author: Price, J.

text:
    Hunt v. Bode, Assignee, et al.

      Transfer of warehouse receipt or chose in action — Valid without actual delivery — As collateral security for loan — Pledgor requests first pledgee to transfer security to second creditor— Assignment of pledgor within ninety days after transfer of security — Not fraudulent — Application of Sec. 6348, Rev. Stat.

    1. A written pledge or transfer of an interest in warehouse receipts, or choses in action to secure a debt, is valid, without actual or manual delivery, where such receipts or choses in action are being held by another creditor on pledge as collateral security for a loan of money made by him to the same pledgor, or transferer, the second pledge or transfer being equivalent to actual delivery of the property pledged or transferred; and a request by the pledgor or transferer to his first pledgee, that when his debt is paid he deliver the collateral to his other creditor, constitutes sufficient possession of the collateral by such other creditor.
    2. If the pledgor or transferer file a deed of assignment within ninety days after making such pledge or transfer to secure the second creditor, the same will not be deemed and held to be fraudulent and void as to the assignee under the provisions of Sec. 6343, unless the pledge or transfer was in contemplation of insolvency; or, with a design to prefer one or more creditors to the exclusion in whole or in part of others; or, with intent to hinder, delay or defraud creditors.
    (Decided May 13, 1902.)
    Error to the Circuit Court of Hamilton county.
    The controversy between these parties was first litigated in the court of insolvency of Hamilton county, and from its judgment and orders an appeal was taken to the court of common pleas, where the case was tried by that court on an agreed statement of facts, from which statement it appears, that H. F. Stothfang, prior to April 16, 1898, had for several years been indebted to one Dibowski, for borrowed money, in the sum of one thousand dollars for which he held the promissory note of said H. F. Stothfang. On April 16, 1898, Stothfang paid to Dibowski the interest due, and gave a new note for the principal sum, due in one year, signed by -himself, F. H. Stothfang and Louisa Stothfang, and before delivery it was endorsed by defendant in error, Henry Dieckmann. This note was not paid when it matured, and after being protested for non-payment, Dibowski threatened to bring suit against the makers and endorser, and to prevent suit against him, and to take up the note on which he was liable as endorser, by a mutual arrangement between all the parties, defendant in error Henry Dieckmann, in satisfaction of the former note, gave his individual note to Dibowski for the one thousand dollars due one year after date with six per cent, interest per annum, and secured its payment by mortgage on real estate. This note and the mortgage are dated May 12, 1899. As a consideration for the giving of said note and mortgage by Dieckmann to Dibowski, H. F. and F. H. Stothfang executed and delivered to Dieckmann the following instrument:
    “$1,000.00. Cincinnati, May 12th, 1899. One year after date we promise to pay to Henry Dieckmann or order, one thousand dollars, for value received, payable at the Atlas National Bank, with interest at six per cent, per annum, having deposited or pledged as collateral security for the payment of this note the same warehouse receipts for whiskey now in the possession of the Atlas National Bank and pledged with «aid bank as collateral security for loans or their renewals of said loans, and after the payment of said loans or their renewals to the Atlg,s National Bank, then the balance of,said warehouse receipts are to be held by the said Henry Dieckmann as collateral secure ity to his note. And we hereby give to the holder hereof full power to sell- or collect at his expense all or any portion thereof, at any place, either in Cincinnati or elsewhere, at public or private sale, at holder’s option, on the non-performance of the above promise, and at any time thereafter, and without advertising the same or otherwise giving to him any notice. In case of public sale the holder may purchase without being liable to account for more than the net proceeds of said sale. (Signed) H. F. Stothfang, F, H. Stotjp fang.”
    The Atlas National Bank, on the 15th day of May, 1899, was served with a copy of the above instrument as shown by the following writing:
    “Cincinnati, Ohio, May 15th, 1899. The Atlas National Bank, City. Dear Sirs: I attach hereto a copy of a promissory note given on May 12th, 1899, to Henry Dieckmann and signed by myself and brother. The note explains itself. You are to keep possession of the warehouse receipts and the insur¿nce policies for the swhiskey which you have as collateral security for loan to me and after these loans are fully paid up to you, the balance of the warehouse receipts are to be turned over to Henry Dieckmann or to' O. J. Renner, his attorney, to be held by .them as collateral security for the note hereto-attached. Tim insurance policies on this whiskey are also to be turned over when your claim i,s fully paid.Yours very truly, H. F. Stothfang;”.....:■•■■■■

      H. F. Stothfang for a year or more, prior to the transaction, was in partnership with his brother, F. H. Stothfang, and they did business under the firm name of H. F. Stothfang & Brother, but said partnership was dissolved and H. F. continued the business, assuming its liabilities and taking its assets.
    At the time of the execution of the note signed by Dieckmann and prior thereto H. F. Stothfang was insolvent, and so continued insolvent, but Dieckmann had no knowledge of said insolvency.
    On the the 7th of August, 1899, H. F. Stothfang made a general assignment under the laws of the state of Ohio for the benefit of creditors, to August H. Bode, and the deed of such assignment was filed in the court of insolvency of Hamilton county on the same day, and the assignee accepted the trust and duly qualified.
    The warehouse receipts representing said whiskey, being then in the possession of the Atlas National Bank, were sold by the assignee and realized about $2,300, leaving in the hands of the assignee at the time, a balance of $1,300, after having paid the Atlas National Bank in full under order of the insolvency court.
    A further fact agreed upon is:
    “That at the time the assignee sold the whisky under the order of the insolvency court, the bank having the warehouse receipts in its possession declined to turn them over to the assignee until the bank had its claim paid. The bank further declined to turn them over to the assignee until Dieckmann or his counsel consented to it, the bank having accepted the notice sent by Dieckmann’s counsel. Dieckmann’s counsel declined to consent to the turning over of the warehouse receipts at that time, and immediately went to the insolvency court, and that court made an entry before the warehouse receipts were turned over to the assignee and purchaser, reserving all the rights of Dieckmann.*’
    Whatever right Dieckmann had or has were preserved by an entry made by the court of insolvency, a copy of which is as follows:
    “It appearing to the court that upon a lot of 165 barrels of whiskey sold by the assignee herein, the Atlas National Bank, Henry Dieckmann and C. Roden - berg claim liens for $1,063, $1,025 and $248, respectively, and it further appearing that the warehouse receipts to said whiskey are in the possession of said Atlas National Bank and that it becomes necessary to deliver said warehouse receipts to said assignee to complete said sales made by him under the order of this court, it is hereby adjudged that said delivery shall in no wise prejudice and interfere with the rights that said Dieckmann and Rodenberg had previous to said sale and delivery in said goods or warehouse receipts, or to the right to the possession thereof, and that all their rights are fully preserved.”
    Dieckmann claims to be entitled to payment in full of his note with interest out of the proceeds of the sale of said warehouse receipts in the hands of the assignee, which claim to be so paid is denied by the creditors of H. F. Stothfang, claiming that Dieckmann is entitled to share in the proceeds only as a general creditor, and that the above arrangement between him and the assignor is void under section 6343, Revised Statutes.
    On these facts the court of common pleas found for Dieckmann, and made an order for his payment accordingly. A new trial was refused and error was prosecuted in the circuit court, where the judgment of the common pleas was affirmed, and August Hunt, a creditor of the assignor prosecutes error in this court, to obtain a reversal of the judgments of the lower,courts.

