sum, preto pay the one nor the other, the promise is a mere scribed as the legal rate. fiction, and is implied merely for the purpose of the If this judgment had been rendered at the date the remedy. Judgments and penalties are, in the books, execution was issued, interest would have been comin some respects, placed upon the same footing; at puted upon the original demand at seven per cent to common law both could be sued for in an action ex January 1, 1880, and then at the rate of six per cent. contractu for debt, the action being based upon the Shall the plaintiff have a better position because the implied promise to pay, but no one will contend that judgment was rendered prior to 1880 ? a penalty is a contract, or that one is really under a As no intention can be imputed to the parties in recontract liability to pav it. McCoun v. N.Y. C & H. R. ference to the clause in the judgment requiring payR. Co., supra.

ment"with interest," we may inquire what intenSuppose a statute gives a penalty to an aggrieved tion the court had. It is plain that it could have no party, with interest, what interest could he recover? other intention than that the judgment should draw The interest allowed by law when the penalty accrued, the statutory interest until payment. It cannot be if the statutory rate has since been altered ? Clearly presumed that the court intended that the interest not; he would be entitled to the interest prescribed by should be at the rate at seven per cent if the statutory by law during the time of the defendant's default in rate should become less. payment; there would, in such a case, be no contract That there is no contract obligation to pay the into pay interest, and the statutory rate of interest at terest upon judgments which is beyond legislative inthe time the penalty accrued would become part of no terference is shown by legislation in this country and contract. If therefore a subsequent law should change in England. Laws have been passed providing that the rate of interest, no vested right would be inter- all judgments should draw interest, and changing the fered with, and no contract obligation would be im- rate of interest upon judgments, and such laws have paired.

been applied to judgments existing at their date, and The same principles apply to all implied contracts. yet it was never supposed that such laws impaired the When one makes a valid agreement to pay interest at obligation of contracts. any stipulated rate for any time, he is bound to pay it, It is claimed that the provision in section 1 of the and no legislative enactment can release him from his act of 1879, which reduced the rate of interest (chap. obligation; but in all cases where the obligation to pay 538), saves this judgment from the operation of that interest is one merely implied by the law or is im- act. The provision is that “nothing herein contained posed by law, and there is no contract to pay except shall be so construed as to in any way affect any conthe fictitious one which the law implies, then the rate tract or obligation made before the passage of this of interest must at all times be the statutory rate; the act." The answer to this claim is that here there was rate existing at the time the obligation accrued did no contract to pay interest at any given rate. The not become part of any contract, and hence the law | implied contract, as I have shown, was to pay such which created the obligation could change or alter it interest as the law prescribed, and that contraot is not for the future without taking away a vested right or affected or interfered with. impairing a contract.

The foregoing was written as my opinion in the case In the case of all matured contracts which contain of Prouty v. Lake Shore & Michigan Southern R. Co. no provision for interest after they are past due, as I The only difference between that case and this is that have before said, interest is allowed, not by virtue of there the judgment was by its ternis payable "with the contract, but as damages for the breach thereof. interest." Here the judgment contains no direction In such cases what would be the effect of a statute de. as to interest. The reasoning of the opinion is appliclaring that no interest should be recovered ? As to cable to this case and is therefore ready to justify my the interest which had accrued as damages before the vote in this. Since writing the opinion we have dedate of the law, the law could have no effect because cided in the case of Sanders v. Lake Shore & Michigan that had become a vested right of property which Southern R. Co., 18 Weekly Dig. 160, the law to be could not be taken away, but the law could have effect as laid down in the first paragraph of the opinas to the subsequent interest, and in stopping that ion. from ruuning would impair no contract. A law could The orders of the General and Special Terms should be passed providing that in all cases of unliquidated be reversed and the motion granted, without costs claims which now draw no interest, interest should in either court, the parties having so stipulated. thereafter be allowed as damages; and thus there is ANDREWS, J. (concurring) My conclusions are: ample legislative power in such cases to regulate the 1st. The exception in the act of 1879, “nothing future rate of interest without invading any constitu- herein contained shall be so construed as to in any tional right. When a man's obligation to pay interest way affect any contract or obligation made before the is simply that which the law implies, he discharges passage of this act," applies only to contracts or oblithat obligation by paying what the law exacts.

