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Vol. IV.) PittsBURG, FT. WAYNE, AND Chicago R. W. Co. v. Hazen.

(No. 2.

Mr. Justice BRADLEY dissenting. I dissent from the judgment of the court in this case, on the ground that the patentee having duly made his application for a patent in 1855, and the same having been three times rejected, must be considered as having abandoned the same, inasmuch as no further effort was made to obtain a patent until eight years afterwards, without any pretence that the patentee was engaged in perfecting his invention, and in the mean time the invention which he claims as his had come into general public use. The application for a patent made in 1864 was a new and independent application, and should be treated as such. As the public had enjoyed the use of the invention for more than two years prior to this application, the patent should be declared invalid. Great injustice will, in my judgment, be done to the public to allow a patent obtained under such circumstances to stand. The public had a right to suppose that no further application would be made. The levy of a tribute now on all the dentists of the country who have brought the plate into public notice and use seems to me a species of injustice. The delay of the patentee, in fact, is made to operate to his benefit instead of his prejudice ; his patent being made to run eight years longer than it would have done had it been granted when first applied for. So that the public is still further injured by sustaining the patent as finally granted. It is too common a case that associated companies, in order to maintain some valuable monopoly, look about to see what abandoned invention or rejected application, or ineffective patent can be picked up, revamped, and carried through the patent office; and by the aid of ingenious experts and skilful counsel succeed in getting the desired protection. I think that the courts ought to be strict in maintaining the rights of the public in such cases. And the present case seems to me to be one in which we ought to hold the patent invalid as against those rights.

Mr. Justice MILLER and Mr. Justice FIELD concur in this opinion.

SUPREME COURT OF ILLINOIS.

[SEPTEMBER, 1876.]

COMMON CARRIER. — DELAY IN TRANSPORTATION CAUSED BY VIOLENCE

OF “STRIKERS.”

PITTSBURG, FT. WAYNE, AND CHICAGO R. W. Co. v. HAZEN. A common carrier is liable for loss or injury caused by delay resulting from the refusal of

its employees to do duty; but is not liable for loss or injury caused by delay resulting from the lawless violence of former employees “ on a strike."

THE appellee, Hazen, recovered a judgment against appellant in the superior court of Cook County. Upon appeal to this court the said judgment was affirmed (the opinion of the court was read by Craig, J., and

Vol. IV.)

PittsBURG, FT. WAYNE, AND Chicago R. W. Co. v. Hazen. (No. 2.

will be found below), whereupon the appellant petitioned for a rehearing, which was granted, and the former opinion reversed and judgment entered for appellant.

The following is the opinion announced upon the first hearing in this court:

CRAIG, J. This was an action brought by Chester Hazen, in the superior court of Cook County, against appellants, as common carriers, to recover damages for a failure to safely and within a reasonable time carry from Chicago to New York a certain quantity of cheese and butter.

A trial was had before a jury, which resulted in a verdict for the plaintiff for $1,100.55. The court overruled a motion for a new trial, and rendered judgment upon the verdict.

It appears from the evidence preserved in the record that on the 10th of December, 1870, appellee shipped from Chicago to New York, on appellants’ freight line, thirty-five thousand pounds of cheese, and a quantity of butter, under an agreement made at Chicago with one Nottingham, who was agent of appellants.

The cheese did not arrive in New York until the 28th day of December, which made seventeen days the goods were upon the road.

The ordinary or usual time required to carry goods from Chicago to New York was nine or ten days.

When the cheese arrived in New York, it was badly frozen. From the 10th to the 23d of December, the weather was fine, and no frost to damage or freeze the cheese.

The evidence shows the damage to the cheese was $1,100.55.

It also appears, from the evidence, that the goods were detained at Leavitsburg, Ohio, from the 15th to the 22d of December.

Upon the trial of the cause, the appellants offered evidence tending to show that the delay of the goods at Leavitsburg, and the consequent failure to ship and deliver to New York, within a reasonable time, occurred on account of a brakesman's strike for higher wages, on two divisions of the freight line, which began on the 11th of December, and continued about one week; that the strike was not caused through the fault of the railroad company, and reasonable efforts were made to induce the men to retnrn to their work, or employ others to take their places.

This evidence the court excluded from the jury, and in this it is insisted the court erred.

