Appeal from the District Court of the United States for the Southern Division of the Southern District of California; Benjamin F. Bledsoe, Judge. Suit in equity by E. Thompson against Thomas W. Pack, Stella Schuler, and Joseph K. Hutchinson. From an order denying a motion to dissolve a preliminary injunction, defendants appeal. Affirmed. Charles W. Slack, and Joseph K. Hutchinson, both of San Francisco, Cal., for appellants. R. P. Henshall, H. L. Clayberg, John B. Clayberg, and Welles Whitmore, all of San Francisco, Cal., for appellee. Before GILBERT, ROSS, and MORROW, Circuit Judges. MORROW, Circuit Judge. In this suit the plaintiff prayed for and obtained an injunction pendente lite restraining and enjoining the defendants from in any manner taking any steps towards forfeiting the plaintiff's right, title, and interest in and to 44 certain placer mining claims, particularly set forth and described in the complaint as claims. Nos. 1 to 31, inclusive, 48 to 50, inclusive, 67, 70, 73, 86, 92, 113, 114, 130, and 218, situate upon Searles Borax Lake, San Bernardino county, Cal. All of such claims are included in the 175 claims involved in case No. 2535, 223 Fed. 635, 139 C. C. A. 181, one thereof (claim No. 70) is included in case No. 2536, 223 Fed. 641, 139 C. C. A. 187, all thereof are included in case No. 2537, 223 Fed. 645, 139 C. C. A. 191, all thereof are included in case No. 2538, 223 Fed. 638, 139 C. C. A. 184, and one thereof (claim No. 70) is included in case No. 2539, 223 Fed. 642, 139 C. C. A. 188. The complaint is based upon an alleged notice of forfeiture, dated September 14, 1914, and served by the defendants upon the plaintiff, wherein they claim to have expended the sum of $4,400 for assessment work upon the claims for the year 1912, and they demand payment by him to them of a contribution for such assessment work on the claims, alleged to amount to the sum of $550. After the granting of the injunction pendente lite, a motion was made by the defendants for an order vacating and dissolving the injunctive order. The motion was based upon affidavits of the defendants, in which some of the material allegations of the complaint were denied, but there was no denial as to the terms and conditions of the notice of forfeiture. The appeal in this case is from an order of the court below refusing to dissolve the injunction pendente lite. The allegations of the complaint are in all material respects similar to the allegations of the complaint filed in case No. 2537. For the reasons set forth in the opinion filed in that case (223 Fed. 645, 139 C. C. A. 191), we are of opinion that the injunction was properly granted. The decree of the court below is affirmed. (223 Fed. 645) PACK et al. v. THOMPSON. (Circuit Court of Appeals, Ninth Circuit. May 24, 1915.) No. 2537. MINES AND MINERALS 38-MINING CLAIMS-PROCEEDINGS TO FORFEIT INTEREST OF CO-OWNER-INJUNCTION. A preliminary injunction held properly granted to restrain forfeiture of the interest of a part owner of mining claims, under Rev. St. § 2324 (Comp. St. 1913, § 4620). [Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. §§ 872-113; Dec. Dig. 38.] Appeal from the District Court of the United States for the Southern Division of the Southern District of California; Benjamin F. Bledsoe, Judge. Suit in equity by E. Thompson against Thomas W. Pack, Stella Schuler, and Joseph K. Hutchinson. From an order denying a motion to dissolve a preliminary injunction, defendants appeal. Affirmed. Charles W. Slack and Joseph K. Hutchinson, both of San Francisco, Cal., for appellants. R. P. Henshall, H. L. Clayberg, John B. Clayberg, and Welles Whitmore, all of San Francisco, Cal., for appellee. Before GILBERT, ROSS, and MORROW, Circuit Judges. MORROW, Circuit Judge. In the present suit the plaintiff prayed for and obtained an injunction pendente lite restraining and enjoining the defendants from in any manner taking any steps towards forfeiting the plaintiff's right, title, and interest in and to 44 certain placer mining claims, particularly set forth and described in the complaint as claims Nos. 1 to 31, inclusive, 48 to 50, inclusive, 67, 70, 73, 86, 92, 93, 113, 114, 130, and 218, situate upon Searles Borax Lake, San Bernardino county, Cal. All of such claims are included in the 175 claims involved in case No. 2535, 223 Fed. 635, 139 C. C. A. 181, and one thereof (claim No. 70) is involved in case No. 2536, 223 Fed. 641, 139 C. C. A. 187. The complaint is based upon an alleged notice of forfeiture, dated September 14, 1914, and served by the defendants upon the plaintiff, wherein they claim to have expended the sum of $4,400 for assessment work upon the claims for the year 1912, and they demand the payment by the plaintiff to them of a contribution to the assessment work on the claims alleged to amount to the sum of $550. The allegations of the complaint are in all material respects similar to the allegations of the complaint in case No. 2536, 223 Fed. 641, 139 C. C. A. 187, just decided. For the reasons set forth in the opinion filed in that case, the decree of the court below is affirmed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (223 Fed. 689) BALTIMORE & O. R. CO. v. REED. (Circuit Court of Appeals, Sixth Circuit. June 17, 1915.) No. 2515. 