MEYER V. GATEUS.
35
MEYER, WEIS
&. CO.
tI. GATE US.
(Circuit Court, W. D. Tennell.ee. - - , 1880.) L PRACTICE SET-OFF -
OF DISMISSAL BY THE PLAINTIFF.-
Where the defendant has filed a plea of set-off, if the plaintiff voluntarily dismisses his suit, as he may under the Tennessee statute, the defendant may elect to proceed on his plea of set-off in the capacity of plaintiff, and the cause will be tried as if he had brought an independent suit on his counter cluim. .
George Gillham, for defendant. L. Lehman, for plaintiffs. HAMMOND, D. J. At a former day of this term the plaintiffs dismissed their suit, and now the defendant, who had filed a plea of set-off, moves to re-instate the case upon the trial docket for the purpose of trying the issues made upon his plea of set-off. The Tennessee Code, in the chapter regulating the trial and its incidents, provides that "the plaintiff may, at any time before the jury retires, take a nonsuit, or dismiss his action, as to anyone or more defendants; but, if the defendant has pleaded a set-off or counter claim, he may elect to proceed on such counter claim in the capacity of a. plaintiff." T. & S. Code, 2964. The chapter on pleadings in civil actions, in the article on the plea of set-off, had provided· that "if the debt or demand so offered to be set off exceed the amount of the plaintiff's demand, such excess being found by the jury, judgment shall be rendered against the plaintiff in favor of the defendant for such excess, and all costs." T. & S. Code, 2922. In construing this latter section the supreme court of Tennessee has repeatedly determined that if the plaintiff fails in his action to establish his claim, so that the judgment is that the defendant owes the plaintiff nothing, the .defendant can nothing on his set-off, because he is allowed a judgment for the excess only. And it has been held that the provisions of section 2964,above quoted, have not changed this rule of decision. Whether this be the correct construction of the statute ilr not, it is too well settled to be now disturbed by
86
FEDERAL REPORTER.
further judicial construction. The legislature has changed the rule, in actions before a justice of the peace, by amending section 4160 of the Cod'e, and now, in those actions, "if the plaintiff fails in establishing any demands against the de" fendant," the defend.ant is nevertheless entitled to have ju4g; ment for whatever is due him on his cross-action. Acts 1879, c. 222, p. 265. This act does not, however, apply to any suits except tllose commenced before a justice Qf the peace, and has not changed the rule under section 2922 of the Code. Why this distinction has been made we cannot tell, but in tracing these sections to their originals it. will be seen that suits before justices of the peace have always been more favored than others in this matter of the defendant's rights under his plea.' of set-off, and it is plain this act has followed that distinction. The law, therefore; remains, in regard to this suit, as it stood prior to the act of 1879; so that, if the parties goto trial and the plaintiff fails in his action, the defendant can recover nothing on his set-off. Henry v. Walker,l1 Heisk. 194; Bakerv. G1'igsby, 7 Heisk. 627; Railroad v. Galbraith, 1 Heisk. 482; Brazelton v. Railroad, 3 Head, 570; Edington v. Pickle, 1 Sneed, 122; Barnard v. Young, 5 Humph. 100. But in all these cases there was a trial before the jury or the justice, and it was held, under such circumstances, that the defendant cannot recover on his set-off if the plaintiff fails in his action; and in none of them did the plaintiff voluntarily dismiss his suit. Where he does this the rule is different, because, by the very terms of the statute, if the plaintiff dismisses his suit before the jury retires the defendant may elect to proceed on his set-off in the capacity of plaintiff. It is precisely this case to which the statute applies, and the decisions above referred to do not affect the question. It was held in Riley v. Garter, 3 Humph. 230, that after plea of set-off filed the plaintiff could not dismiss his suit at all; but the Code, § 2964, has changed this, and he may now do so, but with an express provision that if he does the defendant may proceed on his set-off. There is no difficulty in our practice in doing this, for the plea of set-off is in the nature
BROWN V. II. & O. R. 00.
of a declaration on the counter claim. T. &.Er:.code, §§ 2918, 2932, 2940; Ridley v. Buchanan; 2 Swan; 555,558'.' . The case should, therefore, be re·instated on the trial docket, and proceed on the plea of as if tne the plaintiff; but the order dismissIng the plaintiff's action/should stand as it is, the suit of the plaintiff 'having been dismissed by himself, as he had a right to do under the statute·. Motion granted. P
BROWN
V. MEMPHIS
& C.' ,R. CO. August 6,1880.)