gations resting upon the voluntary, mutual agreement This judgment, so far as pertains to the question we of parties. A judgment is not a contract or obligation are now considering, can have no other or greater made between the parties, and only such contracts or force than if a valid statute had been enacted requir- obligatious are within the exception. Salter's case, 8 ing the defendant to pay the same sum with interest. N. Y. 401. Under such a statute interest would be computed, not

20. Interest post diem on a contract for the payment at the rate in force when the statute was enacted, but of money is given, not on the principle of implied conaccording to the rate in force during the time of de- tract, but as damages for breach of contract. Interest fault in payment. A different rule wonld apply if a on a judgment, which is an obligation of record to pay judgment or statute should require the payment of a the sum adjudged, is given as damages for delay in given sum with interest at a specified rate, they inter- performing the obligation. est at the rate specified would form part of the obliga- 3d. In both cases the measure of damages is the tion to be discharged.

statutory rate. This rule does not rest on the basis of contract, but upon the ground that the creditor has by a breach of the condition of the bond to sue thereon lost by the detention of the debt or obligation post in his own name and for his sole use. diem, the use of the money represented thereby, and The question presented by the record is whether the the law measures the loss by the statutory interest taking by the marshal upon a writ of attachment on upon the assumption that the value of the use of the mesne process against one person of the goods of anmoney to the creditor, if the money had been paid other, is a breach of the condition of his official bond, when due, would equal the interest given by stat- for which his sureties are liable. ute.

The marshal, in serving a writ of attachment on 4th. It would seem to follow, in applying the prin- mesne process, which directs him to take the property ciple upon which interest post diem is given, that if of a particular person, acts officially. His official duty the rate of interest is changed during the default, the is to take the property of that person, and of that per. damages increase or diminish pari passu, in the ab- son only; and to take only such property of his as is sence of any exception changing the rate. The rule subject to be attached, and not property exempt by of damages does not change, but simply the compu- law from attachment. A neglect to take the attacbtation.

able property of that person, and a taking, upon the 5th. The cases which hold that a note payable with writ, of the property of another person, or of property interest, but specifying no time, draws interest until exempt from attachment, are equally breaches of his default or payment, at the statutory rate existing official duty. The taking of the attachable property when the note was made, proceed upon an interpre- of the person named in the writ is rightful; the taking tation of the contract. They do not govern the case of the property of another person is wrongful; but of a judgment, as right to interest on a judgment is each, being done by the marshal in executing the writ giveu by law and not by the agreement of the parties. in his hands, is an attempt to perform his official duty

All concur, except Miller and Danforth, JJ, dis- and is an official act. senting.

A person other than the defendant named in the [See 17 Alb. L. J. 412, 438; 18 id. 198; 20 id. 483; 27 writ, whose property is wrongfully taken, may indeed id. 197, 461, 478; 28 id. 18; 25 Am. Rep. 592; 26 id. 391, sue the marshal, like any other wrong-doer, in an ac469; 30 id. 47 ; 34 id. 250; 45 id. 414; 18 N. Y. W. Dig. tion of trespass, to recover damages for the wrongful 403.-ED.)

taking; and neither the official character of the mar

shal, nor the writ of attachment, affords him any deSURETY OF OFFICIAL BOND.

fense to such an action. Day v. Gallup, 2 Wall. 9; Buck v. Colbath, 3 id. 334.

But the remedy of a person whose property is wrong. SUPREME COURT OF THE UNITED STATES.

fully taken by the marshal, in officially executing his MARCH 17, 1884.

writ, is not limited to an action against him person

ally. His official bond is not made to the person in LAMMON V. FEUSIER.

whose behalf the writ is issued, nor to any other indiA marshal of the United States, upon a writ of attachment on vidual, but to the government, for the indemnity of all

mesne process against one person, took the goods of an. persons injured by the official misconduct of himself other. Held, a: breach of the conditions of the official

or his deputies; and his bond may be put in suit by bond, for which his sureties are liable.

and for the benefit of any such person. N error to the Circuit Court of the United States for When a marshal upon a writ of attachment on mesne the Distriot of Nevada.

process takes property of a person not named in the GRAY, J. The original action was brought in the writ, the property is in his official custody, aud under Circuit Court of the United States for the District of the control of the court whose officer he is and whose Nevada by Henry Feusier, a citizen of California, writ he is executing; and according to the decisions of against George I. Lammon and three other persons, this court the rightful owner cannot maintain an action citizens of Nevada, upon a bond given by Lammon, of replevin against him, nor recover the property spethe marshal of the United States for that district, as cifically in any way except in the court from which the principal, and by the other defendants as his sureties, writ issued. Freeman v. Howe, 24 How. 450; Krippen. and conditioned that Lammon, "by himself and by his dorf v. Hyde, 110 U. S. 276. deputies, shall faithfully perform all the duties of the The principle upon which those decisions are founded said office of marshal."