1. LIMITATION OF ACTIONS 169-ACTIONS FOR INJURIES TO PASSENGERS APPLICABILITY OF STATUTE "CAUSE OF ACTION." Where a Maryland railroad company, operating a railroad from Chicago to New York, sold in Chicago a ticket for carriage from Chicago to New York, and the passenger boarded the train at Chicago, and was injured by derailment of the train in Indiana, the law of Indiana governing limitation of actions was applicable to an action by the passenger. brought in a state court in Ohio and transferred to the federal court, for a cause of action within Rev. St. Ohio 1890, § 4990, declaring that, where by the laws of the state where the cause of action arose the action is barred, it is also barred in Ohio, comes into being only when a right possessed by one has been infringed by another. [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. § 655; Dec. Dig. 169. For other definitions, see Words and Phrases, First and Second Series, Cause of Action.] 2. LIMITATION OF ACTIONS 31-ACTIONS FOR INJURIES TO PERSON. Burns' Ann. St. Ind. 1894, § 294, fixing two-year limitation for actions for injuries to person or character, covers causes of action involving injuries to the person, whether arising on contract or in tort, and includes an action for injuries to a passenger, whether recovery is sought on contract or in tort. [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. § 142; Dec. Dig. 31.] 3. EVIDENCE 29-JUDICIAL NOTICE-LAWS OF STATES. The United States Circuit Court of Appeals takes judicial notice of the laws of a state. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 36, 37, 39, 4346, 48; Dec. Dig. 29.] 4. EVIDENCE 5 JUDICIAL NOTICE-FACTS OF COMMON KNowledge. The United States Circuit Court of Appeals takes judicial notice of the character and importance of the Baltimore & Ohio Railroad Company, and of the fact that it is a common carrier, and will presume that it does business in Indiana. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 4; Dec. Dig. ~5.] 5. CARRIERS 312-INJURIES TO PASSENGERS-RIGHT OF ACTION-JURISDICTION. Under Burns' Ann. St. Ind. 1894, §§ 312, 315, 318, authorizing an ac tion against a railroad company for injury to a person on its railroad, may be brought in any county into which the railroad passes, and summons served in any county, and providing that actions may be brought against a foreign corporation in any county within the state where any property, money, credits, or effects belonging to it may be found, and providing for the service of summons in actions against a foreign corporation, a passenger of a Maryland corporation, sustaining an injury by the derailment of the train of the corporation in Indiana, while running between Chicago and New York, may sue the corporation in Indiana. [Ed. Note. For other cases, see Carriers, Dec. Dig. 312.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 6. LIMITATION OF ACTIONS 88-STATUTORY PROVISIONS-NONRESIDENCE. A Maryland corporation, operating a road between Chicago and New York, through Indiana, and doing business in Indiana, is not a nonresident of Indiana, within Burns' Ann. St. 1894, § 298, providing that the period of absence shall not be computed in any of the periods of limitations. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 463; Dec. Dig. 88.] In Error to the District Court of the United States for the Western Division of the Southern District of Ohio; Howard C. Hollister, Judge. Action by Lillie W. Reed against the Baltimore & Ohio Railroad Company. There was a judgment for plaintiff, and defendant brings error. Reversed, and new trial awarded. Judson Harmon, of Cincinnati, Ohio, for plaintiff in error. C. W. Baker, of Cincinnati, Ohio, for defendant in error. Before KNAPPEN and DENISON, Circuit Judges, and KILLITS, District Judge. KILLITS, District Judge. August 6, 1901, at the office of the plaintiff in error in Chicago, the husband of the defendant in error purchased tickets for himself, wife, and daughter over the railroad of plaintiff in error from Chicago to New York. Immediately thereafter the family boarded the train in Chicago, and on the afternoon of the same day, within the confines of the state of Indiana, the train was derailed, and defendant in error as a consequence received personal injuries. The amended petition averred the railroad