49 N.Y. 303, McCormick v. Pennsylvania Cent. R. Co.

Citation:49 N.Y. 303
Case Date:April 30, 1872
Court:New York Court of Appeals

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49 N.Y. 303




New York Court of Appeal

April 30, 1872

Argued Apr. 12, 1872.

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[Copyrighted Material Omitted]

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Charles M. Da Costa and Ira Shafer for the appellant. Residence when once established is presumed to continue until a change is proven. (2 Kent's Commentaries, 431 marginal, and cases cited in the notes; Crawford v. Wilson, 4 Barb., 504;

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Jennison v. Hapgood, 10 Pick., 77.)The question of jurisdiction was not waived by defendant appearing and answering. (Cumberland Coal Co. v. Sherman, 8 Abbott's Pr. R., 243; Harriott v. N. J. R. R. and Trans portation Co., 2 Hilt., 262; Jones v. Norwich and N.Y. Trans. Co., 50 Barb., 193.) The defendant being a common carrier, an appropriation of the goods to its own use must be shown to sustain action. (Whitney v. Wilson, 30 Barb., 276; Tolano v. National Steam Nav. Co., 5 Robertson, 318; Devereaux v. Barclay, 2 Barn. & Ald., 702; Stevenson v. Hart, 4 Bing., 476; Nelson v. Whitmore, 1 Richardson [S. C.], 323.) The demand and refusal were not conclusive proof of conversion, but only evidence tending to show the conversion. (Rook v. Midland R. R. Co., 14 Eng. Law and Eq., 178; Wild v. Walters, 32 Id., 422; Kelsey v. Griswold, 6 Barb., 443; Andrews v. Shattuck, 32 Id., 397; Dunlap v. Hunting, 2 Den., 643; Johnson v. Couillard, 4 Allen, 446; Robinson v. Burleigh, 5 N. H., 225, 228; Ludley v. Downing, 2 Carter [Ind.], 419; Nelson v. Whitmore, supra.) Where a qualification is attached to a refusal, the question is whether such qualification be a reasonable one or not. (Ganton v. Nurse, 2 Brod. & Bing., 447; Fouldes v. Willoughby, 8 Mes. & W., 540; Hayward v. Seaward, 1 Moore & Scott, 459; Wilde v. Waters, 32 Eng. Law and Eq., 422; Deert v. Childs, 5 Stew. & Port. [ Ala.], 383; St. John v. O'Connell, 7 Port., 466; Mount v. Derrick, 5 Hill, 456; Thompson v. Sixpenny Savings Bank, 5 Bosw., 311; McEntee v. N. J. Steamboat Co., 45 N.Y. 34.) Whether the refusal under the circumstances constituted conversion or not, was a question of fact for the jury. (Lockwood v. Bull, 1 Cow., 330, 333; Jessup v. Miller, 1 Keyes, 329; Thompson v. Sixpenny Savings Bank, 5 Bosw., 311, and cases there referred to; Watt v. Potter, 2 Mason, 80.) Conversion is waived by any subsequent acts inconsistent with it or ratifying the wrongful act. (Wells v. Kelsey, 15 Abb., 53; Ball v. Liney, 44 Barb., 504, 514, 515; Brewer v. Gregory, 2 Barn. & Cress., 310; Lythgoe v. Vernon, 5 Hurl. & N., 179; Rotch v. Howes, 12 Pick., 139;