is, as declared by Mr. Justice Miller in Buck v. Colbath, It was alleged in the declaration and found by the above cited, “that whenever property has been seized court (trial by jury having been duly waived) that by an officer of the court, by virtue of its process, the Lammon while marshal, and while the bond was in property is to be considered as in the custody of the force, having in his hands a writ of attachment on court, and under its control for the time being; and mesne process against the property of one E. D. Feu- that no other court has a right to interfere with that sier, levied it upon the goods of the plaintiff, a stran- possession, unless it be some court which may have a ger to the writ. On the question of law whether the direct supervisory control over the court whose protaking of the plaintiff's property upon a writ of attach- cess has first taken possession, or some superior jurisment against another person constituted a breach of diction in the premises." 3 Wall. 341. Because the law oficial duty on Lammon's part for which his sureties had been so settled by this court, the plaintiff in this were liable, the Circuit judge and the District judge case failed to maintain replevin in the courts of the were opposed in opinion, and so certified. The plaintiff State of Nevada against the marshal for the very taking having died pending the suit, final judgment was ren- which is the ground of the present action. Feusier . dered for his executors, in accordance with the opin- Lammon, 6 Nev. 209. ion of the Circuit judge, and the defendants sued out For these reasons, the court is of opinion that the this writ of error.

taking of goods upon a writ of attachment into the cusThe bond sued on was given under section 783 of the tody of the marshal, as the officer of the court that is. Revised Statutes, which requires every marshal before sues the writ, is, whether the goods are the property of entering on the duties of his office to give bond with the defendant in the writ or of any other person, an Bureties for the faithful performance of those duties by official act, and therefore if wrongful a breach of the himself and his deputies; and this action was brought bond given by the marshal for the faithful performunder sectiou 784, which authorizes any persou injured ance of the duties of his office.

Upon the analogous question whether the sureties were laid at a greater sum. In an action upon his offiupon the official bond of a sheriff, a coroner or a con- cial bond, it was argued for the sureties that they were stable are responsible for his taking upon a writ direct- no more answerable than if he had acted without any ing him to take the property of one person, the prop

writ. But Chief Justice Shaw, in delivering the opinerty of another, there has been some difference of opin- ion of the Supreme Judicial Court of Massachusetts, ion in the courts of the several States.

overruling the objection, and giving judgment for the The view that the sureties are not liable in such a plaintiff, said: “He was an officer, had authority to atcase has been maintained by decisions of the Su- tach goods on mesne process on a suitable writ, professed preme Courts of New York, New Jersey, North Caro. to have such process, and thereupon took the plaintiff's lina and Wisconsin, and perhaps receives some support goods; that is, the goods of Bean, for whose use and from decisions in Alabama, Mississippi and Indiana. benefit this action is brought, and who therefore may Ex parte Reed, 4 Hill, 572; People v. Schuyler, 5 Barb. be called the plaintiff. He therefore took the goods 166; State v. Conover, Dutch. 224; State v. Long, colore officii, and though he had no sufficient warrant Ired. 415; State v. Brown, 11 id. 141; Gerber v. Ackley, for taking them, yet he is responsible to third persons, 32 Wis. 233, and 37 id. 43; 19 Am. Rep. 751; Governor because such taking was a breach of his official duty." v. Hancock, 2 Ala. 728; McElhaney v. Gilleland, 30 id. Upon the weight of authority therefore, as well as 183; Brown v. Moseley, 11 Sm. & Marsh. 354; Jenkins upon principle, the judgment of the Circuit Court in v. Lemonds, 29 Ind. 294; Carey v. State, 34 id. 105. the case at bar is right, and must be But in People v. Schuyler, 4 N. Y. 173, the judgment

Affirmed. in 5 Barb. 166, was reversed, and the case of Ex parte (See article ante page 404.-ED. Reed, 4 Hill, 572, overruled by a majority of the New York Court of Appeals, with the concurrence of Chief Justice Bronson, who had taken part in deciding Reed's EXPULSION OF PASSENGER-DAMAGES. case. The final decision in People v. Schuyler has been since treated by the Court of Appeals as settling the

