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"William T. (X) Richart." mark

Before bringing this suit appellee filed a suit against appellants for damages for the injury to his hand, and the foregoing release was set up as a defense to the action; that appellants had the same attorneys in both suits. The release was acknowledged before Cherry as notary public, and he testified that the signature on the back of the release was his; that he reported the settlement to Carter, Lee & Co., and told them Richart was asking for his job back.

Appellee testified that he went to appellants' mill and told Mr. Carter the insurance company had seen him, and he had signed a release for $300, and was to take that amount and get his job back, and Mr. Carter said, "Certainly you will"; that he told Carter Cherry promised him his job back and Mr. Carter replied, "Your job will be all right." Appellant Lee testified that he talked with Mr. Cherry about the settlement a day or so before he went out to see Richart; that he learned of the settlement a day or two after it was made, but did not authorize Mr. Cherry to promise employment to appellee. Ap pellee and several other witnesses testified in substance that Mr. Cherry promised appellee he was to have "the same job at the same money" as soon as he was able to work and said he had authority from Carter, Lee & Co. to make that arrangement; that appellee would not sign the release without assurance that he was to be employed by appellants at the same wages as soon as he was able to work, and was to continue as long as he was able to work, and that Cherry agreed thereto. The evidence also tends to show that just prior to his injury appellee was receiving 25 cents per hour and working ten hours per day, and that his average wages for many years had amounted to 25 cents per hour or more.

109 N. E. 784; Hedrick v. D. M. Osborne & Co., 99 Ind. 143–147.

The evidence is sufficient to warrant the jury in finding that Cherry had authority to make settlement for both the insurance company and appellants. The release was executed to appellants, and was accepted, retained, and relied upon by them. Authority to make the settlement necessarily included the power to agree upon the consideration appellee was to receive for executing the release.

ent authority to settle for appellants, if he [8] Cherry being clothed with the apparexceeded his authority and appellee was not apprised of that fact, the loss, if any, would fall on appellants rather than appellee. American Telephone & Telegraph Co. V. Green, 164 Ind. 349-356, 73 N. E. 707, and authorities cited. It is not disputed that appellants accept, retain, and rely upon the release obtained by Cherry from appellee. In a case quite similar to the one at bar it has been decided that where an employer accepts such release he thereby elects to affirm the settlement as made, and cannot affirm the part beneficial to him and reject the rest. Appellants do not dispute the fact of such decision, but contend that it is bad law, and should not be followed. Having concluded that there is some evidence to warrant the jury in inferring that appellants authorized Cherry to make the settlement, the decision in this case does not rest wholly upon the that the Supreme Court denied a transfer foregoing proposition. We observe, however, of the case, and this in effect makes it the decision of that court as well as this. American Car & Foundry Co. v. Smock, 48 Ind. App. 359-362, 91 N. E. 749, 93 N. E. 78. See, also, Usher v. N. U., etc., Ry. Co., 76 App. Div. 422, 78 N. Y. Supp. 508; Id., 179 N. Y. 544, 71 N. E. 1141.

ment were sufficiently definite to make a [9, 10] The terms of the alleged employvalid and enforceable contract. By executing the release appellee was not precluded from showing the actual consideration for which 6 Ind. App. 109, 32 N. E. 802, 51 Am. St. it was executed. Pennsylvania Co. v. Dolan, Rep. 289; American Car, etc., Co. v. Smock, supra; Stewart v. Chicago, etc., Ry. Co., 141 Ind. 55-59, 40 N. E. 67;. Cox v. B. & O. S. W. Ry. Co., 180 Ind. 495-505, 103 N. E. 337, 50 L. R. A. (N. S.) 453.

