N.J. Steamboat Co. v. Brockett, 121 U.S. 637 (1887)

When the contract of a common carrier with a passenger assigns to the latter a particular part of the vessel or vehicle to be occupied by him during transportation, and he voluntarily occupies a place different from that contracted for, the carrier is released from liability for injuries which necessarily arise from the passenger’s change of place; but it p. 638continues bound to furnish safe transportation, and to indemnify the passenger, under general rules of law, for injuries which do not directly arise by reason of his change of place, or which are caused by improper conduct of the carrier’s servants, acting either in the scope of their general duties, or in the discharge of special duties imposed upon them.

I. On the face of the complaint no cause of action is shown. The action was brought on a contract alleged to have been made between the parties. Now the contract on the part of p. 640the company, alleged, was to carry the plaintiff as deck passenger, but the allegations of the complaint are in effect an admission that Brockett received his injury at a place on the deck where he was not entitled to be, under his contract. The complaint further alleged the existence of the regulations of the place for deck passengers, and that the action arose from the enforcement of this regulation by the watchman charged with such duty.

III. On all the evidence the plaintiff was not entitled to recover, and the court erred in refusing so to instruct the jury. The plaintiff testified that his ticket contained these words, “ deck passengers not allowed abaft the shaft.” Placards up at the clerk’s office, which he admits having seen, called his attention to the conditions of his passage. The ticket is the contract or the evidence of the contract. The complaint, however, does not state the important qualifications of the contract contained in the ticket, and the company was entitled to a verdict on the ground of this variance. But, if it is assumed that the contract was sufficiently pleaded, and the cause of action set forth by the necessary averments of a breach, the evidence failed to sustain a case so stated. Brockett was where he had no right to be. His injury was the result of an p. 641accident in the fall upon the vessel in his scuffle with the watchman. And he himself admits that he had refused to obey orders and come down from the hops. He di,d not try to obey, but says, “ I tried to get back.” The jurisdiction of the action of defendant’s servants was complete, unless the conversation after the accident, and the officers’ acts after the accident added some new liability, and in respect to their subsequent acts, Brockett’s evidence stands alone uncorroborated.

IV. The court erred in ruling “ if you Relieve that statement (of theplaintiff') to l>e true, then I say, as a matter of law, that there was moreforce than was necessary to accomplish the result, a/nd the plaintiff is entitled to a verdict” while refusing to rule that if the plaintiff, by his own fault, got involved in a personal quarrel with the watchman, and was injured in consequence of such quarrel, he cannot have relief in this p. 642action against the defendant, but must look to the watchman.

1. Brockett testified against objection that a man wearing the uniform of the company approached after his fall and said, “You farmers are so stingy — you are too stingy to buy p. 643a stateroom and you ought to be killed.’* The case was one in which it was of great importance to the defendant company that the issues should be submitted to the jury without irrelevant matter. Instead of that method of trial, evidence * was introduced of declarations after the event which constituted no part of the res gestas. The declarations were not only calculated to excite prejudice in the minds of a class, which probably was represented on the jury, but must have affected the mind of any humane man. It is not too much to say that after these declarations were introduced in evidence, the company could not get an impartial consideration of its evidence. The object of the rules of evidence in our system is to prevent the influence upon the jury of such irrelevant matter. The company is not liable in law for the brutal language of its servants.

It appears from the complaint that the company had a regulation restricting deck passengers to a particular part of the boat; but of the existence of that rule, the plaintiff averred, he did not, at the time, have notice.' It also appears by uncontradicted evidence that, upon the ticket purchased by the plaintiff, were printed the words “ deck passengers not allowed abaft the shaft,” and that placards, in different parts of the boat, indicated the place on it which such passengers were prohibited from occupying. As the plaintiff was “abaft the shaft ” when injured, no case, it is insisted, was made that would sustain an action upon the contract of transportation; consequently, it is contended, the request to instruct the jury to find for the defendant should have been granted. This argument assumes that the plaintiff could not claim protection under the contract for safe transportation in respect to an injury done him by the company’s servants while he was upon a part of the boat other than that to which he was restricted by the rule or regulation printed on his ticket. This position cannot be sustained. We shall not stop to inquire whether the regulation in question is shown to be a part of the contract for transportation; and we assume, for the purposes of this case, that the plaintiff stipulated that, during the voyage, he would remain upon the part of the boat to which deck passengers were assigned; still, it would not follow that his violation of that stipulation deprived him of the benefit of his contract. Such violation only gave the carrier the right to compel him to conform to its regulation, or, upon his refusing to do so, to require him to leave the boat, using, p. 645in either case, only such force as the circumstances reasonably justified. If the injuries necessarily arose from his violation of the regulation established for deck passengers, the carrier would not be responsible therefor. But if they were not the necessary result of his being, at the time, on a part of the boat where he had no right to be, and were directly caused by the improper conduct of the carrier’s servants, either while acting within the scope of their general employment, or when in the discharge of special duties imposed upon them, he is not precluded from claiming the benefit of the contract for safe transportation.

