Kirby v. Union P. Ry. Co.

Decision Date04 December 1911
Citation51 Colo. 509,119 P. 1042
PartiesKIRBY et al. v. UNION PAC. RY. CO.
CourtColorado Supreme Court

Error to District Court, Pueblo County; N. Walter Dixon, Judge.

Action by the Union Pacific Railway Company against William F. Kirby and others. There was a judgment for plaintiff, and defendants bring error. Affirmed.

O. N. Hilton and Ralph Talbot, for plaintiffs in error.

Dorsey & Hodges (John L. Baldwin, of counsel), for defendant in error.


This is one of eight cases, by as many railroad companies, operating in the state of Colorado, for injunctive relief, against some sixty-five defendants, railroad ticket brokers or scalpers located at Denver, Pueblo, Colorado Springs, Trinidad and other Colorado cities, to prevent the alleged fraudulent and wrongful interference by the defendants with the lawful business of the plaintiff, in the issuance and sale of nontransferable signature tickets. The complaint charges in substance that the defendants are engaged in negotiating the sale of nontransferable tickets, or the return portions thereof, and in aiding and procuring other than the original purchasers to secure, or attempt to secure, passage upon the various trains of the plaintiff on such nontransferable signature tickets, contrary to the express terms thereof that the defendants have organized into associations for the purpose of carrying on such wrongful and fraudulent business and that as a result the plaintiff is suffering great pecuniary loss, and is about to suffer still greater damage, unless such conduct be prevented; and that plaintiff has no adequate remedy at law, because of the difficulty of detecting such frauds, because of the multiplicity of suits that would be required, because of the insolvency of practically all of the various defendants, and for other reasons specifically set forth in the complaint. It is definitely alleged that the defendants have engaged, are now engaging and will continue to engage in dealing in this character of tickets. These allegations are not only not denied, but it is expressly averred by the defendants that they are now engaged in such practices and intend to continue the same in the future. At folio 158 of the answer it is expressly averred: 'And these defendants admit that they have sold, and are engaged in the business of selling, and purpose to and will continue in the business of selling and regularly dealing in, said nontransferable tickets, issued for transportation over plaintiff's railway.' The defendants further, by answer, deny that they are engaged in an unlawful business, and aver that they have been dealing for years in the character and kind of tickets mentioned in the complaint without hindrance on the part of the railroad company, and allege connivance by it in their conduct in this behalf and laches and acquiescence. They deny any fraud, and allege that the railroad company has no legal right to embody stipulations of nontransferability in its tickets, and that such limitations are of no legal force and are not binding.

Not only is the principal fact admitted, but the various fraudulent devices adopted by the defendants, including forgery of tickets, the raising of the limit of tickets, the forging of the name of the original purchaser by the broker, or by some other person through his procurement, the methods adopted for deceiving the conductors on the trains of plaintiff, and the instructions given to the purchasers of such tickets, in order that they may successfully impersonate the original purchasers, are all testified to by witnesses for the plaintiff, and no evidence is offered to refute this showing. The evidence establishes conclusively that these practices have resulted, and will result, in enormous financial losses to the plaintiff, and will render it practically impossible for railroad companies to continue to grant special rates for special occasions, and there is no evidence by defendants to the contrary. The evidence of persistent and continued interference by the brokers, in manner and form as alleged, with the business of plaintiff, in the issuance and sale of nontransferable tickets, causing and threatening to cause great financial loss, is overwhelming and convincing.

A temporary writ of injunction issued, enjoining the defendants from buying, selling, dealing in or soliciting the purchase or sale of tickets, or of the return or unused portions thereof, issued by plaintiff over its lines, which are by their terms nontransferable, and from soliciting, advising, encouraging, procuring, or attempting to procure, any person or persons other than the original purchasers to use such tickets. On final hearing the temporary writ was made permanent. Defendants bring the case here for review on error.

