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RROR with cross bill of exceptions to exemplary damages, a verdict should not be

review a judgment of the Circuit Court set aside unless it is grossly excessive. for Richmond County in favor of plaintiff 13 Cyc. Law & Proc. p. 105; Monongahela in an action brought to recover damages for Nav. Co. v. United States, 148 U. S. 326, alleged violation of a statute against dis- 37 L. ed. 468, 13 Sup. Ct. Rep. 622. crimination by railway carriers; defendant excepting to a refusal to grant a new trial Evans, J., delivered the opinion of the after judgment against it; and plaintiff ex court: cepting to rulings made during the trial. When this case was before this court on Reversed on defendant's exception.

a former occasion, it was held that the The facts are stated in the opinion. plaintiff's petition set forth a cause of

Messrs. Lawton & Cunningham and action, and that the special demurrers urged J. C. C. Black, for plaintiff in error: against it were not well taken. 121 Ga. 48,

A railroad company is not bound to ship 48 S. E. 714. A trial upon the merits was beyond the terminus of its own line. If it had in the court below, and resulted in a does engage in such a contract, it is entirely verdict for $3,005 in favor of the plaintiff. a voluntary contract.

A motion for a new trial, presented in beAtchison, T. & S. F. R. Co. v. Denver & half of the defendant railway company, was N. 0. R. Co. 110 U. S. 667, 28 L. ed. 291, 4 overruled, and it excepted. By a cross bill Sup. Ct. Rep. 185; Post v. Southern R. Co. of exceptions the plaintiff brings under re103 Tenn. 184, 55 L. R. A. 481, 52 S. W. view various rulings made during the prog. 306; Little Rock & M. R. Co. v. St. Louis, ress of the trial which were adverse to it. I. M. & S. R. Co. 2 Inters. Com. Rep. 762, 41 1. The gravamen of the brokerage comFed., 559; Chicago & A. R. Co. v. Pennsyl- pany's complaint was that the railway comvania Co. 1 Inters. Com. Rep. 360; Little pany had, in violation of a rule promulgatRock & M. R. Co. v. East Tennessee, V. & ed by the railroad commission of this state, G. R. Co. 2 Inters. Com. Rep. 454; Capehart providing that carriers, “in the conduct of v. Louisville & N. R. Co. 3 Inters. Com. their intrastate business, shall afford to all Rep. 278; New York, N. II. & H. R. Co. v. persons equal facilities in the transporPlatt, 7 Inters. Com. Rep. 324; Diamond tation and delivery of freight,” wrongfully Mills v. Boston & M. R. Co. 9 Inters. Com. refused to place a car loaded with cotton Rep. 315; Railroad Commission v. Louis- seed on a side track in the rear of its warerille & N. R. Co. 10 Inters. Com. Rep. 173; house, refused to allow reshipment of its Kentucky & I. Bridge Co. v. Louisville & cars at Augusta, and that the company's reN. R. Co. 2 L. R. A. 289, 2 Inters. Com. Rep. fusal so to do was in pursuance of a pre351, 37 Fed. 567; St. Louis Drayage Co. v. determined plan to drive the plaintiff out of Louisville & N. R. Co. 5 Inters. Com. Rep. the business of buying cotton seed at points 137, 65 Fed. 39; Gulf, C. & S. F. R. Co. v. along the railway company's line of road. Miami 8. S. Co. 30 C. C. A. 142, 52 U. s. As evidencing that such was the purpose of App. 732, 86 Fed. 407; Coles v. Central R. the railway company, the plaintiff alleged & Bkg. Co. 86 Ga. 251, 12 S. E. 749; State that it had also refused to issue through vi Wrightsville & T. R. Co. 104 Ga. 437, 30 bills of lading from a station in Burke S. E. 891.

county to points beyond its line, notwithA common carrier is not bound to issue standing the common practice of the raila bill of lading for the transportation of way company was to issue such bills of freight beyond its terminus.

lading to other patrons. The evidence, howRichmond & D. R. Co. v. Shomo, 90 Ga. while issuing through bills of lading on

ever, disclosed that the railway company. 500, 16 S. E. 220. There cannot be any unjust discrimina- to do so on shipments of cotton seed, and

shipments of general merchandise, declined tion against cotton seed as a commodity of in this respect there was no discrimination traffic, unless the denial of the privilege to

against the plaintiff'. It further appeared cotton seed gives some competitive traffic that, although the plaintiff had askerl that some advantage in the markets over cotton

a through bill of lading on a shipment of seed.

