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worthiness of the vessel. This point had however show that plaintiff, an employee who had been long in been litigated, and finally decided against defendants, the defendant's service, had been requested by a felin the Supreme Court of the United States, in an ac- low servant to place a belt on a shaft near the ceiling, tion brought by defendants as libellants against plain- upon nails driven near the shaft for the purpose of tiffs. Held, that this adjudication was binding upon stopping it for relacing. The plaintiff werit alone to the parties, and the issue could not be again raised. the place of the accident, and ascended a ladder fast. Duncan & Poey, who were the libellants and plaintiffs ened by hooks to a soantling near the ceiling so placed in that suit, represented the charterers, and prose- as to enable him to easily reach the belt, which he cuted the suit, not only for themselves, but for all seized, and attempted to lift, but failed. He made a their associates. Hence while their associates were secoud attempt, but before he could throw it over the not actually parties to the suit, they would have pails, became unconscious, and recollected notbing reaped the benefit of a favorable result, and were further. A witness who worked in the same room tesbound by the judgment rendered therein. They had tified that he heard a crash, and upon investigation a right to be heard in the suit, and were heard found the plaintiff with his left arm torn from his body through Duncan & Pooy, and were in privity with lying upon the floor at the foot of the ladder in front them. It was just as much their suit as the suit of of the shaft, and unconscious. The ladder was broken, Duncan & Poey, and the precise points at issue in that and lay in pieces on the floor around, and partly upon suit, and adjudicated therein, could not again be the plaintiff. Held, there being no direct evidence as brought in question between these plaintiffs and the to the cause of the accident, plaintiff could not recover charterers of the vessel. Embury v. Connor, 3 N. Y. upon the theory that the ladder, by reason of its de511; Castle v. Noyes, 14 id. 329; Tuska v. O'Brien, 68 fective construction, broke and threw him upon the id. 446; Dunham v. Bower, 77 id. 76; Church v. Kidd, belt; such theory not being inferentially supported by 88 id. 652; Leavitt v. Wolcott, 95 id. 212. (2) When the evidence, which also did not show negligence on a charter-party was not under seal, the fact that it the part of the the defendant. The evidence does not was signed by defendants D. & P. alone does not pre- bring the case within the rule requiring that some pervent plaintiffs from proving by parol that the other son al negligence on the part of the employers must be defendants were interested. Briggs v. Partridge, 64 shown in order to authorize a verdict against them. N. Y. 357; Hill v. Miller, 76 id. 32; Nicoll v. Burke, They uot only did not furnish the ladder for the use 78 id. 580. (3) At the time of making a contract for a in which it was employed, but the accident was not charter-party, three persons unknown to plaintiffs attributable to such use of the ladder. The rule that a were joint contractors with defendants, and plaintiffs plaintiff in an action for negligence is required to supposed that they were contracting with defendants show affirmatively his own freedom from negligence only. Held, that such persons could be treated as is quite as well established as that he must show that dormant partners, and it was not necessary to make it was produced by the negligence of the defendant. them parties defendant in an action on the contract. It is quite true that the proof of the absence of plainBrown v. Birdsall, 29 Barb. 549; Farwell v. Davis, 66 tiff's negligence usually presents a question of fact, id. 73; Arnold v. Morris, 7 Daly, 498; North v. Bloss, and is often to be inferred from the nature of the ac30 N. Y. 374; Leslie v. Wiley, 47 id. 648; Marvino v. cident and the circumstances of the case; but this Wilber, 52 id. 270; Cookingham v. Lasher, 1 Abb. conclusion cannot legally be reached unless such cir. Ct. App. 436; Bonfield v. Smith, 12 Mees. & W. 405; cumstances are proved as legitimately and reasonably De Mautort v. Saunders, 1 Barn. & Adol. 401; Colly. lead to such a result. Unless the court can see that Partn., $ 719. It is not sufficient that the plaintiffs such facts are proved as fairly tend to support a premay have known that the three persons named had sumption of freedom from negligence, the question some sort of interest in the adventure, but they must becomes one of law to be determined by it. The proof have known that they were members of a firm with shows that the service in question could have been the defendants, or that they were joint