387 with th'e duty of controlling the movement the'traihs; 'The answer expressly averstha:t.the-colJision was cRusedby the negligence of the officials in coniwhich mand:of the movement of train No,l, and there'is nei fact tends to show that as to themtheplaiIitiff occllpied any otnerposition than that bf an inferior, -within the meaning of the -statute of'MontaIia. The actofinegligence set up in the 'answer is that train No.1'was moved past- the telegraph station in 'violation ofthe rule of the'company,and it is averred that this was done by those in command' of such train: It will certainly:not be claimed that a fireman upon theengiileis an employe charged 'with the control of the moving of the trains, a duty primarily imposed upon the conductor, and it is certainly the fair inferehce th'at in the mOVing and rnnning of trains the conductor is the superior of a fireman, 'In other words,the conductor or party charged th the control of thetrllin is a superior, as compared with a firema:n, within th,e meaning ofithe Montana statute. Under this section, the corporation is made liable to any one of its employes who, without negligence on his .part, is injured by the default or wrongful act of a superior, even though -the latter has no control over the former. Whether, therefore, the liability of the defendant corporation is to be determined under the com·· mon-law rule or under the statute of Montana,' the facts set forth in the answer' do not show that the act' of negligence causing the collision and consequent injury to plaintiff was the act of a co-employe, but, on the contrary, it would appear therefrom that such act of negligence was the act oithe representative of the corporation, who'was also the superior of the plail'ltifl'. This being the conclusion, it follows that the answer is insufficie'nt, and the demurrer thereto is sustained.
"
He did',not 'belong to thltt 'class' of
wi
SHIRAS, J. This cause has already been before the court on demurrer to the answer, and in the opinion then given it was .held that, under·thecommon-lRw rule and under ·the .provisions of the statute of the Montana, it could not be held that a fireman was a conduotor of a train by whose negligence in controlling the movements of his train a collision was caused with the engine upon which the plaintiff wRsacting as fireman, By an amended answer now on file, it is averred that the collision was caused by the negligence of the engineer in charge of the engine upon which the plaintiff was acting as fireman, and that they were co-employes, and therefore the company is not liable. It is averred in the amended answer that the accident occurred on .tI1e 17th day of March, 1888; that on that day, and for some time prior thereto, the rules of the company provided that between the hours Of seven in the evening and seven in the morning all trains should consider ihemselvesheld for orders at all night telegraph offices, and in accordance with said rule it was the duty of all trains on the defendant's line of railroad: to stop at all night telegraph offices, and receive a clearance order, before proceeding past such office, between the hours named; that the rules oitbe defendant further provided that,in approaching stations whereat there are switches, all freight 'lrainsmtist move 'with great
.REJ>ORTER,
vol. 42.·
thatJhe E1ngineersQfs,uchtrains,in passing Buch switches, sllould Ddt rim ata rate of speed greater than 10.miles per hour; that tpe stiition of Evaro was anighqelegraph and switcpstation; that train · .1 stopped ft:shortdistance west of said station; that one of the enand passed ijpon a switch gines propelling the same was thep in order ·toget to the rear of that it then passed to the main line east of and in the rear of train. No.1, where it}Vasrun into by the train O,n which plaintiff was acting "that said train on which employed, owing to the negligence and .gross carelesssaid plaintiff ness oithe englneer thereof, one ;Lacey, approached said sta.tion at Evaro from tl).e east, l!ond.ran by the at a speed greatly in excess of 10 hoqr,and did not stqp at said station at Evaro, but on the .contrary,in of the of defendant, was and neglig7r,itlypropelled and op,erated ,past said station. by said Lac!'y, its enand was so operated past said station of Evaro between the ho.ursof seven in the afternoon and seven in ,the morning, to-wit, at 45 9 o'clock on the .nig/:lt of March 17, 1888; that said collisiop 'Yas cause<i solely by .the negligence of said engineer of the train on which,' said plaintiff was employed, and not by, the negligence of defendant;ihat sai<i engineer fellow-servant of snidplaintiff, engaged .in the same general emph?yment, and that said plaintiff ought not to have or maintain any action against said c;lefendant on account of .the negligence of saidengil1eer." the.original answer it was averred that the colliSIon was 'caused by the negligence of those in charge of train No. 1; and. In ruling upon the demurrer to that answer it was held that, Under the doctrines anuou.ncedby the supreme courtin the case of Railroad Co. R08s, 112 U. 