171 P. 202 | Or. | 1918
On the appeal of the defendant there are three questions to be treated: 1. Whether and to what extent the question of interstate commerce is involved in this case; 2. The correctness of the Circuit Court’s instruction to the jury to the effect that if they found for the plaintiff they should allow interest from May 27, 1906, to the date of the verdict; and 3. Whether the stockholders of the original plaintiff corporation have been properly substituted therefor so as to maintain this action.
• So far as the first question is concerned it is embodied in the defendant’s assignments of error numbered 3, 4 and 5. Under the third assignment it con
“The jury is instructed that eliminating the four local shipments to which your attention has been directed, the bills of lading issued by the defendant for all shipments prior to the 5th of May, 1905, were contracts for interstate transportation, and that under the provisions of the act of Congress approved February 4, 1887, and the acts amendatory thereof, and the decisions of the federal courts defining the meaning of these acts, plaintiffs cannot recover for any freight paid to the defendant for the transportation called for in said bills of lading.”
The fourth and fifth assignments predicate error upon the court’s refusal to give instructions 21 and 22 requested by the defendant and here set down as follows:
21. “The plaintiff Robert Service has testified that the bulk of the contents of 800 of the cars which came down over the line of the defendant from Deer Creek Spur to Baker was transferred on arrival at Baker to broad-gauge cars in which the lumber left the state of Oregon for shipment to consignees from whom the Service & Wright Lumber Company had received orders. I instruct you that the carriage of the shipments of lumber referred to in the foregoing testimony was interstate commerce, and that under the provisions of the act of Congress approved February 4, 1887, and the acts amendatory thereof and the decisions of the federal courts defining the meaning of the said acts of Congress plaintiffs cannot recover for any freight which may have been paid on any of the said 800 cars.”
22. “The plaintiff Robert Service has testified that the bulk of the contents‘of 800 of the cars which came down over the line of the defendant from Deer Creek Spur to Baker was transferred on arrival at Baker to broad-gauge cars in which the lumber left the state of Oregon for shipment to consignees from whom the*559 Service & Wright Lumber Company had received orders. I instruct you that under this evidence the bulk of the contents of the 800 Sumpter Valley cars referred to which were transferred to the broad-gauge cars and went out of the state of Oregon were carried in interstate commerce, and that plaintiffs cannot recover in this ease for any freight which the Service & Wright Lumber Company may have paid for the carriage from Deer Creek Spur to Baker of the bulk of the said 800 cars so transferred. I instruct you that the provisions of the act of Congress of date February 4, 1887, regulating interstate commerce and the acts amendatory thereof and the decisions of the federal courts defining the meaning of these statutes preclude the recovery by plaintiff of any freight so paid by the Service & Wright Lumber Company.”
At all the times mentioned in this litigation the defendant owned and operated a railway from Baker, in Baker County, Oregon, to a terminus west of that town, all within the State of Oregon. The shipments in question were made from what is known as Deer Creek Spur to Baker. It is conceded that four carloads of lumber never went beyond the latter point, but were disposed of to the local trade there. Some evidence is in the record also to the effect that at least the bulk of the contents of 800 of the defendant’s ears was immediately shipped out of the state by another railroad passing through Baker; and that when the cars of the defendant arrived there laden with the lumber of the Service & Wright Lumber Company the agents of that corporation took charge of the lumber and loaded it upon cars procured by it from the other railroad company upon which it was shipped out of the state. Mr. Robert Service, the principal witness for the plaintiff, testified to the effect that in every instance when any of the lumber in question arrived at Baker in the defendant’s cars it was set or spotted on the track where
“Baker City, Oregon, April 24, 1905. “Service & Wright Lumber Co.
“Baker City, Oregon.
“Gentlemen:
‘ ‘ Replying to yours of the 20th inst.: The transfer of lumber from our cars to standard gauge cars, and the selection of those standard gauge cars for such transfer purposes, has been entirely with yourselves for a long time past. You have made your shipments from mill on Deer Creek to Baker on our cars. At Baker you have made requisition upon Ó. R. & N. Co. for such standard gauge cars as you saw fit, and when such cars were designated to us by O. R. & N. Co. yardmaster, we have spotted them convenient to your lumber, on our cars, for transfer. When the transfer was made by you, we were notified and the standard gauge car loaded was and has been set over on O. R. & N. Co. tracks by our switch crew. We have assumed no responsibility whatever for the lumber in any manner, except to move it over to O. R. & N. tracks when notified by you to do so, after its arrival at Baker.