contractors safely performed while the machinery was at rest durwith them; and this there was no sufficient evidence ing the noon intermission, or upon request the superin the case to show. The answer is insufficient. It intendent would have suspended the power for a few simply shows that the three persons named were in- minutes required to perform the work. Instead of terested in the adventure. There is no allegation that adopting either of these methods, the plaintiff and his they were partners, nor is there any allegation that fellow-servant voluntary selected a time following the they were joint contractors with the defendants noon intermission, and immediately after the manamed, or that the plaintiffs made any contract what- chinery had been put in motion, to do the work reever with them. The proof simply showed that at quired of him. He admits that he knew the hazard the time of the making of the charter-party the plain- of this manner of performing the service, but he tiffs knew that they were contracting with these de- elected to do it in that way rather than adopt the prefendants, and had information that some other per- cautions which would have made it entirely safe. In sons had some slight interest in the adventure. But this we think he took the risk of the time and manner they had no kuowledge that such other persons were selected by himself and his co-servant. To hold an interested as partners, or that they were parties to employer liable for the consequence of an accident the contract wbich they were then making. They may happening under such circumstances would violate have supposed, as their names were not mentioned, the plainest principles governing the relations of masand had a right to suppose, that they had some remote ter and servant, and impose upon the former the conor contingent interest in the profits or proceeds sequences of the carelessuess of the latter. It would of the adventure, while they were pot, in any proper substitute a rule imposing an absolute liability upon sense, parties to the contract. Upon this point the the master, instead of that just principle which inflicts case recently decided by us of Swift v. Steamsbip upon each party the consequences of his own fault. Co., 12 N. E. Rep. 583, is au authority. This may be Oct. 4, 1887. Cahill v. Hilton. Opinion by Ruger, regarded as a somewhat narrow view of the evidence C. J. given upon the trial, but we think it is admissible for MUNICIPAL CORPORATIONS-FIRE DEPARTMENT-INthe purpose of defeating what appears to us to be an SPECTION OF BUILDINGS-ELECTION OF MEMBERS.-(1) extremely technical objection. Oot. 4, 1887. Wood- | The powers and duties of the “department for the house v. Duncan. Opinion by Earl, J.
survey and inspection of buildings "in New York city, MASTER AND SERVANT-NEGLIGENCE-PROOF.-In are lodged in the fire department, through successive an action for personal injuries, the evidence tended to legislative acts. Laws N. Y. 1871, ch. 625; Laws 1874, ch. 547; and Laws 1880, ch. 521. (2) Laws N. Y. 1871, to defendant's counsel, and was then asked by him to $ 99, provides that the dock department of the city of charge “that the jury, in considering the case, must New York shall bave exclusive charge and control of not be influenced by the sections of the Revised Statall the wharf property of the city, and be invested utes read in their hearing." The court refused. Held, with the exclusive government and regulation of all that the said sections were not irrelevant to the queswharves, piers, bulk-heads and structures thereon. tion of negligence, and that the defendant could not Held, that this should not be construed as giving the possibly have been prejudiced by them. (3) On trial dock department exclusive power to determine and of an action for damages for injuries received in conapprove the plans and specifications for such structures, sequence of defendant's negligence in the manner of and thus deprive the fire department of the right of running its trains, the plaintiff offered in evidence a inspection of such building under the fire laws. (3) photograph, as he claimed, of the locus in quo of the The fire department of New York city, in the enforce- accident. He testified that he did not make the phoment of the provisions of the building laws applicable tograph, and did not know from what point it was to the city, is not estopped by the fact that the dock taken, nor to what point, as a focus, the instrument department of New York city made an illegal lease was directed. Upon being asked if it fairly described to defendant of the property sought to be subjected the locality, he answered that it did. The objection to the lawful regulations. (4) The examiners of the made at the trial was a general one. Held, that the fire department required that the interior of