county, and for that reason is entitled to the change of venue demanded. This motion was denied, and from the order of the court denying the motion for the change of venue, appellant appeals.

It sufficiently appears that the appellant is a foreign corporation, and that it has duly, by writing filed and recorded as required by law, designated an agent resident at Lewiston, in Nez Perce county, upon whom legal process shall be served by and on behalf of the said appellant, and that said latter place is its principal place of business in this state. Appellant contends that under the statutes and the decisions of this court in Easley v. Insurance Co., 38 Pac. 405, aud Webster v. Railroad Co., 55 Pac. 661, and other authorities cited, it was error to deny the said motion. If the rule announced in Easley v. Insurance Co. applies to railroad corporations, under our statutes, and that decision is followed, the contention of appellant must be sustained. This precise question did not arise in either of the cases named. In the former case the question related to insurance companies, and while the language used in the decision is broad, and would appear to apply generally to all foreign corporations, yet the precise question here was not considered in that case; and, while the language used in the latter case would seem to carry the idea that the rule announced in Easley v. Insurance Co. applies to railroad corporations, yet what was there said was obiter dicta, and neither of said decisions is conclusive of the question here presented. This is the first time that this precise question has been before this court, and, owing to its importance not only to the people of this state, but to railroad companies whose lines run into this state, we have given this question extended and careful consideration.

The statute. authorizing or requiring foreign corporations to designate an agent upon whom service of process may be served (section 2653, Rev. St.) was not intended to apply to railroad corporations. That statute prescribes a general rule, and was enacted for the benefit and convenience of the citizens of this state. That the rule should not apply to railroad corporations is apparent from the fact that the legislature has prescribed that summons may be served upon any ticket or station agent, thus showing that summons need not be necessarily served upon the designated agent. As a matter of fact, section 2653, Rev. St., does not prescribe upon what agent of a foreign corporation service shall be made. The object of that statute was to make it possible for all citizens of this state to obtain actual service upon foreign corporations doing business in this state, whether such foreign corporations have one or more regular places of business or not. The persons or agents upon whom service may be made in actions against foreign corporations are named in section 4144, Rev. St., as amended by act of March 3,

1897 (Acts 1897, p. 13), and re-enacted February 16, 1899 (Acts 1899, p. 293). The second subdivision of said section as amended is as follows: "If the suit is against a foreign corporation, or a non-resident joint stock company, or association doing business and having a managing or business agent, cashier or secretary within this state to such agent, cashier or secretary, or to any station, ticket or other agent of such corporation transacting business thereof in the county where the action is commenced, and if there is no such agent in said county, then service may be had upon any such agent in any other county." And subdivision 3 of said section as amended is as follows: "And whenever any foreign corporation or nonresident joint stock company or association, doing business within the state of Idaho, shall not have any designated person actually residing in the county in which said corporation or joint stock company shall be doing business within this state upon whom process issued by authority of or under any law of this state may be served as provided in section 2653 of the Revised Statutes of Idaho, or when any such corporation or joint stock company having appointed such person or agent as provided in said section 2653, and said agent or person so designated, shall have removed from, or ceased to be a resident, or be absent for more than thirty (30) days from said county, then the auditor of said county shall be and is hereby designated as the authorized agent of said corporation or joint stock company upon whom process issued by authority of or under any law of this state may be served with like effect as though said service were made upon the agent or person appointed or designated as provided in section 2653 of the Revised Statutes of Idaho." This statute would seem to contemplate the suing of foreign corporations doing business in this state in any county in which they do business, irrespective of the residence of the agent which it may have designated under the provision of section 2653, Rev. St. Considering these statutes together, it is evident that the legislature intended that summons in a civil action might be served in any county in which a foreign corporation is doing business in this state. In Easley v. Insurance Co. this court committed the error of holding that a foreign corporation which has complied with section 2653, Rev. St., obtains "a fixed residence within the state for the purpose of suing and being sued, and can insist upon the trial of any case brought against it at such place of residence." That decision, so far as the question now under consideration is concerned, is overruled. Both upon principle and authority, private corporations are residents of the state in which they are created. They have, and can have, but one domicile,-that the state of their birth, and which is fixed by the charter of incorporation. They may migrate into other countries and jurisdic