[11] Appellants complain of the fifth and thirteenth instructions given the jury, which are as follows:

"5. Where one holds a contract to perform

[7] Facts need not be proven by direct and positive evidence, and the court or jury try-service and the other party wrongfully refuses ing the case may draw any reasonable inference of fact warranted by the evidence. If a fact may reasonably be inferred from the facts and circumstances which the evidence tends to establish it is sufficient on appeal. Bronnenberg v. I. U. Traction Co.,

114 N.E.-8

the duty of the one who is to perform the servto permit the services to be performed, it is ices to seek similar employment elsewhere, and thereby save himself harmless, if he is reasonsuch a contract the measure of damages is the ably able to do so. And so for a violation of wages stipulated for the full term, where the injured has been unable to secure other employ

The case seems to have been fairly tried on its merits, and a correct result reached. No intervening error has been pointed out which would warrant a reversal of the judg ment.

ment during the term. And where the injured ly state the law applicable to the issues and party has been able to secure employment, then evidence of the case. the measure of damages is the diminution between the wages agreed to be paid under the contract and the wages received under the new employment. So in this case if you find that the contract existed between plaintiff and defendants as charged, and that defendants wrongfully violated it as charged, then under such circumstances it was the duty of plaintiff to seek other employment."

"13. If under the evidence and these instructions you find for plaintiff, it will then be your duty to determine and assess the damages, if any. In that connection you may consider, only however, as may be shown by the evidence the following elements, viz. the kind of work at which he was engaged before and at the time of his alleged injury and the wages, if any, paid him therefor. When, if at all, he has been able and willing, since his alleged injury, to perform the work he was engaged in when injured, and what, if any, period of time since the alleged injury he has been unable to secure employment of the class at which he was engaged when injured. Also you may consider what, if any, other employment he has had since his alleged injury, and the wages he has received therefor, if any. And from a consideration of the elements enumerated, only as may be shown by a preponderance of the evidence, you may assess the recovery at such an amount as will fully compensate plaintiff for the damages, if any, he has sustained, as alleged in the complaint, but not to exceed the sum demanded therein."

The instructions state the rule for the measure of damages in cases like the one under consideration substantially as declared in the decisions of both this court and our Supreme Court. Pennsylvania Co. v. Dolan, supra, 6 Ind. App. 121, 32 N. E. 802, 51 Am. St. Rep. 289; Inland Steel Co. v. Harris, 49 Ind. App. 157-163, 95 N. E. 271; Hinchcliffe v. Koontz, 121 Ind. 422–426, 23 N. E. 271, 16 Am. St. Rep. 403; Hamilton v. Love, 152 Ind. 641-647, 53 N. E. 181, 54 N. E. 437, 71 Am. St. Rep. 384.

Judgment affirmed.

MCALEENAN

(219 N. Y. 563)

V. MASSACHUSETTS

BONDING & INSURANCE CO.
(Court of Appeals of New York. Oct. 24, 1916.)
INSURANCE 514-INDEMNITY INSURANCE-
FAILURE TO APPEAL-LIABILITY.

holder of a policy of indemnity insurance for
Where verdict was recovered against the
the death of a person through an accident cov-
ered by the policy, and the insurer agreed to
appeal from the judgment, and assured its pol-
icy holder that an appeal had been taken but
without the latter's knowledge permitted the
time within which to take an appeal to expire
without taking it, the policy holder had a
cause of action against the insurer.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1298; Dec. Dig. 514.]

Appeal from Supreme Court, Appellate Division, First Department.

Action by Joseph A. McAleenan against the Massachusetts Bonding & Insurance Company. From so much of an order of the Appellate Division of the Supreme Court (173 App. Div. 100, 159 N. Y. Supp. 401), which reversed an order of the Special Term, in so far as it granted plaintiff judgment on his first cause of action and granted defendant's motion for judgment in its favor, plaintiff appeals by permission, while defendant appeals by permission from so much of the same order as affirmed so much of the order of the Special Term as granted plaintiff judgment on his second cause of action; questions being certified. Order affirmed, and questions answered.