The law is well settled that a common carrier is required, in the transportation of goods, to ship and deliver to the consignee within a reasonable time, and a failure to discharge this duty renders the carrier liable for all proximate damages that result from a failure to discharge this obligation. I. C. R. R. Co. v. McClellan, 54 Ill. 58.

The employees of a railroad company, in charge of trains for carrying of passengers and transportation of freight, are held out to the public by the company as being competent to discharge the duties in which they are severally engaged. So far as the public is concerned, the company guarantees the fidelity and good conduct of their employees in matters within the scope of their employment. It is also a rule, well settled, that the company is liable for the frauds and negligence of its agents and employees in the course of their employment. Galena f Chicago Union R. Ř. V. Roe, 18 Ill. 488; Story on Agency, sec. 452.

Vol. IV.) PITTSBURG, Fr. WAYNE, AND Chicago R. W. Co. v. Hazen.

[No. 2.

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Then upon what principle the company can shield itself from liability to the public, because its own agent or employees have failed to discharge a duty that he or they may owe to the company, we are at a loss to perceive. Many of the accidents which occur upon a passenger train, to the life or limb of a passenger, for which the company are required to respond in damages, are to be traced directly to the failure of an employee to discharge a duty resting upon him ; and yet the doctrine contended for by appellant, when carried to its legitimate extent, would relieve the company of responsibility in any case where the accident was occasioned by the fault of an employee to discharge a duty to the company. Nor can it make any difference whether the strike was occasioned through the fault of the company or the brakesmen.

That was a matter entirely between the company and its employees, with which appellee was in no manner concerned, and on account of which he should not be required to suffer loss upon his goods, intrusted to the company for transportation.

The case of Blackstock v. The New York & Erie R. R. Co. 20 N. Y. 48, is in point on the question involved. In that case, potatoes were shipped from Steuben County to New York, and the usual time for transportation was five days. The potatoes were on the road seventeen days, and when delivered, it appeared they had been damaged by the delay on the road. The delay was occasioned by a strike of engineers on the company's road, which was caused by the adoption of a certain rule by the company, which the court found to be a reasonable one. The court said: “ The position that the defendants are not responsible, because the misconduct of their servants was wilful, and not negligent, cannot be sustained. The action is not brought on account of any injury done to the property by the engineers, but for an alleged non-performance of a duty which the defendants owed to the owner of the property. If the inability to perform was occasioned by the default of persons for whose conduct they are responsible, they must answer for the consequences, without regard to the motives of those persons. . .. . It does not appear that any blame can attach to any of the superior officers of the company. Still the property intrusted to the defendants to carry has been lost from a failure on their part to perform the duty with which they were charged, and the only answer which they are able to make to the demand for compensation is, that the failure was caused by the misconduct of their servants. This, we have seen, cannot avail them as a defence.” See, also, Michaels v. New York Cent. R. R. Co. 30 N. Y.; Reed v. Spaulding, 30 N. Y. 630.

We are satisfied, both upon principle and from the authorities, that the court did proper in rejecting the evidence offered.

Whether the delay in the transportation of appellee's goods, which occasioned the damage, resulted from the railroad company or from the refusal of its employees to discharge their duty, in either event the company must be held liable for the damage to the goods. :

It is, however, insisted that the court excluded evidence which tended to prove the delay was caused by the assaults which the brakesmen made upon the company's trains after they were discharged, and not in the employ of the company, aided and assisted by others who had previously been discharged from the service of the company. The question seems PITTSBURG, FT. WAYNE, AND Chicago R. W. Co. v. Hazen. [No. 2.

Vol. IV.]

to be this: Can the company shield itself from the unlawful acts of its employees, for the reason, that after the trains are stopped on account of the refusal of the laborers to perform their duty, the company notify them they are discharged ?

We apprehend the excuse offered can not avail. The unlawful acts done after they are notified of the discharge are but a continuation of what was done before, and are a part of the same act; and those that the employees induced to join them in the raid upon the company's trains, while they would be personally liable to the company for all unlawful acts, yet so far as the rights of the public are concerned, what they did must be referred back to the original cause, — the difficulty between the company and its servants.

The assaults appellants sought to prove may have been provoked by the servants of the company who were in charge of the trains, and it would be manifestly unjust to involve the appellee in an issue of this character. It would be an issue foreign to the one really involved in the case, and one, too, which it would be difficult for appellee to meet.