cotton seed at the Burke county station Cattle Raisers' Asso. v. Ft. Worth & D. should be issued to one of two points in C. R. Co. 7 Inters. Com. Rep. 513; Pennsyl. Georgia beyond the railway company's line, vania Millers' State Asso. v. Philadelphia & the request was not made in good faith, and R. R. Co. 8 Inters. Com. Rep. 531; Railroad the plaintiff would not have accepted the Commission v. Louisville & N. R. Co. 10 bills of lading if the railway company had Inters. Com. Rep. 173.

signified its willingness to issue them. The Mr. William H. Fleming, for fend trial judge nevertheless instructed the jury ant in error:

that, should they believe the defendant comWhere the law requires a jury to give 'pany discriminated against the plaintiff as

to issuing through bills of lading on intra- | the first place, it was optional with the railstate shipments, this would be a violation way company whether or not it would adopt of rule 36 of the railroad commission, and the custom of issuing any through bills of the plaintiff would be entitled to recover lading or delivering its cars at Augusta to such damages as resulted, and the jury connecting carriers in order that freight could visit upon the railway company ex- might, without reloading on cars furnished emplary damages if they found its refusal by them, be reshipped in bulk. Coles v. to issue to the plaintiff through bills of lad-Central R. & Bkg. Co. 86 Ga. 251, 12 S. E. ing was wilful. The court further instruct- 749. It could, without committing itself ed the jury as follows: "If it is the com- to any duty of so handling raw commodities, mon practice of a railroad company to al issue through bills of lading, or afford such low reshipping privileges or through bills reshipping facilities to shippers of manuof lading for all classes of merchandise gen. factured articles or any other kind of freight erally, it cannot arbitrarily select any one it might choose to handle in that way. In class of merchandise, and refuse such privi- the absence of any duty imposed by law, it leges to dealers in that class of merchandise. could even arbitrarily so conduct its busiIn order to justify such discrimination, ness in this respect as to discriminate bethere would have to be differences in the tween cotton seed and grain, lumber, or circumstances and conditions of shipment." other products. Counsel for the railway These and other instructions of similar im- company very frankly concede that it had port are excepted to on the ground that they a "policy” which governed its decision in were not authorized either by the law or not issuing through bills of lading on shipthe evidence, and were highly prejudicial ments of cotton seed from points along its to the railway company.

line, or allowing facilities at Augusta for The first of these instructions certainly the reshipment of that product in bulk over ought not to have been given. The plain- competing lines. This policy was doubtless tiff was not suing for damages resulting a purely selfish one, inasmuch as the rail. from the refusal of the railway company to way company looked to its own material issue a through bill of lading from the sta- business interests, rather than to those of tion in Burke county. The plaintiff could the plaintiff or other brokers engaged in not, in the city court of Richmond county, handling cotton seed. But the plaintiff also recover damages for a tort committed in had a “policy.” It was not a philanthropic Burke county; and, moreover, had the plain- one. The situation may thus be summatiff sued in the latter county, no recovery rized: The oil mills at Augusta depended of damages because of such refusal would largely for a supply of cotton seed upon the have been authorized, for the evidence shows territory through which ran the defendant that the application for a through bill of railway company's line. They delivered to lading on an intrastate shipment was not it their manufactured products for shipment, bona fide. The plaintiff really wanted a so the railway company got a short haul through bill of lading to some South Caro- on the raw cotton seed, and also a long haul. lina point. Had the railway company issued on the reshipments made over its line of the through bills of lading to other shippers manufactured products. It was not to the of cotton seed at the Burke county station, business interests of the railway company but declined to accord like privileges to the that cotton seed grown at local stations on plaintiff, this fact would, as was held when its Augusta & Savannah branch should be this case was here before, afford competent shipped to oil mills located in South Caroevidence touching the alleged purpose of the lina, for none of the manufactured products railway company to break up the plaintiff's could then be secured for reshipment, at a business. However, the plaintiff failed to high rate, over its road. Its interests dicestablish any such unjust discrimination, tated that the cotton seed should stop at and therefore what occurred at that station Augusta, and be manufactured into oil and really had no bearing on the case, unless by-products by the mills located at that the court was right in the view of the law point. The railway company therefore deexpressed in the charge which we have above termined that it would not, by voluntarily quoted.