MICHIGAN SUPREME COURT, MARCH 6, 1884. law upon this point. Mayor, etc., of New York v. Sib

HUFFORD V. GRAND RAPIDS, ETC, R. Co.* berns, 3 Abb. App. Dec. 266, and 7 Daly, 436; Cumming

As between conductor and passenger the ticket must be the v. Brown, 43 N. Y. 514; People v. Comstock, 93 id. 585.

conclusive evidence of the passenger's right to travel; but And the liability of the sureties in such cases has been if the ticket is apparently good, the passenger has a right affirmed by a great preponderance of authority, includ. to refuse to leave the car. ing decisions in the highest courts of Pennsylvania, If medical expert testimony is to be admitted in cases of tort, Maine, Massachusetts, Ohio, Virginia, Kentucky, Mis

as to the possibility of injurious consequences to the plainsouri, Iowa, Nebraska, Texas and Califoruia, and in

tiff's health from mere words, or from the vexation caused the Supreme Court of the District of Columbia. Car.

by the tort, the parties putting their question to the expert

should at least be required to take into account, when conmack v. Commonwealth, 5 Binn. 184; Brunott v. McKee,

sidering the possible consequences, the contemporaneous, 6 Watts & Serg. 513; Archer. v. Noble, 3 Greepl. 418; or nearly contemporaneous, facts that may also conduce to Harris v. Hanson, 2 Fairf. 241; Greenfield v. Wilson, 13 the disturbance of health. Gray, 384; Tracy v. Goodwin, 5 Allen, 409; State v.

rror to Kent. Jennings, 4 Ohio St. 118; Sangster v. Commonwealth, 17 Grat. 124; Commonwealth v. Stockton, 5 T. B. Mon. 192; Jewell v. Mills, 3 Bush, 62; State v, Moore, 19 Mo. E. S. Eggleston, for plaintiff. 369; State v. Fitzpatrick, 64 id. 185; Charles v. Haskins,

D. D. Hughes, for defendant and appellant. 11 Iowa, 329; Turner v. Killian, 12 Neb. 580; Holliman v. Carroll, 27 Tex. 23; Van Pelt v. Littler, 14 Cal. 194:

COOLEY, C. J. The plaintiff sues for being wrongUnited States v. Hine, 3 MacArthur, 27.

fully threatened with expulsion from the cars of deIn State v. Jennings, abore oited, Chief Justice Thur

fendant, and compelled to pay fare a second time after man said: “The authorities seem to us quite conclu

he had bought a ticket which the conductor refused to sive that a seizure of the goods of A. under color of

take. It appears that on September 19, 1882, the plaintprocess against B. is official misconduct in the officer

iff and one Goodyear were at Manton, on the road of makiug the seizure; and is a breach of the condition

defendant, and about to proceod to the north. They of his official bond where that is that he will faithfully

had then been together some days. At Manton they perform the duties of his office. The reason for this is

bought tickets for Traverse City from the agent of de

feudant. Plaintiff noticed that the ticket given to him that the trespass is not the act of a mere individual, but is perpetrated colore officii. If an officer, under

was not like that given to Goodyear, and called the color of a fi. fa. seizes property of the debtor that is

agent's attention to the fact, and inquired if it was

In this the agent was misexempt from execution, no one, I imagine, would deny good, and was told it was. that he had thereby broken the condition of his bond.

taken. The ticket was one part of an excursion ticket Why should the law be different, if under color of the

from Sturgis to Traverse City, and had been cancelled same process, he take the goods of a third person? If

from Sturgis to Grand Rapids. The evidence is conthe exemption of the goods from the execution in ficting as to whether it had not also been cancelled the one case makes the seizure official misconduct,why

from Grand Rapids to Walton, a station north of Man

ton. should it not have the like effect in the other? True,

When the ticket was presented to the conductor it may sometimes be more difficult to ascertain the

he told plaintiff it wns not good separated from the ownership of the goods than to know whether a particu

other part. He also claimed that it had been used by lar piece of property is exempt from execution; but

another person to Walton, and he told the plaintiff he this is not always the case, and if it were, it would not

must pay his fare to Walton or he should put him off justify us in restricting to litigants the indemnity af

the cars. The plaintiff at first refused, and was adforded by the official bond, thus leaving the rest of the

vised by Goodyear to persist in his refusal, but when community with no other indemnity against official

tbe conductor took hold of the bell-rope to stop the misconduct than the responsibility of the officer might shoulder, he consented to pay the fare and did so, tak

train, and as plaintiff says, put his hand on plaintiff's furnish." 4 Ohio St. 423. So in Lowell y. Parker, 10 Met. 309, 313, a constable,

ing the conductor's receipt therefor. The fare paid was authorized by statute to serve only writs of attach- twenty-five cents. The plaiutiff theu proceeded on his ment in which the damages were laid at no more than

journey. $70, took property upon a writ in which the damages

*S. C., 18 N. W. Rep. 580.

