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HAYES fl. SHOEMAKER.

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319'

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with all the facts in the case; and I will not attempt to review them. It is now your duty to render such a verdict as will be just and righti):l view of the testimony and the law as embodied in these instructions.

HAYES V. SHOEMAKER.

(Oircu,it Oourt,N. D. New York. July 23, 1889.)
NATIONAL BANKS-INSOLVENCY-8TOCKHOLDERS-INCOMPLETE TRANSFER.

Where a sharebolder of a national bank mal,es a bona·fide sale of his stock, and goes with tbe purchaser to the ban k. indorses the certificate, and delivers it to the cashier of the bank, with directions to make. the transfer on the books, be bas done all that is incumbent upon him to discharge his liability, and he is not liable. though the cashier failed to make the transfer, upon the subsequent suspension of the bank. for an assessment made by the comptroller of the currency, under Rev. 81. U. 8. \3 5101, tc)'pay the bank:s debts.

At Law. Trial by the court. John N. Beckley, for plaintiff. H. V. Howland, for defendant. COXE, J. This action is by Frank 1\1. Hayes, as receiver of the First National Bank of Auburn, N. Y., to recover upon an assessment made by the comptroller of the currency, under section 51.51 of the Revised Statutes, against the defendant as a shareholder of the bank. The facts are undisputed. On the 16th of March, 1885, 41 shares of stock were transferred by Michael Shoemaker to the defendant, and havesin'ce stood in defendant's name on the books of the bank. On the 31st of Auguf"t, 1886, the defendant, through his attorney, H. W. Taylor, sold this stock in good faith to Clinton T. Backus. Taylor was appointed attorney, by a written instrument, and was invested with full authority to sell the stock, and to perform any act with reference to the transfer thereofthat the defendant could perform. On the day in question Taylor went to the bank to receive the purchase money , and con1plete the transaction. He met Backus there. Charles O'Brien, the cashier of the bank, waS present. O'Brien was advised of the sale, shown the certificate and power of attorney, and informed by Taylor and Backus that they had come, to make a legal transfer of the stock, and to do all that was necessary to accomplish this result. The cashier directed Taylor to indorse the certificate, and deliver it to him with the power of attornE;Y, stating that nothing further was required of either Taylor or Backus. Taylor did as requested. The cashier was authorized and 'directed to make the proper entries in the Books of the bank, and he promised so to do. The defendant supposed that the stock had been propei-ly transferred, and never was iilformed to the 'contrary until just prior to the commencement of this action. It is argued by the plaintifl'that,notwithstanciing this sale,-concedeJly a bona fide one as· between the parties,-the de-

PEDEnAL REPORTER,

vol. 39.

fendant'I' individual liability coptinued, for the reason that the stock was transferred upon the books of the bank, as required by law (section 5139, :Rev. St.) and by the by-laws of the bank. The defendant, on the contrary, insists that all liability was discharged by the sale and the transactions subsequent 'thereto. He maintains that after he had sold his stock in good faith and received payment, after he had indorsed the certificate and surrendered it to the cashier with full notice of the sale, after he had instructed the cashier to have a legal transfer made in the books of the bank, and had been informed by that officer that such a tfllnsfer would be made, and nothing more was required from him, he had done all that was incumbent upon him to discharge his liability. It is thought that the facts bring the cause directly within the rule of Whitney v. Bntler, 118 U. S. 655, 7 Sup. Ct. Rep. 61. The cases cannot be distinguished in principle. In many respects the facts at bar are stronger for the defendant than in the Whitney Oase. The authority of the officers ofthe bunk to transfer the stock was, in that case, implied from the blank power of attorney and notice of sale. Here the request to transfer, made by both vendor and purchaser, was direct, explicit and complete. Nothing is left to inference. The Whitney Case did not turn, as is intimated, upon the form of the authority to make the transfer; the decision is based upon the broad, rational doctrine that the duty of the shareholder was done when he had sold the stock, notified the bank of the sale, requested the proper entries to be made and clothed the bank officials with full authority to make them. The notice of sale and request to transfer being conceded, it is wholly unimportant whether these communications are oral, in writing, or by signs. There can be no doubt that the Whitney Oase would have been decided as it was if the executors had gone to the bank, and orally given the president the authority to transfer. There is no supposition that the court intended to release a seller of stock warrant who sends a power of attorney to the bank, and hold liable one who goes in person, and orally directs the transfer to be made. Such a constructhe unfounded hytion of the decision must necessarily be based pothesis that stock cannot be transferred legally unless the shareholder personally makes the transfer or, in writing, authorizes some other person to act as his agent in So doing. Taylor and Backus clothed the cashier with the necessary authority. He could legally have made the transfer after his interview with them. Had they put the conversation in writing, and signed it, it would have been no stronger. No custom and no law required that this should be done. But, if a written conveyance were necessary, the cashier had the necessary authority to supply it. Ba'(tk v. Kortright, 22 Wend. 348. The rule is a jU8t one that a shareholder, after having doncall.that a prudent and careful business man do, will not be held responsible for the neglect and carelessness of an officer ofthe bank. It is of the utmost importance that the liabpity. of stockholders of national banks should. be rigorously enfl.1rced i but, hanq., the Qourt should not treat them with exceptional fley.eri;ti;· and apply transfers different rules from those which jn other An examination of this testimony

¥ARX V. TR4VELERS' INS. CO.

321

has convinced the court that the defendant, though he might, perhaps, have taken additional precautions, did all that the law, custom, and common prudence required to relieve himself from liability. It follows that judgment should be entered for the defendant.

MARX V. TRAVELERS' INS.

Co.

(Oircuit Oourt, D. Uolorado.

July 24, 1889.)

1.

INSURANCE-AcCIDENT-VOLUNTARY EXPOSURE TO UNNECESSARY DANGER.

It cannot be said that a passenger on a railroad train, who goes out onto the platform while the train is in motion, because he is overcome by the heat of the car, or suffering from nausea, voluntarily exposes himself to unnecessary danger, within the meaning of a policy of accident insurance.

2.

SAME-RuLES OF RAILUOAD COMPANY.

Where a rule forbidding passengers on a railroad train to ride on the platform of a car is generally disregarded by both passengers and trainmen, it cannot be said that to so ride is a violation of "a rule of a corporation," within the meaning of a policy of accident insurance

At Law.

On motion for new trial.

Patterson & Thomas, for plaintiff. Markham & Dillon, for defendant.
HALLETT, J. Plaintiff is the widow of Sigmund Marx, to whom defendant issued an accident policy under date of August 19, 1887, for $5,000. :Marx came to his death by falling from a platform of a railroad car on which he was a passenger proceeding from Denver to Central City. At the trial it became a question whether in riding upon the platform of a car there was" voluntary exposure to unnecessary danger," or a violation of a rule of the railroad company within the meaning of certain conditions indorsed on the policy. There was testimony to show that in traveling upon cars deceased was at times affected with nausea, and found it necessary to go to the open air for relief. The day of the accident was extremely hot, and other passengers had taken position on the platform on that account. When last seen on the platform deceased was sitting with his feet over the end in a position of some danger in case of collision, but not especially so as to falling from the platform. It may be said, however, that he was riding on the platform, and that the accident would not have occurred if he had kept inside the That deceased was in a dangerous position on the platform, as distinguished from the body of the car, in which as a passenger, he was entitled to ride, is clear enough; but whether in going on the platform there was voluntary exposure to unnecessary danger cannot be ascertained except with knowledge of all the circumstances which influenced his conduct. If he was overcome by the heat of the car, Dr affected with nausea, which impelled him to seek the open air, it v.39F.no.5-21