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first mortgage bond upon all property, of even date, present and future, acquired by the company, the right to redeem after two years being optional with the company; said bonds dated 11th December, 1893, and signed by John A. Bishop and Herbert A. Bishop; the original having been withdrawn by order of the court, to be returned to the receiver of the First National Bank of Ocala."

Agnew's guaranty was in these words: "Know all men by these presents, that for and in consideration of the sum of ($5) five dollars cash, in hand paid by the First National Bank of Ocala, and for other good and valuable consideration, I hereby guaranty to the said bank the payment on demand of both principal and interest of fifteen (15) bonds of the Globe Phosphate Mining & Manufacturing Company, numbered from one (1) to five (5), both inclusive; eleven (11) to fifteen (15), both inclusive, and twenty-one (21) to twenty-five (25), both inclusive, for one thousand ($1,000) dollars each, total, fifteen thousand ($15,000) dollars, and bearing interest at the rate of eight (8%) per cent. per annum. It is agreed and understood that I hereby guaranty the payment of the principal of these bonds, payable on demand, with accrued interest.

"This agreement and contract is to be binding on me, my heirs, executors, administrators, or assigns.

"Bonds of the Globe Phosphate Mining & Manufacturing Company, Nos. 31, 33, 35, 37, 39, 41, 43, 45, 47, 49, 51, 53, 55, 57, 59, 61, 63, 65, 67, 69, 71, 73, 75, 77, and 79 are to be included in the above guaranty, and I hereby guaranty principal and interest on all of the above-described bonds."

The evidence was to the effect that five Globe Phosphate bonds, numbered from 1 to 5 were purchased by Agnew for the bank at 50 cents on the dollar, and credited at par. But Agnew testified that he purchased them for himself. It also appeared that two lots of Globe Phosphate bonds, of $10,000 each, were purchased at 25 cents on the dollar, and that Agnew was credited on his personal account with $10,000, in each instance, and the bonds placed in the assets of the bank, and that the bonds were subsequently sent away to be used as collateral security, and the guaranty forwarded to be put with them. The evidence further tended to show that the bonds were of little, if any, value, and that Mr. Agnew's financial condition was such as to place his guaranty in the same category. And although Agnew testified on his own behalf, he did not refer to the subject of the guaranty, or his intentions and ability in regard to it, while it appeared that the credits of these bonds were never consented to nor authorized at any meeting of the directors or stockholders. The bonds were payable in ten years, with an option to the company to pay after two years, it being also provided that, for default in payment of interest, which was payable the semiannually, continuing two months, whole might become due. If the president of the bank received a personal credit of $20,000

for these bonds, under the circumstances disclosed, the court was not required to instruct, as requested, that, from his guaranty that the bonds and interest should be paid, the jury might find that there was no intent to injure and defraud the bank in the transaction.

The true view of this branch of the case was fairly covered by the charge of the court as follows: "There is testimony tending to show that the defendant, at the time he was thus depositing the bonds, gave a guaranty that the bonds were good, and that he would guaranty the payment of principal and interest. You can take that into consideration, and such guaranty can only be considered as determining the value of those bonds at that time, and the intent of the party in such transaction. * * As I say again, gentlemen, the only difficult question for you to determine is the intent of the accused. The question of the intent is to be determined by the facts and circumstances, and the surroundings at the time of the transaction; but, gentlemen, the law presumes that every party who in any way attempts anything by any guaranty, or anything of that kind, which is dependent upon future successful operations, takes the risk of the success, and that, if a person commits an offense with the intent of temporarily injuring or defrauding another party or a banking institution, although it may be his intent at the time to finally recompense or prevent any injury resulting from such act, he is not protected by such intent to finally correct the temporary wrong deed; or, in this case, if you are satisfied that, at the time he placed those bonds there, he knew that they were worthless, or of a very small value, and had a large value charged to the bank, and placed to his account, -if he did that with the intent, for the time being, to injure the bank, and take a wrongful advantage of the credit of the bank, no matter if at that time he had an intent to in the future remedy any injury that might come to the bank, it would not protect him, in your finding, or from your finding, what the intent was at that time."