The grounds upon which the defendants rely for a reversal of the judgment and decree complained of are:

1. That the complaint states no cause of action cognizable by a court of equity, because, it is claimed, the railroad company could not lawfully impose the limitations contained in nontransferable tickets; that no actual damage has been shown; and that the defendants are guilty of no legal wrong;

2. That the plaintiff companies have, if entitled to any relief, a plain, speedy and adequate remedy at law;

3. That the court had no power or authority, by temporary or permanent injunction, to assume to govern and control the future acts of defendants in the purchase and sale of so-called nontransferable tickets, or unused portions thereof;

4. That plaintiffs are estopped to maintain the action, because of laches, connivance and acquiescence in like conduct by the defendants covering a time prior to the application for the injunction;

5. That the defendant company is precluded from maintaining this action at all, because of its failure to pay the annual state license tax provided by statute;

6. That the court erred in refusing to discharge the temporary restraining order, issued without notice, and dismiss the action, upon the ground that it is not shown that any emergency existed for its issuance; and,

7. That it was error in the court to overrule the separate motions of two of the defendants for a change of venue.

Every fundamental and vital contention of the defendants has been adjudged against them by an overwhelming weight of authority. The following legal propositions are definitely settled and fixed in cases resting upon similar facts to those shown in the present record:

1. That a clear case of equitable jurisdiction, on the grounds of irreparable injury, inadequacy of a legal remedy, and of the necessity of avoiding a multiplicity of suits, is made out under circumstances and conditions such as are here alleged and proven. Nashville, C. & St. L. R. Co. v. McConnell (C. C.) 82 F. 65; Delaware, L. & W. R. Co. v. Frank (C. C.) 110 F. 689; Kinner v. Lake Shore & M. S. R. Co., 69 Ohio St. 339, 69 N.E. 614; Pennsylvania R. Co. v. Beekman, 30 Wash. Law Rep. (D. C.) 715; Illinois C. R. Co. v. Caffrey (C. C.) 128 F. 770; Schubach v. McDonald, 179 Mo. 163, 78 S.W. 1020, 65 L.R.A. 136, 101 Am.St.Rep. 452; Bitterman v. L. & N. R. Co., 207 U.S. 205, 28 S.Ct. 91, 52 L.Ed. 171.

2. That the contract evidenced by nontransferable tickets described in the complaint is a legal contract between the railroad company and the purchaser of such tickets, and binds the parties thereto and limits the benefits of the contract to the use of the original purchaser only; that no one other than such purchaser can become the beneficiary of such contract, and under its terms the railroad company is under no obligation to carry as a passenger any person presenting such ticket, unless such person is in fact the original purchaser. Mosher v. St. Louis, I. M. & S. R. Co., 127 U.S. 390, 8 S.Ct. 1324, 32 L.Ed. 249; Eastman v. Railroad Co., 70 N.H. 240, 46 A. 54; Way v. Chicago, etc., Ry. Co., 64 Iowa 48, 19 N.W. 828, 52 Am.Rep. 431; Demilley v. T. & N. O. Ry. Co., 91 Tex. 215, 42 S.W. 540; Dangerfield v. Railway Co., 62 Kan. 85, 61 P. 405; Boylan v. Hot Springs R. Co., 132 U.S. 146, 10 S.Ct. 50, 33 L.Ed. 290; Drummond v. Southern P. R. Co., 7 Utah 118, 25 P. 733; Bitterman v. L. & N. R. Co., supra; and 4 Elliott on Railroads, § 1599.

3. That such tickets are not property in the hands of the purchaser, in the sense that they can be transferred or sold, and trafficking in them is not and cannot be made a legitimate business. State v. Corbett, 57 Minn. 345, 59 N.W. 317, 24 L.R.A. 498; Jannin v. State, 42 Tex. Cr. R. 631, 51 S.W. 1126, 62 S.W. 419, 96 Am.St.Rep. 821; Burdick v. People, 149 Ill. 600, 36 N.E. 948, 24 L.R.A. 152, 41 Am.St.Rep. 329; Drummond v. Southern P. R. Co., supra; Pennsylvania R. Co. v. Beekman, supra; Schubach v. McDonald, supra; Nashville, C. & St. L. R. Co. v. McConnell, supra; and 4 Elliott on Railroads, § 1593.

