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Opinion of the Court, per FOLGER, J.

ance, and put in and served an answer generally in the action, and raised no objection until after issue was joined and the trial commenced, that the court had not jurisdiction of the action and of the parties. In this respect the case differs from Cumberland Coal Co. v. Sherman, 8 Abbott Pr. Rep., 243, where the foreign corporation defendant appeared specially, and only for the purpose of moving to set aside the summons, etc., for the want of jurisdiction over it. Jones v. Norwich & N. Y. Trans. Co. (50 Barb., 193) does hold that the objection may be made after answer, and even on appeal after judgment. Such holding was not necessary to the decision of that case, as jurisdiction was there retained by virtue of a statute other than the Code of Procedure. Nor do we agree in the dictum there expressed. We hold that where the court has the jurisdiction of the subject-matter cr cause of action, that consent may confer jurisdiction of the person; and that such consent may be expressed by a foreign corporation, by appearing by attorney and answering generally in the action. Though it seems to have been thought that a foreign corporation could not at common law have been sued here, it was at the same time suggested that it would be coinpetent for it to constitute an attorney to appear and plead in an action. (In re McQueen v. The Middletown Manuf. Co., 16 Johns., 5.) Since that time it has been so often held that a voluntary appearance confers jurisdiction of the person, and the rule seems so reasonable in itself, that we have no hesitation in adopting it. In Faulkner v. The Del. & Rar. Can. Co. (1 Den., 441), BEARDSLEY, J., after quoting Taney, C. J., to the effect that a corporation, though it must live and have its being in the State of its creation, yet it may be recognized and contract in another, says: “hence it may prosecute and defend suits out of the State in which it was created.” (And see Paulding v. Hud. Manufacturing Co., 2 E. D. Smith, 38; Watson v. Cabot Bank, 5 Sandf., 423, the judgment in which was affirmed in this court, 4 Duer, 606, note; Dart v. Farmers' Bk., 27 Barb., 337.)

Opinion of the Court, per FOLGER, J.

2d. Was there a conversion of the property by the defendant so as to warrant this action?

The defendant claims that there is no conversion unless there was an appropriation of the goods to its own use, and puts it in part upon the ground that the defendant was a common carrier. In the first place, the defendant does not in this action hold the place of a common carrier of plaintiff and his goods. If there is cause of action, as at present before us, it is because the plaintiff would not consent to take on with the defendant the relation of passenger with his baggage. He refused to do so, and demanded return to him of his goods. His trunks and their contents were then no longer to be treated in the transaction as baggage of a passenger in the hands of the defendant as a common carrier of him and them, but as property of one in the possession of another, delivery of which to the owner had been demanded and been refused. Again, a common carrier is not always excused in an action for conversion, because he has not in fact applied to his own use the goods committed to him in his public capacity. (Dewell v. Moxon, 1 Taunt., 391 ; Anon., 2 Salk., 655.) It is doubtless correct to say as a general proposition, that demand and refusal are not conclusive evidence of conversion. There may be such a state of facts shown in opposition as fully to rebut. But such may be the case also, as that demand and refusal shall be enough. If one have the power to deliver or to retain the article demanded, a demand and a refusal to deliver is sufficient evidence of a conversion. (Bristol v. Burt, 7 Johns., 254.) A refusal however, may be accompanied with such reasonable qualification as to furnish an excuse for retention, and then there is no conversion shown merely by proof of demand and refusal. (McEntee v. N. J. Steamboat Co., 45 N. Y., 34.) In the case before us, the qualification was, that the prearranged moment for the starting of this fast express through passenger train was so right upon the defendant, that to take the measures needed to get at in the baggage crate the trunks of the plaintiff, and removing them therefrom, to put them again in his possession,

Opinion of the Court, per FOLGER, J.

would take so long, as to derange the time table, insure delay, and incur the hazard of accident and damage. As to this, the business of the defendant as a cominon carrier of persons is an element in the case. We are not prepared to say that, under the usual circumstances of one taking passage with ordinary baggage, and at the last moment for his own convenience changing his purpose, it would not be a good excuse for a refusal to deliver it, so as to repel the conclusion of a conversion of the goods, that the delay needed therefor would throw out of gear the arrangements for the running of the train, and thus risk be incurred to the passengers and property carried. There would be to be

sure, the physical power to delay the train and to overhaul the baggage and to find and deliver to him his own. But there would be on the other hand, the duty to others, of heeding all salutary and necessary arrangements for a safe journey for them. Does not the presence of this fact in any case, presenting the duty of a railroad company to be thoughtful of the safety of the passengers under its care, put a weighty consideration in the scale over against the evidence of conversion of baggage furnished by the simple fact of a demand and refusal to deliver it?