      Mr. Charles F. Williams; Mr. Henry Woost and Mr. C. A. Croom, for plaintiff in error.
    Two points are raised for decision in this cause, via.: When the liability of a surety attaches, and the construction of section 6343, Revised Statutes.
    It is of the essence of a pledge that there shall be an actual delivery of the thing pledged to the pledgee. Collins v. Buck, 63 Me., 459; Beeman v. Lawton, 37 Me., 543; Casey v. Cavaroc, 96 U. S., 467.
    The securities claimed, to have been pledged to the Credit Mobilier remained in the possession and control of the bank until the time of its failure. Up to that time they were not in such condition as the law requires for a pledge. The placing them in such a condition afterwards, by Cavaroc’s removing them from the bank at the time of its failure, was, in fact, an attempt to create a pledge then, by assuming the possession requisite thereto. Casey v. Bank, 96 U. S., 492; Bank v. Stubbs, 6 Mass., 422; Jones on Pledges, Sections 23 and 26.
    The delivery must be such as would be requisite to transfer the property in the same chattels in case of a sale of them. Jones on Pledges, Sec. 23; Pinkerton v. Railroad, 42 N. H., 424; Corbett v. Underwood, 83 Ill., 324.
    If for any reason the article sold is not quite identic fled, or something more remains to be done for the purpose of completing, separating, or identifying, etc., then the sale is not quite complete and title does not pass, because there is no equivalent to delivery in contemplation of law. Ormsbee v. Machir, 20 Ohio St., 295; Woods v. McGee, 7 Ohio (pt. 2), 127; Oil Co. v. Hughey, 56 Pa. St., 322; Phelps v. Willard, 16 Pick., 29; Golder v. Ogden, 15 Pa. St., 528.
    An agreement to pledge is not good against the pledgor’s assignee, in insolvency. Nisbit v. Bank, 12 Fed. Rep., 686; Seymour v. Hendree & Smalley, 54 Fed. Rep., 563; Christian v. Railroad, 133 U. S., 233; Insurance Co. v. Olmsted, 33 Conn., 476.
    An agreement for a pledge raises no privilege. Casey v. Schuchardt, 96 U. S., 494.
    “The surety is an original promisor and debtor of his principal from the beginning.” Brandt on Suretyship, sections 1 and 207; Bump on Fraudulent Conveyances, section 503; Jones v. Leeds, 10 Dec., 173; 7 N. P., 480; McCann v. Hill, 85 Ky., 574; Corn v. Sims, 3 Metc., 391; Thompson v. Heffner, 11 Bush, 353.
    A stranger endorsing his name in blank on the back of a negotiable promissory note, before, or at the time it takes effect, is presumed to be a surety for its payment and is held accordingly. Bright v. Carpenter, 9 Ohio, 139; Seymour & Co. v. Mickey, 15 Ohio St., 515; Ewan v. Brooks-Waterfield Co., 55 Ohio St., 596.
    A party bound by a contract whereof he may. become liable to the payment of money, although his liability may be contingent, is a debtor within the meaning of the statute avoiding all grants made to hinder or delay creditors. Young v. Heermans, 66 N. Y., 374; Van Wyck v. Seward, 18 Wend. (N. Y.), 375; Shontz v. Brown, 27 Pa. St., 123; Cook v. Johnson, 12 N. Y. Eq., 52; Bibb v. Freeman, 59 Ala., 612; Jenkins v. Lockhard, 66 Ala., 381.

      It follows logically from the foregoing that the person to whom such debtor is bound is a creditor.
    A surety, though his liability is only contingent, is a creditor of his principal. Atkinson v. Tomlinson, 1 Ohio St., 237; Harkrader v. Leiby, 4 Ohio St., 602.
    “It has been determined that the statute (act of March 14, 1838 — Swan’s Statutes, section 717) does not affect a mortgage, given by an insolvent debtor to secure the debt of one of his creditors, or to indemnify Mm against a liability, by endorsement or otherwise, assumed for the benefit of the debtor; although it may have the effect to prefer such creditor, and deprive others of the ability to obtain satisfaction of their claims.” Pendery v. Allen, 50 Ohio St., 121; Sargent v. Salmond, 27 Me., 539; Choteau v. Jones, 11 Ill., 300, approved in Hatfield v. Merod, 82 Ill., 113; Howe v. Ward, 4 Greenl. (Me.), 195; Carlisle v. Rich, 8 N. H., 44; Rice v. Southgate, 16 Gray, 142.
    A surety is a creditor of his principal from the time the obligation is entered into. Sargent v. Salmond, 27 Me., 539; Thompson v. Thompson, 19 Me., 244; Sexton v. Wheaton, 1 American Leading Cases (Hare & Wallace’s 5th ed.), 42; Williams v. Banks, 11 Md., 242; Pennington v. Seal, 49 Miss., 525.
    The date when the agreement or obligation comes into existence governs. Van Wyck v. Seward, 18 Wend., 375; Woodbridge v. Gage, 68 Ill., 157.
    A transfer of money or property by an insolvent principal to his surety is an attempt to prefer. Elliott v. Harris, 9 Bush (Ky.), 237.
    Firm property appropriated to the individual debts of the members of the firm, with the consent of all the partners, and in the absence of fraud, becomes the individual property of the partner or partners. Sigler
      v. Bank, 8 Ohio St., 511; Miller v. Estill, 5 Ohio St., 508; Saunders v. Reilly, 105 N. Y., 12.
    If a creditor goes beyond collecting or securing his own debt and attempts to secure any other or becomes bound to account to, or is trustee for any other creditor, the statute enlarges the trust so as to destroy his preference, and causes the fund or property inure to the benefit of all creditors equally. Bloom v. Noggle, 4 Ohio St., 45; Dickson v. Rawson, 5 Ohio St., 218.
    There was no valid pledge of the receipts to Henry Dieckmann, and consequently he can not claim a preference.
    The delivery must be sufficient to transfer the property in case of a sale of the same chattels. Jones on Pledges, Sec. 23; Pinkerton v. Railroad, 42 N. H., 424.
    Where part of an undivided lot of goods is sold, and an order is given for its delivery, there must be some act of selection under the order before the delivery is complete and the title passes. Ormsbee v. Machir, 20 Ohio St., 295; Rochester Oil Co. v. Hughey, 56 Pa. St., 322; Phelps v. Williard, 16 Pick. (Mass.), 29; Golder v. Ogden, 15 Pa. St., 528.
    A contract for the sale of an unascertained balance would never in law pass title to goods, consequently by applying the rule stated above there was here no sufficient delivery to perfect a pledge. Therefore, since Henry Dieckmann did not have the receipts by virtue of a valid pledge, he can not claim a lien on them, and can not hold them as against the general Creditors of Henry P. Stothfang.
    Having neglected to take a mortgage and have it filed for record within the prescribed time, the defendant in error, Henry Dieckmann, can not claim a lien, since those who seek a privilege under' the statute must fully comply with its provisions. Cross v. Carstens, 49 Ohio St., 548.
    Again the debt was not created simultaneously with the giving of the security.
    A third person who signs his name in blank on the back of a promissory note, before the same is delivered to the payee, becomes a surety of the maker for the payment of the note. Ewan v. Brooks-Waterfield Co., 55 Ohio St., 596, and a surety, though his liability is only contingent, is a creditor of his principal; Atkinson v. Tomlinson, 1 Ohio St., 237; Sargent v. Salmond, 27 Me., 539; Hatfield v. Merod, 82 Ill., 113; Rice v. Southgate, 16 Gray (Mass.), 152. And he becomes a creditor of his principal at the time the obligation is entered into. Thompson v. Thompson, 19 Me., 244; Woodbridge v. Gage, 68 Ill., 157.
    A surety taking security for his indemnity subsequent to his becoming bound as such, is not protected by the exception in the statute in favor of a creditor whose debt is created simultaneously with the execution of (the mortgage. McCann v. Hill, 85 Ky., 574.