We have carefully explored the evidence, and considered the errors assigned, whether pressed in argument or not, and have been unable to discover any adequate ground for the reversal of the judgment.

Judgment affirmed.

(165 U. S. 1)

ST. LOUIS & S. F. RY. CO. ▼. MATHEWS. (January 4, 1897.)

No. 105.

CONSTITUTIONAL LAW-ACT Mo. MARCH 31, 1887RAILROAD COMPANIES-LIABILITY FOR PROPERTY DESTROYED BY FIRE FROM LOCOMOTIVES. 1. Act Mo. March 31, 1887, making railroad companies liable for property destroyed by fire communicated by their locomotives, and giving them an insurable interest in the property along their roads, is not in excess of the powers of the legislature.

2. Such a statute does not operate to deprive | 1865, c. 63, § 1, 2; Rev. St. 1889, # 2542, railroad companies of property without due 2543. process of law.

3. Nor does it impair the obligation of the contract between such companies and the state, by which they are impliedly permitted to use fire in the operation of their roads.

4. A statute making each company owning or operating a railroad within the state liable for property destroyed by fire from its locomotives does not deny to such companies the equal protection of the laws.

In Error to the Supreme Court of the State of Missouri.

This was an action brought in an inferior court of the state of Missouri, by an owner of land in St. Louis county, against a railroad corporation organized under the laws of the state, and owning and operating with locomotive engines a line of railway adjoining the plaintiff's land, to recover damages for the destruction of the plaintiff's dwelling house, barn, out-buildings, shrubbery, and personal property upon that land, by fire communicated from one of those engines, on August 9, 1887.

The petition contained two counts,-the first of which alleged negligence on the part of the defendant, and the second did not, but was founded on the statute of Missouri of March 31, 1887, by which "each railroad corporation, owning or operating a railroad in this state, shall be responsible in damages to every person and corporation whose property may be injured or destroyed by fire communicated, directly or indirectly, by locomotive engines in use upon the railroad owned or operated by such railroad corporation; and each such railroad corporation shall have an insurable interest in the property upon the route of the railroad owned or operated by it, and may procure insurance thereon in its own behalf, for its protection against such damages." Laws 1887, p. 101; Rev. St. 1889, § 2615.

The answer, among other defenses, set up that the statute violated the constitution of the United States, by depriving the defendant of its property without due process of law, and by denying to it the equal protection of the laws, and by impairing the obligation of the contract made between it and the state, "by the terms and provisions of which it was impliedly agreed that said defendant might and could use fire for the purpose of generating steam to propel said locomotive engines and cars attached thereto, and be responsible only for the negligent and careless use thereof."

The defendant was incorporated September 10, 1875, under the general laws of the state, which authorized railroad corporations to be formed by voluntary articles of association filed in the office of the secretary of state, and to lay out and construct their railroad, to take lands for the purpose, and "to take and convey persons and property on their railroad by the power or force of steam, or of animals, or by any mechanical power, and to receive compensation therefor." Gen. St.

At the trial the plaintiff introduced evidence tending to support the allegations of the petition; and the court, at his request, instructed the jury that "if they believe, from the evidence, that during the month of August, 1887, plaintiff was the owner of the land in the petition described, and defendant was the owner or operating a railroad adjoining said land, having locomotive engines in use upon said road, and that on August 9, 1887, fire was communicated from a locomotive engine then in use upon the railroad owned or operated by defendant to plaintiff's property on his said land, and thereby the buildings and other property in the petition mentioned, or any of it, were destroyed, then the jury will find for the plaintiff."

The court refused to give to the jury the following instruction, requested by the defendant: "Though the jury may believe, from the evidence, that fire was communicated from a locomotive engine in use on defendant's railroad to plaintiff's property, as charged in the second count of plaintiff's petition, yet that fact is only prima facie evldence of negligence on the part of defendant, and, unless the jury believe, from the whole evidence in the case, that said fire was either negligently set out by defendant, or was communicated to plaintiff's property by reason of defendant's negligence, the plaintiff cannot recover."