The plaintiff was entitled, in virtue of that contract, to protection against the misconduct or negligence of the carrier’s servants. Their misconduct or negligence whilst transacting the company’s business, and when acting within the general scope of their employment, is, of necessity to be imputed to the corporation, which constituted them agents for the performance of its contract with the passenger. Whether the act of the servant be one of omission or commission, whether negligent or fraudulent, “if,” as was adjudged in- Philadelphia c& Reading Railroad v. Derby, 14 How. 468, 486, “it be done in the course of his employment, the master is liable; and it makes no difference that the master did not authorize or even know of the servant’s act or neglect, or even if he disapproved or forbade it, he is equally liable, if the act be done in the course of his servant’s employment.” See also Philadelphia, Wilmington <& Baltimore Railroad v. Quigley, 21 How. 202, 210. “ This rule,” the Court of Appeals of New York well says, “ is founded upon public policy and convenience. Every person is bound to use due care in the conduct of his business. If the business is committed to an agent or servant, the obligation is not changed.” Higgins v. Watervliet Turnpike Co., 46 N. Y. 23, 27. The principle is peculiarly applicable as between carriers and passengers; for, as held by the same court in Stewart v. Brooklyn <& Crosstown Railroad, 90 N. Y. 588, 591, a common carrier is bound, as far as practicable, to protect its passengers, while being conveyed, from violence committed by strangers and copassengers, and undertakes absolutely to protect them against p. 646the misconduct of its own servants engaged in executing the contract.

What will be misconduct on the part of its servants towards a passenger cannot be defined by a general rule applicable to every case, but must depend upon the particular circumstances in which they are required to act. In the enforcement of reasonable regulations established by the carrier for the conduct of its business, the servant may be obliged to use force. But the law will not protect the carrier if the servant uses excessive or unnecessary force. This doctrine is well illustrated in Sanford v. Eighth Avenue Railroad, 23 N. Y. 343, 345.1 In that case it appeared that the plaintiffs intestate got upon a street railroad car in the night time, and, after being showfi to a seat, refused, without sufficient cause, to pay his fare. He was ordered to leave the car, and, failing to do so, the conductor led him to the forward platform, and, without stopping the car, forcibly ejected him therefrom. The injuries received by the passenger resulted in his death. The court said: “ It must be conceded that the conductor had a right to expel the intestate for the reason that he would not pay his fare when asked to do so. But this was not a right to be exercised in a manner regardless of all consequences. A person cannot be thrown from a railroad train in rapid motion without the most imminent danger to life; and, although he may be justly liable to expulsion, he may lawfully resist an attempt to expel him in such a case. As the refusal of a passenger to pay his fare will not justify homicide, so it fails to justify any act which in itself puts human life in peril; and the passenger has the same right to repel an attempt to eject him, when such attempt will endanger him, that he has to resist a direct attempt to take his life. The great law of self-preservation so plainly establishes this conclusion that no further argument is necessary. . . . It is said that the intestate offered resistance when he was thus seized. But this he had a right to do in order to save life, which he had not forfeited by refusing to pay the fare. He was liable, as we said, to be expelled, and the conductor’s assault would have p. 647been justified if the car had been stopped, and the expulsion had been made without unnecessary violence. But, as the conductor had no right to make the assault, when he did and as he did, so the law will justify such resistance as was offered to that assault.” See also Hoffman v. New York Central & Hudson Riner Railroad, 87 N. Y. 25; Rounds v. Delaware, <&c., Railroad, 64 N. Y. 129, 134; Lynch, v. Metropolitan Railway, 90 N. Y. 77; Ramsden v. Boston <& Albany Railroad, 104 Mass. 117, 121; Noble v. Cunningham, 74 Ill. 51, 53; Northwestern Railroad v. Hack, 66 Ill. 242; Robinson v. Webb, 11 Bush, 464, 482.

