BELL V. HANOVER NAT. BANK.
BELL v. HANOVER NAT. BANK.
(Circuit Court, S. D. New York. September 80, 1893.)
1, NATIONAL BANKS-INSOLVENCy-TRANSFER OF DEPOSIT.
Rev. St § 5242, which declares all deposits, all transfers of deposits, and all payments of money made by a national bank after an act ot ins(.lvency, or in contemplation thereof, to be null and void, does not render illegal the retention of a balance standing to the a-edit of an in· solvent national bank with a correspondent on the day of its failure, which has been pledged for the purpose of securing loans made by the correspondent to the insolvent bank. Where a deposit with a correspondent has, long prior to the commission of the act of insolvency by a national bank, been pledged as collat· eral to secure the payment of loans made to the insolvent by its correspondent, neither the subsequent insolvency of the bank, nor appoint. ment of the receiver, destroys the lien of the correspondent, or its right to dispose of the pledge to satisfy the debt secured. Authority of the pre!!ident of a. national bank to contract with a. correspondent that \ a deposit with the correspondent to the crel11t of the bank shall stand as collateral for loans made by the correspondent to the bank may be· established by proof of the course of business, and by the usage and practice which the directors have permitted to grow up in the business of the bank, and by the knowledge which the board of directors must be presumed to have had of the acts ot its subordinates in the affairs of the bank.
SAME-INSOLVENcy-PLEDGE OF DEPOSIT WITH CORRESPONDENT.
SAME-POWERS OF PRESIDENT.
In an action by the receiver of an insolvent national bank against a cor. respondent to recover the amount of a deposit by the insolvent bank with its correspondent, the evidence showed that the board left it to thtl president. as the agent of the bank, to negotiate loans, and to make such contracts as to repayment and security as were lawful and usual. Held, that the evidence was sufficient to establish the authority of the president to pledge the deposit with the correspondent as security for loans by it to the insolvent bank.
At Law. Action by Ortha C. Bell, as receiver of the First Na· tional Bank of Red Cloud, Neb., against the Hanover National Bank, of New York city, to recover the amount of a deposit by the insolvent bank with the defendant. Mitchell & Mitchell, for plainttiI. Moore & Wallace, for defendant. . LACOM,BE, Circuit Judge. The retaining of the balance stand· ing to the credit of the Bank of Red Cloud on the day of its fail· nre'was not a transfer of deposit, within the meaning of section 5242, Rev. St. U. 8., which apparently contemplates a transfer by the insolvent bank. Bank v. Colby, 21 Wall. 613. The deposit had been pledged (assuming the contract of February 1, 1890, to be valid) long prior to the commission of the act of insolvency, as collateral to secure the payment of the loans made to the Bank of Red Cloud by defendant. Neither the subsequent insolvency of the bank, nor the appointment of the receiver,. destroyed the lien ·of defendan,t,nor its right to dispose of the pledge to satisfy the
debt thus secured. SQOtt v. Armstrong, 146 U. S. 510, l,3 Sup. Ct. :Rep. 148. The":'.eement by' which deposits with the defendant were pledged securlty .for the notes does not -appear upon its face to be the contract of' the Bank of Red 'Cloud, but the- evidence is sufficient to show that such an agreement,. was made between the defendant bank and Shirey, the president of the Red Cloud Bank, professing to act on its behalf. It is true that no authority from the board of directors to make such an agreement is shown, but the contract is not an unusual one, and authority to make it may be established by proof of the course of business, by the usages and prac· -Uce.which the directors may have permitted to grow up in the busi· ness of the bank, and by the knowledge which the board of direct· ors must be' presumed to have had CJf the acts and doings of its subordinates in and aboutthe affairs of the corporation. Mahoney Min: Co. v. Anglo·Californian Bank, 104 U. S. 194. The evidence in this case abundantly shows that the board left it to the presi. dent, as their agent and the bank's, to negotiate loans, and make £l'ttch contracts as to repayment and", security lawful and usual,-sufficiently so, at least, to' bind the bank in such trans· actions with third persons, when the bank has received the bene· fit of such contract, without objections, for more than a year. Martip v. Webb, 110 U. S. 7, 3 Sup. Ct. Rep. 428. Whatever set·oft or counterclaim may arise from the transac· tions between the two banks is ,equitable, and this court would h.ftve no right to grant it in an action at law, such as this is. Scott v. Armstrong, 146 U. S. 512, 13 Sup. Ct. Rep. 148. But, independently of any set-off, the particular deposit sued for is plepged for a specific purpose. It is only such balance of it as might be left the lien upon it is satisfied that either the Bank of Red Cloud or the receiver is entitled to; and that, as the evidence shows, is nothing. Verdict directed for defendant.