The defendant excepted to the instruction given, as well as to the refusal to instruct as requested, and, after verdict and judgment for the plaintiff, appealed to the supreme court of the state, which held the statute to be constitutional, and affirmed the judgment. 121 Mo. 298, 24 S. W. 591. The defendant sued out this writ of error.

D. D. Duncan and L. F. Farker, for plaintiff in error. Percy Werner and Garland Pollard, for defendant in error.

* Mr. Justice GRAY, after stating the case," delivered the opinion of the court.

The only question presented by the record, of which this court has jurisdiction, is whether there is anything inconsistent with the constitution of the United States in the statute of Missouri of March 31, 1887, by which every railroad corporation owning or operating a railroad in the state is made responsible in damages for property of any person injured or destroyed by fire communicated by its locomotive engines, and is declared to have an insurable interest in property along its route, and authorized to insure such property for its protection against such damages.

It has been strenuously argued, in behalf of the plaintiff in error, that this statute is an arbitrary, unreasonable, and unconstitutional exercise of legislative power, imposing an absolute and onerous liability for the consequences of doing a lawful act, and of conducting a lawful business in a lawful and

careful manner, and that the statute violates the constitution of the United States, by depriving the railroad company of its property without due process of law, by denying to it the equal protection of the laws, and by impairing the obligation of the contract previously made between it and the state by its incorporation under general laws authorizing it to convey passengers and freight over its railroad by the use of locomotive engines.

The argument that this statute is in excess of the power of the legislature may be the most satisfactorily met by first tracing the history of the law regarding the liability of persons for fire originating on their own premises and spreading to the property of others.

At common law, every man appears to have been obliged, by the custom of the realm, to keep his fire safe, so that it should not injure his neighbor, and to have been liable to an action if a fire, lighted in his own house, or upon his land, by the act of himself, or of his servants or guests, burned the house or property of his neighbor, unless its spreading to his neighbor's property was caused by a violent tempest or other inevitable accident which he could not have foreseen. Thirning, C. J., and Markham, J., in Beaulieu v. Finglam, Y. B. 2 Hen. IV. p. 18; Anon., Cro. Eliz. 10; 1 Rolle, Abr. 1, “Action sur Case," B; 1 D'Anv. Abr. "Actions," B; Turberville v. Stamp (1698) Comyns, 32, 1 Salk. 13; Holt, 9; 1 Ld. Raym. 264; 12 Mod. 152; Com. Dig. "Action upon the Case for Negligence." A, 6; 1 Vin. Abr. 215, 216; 1 Bac. Abr. "Action on the Case," F (Am. Ed. 1852) p. 122; Canterbury v. Attorney General, 1 Phil. Ch. 306, 316-319; Filliter v. Phippard, 11 Q. B. 347, 354; Furlong v. Carroll, 7 Ont. App. 145, 159.

The common-law liability in case of ordiLary accident, without proof of negligence, was impliedly recognized in the statute of Anne, passed within 10 years after the decision in Turberville v. Stamp, above cited, and providing that "no action, suit or process whatsoever shall be had, maintained or prosecuted against any person in whose house or chamber any fire shall accidentally begin, or any recompense be made by such person for any damage suffered or occasioned thereby; any law or usage or custom to the contrary notwithstanding." St. 6 Anne (1707) c. 31 [58] 7; 8 Statutes of the Realm, 795; St. 10 Aane (1711) c. 14 [24] § 1; 9 Statutes of the Realm, 684. By the statute of 14 Geo. III. (1774) c. 78, § 86, the statute of Anne was extended to "any person in whose house, chamber, stable, barn or other building, or on whose estate, any fire shall accidentally begin."

In modern times, in England, the strict rule of the common law as to civil liability in damages for fire originating on one's own land, and spreading to property of another, has been recognized as still existing, except so far as clearly altered by statute.

In Rex v. Pease (1832) 4 Barn. & Adol. 30, 1 Nev. & Man. 690, a corporation expressly authorized by act of parliament to establish a railway between certain points, and to use locomotive engines thereon, was held not to be liable to an indictment for a nuisance by⚫ frightening horses traveling upon a highway parallel to the railroad.