defend- evidence was properly admitted. (4) In an action to ant's building upon its pier should be covered with recover damages for injuries caused by the negligence iron netting, and plastered with mortar. Held, that of the railroad company, defendant, in the managethe examiners had jurisdiction of the matter, and ment of its trains, where the evidence is so conflicting their determination could not be reviewed, even if as to fairly show that each side has certain merits in the requirement was unreasonable, so long as it was its favor, and where the question has been decided at not wholly impracticable. (5) The office of examiner two General Terms by different juries, who have bad in the fire department of New York city, created by the witnesses before them, and have been able to Laws N.Y.1874, ch. 547, 88, having been established sub. weigh carefully all the evidence adduced upon the sequent to the adoption of N. Y. Const. 1846, does not trial, the Court of Appeals will not reverse the judg. come within the purview of articld 10, seo. 2, thereof, ment. Oct. 4, 1887. Archer v. New York, N. H. & requiring city officers to be elected by the people or 11. R. Co. Opinion by Danforth, J. appointed by some local authority. Oct. 4, 1887. Fire Department of the City of New York v. Atlas Steamship
SALE-WHEN TITLE PASSES-EXECUTORY CONTRACT Co., Limited. Opinion by Earl, J. Peckham, J., dis
-ESTOPPEL-ACCEPTANCE OF NEW PARTY — INSOLsented.
VENCY.-(1)Action was brought upon a contract which
was as follows: "ATLANTA, December 7, 1881. We NEGLIGENCE-RAILROAD - EVIDENCE- NONSUIT have to-day sold to Messrs. R. W. L. Rasin & Co., of RATE OF SPEED-STATUTORY REGULATION-PHOTO- Baltimore, Md., 1,000 tons ammoniated superphosGRAPHS-APPEAL-REVIEW OF EVIDENCE.-(1) In an phates, at twenty-four ($24) dollars per ton (2.000 lbs.), action to recover damages for injuries sustained by on a cash basis; goods to be delivered free on board reason of the defendant's negligence in the manage- buyers' vessels, and by us, in bulk. We guarantee ment of its train, the evidence showed that upon a the analysis of goods to be not less than two per cent dark, misty pight the plaintiff landed in the “Union of ammonia, and not less than eight per cent of availDepot” in Hartford from the train of arlother road; able phosphoric acid ; sampling and analysis of each that he had never been in the city before, and did not shipment to be made by A. R. D. Dane & Co., of New know which way to go, but followed the crowd from York, or by Prof. White, of Georgia. Settlements are the train; that he desired to go to the business part of to be made on delivery to buyers of bills of lading, by the city, and for that purpose crossed to the platform their notes, with six per cent interest added," etc. on the east side to get a cab; that when he arrived at “Shipments to be made as early as possible during the platform he saw several cabmen distant therefrom this month. (Signed] READ & Co., of New York." about ten feet; that one of the men came and got his " We accept the above. R. W. L. RASIN & Co., Baltivalise, and turned and deposited it in his cab; that more, Md.” Held, that the contract was an execuwithin a second thereafter a train went by at the rate tory contract, whose character was not changed by of ten or twelve miles an hour; that he heard no bell the subsequent acceptance by the sellers of an order por whistle, nor had he any warning of the approach to deliver the goods to a third party, or by the acceptof the train, and that until the train went by he had ance of the notes of the vendee, as per contract, but not known that there was a track on that side of the made in advance of shipment, sampling or analysis, as depot; that the train approached the platform on a therein specified, and the title to tbe property did not curve, and the sides of the cars projected over on to pass thereby. It is true the.contract uses the words the platform three or four inches, and swept the plat- “We have to-day sold to Messrs. R. W. L. Rasin," form from the point of its approach past the place etc. But that language must be construed in connecwhere the injury occurred; that the train), in passing, tion with the rest of the contract, which must be taken struck plaintiff on the side, drawing him to the ground as a whole, and such construction placed upon it as between the platform and the cars, whereby he re- ühe language used in the entire instrument calls for. ceived injury. Held, that the court did not err in re- Looking at the contract in this light, it will be seen fusing to dismiss the complaint. (2) In an action to there are two facts which render it entirely clear that recover damages for injuries sustained in conse- it is in its nature a purely executory one. One faot is quence of the negligence of the defendant rail- that there was