original casting showed pins of similar ar- ant to prove his case beyond a reasonable (242 U. S. 353) MINNEAPOLIS & ST. LOUIS RAILROAD V. GEORGE H. WINTERS. ERRORS application of the Federal statute, but, on the contrary, invoked and relied, without qualification, upon that statute and the rights that, because of that statute, it supposed itself to possess. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3593, 3594; Dec. Dig. 882 (3).] COMMERCE 27(8)—Master and Servant -EMPLOYERS' LIABILITY WHEN SERVANT IS "ENGAGED IN INTERSTATE COMMERCE. 2. A machinist's helper, engaged, while making repairs in the roundhouse, upon an engine which had been used in hauling over the railway company's lines freight trains carrying both intrastate and interstate freight, and which was used in the same way after the accident, was not then employed in interstate commerce within the meaning of the Federal Employers' Liability Act of April 22, 1908 (35 Stat. at L. 65, chap. 149 [Comp. St. 1913, §§ 8657-8665]), governing the liability of an interstate carrier for injuries to its employees when employed in interstate commerce. 1. Error, if any, in basing a recovery fied by a further coincidence also explained eral Employers' Liability Act of April 22, in a personal-injury action upon the Fedby the defendant as accident. The lugs by 1908 (35 Stat. at L. 65, chap. 149), does which the cup was to be fastened to the low-not entitle the defendant to have the judg er surface happened to face in opposite ment reversed, where such defendant in no directions in the plaintiff's device, although | way saved its rights to deny that the parlater they were made to face the same way. ties were engaged in interstate commerce at The defendant's also faced in opposite the time of the accident, or to object to the directions. It surpasses the power of belief that a man who testified that there was nothing in the invention, that it was merely arranging to fasten a ladle to a board, should have come by pure chance to make so exact a replica of the plaintiff's specific form. Inspection of the two castings shows | more clearly than can words that one must have been a copy of the other. The plaintiff and defendant lived far apart. Adamson had no chance to copy Gilliland. On the other hand, after Adamson's vulcanizers were made public, Gilliland could copy them. The man who made the castings shows that the resemblance was even more complete than we have stated, by reason of the presence of a base plate, although Gilliland denies that he had one at that time. There is no doubt that the defendant had castings made. The essential question is the time when they first were made. We shall not discuss the evidence of those concerned in the making beyond recurring to the impression that the witnesses made upon the district judge, and mentioning that a dray ticket relied upon as fixing that date appears to have been open to grave sus- Argued December 5, 1916. Decided Janupicion from its character, marking, and other details. Considering that a patent has been granted to the plaintiff, the case is pre-eminently one for the application of the practical rule that so far as the finding of the master or judge who saw the witnesses "depends upon conflicting testimony or upon the credibility of witnesses, or so far as there is any testimony consistent with the finding, it must be treated as unassailable." Davis v. Schwartz, 155 U. S. 631, 636, 39 L. ed. 289, 291, 15 Sup. Ct. Rep. 237. The reasons for requiring the defend [Ed. Note.-For other cases, see Commerce, Dec. Dig. 27(8). For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.] [No. 420.] ary 8, 1917. N ERROR to the Supreme Court of the State of Minnesota to review a judg. ment which, on a third appeal, affirmed a judgment of the District Court of Ramsey County, in that state, in favor of plaintiff in a personal-injury action against an interstate carrier. Affirmed. See same case below, on first appeal, 126 For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Messrs. Frederick M. Miner and Wil-, the Federal statute. On the contrary, withliam H. Bremner for plaintiff in error. out qualification it invoked and relied upon Messrs. Humphrey Barton and John H. that statute and the rights that, because Kay for defendant in error. Mr. Justice Holmes delivered the opinion of the court: This is an action for personal injuries suffered by the plaintiff, the defendant in error, at Marshalltown, Iowa, on October 21, 1912. The decisions below will be found in 126 Minn. 260, 148 N. W. 106, and 131 Minn. 181, 154 N. W. 964. The declaration alleged that at the time the plaintiff was employed by the defendant in interstate commerce, although it went on to set forth laws of the state of Iowa concerning the liability of railroads