In Aldridge v. Railway Co. (1841) 3 Man & G. 515, 4 Scott, N. R. 156, which was an action against a railway corporation created by similar acts of parliament to recover damages for property destroyed by fire kindled by sparks from a locomotive engine, it was argued for the plaintiff that by the commor law a civil action for damages could be sustained by proof of injury, without evidence of negligence. See Broom, Leg. Max. (5th Ed.) 366, 367; Holmes, Com. Law, 85-88. But the court held that the corporation could not be held liable, unless negligent. In Piggot v. Railway Co. (1846) 3 C. B. 229, the same rule was recognized, although the fact of the property having been fired by sparks from the engine was held sufficient proof of negligence.

In the course of the argument in Blyth v. Waterworks Co. (1856) 11 Exch. 781, 783, Baron Martin said: "I held, in a case tried at Liverpool, in 1853, that if locomotives are sent through the country emitting sparks, the persons doing so incur all the responsibilities of insurers, that they were liable for all the consequences."

In Vaughan v. Railway Co. (1858) 3 Hurl. & N. 743, the court of exchequer held that a railway company, expressly authorized by its charter to use locomotive engines on its railway, was responsible for damages caused to property by fire communicated from such engines, although it had taken every precaution in its power to prevent the injury. But the judgment was reversed in the exchequer chamber, and Lord Chief Justice Cockburn said: "Although it may be true that, if a person keeps an animal of known dangerous propensities, or a dangerous instrument, he will be responsible to those who are thereby injured, independently of any negligence in the mode of dealing with the animal, or using the instrument, yet, when the legislature has sanctioned and authorized the use of a particular thing, and it is used for the purpose for which it was authorized, and every precaution has been used to prevent injury, the sanction of the legislature carries with it this consequence, that if damage results from the use of such thing independently of negligence, the party using it is not responsible." 5 Hurl. & N. (1860) 679, 685.

The final decision in that case has since been considered in England as establishing that a railway company which by act of parliament has been expressly authorized to use locomotive engines upon its railway, with out being declared to be responsible for fires communicated from those engines, is not, in the absence of negligence on its part, liable

for damages caused by such fires. Fremantle v. Railway Co. (1861) 10 C. B. (N. S.) 89; Railway Co. v. Brand (1869) L. R. 4 H. L. 171; Smith v. Railway Co. (1870) L. R. 6 C. P. 14, 21, 22; Railway Co. v. Truman (1885) 11 App. Cas. 45.

On the other hand, a railway company, chartered by act of parliament in 1832 to make and maintain a "railway or tramroad for the passage of wagons, engines and other carriages" for the purpose of conveying coals and other minerals, and neither expressly authorized nor prohibited to use locomotive engines, was held liable for damages by sparks from such an engine, although proved to have taken all reasonable precautions to prevent the emission of sparks; Mr. Justice Blackburn saying that "the defendants were using a locomotive engine with no express parliamentary powers making lawful that use, and they are therefore, at common law, bound to keep the engines from doing injury, and, if the sparks escape and cause damage, the defendants are liable for the consequences, though no actual negligence be shown on their part," and that, in order to bring them within the decision in Vaughan v. Railway Co., above cited, "it is essential to show that their act authorized the use of locomotive engines, and it is not enough to show that it authorized the making and using of a railway, and that there are no words either prohibiting the use of locomotives or showing that the legislature meant to prohibit the use." Jones v. Railway Co. (1868) L. R. 3 Q. B. 733.