(Oircuit Court, W. D. Tennessee.
Inge If Chandler, for plaintiff. Hnmes If: Poston, for defendant. HAMMOND, D. J. This is an action for wrongfully, and with unnecessary force, ejecting the plaintiff from the defendant's cars, and has been heard upon demurrer to the pleas. The grounds of objection arising out of the form and substance of the pleas would be good, perhaps, if the pleadings were to be tested by the common law, but, under the Tennessee Code, they are not well taken. Any declaration which states a cause of action, however informally, or any plea which states a defence either by general denial equivalent to the general issue, or special plea showing the facts, will be good, whether
38
good at common law or not. Code, (T. & S. Ed.) 2884, 2913, 2917a; Car. Rist. Lawsuit, §§ 206, 209, 844. second plea, which avers that the plaintiff is a colored woman, and sets up a regulation requiring colored people to occupy separate cars equal to those provided for white people, has been withdrawn, because, as stated by counsel, this company has no such regulation, people of all colors admitted to their cars without classification or distinction on account of color. This leaves for present consideration only the question arising on the third plea, which is as follows: "And, for a further plea in this behalf, defendant says that, by a customary regulation of the defendant, a. certain car in the defend· ant's passenger train, commonly called the ladies' car, was Bet apart to be exclusively used and occupied by persons of good character, and genteel and modest deportment, from which said car it was, by said regulation, the duty of defendant's conductor to exclude all persons of improper character, or addicted to deportment offensive to modesty and decorum. Yet the plaintiff, at the time of her alleged grievance, being a notorious courtesan, addicted to lascivous and profane con· versation and immodest deportment in public places, and well known to the defendant's conductor as such, and well knowing the regulation aforesaid, and well knowing that there were other good and comfortable passenger cars, of equal accomodations with the one provided for the ladies, in said train, whereon she could be safely and securely carried without violation of the regulation a,foresaid, notwithstanding intmded herself into said ladies' car, and being then and there by the conductor advised of said regulation, and politely requested to remove into another good,safe, and comfortable car, of ample accommodations, in said train, peremptorily refused, and persisted in refusing, whereupon, w;Lh gentle hands and without unnecessary force, the conductor removed the plaintiff from the ladies' car, and tendered her accommodation in the said other car, which refusing, the plaintiff left the train," etc.
BROWN V. M. & C. R. CO.
89
The plaintiff alleges, in the declaration, that she chased of the agent of the defendant a first-class ticket from Corinth to Memphis, and took her seat in a car, from whIch with, as is alleged, brutal violence, she was ejected. The demurrer insists that the plea shows no ground of defence, and it is argued for the phiintiff that she was not subject to exclusion except for improper conduct exhibited in the car at the time, and by this plea. none is alleged. The argument is that the carrier could not 'refuse to carry her, as long as she behaved properly on the train, because of her alleged bad charader, nor exclude her for that cause after having made the contract by the sale of the ticket; at least, not without tendering back the fare, which is not averred in the plea. It does not seem to me that these are the issues tendered by the plea.. The conductor did not, according to the allegaticns df the plea, refuse to can'y the plaintiff, as by the, contract she was' entitled to be carried, for the plea avers a tender of firstclass accommodations, which were refused. The declaration is carefully worded, so as to charge that the plaintiff was excluded from a car, and avers that defendant refused to carry her "on or in said car," and ejected her with such brutality that she abandoned her trip. This excessive force is' denied by ,the plea, but ejection from "the ladies' car" is confessed, and sought to' be avoided by pleading a regulation forbidding the plaintiff to ride on that particular car because of her bad character. The demurrer, in legal effect, confesses that there was such a regulation as the plea avers, and that the plaintiff was of the bad character charged. The only question, therefore, is, was this a reasonable regulation? Can a carrier set apart a car for the exclusive use of persons "of good character" and genteel and modest deportment," and exclude from that car all persons "of improper character, or addicted to deportment offensive to modesty and decorum," without reference to their demeanor at the time they take passage in the car, and require such persons, although well-behaved at the time, to occupy another car not so exclusive in regard to the persons permitted to occupy it?
