TH$ .CO. v. THE. JERSEY CITY et 01.
CC-weuit Oourt of Appeals, Secon"" Circuit.· July 20,1892.} 1.
CO,LLISION-INJURY TO Tow-BAILOR AND BAILEE-SUBltOGATION.
The owner of a tow which was injured by collision while in charge of 8 tug claimed damages from the tug owner. '.rhe latter, protesting that he was not lia1;111' and that the collision was without fault on the part of the tug, finally paid the demand, taking in return a paper releasing him from all liability, and in tex:ms tlubrogating him to the right of the tow owner to recover from any person who migbt be liable for the damage. The tug owner then libeled the colliding vessel, setting up these facts, and alleging tbat by rea.son thereof he became SUbrogated to· the rights of tbe tow owner. Hel.d, that the question of subrogation was immaterial, for tbe tug owner. was entitled, .8S bailee of the tow, to recover full damages, 8ndtbe fact that be had previously paid the tow owner did not in any way aitect his right of action. . A tug, with several boats in tow alongside, came down the North river,l'9unded to,· ana lay about SllO feet from the New York piers, holding herself against the ebb tide, and Waiting for the· steamboat City of N" which was coming up·astern, to pass inside of her. While SQ. waiting, a ferryboat,bound from Jersey :City to New York, attempted to pass between the tow and the City of N., and her pl'ddle w.bealstruck the outside' boat on the starboard side of, the tug, causing it to ·8ink. Heta, .tbat the fel1ryboat wae liable for the damage. 44 Fed. Rep. 112, affirmed.
TOW-CROSSING COtTRSES. . r
Appeal from the District Court of the United States for the Eastern District of New York. , In Admiralty. Libel by the Cornell StearnboatCompany againstthe ferryboat Jersey City and others to recover damages for collision with a tow while in charge of a tug belonging to libelant. An exception to the libel was overruled. 43 Fed. Rep. 166. Aftei'wards a decree w,as rendered'against tbe ferryboat, (44 Fed. Rep. 112,) and her owners'appeal. Affirmed. Robert D. BenediCt, for appellant. Hem.ry G. Ward, for appellee. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. WALLACE, Circuit J udge. We concur in the opinion of the learned district judge that the ferryboat was exclusively in fault for the collision with the tow. The only question upon tbis branch of the case is one of factj viz., whether, when the ferryboat attempted to make her slip by passing between the tug and her tows and the steamboat City 9f Norwich, the tug allowed' herself and tows to drop back with the tide, and thus intercept the course of the ferryboat. The weight of theev:idence is decidedly against the contention for the ferryboat,and, were it 'DOt, we should 110t feel at liberty to' disregard tbecorlclusions of the district judge upon a qUeStion of fact, depending wholly upon the intelligence and 'credibility of the witnesses, When all the ,witnesses were in his presence. The only question of law in the case which has 'been arguedil.t the liar is whether the libelant became subrogated to the claim of the Delaware & Hudson Canal Company, the owner of the injured tow, against
the ferryboat for the damages. The libel states facts showing that, while the libelant's tug was toWing a. canal boat belonging to the Delaware & Canal Company, the ferryboat negligently, and without fault of the tug,collided with and ihjured the tow; and it further alleges that the "paid for the damages to said boat, and thereby became subrogated to all the rights of the owner." The facts established by the evidence are that after the collision the owner of the tow insisted thatJhe)ibelant should pay the damages occasioned thereby; that the libelalltrefnsed, insisting that it was under no legal obligation to do so, was irtflictetl:without fault on the part of the tugjthat subsequently, influenced by the desire to preserve cord'rrlity ill their relations, the libelant paid the damages 16 the o,wner of thetowj,that several years thereafter the libelant asked the owner of the tow'foran assignment of the latter's cause of action against the ferryboat, which was refused,onthe ground that the claim had been paid, t08.ssign, but that the latter consented to execute"l:\n.qthereupon did exeeute, an instrument rl;lciting that the libelant containii)gthe followlng language: the saidD'elaware & Hudson Canal Company hereby re, leasesandfot6ver discharges the said Cornen Steamboat Company, its successors and assigns. of and from all actions, causes of action, suits. controversies, c!a:ims. and demands: \vhatsoever, by reason of the sinking of said canal boat, and hereby subrogates the said steamboat company in its place to pel'sonthat may be liable therefol' the damage sustained by saId .canalboat. ,. . . Thequesti<?ll whether the became subrogated to the claim of the & Hudson Canal CompanY does not affect the right of the libelant t9. Itbas been unnecessarily introduced into the controversy. The libelant was a bailee of the property injured. Either the bailee or the bailor may maintain an action against a tort-feasor who injures the property while in the custody of the bailee, and recover the full damages; but !t: of damages by one, and payment.by the wrongdoer, will be a full satisfaction, and may be pleaded in bar at any /lubseqiU6l1t other. Thorp v. Burling, 11 Johns. j Hoyt ,v. Gelston, lS Jopns. 141, 561; White v. Webb, 15 Conn. 305; little v. 34 Me. 545; Stowell Otis, 71 N. Y. 36. If, say the court, in v. t1¥J suitjs brought by a bailee or special property man Il,gainst the the plaintiff can recover the value of his special if thElw,rit is against a stranger, then he recovers value of tl:;te:propcrtyandipterest according to the general rule, and hQlds.thebalan9!l beyond 4is own interest in trust for the general owner. " the recovered the damages occasioned by the tor.t pf the payi%;lgtheowner of .the tow. A subsequent wh.ether.ex gratia: or .unde, compulsion, could, not prejudice the right of recovery. The decree should be affirmed, with costs ,district court and of this court.