So where acts of parliament, authorizing and regulating the use of locomotive engines on turnpike and other roads, provided that nothing in the acts contained should be construed as authorizing any person to use upon the highway a locomotive engine so constructed or used as to cause a public or private nuisance, and that every person so using such an engine should be liable to an action for such use, when such an action could have been maintained before the passage of the acts, the court of appeal held that a man who used upon a public highway a locomotive engine constructed in conformity with the provisions of the acts, and managed and conducted with all reasonable care and without negligence, was liable for a destruction of property on land adjoining the highway by sparks proceeding from his engine; Lord Justice Bramwell saying: "The passing of the engine along the road is confessedly dangerous, inasmuch as sparks cannot be prevented from flying from it. It is conceded that, at common law, an action may be maintained for the injury suffered by the plaintiffs. The locomotive acts are relied upon as affording a defense; but, instead of helping the defendant, they show, not only that an action would have been maintainable at common law, but also that the right to sue for an injury is carefully preserved. It is just and reasonable that, if a person uses a dan

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gerous machine, he should pay for the damage which it occasions. If the reward which he gains for the use of the machine will not pay for the damage, it is mischievous to the public, and ought to be suppressed, for the loss ought not to be borne by the community or the injured person. If the use of the machine is profitable, the owner ought to pay compensation for the damage." Powell v. Fall (1880) 5 Q. B. Div. 597.

* In this country, the strict rule of the common law of England as to liability for accidental fires has not been generally adopted; but the matter has been regulated, in many states, by statute. Clark v. Foot, 8 Johns. 329; Bachelder v. Heagan, 18 Me. 32; Tourtellot v. Rosebrook, 11 Metc. (Mass.) 460; Finley v. Langston, 12 Mo. 120; Miller v. Martin, 16 Mo. 508; Catron v. Nichols, 81 Mo. 80; Cooley, Torts, 14, 590-592; 1 Thomp. Neg. 148-150.

In the colony of Massachusetts, from the first settlement, it was an object of legislation, "for the preservation of houses, hay, boards, timber, etc." 1 Mass. Col. Rec. (1631) 90; (1639) 281; 3 Mass. Col. Rec. (1646) 102. In 1660, or earlier, it was enacted that "whoever shall kindle any fires in the woods, or grounds lying in common, or inclosed, so as the same shall run into corn grounds or inclosures," at certain seasons, should "pay all damages, and half so much for a fine: * * Provided that any man may kindle fire in his own ground so as no damage come thereby either to the country or to any particular person." Mass. Col. Laws 1660, p. 31; Id. 1672, p. 51.

Soon after the introduction of railroads into the United States, the legislature of the state of Massachusetts, by St. 1837, c. 226, provided that a railroad corporation should be held responsible in damages for any injury done to buildings or other property of others by fire communicated from its locomotive engines, "unless the said corporation shall show that they have used all due caution and diligence, and employed suitable expedients to prevent such injury," and that any railroad corporation should have an insurable interest in property along its route for which it might be so held responsible in damages, and might procure insurance thereon in its own behalf.

Three years later, that statute was repealed, and was re-enacted with the omission of the clause above quoted, thus making the liability of the railroad corporation absolute, and not dependent upon negligence on its part. And the statute in this form, with merely verbal changes, has been continued in force by successive re-enactments. St. 1840, c. 85; Gen. St. 1860, c. 63, § 101; St. 1874, c. 372, § 106; Pub. St. 1882, c. 112, § 214.

In the first reported case under this statute, it was held by the supreme judicial court of Massachusetts that the liability of the railroad company was not restricted to a building by the side of its road, which the very particles

of fire emanating from the engines fell upon and kindled a flame in, but extended to a building across a street, set on fire by sparks wafted by the wind from the first building while it was burning; and Chief Justice Shaw, in delivering judgment, said: "We consider this to be a statute purely remedial, and not penal. Railroad companies acquire large profits by their business. But their business is of such a nature as necessarily to expose the property of others to danger, and yet, on account of the great accommodation and advantage to the public, companies are authorized by law to maintain them, dangerous though they are; and so they cannot be regarded as a nuisance. The manifest intent and design of this statute, we think, and its legal effect, are, upon the considerations stated, to afford some indemnity against this risk to those who are exposed to it, and to throw the responsibility upon those who are thus authorized to use a somewhat dangerous apparatus, and who realize a profit from it." Hart v. Railroad Corp. (1847) 13 Metc. (Mass.) 99.