to be an analysis of the superphosphates road company, it was admitted by the pleadings by a New York or a Georgia chemist before delivery that the company was organized under the laws of or payment as provided for by the contract could be Connecticut, and subject to them. On the trial the insisted upon. Perhaps the vendee might, if he plaintiff was permitted to read in evidence certain chose, waive the analysis, and trust entirely to the portions of the General Statutes of that State relating guarantee, and thus accept delivery without it. But to the running of trains, viz., part 9, ch. 2, SS 57, 73, 78. the vendor could not compel an acceptance, or claim The court, in his charge, made no allusion to those payment, without an analysis, and therefore no title statutes, but defined the ground of defendant's lia- passed upon the signing of the agreement. In this rebility, if any, and its duties, in a manner satisfactory spect there is no material distinction between this case and Russell v. Nicoll, 3 Wend. 112. The lan- latter gave his notes and acceptances of third parties to guage there used was, “Sold by Daniel Rapelye,'' etc. R. in payment for the goods. Both R. and plaintiff But because upon a perusal of the whole contract it afterward became insolvent, and defendant refused to was clear that the property sold was to arrive in New deliver the goods. The contract did not designate, York before a certain date as a condition of the sale, describe, or in any way identify the particular propthe court said that such arrival must precede the erty sold, and the evidence showed that at the time of change of title, and that the contraot was executory; making the contract the goods had not yet been manuthat the word “gold,” used in the contract, meant factured. There was no evidence of any fraud, miscontracted to sell. It is the same here. The word representation or concealment on the part of the deused means the same—"contracted to sell "_because fendant to induce plaintiff to change his position, and some material act had yet to be performed by the ven- there was none to show that defendant knew of any dor before he could insist upon making delivery or fraud on the part of R. Held, that defendant was not claim payment for the goods, and that act was to make estopped from refusing to deliver the goods after the an analysis of each cargo or shipment, which analysis insolvency of R., and before his notes were paid; and must show the cargo to have reached a certain stipu- that upon the evidence, the court erred in submitting lated standard before his contract would be complied to the jury the question of intent on the part of the with. The other fact is that there is in the contract defendants. The most that can be extracted from a no specification, identification or description of the perusal of all, including the oral, evidence given on particular property sold. It was simply 1,000 tons of the trial, is that Rasin bad contracted to deliver to superphosphates. Where the goods were is in no way De Leon goods which he did not have, and could not designated or intimated. They might have been inget, in sufficient quantity; that he told this to Read, Europe, New York, Georgia, or (as was the truth) not and said that he had purchased the 1,000 tons from him in esse, and still every word of the contract have full in order to deliver them to De Leon on his contract. significance. How is it possible to say that the title This Read knew, and he supposed when he accepted to any particular superphosphate passed to the vendee the order, and signed the statement as to when he when tbere is no description or identification of it to would deliver on the contract, that Rasin would give it be found in the contract, or any reference to it to De Leon, unless he thereafter changed his mind, therein made. Suppose the vendors had had 1,000 which there is no evidence to show he could not letons of the goods in their factory in New York, and gally and properly at any time have done. It is not that after the signing of the contract a fire had totally pretended that defendants had any design to misdestroyed the factory and its contents, who would lead De Leon in the slightest degree. Such design have had to sustain the loss of such goods? Is there may not perhaps be necessary, but it does not exist the least ground for claiming that
here. There is not a word of evidence that Rasin said dees must suffer it? Make the same supposi