PITTSBURGH. 0., O. & ST. L. RY. CO. T. RUSS. (Circuit Court of Appeals, Seventh Olrcult. October 2, 1893.) No.76.
CARRIERS OF PASSENGERS-CONDITIONS OF TICKET-CONSTRUCTION.
Acceptance of a mileage ticket which Is expressed to be upon conditions that "the purchaser agrees to sign his name In presence of conductor each ,time before detachment Is made," and that, "unless the proper signature Is given, this ticket Is forfe1ted," does not constitute an agreement that the conductor may decide for the holder, as well as for the company, whether the holder Is the purchaser named in the ticket.
SAME-WRONGFUL EJECTION OF PASSENGER-REMEDY.
A passenger who is wrongfully ejected from a train by the conductor, on the claim that he Is,not the person named In his ticket, is not limited to an action for breach ,of contract, but may sue the company In tort.
if here81sted the conductor's efforts to eject
In an action by a Instruction to the
for a wrongful ejection from a train, an
PITTSBURGH,C., C. & ST. L. RY. CO. V. RUSS.
him, and such resistance increased the nervous trouble trom whIch he was sufrering, "he cannot recover any damages on account of such increase of said trouble, and his resistance must be considered In mitigation of the plalntiff's damages," is objectionable, as requiring the jury to give defendant a double advantage, by refusing plaintiff any damages on account of injury caused by his resistance to the conductor, and also by considering that resistance in mltigation of the damages otherwise allowable.
6. SAME-RATIFICATION BY COMPANY.
In Error to the Circuit Court of the United States for the District of Indiana. Action by Charles A. Russ against the Pittsburgh, Cincinnati, Ohicago & St. Louis Railway Company for personal injuries. Plain· tiff obtained judgment. Defendant brings error. Reversed. Statement by WOODS, Circuit Judge:
The defendant in error was the plaintiff below. The substance of his complaint is that he was wrongfully, wantonly, and forcibly expelled by the conductor froms passenger train of the plaintiff in error, which he had entered at Louisv1lle, Ky., for the purpose of being carried to Indianapolis; that in payment of his fare he presented to the conductor a mUeage ticket, which was still good for 500 miles or more, and, in the presence of the conductor, signed his name upon the mUeage strip, to be detached, as required by one of the conditions of the ticket, but that the conductor, denying his identity and the genuineness of the signature, took up the ticket, and upon the refusal of the plaintiff to pay fare in money or leave the train when it had arrived at Jeffersonv1lle, Ind., laid hands upon him, and removed him by force. The plaintiff, testifying in hIs own behalf, gave this account of the expulsion: "He simply lifted me up, and he says, 'Is that your baggage on the seaU' I says, 'It is,' and he took hold of the baggage, and pushed me ahead of him to the front part of the coach, and there I sat down in a seat on the same side of the car,-a little short seat that faces the car; I think next to the window. Then he took my valise out and umbrella, and put them on the depot platform, anll came back with the brakeman, and without saying anything, only wanting to know if I was going to pay my fare, and I told him 'No,' and he grabbed hold of me, and pulled me or pushed me out onto
the platform,and doWn tbestaps, onto the depot platform." It does not appear that more force was used than was· necessary to e1rect the removal, and no bod1ly harm was ln1l1cted upon the plaintiff unless It. was, as It Is allered to have been,· by way of "a nervous shock, bringing upon him again the nervous prostration and· disorder from which he had previously been suffering," and "rendering him sick and incapable of work for several weeks thereafter, and necessitating the employment of a physician," etc. By force of conditions annexed to it, the plainti1f's ticket was not transferable, and, if presented by any other person, was to be forfeited. Another condition was expressed in these words: "The purchaser agrees. to sign his name, in presence of conductor, on the back.(closeto the top) of mileage strip each time before detachment is made, and the signature must appear but once on each detachment. Unless the proper signature is given, this ticket is forfeited." The defendant company had issued to its conductors the following Instructions: ."The regnlations regarding the acceptance of mileage tickets for passage must be strictly enforced, without fear or favor. Conductors must. be particular to. know.. that each person presenting,; a nontransferable signature mileage ticket Is the veritable person named on the same, and they must adopt every special and reasonable method for ascertainiJig whether or not mileage tickets are presented by original purchasers. They must require each person