4. That the business of a person or corporation is property which is entitled under the law to protection from unlawful interference, and such interference may be prevented by injunction. National Teleg. News Co. v. Western Union Teleg. Co., 119 F. 294, 56 C.C.A. 198, 60 L.R.A. 805; Hopkins v. Oxley Stave Co., 83 F. 912, 28 C.C.A. 99; Hamilton-Brown Shoe Co. v. Saxey, 131 Mo. 212, 32 S.W. 1106, 52 Am.St.Rep. 622; Flaccus v. Smith, 199 Pa. 128, 48 A. 894, 54 L.R.A. 640, 85 Am.St.Rep. 779; Scott v. Donald, 165 U.S. 107, 17 S.Ct. 262, 41 L.Ed. 648; Sherry v. Perkins, 147 Mass. 212, 17 N.E. 307, 9 Am.St.Rep. 689; Nashville, C. & St. L. R. Co. v. McConnell, supra; Railway Co. v. Bitterman, 144 F. 34, 75 C.C.A. 192; Lake Shore & Michigan So. Ry. Co. v. Smith, 173 U.S. 684, 19 S.Ct. 565, 43 L.Ed. 858; and Smyth v. Aimes, 169 U.S. 466, 18 S.Ct. 418, 42 L.Ed. 819.

5. That by the scalping of its nontransferable...

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    • U.S. Court of Appeals — Ninth Circuit
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    ...Supreme Court of Colorado was more explicit several years later in another case involving ticket brokering, Kirby v. Union Pacific Railway Co., 51 Colo. 509, 119 P. 1042 (1911). There, the court noted that "an overwhelming weight of authority" held that a ticket "evidenced" a "legal contrac......
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    ... ... particular matter or transaction in respect to which judicial ... protection or redress is sought.' The same rule is stated ... in Kirby v. Union P. Co., 51 Colo. 509, 524, 119 P ... 1042; Kinner v. Ry. Co., 69 Ohio St. 339, 344; ... City of Chicago v. Stock Yards Co., 164 Ill ... ...
  • Spencer v. Sytsma
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    ...have the place of trial changed because the action is brought in an improper county is not jurisdictional. Kirby v. Union Pac. Ry. Co., 51 Colo. 509, 541, 119 P. 1042, 1054 (1911); see also Slinkard v. Jordan, 131 Colo. 144, 149, 279 P.2d 1054, 1056 (1955). Venue is a mere personal privileg......
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3 books & journal articles
  • Rule 98 PLACE OF TRIAL.
    • United States
    • Colorado Bar Association Colorado Rules of Civil and Appellate Procedure (CBA)
    • Invalid date
    ...285 (1896). It has reference exclusively to actions in rem, where specific property is to be directly affected. Kirby v. Union Pac. Ry., 51 Colo. 509, 119 P. 1042, 1913B Ann. Cas. 461 (1911). This provision is applicable to county courts as well as to district courts. Fletcher v. Stowell, 1......
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    • Colorado Bar Association C.R.S. on Family and Juvenile Law (CBA) Colorado Rules of Civil Procedure
    • Invalid date
    ...285 (1896). It has reference exclusively to actions in rem, where specific property is to be directly affected. Kirby v. Union Pac. Ry., 51 Colo. 509, 119 P. 1042, 1913B Ann. Cas. 461 (1911). This provision is applicable to county courts as well as to district courts. Fletcher v. Stowell, 1......
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    • United States
    • Colorado Bar Association C.R.S. on Family and Juvenile Law (2022 ed.) (CBA) Colorado Rules of Civil Procedure
    • Invalid date
    ...285 (1896). It has reference exclusively to actions in rem, where specific property is to be directly affected. Kirby v. Union Pac. Ry., 51 Colo. 509, 119 P. 1042, 1913B Ann. Cas. 461 (1911). This provision is applicable to county courts as well as to district courts. Fletcher v. Stowell, 1......

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