to defendants he intended to try and procure money tion, but place the goods at Atlanta, and the same or notes from De Leon on the faith of this order, nor question arises and the same answer must be given. was there any evidence but that this 1,000 tons, so far As is said by Comstock, J., iu Kimberly v. Patchin, 19 as defendants knew, were to be delivered in fulfillN. Y. 330, at 333 : “It is not only legally, but logically, ment of an obligation of Rasin to De Leon for the deimpossible to hold property in such things, unless livery of goods which had already been fully paid for. they are ascertained and distinguished from all other Indeed there was no evidence whatever of any further things, and this I apprehend is the foundation of the knowledge on the part of Read than that Rasiu was rule, that on a sale of chattels, in order to pass the under obligations to De Leon which he was endeavortitle, the articles must, if not delivered, be designated, ing to partly fulfill by baving defendants deliver to De so that possession can be taken by the purchaser with-Leon the 1,000 tons in fulfillment of defendants' conout any further act on the part of the seller.” This tract with Rasin & Co. It is not pretended that Rasin was said in a case where the question arose as to the said to Read he had been to see De Leon, and that he transfer of title to a quantity of grain, a part of a had finally consented to pay $25,000 for these 1,000 larger quantity in a warehouse, which was designated toys, provided he got an accepted order with this and identified, and this court held the title passed on written statement from defendants, or that it would the execution of the contract. But when a quantity be upon the faith of this order and acceptance that he of oil was sold out of a stock consisting of different would advance the $25,000. This whole transaction, large quantities in different cisterns, and at various it must be remembered, is with Rasin. The order is warehouses, and the note of sale did not express the drawn, signed and produced by him at the store, and quality or kind of oil sold, or the cistern or warehouse the letter or statement signed by defendants is ad. from which it was to be taken, and the purchaser did dressed to Rasin & Co., and is plainly a document not even know where the particular oil lay which was showing a consent to deliver to De Leon in fulfillment to satisfy the contract, the court held the title did not of defendants' executory contract with Rasin & Co. pass (Whito v. Wilks, 5 Taunt. 176), and that case is Nor is there any thing in the form or contents of the cited with approval in Kimberly v. Patchin, supra. order which prevents the defendants from withhold(2) By the terms of a contract between R. and the de- iug delivery. De Leon therefore took such an order fendant, the latter sold and agreed to deliver to the at his peril, and received from defendants no repreformer certain goods, to be paid for by the vendee's sentation whatever tending in any way to show that potes at the time of delivery of the bill of lading. R. any title to any specific property had ever passed to had previously contracted to deliver to plaintiff a Rasin & Co. He occupies therefore simply the posiquantity of the same kind of property. He conse- tion of Rasin & Co. in regard to the property. The quently presented to defendant for his acceptance an right remains with the vendors to refuse delivery to order to deliver the goods bought of him to plaintiff, the vendees on their becoming insolvent, unless they whicb order was accepted, whereupon R. gave his pay for the property on delivery. All that is seen by notes as per contract, waiving delivery of the bill of the accepted order therefore is that the defendants lading. At the time of accepting the order defend- acknowledge that they have sold (which expression ants also gave to R., to be delivered to plaintiff, a may mean simply contracted to sell) certain goods memorandum in which they promised to deliver to mentioned therein to Rasin & Co., which they agree plaintiff on his order, accepted that day, the goods with Rasin & Co. to deliver to De Leon. This case is that had been sold to R. Upon the delivery of the ao- quite as strong for the defendants as that of Farmeloe cepted order and memorandum by R. to plaintiff, the v. Bain, 1 C. P. Div. 445. In that case defendant sold
100 tons of zino to B. & Co., and gave them an order in lic and private, that the law should define with prewhich defendants undertook to deliver to their order, cision to whom the custody and responsibility of a indorsed thereon, twenty-five tons, etc., “off your train of cars attaches. We hold that from the begincontract of this date," and signed it. Upon the faith ning to the end of the trip, whatever the motive of this document the plalntiffs bought of B. & Co., and power employed, the conductor, and nobody else, is paid for, fifty tons of zinc, and B. & Co. having failed the responsible party in possession of the train." without having paid the defendants, they refused to Rauch v. Lloyd, 31 Penn. St. 358. There are many deliver the zinc to the plaintiffs. The jury found that authorities which assert doctriues substantially