and contributory negligence. It alleged that the injury was caused by the negligence of the defendant in failing to furnish a reasonably safe instrument for the work that the plaintiff was set to do. The answer denied, among other things, that the plaintiff was employed in interstate commerce, and set up the plaintiff's negligence and assumption of the risk. In the course of the trial, the facts touching the employment having been agreed, the counsel for the defendant intimated that he might want to take the question whether the commerce was interstate to this court, but said no more about it, and later moved to dismiss the suit upon the ground, among others, that the plaintiff assumed the risk, adverting to a decision that that defense was open under the Federal act. Later still the presiding judge in his charge, without objection, told the jury that the action was tried under the law of the United States; and in the assignment of errors to the supreme court of the state, one error assigned was that the jury was instructed that they might find a less than unanimous verdict in a suit founded upon the Federal Employers' Liability Act, a proposition disposed of since the trial by a decision of this court. Minneapolis & St. L. R. Co. v. Bombolis, 241 U. S. 211, 60 L. ed. 961, L.R.A. 1917A, 86, 36 Sup. Ct. Rep. 595. It is true that error is assigned because the court affirmed its opinion rendered after a former trial. But in the assignment of errors to the state court no such error is alleged, and beyond Judicial recitals that the evidence, with some exceptions, was the same at both trials, and quotations from the decision as to negligence, the record shows nothing but a casual statement of counsel as to what was done or ruled before. In short, at the trial the defendant in no way saved its rights to deny that the parties were engaged in interstate commerce at the time of the accident, or to object to the application of of that statute, it supposed itself to possess. There is an ambiguous assignment of error that the supreme court of the state erred in holding as matter of law that the plaintiff was engaged in interstate commerce, and in holding that the question of the plaintiff's assumption of the risk was for the jury, "thereby depriving the appellant of a right guaranteed to it under the provisions of" the Federal Employers' Liability Act. But if the first clause is more than an introduction to and reason for the second, then, as we have indicated, no foundation for such an assignment was laid in the proceedings before the state courts. Therefore even if the courts and parties were wrong about the proper basis for the suit, that fact does not entitle the defendant to have the judgment reversed. It cannot complain of a course to which it assented below. The defendant, however, as has been seen, did save the questions concerning its right to a unanimous verdict and the assumption of risk under the act of Congress, and also concerning the evidence of its negligence, all of which, of course, in a case arising under the act, could be brought to this court. In the present case the facts upon which the act of Congress was supposed to apply are stated and were agreed, so that although, for the reasons that we have stated, an error on that point would not entitle the defendant to a new trial, it necessarily must be determined whether they show a foundation for the attempt to come here upon the questions that were reserved. The agreed statement is embraced in a few words. The plaintiff was making repairs upon an engine. This engine "had been used in the hauling of freight trains over the defendant's line which freight trains hauled both intrastate and interstate commerce, and it was so used after the plaintiff's injury." The last time before the injury on which the engine was used was on October 18, when it pulled a freight train into Marshalltown, and it was used again on October 21, after the accident, to pull a freight train out from the same place. That is all that we have, and is not sufficient to bring the case under the act. This is not like the matter of repairs upon a road permanently devoted to commerce among the states. An engine, as such, is not permanently devoted to any kind of traffic, and it does not appear that this engine was destined especially to anything more definite than such business as it might be needed for. It was not interrupted in an interstate haul to be repaired and go on. It simply had finished some interstate business and had not yet begun upon any other. Its Mr. Justice Holmes delivered the opinnext work, so far as appears, might be inter-ion of the court: state or confined to Iowa, as it should happen. At the moment it was not engaged in either. Its character as an instrument of commerce