Error

To show that he was entitled to something more when it was demanded, and looked afterward to the than merely nominal damages the plaintiff gave evi- railroad company for the refunding of the money, and dence that he was uot well at the time of the occur- for compensation for any trouble he might be put to in rence; that he had a chronic diarrhoea, and he thought obtainiug it. And it would have been very prudent the trouble was greater afterward than before. It does and proper for him to adopt his course, even though not seem however to have interfered with his business, there was nothing on the face of the ticket to apprise which was that of a commercial traveler, nor had it him of the invalidity. If the conductor, who was manakept him from visiting the houses of ill-fame at Cadil- ger of the traiv, informed him that for any reason the lac a day or two before. A physician was put upon ticket was one he could not receive, a contest with hini the stand as an expert, and was asked whether, if a over it must generally be very profitless, and therefore man afflicted with chronic diarrhoea, and riding upon nnadvisable; but we are all of opinion that if the a public railroad car, should be taken hold of by the plaintiff's ticket was apparently good he had a right to conductor, and under a threat to eject him from the refuse to leave the car. car, the person excited under the influence of it, it The following cases support Frederick v. Mar. would have any effect upon his health. The reply was quetle, etc., R. Co., and some of them in their that it would be likely to cause a relaxation of the facts closely resemble the one before us: Townsend v. bowels temporarily.

N. Y. C. & H. R. R. Co., 56 N. Y, 295; 15 Am. Rep. In submitting the case to the jury the judge in- 419; Chicago, etc., R. Co. v. Griffin, 68 Ill. 499; McClure structed them that if they should find from the evi- v. Philadelphia, etc., R. Co., 34 Md. 532; 6 Am. Rep. dence that the plaintiff purchased the ticket in ques-345; Shelton v. Lake Shore, etc., R. Co., 29 Ohio St. tion in good faith, and had paid for the same, and only 214; Downs v. N. Y. &N. H. R. Co., 36 Conn. 287; 4 refused to leave the train under an honest belief of Am. Rep. 77; Petrie v. Pennsylvania R. Co., 42 N. J. having paid his fare,and that the ticket was good from L. 419; Yorton v. Milwaukee, etc., R. Co., 54 Wis. 234; Manton to Traverse City, and that this belief was in- | 11 N. W. Rep. 482; 41 Am. Rep. 23; and 6 Am. & Eng. duced by the assurances of the agent of the company Ry. Cas. 322. Whether the ticket the plaintiff held of whom he purchased the ticket, and if there was was fair upon its face was a disputed question in the nothing upon the face of the ticket which would ap- case, and must depend for its solution upon the view prise him of any infirmity in it, then any attempt of taken by the jury of the credibility of the witnesses the conductor to remove the plaintiff from the car by who testified respecting it. the actual taking bold of his person, or laying his The medical evidence which was given in the case hands upon him for that purpose, was an assault and respecting the effect of the alleged assault upon the battery, for which the plaintiff had a right to recover plaintiff's health, seems to call for some comment. As any and all damages naturally and legitimately result, the assault was a battery only in a technical sense, and ing therefrom. Under this instruction the plaintiff there was no pretense of injury except such as might had a verdict for $366.61.

come from mere words-from the mere expression on In Frederick v. Marquelte, etc., R. Co., 37 Mich. 342; the part of the conductor of a determination to put S. C., 26 Am. Rep. 531, it was decided that as between the plaintiff off the car unless he paid his fare - the the conductor and the passenger the ticket must be proposition that it was proper to call expert witnesses the conclusive evidence of the extent of the passen- to show the possibility of injurious consequences from ger's right to travel. No other rule can protect the such words to the plaintiff's health is suggestive of posconductor in the performance of his duties or enable sibilities in the trial of causes which the trial judge him to determine what he may or may not lawfully do may well contemplate with some solicitude. If expert in managing the train and collecting the fares. If evidence of the sort was admissible in this case, it is when a passenger makes an assertion that he has paid difficult to conceive of a case of assault and battery, or fare through, ho can produce no evidence of it, the conductor must at his peril concede what the passen