the the defendants, in signing the order, intended the same as those declared in the cases from which we same as a representation to all persons to whom it have quoted. Railway Co. v. Powell, supra; Railroad should be shown that the goods tberein mentioned v. McMurray, 98 Ind. 358; 1 Wood Ry. Law, 449, and were the property of B. & Co. The court however cases cited; Thomp. Carr. 369. But broad as the auheld that this document thus signed by defendants thority of the conductor is, it is by no means unlimwas not a known document among merchants, and ited; on the contrary, it is limited to the manage. was to be looked at as any other instrument in writ- ment and control of the train committed to his care. ing, and as thus looked at, it contained no representa- He bas authority to control the traiu in its moretion of
any fact, and the plaintiffs had ments, and it is his duty to take measures to preserve right to rely upon it as such a representation, passengers from injury while getting on the trains, and consequently could not claim estoppel. while they are on it, and while they are alighting. In The claim of plaintiff's counsel that many of the the discharge of this duty he must, as the representaAmerican cases hold the doctrine that delivery orders tive of the company, exercise a high degree of care transfer the title to the property the same as a bill of and diligence, but when the relation of carrier and lading, even without acceptance, is not material here. passenger terminates, the authority of the conductor, No delivery order, or any other document, can trans- as the representative of the carrier, is at an end. His fer the title to property not in existence or unidenti- | authority ceases when he passenger has safely fied and undistinguishable from a larger mass not alighted from the train. The company does not vest itself designated, and from which no appropriation him with either apparent or actual authority beyond has been made. Oct. 4, 1887. Anderson V. Read. such as is necessary for the proper care of the persons Opinion by Peckham, J. Rapallo, Earl aud Finch, JJ., and property placed in his charge and control. When concur. Ruger, C. J., Danforth and Audrews, JJ., the person who entered as a passenger has finally left dissenting.
the train, the conductor no longer stands to him as the representative of the carrier. His representative
character does not extend to acts done after the relaABSTRACTS OF VARIOUS RECENT DE
tion of passenger and carrier has been severed. It is CISIONS.
his duty to afford the passenger whom he directs to
leave his train a safe alighting place, but he is not MASTER AND SERVANT-CARRIER — PASSENGERS- bound, as the representative of the company, to look SCOPE OF EMPLOYMENT.-Where a passegger enters after the passenger after he has left the train. If the the wrong train through his own mistake, and is car. conductor had directed the deceased to walk ten or ried some distance beyond the station where he en- twenty miles, it would hardly be contended that the tered the train, the conductor does not bind the com- corporation was responsible for such a direction, and pany by directions to the passenger as to where be we cannot perceive that the principle is different shall go, and how he shall go, after alighting from the whether the distance be long or short. A passenger train, to rectify his mistake, and secure passage on the has no right to assume that the carrier has invested train he intended to take; and the company is not lia- the conductor with authority to direct hipi to travel ble for his death, incurred in consequence of follow- back to a station where he entered a train by mistake, ing such directions. The conductor of a passenger for the conductor is neither actually nor ostensibly train is undoubtedly clothed with extensive author- clothed with any such authority. If the conductor ity. In discussing this subject, Chief Justice Ryan had directed the deceased to go to a hotel, or had disaid: “Indeed as that fictitious entity, the corpora- rected him to walk back upon a wagon-road, he certion, can only act through natural persons, its officers tainly would not have been acting in the line of his and servants, and as it of necessity commits its trains duty, and we cannot discern any difference between absolutely to the charge of officers of its own appoint- such cases and the one under examination; for the di. ment, and passengers of necessity commit to them rection to go back upon the track cannot change the their safety and comfort in transitit, under circum- | legal features of the case. If the conductor had re. stances of such peril and subordination, we are dis- fused to carry the deceased to a regular station, or posed to hold that the whole power of the corpora- had compelled him to leave the train, an essentially tion, pro