presenting, a mileage U()ket to identify himself thoroughly by his signature, and conductors must COmpare the signature, and if they find mileage tickets have been. transferred and are presented by other than the original, purchasers, or the parties wl},o properly' Identify themselves, they must lift such tickets, collect full fare, and report the transaction in the usual manner.. Disregard of this. order In any particular whatever will subject the offendlng conductor to dlsmissill from the service." The court refused to give the jury the following instructions, asked by the plaintiff in error: "When the plaintiff purchased and accepted the ticket in question, in the use of it for passage on defendant's train, he was bound by all the conditions of the annexed contra()t, and all reasonable rules which the make for the govermllent of its employes In respect to the use of such ticket for passage on defendant's trains. Under th9 conditions of the contract, and the reasonable rulell of tne company in respect to the use of the ticket, it was made the <J.uty of conductors of defendant's trains to determine the question, when the ticket was presented for passage, whether or not the plaintiff was the purchaser or owner of the ticket. If, in the perfocmance of that,duty, the conductor of the train in question, in good faith, decided that the plaintiff was not the purchaser and owner of the ticket, and refused to accept the ,same for his passage, but took It up, and demanded that the plaintiff pay hiA fare or leave the train 'at Jeffersonville station, it was the duty of the plaintiff to pa.y his fare, if he had the money, or leave the train at said station, without requiring the conductor to eject Wm therefrom; and, If you find ,that he refused to do either, and the conductor ejected him at said station" using no more force than was necessary, then the plaintiff Is only entitled to recover the value of the unused portion of the ticket, and the damages sustained, If any, by his detention at Jeffersonville until the next train. When a passenger is rightfully on a train, and is about being ejected therefrom, It is· not necessary for him, in order to protect and preserve his rights as. such passenger, to resist the conductor. in his efforts to eject him, or to compel the conductor to use force to remove' him from the train. . In such case his rights would be just as complete .if he .left tbe train under prote1lt. So if you find that the: plaintiff resisted'the conductQr's efforts,to,eject him, or required the conductor to use force to dOBO, and that such,reliistance.orrefusal to leave the train. aggravated or increased the nervous t;rouble under which he claims to have been suffering, he cannot recover any damages. on account of such aggravation or increasepf, said trouble, and his resistane.e to efforts of the conductor must be considered by you in mitigation of· the plaintlff'sdamages." .'rhe court, qt Im.own motion, gave the following instructions: "It having been admitted by. defendant's counsel that the plaintiff was the owner of the ticket in question at the time of his ,expulsion from the train, and entitled
ST. L. BY. 00. t1. BUI!I.
to be carrled thereon on said train; the plaintiff is entitled to recover such proximate damages for his expulsion from the train as will fairly and ful11' compensate him for the wrong done him by his expulsion. In assessing the plainti1r's damages, you may consider alI the circumstances connected with his ejectment from the train as affecting hiS business, his health, and his peace of mind, and assess such damages as wUl fairly and tully com· pensate him for his loss of time, if any, and for his physical and mental suffering or Injury caused by such ejectment. In cases of this sort, where the ejectment of the passenger is wrongful, and is done malIciously, wantonly, or with oppression, in addition to the compensatory damages, the passenger would be entitled to recover punitive or exemplary damages. But it is the opinion of the court from the evidence In this case that the expulsion of the plaintiff by the defendant's conductor was neither malicious, wanton, nor oppressive. It seems to me from the evidence that the conductor acted in good faith, belieVing that he had the right to put the plaintiff off the train. But, while this is the opinion of the court, It is a question for the jury to determine from alI the evidence in the case whether the plaintiff's ejectment from the train by the conductor was attended. with malice, wantonness, or oppression. And, if you determine from the evidence that it was, you have a right, in addition to what you may ftnd the plaintiff entitled to recover to compensate him, to assess such damages as a punishment, or by way of an example to the defendant, as you believe from the evidence the circumstances of the ejectment would fairly warrant."