      Messrs. Renner, Gordon & Renner, for defendant in error.
    First — Was there a valid pledge?
    The warehouse receipts having been pledged to the Atlas National Bank to secure the payment of its claim, and secondly, to Henry Dieckmann to secure the payment of his claim for the purpose of protecting Dieckmann, Dieckmann had constructive possession of the warehouse receipts, and the bank, having accepted the written notice of the pledging of said ware^ house receipts to said Dieckmann, acted simply as the agent of Dieckmann.
    Jones on Pledges, Sec. 34.
    Second — Do sections 6343 and 6344, Rev. Stat. apply?
    We contend that the relation of debtor and creditor between Stothfang and Dieckmann did not arise until Dieckmann, at Stothfang’s request, executed and delivered to Dibowski his note and mortgage in part payment of the note on which Dieckmann had been surety, and that the pledging of the warehouse receipts to Dieckmann was simultaneous with the arising of said relation of debtor and creditor, and that therefore said sections do not apply.
    A surety does not become a creditor of his principal until he pays the note endorsed by him. Lumber Co. v. Guy, 40 Conn., 163.
    The quotation in brief for plaintiff in error, cited from Brandt on Suretyship, Sec. 1, “The surety is an original promisor and debtor of the principal from the beginning,” should read, “He is an original promisor and debtor from the beginning,” leaving out the words “of his principal,” which are not in said section, can not be put there by implication, and their slipping into said citation in the brief of plaintiff in error can only be explained by^his counsel.
    The quotation defines the relation between the surety and creditor and has no reference to the relation between the surety and principal. '
    So a conveyance made by the principal to the surety in consideration of an agreement by the surety to pay the debt, is valid as against the creditors of the principal. Brandt on Suretyship, Sec. 247; Kendall v. Baltis, 26 Mo. App., 411.

      And in the case last cited it was held that such conveyance was good even though the principal may have intended to hinder and delay creditors, provided the surety did not participate in his principal’s intent.
    When does the liability of a surety arise?
    It is, in all cases, essential, before the surety can be called upon to fulfill his engagements, that the principal debtor shall have made default. Thus, if the alleged default were owing to the creditor’s misconduct, the surety will not be held liable. Again, if the principal debtor has not made default at all, the surety is not liable. DeColyar’s Law of Guarantees, and Principal and Surety (2 Eng. ed.), p. 146.
    It is admitted that the security was taken by Dieckmann in good faith, without knowledge of the insolvency of his principal at the same time that he took up the note upon which he was surety. There was no contemplation of insolvency, or design to prefer a creditor, with intent to hinder, delay or defraud creditors as contemplated by said sections.
    These two sections contained substantially the same provisions against sales and transfers by insolvent debtors as those contained in the sections as amended, and the courts have uniformly held that a creditor may secure himself when, in doing so, he deals with an eye single to his own interest. Pendery v. Allen, 50 Ohio St., 121; Cross v. Carstens, 49 Ohio St., 548; Stothfang, In re, 11 Circ. Dec., 103; 20 C. C. R., 275.
    The case of Jones v. Leeds, 10 Dec. 173; 7 N. P., 480, cited by counsel for plaintiff in error, sustains our contention, for in that case the court gave the grantee a lien on the property conveyed to her, for the amount paid by her on account of her grantor’s liabil-' ity, and held the conveyance fraudulent- only as to the amount in excess, the consideration for the conveyance being held inadequate.
   Price, J.

There are two questions presented in the record for our determination, which are:

1. The Atlas National Bank, having in its possession certain warehouse receipts for a stock of whiskey given it by H. F. Stothfang in pledge as collateral for a loan of money made to him by the bank, could the pledgor make another valid pledge or a transfer to Dieckmann of an interest in the same receipts, without any change of possession, as collateral security for a débt due him from the pledgor?

2. If the pledgor filed a deed of general assignment for the benefit of creditors within ninety days after the making of the second pledge or transfer, is such pledge or transfer void’ under the provisions of section 6343, Revised Statutes?