granting facilities to shippers which it was The rule of the railroad commission al- under no legal duty to afford, supply the leged to have been violated prohibits dis means of diverting from its road profitable crimination against shippers, not against shipments which it otherwise would receive. commodities. All shippers of a given com- On the other hand, the material business inmodity must be treated alike, but the car- terests of the brokerage company demanded rier is not bound to have fixed and unvary that it should be granted such facilities. It ing rules applicable alike to each and all was a free lance, in open competition with kinds of freight, or to any given class of the oil mills at Augusta in the buying of freight when shipped in car-load lots. In cotton seed at the lowest price possible, and

all the seed purchased by it was shipped (rier had granted the privilege sought by the from Augusta over the Southern Railway to brokerage company cannot affect the matter South Carolina mills. To reload shipments at all. The carrier could change its policy at Augusta for the South Carolina trip was at any time it saw fit, and the plaintiff had expensive. To get through bills of lading, timely notice of its intention to withdraw or to secure the consent of the defendant this privilege at the close of that season. company that its loaded cars be delivered to What is said above disposes of a number the Southern Railway at Augusta, so that of assignments of error made upon the the seed might be carried to its ultimate charge of the court, and also of exceptions destination without reloading, would render taken to the refusal of the court to give in the business of the brokerage company prof- charge pertinent requests which were in acitable, the business of the Augusta oil mills cord with the law as herein announced. The less remunerative. Their interests and those only contention of the plaintiff which the of the defendant railway company were co- evidence tended to sustain was that the deincident. Its interests and those of the bro- fendant had wrongfully refused to place a kerage company conflicted. The railway com car loaded with cotton seed on the side track pany acted as the average business man in the rear of plaintiff's warehouse, and that would have done; that is all. In declining the purpose of the railway company in reto grant the privileges which the brokerage fusing to do so was to put the plaintiff to company wished to enjoy, the railway com linnecessary expense in reloading at a difpany merely adopted a policy which was ferent place, and thus discourage its enwithin its legal rights as a carrier. State gaging in the buying and shipping of cotv. Wrightsville & T. R. Co. 104 Ga. 437, 30 ton seed. There was proof of aggravating S. E. 891. That the brokerage company may circumstances attending this discrimination have been the only broker in Augusta or against the plaintiff and in favor of the loelsewhere affected by this policy cannot al- cal oil mills, and the jury were warranted ter the case. As a shipper, it was not dis- in reaching the conclusion that the conduct criminated against, though one of the com- of the railway company was wilful, and in modities it handled was, incidentally. The pursuance of a predetermined plan to throw railway company had the undoubted right every obstacle in the way of the plaintiff to to refuse to make through shipments of any prevent shipment of seed into South Carofreight, or to permit its cars to leave its lina. But the case was not fairly or correct; line of road, however they might be loaded. ly presented to the jury, and a new trial To compel it to adopt a policy whereby no must result. discrimination against a particular commod At the request of plaintiff's counsel, the ity. would result would not necessarily ben- court informed the jury that, in a decision efit the brokerage company, but might react on one branch of this case, the supreme to its disadvantage, and be inimical to the court had settled the law of it in favor of interests of shippers of other commodities, the plaintiff, holding that, if the plaintiff for it would then be within the power of the sustained by evidence the allegations of the carrier to decline to deliver its cars for car- declaration as to the conduct of the railway riage over other lines under any circum- company with regard to intrastate busistances. It may be that for this reason our ness, the plaintiff would be entitled to rerailroad commission has not deemed it wise cover. Complaint is made of this instructo attempt to prohibit any discrimination tion on the ground that it was prejudicial between different commodities belonging to to the defendant, in that it conveyed the ima general class of freight.