'So 377,Q.Sup. Ct. Rep. parties having control of the movements of train No.1 could not be deemed to be felwith the employes upon engine No. 181. 'In.th,e amended answer, :now under consideration, ,H, is averred that the collision resulted Itorn. in the mnning; of the train upon which plaintiff was em,ployeq, I!-pd ca..<;e is aspect more nearly resembling the of tl;le R08s Oase. In the amended answer it is eha rged that the collisiop'resulted from the violati?n:of two company, to-wit, running'by. the.station without 'haltipg and obtaining the proper clearRndmoving at a rate of speed greater than 10 mUes per hour; that the violation of these rulel! was due to the negliand it 'gEmce o(tbe' engineer in charge of the engine upon which plaintiff was as Alreman. . ,; ,Theprinciple recognized in the R088 Case by tllesl1preme court is that one. who is charged with the contrQl of the movement of the train, who directs whEm.it shall start, at it run, at what staticlUs it shall stop, .and for what length ;tillle,or who, in other words, controls the movement ot the, train, is in no proper senee ,a fellow-servant with thefire/Dll-n, the brakeman, pr the engineer on such train. In ,that case a collision was of the Qonductor in failing to ,anor.der which he b,ad received, and the injured,. The cOMrt.4elsI; ,that the relation of
In
v.
NORTHERN PAC. R. CO.
,889
did not exist, and that the company was liable for the consequences of the negligence of the conductor. If, in the case now under consideration, it \Vas averred that the collision was caused by the negligence of the conductor in controlling the movements of the train, there could be no question that it would be squarely within the rule ree'ognized in the Ross Case, and that the claim of plaintiff to recover could not .be defeated by the plea that the accident resulted from the negligence of a co-servant. Does the fact that the collision in this case was caused by the negligence of the engineer change the relation of the parties? The solution of this qqestion must be sought, not in the mere name applied to the one at but in the relation he in fact occupied towards the company and the other train-men in the performance of the duty devolved upon him, and.in the doing of which he was guilty of negligence. It is apparent to everyone, having liny knowledge of the operation of railway trains, that there are two persons thereon who divide between them the responsibility of the actual movement of the train. These persons are the conductor and the engineer. While the duties of these two persons are widely different yet practically by the com bination of both are the movements of the trains controlled, and in the management thereof they each in their respective places represent the company, and they are not fellow-servants with the other employes upon the train who are not charged with the management of the train, and have no control over the same. T;he brakeman, the fireman, and the' porters upon the train are not co-workers with the conductor and the engineer in the control and :running of the train. They have no voice in determining the speed of the train, when it shall stop, when proceed, and othe;.>r like Touching all questions affecting the movements of the traitl, the relation of such employes towards the persons who have control ,over'the movements of the train is that of inferior towards superior; the lattei exercising absolute control, and the former owing the duty ofobedienoo; According to the averments in the amended answer, two acts of negligence are charged upon the engineer, to-wit, not halting at the station at Evaro and remaining there until the proper clearance order was received" and, in passing the station at too great a speed. It is clearly inferable from the answer that the control and management of the train in these particulars was a duty resting upon the engineer. He it was who should have brought the train to a halt at the8tati6n, and in1act he practically was the only one who could so control the train as to bring it to a stop before passing the station. So, also, he it was who controlled the speed at which the train was moving when it reached the station.. Thus the amended answer charges that the person who had the actual control over the movements of the train, and whose duty it was to observe the rules of the company in the particulars named, was guilty of negligence, in the performance thereof; and I can see no substantial ground for holding that the engineer, in his relation to such movements of the train as are wholly underhi8 control, occupied any different rela:tion to,the ot1).er 8nbordinateemployes on the train than is Qccupied.by
," , J'EDJmAL. REPORTE:B'i
vol. 42.