The facts agreed upon show that H. F. Stothfang, for several years prior to the transaction involved, had been indebted to one Dibowski in the sum of one thousand dollars and accruing interest, and that on the last note for this debt, Dieckmann had become liable as surety or endorser, and when it matured Stothfang neglected payment. To avoid threatened suit Dieckmann satisfied the note of Dibowski by giving his individual note secured by a mortgage on his real estate. At the same time Dieckmann took the note of H. F. Stothfang, which contains a provision, that after the debt which he owed the Atlas National Bank was paid out of certain warehouse receipts for whiskey, which it held in pledge as security for the debt, the balance of said receipts were to be held by said Dieckmann as collateral security to his note, and in this provision, power of public or private sale was conferred upon him. This instrument was executed and delivered on the 12th day of May, 1899, and on the 15th day of May, a copy of the above note and provision was served on the bank, with a notice that it should keep possession of the warehouse receipts pledged with it as collateral security for its claim against the pledgor (Stothfang), and that after it was fully paid, the balance of the warehouse receipts were to be turned over to Henry Dieckmann, who is one of the defendants in error. This notice and copy of the note given him were received, accepted and acted upon by the bank, and it was holding those receipts when Stothfang assigned on the 7th of August, 1899. It seems no question was raised by the assignee or any creditor as to the right or lien of the Atlas National Bank, but it is insisted that the attempted transfer or pledge to Dieckmann is invalid, because he never was in possession of the receipts, or the whiskey represented by them.

On this branch of the case ■ it may be remarked, that delivery of the property pledged is generally essential to a valid pledge, and it is equally true that to make a valid sale or transfer of any species or article of personal property, a delivery of the property sold or transferred is necessary, and to this extent the authorities cited by counsel for plaintiff in error may be approved. But it does not follow that actual or physical delivery should always accompany the sale or transfer, and this is also true as to the pledging of choses in action or other kinds of personal property. The delivery in some cases may be symbolical, such as the handing over the writing which constitutes the title to the property, just as was done in this case, to secure the Atlas National Bank for the money it had loaned to Stothfang. He delivered to the bank, not the one hundred and sixty-five barrels of whiskey, but the warehouse receipts for the same, which were its muniment of title and control of the property they represented. And when the pledgor desired to secure the payment of the note held against him by Dieckman, he executed and delivered to him the transfer of all interest in the receipts which would remain, after the bank’s claim should be satisfied. This transfer was not strictly a pledge, but an assignment and transfer of the stated interest in the warehouse receipts; but if it is desired that we call it a pledge, as has been done by counsel, we still observe, that constructive possession in the second pledgee would be sufficient, if the intent to deliver such possession is clearly apparent. It is the application of the familiar rule, that the transfer is complete and delivery made, when the owner has done all that he can do in the premises, and has given such possession to the pledgee or transferee as the nature of the property and its situation will permit. In this case Stothfang owned a valuable equity' in the warehouse receipts held by the bank, as their sale afterwards made manifest, and it was such interest in them that could be made the subject of sale and transfer, and even pledge, and certainly Stothfang gave to Dieckmann possession of all interest in and' title to the receipts which would remain after the debt due the bank was satisfied. This was all the delivery that could then be made, and it was at least a constructive delivery, and this we think meets the demands of the law. In section 297 of Story on Bailments, the author, on the subject of pledges, says:' “It is of the essence of the contract, that there should be an actual delivery of the thing to the pledgee. Until the delivery of the thing; the whole rests in an executory contract, however strong may be the engagement to deliver it, and the pledgee acquires no property in the thing. What will amount to a delivery of the thing is, in many cases, a matter of law. There need not be an actual manual delivery of the thing. It is sufficient if there are any of those acts or circumstances, which, in construction of laio, are deemed sufficient to pass the possession of the property. Thus, goods at sea may be passed in pledge by a transfer of the muniments of title; as by a transfer of the bill of lading, or by a written assignment thereof. So goods in a loarehouse may be transferred by a symbolical delivery of the keys thereof * *

In the case of Wilson v. Little, 2 Comst., 443, the court of appeals of New York held: “Possession of the property is essential to the existence of a pledge, but the possession may be according to the nature of the subject. Where the property is not capable of manual delivery and possession (shares of stock in an incorporated company), a pledge may be created by a written transfer thereof * *

And on page 447, that court says: “There seems to be no reason why any legal or equitable interest whatever in personal property may not be pledged, pro-Added the interest can be put, by actual delivery or written transfer, into the hands or within the power of the pledgee, so as to be made available to him for the satisfaction of the debt. Goods at sea may be passed in pledge by a transfer of the muniments of title, as by written assignment of the bill of lading. This is equivalent to actual possession, because it is a, delivery of the means of obtaining possession.”

The ease of Tuxworth v. Moore, 9 Pick., 347, is also in point. See also Whitaker v. Sumner, 20 Pick., 399. These are but a few of the* many decided cases to the same effect. Another view of the facts in this case may be justified. When the bank received the notice appearing in the record, it acted upon it, and in so doing became the agent of Dieckmann for the purposes specified, and its possession might be regarded as the possession of Dieckmann, and thus satisfy the legal requirement as to delivery.

Was the pledge or transfer void because of the provisions of section 6343, Revised Statutes, as amended in 1898? As a construction of that section is involved, it is well that it appear in this opinion. It reads:

“Every sale, conveyance, transfer, mortgage or assignment, whether made in trust or otherwise, by a debtor or debtors, and every judgment suffered by him or them, and act or device done or resorted to by him or them in contemplation of insolvency, or with a design to prefer one or more creditors to the exclusion in whole or in part of others, and every sale, conveyance, transfer, mortgage or assignment made or judgment suffered by a debtor or debtors, or procured by him or them to be made, in any mannerj with intent to hinder, delay or defraud creditors, shall be declared void as to creditors of such debtor or debtors, at the suit of any creditor or creditors, as hereinafter provided, and shall operate as an assignment and transfer of all the property and effects of such debtor or debtors, and shall inure to the equal benefit of all creditors of such debtor or debtors in proportion to the amount of their respective demands, including those which are unmatured.

“And every such sale, conveyance, transfer, mortgage or assignment made, and every such judgment suffered, and every such act or device done or resorted to, by any debtor or debtors, in tbe event of a deed of assignment being filed within ninety (90) days after the giving or doing of such thing- or- act, shall be conclusively deemed and held to be fraudulent and shall be held to be void as to the assignee of such debtor or debtors, where upon proof shown, such debtor or debtors was or were actually insolvent at the time of the giving or doing of such act or thing, Whether he or they had knowledge of such insolvency or not.

“Provided, that nothing in this section contained shall-vitiate or affect any mortgage made in good faith to secure any debt or liability created simultaneously with such mortgage, if the same be filed for record in the county wherein the property is situated, or as otherwise provided by law, within three (3) days after its execution, and where upon foreclosure or taking possession of such property the mortgagee fully accounts for the proceeds of such property.”