pression to the jury that the supreme court If, as the evidence discloses, none of the had practically decided the case against the patrons of the defendant company were defendant, and it had no valid defense. Sufgranted the privilege, at Augusta, of hav. fice it to say that the charge was at least ing shipments of cotton seed in its cars irrelevant to any issue before the jury, and turned over to connecting lines for trans- could serve no legitimate purpose in their portation in bulk without reloading, then determination of the case. Two other inthe plaintiff is not entitled to recover dam- structions are justly complained of as being ages because of the railway company's re- inapplicable to the facts of the case, and fusal to accord it this privilege, and the evi- therefore inappropriate and misleading. One dence bearing upon the “policy” of the car was to the effect that, while it was no proprier in this regard was not competent for er business of a common carrier to facilithe purpose of sustaining the plaintiff's con- tate particular enterprises or to build up tention that the purpose of the defendant new industries, yet, as the carrier depended was to drive it out of business. Animus for its very existence upon the will of the cannot be inferred from what one does while people, it was bound to deal fairly with the acting strictly within his legal rights. That public, furnish reasonable transportation faduring the previous cotton season the car. I cilities, and to put all of its patrons upon

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an absolute equality. The other instruction for the further purpose of showing aggrawas as follows: "A railroad company can- vating circumstances. Upon the objection not discriminate in favor of a shipper who of the railway company that the plaintiff is able to furnish a large amount of freight had not alleged any of these matters of ag. over one engaged in the same business who gravation, the court excluded the evidence. is unable to furnish the same quantity; at The plaintiff also offered to prove by a witleast, where both ship in car-load lots." ness that about January 12, 1904, he had

2. Another question presented for deter- seen certain bills of lading covering shipmination, both by the main bill and the ments of cotton seed from Midville, Georgia, cross bill of exceptions, is whether or not to Manning, South Carolina, issued by the the court correctly interpreted and present- defendant to Allan W. Jones, in whose name ed to the jury the meaning and effect of rule the shipments had been made, although the 36 of the railroad commission, in so far as seed was the property of the brokerage cominterstate shipments were concerned. The pany. On the ground that the bills of ladoperation of that rule is, by its own terms, ing were the best evidence of what were limited to intrastate shipments, and there their contents, this testimony was excluded. fore cannot be held to apply to shipments Plaintiff then attempted to prove by the originating in this state but destined for same witness that these shipments came points beyond its borders. A bill of lading through Augusta, and witness knew of his issued from a station in Georgia to one in own knowledge that the cotton seed was not South Carolina would evidence an inter- there reshipped or transferred to other cars, state shipment, whether it was to be car and had duly reached Manning, South Caroried all the way by the initial carrier or lina. Counsel stated that the purpose of was to be delivered by it at some interme- this testimony was to show that through diate point to a connecting carrier for trans- bills of lading must have been issued, for portation to ultimate destination. The ul. otherwise the shipments could not, withtimate destination of a shipment intended out reshipment at Augusta, have reached to take one continuous journey would de- Manning, South Carolina. The defendant termine its character in this respect. Fa- objected to the introduction of this testicilities afforded for carrying through a car- mony, and the court excluded it on the go in bulk, without reloading at an inter- ground that it related to transactions which mediate point, would attach, according to took place after the filing of the suit. To the circumstances, to either interstate or to all of these rulings exception is taken in intrastate commerce. A failure to afford the cross bill. Each of them was, we think, equal facilities to all shippers engaged in correct. interstate commerce would not be a viola “The assessment of damages is usually tion of rule 36. The instructions of the governed by the situation or condition of afcourt to this effect were correct, but might fairs existing at the time the action is properly have been more specifically applied brought.” 13 Cyc. Law & Proc. p. 177. The to the facts by giving the request to charge general rule as to the recovery of special on this subject presented by counsel for the damages is, where they are not such as natrailway company. The plaintiff appears to urally flow from the wrongful act have been engaged altogether in making in- plained of, that “it is necessary, in order terstate shipments of cotton seed, no deliv- to prevent surprise to the defendant, that ery being made to the plaintiff in Augusta the declaration state specifically and in deexcept for the purpose of reloading on tail the damages sought to be recovered," Southern Railway cars, in order that the which involves making a statement of the seed might make one continuous journey facts upon which the plaintiff relies for a refrom Georgia into South Carolina.