[12] Appellants also contend that the instructions on the measure of damages are erroneous because they did not direct the jury to deduct interest from the amount alAppeal by plaintiff, by permission, from lowed for wages to be earned in the future. so much of an order of the Appellate DiviThe authorities do not generally take into sion of the Supreme Court in the First judiaccount the question of interest in stating cial department, entered June 21, 1916, which the rule for the measure of damages. But if reversed an order of Special Term in so correct in their contention, which we do not far as it granted plaintiff judgment on the decide, appellants have not shown reversible first cause of action and granted defendant's error. The instructions state the rule cormotion for judgment in its favor. Appeal rectly in general terms, and if appellant de- by defendant, by permission, from so much sired a more specific instruction as to the of the same order as affirmed so much of items that should be deducted in arriving an order of Special Term as granted plainat the amount of the verdict, it was their tiff judgment on the second cause of action The action was brought on a policy duty to have tendered a proper instruction of indemnity insurance. As his first cause on the subject, and, failing to do so, cannot of action, plaintiff seeks to recover an amount be heard to complain of those given. Malott paid by him to satisfy a judgment for damv. Shimer, 153 Ind. 35-42, 54 N. E. 101, 74 ages for death of a person through an acciAm. St. Rep. 278; National Fire Co. v. Smith, dent covered by the policy. For a second 55 Ind. App. 124-145, 99 N. E. 829; McAfee cause of action plaintiff alleges that, a verv. Montgomery, 21 Ind. App. 196-203, 51 N. dict having been recovered against him for E. 957. The instructions given, when con- the damages aforesaid, the defendant agreed sidered in their entirety, fairly and accurate to appeal from the judgment and assured

plaintiff that an appeal had been taken, but | 4. CARRIERS 88-PLACE OF DELIVERY. without the knowledge of plaintiff permitted the time within which to take an appeal to expire without taking said appeal, and demands judgment for the negligence of the defendant in respect thereto.

The following questions were certified: "(1) Are the facts alleged as a first cause of action in the complaint herein sufficient to constitute a cause of action against the defendant? "(2) Are the facts alleged as a second cause of action in the complaint herein sufficient to constitute a cause of action against the defendant?"

Herbert C. Smyth and John Purdon, both of New York City, for plaintiff. Clayton J. Heermance, of New York City, for defend

ant.

PER CURIAM. Order affirmed, without costs; first question certified answered in the negative; second question answered in the affirmative; no opinion.

HISCOCK, CHASE, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur. WILLARD BARTLETT, C. J., absent.

(219 N. Y. 227)

NEW YORK CENT. & H. R. R. CO. v.
GENERAL ELECTRIC CO.

(Court of Appeals of New York. Nov. 3, 1916.)
1. CARRIERS 32(2)—"TRANSPORTATION"-
PREFERENCES AND DISCRIMINATIONS.
Under the Interstate Commerce Acts (Act
Feb. 4, 1887, c. 104, 24 Stat. 379, §§ 2, 3, 17
[U. S. Comp. St. 1913, §§ 8564, 8565, 8586];
Act Feb. 19, 1903, c. 708, 32 Stat. 847; Act
June 29, 1906, c. 3591, 34 Stat. 584) and New
York Public Service Commissions Law [Laws
1907, c. 429] §§ 31, 32, prohibiting rebates, a
carrier may make reasonable allowance for nec-
essary services of the consignee in completing
delivery, since "transportation" includes deliv-

ery.

[Ed. Note. For other cases, see Carriers, Cent. Dig. § 84; Dec. Dig. 32(2).

For other definitions, see Words and Phrases, First and Second Series, Transportation.]

2. CARRIERS 32(2)-PREFERENCES AND DIS

CRIMINATIONS-REBATE."

Under the Interstate Commerce Acts (Act Act June 29, 1906) and the New York Public Feb. 4, 1887, §§ 2, 3, 17; Act Feb. 19, 1903; Service Commissions Law, §§ 31, 32, where a manufacturing company's plant covered 180 acres and contained an elaborate system of tracks operated by several engines directed by a plant master of transportation, so complicated that distribution of cars of freight to the company's various mills and storehouses thereon by the carrier was impracticable, a carrier was not bound to distribute, along such intermural track system, cars of freight to the company, nor to make allowance to the company for its performance of such services, but delivery to the general storage tracks at the plant was sufficient; such delivery being both reasonable and customary at other similar plants.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 280-2892, 319-321; Dec. Dig. 88.]