The pledge or transfer to Dieckmann was made on the 12th day of May, 1899, by H. F. Stothfang, and he filed a deed of assignment on the 7th of August oí the same year which was within ninety days after the making of the pledge or transfer. Notwithstanding this fact, and the language of section 6343, Revised Statutes, the transactions of the 12th of May are not necessarily void. There still may be valid sales, conveyances and transfers of property made, and which will not be affected although the seller or transferrer may file a deed of assignment within ninety- days thereafter. The clause of this section, and which is an important part of the amendment of the original section, provides that, “every such sale, conveyance, transfer * * * made by any debtor, or debtors, in the event of a deed of assignment being filed within ninety days after the giving or doing of such thing or. act, shall be conclusively deemed and held to be fraudulent, and shall be held to be void as to the assignee of such debtor or debtors, where upon proof shown, such debtor or debtors was or were actually insolvent at the time of the giving or doing of such act or thing, whether he or they (the debtor or debtors) had knowledge of such'insolvency or not.”

It will be seen that the word “such” among the first words of the addition to the. original section, fills an important and determinative office in the construction of what follows it. It relates back to the preceding paragraph of the section wherein is provided what sales, transfers * * * shall be declared void as to creditors of such debtor or debtors, at the suit of any creditor or creditors; and the sales and transfers * * * which may be so declared void at the suit of the creditors, are such as were made in contemplation of insolvency, or with a design to prefer one or more creditors to the exclusion in whole or in part of others; and every sale, conveyance, transfer * * * with intent to hinder, delay or- defraud creditors. “Such” sales, conveyances, transfers, etc., as are thus enumerated, shall be declared void at the suit of a creditor. And it is “such” sales, conveyances, transfers, etc., as above enumerated that shall be conclusively deemed fraudulent and void as to the assignee, if the assignment is made within ninety days after such sale, conveyance, transfer, etc. In order to warrant any other construction, we must eliminate and wholly disregard the word “such,” which seems to have been purposely used by the legislature and not through accident or mistake. That word brings the class of acts and things done as set out in the original, and which is yet the principal provision on the subject, down to the new declaration made by the amendment concerning them, and says: “every such sale, conveyance, transfer * * * in the event of a deed of assignment being filed within ninety days * * * shall be conclusively deemed and held to be fraudulent,” etc.

We have no right or authority to despise or disregard this significant word, but must construe the section with it performing its legitimate function; and if such construction tends to render the amendment of 1898, somewhat unproductive of intended or desired results, it is not the fault of the court, as it is not the law-making power.

Therefore, if the sale or conveyance or transfer was not in contemplation of insolvency; if it was not made Avith intent to hinder, delay or defraud creditors, or with a design to prefer one or more creditors to the exclusion in whole or in part of others, the transaction will stand in a suit brought by a creditor; and such sale, conveyance or transfer will also stand, although made within ninety days next preceding the filing of a deed of assignment, by the maker of the sale, conveyance or transfer. This conclusion rests upon the ground that the transactions were in good faith, and without the dishonest or fraudulent motive and intent which are the basis of an action to avoid them. The legislature in this part of the law regulating the acts of insolvent debtors and providing a mode of administering their estates, did not intend by the amendment to the section under consideration, to enact a system of bankruptcy, but rather attempted to provide a rule of proof in such cases, as is shown by the entire amendment, because the sales, conveyances and transfers that are “conclusively deemed and held to be fraudulent,” where an assignment follows within ninety days thereafter, are only such sales, conveyances and transfers, etc:, as are condemned in the main provision of the section, but proof must appear to show that “the debtor or debtors was or were actually insolvent at the time of the act done,” whether he or they (the debtor or debtors) had knowledge of such insolvency or not.

It seems clear, therefore, that the transfer or pledge by Stothfang to Dieckmann is not void because it was made within ninety days preceding Stothfang’s assignment, but that proof was necessary to show that such transfer was made in contemplation of insolvency; or with a design to prefer one or more creditors to the exclusion in whole or in part of others; or with intent to hinder, delay or defraud creditors, inasmuch as it is such sales, conveyances, transfers, * * * that fall within the ninety day clause.

The record in this case shows none of the foregoing facts requisite to avoid the pledge or transfer. It is true Stothfang was insolvent when he made the pledge to Dieckmann, but of this, the latter had no knowledge. There is no finding or fact in the record which brings the case within the section as we construe it, and as no fraud, or intent to prefer, hinder or delay, is shown, we will not presume either.

On both questions we approve of the judgment of the circuit court and it is affirmed.

Affirmed.

Williams, C. J., Btjrket, Spear, Davis and Shauck, JJ., concur.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    The Baltimore & Ohio Southwestern Ry. Co. v. Cox, Administratrix.

      Action for injury by negligence — Absence of willfulness — Defendant not bound, to exercise care toward injured, when — Conductor permitting person to ride on freight train — Does not bind company, when.

    1. An action to recover for an injury occasioned by negligence, the element of willfulness being absent, will not lie unless there exists between the defendant and the person injured a relation out of which there arises a duty of the former to exercise care toward the latter.
    2. A conductor in charge of a train designed exclusively for the carriage of freight, and operating under rules which forbid the carriage of passengers thereon, cannot, by consenting that a person may ride on such train, impose upon the company the duty of exercising toward him the care which it owes to a passenger.
    (Decided May 13, 1902.)
    Error to the Circuit Court of Ross county.
    Mrs. Cox, as administratrix, brought suit in the court of common pleas to recover from the railway company damages for the death of her intestate which was alleged, to have been caused by the negligence of the company. In her petition she alleged that on January 4, 1896, her intestate was employed by the company as a locomotive fireman and .was riding by its order on one of its freight trains from Mineral City, where he had been employed prior to that time, to Chillicothe; that the train, having reached Schooley’s Station, stopped on the siding to permit the passage in the opposite direction of a passenger train, when he left the caboose in which he had been riding and went forward to the engine to talk to the engineer about the employment of the decedent and, at the request of the engineer, climbed- upon the engine; that while he was so upon the engine engaged in conversation with the engineer, the said passenger train approaching at a high rate of speed was, by the negligence of the company, run upon said siding, colliding with said engine and causing the instant death of said John H. Cox. The petition also set out the names of the next of kin of said Cox for whose benefit the recovery was sought.
    In its answer the company admitted ■ that the deceased was killed while upon its locomotive which was standing upon a side-track at Schooley’s, by a collision with a passenger train which was run upon the siding in consequence of the fact that one of its employes, a brakeman who was acting as a switchman, had failed to disconnect the side-track on which said freight train stood from the main track on which said passenger train was approaching, of which neglect the company had no knowledge. It denied all other allegations of the petition and alleged that decedent was upon said freight train and the locomotive connected therewith without the knowledge or permission of the company and was not there upon any business of or connected with it and was wholly without right to be there.
    Upon the trial the plaintiff while introducing a mass of evidence having no relation to any issue in the case also introduced evidence tending to establish the following facts: The accident was due to the negligence of a brákeman who opened the switch to permit an engine to pass from the siding on to the main track, and did not close it. The decedent had been occasionally employed by the company as a fireman for several years, but had not been in its service after the 27th day of the month preceding the accident. In the meantime he had been visiting friends at Mineral City and on the day of the accident he boarded the freight train, whose conductor was his friend, his purpose being to ride to Chillicothe to look for further employment with the company; and that was the purpose of his interview with the engineer. He had no pass; did not pay fare and did not intend to. The rules of the company were introduced showing that freight trains, unless running as accommodation trains, were not permitted to carry passengers except upon special order. This train was not running as an accommodation train and there was no special order. Another, rule forbade engineers to permit any but employes to ride on their locomotives. The train on which the decedent was riding was composed wholly of freight cars with a caboose attached.
    At the conclusion of the plaintiff’s evidence the trial judge directed a verdict for the company. In the circuit court a judgment which had been rendered in the common pleas upon the verdict so directed was reversed and the cause was remanded to the court of common pleas for a neAV trial.