covery thereof. Id. p. 176. Where “a wil3. The plaintiff, in its petition, com- ful wrong is committed, evidence of matplained of a refusal by the railway company, ters tending to aggravate the damages, when on December 9, 1903, to deliver one car of necessarily or legally arising from the act the cotton seed on a side track in the rear complained of, is admissible without special of the plaintiff's warehouse, and for this al- averment.” Id. pp. 175, 176. But it is apleged tort both actual and punitive dam- parent that, where a plaintiffsues for a ages were claimed. At the trial the plain- given wrongful act, and relies, as evidencing tiff offered to prove that shortly before and the motive with which that act was comshortly after that date the defendant refused mitted, upon another wholly independent to deliver other car-load lots of cotton seed act, done at a different time and place, the on that side track; the evidence being of defendant should be advised by the plainfered, counsel announced, for the purpose of tiff's pleadings of the case he is expected to proving plaintiff's contention that the de- meet. A case bearing directly upon this fendant had a predetermined plan to drive proposition is that of Leavitt v. Cutler, 37 plaintiff out of the cotton-seed business, and 'Wis. 46, which was a suit for damages be

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cause of a breach of a contract of marriage. would attempt to prove, as an aggravating The court held: "In such an action the circumstance, that on given occasions prior fact that plaintiff has been seduced by de- to the commencement of the action the defendant by means of the alleged promise of fendant had wrongfully refused to place on marriage may be shown to enhance the dam- plaintiff's side track cars other than the ages, if it is alleged in the complaint, but one described by number in the petition. not otherwise.” See also Klopfer v. Had the plaintiff undertaken to amend its Bromme, 26 Wis. 372, 376. In the present pleadings, the defendant could have claimed case the defendant company could hardly surprise. Certainly, the testimony offered have been expected to be prepared to meet was not admissible under the pleadings as charges that, after suit was commenced, it they stood. had committed certain specific acts which Judgment on main bill of exceptions re. were wrongful, and which tended to prove versed; on cross bill affirmed. that the acts complained of in the petition were wilfully committed; nor was the de- All the Justices concur. fendant put upon notice that the plaintiff

WEST VIRGINIA SUPREME COURT OF APPEALS.

Catharine R. GRIFFITH et al., Appts.,

BLACKWATER BOOM & LUMBER COM

PANY et al.

Albert THOMPSON, Appt.,

V.

a

SAME.

nated by dissolution of the corporation in consequence of its insolvency, the contractor is entitled to compensation for services ren. dered by him in pursuance of the contract un. til the date of its termination, and to reimbursement for his actual and necessary outlay and expenses as aforesaid, subject to a deduction of all sums paid to him by the corporation, and of the value of such materials,

machinery, and other property on hand. 2. When such contract between a

corporation and one of its directors has been entered into openly and without fraud, and the disinterested directors and stockholders are fully informed of its terms, and permit it to be partly executed without disapproval or notice of an intention on their part to annul it, the same rule of compensation and reimbursement to the contractor applies upon the subsequent abrogation of the contract by a court ou equity at the instance of the stockholders and creditors of the cor

poration. 3. When, in such case, large expendi

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NOTE.Recovering for services and expenses X. Remedies. under a running contract with a corporation

a. Abstract, 151. ended by its insolvency and dissolution.

b. Concrete, 152.

XI. Construction and effect of statutes, 153 I. Scope of note, 124.

XII. Conclusion, 155.
II. Breaches of contracts in general, 125.
III. The measure of damages in such cases,

1. Scope of note. 126. IV. How corporations are dissolved, 128. It is purposed, by this note, to display the

V. When dissolution is not effected, 129. cases wherein one who had a running contract VI. The earlier common-law doctrine con- with a corporation, which was in process of

cerning the effect of dissolution, 130. execution and required him to perform services VII. Comment and criticism concerning it, 132. and make outlays, was rendered unable to go VIII. The trust-fund, or "American," doctrine, on and complete his contract in consequence of 134.

the insolvency of the corporation, with its reIX. The effects of corporate dissolution ac- sulting dissolution. cording to modern views.

To elucidate the subject, enough cases have a. Civil death, 137.

been gathered to show what, as a general rule, b. Upon litigation, 138.

constitutes a breach of such a contract, and is c. lpon property and assets, 139. the measure of damages when a contract of this d. Upon debts and credits, 141.

character is broken by the party requiring the e. Upon contracts in general, 142. services. f. L'pon employment contracts

The effect of the death of one of the parties 1. With osicers, 144.

to such a contract upon its continuance is 2. With superintendents, 145. barely alluded to here and there, not treated, 3. With agents, 146.

for the reason that this branch of the subject 4. With ordinary employees, 150. is sufficiently corered by two earlier notes in

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