tions for the purpose of business, and may be permitted to carry on business in other states; yet, so far as jurisdiction of courts is concerned, they are treated both by our federal courts and by our state courts as residents of the state in which created, and nonresidents of other states. The appellant in this case is a foreign corporation. If the amount in controversy was sufficient, it would have been entitled to have the action removed from the state court into the federal court on the ground of its being a nonresident, upon proper application therefor. Foreign corporations are and remain, to all intents and purposes, so far as jurisdiction of actions is concerned, nonresidents of this state. We have no statute or constitutional provision in this state giving a corporation, whether foreign or domestic, the right to have actions against it tried in the county in which its principal place of business is located, or in which the agent who may have been designated under the provisions of section 2653, Rev. St., resides. Section 4123, Rev. St., providing for the place of trial of transitory actions, is as follows: "In all other cases the action must be tried in the county in which the defendants, or some of them, reside at the commencement of the action; or, if none of the defendants reside in the state, or, if residing in this state, the county in which they reside is unknown to the plaintiff, the same may be tried in any county which the plaintiff may designate in his complaint; and if the defendant is about to depart from the state, such action may be tried in any county where either of the parties reside or service is had; subject, however, to the power of the court to change the place of trial as provided in this Code." In Thompson's Commentaries on the Law of Corporations (volume 6, § 7426) it is said: "The rule as to venue deducible from the foregoing sections is that a corporation, whether foreign or domestic, having a general residence in the state for the purposes of jurisdiction, is deemed to reside throughout the entire limits of the state, and especially in those counties where it carries on its business and exercises its franchises, and is hence suable in any county where it has an agent upon whom process against it may lawfully be served. It should be carefully kept in mind, however, that this rule is not so much a theory of the courts as to the legal situs of a corporation for the purposes of jurisdiction, as it is a rule in particular states, founded on the express language of statutes, and that, in so far as the states have the same rule, it is rather a rule depending upon a concurrence of legislation, than upon a concurrence of judicial decisions. The word 'nonresident' in this statute includes corporations, according to a principle of interpretation elsewhere referred to. The point upon which these statutes more frequently concur is that a transitory action may be brought against a railroad

company in any county through which it operates its road, provided it has an agent in that county upon whom process may lawfully be served; and this irrespective of the question of the place where the cause of action accrued or the injury was done." The correct rule applicable to this case is stated by Judge Thompson in the foregoing section. In the absence of any statutory provision fixing the place of trial in actions against foreign corporations in any particular county, we see no reason why such actions should not be brought and maintained in any county in this state. This, we think, is the policy and theory of our Code.

For the foregoing reasons, the order of the district court denying appellant's motion to change the place of trial from Kootenai county to Nez Perce county is affirmed, with costs to the respondents.

SULLIVAN and STOCKSLAGER, JJ., con

cur.

(8 Idaho, 54)

ZIENKE v. NORTHERN PAC. RY. CO. (Supreme Court of Idaho. Nov. 22, 1901.) APPEAL REVIEW SUFFICIENCY OF EVIDENCE-NEGLIGENCE OF FELLOW SERVANT.

1. In an action for personal damages, where the evidence wholly fails to support the ver diet of a jury and judgment of the court entered thereon, it must be reversed.

2. Where the evidence shows that the acts complained of resulting in the injury were attributable to a fellow servant, the employer cannot be held to respond in damages for such injury.

(Syllabus by the Court.)

Appeal from district court, Kootenai county; A. E. Mayhew, Judge.

Action by Charles R. Zienke against the Northern Pacific Railway Company. Judg ment for plaintiff, and defendant appeals. Reversed.

H. M. Stephens and John M. Bunn, for appellant. Charles L. Heitman, for respondent.

STOCKSLAGER, J. This case is here for review from a judgment of the district court of Kootenai county. The case was tried by a jury, and on January 25, 1900, a verdict was returned in favor of the plaintiff for the sum of $1,995. The pleadings are volu minous, and will be referred to here in an abbreviated form, but sufficiently to show the conditions upon which the case was tried. The amended complaint avers: That the defendant is a corporation existing under and by virtue of the laws of Wisconsin, and engaged in operating a line of railroad from St. Paul to the Pacific Ocean, and traverses the entire width of Kootenai county, this state. That the plaintiff is a carpenter by trade, and has been engaged in such business the past 30 years. That from about the 1st of July, 1896, to the 16th of Septem