      Mr. Robert E. Samill; Mr. Edward Barton and Mr. Willis H. Wiggins, for plaintiff in error.
    Under the circumstances, what duty at that time did the railway company owe to John H. Cox at that place on the locomotive engine of a freight train? Railway Co. v. Bingham, 29 Ohio St., 369; Elster v. Springfield, 49 Ohio St., 82; Letts v. Kessler, 54 Ohio St., 73, 85; Sweeny v. Railroad Co., 10 Allen, 368.

      Carelton v. Iron & Steel Co., 99 Mass., 216. Here permission is neither inducement, allurement nor enticement.

      In accepting the benefits of a license one assumes all the risks of danger incident thereto except those caused by the willful negligence of affirmative acts of the licensor. The owner of land and buildings assumes no duty to one who is on his premises by permission only as a mere licensee except that he will refrain from wailful or affirmative acts. Gibson v. Leonard, 143 Ill., 182; 32 N. E. Rep., 182; Larmore v. Iron Co., 101 N. Y., 390.
    Willfulness or wailful negligence, as it is sometimes called, must be pleaded in a petition and proved in order for a plaintiff to recover for it. There can be no recovery for wailful negligence under a mere averment of negligence. Shearman & Redfield on Negligence (5 ed.), Sections 5, 7, 8, 19; Beach on Contributory Neg. (2 ed.), Sections 62-64 inclusive, and notes; 14 Enc. of Pl. & Pr., 338 and notes, also p. 345 and note 1; Railway Co. v. Kingsley, 177 Ill., 558; 52 N. E. Rep., 931; Railway Co. v. Eaton, 53 Ind., 307; O’Brien v. Loomis, 43 Mo. App., 29; Driscoll v. Railway Co., 1 Circ. Dec., 274; 1 C. C. R., 493; Kerwhaker v. Railway Co., 3 Ohio St., 172; Darling v. Williams, 35 Ohio St., 58; Barholt v. Wright, 45 Ohio St., 177; Krause v. Morgan, 53 Ohio St., 26, 36; Telegraph Co. v. Griswold, 37 Ohio St., 301; Meek v. Pennsylvania Co., 38 Ohio St., 632.
    The undisputed evidence showed that deceased had no right on the train or engine, but w7as a mere trespasser, contrary to the rules of the railway company, of which he had full knowdedge. He w7as not an employe nor connected with the service of the railway company at that time. Railway Co. v. O’Brien, 2 Circ. Dec., 681; 4 C. C. R., 515; affirmed by Supreme Court, 25 Bull., 88; Railway Co. v. Morley, 2 Circ. Dec., 706; 4 C. C. R., 559; Railway Co. v. Wetmore, 19 Ohio St., 110; Files v. Railway Co., 149 Mass., 204; 21 N. E. Rep., 311; Railroad Co. v. Roach, 83 Va., 375; 5 S. E. Rep., 175; Driscoll v. Railway Co.. 1 Circ. Dec., 274; 1 C. C. R., 493; Railway Co. v. Norway, 4 Circ. Dec., 674; 7 C. C. R., 449; Railway Co v. Depew, 40 Ohio St., 121; Railway Co. v. Graham, 95 Ind., 286; Morrissey v. Railway Co., 126 Mass., 380.
    A railroad company may, as to persons to whom it owes no common law duty of safe transportation, contract against liability to such persons for injuries, resulting from its own negligence. Payne v. Railway Co., 62 N. E. Rep., 472; Russell v. Railway Co., 61 N. E. Rep., 678; Railway Co. v. Voight, 13 O. F. D., 145; 176 U. S., 498.
    Railroad companies as common carriers of passengers are charged with a high degree of care, and may, therefore, in the interest of passengers as well as themselves and the public, make reasonable rules for the protection of passengers, and a party who willfully violates a known rule intended for his safety, and is injured in consequence of such violation can not recover. The rule is the same as to employes. Railway Co. v. Langdon, 92 Pa. St., 21; Downey v. Railway Co., 28 W. Va., 732; Woods v. Jones, 34 La. An., 1086; Railway Co. v. Lindley, 42 Kan., 714; Warden v. Railway Co., 94 Ala., 277; Aufdenberg v. Railway Co., 132 Mo., 565; Railway Co. v. Clemmons, 55 Tex., 88; Posey v. Railway Co., 102 Fed. Rep., 236 (42 C. C. A., 293) ; Lemasters v. Railway Co., 131 Cal., 105 Railway Co. v. Boyd, 6 Tex. Civ. App., 205.
    Freight trains are not usually intended for the carriage o*f passengers, and one who gets upon such a train to be carried, without paying fare, is prima facie not a passenger, although he rides with the consent of the conductor, and if he is injured by reason of the negligence of the railroad company, it is not liable. Railway Co. v. Black, 87 Tex., 160; Railway Co. v. White, 34 S. W. Rep., 1042 (not officially reported); Railway Co. v. Hanna, 58 S. W. Rep., 548; McVeety v. Railway Co., 45 Minn., 268; Alward v. Oakes (1895), 63 Minn., 190; Railway Co. v. Hailey, 94 Tenn., 383; Railroad Co. v. Bogle, 101 Tenn., 40; Flower v. Railway Co., 69 Pa. St., 210; Eaton v. Railway Co., 57 N. Y., 382; Powers v. Railway Co., 153 Mass., 188; Files v. Railway Co., 149 Mass., 204; Powell v. Railway Co., 8 So. Rep., 738 (not officially reported) ; Smith v. Railway Co., 124 Ind., 394; Railway Co. v. Barnes, 137 Ind., 306; Menaugh v. Railway Co., 157 Ind.,-; s. c., 60 N. E. Rep., 694; Railway Co. v. Griffith, 63 Ark., 491: McCauley v. Railway Co., 93 Ala., 356; Cooper v. Railway Co., 136 Ind., 366; Springer v. Byram, 137 Ind., 15; Stalcup v. Railway Co., 16 Ind. App., 584; Railway Co. v. Roach, 83 Va., 375; Morris v. Brown, 111 N. Y., 318; Railway Co. v. Best, 169 Ill., 301; Purple v. Railway Co., 114 Fed. Rep., 123.
    Even if the deceased may have had the right to ride in the caboose, he was not there when he was hurt; he had no business on the engine. Eaton v. Railway Co., 57 N. Y., 382; Coyle v. Railway Co., 155 Ind., 429.
    If deceased was an employe the fellow-servant rule applies. If not an employe there is a fatal variance.
    Recent decisions have made it clear that a railroad company may relieve itself from liability for negligence as to parties riding upon its trains, but whom it is not obliged to carry. One who is riding upon a free pass given him as a mere gratuity, and which contains a provision exempting the company from negligence, can not recover, even although he establishes negligence. Payne v. Railway Co., 62 N. E. Rep., 472.