Two years afterwards, the same court adjudged that the statute applied to railroad companies incorporated before its passage, and that it extended as well to estates a part of which had been conveyed by the owner, as to those of which a part had been taken by law, for the purposes of a railroad; and Mr. Justice Dewey, in delivering judgment, said: "We can perceive no sound distinction between the cases supposed. Each of these modes for acquiring the necessary real estate for the purpose of a railroad is authorized both by the general laws and by the acts creating railroad corporations. In each, the landowner is supposed to receive full satisfaction for all the injuries necessarily resulting from the use of the same for a railroad. But, with the use of locomotive engines, greater hazard to contiguous buildings and property owned by the adjacent landowners may arise than was originally contemplated, or ought to be left to the ordinary common-law remedies. We consider this provision of St. 1840, c. 85, as one of those general remedial acts passed for the more effectual protection of property against the hazards to which it has become subject by the introduction of the locomotive engine. The right to use the parcel of land appropriated to a railroad does not deprive the legislature of the power to enact such regulations, and impose such liabilities for injuries suffered from the mode of using the road as the occasion and circumstances may reasonably justify." Lyman v. Railroad Corp. (1849) 4 Cush. 288.

The same statute was held to cover personal property in a building, and growing trees, destroyed by fire from a locomotive engine; Chief Justice Bigelow saying: "It is not a penal statute, but purely remedial in its nature, and it is to be interpreted fairly and liberally, so as to secure to parties injured an indenmity from those who reap the advantages and profits arising from the use of a dangerous mode of locomotion, by means of which buildings and other

property are destroyed." Ross v. Railroad Co. (1863) 6 Allen, 87.

Again, in Ingersoll v. Railroad Co. (1864) 8 Allen, 438, it was held, following Hart v. Railroad Corp., above cited, to be immaterial that a building was destroyed by the spreading of a fire from other buildings on which the sparks from the engine had fallen, and it was also held to be immaterial that the building stood partly within the location of the railroad; Mr. Justice Hoar saying: "The fact that a building or other property stands near a railroad, or partly or wholly on it, if placed there with the consent of the company, does not diminish their responsibility, in case it is injured by fire communicated from their locomotives. The legislature have chosen to make it a condition of the right to run carriages impelled by the agency of fire that the corporation employing them shall be responsible for all injuries which the fire may cause."

Upon facts very like those of that case, this court, at October term, 1875, sustained an action under a statute of Vermont, copied from the Massachusetts statute of 1837, and, speaking by Mr. Justice Strong, said: "The statute was designed to be a remedial one. In Massachusetts, there is a statute almost identical with that of Vermont,"-and, referring to that case as directly in point, quoted the passage above cited from the opinion, ending with the words: "The legislature have chosen to make it a condition of the right to run carriages impelled by the agency of fire that the corporation employing them shall be responsible for all injuries which the fire may cause." Railroad Co. v. Richardson, 91 U. S. 454, 456, 472. The statute of Massachusetts, existing at the time of that decision and for 35 years before, and enforced in the Massachusetts cases, imposed a liability upon the railroad company, wholly independent of negligence on its part; and the terms in which this court referred to that statute, and quoted from one of those cases, show that no doubt of its constitutionality was entertained.

In Maine and in New Hampshire, statutes substantially like the statute of Massachusetts of 1840, making railroad corporations absolutely liable, without regard to negligence, for injuries to property by fire communicated from their locomotive engines, were enacted in 1842, and have been since continued in force, and their validity upheld by the highest courts of those states, as applied to corporations created either before or after their passage. St. Me. 1842, c. 9, § 5; Rev. St. Me. 1883, c. 51, § 64; Chapman v. Railroad Co., 37 Me. 92; Pratt v. Same, 42 Me. 579; Stearns v. Same, 46 Me. 95; Sherman v. Railroad Co., 86 Me. 422, 30 Atl. 69; Rev. St. N. H. 1842, c. 142, §§ 8, 9; Gen. St. N. H. 1867, c. 148, §§ 8, 9; Gen. Laws N. H. 1878, c. 162, §§ 8, 9; Hooksett v. Railroad, 38 N. H. 242; Rowell v. Railroad, 57 N. H. 132; Smith v. Railroad, 63 N. H. 25.

In Connecticut, before any legislation towards holding railroad corporations liable

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