of any other case in which vexing or provoking words ger claims, or take all the responsibilities of a tres

are made use of, where the expert witness may not passer if he refuses. It is easy to see that his position become an important factor in determining the result. is one in which any lawless person, with sufficient impu- But the field for his operations could by no means be dence and recklessness, may have him at disadvan- restricted to cases in which disturbing words had been tage, and where he can never be certain, if he performs made use of. Nearly every case of tort is accompanhis apparent duty to his employer, that he may not be ied by some circumstance which is calculated to annoy subjected to severe pecuniary responsibility. Such a state of things is not desirable, either for railroad corn

and vex the party entitled to sue for it; and if the pospanies or for the public. The public is interested in

sible effects upon the mind, and through the mind upon having the rules whereby conductors are to govern

the health, are to be the subject of expert 'investigatheir action certain and definite, so that they may be

tion and testimony in a case like this, they must be so enforced without confusion and without stoppage of at the discretion of the parties in all cases, and the trains; and if the enforcement causes temporary in- medical witness may become as much an incident to convenience to a passenger, who by accident or mis- the session of a trial court as the jury itself. Should take is without the proper evidence of his right to a passage, though he has paid for it, it is better that he

this ever come to be the case, the parties, in putting submit to the temporary inconvenience than that the their questions to the expert wituesses, should at least business of the road be interrupted to the general an.

be required to take into account-when considering noyance of all who are upon the train. The conduc- possible consequences — such contemporaneous, or tor's duty, when the passenger is without the evidence nearly contemporaneous, facts as may also conduce to of having paid his fare, is plain and imperative, and it the disturbance of health ; such, for example, as some cau serve no good purpose and settle no rights to have which appeared in this case, and have been mentioned a controversy with him. The passenger gains nothing above. The judge in his instructions evidently atby being put off the car, and loses nothing by paying tached importance to this expert testimony, aud it 10 what is demanded and staying ou.

The plaintiff therefore in this case, if it was found doubt conduced to swell the damages awarded.
tbat the ticket he held was r.ot good by reason of for- The case should go back for a new trial.
mer use and cancellation, should have paid his fare Sherwood and Campbell, JJ., cuncurred.

A

STATION AGENT IS FELLOW-SERVANT.” the injuries resulting from his negligence. It remains

to consider whether this opinion is correct. MINNESOTA SUPREME COURT, MARCH 31, 1884. Prima facie the plaintiff and the station agent were

fellow-servants, for they were acting together under BROWN v. MINNEAPOLIS AND ST.L. R.Co.

one master in carrying out a common object. Gilman

v. Eastern R. Co., 10 Allen, 233. They were engaged In the absence of controlling evidence to the contrary, the presumption is that an ordinary railway station agent has

in the same common employment, under the same general charge of the tracks in and about his station.

general control. Cooley Torts, 544, and cases cited. As respects such charge he is the fellow-servant of an engi- They were subject to the same general control, coupled

neer engaged in running a locomotive upon any of such with an engagement in the same common pursuit. tracks, and hence the common master of the two is not Wood Mast. & Serv., $$426, 435, and cases cited. responsible to the engineer for injury which he may re- McGowan y. Railroad Co., 61 Mo. 528; Thomp. Neg. ceive in consequence of the negligence of the station

1037, § 38. Is there any thing to except the station agent, as respects the charge of such tracks.

agent from this prima facie relationship of fellow-serPPEAL from an order of the District Court, Hen- vant to the plaintiff? He would be excepted only if he nepin county. Opinion states the case.

stood in the place of the master as a vice-principal, or Merrick & Merrick, for appellant.

as it is sometimes expressed, as the master's alter ego.