      So, since a railway company is under no legal duty to carry employes of sleeping-car companies, it is held that a contract specifically releasing it from all liability for negligence towards such an employe riding in a sleeping-car attached to one of the railway company’s trains, is valid. Russell v. Railway Co., 61 N. E. Rep., 678.
    So, a railroad company may by contract relieve itself from liability for injuries to an express messenger upon its train which result from its negligence, the reason being that it is under no obligation to carry express messengers. Powers v. Railway Co., 153 Mass., 188; Wilton v. Railroad Co., 107 Mass., 108; Healey v. Railway Co., 28 Ohio St., 23.
    It may be questioned whether the conductor had any more right to invest him with the rights of a licensee than with those of a passenger. At all events, if the plaintiff was on the defendant’s train simply - by the license of the conductor, he was there under such circumstances that the defendant was not responsible to him for any injury which occurred to him in consequence of the collision. Flower v. Railroad Co., 69 Pa. St., 210; Morris v. Brown, 111 N. Y., 318; Powell v. Railway Co., 8 So. Rep., 738; Alward v. Oakes, 63 Minn., 190; Railroad Co. v. Bogle, 101 Tenn., 407; Posey v. Railway Co., 102 Fed. Rep., 236; Lemasters v. Railway Co., 131 Cal., 105.
    It is said in the brief of counsel that Cox was not “riding” on the engine, but only sitting there. That we submit is nothing but a quibble to which there is a corresponding. Railway Co. v. Jones, 95 U. S., 439; Railway Co. v. Lane, 83 Ill., 48; Hickey v. Railway Co., 14 Allen, 429; Railway Co. v. Lindley, 42 Kan., 714.

      This is not a case of an employe. Cox had not been in the employ of the company since December 27th. He was not directed to go to Chillicothe. It was not in the line of his duty to do so, and if it had been, he had no business on a freight train. Wolsey v. Railroad Co., 33 Ohio St., 227; Railway Co. v. Litz, 7 Circ. Dec., 282; 18 C. C. R., 653; Railway Co. v. Ward, 61 Fed. Rep., 927; Railway Co. v. Barry, 84 Fed. Rep., 944; Railway Co. v. Boyd, 6 Tex. Civ. App., 205.
    But apart from the statute, the engineer of one train and the conductor of another are fellow-servants. Railway Co. v. Devinney, 17 Ohio St., 197.
    This being the rule it was incumbent upon the plaintiff to bring her case within one of the exceptions made by the statute [Act of April 2, 1890; 87 Ohio Laws, 149). This she wholly failed to do, because (a) Hendershot, the conductor at fault, would not have been Cox’s conductor. Had he gotten Fitzsimmons’ run he would have had Fitzsimmons’ conductor, who was Dixon, (b) The burden rested upon plaintiff to show that deceased would have been one of those who, in the words of the statute, “have no power to direct or control in the branch or department in which they are employed.” (87 Ohio Laws, 150, Sec. 3.) There was no evidence to that effect. (c) In the absence of evidence upon the subject, the presumption is that an engineer has power to direct and control his fireman. Railroad Co. v. Margrat, 51 Ohio St., 130; Railway Co. v. Baugh, 7 O. F. D., 606; 149 U. S., 368.

      Mr. John C. Entrekin and Mr. John T. Phillips, for defendant in error.
    The railroad company admitted in open court that Hendershot, the conductor of the wild train, had no business to leave the switch open; this was an admission of negligence on the part of the company because Hendershot was an employe of the company; he had charge of the train, and the evidence showed that he had charge of both the engineer and fireman on that train; therefore, even if the question of fellow servants was in the case, which it is not, his negligence would have bound the company because he was a superior 19 Cox, who was only fireman when employed by the company. The question, however, of fellow servant does not arise, for the reason that Cox at the time was not in the actual employ of the company and therefore had all the rights of third persons against the company to be protected from the active negligence of the company or its agents and employes. He was entitled to be thus protected, Avhether he was a trespasser, or whether he was a passenger upon that train, or whether he was a mere licensee. He was on this train by the consent of the conductor in charge of it from Zaleski to the place where the accident occurred. The fact that he was a gratuitous passenger makes no difference. He then went at the suggestion of the conductor forward to see the engineer, while the train was not in motion, and went up into the engine for the purpose of talking to the engineer about a matter of business in which he, Cox, was interested and in which the engineer was interested, and in which the company was interested. He was not riding on the engine in violation of any rule of the company; the company had undertaken through its agent, the conductor, to carry him on this train, and he had no right to injure him actively by its negligence, and even though he had no right to ride on the train from Zaleski to Schooley’s, where the train stopped, and even though he was a trespasser in so doing, yet Avhen he left the caboose and went forward, and with the consent of the engineer, got upon the engine and talked to the engineer, who had a right there under the rules of the company upon a business matter in which both of them were interested; he ceased to be a trespasser and the company would have been liable not only for the act of negligence of one of its agents in opening the switch and in going away without closing it such as this was, but would have been liable beyond that for even its careless omission to keep its tracks in repair or any other mere omission by its negligence.
    Upon the question that Cox was not a trespasser in going upon the engine to talk upon this business see Railway Co. v. O’Brien, 2 Circ. Dec., 681; 4 C. C. R., 515.
    Upon the question of his having a right on the train by the consent of the conductor and engineer. 19 Am. & Eng. Ency. Law (1 ed.), 934; Rosenbaum v. Railway Co., 38 Minn., 173; Gradin v. Railway Co., 30 Minn., 217.
    Upon the question of his having a right to go and talk to the engineer on business. Railway Co. v. Bingham, 29 Ohio St., 373.
    Upon the question of whether if Cox had a right by the consent of the conductor to ride upon the train he, lost it by going from the caboose to the engine. Healey v. Railroad Co., 28 Ohio St., 23; Wilton v. Railroad Co., 107 Mass., 108; Vail v. Railway Co., 7 Circ. Dec., 28; 13 C. C. R., 494; Schwartz v. Street Ry. Co., 4 Circ. Dec., 272 ; 8 C. C. R., 484.
    Upon the question of whether the act of Hendershot binds the company. Ramsdale v. Railway Co., 104 Mass., 117.