In the present case the jury were instructed, in substance, that the plaintiff had no right to be in any part of the boat except that assigned to deck passengers, and that the carrier’s servants had the right — using no more force than was necessary—to remove him from the place where he was found by the watchman. Referring to the testimony of the plaintiff, the court observed: “He says that he went upon the bales of hops, remained there a short time, went to sleep, and was awakened by the watchman, Thiel, striking him with a cane; that he struck him first on the feet, afterwards in the face, and told him to get down. He asked Thiel if he was doing any harm there, and asked to be allowed to stay. Part of the answer was, ‘ Get down, come down.’ The assault upon him continuing, he then put up his satchel for protection, and was thereupon* caught by the collar of his coat and pulled headlong from the freight, his shoulder striking one of the barrels standing near, dislocating it or causing the injury which has been described. He says that upon regaining his feet he was again struck by the watchman. Soon after another officer of the boat came and he was pushed towards the shaft and told that was the part of the boat for him to remain in; that he went to the barber shop, and there for the first time read his ticket and saw the requirement in reference to deck passengers. That very briefly is the statement of the plaintiff.” The court proceeded: “If you believe that statement to be true, then I say, as a matter of law, that there was more force than was necessary to accomplish the result, and the p. 648plaintiff is entitled to a verdict.” To this last part of the charge the defendant took an exception. But we perceive no ground upon which the exception can properly rest. If the statements of the plaintiff were true, then neither argument nor citation of authorities is necessary to show that undue force was used by the company’s servants. And it was the right of the court to so instruct the jury.

3. A state statute which levies a tax upon the gross receipts of railroads p. 657for the carriage of freights and passengers into, out of, or through the state, is a tax upon commerce among the states, and therefore void. Fargo v. Michigan, 230.

1. A mining and manufacturing corporation in Virginia acquired title by deed to 10,000 acres of land in that part of the state which afterwards became West Virginia, and then, under a law of Virginia, acquired title, by condemnation, to a strip of land for a right of way to it from the Kanawha River over adjoining lands. The company becoming embarrassed, judgment creditors commenced proceedings in equity to secure the marshalling of the assets of the corporation and their application to the payment of its debts. These proceedings resulted in a sale to C., which sale was confirmed and a deed executed. Subsequently C. filed a bill to enforce certain trusts accompanying the purchase, and then an amended bill, making the corporation a party. In the latter it was averred that the tract for the roadway had been sold p. 660under the decree, and had been left out from the deed by the commissioner by mistake, and the bill prayed that the tract should be decreed to be conveyed to C. The company answered by the same counsel representing C., admitting these facts to be true. The court decreed a sale of all the property, including both tracts, which was made accordingly, and the sale confirmed, and a deed to the purchaser made. Held, that the title of the corporation in the tract acquired by condemnation passed to the purchaser under the second sale as fully as if conveyed by the company by a deed under its corporate seal, and that, under the circumstances, the employment of the same counsel by the company and by C., was not evidence of fraud. McConihay v. Wright, 201.

2. A bill in equity for the infringement of letters-patent for an invention p. 662held, on a general demurrer, to be in proper form; and the requisites of such a bill considered. McCoy v. Nelson, 484.