hac vice, is vested in these officers, and that different question would have faced us; but here the as to the passengers on board, they are to be consid- passenger left the train without compulsion, and unered as the corporation itself.” Bass v. Railway Co., dertook to rectify his mistake by making his way back 36 Wis. 450. Speaking for the court, Campbell, J., to the station; so that the case turns upon the quessaid of the conductor and the company: “He repre- tion whether the instructions given by the conductor sents them in the whole management of his train.” It as to the course the deceased should pursue after leavwas also said: “He occupies the same position as the ing the traiu were within the line of his duty. If it master of a ship.” Railway Co. v. Miller, 19 Mich. were granted that the act of directing a passenger 305. In Railway Co. v. Ross, 112 U. S. 377, the court what course to pursue after leaving a train is within declared that the conductor represents the corpora- the line of the conductor's duty, then the path of the tion, and said : “If such a conductor does not repre- appellee would be a smooth one, traversing solid sent the company, then the train is operated without ground; but he path is rugged and uncertain, beany representative of its owner." Discussing the cause the assumption which is taken for grantedgeneral subject, the Supreme Court of Pennsylvania that is, that the act of the conductor was within the said : “And wherever there are no prescript rules, the line of his employment-is the proposition which must usage or common law of railroads makes the conduc- be proved to make progress to a recovery possible. If tor the respousible agent in the conduct of the train. it can be assumed that a railroad company, actually It is of the last importance to all interests, both pub- or ostensibly, invests its conductor with authority to
direct passengers, who by mistake enter the wrong decision was afterward overruled, and the judgment train, what route they shall take back to a station was set aside, by the same learned judges, and the serwhere they can rectify their mistake, then these au- vice held insufficient, upon a full argument of the thorities might be justly regarded as of controlling question. It was held in Watertown v. Robinson, force; but until the assumption which lies at the supra, that delivering to, and leaving with the chairfoundation of appellee's theory is established, these man of the street commissioners a copy of the sumauthorities are irrelevant and inapplicable. One great mons in the absence of the mayor, and the sheriff's reason why a passenger is justified in obeying the di- inability to find him, was insufficient. In that case it rections of a conductor is because the conductor is was said in the opinion that “the principle is too entitled to exact obedience. His directions are in the elementary to need discussion that a court can only nature of commands or requirements; he may indeed acquire jurisdiction of a party, when there is no apput them in that form. It is therefore most reasona- pearance, by the service of process in the manner preble that a passenger should have a right to rely on scribed by law." Another principle is equally clear, them when they are of that nature. The instructions and that is that when the statute prescribes a particugiven by the conductor in this case are not of that na- lar mode of service, that mode must be followed ita ture, for it is perfectly obvious that he could not have lex scripta est. There is no ohance to speculate whether required or commanded the deceased to take any par- some other mode will not answer as well. Helms v. ticular route back to the station. It is not to be ag- Chadbourne, 45 Wis. 60. This has been too often held sumed that conductors have authority to bind the by this court to require further citations, but the company by general directions, which are more in strong language of Chief Justice Ryan, in Foster v. the nature of advice and information than of require- Hammond, 37 Wis. 187, is worthy of special reference. ments or commands, as to what a passenger shall do See also other authorities cited in the very able brief after he leaves the train. There is an essential differ- of the counsel for the plaintiff in error. And here it is ence between a direction in the nature of a require sufficient to say that every possible reason against the ment and a direction in the nature of advice or infor- strict application of the statute prescribing the mode mation, as is strikingly illustrated by the case of Vi- of service, in a case like this, including the constitumont v. Railroad Co., 28 Am. & Eng. R. Cas. 210; tional objection, is satisfactorily urged and concluRailroad Co. v. Swift, 26 Ind. 459. It is clear to our sively enforced in the brief of counsel for