      But even if Cox was a trespasser pure and simple in going upon the engine, this does not relieve the company from liability from its active negligence in killing him. It was in the possession and control of powerful and dangerous agencies and it was required to so use them so as not to injure Cox, even if he was trespasser. Wood Master & Servant, p. 777; Kerwhaker v. Railway Co., 3 Ohio St., 172, 195; Railway Co. v. Stallmann, 22 Ohio St., 1; Railway Co. v. Kassen, 49 Ohio St., 230; Railway Co. v. Kelly, 5 Circ. Dec., 662; Railway Co. v. Schade, 8 Circ. Dec., 316; 15 C. C. R., 424; Larmore v. Iron Co., 101 N. Y., 390.
    There is no question of contributory negligence in the case. It might be said that if Cox had been in the caboose and not on the engine he would not have been killed, but his being upon the engine was not the proximate cause of his death and his being there did not contribute to his death in the legal sense. It was the negligence of the company that proximately caused his death and this was what caused the collision. The collision would have occurred whether Cox was on the engine or not, so that his being on the engine did not in any way contribute toward causing the collision which resulted in his death, and whether he had any business on the engine or not, makes no difference so far as this question is concerned, so there is no question of contributory negligence on his part.
    The plaintiff below claimed that it was a case of gross negligence, amounting in effect to recklessness, and that in such case it made no difference whether the decedent was a trespasser or not and that this was a question for the jury on the evidence.
    So that the case could not rightfully be withdrawn from the jury whether the decedent was a trespasser or mere licensee, and the circuit court had a right to reverse the judgment below.
    Upon the question of whether a recovery can be had upon the pleadings as they are. 14 Am. and Eng. Ency. Pl. & Pr., 338; Nolton v. Railway Co., 15 N. Y., 444.
    The common pleas court failed to recognize the difference between acts of negligence of commission a,nd those of mere omission. It also failed to recognize the fact that Cox had business on the engine even though he might have been a trespasser while he was riding in the caboose, and the engineer having a right on the engine and it being contrary to the rules of the company for him to leave the engine, this gave a right to any one having business with him to go upon the engine without being a trespasser; and even if the collision had been caused by an act of omission on the part of the company, Cox would have been protected under the doctrine laid down in Railway Co. v. Bingham, 29 Ohio St., 364.
    The facts in the case show that there was no mere negligence on the part of the company, that it was a case of gross negligence in leaving the switch open with a train running forty-five miles an hour within six or eight minutes at the very furthest away, and with no reasonable hope that any one would discover the switch open in time to prevent a collision. 5 Am. Neg. Rep., 139; Railway Co. v. Kelly, 5 Circ. Dec., 662; 12 C. C. R., 341; Such v. Railway Co., 2 Re., 352; 2 W. L. M., 486; Railway Co. v. Margrat, 51 Ohio St., 130; Railroad Co. v. Karsten, 49 Ohio St., 230; Railroad Co. v. Schade, 57 Ohio St., 650; Railroad Co. v. Allen, 64 Ohio St., 183.
   Shauck, J.

It is elementary that actionable negligence exists only when one negligently injures another to whom he owes the duty,, created by con-' tract or operation of law, of exercising care. Burdick v. Cheadle, 26 Ohio St., 393; Railway Company v. Bingham, 29 Ohio St., 364; Elster v. Springfield, 49 Ohio St., 82. There being in the present case neither' allegation nor evidence that the fatal injuries were inflicted willfully or intentionally, there can be no recovery unless there existed between the decedent and the company a relation which imposed upon it the duty of exercising care toward him. Although it was alleged in the petition that he was at the time of the accident in the service of the company and traveling on a freight train in obedience to its orders, the allegation was denied in the answer and refuted by the testimony of the plaintiff herself.

The view of counsel for the defendant in error appears to be that the duty of the company to exercise care toward the decedent arose out of the fact that he was riding on the freight train with the express or implied assent of the conductor; and this view is said to have been taken in the circuit court. It invokes the doctrine of the law of agency; and, since the company did not authorize the transportation of passengers on its freight trains, it relies upon the implied or apparent authority of the conductor to bind the company to a relation which its rules forbade. It assumes that the company had given to the conductor an apparent authority which its operating rules had expressly denied him. But the apparent authority of the conductor was to represent the company in the conduct of that portion of its business to which the train in his charge was appropriate. It did not, therefore, exceed his actual authority. The differences between trains intended exclusively for the carriage of freight and those intended for the carriage of passengers are so obvious and familiar as to forbid tbe view suggested. The cases in which a recovery has been denied upon such facts as are here presented áre so numerous that it is not practicable to cite them fully. Among them are Eaton v. Railroad Co., 57 N. Y., 382; McVeety v. Railroad Co. 45 Minn., 268; Railroad Co. v. Roach, 83 Va., 375; Files v. Railroad Co., 21 N. E. Rep., 311; Smith v. Railroad Co., 124 Ind., 394; Railroad Co. v. White, 34 S. W. Rep., 1042; Railroad Co., v. Hailey, 94 Tenn., 383; Railway Co. v. Black, 87 Tex., 160.

The adjectives used to characterize the negligence of the brakeman in leaving the switch open should not be permitted to excuse the obvious failure of the plaintiff below to place her intestate in the position of one to whom the company owed care. In directing a verdict for the defendant the trial judge correctly applied to the evidence the pertinent principles of the law as they are illustrated in the decided cases.

Judgment of the ■ circuit court reversed and that of the common fleas affirmed.

Burket, Davis and Price, JJ., concur.