S. O. Pickens, for plaintiff in error. Jll. J. Beveridge, for defendant in error. Before WOODS and JENKINS, Circuit Judges, and GROSSCUP, District Judge. WOODS, Circuit Judge, (after making the foregoing statement.) We do not assent to the proposition that, by accepting the mileage ticket with its special conditions, the defendant in error agreed that any conductor to whom he should present the ticket might decide for him, as well as for the company, whether or not he was the rightful holder. There is nothing expressed nor fairly to be implied from the conditions to that effect. As the represeptative of his company, acting under such rules as it has prescribed for him, a conductor, in collecting fares or tickets "necessarily con· cedes or rejects the right of the passenger to ride." He must de°termine whether or not money offered him is genuine, or, if it be a ticket or pass, he must decide whether it is valid, or for any reason is not available to the holder; and if he decides incorrectly, to the passenger's injury, the company will be answerable in damages. Bish. Noncont. Law,§ 1095. And there is no good reason why the purchasers of tickets like that in question should be subject to a different rule. It is insisted that the defendant in error should have sought his remedy in an action for a breach of the special contract, and not in an action of tort; but it is well settled that in such cases the action may be in either form, at the election of the plaintiff. Cooley, Torts, 90,91; Railroad Co. v. Fitzgerald, 47 Ind. 79; Reese v. Telegraph Co., 123 Ind. 294, 24 N. E. Rep. 163; Railway Co. v. Hurst, 36 Miss. 660. The second of the instructions asked and refused, even if sound in theory, is objectionable, because upon a strict construction it
jury to give the defendant in the8icUona do1ible ae);van:tage;:'6;yrefusing the plaintfjf anything on .account of iI;J.. jU,ry. himself by resisting the conduptor's eftort to 'eject. him,and by considering that resistance in mitigation of the damages otherwise allowable. Upon the· question whether or not a passenger may resist by force anunW:i1rranted expulsion from. a railway train or other public conveyance, and be entitled to. compensation for injuries, which, but for thatresistauce, he would not have su1fered, the decisions are not in complete accord. In Railroad v. Oonnell, 112 m. 295, the supreme conrt of minois held, in harmony with prior decisions of that court, that, a passenger who resists a wrongful removal "cannot recover for the force nsed by the conductor in putting him off, when no more force is used than necessary." Recog· nizing the right of the party so injured to recover, besides the amount of direct pecuniary damages for the indignity of being expelled from the train," the court, in support of its view of the question, among other things of evident if not conclusive cogency, said:
"When the appellee was notified by the conductor that his ticket was not good and would not be received, it duty to leave the train in a peaoeable ,1jl8JlJ;ler, and hold .thEl company responsible for the consequences, rather thanrestst or undertake to retain his place on the train by foroo. A. train crowded with passengers-often women and children-is no place for a quarrel or a fight between a conduoto,r and a pllSSenger, and it would be unwise and dangerous to thetravellng public to adopt any rule which might encourage a resort to violence on a train of cars. The conductor must have the supervIsion and control of his train,. and a demand on his part for fare should be obeyed, or the passenger should in a peaceable manner leave the traln, and seek redress in the courts, where he will find a complete remed) for any indignity olrllred and for all damages sustained."
But in English v. Canal Co., 66 N. Y. 457, it was held that the passenger "was clearly justified in resistance to the extent necessary to prevent his being ejected;" and in Railway Co. v. Wolfe, 128 Ind. 341, 27 N. E. Rep. 606, that "he had the right to make reasonable resistance, as' he did, by holding onto the seats untU: he was forced· loose and taken from the cars." This last expression is in substantial harmony with the decision of the supreme court of the United States in New YOl'k, etc., R. Co. v. Winter's :A.dm'r, 143 U. S. 60, 73,12 Sup. Ct. Rep. 356, where it is said:
"If he was rightfully the train as a passenger, he had the right to refuse to be ejected from: it, and to make a sufficient resistanCe to being put olr to denote that he was being removed by compulsion and against his will."
, In respect to the measure of damages, the court erred in in· 'structing that the jury might allow vindictive or punitive damages if it found 'that, in removing the plaintiff from the train, the conductor's action was attended with malice, wantonness, or oppression. In the of Railroad Co·. '1. Prentice, 147 U. S. 101, 13 Sup. Ct. Rep. 261, decided since the trial of this case, it was held that, a railroad corporation is, not liable to exemplary or punitive damages on account of illegal, wanton, and oppressive acts of its conductors or· other subordinate agents. The decision rests upon
.C., C. & 8'.r. U
BY. 00;· fl. BUSS.