plaintiff in minds that, upon principle, a railroad company is not error, to which reference may be had. In many cases responsible for directions in the nature of informa- the officer or agent of a corporation upon whom sertion or advice given to a passenger, who through his vice of a summons is required to be made, may not for own mistake has entered the wrong train, as to what a time be in existence, and there may be a vacancy in course he shall pursue after leaving the train. This is such office. This is only a temporary inconvenience 80 because the company does, either actually or osten- that must necessarily be suffered until there is such sibly, confer upon the conductor authority to give ai- an officer. There is the office of mayor, and it is posrections of that character to passengers who have en- sible to have a mayor in the city of Watertown. So tered its trains by mistake not caused by any negli- that is no defect in the law in not providing a mode of gence on its part. Gilliam v. Railroad Co., 70 Ala. service in such cases, and in all similar cases there 268; Nunn v. Railroad Co., 71 Ga. 710; 51 Am. Rep. may be for the time a vacancy, and thereby service 284; Sevier v. Railroad Co., 61 Miss. 8; 48 Am. Rep. rendered impossible; but this is no defect in the law, 74; 2 Wood Ry. Law, 1213. Ind. Sup. Ct., Oct. 11, 1887. nor would it justify courts in substituting another Cincinnati, H. & I. R. Co. v. Curper. Opinion by El-mode of service, which the law has not done. This liott, J.
would be judicial legislation of the most flagrant kind.
The only question is, what does the statute mean MUNICIPAL CORPORATIONS ACTIONS AGAINST - when it designates a particular officer, such as the SERVICE OF PROCESS UPON MAYOR. - Under a city mayor, by uame, upon whom such representative sercharter providing that the service of process upon the vice may be made? The reason of the law unquescity shall be made " by leaving a copy of the process tionably is to designate some officer of the city, of with the mayor,'' the mayor is the only officer upon such powers, grade and dignity, as would imply a whom such service can be made; and where there is a supervision and management of the interests and vacancy in that office, and there is no president or affairs of the city, and who would most properly and presiding officer of the commou council, service upon likely take care of, and protect the interest of the the chairman of the board of street commissioners, city as a defendant in court. The Legislature in its aud upon the city clerk, is insufficient to support a wisdom has seen fit to designate the mayor eo nomine judgment by default against the city. It is urged by as such officer. When such an officer de jure, and in the learned counsel for the plaintiff in error that this the most comprehensive sense, does not exist, and the court, in Watertown 5. Robinson, 59 Wis. 513, on office as such is vacant for the time, has the law promotion for rebearing, with offer of proof that in that vided in terms or spirit, that some other officer or case the office of mayor was vacant, decided, that such person who for the time of such vacancy exercises the proof being admitted, and the return being so amended, general powers, and performs the general duties of the service was yet insufficient.
There was such an officer, is the proper person upon whom such opinion on that motion, but it was probably and more service can be made? Most certainly the law in terms properly held that such an amendment of the return has not so provided. The reason and spirit of the law could not be made in this court. In Heymaun v. might perhaps embrace another officer by name, or Cunningham, 51 Wis 506, where the service was made another person, who is clothed fully and completely when there was no mayor, great doubts are expressed with all the powers, and is required to perform all the "upon the sufficiency of the service to give the court duties of the mayor during such vacancy, and is for jurisdiction of the defendant city," but the decision the time the mayor de facto, or acting mayor, and may of that question was not deemed necessary to the de- be properly and lawfully called the mayor. But we termination of the rights of the appellant in that pro- have no such case here. Whether service of process ceeding, and it was not therefore passed upon. In could be properly made upon such an officer, during Worts v. Watertown, 16 Fed. Rep. 534, the service was the vacancy of the mayor's office, is not tbe question made as here, and the office of mayor was vacant. It here, and we will not attempt to decide it. There is was first held by Judge Bunn and Mr. Justice Harlan, no board of aldermen and no president of the commou that such service was sufficient; but it seems that this council. We might refer to many general statutes