RAILROAD REPORTS ST. LOUIS S. W. Ry. Co. v. SMITH. (Supreme Court of Arkansas, March 14, 1903.) [73 S. W. Rep. 101.] Compensation for Services—Parties Liable-Company Incorporated in Two States. A servant employed by a corporation created under the laws of one state, and operating a railroad commencing at the terminus of a railway company of the same name, organized under the laws of another state, could not hold the latter company liable for the services so rendered; the two companies being distinct, and there being no evidence that they were jointly liable. Appeal from Circuit Court, Miller County; Joel D. Conway, Judge. Action by W. M. Smith against the St. Louis Southwestern Railway Company. From a judgment of the circuit court in favor of plaintiff on appeal by defendant from a default judgment for plaintiff rendered in justice court, defendant appeals. Reversed. Gaughan & Tifford and Saml. H. West, for appellant. HUGHES, J. On April 30, 1901, the appellee recovered a judgment by default against the appellant, the St. Louis Southwestern Railway Company, in the sum of $35.29, before W. J. Smithers, a justice of the peace of Miller county, on a claim for labor alleged to have been rendered for the appellant. From this judgment an appeal was taken to the circuit court, where, upon a new trial, judgment was rendered for the appellee for said sum of $35.29. From this judgment an appeal was taken to this court. The evidence in the case shows that the labor, the value of which now sued for, was performed in the state of Texas for the St. Louis Southwestern Railway Company of Texas, which was incorporated in the state of Texas, and whose line. extends from Texarkana, on the line between Arkansas and Texas, into the state of Texas, and that it is a distinct and separate corporation and entity from the St. Louis Southwestern Railway Company, which was incorporated under the laws of Missouri, and extends to Texarkana only. Smith was employed and worked for the St. Louis Southwestern Railway Company of Texas, and it alone was liable to him, and the St. Louis Southwestern Railway Company is not shown to have owed him anything. There was no evidence that the two companies were jointly liable. St. Louis Southwestern Ry. Co. v. Gate City Co-op. Grocery Co. (Ark.) 65 S. W. 706. The judgment of the circuit court is reversed, and judgment will be rendered here for the appellant. PULLMAN COMPANY, Plff. in Err., v. WIRT ADAMS, (Argued and submitted December 19, 1902. Decided March 2, 1903) [23 Sup. Ct. Rep. 494.] Commerce-Privilege Tax-On Sleeping Car Companies. The privilege tax imposed by Miss. Code 1892, 3317, 3387, on sleeping and palace car companies carrying passengers from one point to another within the state, cannot be deemed an unconstitutional regulation of commerce because of the declaration in Miss. Const. § 195, that sleeping car companies are common carriers and subject to liability as such, where such provision is regarded by the state courts as imposing no obligation on the company to transport local passengers. In Error to the Supreme Court of the State of Mississippi to review a judgment affirming a judgment of the trial court in favor of plaintiff in an action to recover privilege taxes from a sleeping car company. Affirmed. See same case below, 78 Miss. 814, 30 So. 757. Messrs. William Burry and J. S. Runnells for plaintiff in error. Messrs. Marcellus Green, W. R. Harper, and W. H. Potter for defendant in error. MR. JUSTICE HOLMES delivered the opinion of the court: This is an action for taxes, brought by the revenue agent of the state of Mississippi against the Pullman Company. The defendant in due form raised the objection that the tax law was void as an interference with commerce between the states. Judgment was given for the plaintiff in the local state court, and the judgment was affirmed by the supreme court of the state. 