Malone v. Hathaway, 64 N. Y. 5. But one employed J. D. Springer, for respondent.

becomes a vice-principal as respects another only BERRY, J. While plaintiff was running a regular when he is intrusted with the performance of some abpassenger train upon defendant's rallroad as a locomo- solute and personal duty of the master himself, such tive engineer, his engine (without apparent fault on as the providing of proper instrumentalities with his part) ran into some box cars standing upon the

which the service required of an employee is to be permain track at Winthrop station and he was injured. | formed, or the general management and control of the The main track was that to which plaintiff's train was master's business, or of some branch of it. Drymala entitled. The freight cars had been placed there by v. Thompson, 26 Minn. 40; S. C., 1N. W. Rep. 255, and persons not in defendant's employ, for their own con- cases cited; Wood Mast. & Serv., SS 390, 438; Mullan v. venience, and without other authority than the assent P. & S. M. S. Co., 78 Penn. St. 25; Malone v. IIathof the station agent. They were placed there about 3 away, supra. P. M., and the collision occurred at 7:35 P. M., so that In such cases the negligence of the vice-principal is they had theu been there more than four hours. The the negligence of the master. Drymala v. Thompson, train was due at the station at 7:27. The plaintiff put supra; Fay v. Railroad Co., 30 Mimn. 231; S. C., 15 N. in evidence a rule of the company as follows:

W. Rep. 241; Cooley Torts, 560, 563; Corcoran v. Hol"Station agents are responsible for safety of switches brook, 59 N. Y. 517; Quincy M. Co. v. Kitts, 42 Mich. which must always (except when a man is standing 34; S. C., 3 N. W. Rep. 240; Booth v. Railroad Co., 73 by) be kept right for trains running on main track. N. Y. 38. They must see that no cars are moved on side track so But the general management or control of the masnear the switches as not to properly clear the main ter's business, or some branch thereof, does not intrack. Cars must not be allowed on the main track to clude the case of one simply charged with special load or unload, unless permission is obtained from duties performing them under the direction of the train-master."

master, or under the control of superior officers. MaThere was no evidence of any other rule or regula- lone v. Hathaway, supra. tion, express or implied, as to the management of the Applying the rule that the facts being undisputed, tracks at or about the station, or as to the duties of a the relation of the station-master to the plaintiff is a station agent. But we agree with the plaintiff's coun- question of law (Marshall v. Schricker, 63 Mo. 309), in sel, that in the absence of controlling evidence to the our opinion the station-master in this case does not contrary, an ordinary railway station agent is to be fall within the exception to the rule making him primu taken as having general charge of the tracks at and facie plaintiff's fellow-servant. Here there was no about his station. This is a reasonable presumption of neglect to furnish or maintain suitable instrumentalifact, founded upon the ordinary course of business, ties for the performance of plaintiff's proper service; the common understanding of the public, and the na- and herein this case differs essentially from Drymala ture and necessities of the case. Of course, the sta- v. Thompson, supra, relied upon by plaintiff. There tion agent is always subject to the control of his su- the track itself was defective. Here no complaint is periors, and his general charge may be limited by made that the track was improperly constructed or in rules and regulations; as iu this instance, by the pro- bad order. But the complaint, in effect, is that a bibition to place cars upon the main track to load or proper track was improperly used or attended to by unload without permission from the train-master or the station agent. A master is not, by reason of any by the assignment of some portion of what would or- absolute or personal duty on his part, liable to one dinarily be his duties to some other person. The pre-employee for the improper use of proper instrumentalisumption spoken of appears to be assumed by the rule ties by another. Floyd v. Sugden, 134 Mass. 563; Sumpat in evidence.

mersell v. Fish, 117 id. 312; Griffiths v. Gidlow, 3 Hurl. As a consequence of these views it is clear, that upon & N. 648; Gibson v. Pacific R. Co., 46 Mo. 163; Wood the facts before stated, it was the duty of the station Mast. & Serv., $ 371; Brown v. W. & St. P. R. Co., 27 agent, as respects the plaintiff, to see to it that the Minn. 162; S. C., 6 N. W. Rep. 484; Heine v. Chicago & main track was unobstructed and ready for his train, N. W. R. Co., 17 id. 420. and that, in suffering it to be obstructed as it was, the Any other doctrine would obviously lead to most agent was guilty of negligence through which plaintiff astonishing consequences. Neither is the stationwas injured. As respects the defendant, this negli- agent's case that of an officer exercising general congence of the station agent is the only negligence of trol or management of the defendant's business, or of which plaintiff can or does complain. In this state of a branch thereof. He is simply charged with special facts the trial court dismissed the action, being of duties as to his station, as a switchman sometimes is opinion that the station agent was plaintiff's fellow- as to a particular switch or an engineer as to a particuservant, aud that therefore (no charge of incompetence lar engine. His duty is simply that of an operative. being made against him) plaintiff cannot recover for Farwell v. B. & W. R. Co., 4 Metc. 49; Gilman v. East

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