ber, 1896, both inclusive, he was employed by the defendant as a carpenter upon its bridges or trestles crossing the Lake Pond d'Oreille, in said county, at and for certain hire, and was required, as part of his duties, to handle lumber with which such bridge or trestle was being built by said defendant; also to unload such lumber from the push car, which was used in bringing said lumber over the tracks to said bridge or trestle. That said bridge or trestle is narrow, and crossed by a single track, and there were no platforms on the side, except at long distances apart on said bridge or trestle, which is more than one mile in length, and its entire length crosses water of great depth. That whilst plaintiff was engaged in such work he was under the direction and control of foremen employed by the defendant, whose orders and instructions it was his duty to obey, to wit, one McAuliffe and one John Holstroem, who were, as plaintiff is informed and believes, vice principals of defendant, and as he is informed and believes were employed and authorized by the defendant as such foremen and vice principals. That on or about the 16th day of September, 1896, he was at work as such carpenter in defendant's behalf on its said bridge or trestle, and was engaged in handling lumber with which repairs were being made on said bridge or trestle in the following manner, to wit: "Plaintiff was unloading lumber from a push car belonging to defendant, which was standing on the single track crossing the said bridge or trestle. The plaintiff stood at one end of the said push car and the other employé at the further end of said push car, throwing lumber from said push car on the side of the said bridge or trestle. That while so engaged, and while plaintiff's back, from the necessity of his work, was turned towards the village of Sandpoint, and while plaintiff held in his hands and against his right leg a heavy piece of lumber, about 30 feet long, the said John Holstroem came from the direction of Sandpoint on a hand car belonging to defendant, over the single track of said bridge or trestle, at the time when the said push car which plaintiff was unloading was also standing on the single track upon said bridge or trestle. That the plaintiff, from his position and his work in unloading said push car, could not see or hear the hand car upon which said John Holstroem was riding over said track, and while said plaintiff was so engaged in the position aforesaid the said John Holstroem, drove the said hand car loaded with tools in, over, and upon said single track, without warning to said plaintiff, in a negligent, careless, and unskillful manner, so that the said loaded hand car was driven against and upon the plaintiff with such force and violence as to press and squeeze plaintiff's right leg at the knee between said hand car and said heavy piece of lumber then held by plaintiff in the manner before

mentioned with such momentum and weight as to wound and bruise plaintiff's right leg in a most painful and permanent manner. That, as a result of such injury, the plaintiff was treated by a physician or surgeon, and was confined to his bed continuously for about two weeks, and was under treatment for said injury in a hospital for more than five weeks, and from time to time was confined to his bed for about fourteen weeks. That the plaintiff, by reason of said injury, was rendered permanently lame in his right leg, and has grave apprehensions that said leg will eventually have to be amputated. That plaintiff, by reason of said injury, constantly suffers great pain. That he is afflicted with sleeplessness by reason of said pain and suffering, and is unable to perform a full day's labor to support himself and family by his labor as he did prior to the date of said injury." Then follows an allegation that it was the duty of the defendant to furnish for the protection and safety of plaintiff good, safe, and secure places in which to work upon said bridge or trestle, and to provide that timely warning or notice should be given plaintiff while at work, as aforesaid, of the approach of hand cars and push cars moving along, over, and upon defendant's single track, or over said bridge or trestle. Avers that defendant conducted its operations in this behalf in so negligent, careless, and unskillful a manner that, although this said bridge or trestle was about 11⁄2 miles in length, and crossed deep water at a height of from 20 to 30 feet almost its entire length, no side track or other arrangement was constructed or provided upon which a push car or hand car could be driven; that his duty required him to keep constantly at work repairing said bridge or trestle; that the defendant conducted itself so negligently, carelessly, and unskillfully that it provided for no notice, warning, or signal to be given of the approach of hand cars or push cars; that it was the duty of the defendant, in selecting its servants, employés, or agents, to exercise diligence and care, and only employ such persons as were safe, capable and trustworthy; and avers that said John Holstroem, who drove the hand car by which plaintiff was injured, was addicted to strong drink and drunkenness to such a degree as to make him unfit, incapable, and unworthy for the position he held under his employment by the defendant, and that such incapability, etc., existed at the time of the injury to plaintiff, and had existed for a long time prior thereto, and were well known to defendant at the time, and for a long time prior thereto, or could, by proper care and diligence, have been known to defendant, and the defendant did not exercise due care and diligence in employing said Holstroem; that plaintiff, at the time of said injury, had been working under said Holstroem for only a short time, and was ignorant of Holstroem's unfitness as afore