78 Miss. 814, 30 So. 757. The case then was brought here by writ of error. The tax in question was imposed by the following sections of the Mississippi Code of 1892: "8 3317. A tax on privileges is levied as follows, to wit: 3387. Sleeping car companies: On each sleeping and palace car company carrying passengers from one point to another within the state, $100, and 25 cents per mile for each mile of railroad track over which the company runs its cars." We assume that the last words mean what afterwards was expressed by an amendment, "over which the company runs its cars in this state." The Pullman Company is an Illinois corporation. Its sleeping cars were carried by various railroad companies, and all of them were carried into the state from another state, or out of the state to another state, or both. But such cars in their passage also carried passengers from point to point within the state, and a specific fare was collected by the servants of the Pullman Company. The company attempted by pleas and by an offer of evidence to bring before the court the fact that its Pullman Co. v. Wirt Adams receipts from this class of passengers did not equal the expenses chargeable against such receipts. It contended that these facts would show that the business within the state was merely a burden on its commerce between the states, while at the same time, it argued, it was compelled to assume that burden by § 195 of the state Constitution, which declares sleeping car companies to be common carriers and subject to liability as such. The pleas were held bad on demurrer, the evidence was rejected, and the jury was instructed to find for the plaintiff on the facts admitted. These rulings and the refusal of the court to declare the above-mentioned § 3387 unconstitutional are the errors assigned. If the clause of the state Constitution referred to were held to impose the obligation supposed and to be valid, we assume without discussion that the tax would be invalid. For then it would seem to be true that the state Constitution and the statute combined would impose a burden on commerce between the states analogous to that which was held bad in Crutcher v. Kentucky, 141 U. S. 47, 35 L. Ed. 649, 11 Sup. Ct. Rep. 851. On the other hand, if the Pullman Company, whether called a common carrier or not, had the right to choose between what points it would carry, and therefore to give up the carriage of passengers from one point to another within the state, the case is governed by Osborne v. Florida, 164 U. S. 650, 41 L. Ed. 586, 17 Sup. Ct. Rep. 214. The company cannot complain of being taxed for the privilege of doing a local business which it is free to renounce. Both parties agree that the tax is a privilege tax. As the validity of the tax is thus bound up with the effect of the section of the state Constitution, we think that the Pullman Company was entitled to know how it stood under the latter, and that a judgment against it could not be justified by reasoning which leaves that point obscure. We are somewhat embarrassed in dealing with the case, because we are not quite certain whether we rightly interpret the intimations upon the subject in the judgment under review. If the Constitution of Mississippi should be read as imposing an obligation to take local passengers, the question for us might be which, if not both, the clause of the Constitution or the tax act, is invalid. But we assume that the opinion of the supreme court of Mississippi intends to meet the difficulty frankly, and when it says that the argument against the tax drawn from the above interpretation of the Constitution is fallacious, we take it as meaning that no such interpretation will be attempted in the future, and we take it so the more readily that we can see no ground for a different view. If we are right in our understanding the judgment of the supreme court was correct for the reason sufficiently stated above. Judgment affirmed. HALE v. KANSAS CITY SOUTHERN RY. Co. (Circuit Court of Appeals, Fifth Circuit, February 3, 1903.) [120 Fed. Rep. 735.] Master and Servant-Injury of Servant-Fellow Servants. Where, as in Louisiana, the liability of a master for an injury of an employee by the negligence of a fellow servant is a matter of general law, not affected by statute, a railroad company is not liable for the injury of one member of a train crew, which occurred through the negligence of another member of the same crew, and without fault or negligence on the part of the company. In Error to the Circuit Court of the United States for the Western District of Louisiana. W. P. Hall, for plaintiff in error. J. D. Wilkinson, for defendant in error. Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges. PER CURIAM. In the Supreme Court of the state of Louisiana the liability of an employer to an employee for damages resulting from the negligence of a co-employee or fellow servant is considered a question of general law and not controlled by any express statute. See Hubgh v. New Orleans & Carrollton R. R. Co., 6 La. Ann. 495, 54 Am. Dec. 565; Satterly v. Morgan, 35 La. Ann. 1166; Towns v. Railroad Co., 37 La. Ann. 630, 55 Am. Rep. 508; Wallis v. Railroad & Steamship Co., 38 La. Ann. 160; Dandie v. Railroad Co., 42 La. Ann. 689, 7 South. 