depended on its employment at the time, not upon remote probabilities or upon accidental later events. Judgment affirmed. This is scire facias, where the statutes of Connecticut provide a similar remedy, to recover savings bank accounts attached by trustee process in the hands of the plaintiff in error, judgment having been recovered in the original suit by the defendant in error and execution taken out. The gar nishee submitted itself to the judgment of the court, admitting deposits, but setting up that after the attachment the accounts had been assigned to the United Hatters of North America, and that the assignee claimed the dividends that had accrued since the writ was served. The assignee was cit DIETRICH E. LOEWE, as Surviving Partner of the Firm of D. E. Loewe & Com-ed, appeared, and made the claim. The prin pany. GARNISHMENT 115-EFFECT REACHEDINTEREST ON SAVINGS BANK DEPOSITS. 1. A garnishment of savings bank deposits reaches the so-called dividends accrued since the writ was served upon the garnishee, where, under the local laws, a garnishment, while reaching only effects in the hands of the garnishee at the time of such service, holds the subsequently accruing interest on an interest-bearing debt as well as the principal, although such local law (Conn. Gen. Stat. 1902, §§ 849, 852) gives the right to release the attachment by giving a bond equal to the value of the effects attached. [Ed. Note.-For other cases, see Garnishment, Cent. Dig. § 234; Dec. Dig. 115.] -ASSIGNMENT. 109-EFFECTS REACHED 2. An assignment of savings bank deposits after they had been garnished has no effect upon the rights of the attaching creditor to the so-called dividends accruing after the service of the garnishment process. [Ed. Note. For other cases, see Garnishment, Cent. Dig. §§ 227-229; Dec. Dig. 109.] [No. 713.] cipal, except an item of $428.52, now has been paid, and the right to the dividends is the only question in the case. The circuit court of appeals decided that the attaching creditor had the better right. L.R.A. 1917B, 938, 236 Fed. 444. There is no doubt that under the statutes of Connecticut, as usual elsewhere, a garnishment reaches only effects of the defendant in the hands of the garnishee at the time of service upon the latter, as distinguished from contingent liabilities that do not become effects in the garnishee's hands until a later time. Gen. Stat. 1902, §§ 880, 931. But the commonest object of such attachments is a right, regarded as a thing within reach of the process because of the power of the court over the person subject to the corresponding obligation. Barber v. Morgan, 84 Conn. 618, 623, 80 Atl. 791, Ann. Cas. 1912D, 951; Osborn v. Lloyd, 1 Root, 447; Harris v. Baik, 198 U. S. 215, 222, 49 L. ed. 1023, 1026, 25 Sup. Ct. Rep. 625, 3 Ann. Cas. 1084. If the right is vested, the attachment reaches the whole of it, and therefore, there being no doubt that a debitum in præsenti solvendum in futuro Argued December 11, 1916. Decided Janu- could be attached (Gen. Stat. § 936), it was admitted at the argument that in the case of an interest-bearing debt the subsequently accruing interest was held as well as the principal. The obligation to pay the one stands on the same footing as the obligation to pay the other; the two are one; they are limbs of the same contract; and there is no reason for splitting them up. Adams v. Cordis, 8 Pick. 260, 269. It may be true that, apart from statute, the attachment of stock in a corporation would not hold subsequently declared dividends; See same case below, L.R.A. 1917B, 938, but, if so, that is because the stockholders 236 Fed. 444. The facts are stated in the opinion. Messrs. William F. Tammany and John H. Light for plaintiff in error. Messrs. Walter Gordon Merritt and Daniel Davenport for defendant in error. have no right to the dividends until they are declared, which may never be if the directors see fit to convert earnings into capi tal. Gibbons v. Mahon, 136 U. S. 549, 34 L. ed. 525, 10 Sup. Ct. Rep. 1057. Compare Norton v. Norton, 43 Ohio St. 509, 525, 3 For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes N. E. 348. The question then narrows itself to whether the so-called dividends of savings banks are analogous to dividends of a corporation, or to interest due by contract upon a debt. No argument against our conclusion can be based on the right to release the attachment by giving a bond equal to the value of the effects attached. Gen. Stat. §§ 849, 852. We presume that ordinarily a plaintiff would be satisfied with a bond for the principal of a debt or deposit. If he should raise a question we will wait for the Connecticut courts to decide whether he might or might not be entitled to more. Finally, the assignment, of course, has no effect upon the rights