(Oircuit pourt. D. Oregon. May 23, 1890.) PaoMISSORY COURT.
NoTS
PAYABLB
m
. A promissory note, payable "to the order of - - , " which was and delivered for a valuable consideration, is, in legal effect, payable to bearer; and one who buys it from a lawful owner and holder,. and afterwards1!.lls the blank by writinl£ his own name therein as payee, which he may lawfully do, is a "subsequent holder, ,.: within .the meaning of the phrase as it is used in the act of congress de1ining the , jurisdiction of the circuit courts of the United States, and therefore not entitled to . sue in this court upon such a note, the original holder and the maker both being . citizens of Otegon. btl tM Oourt.) ..
BLA.NK-SUBSEQUENT HOLDER-AoTION ,
IN
FEDBlUL
.!t Law.
WatBon, Hu'rfle &: Watson, for plaintiff. R. &: E. B. Williams, OMB. H. C<1:rey, and J. B. Thompson, for defend-
, ,HANFORD, J. The complaint in this cMe alleges that the plaintiff is a citizen of the state of Washington, and the. defendant is a citizen of the state of Oregon; that, on the 3d of February,lSS3, for a valuable consideratioD, the defendant made and delivered to the PortlandSavingsBank, a corporation of the state ·of Oregon, his promissory note for t5 j OOO, with interest at 10 per cent. per annum from date until paid, payable on demand, "to the order of , at the office of the Portland 8fivingsBank, in Portland, Oregon;" that the defendant paid the interest einaid notetosaidPOl'tIand Savings Bank up to and including March 4,rI886, and, no other payments have beeD made; that on November 10, sold and delivered theoote, fora valuable consideration,
ST,EEJ, tl. RA.'rHBUN.
3'91,
to D., P. Thompson, whoafterwar9s, for a valuable consideration, sold it to the plaintiff; who is now the lawful ownerand holder;: that, at all times prior to the purchase of said note by plaintiff, thel'e', was no payee named in saidI\ote, but there was a blank space where the payee's name should appear, which blan,khas been filled by insertion of plaintiff's name; and that the amount remaining unpaid and now due on said note is $6,854.33, for which SUm, with interest and costs, and: an attorney's fee of $250, a jUdgment is prayed. To this complaint the' defendant has interposed a, demurrer, specifying as grounds that, ,the court has no jurisdictioI). of the action, and other grounds not necessary to be considered, as I hold that the court has no jurisdiction of the aeand the demurrer must be sustained on that ground. The act of congress to determine the jurisdiction of the circuit courts of the United States, approved,March 3, 1887, as corrected by the act, of August13, 1888, contains this prohibitory clause: "Nofshall any circuit or district court have cognizance of any snit. ... '. contents of any promissory noteor,other chose in actionlnta;.' vor of anya,signee, or of any sUbsequent holdpr, if such instrument be paya-, bie to bearer, * lie' lie unless such suit might have been prosecuted in: such court to'recover the said contents if no or transfeJ.: ba4 been made." ' The plaintiff here contends that the case, as stated,does not come within the exception made by this clause of ,the statute, because the note: i,s not by its terms payable to bearer, and it was not a complete note or chose in action until the blank therein left by the maker to be filled by insertion of the name of some person who should become the only lawful payee had been so filled, and that the note in its present condition, as a. complete and perfect instrument, has not been assigned or transferred at all, and that hc;l is the original and ol)ly party on one side of the contract, evidenced by the note, and the only person who atapy time couldha'Ve! lawfully maintained a suit upon it. In support of plaintiff's theory,the caseof7'lwmpson v. Rathbun, 22 Pac. Rep. 837, is cited, in which the; supreme court of the state of Oregon has decided that the intermediate holder of this very note could not, while he held and owned it, maintain a suit upon it, for the reason that behveenbim and