5. CARRIERS 88-PLACE OF DELIVERY.

Nor could the manufacturer recover in quantum meruit for such services in distributing cars of freight for the carrier throughout its plant, whether they were performed before or after New York Public Service Commissions Law, §§ 31, 32, went into effect, since the work was no part of the task of carriage.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 280-2892, 319-321; Dec. Dig. 88.]

Appeal from Supreme Court, Appellate Division, Third Department.

River Railroad Company against the GenAction by the New York Central & Hudson eral Electric Company. From a judgment of the Appellate Division (167 App. Div. 726, 153 N. Y. Supp. 478), reversing a judgment of the Trial Term (83 Misc. Rep. 529, 146 N. Y. Supp. 322), for plaintiff, and granting judgment absolute on a counterclaim, plaintiff appeals. Reversed.

Lewis E. Carr, of Albany, for appellant. Richmond D. Moot, of Schenectady, for respondent.

CARDOZO, J. The complaint is for freight charges of $618.53. The answer is a counterclaim for $114,880.73. The counterclaim, dismissed at the Trial Term, was Under the Interstate Commerce Acts (Act Feb. 4, 1887. §§ 2, 3, 17; Act Feb. 19, 1903; sustained by the Appellate Division.. InterAct June 29, 1906) and New York Public Serv- est charges brought the judgment in favor ice Commissions Law, §§ 31, 32, an allowance of the defendant to $168,701.12. The facts for services, rendered by the consignee after are not in controversy. The defendant delivery has been made and transportation is completed, is an unlawful "rebate" and prefer- switched cars within its plant under an agreement that the service would be compensated by an allowance from the published rates. The validity of that agree

ence.

[Ed. Note. For other cases, see Carriers, Cent. Dig. § 84; Dec. Dig. 32(2).

For other definitions, see Words and Phrases, ment is the question to be determined.
First and Second Series, Rebate.]
In 1887 the defendant, General Electric
3. CARRIERS
PLACE OF DELIVERY "SPOTTING"-"INDUS- Company, acquired a plant in the city of
Schenectady. There were 11 acres of land

TRIAL SPUR."

32(2) TRANSPORTATION

The practice of hauling cars to point along and two buildings. The plant was close to an industrial spur convenient to shipper or con- the tracks of two railroads, the Delaware & signor is known as "spotting," and is commonly and fairly regarded as part of the work Hudson, and the plaintiff, the New York of carriage, "industrial spurs," within the Central Railroad. A siding ran from the switching limits designated by the carrier, being tracks of the Delaware & Hudson into the regarded for many purposes as an extension of the terminals. plant and between the two buildings.

In

[Ed. Note. For other cases, see Carriers, bound and outbound freight transported Cent. Dig. § 84; Dec. Dig. 32(2).] over the plaintiff's road was carried over

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the siding. The Delaware & Hudson | leave it. The movement of these cars would charged the defendant for this service $1 be impossible without a co-ordinated system. per car, and the defendant, upon making the payment, was reimbursed by the plaintiff. Those conditions continued till 1892. The plaintiff then laid a spur track of its own, and freight to and from the plant was transported over the spur without extra cost to the defendant. In placing the cars within the plant to be loaded and unloaded, the plaintiff had the benefit of a steam locomotive acquired by the defendant in 1891 for use between its buildings. The defendant insisted that for this service it was entitled to some allowance. Writing to the plaintiff be sorted, distributed to their proper buildin March, 1894, it said:

The plant is accordingly divided into sections, and to each a separate engine is assigned. To do the work safely and expeditiously, these engines must be in constant use. In that way cars are moved from the platforms as soon as loaded or unloaded, transferred to the storage tracks, and made to give way to other cars which promptly take their places. Thus the men are kept at work every hour of the day, and waste of labor is avoided. There is constant activity, day and night. The cars on the storage tracks must

ings, shunted, switched, loaded, unloaded, "The ground upon which we make claim for and returned. Other cars must distribute this allowance is that by the maintenance of raw material and partly manufactured prodour freightyards at Schenectady, we relieve you ucts among the appropriate shops and mills of the necessity of increasing your terminal facilities here, and, moreover, we maintain a and storehouses in the vast system. To do switching engine of our own, thereby relieving this with safety and with order, the moveyou of considerable extra labor which is cus- ment of all cars upon the interlacing lines tomary for railroad companies to perform for within the plant must be subject to a sinconsignees. In addition to this also, we load

and unload all of our own freight, so that prac-gle supervision. There is therefore a transtically you do not have to bear the ordinary ex-portation master, who is one of the defendpenses of a terminal on business delivered to ant's employés. The finding, well supported by the evidence, is that:

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"The successful and economical prosecution of the business of the defendant requires that all such internal movements of cars, whether stanshould be under the direction and control of the ard or narrow gauge, in and about its plant, defendant."

As early as 1903 the plaintiff had some misgiving about the legality of the deduction from its rates. It wrote in April, 1903, that the arrangement must be a tentative one and subject to readjustment on notice—“this on account of the fact that we are now con

The plaintiff yielded to this claim. An agreement was made for an allowance of 1 cent per 100 pounds (or 20 cents per ton) "on all incoming and outgoing business, to cover cost of switching and loading and unloading the freight." This agreement was modified in 1904 by excluding enumerated commodities, and otherwise has remained unchanged. Since 1904 the plaintiff has transported its cars to and from agreed storage tracks which are within the defendant's yard. Two of the tracks are known as equipment and two as interchange fronted by the Elkins Bill, under the provitracks. The incoming cars are taken by the sions of which we are not exactly clear as defendant from these storage tracks, dis- to what can or cannot be done." In 1905 tributed among its buildings and unloaded. the plaintiff was indicted in the United The outgoing cars are brought to the stor-States District Court for the Northern Disage tracks by like agencies. At those tracks trict of New York on the ground that the Two the plaintiff's services end for freight deliv- allowance was an unlawful rebate. ered and begin for freight received. juries disagreed, and the indictment was finally dismissed. After the finding of the indictment the plaintiff gave notice to the defendant in November, 1905, that it would make no further payments, and none have since been made. Soon afterwards Congress passed the act of June 29, 1906, commonly known as the Hepburn Act, which provides:

It is the work thus done by the defendant for which compensation is demanded. The plant which began in 1887 with 11 acres and 2 buildings, now covers 180 acres, contains 140 buildings, and employs 15,000 men. Within this area, the defendant has laid 12 miles of standard gauge tracks. They run along the sides of the plant and between the buildings. Six standard gauge electric engines are used by the defendant in moving cars upon these tracks, five by day and one by night. At times seven engines have been used. There are also 7 miles of narrow gauge track, and 19 motors, employed in shifting material between the storehouses, shops, and mills. All these tracks, the standard and the narrow gauge alike, cross one another at many points within the plant. Freight is loaded and unloaded at not less than 18 separate buildings. About 100 cars

"If the owner of property transported under ice connected with such transportation, or furthis act directly or indirectly renders any servnishes any instrumentality used therein, the charge and allowance therefor shall be no more than is just and reasonable, and the Commisdetermine what is a reasonable charge as the sion may, after hearing on a complaint, maximum to be paid by the carrier or carriers for the services so rendered or for the use of same by appropriate order, which order shall the instrumentality so furnished, and fix the have the same force and effect and be enforced in like manner as the orders above provided for under this section."

Under this section of the act the defendant

begin and end? The published tariffs to Schenectady establish switching limits extending from Sandbank to Carmen and Stony Lane. Delivery within those limits is paid for when rates are collected to Schenectady. Since the limits embrace the defendant's

plant is covered by the rate. The difficult thing is to ascertain when delivery at the plant is made.