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Hewes v. Parkman, 20 Pick., 90; Firemen's Ins. Co. v. Cochran, 27 Ala., 228; Bell v. Cummings, 3 Sneed. [[Tenn.], 286.) Whether the facts constitute a waiver, is a question for the jury. (Lucas v. Trumbull, 15 Gray, 309.) Defendant had a right to make reasonable rules in reference to transportation. (Hibbard v. N.Y. and Erie Railway Co., 15 N.Y. 455; Commonwealth v. Powers, 7 Metc., 596.) If the conduct of defendant's agent was not justified by the rules, defendant is not liable. (Hibbard v. N.Y. and Erie R. R. Co., 15 N.Y. 455, 461-467-469.) A common carrier is not responsible beyond the limits of his own line, except by special contract. (Van Santvoord v. St. Johns, 6 Hill, 157; McDonald v. Western R. R. Co., 34 N.Y. 497; Root v. Great Western R. R. Co., 45 N.Y. 524, 529, 530; Maghee v. Camden and Amboy R. R. Co., 45 N.Y. 514, 518; Northern R. R. Co. v. Fitchburg R. R. Co., 6 Allen, 254; Notting v. Conn. R. R. Co., 1 Gray, 502; Pendergrast v. Adams Express Co., 101 Mass., 120; Elmore v. Naugatuck R. R. Co., 23 Conn., 473; Naugatuck R. R. Co. v. Waterbury Button Co., 24 Id., 468; Jenneson v. Camden and Amboy R. R. and Trans. Co., 4 Law Reg., 234; Rome R. R. Co. v. Sullivan, 25 Ga., 228; Withers v. Macon and Western R. R. Co., 35 Id., 273; Fowles v. Great Western R. R. Co., 16 Eng. Law and Eq., 531.) The contract must be governed by the law of Pennsylvania. (Schwartzenburger v. Penn. R. R. Co., 45 Penn., 208.) On the arrival of the trunks at Chicago, defendant became mere warehousemen, and were not liable for the destruction of the trunks by fire. (Fisk v. Newton, 1 Den., 45; Rowland v. Milne, 2 Hilt., 150; Goold v. Chapin, 20 N.Y. 259; Roth v. Buffalo and State Line R. R. Co., 34 N.Y. 548; Thomas v. Boston and Providence R. R. Co., 10 Met., 472; Norway Plains Co. v. Boston and Maine R. R. Co., 1 Gray, 263; Cincinnati and Chicago R. R. Co. v. McCool, 26 Ind., 140.) The allowance of interest was a matter of discretion with the jury. (Black v. C. and A. R. R. Co., 45 Barb., 40; Walrath v. Redfield, 18 N.Y. 547; Matthews v. Menadger, 2 McLean, 145; Lincoln v. Claflin, 7 Wal., 132.)

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What is reasonable baggage, is a question of fact for the jury. (Rawson v. Penn. R. R. Co., 2 Abb. [ N. S.], 220; Merrill v. Grinnell, 30 N.Y. 594.) The declarations of Richardson were no part of the res gestae, and were inadmissible. (Greenleaf on Evi., § 113; Story on Agency,§ 134; Penn. R. R. Co. v. Buck, 57 Penn., 339; Pratt v. Ogdensburgh and Lake Champlain R. R. Co., 102 Mass., 557.) The wife alone could sue for her separate property. (Rawson v. Penn. R. R. Co., 2 Abb. [ N. S.], 221.) The exceptive words "from any person other than her husband" apply only in cases where the rights of creditors were involved. (Lockwood v. Cullen, 4 Robertson, 133; Wilbur v. Friedenburg, 52 Barb., 478; Jaycox v. Caldwell, 37 How. Pr. R., 247; Kelly v. Campbell, 38 N.Y. 29.) The rule is the same under the laws of Illinois. (Manny v. Recksford, 44 Ill., 129; Sweeny v. Danrom, 47 Id., 450, 455.)

E. M. Stoughton and Samuel Hand for the respondent.


1st. Had the court below jurisdiction of the action and of the parties, so that it could render the judgment appealed from?

We will assume that the plaintiff was at no time a resident of this State, and that the learned justice at circuit erred in ruling, that as a fact established he was a resident. We do not however determine those questions, as we can otherwise dispose of the defendant's objection of want of jurisdiction.

The cause of action was of that nature, that although it arose in another State, the court below had jurisdiction of the subject-matter of the action. In this respect the case differs from Harriott v. New Jer. Trans. & R. R. Co., 2 Hilton, 262, cited to us by the defendant. There the Court of Common Pleas of the city and county of New York had no jurisdiction of the subject-matter, being confined by the Code, § 33, in such case, to a cause of action arising in this State.

The defendant in the case at bar employed attorneys who, as officers of the court, served notice of the defendant's appearance,

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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 or 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 competent 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.)

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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...

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