the defendant, the blank being yet unfilled, there was no privity. Counsel for plaintiff also cites the case of.Goldsmith v. Holr,ne8, 12Sawy. 526,36 Fed. Rep. 484, in which Judge DEADY decided that where a citizen of Oregon made a. negotiable note payable to the order of another citizen of Oregon, who gave no consideration for it, but indorsed it for the maker's accommoQ,a--, tion, and merely as a surety, and then delivered it to citizens of New York, who lOaned money upon it to the maker, the lenders of the were original parties to the contract, and entitled to sue upon it in a circuit court. I fully assent to the -correctness of the decisions in each of these cases, but 1 deny that either has any bearing upon the cp.se at bar. In the case last mentioned the plaintiffs in theaction,altbQugh:, indorsees of the note, dealt directly with the maker, by advancing the ritoney wmchwas the for which the was given. "Tliey
392':
FEDERAL REPORTER,
were, .therefore, in faetand law, the·.first owners of the note, and the immediate parties on one side to the transact.ion, just as the plaintiff in which he here would be if there had been but a. single had advanced to the defendant directly a sum of money in consideration for the giving of the note in suit. But this case is different. The Portland Savings Bank ,gave value for the note, and. held it as owner, and receiv.ed payments upon it; and, if it had sued upon it without filling the blank, no objection to the action could have been successfully urged upon 'the ground that there was no privity between it and the defendant. The authorities all agree that a person who receives {i'om'the maker of a note payable to " or bearer," and who is bona fide owner and holder, can maintain a suit upon it without filling the blank. 1 Rand. Com;'Piiper, 254. Upon principle, the rights of a primary holder of a note:po.ya,ble "to the order of ," should be measured by the 'same rule. Such a note, in the hands of a bona fide holder, is Ii valid contract' for the,: payment of money; and a bonafide purchaser acquires a complete title: .by the mere delivery of it into his possession. It is, in legal effect, a note payable tobea'rer. 1 Daniel, Neg. Inst. § 145; 1 Rand. Com. Pap'er, 253, 290; Rich v. Starbuck, 51 Ind. 87; Brummel v. Enders, 18 Grat. Oruchley v. Olarance, 2 Mimle& S. 90. 'fhis note was once delivered to and held by the Portland Savings Bank, a.nd ;the obligation created by it has been partially met by paymentsof interest to the bank. It has been transferred and retransferred. The plaintifHs·a "subsequent holder" of it in fact. There has been no transaction between him al1d the defendant directly. On the contrary, all his rights as against the defendant were' acquired by a contract of purchase between him and another person, who, so far as the reoord discloses the facts, is an entire stranger to this action. If there had been no assignment or transfer of this note, h would still be helrl by the Portland Savings Bank, and no action upon it could· be prosecuted in this court. Therefore, by the terms of the act of congress above cited, the present action i!3 likewise barred in this court, and must be dismissed.
, GOODRICH"
(,Jerk, etc.,
f1. UNITED STATES.
(DtBtrict court, E. D· .Arkansas, W. D.March8, 1890.) 'Under the provision in the deflciency appropriation bill of Augnst4, 1886, (24 St. at J;.arge, 274,) denying docket lees to commissioners, such docket fees cannot be al· . lowedr1l'ollowing Craw/ora v. U. S., 40 Fed. Rep. 446It SAME;,..AoxOwLEDGMENTS TO · .,Rev. liIt'V. S; § 847, whioh allows commlssioners.25 cents for "taking an Ii.oknowl· .edgillent, "applies to acknowledgments to ,recognizances. ·Following McKinst1'/l , U; S., 40 Fed. Rep. 818. . .
i' 'UNITED ,
STATES' COMMISSIONERS-COMPENSATION-DoOKET FEES.
8'.
SAME....o.SmM:NA8.
.
TiI-!l{)llmmWSiof/.er m8!y oharge for issuing two subptenasln the sameoase. where the witnesses resilla in opPo.site and. lI,ave to be subptenaed 'by diffe.rent v. tr. is. I 89'Fed;' Rep. 410; , ' .. J '. . , ! . ' .