state Commerce Commission. It set out the, and the platforms of its mills is work that rendition of service in switching and moving the plaintiff was bound to do as a part of cars about its plant, alleged that these serv-transportation. To put it in another form, ices were a part of the carrier's work of the question is, Where does transportation transportation, and asked the Commission to fix its compensation. On June 29, 1908, the Commission dismissed the petition. General Electric Co. v. N. Y. C. & H. R. R. R. Co., 14 Interst. Com. R. 237. The ruling was that the service rendered by the petitioner, the present defendant, was not part of the trans-plant, there is no dispute that delivery at the portation undertaken by the carrier. Its instrumentalities were characterized as plant facilities. In this action, begun in 1910, the defendant has litigated anew the matters in controversy before the Commission in 1908. It does not claim compensation for the movement of material along the narrow gauge system. It concedes this to be a plant facility. It insists, however, that an allowance must be made for the movement of cars from the storage tracks to points within the plant where they are loaded or unloaded, and for their subsequent return. There is a finding that 72 per cent. of the total car move ments within the plant are necessary for that purpose. Other operations, even on the standard gauge tracks, are excluded from the claim. That the charge of 1 cent per 100 pounds is reasonable in amount is not disputed. The sole question is whether any charge is lawful. The trial judge in a careful opinion followed the ruling of the Interstate Commerce Commission, and held that the allowance was in effect an unlawful rebate. The Appellate Division reversed, and gave judgment on the counterclaim.

[1, 2] Transportation includes delivery. Under the plaintiff's published tariffs it does not include the work of loading and unloading. Official Classification, 38, Interstate Commerce Commission. But whatever is essential in order to complete delivery, the carrier must do. That is what it is paid for when it collects its regular rates. If it fails to make delivery, and the consignee through its own instrumentalities completes the work, an allowance is due. Interstate Commerce Commission v. Dieffenbaugh, 222 U. S. 42, 32 Sup. Ct. 22, 56 L. Ed. 83; United States v. B. & O. R. R. Co., 231 U. S. 274, 293, 34 Sup. Ct. 75, 58 L. Ed. 218. But no allowance is due for service rendered by the consignee after delivery has been made and transportation is at an end. An allowance in such circumstances would constitute an unlawful rebate.

That is true of interstate shipments under the laws of Congress. Act to Regulate Commerce (Feb. 4, 1887) 24 Stat. L. 379, 88 2, 3, 17; Act of Feb. 19, 1903, 32 Stat. L. 847; Act of June 29, 1906, 34 Stat. L. 584. It is true of intrastate shipments under the laws of New York. Public Service Commissions Law (Laws 1907, c. 429) §§ 31, 32.

The decisive question must therefore be whether the switching done by the defendant within its plant between the storage tracks

[3] In the nature of things no inflexible formula can furnish a solution of that problem. The limits of place within which delivery is due will vary with varying conditions. Mitchell Coal & Coke Co. v. Penn. R. R. Co., 230 U. S. 247, 263, 33 Sup. Ct. 916, 57 L. Ed. 1472. All that we can safely say is that there must be such a delivery as is customary and reasonable. There was a time, before the days of railroads, when a carrier by land was expected to make delivery at the consignee's home or place of business. That was because he could go there with his wagons. Fenner v. Buffalo & State Line R. R. Co., 44 N. Y. 505, 510, 4 Am. Rep. 709. With the days of railroads, delivery came to be expected at freighthouses or other terminals. They are still the place of delivery where the factories and warehouses of shippers and consignees do not connect with the tracks. In our own time, however, private sidings have become common, and freight is carried over them between the railroad and the plant. Such carriage is commonly a part of the work of transportation. Vincent v. Chicago & Alton Co., 49 Ill. 33; Coe v. L. & N. R. R. Co. (C. C.) 3 Fed. 775. In most cases the distances are short, and the carrier's burden remains substantially the same whether the cars are left upon the siding close to the main tracks or hauled along the siding until they reach the plant. In such circumstances it may be said with reason that delivery at the plant means delivery at the platform for loading and unloading. The practice of hauling cars to points along the spur convenient to shipper or consignee is known as “spotting," and is commonly and fairly regarded as part of the work of carriage.

[4] The plaintiff has not withheld from the defendant the services incidental to carriage between the railroad and the plant. It has hauled the cars from the main line to storage tracks within the limits of the defendant's yard. Those storage tracks correspond to the spurs or sidings on which the practice of "spotting" had its origin. But the defendant asks us to say that hauling the cars to the storage tracks is not complete delivery. It insists that the plaintiff must haul them farther over an intricate system of interlacing tracks and distribute them among the mills and warehouses. One build

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