There is however, an important circumstance in this case, which is to be borne in mind in the consideration of this question. It was one

one of the regulations of the defendant that no baggage should be checked until the passenger tendering it should have bought his ticket. On the plaintiff offering his trunks for checks, he was required by the baggage-man in obedience to this rule, to first provide his tickets. During his absence for them, the baggage-man weighed the trunks, put checks upon them and placed thein in the baggage crate, and upon the top of them was placed other baggage. After this was done the plaintiff returned with his tickets. The baggage agent then enforced upon the plaintiff another rule of the defendant. Inasmuch as the weight of the trunks was apparently more than the number of tickets bought would entitle the passengers going

Opinion of the Court, per FOLGER, J.

under them to carry as ordinary baggage, there was demanded of the plaintiff payment of a charge for the excess. It was the enforcement of this rule that caused the plaintiff to yield his purpose of travel by that train and to demand possession of his baggage again. Had the baggage-man adhered to the rule not to check and load baggage until tickets were bought, a rule of which he had demanded observance from the plaintiff, the trunks might have been beside the car, and surrender of possession to the plaintiff would have been easy. Had the man in the first instance, before requiring the purchase of tickets, asked for the extra charge for overweight, and had the plaintiff declined, then return to him of his property could have been easily made. No doubt but that the defendant had the right to neglect observance of any or all of these rules, they being made for its convenience and protection. But it had no right to first enforce one upon the plaintiff and then itself disregard it, and inflict the inconvenient result of vacillation upon him. It insisted that he should act up to it. While he was so doing, it neglected it, and in that neglect bo placed his baggage, as that when it came to demand of him the observance of another rule of which he had not been theretofore notified, and he refused and demanded his property, the practical difficulty arose of the inability to meet the changed aspect of affairs.

It does not appear but that he would have refused to pay the extra charge had it been made before he was sent to procure his tickets, and thus his trunks never have gone out of reach. It is said that the baggage-master could not know that there was an excess of baggage until the number of tickets was apparent to him. He did know however, that apparently there was but one passenger with his wife, to whom it belonged, and if there was to be on his part, an enforcement of all the rules of the company before the plaintiff was to be allowed to take his place as passenger carrying his trunks with him, it was this agent's duty to keep matters in such a state as that it should be possible to meet the contingency of a refusal on the part of the plaintiff to comply,

Opinion of the Court, per FOLGER, J.

And was

and of the consequent necessity of surrendering to him his property. This deviation by the defendant from the rule which the plaintiff was obeying, may have been the cause of the inability of the defendant to comply with his demand for the delivery of his property.

Again ; the plaintiff after payment of the charge for extra baggage was required of him, first demanded the checks for his trunks; and it was not until the refusal of them that he inade demand for the delivery of the trunks themselves. So that the defendant had the option of giving the checks or giving the trunks; and if the circumstances which it had brought about made the latter impracticable, the former might have been done. Thus there is another element in the inquiry as to the reasonableness of the excuse. then, that inability stated as an excuse for not making delivery a reasonable qualification of the refusal so to do?

It is not for the court, in this case, to pass upon this as a question of law, whether there was or was not a conversion. Whether or not the qualification of the refusal to deliver was reasonable in this case, is a question of fact for the consideration of the jury under proper instructions from the judge. (Mount v. Derick, 5 Hill, 455; Watt v. Potter, 2 Mason, 80; Alexander v. Southey, 5 Barn. & Ald., 247; Delano v. Curtis, 7 Allen, 470.)

And in this view the testimony in the case, as to an arrangement between the plaintiff and Thompson, the president of the defendant, for the retention and delivery of the trunks to the plaintiff at Pittsburgh, and what took place between the plaintiff and the defendant's agent at Pittsburgh as to the trunks having passed on to Chicago, and the arrangement for him to receive them there, was proper to have been submitted to the jury as bearing on the question of a conversion. (Hayward v. Seward, 1 Moore & Scott, 459.) The defendant is understood to claim that this testimony tended to show what should be termed a waiver, (Lucas 5. Trumbull, 15 Gray, 306; Trayner v. Johnson [Head], 1 Tenn, 51); or a ratification of the act of the defendant in



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