If appellants were damaged by the unlawful acts of their employees and others, acting in concert with them, they must look to those that did the wrong for redress. On the other hand, if appellee has suffered a loss in his goods by the failure of appellants to transport them without unreasonable delay, they must be held liable for the loss.

It is, however, urged by appellants that the court erred in refųsing to give to the jury certain instructions prepared by them.

It appears by the record that the court gave instructions on behalf of appellee, but none of those instructions are contained in the record, and we must decline to pass upon the instructions refused, unless we had before us those that were given. De Clerg v. Mungin, 46 Ill. 113.

For aught that we may know or can learn from the record, the law involved in the case may have been properly given to the jury.

Had the appellants desired us to pass on the refused instructions, they should have incorporated in the record those given.

It is said the damages are excessive ; upon a careful examination of the evidence we do not find the judgment to be larger than the testimony warrants.

The last point relied upon is, that the record does not show the Cleveland, Columbus, and Cincinnati, and Indianapolis Railroad Company made any contract for the transportation of the goods; the heading to the bill of lading, introduced in evidence, described appellants as Pittsburg, Fort Wayne, and Chicago, C., C. & C. and Lake Shore R. R. Co.'s Express Freight Line, via Crestline.

As we understand the record, that part of the freight line described as the C., C. & C. is the Cleveland, Columbus, and Cincinnati Railroad Company. This part of the freight line was sued as the Cleveland, Columbus, Cincinnati, and Indianapolis Railroad Company.

If, therefore, any part of the freight line was sued by a wrong name, which seems to have been the case, appellant could only take advantage of the misnomer by a plea in abatement in the superior court. This was not done, and the objection comes too late, when made for the first time in this court.

The judgment of the superior court will therefore be affirmed.

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Vol. IV.) PITTSBURG, Ft. WAYNE, AND Chicago R. W. Co. v. Hazen. [No. 2

F. H. Winston & George Willard, for appellants. Thomas Moran, for appellee. The final opinion of the court was delivered by DICKEY, J. On the 10th of December, 1870, Hazen shipped by the freight line of the railway company a quantity of cheese from Chicago to New York. The cheese was delivered to the consignee at New York on the 28th of December, eighteen days after the shipment, — the proofs tending to show that the usual period of such transit, at that time, did not exceed twelve days ; that the weather from the 10th to the 23d was not severely cold, but that severe cold occurred between the 23d and 28th, and that the cheese when delivered in New York was frozen, and thereby damaged to the amount of $1,100.55, and for this amount was the verdict and judgment in favor of Hazen, from which the railway company appeal.

As an excuse for this delay beyond the usual period of such transit, the defendant, at the trial below, sought to prove that the sole cause of the delay was the obstruction of the passage of trains in the neighborhood of Leavitsburg, resulting from the irresistible violence of a large number of lawless men, acting in combination with brakemen, who up to that time had been employed by the railway company. That the brakemen refused to work, and were discharged, and other brakemen promptly employed ; but the moving of trains was prevented by the threats and violence of a mob. This evidence was objected to by the plaintiff, and excluded by the court. This, we think, was error. It is doubtless the law that railway companies cannot claim immunity from damages for injuries resulting in such cases, from the misconduct of their employees, whether such misconduct be wilful or merely negligent. If employees of a common carrier suddenly refuse to work, and the carrier fails promptly to supply their places with other employees, and injury results from the delay, the carrier is responsible ; such delay results from the fault of the employees. The evidence offered in this case, however, tends to prove that the delay was not the result of a want of suitable employees to conduct the trains, for the places of the “ strikers” were (according to the proof offered) promptly supplied by others. Tbe proof offered tends to show that the delay was caused by the lawless and irresistible violence of the discharged brakemen, and others acting in combination with them. These men, at the time of this lawlessness, were no longer the employees of the company. The case supposed is not distinguishable, in principle, from the assault of a mob of strangers. All the testimony on this subject should have been submitted to the jury for their determination of the question, whether, under all the circumstances, the period of transit was unnecessarily long.

For the delay resulting from the refusal of the employees of the company to do duty, the company is undoubtedly responsible; for delay resulting solely from the lawless violence of men, not in the employment of the company, the company is not responsible, even though the men whose violence caused the delay had but a short time before been employed by the company.

Where employees suddenly refuse to work and are discharged, and delay results from the failure of the carrier to supply promptly their places, such delay is attributable to the misconduct of the employees in refusing

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