In New Jersey this is held to be a question of fact for the jury to decide. The court says: "It must, from its very nature, be a question of fact rather than of law. The reasonableness or unreasonableness of the regulation is properly for the con· sideration, not of the court, but of the jury." Statr. v. Overton, 4 Zab. 435-441; Murris Ilailroad Co. v. Ay'res, 5 Dutch. :393. In Bass v. RailTOacl, 36 Wis. 450, it is said "to partake of the character of debatable ground between court and jury, and is so properly held to be a mixed question of fact and law; and it is always proper to submit the question, under instructions, to the jury." Page 459. And in Dayv. Owen, 5 Mich. 520, it is said: "In pleading, it is sufficient to state the rule or regulation, that plaintiff comes within it, and to aver its reasonableness. It is not necessary to spread upon the record the facts, which may be more or less numerous, that the party relies on to establish its reasonableness. {t is otherwise where the defendant refuses to carry the plaintiff generally. In such cases, the facts constituting his excuse, jf he have one, must appear on the record, that the court may determine whether it be good or bad. But the reasonableness of a rule or regulation is a mixed question of law and fact, to be found by the jury on the trial, under the instructions of the court. It may depend on a variety of circumstances, and may not improperly be said to be in itself a fact to be deduced from other facts. It is not to be inferred from the rule or regulation itself, but must be shown positively." Page 527. And it was held in that case that the question would not be determined on demurrer. Demurrer overruled. NOTE.
See Thomp. Carr. Pass. 306.
LATHROl' V. JUNC. R. CO.
41
LATHROP
and others v. THE JUNCTION and others.-
RAILROAD COMPANl
(CircUit Court, E D. Pennsylvania. 1.
October 28, 1880.)
RAII,ROAD-OWNERSHTP OF SECTION OF ROAD FORMING PART OF THE LINE OF ANOTHEI{ COMPANY IN WHICH IT IS A STOCKllOLDEll-RIGIIT OF flATTER COMPANY TO USE SUClI SECTION-PHELIMJKARY INJUNC-
railroad was built for the purpose of uniting three other roads, which were the principal owners of its corporate stock. One of these three other roads allowed a portion of lhe uniting road to be built tliat portion at its own expense. located over its property, Subsequently it claimed the exclusive control over that portion, and refused to allow the uniting road to transport freight and passengers thereon. Held, that although it might have a proprietary rigl.t in that portion of the road, it was bound to allow the uniting road a reasonable use thereof, as a part of the latter's continuous line. Held, further, that the right to such use mig-lit be enforced by a preliminary injunction restraining the company owning tbe portion of road from interfering with the transportation of the freight and ll11ssengers car· ried by the uniting road. TION.-A
Motion fol' a Preliminary Injunction. This was a bill in equity filed by two stocl{holders of the Junction Railroad Company against the Junction Railroad Company and the Pennsylvania Railroad Company. The bill alleged that the Junction Railroad Company was by law obliged, under certain regulations, to transport freight and passengers over its road, but that it had, in consequence of a claim of the Pennsylvania Railroad Company to the exclusive property in and control over a portion of its road, refused to transport freight of the Baltimore & Ohio Railroad Company, in course of transmission from Baltimore to New York, by means of a route in which the Junction Railroad was a connecting link. The bill prayed for an injunction ing the Junction Railroad Company from declining or refnsing to transport such freight, and restraining the Pennsylvania Railroad Company from interfering with such The Pennsylvania Railroad Company filed an answer asserting an exclusive right to and over a section of road form.Prepared by Frank P. Prichard, Esq.,: of the Philadelphia bar.