of the defendant in error. If the attachment would have held dividends as against the original defendant, it holds them as against the assignee. Judgment affirmed. The plaintiff in error is an ordinary sav ings bank without stockholders. It is subject to a fiduciary duty to hold and invest for the benefit of its depositors all the funds that it receives, and to pay over to them all the net income earned, after the retention of enough to constitute a small safety fund. Gen. Stat. §§ 3440, 3441. This duty certainly is no less because created by statute rather than by contract. It is guarded by other statutes limiting the investments allowed and requiring inspection, with the object of making principal and income secure rather than large. Gen. Stat. §§ 3428, 3457. The minimum amount of the dividends generally is as fixed in practice as if it were written in a bond. The practical certainty that a savings bank will pay is greater, in short, STATE PUBLIC UTILITIES COMMISthan that an average debtor will pay 6 per cent according to his promise in a note. The only element of uncertainty other than that conditioning all future conduct is the possibility that the dividend may be greater than that which experience has led the depositor to expect. He has a vested right to the dividends, a vested right that the corporation should take the most prudent steps to secure them, with an identified fund devoted to the result. We do not perceive why the possibility of there being no earnings because of fraud or a cataclysm, or a possibility of the earnings being greater than was expected, should make the right less a present one, subject to and covered by the attachment, than the right to the capital, which runs the same risks (Bunnell v. Collinsville Sav. Soc. 38 Conn. 203, 9 Am. Rep. 380), or than that arising from the promise of a debtor, who may fail or abscond, or, if a corporation, may have no assets. (242 U. S. 333) CHICAGO, MILWAUKEE, & ST. PAUL RAILWAY COMPANY, Plff. in Err., V. SION OF ILLINOIS. COMMERCE 34 · STATE REGULATION OF 1. A separate local freight rate for coal shipped from Galewood, a station inside of Chicago, to Morton Grove, Illinois, a distance of about 12 miles, over a route wholly within that state, is not so related to through freight rates to Galewood from coal-producing districts inside or outside the state as to exclude regulation by the Illinois Public Utilities Commission, Congress not having exerted its paramount constitutional power, where there may be a blending of interstate and intrastate operations of interstate carriers, to limit the authority that the order of the state Commission gives of the state, and there being nothing to show commercial advantages to shippers and producers of coal in Illinois over shippers and producers outside the state. [Ed. Note. For other cases, see Commerce, Cent. Dig. §§ 26, 82; Dec. Dig. 34.] COURTS 394(15) ERROR ΤΟ STATE COURT-FEDERAL QUESTION-STATE REGULATION OF INTERSTATE FREIGHT RATES. 2. The Federal Supreme Court has jurisdiction of a writ of error to a state court to review a decision adverse to the contention that a local freight rate for coal shipped from Galewood, a station inside of Chicago, to Morton Grove, Illinois, a diswithin that state, is so related to through tance of about 12 miles, over a route wholly freight rates to Galewood from coal-producing districts inside or outside the state, as to exclude regulation by the Illinois Public Utilities Commission. The case certainly is not weakened, it rather seems to us to be strengthened, by the fact that the statutes of Connecticut provide that the levy of attachments and executions upon even the shares of a corporation shall include dividends growing due thereon. The provision indicates a policy, and although, of course, the words do not include dividends from savings banks, as, in our opinion, they did not need to, it is only by imagining unreal distinctions that the policy embodied in the statute, and extending by the common law to interest due upon contract, can be held to exclude [Ed. Note.-For other cases, see Courts, Cent. the claim to subsequently earned income of Dig. § 1064; Dec. Dig. 394 (15).] ordinary savings banks, when that claim, as we have tried to show, is a vested right. [No. 148.] Middletown Sav. Bank v. Jarvis, 33 Conn. Argued December 5, 1916. Decided Janu372, 379. See Norton v. Norton, supra. ary 8, 1917. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes N ERROR to the Supreme Court of the, ly by the supreme court of the state. 