1. In November, 1872, K. was the owner of all the capital stock, and in possession of all the real estate (using it as his own) of an agricultural association, incorporated under the laws of Minnesota. Two hundred shares of this stock he had purchased from G., giving notes therefor, secured by pledge of the stock, which notes and stock were p. 663transferred to a state bank by G. to secure payment of a loan to himself. One hundred shares of the stock were purchased by K. of M., who, in like manner, transferred them to the state bank as collateral. K. transferred the remaining shares to B. as collateral for his obligation to B., with authority, also, to hold them as additional security for K.’s note, held by the bank. In August, 1873, K. contracted in writing to sell a large part of the real estate to C., the purchase money to be paid in railroad bonds, and verbally agreed to transfer all the capital stock, and procure a deed of the real estate from the corporation. C. had no knowledge of the transaction with the bank and with B. It was then agreed between K., B., and the bank, that the bank should take part of the railroad bonds in exchange for the stock held by it, the stock to be sent to the Park Bank, in New York, for exchange; and K. gave an order on C. for the bonds. In pursuance of the agreement, K. procured a deed of the real estate to be executed by individual directors in the name of the corporation, which deed was never authorized by the directors at a meeting of the board, and delivered it to B., together with a warranty deed thereof in his own name. The order for the bonds was never presented to C., nor were the bonds deposited at the bank in New York, nor was the stock delivered to C.; but K. retained the bonds and C.’s notes for his own use. C. took possession of the real estate, and conveyed a part of it to a harvester company. The association and the state bank filed a bill in a state court in Minnesota against C., to have the respective rights of the parties in the property determined. The Supreme Court of that state held, on appeal, that the deed to C. conveyed no title to him; but that, subject to the rights of the bank and of B., C. was the equitable holder of the stock. Proceedings then took place at the motion of the state bank, which resulted in a pretended sale of the stock to various parties; whereupon C., who had filed his bill in the Circuit Court of the United States against the agricultural association and the state bank, filed a supplemental bill including the purchasers of the stock, — the general purpose of both bills being to establish his equities in the capital stock and corporate property of the association. Held (1), That it was not now open to him to set up that the deed of the directors was valid as the deed of the corporation, and that he acquired title through it and through K.’s deed, those being res judicatce; (2) that the equities of the state bank in the stock were superior to those of C.; (3) that the pretended sale of the stock by the bank was not a real transaction; (4) that subject to some modifications, the decree below should be affirmed. Minneapolis Association N. Canfield, 295.

2. In June, 1846, a sale took place, at public auction, under a deed of trust, of land in Mississippi, the property of M., the husband of the plaintiff, and on which they lived. The plaintiff’s father bought the land at the sale. His daughter and her husband continued to live on it. The p. 664husband died in 1847; and, in 1848, she married L., and they continued to live on the land. In 1858, she and L. and her father executed an instrument, by which her father leased the land to her for her life, in consideration of natural love and affection and $100, and which acknowledged that the sole legal and equitable title and the right of property in and to the land were in her father. Five months afterwards, she and her husband duly acknowledged the execution of the lease, and recorded it in the proper office. In 1869, her father made his will, devising the land to her for her life, and to a grandson, in fee, after her death; and died in 1870. In 1881, she brought this suit in equity against the grandson, to cancel the lease, and set aside the devise to the grandson, on the ground that her father bought the land under a parol trust for her, and that her signature to the lease was obtained by duress. Held, that she was estopped from setting up the parol trust, and that no ground was shown for setting aside the lease. Laughlin v. Mitchell, 411.

5. Declarations made by one officer to another officer of a steamboat, while both are engaged in violently removing a passenger from a part of the vessel in which his contract of transportation did not entitle him to be, are admissible in evidence as a part of the res gestce, in an action brought by the passenger against the corporation owning the p. 665steamboat and transporting the passenger, to recover damages for injuries resulting from the assault. New Jersey Steamboat Co. v. Brockett, 637.

1. When an indictment is filed with the court no change can be made in the body of the instrument by order of the court, or by the p. 666prosecuting attorney, without a re-submission of the case to the grand jury. And the fact that the court may deem the change immaterial, as striking out of surplus words, makes no difference. The instrument, as thus changed, is no longer the indictment of the grand jury which presented it. This was the doctrine of the English courts under the common law. It is the uniform ruling of the American courts, except where statutes prescribe a different rule, and it is the imperative requirement of the provision of Art. V. Amendments to the Constitution, which would be of little avail if an indictment once found can be changed by the prosecuting officer, with consent of the court, to conform to their views of the necessity of the case. Ex parte Bain, 1.

1. While a vessel was in transit on a voyage from Liverpool to New Orleans, its home port, a policy was taken out, “ to navigate the Atlantic Ocean between Europe and America, and to be covered in port and at sea,” these words being written in the printed blank, and the insurers knowing the home port of the vessel. The policy also contained in print the words : “Warranted by the assured not to use port or ports in Eastern Mexico, Texas, nor Yucatan, nor anchorage thereof during the continuance of this insurance.” The vessel p. 667completed the voyage to New Orleans, went thence to Ship Island for a return cargo to Liverpool, and was lost from peril of the sea in the Gulf of Mexico, on the way from Ship Island to Liverpool. Held, that there was no conflict between the written and the printed parts of the policy; that the insurers contemplated that the vessel would navigate the Gulf of Mexico, except the designated ports, and that the policy covered the vessel at the time of the loss. Merchants’ Ins. Co. v. Allen, 67.