said. Avers that up to the date of the injury he was a strong and healthy man, able to do daily work without inconvenience, and that by reason of said injury he is now, and since the date of the injury has been, incapacitated from working successfully as he could prior to said injury. Avers that said injury was caused without fault or negligence on his part, and that by reason of said injury, caused by the negligence of defendant, he has been damaged, etc. To this complaint a demurrer was filed; also a motion to strike from the complaint certain portions thereof as being irrelevant and immaterial; and on the 7th day of April, 1899, an order was made and entered overruling the motions as well as the demurrer, and on the 12th day of April, 1899, the defendant filed its answer to the complaint. The answer admits that defendant is a corporation, but denies that it was the owner of or that it operated said line of railroad, or any part thereof, prior to 1896; admits that plaintiff was at the time of the commencement of this action a carpenter by trade; denies that he was employed by defendant prior to September 1, 1896; admits that from September 1, 1896, to September 16, 1896, plaintiff was employed by defendant as a carpenter upon its bridge or trestle as alleged, and that for a certain hire and reward agreed upon plaintiff was required and accustomed, as part of his duties, to handle lumber under and by direction of defendant, to unload lumber from the push car, etc.; denies that the bridge or trestle is narrow, and has no platform on the sides, except at long distances apart; alleges said bridge or trestle is of proper and sufficient width for bridges or trestles of this character, and used for purposes for which this one was used; admits that it is more than one mile in length; denies that it crosses water of great depth its entire length, or at all; alleges that the water that said bridge or trestle crosses is not of great depth at any point, and for a greater part of the distance the water is shallow; alleges that at the time of the commencement of this suit, and for 30 years previous thereto, plaintiff was a bridge carpenter, and accustomed to working on bridges and trestles similar to the one in question, and that at the time of going upon said bridge or trestle at the time and place mentioned he well knew the dangers connected with such work; denies that plaintiff, while working as such carpenter in behalf of defendant, was under the direction or control of foremen employed by defendant whose orders or instructions it was plaintiff's duty to obey, and denies that McAuliffe and John Holstroem, or either of them, were vice principals, or were employed or authorized by the defendant as vice principals or foremen, except as hereinafter set forth; alleges that at the time and place mentioned, and while working as such carpenter for defendant, plaintiff was under the

direction of, and it was his duty to obey, the orders and instructions of M. McAuliffe, who was the foreman of said gang, and the only foreman thereof, at said time and place. Then follows an allegation that defendant has no information or belief as to the employment of plaintiff at the time of the alleged injury, and denies such employment as alleged in the complaint, or the injury alleged to have been sustained at such time and place; alleges that, if the plaintiff went upon the bridge or trestle as alleged in his complaint, he was well aware and knew of all the dangers, if there were any, to which he was made subject, or should have known of such dangers, if there were any; that the plaintiff, if he went to work as alleged, did so of his own free will and choice; that all of the dangers then and there existing were perfectly apparent, or should have been so to the plaintiff; that, if it be true that plaintiff was injured in the manner set forth in his complaint, or in any manner, the injury was caused by the act of a fellow servant, or by dangers the risks of which said plaintiff assumed; denies that it was the duty of defendant to provide or furnish for the protection or safety of plaintiff good, safe, or secure places in which to work on said bridge or trestle, or that it was its duty to provide timely warning of the approach of push cars, hand cars, or cars of any description, or that any of its agents, servants, or employés conducted its operations in this behalf; denies that no side tracks, or other arrangements were constructed or provided upon which a push car or hand car could be driven, or that plaintiff's duty required him to keep constantly at work in repairing bridges, etc.; admits that it was its duty, in selecting employés, agents, and servants, to exercise diligence and care in employing only such persons as were safe, capable, and trustworthy; alleges that it used all due and necessary diligence in the employment and retention therein in the employment of said John Holstroem as its servant; denies that said Holstroem was so addicted to strong drink or drunkenness as to make him unfit or unworthy for the position he held at the time of the alleged injury, or that it existed for a long time prior thereto; alleges that, if plaintiff was injured as he alleges in his complaint, it was not the fault of the defendant.

Plaintiff, Zienke, testified that he was working for defendant in September, 1896, "and on the 16th of said month, on the day of the accident, and at the time, John Holstroem was with the hand car, when I looked around. I guess he was in the act of getting off the hand car, and he said, 'Are you hurt?" I said: 'Yes. I think I do feel it.' He said, 'Well, I couldn't help it.' I said, 'Why? 'I could not help it. The brake did not work very good.' McAuliffe, foreman of our gang, came up then. I considered John Holstroem, the way he acted always, that he was above