MERCANTILE TRUST CO. V. TEXAS & P. RY. CO.
MEnC\NTILE TRUST Co. fl. TEXAS & P. Ry. Co. et 01. FARMERS'LoA.'i & TRUST CO. v. INTERNATIONAL & G. N. R. CO. et al. MERCANTILE TRUST CO. V. ST. Lours S. W. Ry. CO. OF TEXAS et al. SAME 11. ,TYLER S. E. Ry. CO. OF TEXAS et al. FARMERS' LOAN & TRUST CO. tI. GULF, C. & S. F. Ry. Co. et al.
(Circuit Oourt, W. D. Texas. August 28, 1892.)
RAILROAD COMPANIES BONDHOLDERS.
REGULATION OF RATES -
STATB ComUSSIONS -
bondholders of certain railroads in Texas brought bills against the railroan companies and against the state railroad commissioners an d the attorney general, alleging that the full inte.rest on the bonds was not being paid or earned; thl/ot in most cases the earnings were even insufficient to pay operating expenses; that the'railroad companies were willing and anxious to meet all their obligations to oomplainants, but were prevented from exercising their judgment and discretion in making remunerative, rates of transportation by the defendant commissioners, under pain of the severe penalties prescribed by the railroad commission law. Act Tex. AprilS, 1891. Complainants claimed that this act was in violation of the constitution oHhe United States, and prayed an order enjoining the commissioners from putting or continuing in effect any schedule of rates prescribed by them, and'restraining them and the attorney general from suing for any penalties, or otherwise enforcing the provisions of the act. HeUl, that complainants showed a interest in the roads to entitle them to maintain thll suits. A suggestion of collusion between complainants and defendant railroad 'companies in 'bringing the suits was without merit, for whether or not the companies themselves could sue under section 6 of the act, and obtain all the relief complainants are entitled to, the latter are entitled to enforce tpeir rig-hts in the national courts; and that is not affected, even if there was a previous understanding between and the railroad companies that relief would be more speedily and effectually obtained in the federal courts.
TO SUE IN FEDERAL COURTS-COLLUSION.
BilIE-FUINGRATES-NoTICE-DuE PROOESS OF LAW.
Under section 4 of the act, which proVides that the commission shall give notice and hearing to the railroads affected before establishing any rates, the commission sent out'Ilotices to all the railroads in Texas that on a specified date they would begin thll classification of freights and the fixing of rates. On that day the representatives tif the railroads appeared, and for several days the question of classification and rates was discussed ill !teneral, but no J;larticular rates or changes from existing rates were proposed. Thereafter, and WIthout further hearing, the coinmission prpceeded to prescribe rates from time to time and put them in force. Beld, that these proceedings did not constitute "due process of law," and the rates fixed were void, under constitution of the United States.
, Section 5 of the act provides that, "in all actions between private parties and railway companiell brought under this law, the rates, char,;es, orders, regulations·. and classifioations prescribed by said commission before the institution of such action shall be held conclusive, and deemed and accepted to be reasonable, fair, and just, and in such respects shall not be controverted therein until finally found otherwise in adirect action brought for that purpose in the manner prescribed by sections 6 . and 7 thereof." Section 6 provides for actions by railroad companies against' the commissioners for the purpose of testing the reasonableness of the rates prescribed, and section 7 declares that in all such actions the burden shall be upon the companies 'to'show that such rates are unreasonable and unjust. Held, that section 5, and aU otherprovisions of the law which tend to enforce a compliance with the rates fixed by the commission irrespective of their reasonableness,. or tend to embarrass such roads as seek to invoke the protection of the federal'constitution against'the taking of their property without due process of law, are unconstitutional.
InEquity. Suits for injunction. tions. Granted. v.51F.no.9-34
On motion for temporary injunc-