268 State of Illinois to review a judgment Ill. 49, P.U.R.1915D, 133, 108 N. E. 729. which affirmed a judgment of the Circuit The error assigned against the order of Court of Sangamon County, in that state, the Commission and the judgment sustainsustaining an order of the State Publicing it is that so far as the order relates to Utilities Commission, regulating an inter- coal, the rates on manure not being instate freight rate. Affirmed. volved, it violates the commerce clause of See same case below, 268 Ill. 49, P.U.R. the Constitution of the United States in 1915D, 133, 108 N. E. 729. The facts are stated in the opinion. Messrs. O. W. Dynes and Burton Hanson for plaintiff in error. that: (1) The order assumes to regulate a feature of commerce in which interstate and intrastate commerce are commingled, and after jurisdiction of that feature had Messrs. M. F. Gallagher and Everett been taken by the Interstate Commerce Jennings for defendant in error. Mr. Justice McKenna delivered the opinion of the court: Error to review a judgment of the supreme court of Illinois sustaining an order of the State Public Utilities Commission, made in a proceeding brought by Poehlmann Brothers Company against plaintiff in error, here called the railway company. Commission, and regulates such feature of commerce differently from and inconsistently with the regulation of the Interstate Commerce Commission. (2) It requires the railway company to discriminate against localities outside of Illinois and give preference to those inside of the state in the charges that the company makes for the same service. (3) It violates § 3 of the Interstate Commerce Act as amended (Comp. Poehlmann Brothers Company is an Illi- | St. 1913, § 8565) by requiring the company nois corporation, engaged in growing and to give unreasonable preference and advanselling flowers, and has its greenhouse at tage to producers and shippers of coal in the Morton Grove, Cook county, Illinois, a sta-state, and subject those outside of the state tion on the railway company's line, 3 miles to unreasonable prejudice and disadvantage northeast of Chicago. Poehlmann Brothers by obliging the company to charge a less rate Company uses in its greenhouse about 30,000 tons of coal each year, 95 per cent of which is mined in Illinois, and 500 cars of manure which comes from places in and around Chicago. The coal and manure move to Morton Grove over the railway, which receives them at Galewood, a station inside of Chicago. The distance from Galewood to Morton Grove is about 12 miles and is the haul involved in this case. There are no joint or through rates on coal to Morton Grove from points in Illinois or from points in other states, the rate from Galewood to Morton Grove being a separate rate. The rates on cars of coal to Chicago vary according to point of origin, but in all cases the charge of the railway company from Galewood to Morton Grove is 40 cents a ton, and is published as such, for which the railway company is alone responsible. July 18, 1913, Poehlmann Brothers Company filed a petition with the Warehouse Commission of Illinois, predecessor of defendant in error, charging that such rate of 40 cents a ton on coal and manure from Galewood to Morton Grove was unjust and unreasonable. After a hearing the Commission so found, and that 20 cents a ton on coal and 25 cents on manure were just and reasonable rates, and should be put into effect by the railway company. The order was affirmed by the circuit court of Sangamon county and subsequent for the transportation of coal in carload lots between specified points on its rails when the coal originates within the state than it is lawfully permitted to charge and does charge for the same service on interstate shipments of coal. (4) It violates § 6 of the Interstate Commerce Act as amended (section 8569) by requiring the railway company to charge a less compensation on carloads of coal between certain points named in tariffs on file with the Interstate Commerce Commission than the rates and charges specified in such tariffs. (5) It violates § 13 of the Interstate Commerce Act (section 8581) by disregarding the right of the railway company to have the Interstate Commerce Commission investigate any complaint of the Railroad Commission of any state and obtain such relief as the complaint might merit. (6) It violates § 15 of the Interstate Commerce Commerce Commission power over through Act (section 8583), which gives the Interstate ticipated in by two or more carriers, the orrates and joint rates and transportation parder under review seeking to regulate one factor of such through or joint rate without regard to the other. (7) The order is unreasonable and unlawful in that the Commission, without finding the through rate excessive or discriminatory, or having facts before it on which to make such finding, made the order to reduce solely for the benefit of Illinois shippers and producers, the transportation charges being a factor of the transportation service involved that is com |