me,-second foreman. He worked as a carpenter there. McAuliffe came up there and asked me if I was hurt. He says, 'It is carelessness.' I went back to work in two weeks on the same bridge gang. Mr. MeAuliffe was not there. Was working for the N. P. R. R. Co. I worked there one day, when I was laid off,-was told I was not wanted any more. Mr. Holstroem laid me off, this same John Holstroem who was driving the hand car when I was hurt. A short time before I was hurt, I had been working under John Holstroem as my boss." On cross-examination he said: "In September, 1896, he was an experienced man, and knew all the dangers of being a carpenter, and being in high places, and working among men whose tools are liable to be dropped. Had worked as bridge carpenter on the Great Northern Railroad and other railroads in the East considerably before that time. Mr. McAuliffe was the foreman of that gang, and John Holstroem was, but Mr. McAuliffe was above him. Holstroem was foreman occasionally in McAuliffe's place. He took McAuliffe's place once in a while when McAuliffe was gone. He never took MeAuliffe's place when McAuliffe was present. McAuliffe was the only foreman of the gang that day, the day of the accident. Except John Holstroem, McAuliffe was the only foreman of the gang the day of the accident. Holstroem was a workman,-a bridge carpenter. If I had seen the car coming, I could have stepped to one side, there was plenty of room. Holstroem did not employ me. McAuliffe gave me orders when he was there, and nobody else that I know of." J. M. Bradley testified that he knew Holstroem, and his general reputation for drunkenness in Sandpoint; that it was bad. Also testified that it was bad at Rathdrum and Spokane. Benjamin F. Bulter also testified that the reputation of Holstroem for drunkenness at Sandpoint, in September, 1896, was bad. Jackson Watts testifies to a similar state of facts as to Holstroem's reputation for drunkenness. E. A. Shera testified as to the condition of plaintiff's leg in June. leg was bandaged, and was inflamed. Says plaintiff could not stand carpenter work. After the introduction of this testimony the plaintiff rested his case, whereupon defendant made the following motion: "The defendant, the Northern Pacific Railroad Company (the plaintiff herein having rested), now moves this honorable court to dismiss this action, and grant a nonsuit herein, upon the ground and for the reason that the plaintiff has not proved a case sufficient to go to the jury." This motion was overruled by the court, and thereafter the defendant called Mr. McAuliffe, who testified he was foreman of the gang, and that no other person gave orders. "That Holstroem and Zienke were receiving the same pay at the time of the accident. Holstroem has never had authority to discharge or employ men. Holstroem

The

has worked for me for the last nine years, and was an old hand when I came to the road. He is a good all-round man, and has always been considered careful. I never knew any one to be hurt where he was. 1 considered Mr. Zienke an inferior hand on any work. Don't think he ever worked on bridge work until he went to work for me. I would not place him in a dangerous position in doing work. Our work is dangerous in many respects. I never knew Holstroem to go on a bridge to work while under the influence of liquor." A number of witnesses testified that they had worked from 1 to 15 years with Holstroem, and that he was a very careful man; never knew him to be intoxicated while at work; that he usually did the most dangerous work, as he was considered competent and careful. Holstroem himself testified: That he had been engaged in bridge work and other work of a dangerous character for the past 19 years, and that an accident had never happened a fellow workman by reason of his carelessness or negligence in all that time up to the time of this accident, if this one is traceable to him; that he never at any time discharged the plaintiff, and only worked in the capacity of a carpenter.

With this statement of the pleadings and the evidence, should the motion for a nonsuit have been sustained? If so, it is wholly unnecessary for us to pass upon a number of questions presented by the record. The plaintiff testifies that he was an experienced bridgeman, having been engaged in that class of work for a number of years; that he was familiar with the dangers connected with the class of work in which he was engaged at the time of the accident. He testifies that the accident was attributable to the carelessness and negligence of one John Holstroem in pushing a hand car against his leg with such force as to cause the injury, and that said Holstroem was an employé of the defendant in a capacity superior to him. On cross-examination he testifies that one McAuliffe was the foreman of the gang at work on the bridge or trestle at the time of the accident, and was present at the time, giving orders; that said McAuliffe employed him to work for defendant in the capacity of a bridge carpenter; that he was assisting in unloading the push car, when said Holstroem pushed the hand car against his leg with sufficient force to cause the injury; that Holstroem was also a bridge carpenter. Three witnesses testified that Holstroem was addicted to the use of intoxicating liquors, and that they had frequently seen him intoxicated at Sandpoint, Spokane, and Rathdrum. There is no pretense, however, that he was under the influence of liquor at the time of the accident, or that his habits of intoxication were in any way responsible for it, or that he was in the habit of using intoxicating liquors while at work. It is urged by respondent's counsel that it