company to be a corporation organized in and having its main offices in the state of Maryland, and operating a line of railroad from Chicago, through the states of Illinois, Indiana, Ohio, West Virginia, and Maryland, to Baltimore, and thence to New York. June 8, 1905, an action was brought by defendant in error in the superior court of Cincinnati to recover her damages by reason of the injury in question. The case subsequently was removed to the Circuit Court of the United States for the Southern District of Ohio. To the amended petition the defendant below set up three defenses; the second, the only one of consequence for the purposes of this decision, being a plea of the statute of limitations in Indiana. The reply denied application of the Indiana statute to the cause of action set out in plaintiff's petition. Trial being had, defendant in error recovered a judgment. On the overruling of the motions of defendant below for judgment non obstante veredicto and in arrest of judgment and for a new trial, error was prosecuted. At the time of the commencement of the action, section 4990, Revised Statutes of Ohio (now, with some amendments, section 11234, General Code), read: "If, by the laws of the state or country where the cause of action arose, the action is barred, it is also barred in this state." For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 139 C.C.A 13 At the same time, and also when the accident occurred, section 294,1 Burns' Annotated Statutes of Indiana read as follows: "The following actions shall be commenced within the periods herein prescribed, after the cause of action has accrued, and not afterward: First, For injuries to person or character, and for a forfeiture or penalty given by statute, within two years. [1] In our judgment, the proper action of this court turns upon a consideration of the effect of this statute of limitations; wherefore it will be unnecessary to pass upon other assignments of error. We encounter little difficulty in determining that the law of Indiana respecting limitations of actions controls this case, whether we consider the present case one ex contractu or ex delicto. The fact that the contract of transportation, if defendant in error may be said to have made one, was entered upon in Illinois, does not affect the situation, although counsel for defendant in error argues earnestly for the applicability of the law of Illinois. In our judgment, the cause of action, as that term is used in the Ohio statute quoted above, arose and accrued in Indiana. We offer no original definition for the term in suggesting that a cause of action comes into being only when a right enjoyed by one has been infringed by another, and not at the time when merely a right was secured to require performance of a duty from the obligor to the obligee. In the case at bar, assuming that Mrs. Reed enjoyed contractual relations with the railroad company, the obligation of the company to her was transitory through the several states over which her ticket read. No cause of action could arise until the obligation was dishonored, for essential to it was the concurrence of the obligation and a breach thereof which resulted in the obligee's damage. This is undoubtedly the sense in which the term is used in the Ohio statute. Clark v. Eddy, 10 Ohio Dec. 539, 544; Railroad Company v. Larwill, 83 Ohio St. 108, 115, 93 N. E. 619, 34 L. R. A. (N. S.) 1195. The elements of a judicial action, according to Pomeroy's Remedies, § 453, are: "A primary right possessed by the plaintiff and a corresponding primary duty devolving upon the defendant; a delict or wrong done by the defendant which consisted in a breach of such primary right and duty; a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant springing from this delict, and finally the remedy or relief itself. Every ac tion, however complicated or however simple, must contain these essential elements. Of these elements, the primary right and duty and the delict or wrong combined constitute the cause of action in the legal sense of the term, and as it is used in the codes of the several states. They are the legal cause or foundation whence the right of action springs. The cause of action, as it appears in the complaint, when properly pleaded, will therefore always be the foundation from which the plaintiff's primary right and the defendant's corresponding primary duty have arisen, together with the facts which constitute the defendant's delict or act of wrong." See, also, Veeder v. Baker, 83 N. Y. 156, 160; Post v. Campau, 42 Mich. 90, 3 N. W. 272; Bradford v. Southern Railway Company, 195 U. S. 243, 248, 25 Sup. Ct. 55, 49 L. Ed. 178. 1 Section numbers, Burns' Statutes, wherever used in this opinion, are those used in the Revision of 1894, in force in 1901. |