792; Bell v. Lumber Co., 107 La. 725, 31 South. 994. In Mexican Central R. R. Co. v. Sprague, 52 C. C. A. 318, 114 Fed. 544, this court found from the record and evidence that under the specific laws of Mexico, as construed by the Mexican courts, the common-law doctrine as to the nonliability of an employer for the negligence of a fellow servant did not exist in Mexico. In Railroad Co. v. McDuffey, 25 C. C. A 247, 79 Fed. 934, the Circuit Court of Appeals for the Second Circuit held upon proof that under articles 1053 and 1054 of the Civil Code of Canada, as construed by the Canadian courts, "where an accident causing injury to a servant was the result of the negligence of a fellow servant, the employer would nevertheless be liable in damages to the injured person," etc. These last two mentioned cases, and others to the same purport, cited by counsel' for plaintiff in error, turned upon local laws and their proper construction, and are not applicable in the instant case. Under the late decisions of the Supreme Court of the United States the employees of a railroad company specifically engaged in operating a train of the company are fellow servants, and, under the general law, for the damages to one through the negligence of the other the employer, without fault himself, is not liable. See Railroad Company v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772; New England Boyle v. Union Pac. R. Co Railroad Co. v. Conroy, 175 U. S. 323, 20 Sup. Ct. 85, 44 L. Ed. 181. As the petition and amended petition in this case show that the damages sued for were caused through the negligence of fellow servants of the deceased, and in no wise show any negligence attributable to the railway company, the Circuit Court properly sustain the demurrer to the said petitions, and dismissed the suit. The decision of the Circuit Court is affirmed. Appeal. BOYLE v. UNION PAC. R. Co. (Supreme Court of Utah, March 27, 1903.) [71 Pac. Rep. 988.] Cases appealed to the Supreme Court must be heard and decided on the record made in the trial court. Same-Bill of Exceptions-Amendment. Const. art. 8, § 9, provides that ar appeal shall be on the record made in the court below, under such regulations as may be provided by law. Rev. St. 1898, § 3286, requires the judge before whom a case has been tried to settle, sign, and certify to the bill of exceptions; section 3290 provides that where, for certain reasons, the bill of exceptions is not settled by the trial judge, it shall be settled and certified in such manner as the Supreme Court may direct; and Sup. Ct. Rule 25 provides that, where a trial judge is absent from the state, or refuses to settle a bill of exceptions, it may be settled by a justice of that court: held, that the Supreme Court cannot allow amendments to be made to a bill of exceptions after it has been signed, certified, and allowed by the trial judge. Nonsuit. Where the question of plaintiff's contributory negligence was not made a basis for the motion for a nonsuit in the trial court, it cannot be considered on appeal. Master's Duty to Furnish Safe Appliances.* A master owes his servant the duty of providing his machinery with the same kind of appliances, or appliances equally as safe, as those in general use by men of ordinary prudence who are engaged in the same kind of business. Same-Inspection—Repairs. It is not only a master's duty to his servant to provide his machinery with reasonably safe appliances, but it is also his duty to use ordinary care in looking after, inspecting, and keeping them in repair. Same. Where a railroad company transferred a car used for the shipment of supplies to hotels along the route from the passenger to the freight service, it was its duty to provide it with necessary appliances ordinarily used on cars in the freight service to enable the employees whose duties required them to pass from one car to another while the train was in motion to do so without unnecessary risk or danger. Injury to Conductor Contributory Negligence-Stepping on Defective Brake. While in the performance of his duty, a conductor of a freight train stepped on a brake in attempting to pass over a car, the brake being the only means of assistance to him, and was injured by reason of its being *See foot-note appended to Gustafson v. Seattle Traction Co. (Wash.), 3 R. R. R. 176, 26 Am. & Eng. R. Cas., N. S., 176. |