the principle, applicable alike to corporations and individuals, that "no man should be punished for that of which he is not guilty;" and, consequently, that it is enough. that the principal is responsible for the actual consequences of wanton or malicious conduct of an agent within the line of his employment, and not beyond that, unless he has been in some way particeps criminis. It has been suggested that the conduct of the conductor in this instance had the sanction of the railroad company, because of the instructions which had been issued to conductors in respect to mileage tickets, and because the general ticket agent of the company was present upon the train,- and assented to the conductor's action. The instructions referred to do not seem to us to have been objectionable. While enjoining upon conductors diligence to prevent improper use of mileage tickets, they require nothing inconsistent with the rights of the passenger, and contain no warrant or even suggestion that, in enforcing the conditions of the ticket or the regulations of the company, the conductor should proceed in a wanton or oppressive manner. While it appears that the general ticket agent of the company was upon the train, though not in the car from which the plaintiff was ejected, and that the conductor conferred with him about the plaintiff's ticket, it is not shown that he had authority over the conductor or tempted to dictate or influence his action towards the plaintiff. Besides, if any question was to be made of the ticket agent's participation in the expulsion, or of the company's responsibility otherwise for the wantonness or malice of the conductor, it should have been submitted to the jury for decision upon the evidence. This court cannot review questions of fact in a case at law. It is also urged that the erroneous instruction should be deemed harmless, considering the amount of the verdict, because the jury was told that, in the opinion of the court, the conductor was not malicious, wanton, nor oppressive in his conduct towards the plaintiff, but acted in good faith, and it is not to be presumed that the jury went contrary to that opinion. In the federal courts the opposite theory prevails, it being well settled "that a judge of a court of the United States, in submitting a case to the jury, may, in his discretion, express his opinion upon the facts; and that, when no rule of law is incorrectly stated, and all matters of fact are ultimately submitted to the determination of the jury," such "expressions of opinion are not reviewable on writ of error." Rucker v. Wheeler, 127 U. S. 85, 93, 8 Sup. Ct. Rep. 1142, and cases cited. The error of law cannot be cured by an expression of opinion upon the question of fact concerning which the law is announced, because the jury. is not bound by, and presumably will not follow, the court's opinion concerning the fact if the weight of evidence is to the contrary. The verdict was for $1,000, and it is insisted. but we cannot say judicially, that there was assessed no more than just compensation for the injury which the plaintiff suffered. . The judgment is reversed, at the costs of the appellee, with instruction that a new trial be granted.
et al. v. UNITED STATES. (Olrcuit Court of APPeaIs. Ninth 0Ircuit. July 17, 1893.) No. 53.
APPEAL-DEOISION ON :MOTION FOR NEW TmAL-FEDKRAL COURTS-REVIEW CnicuIT COURT OF ApP:\llALS. ' , . '
The rule that the dec1s1ons of thec1rcuit and dlstrlct courts on motions for ,ne:w trial are not reviewable applies to review in the clrcult court of appe4ls,llS well as in the sl1preme court. RaIlroad Co. v. Howard, 1 O. C. A. 229, 49 ll'ed. Rep. 206, approved. ,
OF DEOISION OF COUBT.
The fact that the decision of a territorial district court on a motion for a new trial Is reviewable in the territorial supreme court does not make such a decisIon by a United States, district court reviewable by the circuit , coqrt otappeals, although the cause, pending the motion fora new trial, has t>eenrem,oved trom the territorial district court upon the admission of the territory into the Union. Bates T. Pay8()Q, 4 DllL 265, distinguished.
OF TAKING MOTION FOR NEW TRIAL. LmITATION BEGINS TO RUN EFFEOT 011'
motions for new trial were reviewable by the territorial supreme court. JUdgment. was rendered by a territorial district court, and motion for a new trial made, pending which theterrltJory was admItted to the Union, and the cause removed to the newly-created United .states district court. Hew., that the, six monthS to whIch the time for suJng out of a writ of errQl'from, the circuit court of appeals was limited by the judiciary act of Mal'cP 3, 1891, § 11, (26 Stat. 829,) did not begl.n to run until the motion fora new trial was finally disposed of. Railway Co. v. Murphy,4 Sup. Ot.Rep. 497, 111 U.S. 488, followed. 4. BILL OF - SUT1lllIENT ON ,MOTION FOR NEW TRIAL lIAY T.um A stQtement made and filed in the trial court in aid of a motion for a a statement of what PurPorts to be all the excepnew tria,l, tions tak,en and allowed, and all the evidence relating tQ the same, If ,regularly settled and allowed by the triai judge, Is su1llc1ent to serve as a bill of exceptions on writ of error.
EVIDENCE-BEST AND SECONDARY-,ACCOUNTS OF DEFAULTING POSTlIAST)llR. THE PLAOE OF.
In 1;Jle territory of Idaho, decisions of the territorial district courts on
In an action on a defaulting postmaster's bond, a question to the defaulter's succ li'l8()r In office whether he had received orders to make demands on the defaulter Is not objectionable on the ground that the written orders are the best evIdence of their contents, since the question does not concern the oontents.
SAlIE-ITElIS OF AOCOUNTS-IDAHO STATUTE.
Rev. St. § 951, providing that, in suits by the United States against individuals, no .credit shall be admitted on trial unless presented to the treasury and disallowed, applies to payments by sureties of a defaulting postmaster on account of his liability, made in cash, as well as to credits, when evidence of such payments is sought to be introduced by the sureties in an action against them on the bond.
ON POSTMASTER'S BOND.