4. The judgment of the highest court of a state involving the enforcement or interpretation of a contract is not reviewable in this court, under p. 668the clause of the Constitution protecting the obligation of contracts against impairment by state legislation, and under the existing statutes defining and regulating its jurisdiction, unless by its terms or necessary operation it gives effect to some provision of the state constitution, or some legislative enactment of the state claimed by the unsuccessful party to impair the contract in question. Lehigh Water Works v. Easton, 388.

4. The rights of each and all of the parties in this case being separate and p. 669distinct, but depending on one contract, they elected to join in enforcing the common obligation; and, as one citizen of Ohio is a necessary party on one side, and another citizen of that state a necessary party on the other, with interests so conflicting that the relief prayed for cannot be had without keeping them opposed, the cause is remanded (with costs against the appellants in this court) to the Circuit Court with directions to dismiss it for want of jurisdiction. Peninsular Iron Co. v. Stone, 631.

5. The statutory liability of a shareholder in a national bank for the debts of the corporation survives against his personal representatives, lb. 6. A stockholder in a national bank continues liable for the debts of the company, under the statutes of the United States, until his stock is actually transferred upon the books of the bank, or until the certificate has been delivered to the bank, with a power of attorney authorising the transfer, and a request, made at the time of the transaction, p. 673to have the transfer made: a delivery to the president of the bank as vendee and not as president is insufficient to discharge the shareholder under the rule in Whitney v. Butler, 118 U. S. 655. Ib.

1. During the trial in Dakota of adverse claims to a mineral location, it appeared that one M. not a party to the record, asserted an interest in the lode and was a necessary party to a complete determination of the matters in controversy. By consent of parties he was made a codefendant, defendant’s counsel appearing for him, and an entry of it was made in the journal of proceedings, and a further entry that “any amendments to pleadings required to be prepared and served during the pendency of this action or at its conclusion.” The trial then proceeded, M. participating as codefendant, and resulted in a verdict for the plaintiff. Before the entry of judgment plaintiff’s attorney served on defendants’ attorney a notice of an amendment to the complaint by inserting therein the name of M., together with an additional paragraph averring that he set up a claim of interest in the property, that it was without foundation, and asking the same relief against him as against the other defendants. Objection was taken to this mode of amending the pleadings for the first time in the Supreme Court of the territory on appeal. Held, that M. was sufficiently made party to the p. 675case by the proceedings and the amendment filed, and that he must be presumed to have adopted the answer of his codefendants. Noonan v. Caledonia Mining Co., 393.

4. Letters-patent No. 104,376, dated June 14, 1870, granted to John M. Thacher for improvements in fireplace heaters, are not for a particular p. 676device for effecting the combination described in the patentees’ claim, but for the combination itself, no matter how or by what means it may be effected, and, as such, are void. Ib.

2. The findings of a jury, on which the Circuit Court reserved points of law, having been treated by that court, and by the counsel for both parties in it, as amounting to either a special verdict or an agreed p. 677statement of facts, this court overlooked the irregularity, on a writ of error, and considered the case on its merits. Hartranft v. Wiegmann, 609.

7. After segregation of the lands by the state, and adoption of the segregation surveys by the proper Federal officers, the right of the state’s grantees to maintain an action for recovery thereof cannot be defeated because such lands have not been certified or patented to the state. Ib. 8. The issue of patents for these lands to defendants or their grantors, under the preemption laws, upon claims initiated subsequent to the swamp grant to the state is not conclusive at law as against parties claiming under such grant, and in an action for their possession evidence is admissible to determine whether or not the lands were in fact swamp and overflowed at the date of the swamp land grant: if proved p. 678to have been such, the rights of subsequent claimants under other laws are subordinate thereto. Ib.

3. When a cause is removed from a state court to a Circuit Court of the United States on the ground that the controversy is wholly between citizens of different states, and the adverse party moves in the Circuit Court to remand it, denying the averments as to citieenship, the burden is on the party at whose instance the suit was removed to p. 680establish the citizenship necessary to give jurisdiction to the Circuit Court. Carson v. Dunham, 421.