“We are under no obligations to transfer lumber, or any other shipment, as a matter of fact, from our tracks to O. R. & N. Co. or vice versa. We agree to responsibility for its arrival at Baker station, but our responsibility then ceases. We have no contract with the O. R. & N. Co. by which we can demand any certain kind or number of cars, or at any particular time or day. We cannot, and will not, agree to assume any responsibility for lumber shipments transferred from*561 our ears to standard gauge cars, or for losses or damages arising from overweight, underweights, less than minimum charge shipments; or from any cause whatever, from the time such shipments are received by us at Baker and expense bills or freight charges made out. If you make a shipment of lumber of such lengths, sizes and quantities that it is next to impossible to transfer to a standard gauge car, unless such ear is of a size that calls for a minimum weight over and above the actual weight of lumber, — that will be your loss — if any such there be, and not ours.
“We will not agree to, or be responsible for, securing from O. R. & N. Co. any particular kind or class of car, small or large, box, flat or stock, for transfer purposes for any particular lumber shipment, to go forward at any particular time or date, or to contain any certain quantity in weight or measurement of lumber; but will use, handle and place in position for transfer purposes such cars, and only such cars as may be designated and set off on joint tracks for our use by 0. R. & N. Co. yardmaster. In short, we do not propose to assume any risk or liability for matters which we cannot control or direct. The securing or providing of standard gauge cars of any particular kind for transfer purposes is one of the matters we cannot control or direct.
“It is my understanding that for some time past you have made direct demand of 0. R. & N. Co. for such cars you have needed from time to time, it being agreed and understood that you should do so, in order that we could not properly be accused of not assigning to'you an equitable number and kind of cars, that were turned over to us by 0. R. & N. Co. I supposed that matters were working along smoothly, and that all causes — supposed or real — for dissatisfaction removed.
“We positively refuse to make any change to present arrangements that will, or may, bring a liability to us, for loss or damage resulting from any act done or performed by any person, our employee or other*562 wise, during the act of transfer from our cars to standard gauge and delivery of same to O. R. & N. Co.
“Yours truly,
“Sumpter Valley Railway Co.
“Per Joseph Barton, C. P. & F. A.”
Another letter from general counsel for the defendant to a member of the interstate commerce commission was also put in evidence over defendant’s objection. This letter appears at large in 67 Or., p.80 (135 Pac., p. 545), reporting the first opinion in'this case, and need not be here repeated. It is sufficient to say of it that it constitutes a strict disclaimer on the part of the defendant that it was engaged in or concerned with interstate commerce so as to be subject to the jurisdiction of the interstate commerce commission.
Of the bills of lading alluded to in the first quoted instruction requested by the defendant it is enough to say that they all required lumber to be transported from Deer Creek Spur, Oregon, to Baker City, Oregon. They were all signed by the defendant as the carrier and by the plaintiff as the shipper. The printed conditions in all of them were substantially identical. On one form, under the head of “Consignee, Marks and Destination,” was inserted the name and address of a consignee .outside of the State of Oregon. On a second under the same head was put in the name of the original plaintiff corporation with its address at Baker City, Oregon, and under the description of the article shipped was a notation, “Adams-Pilgerrin Co. Ship to Shoshone, Ida., Destination, Twin Falls, Ida.” On the third no name appeared under the head noted, but with the description of the article were these words, “Chicago Lumber & Coal Co., Oakley, Kansas.”
The decision in Atchison, T. & S. F. Ry. v. Harold, 241 U. S. 371 (60 L. Ed. 1050, 36 Sup. Ct. Rep. 665), was rendered June 5, 1916. The casé involved a carload shipment of corn from Tanka, Nebraska, to Topeka, Kansas, in care of the plaintiff. An interstate bill'of lading was issued. While the corn was in tran
“The principle enunciated in the cases was that it is the essential character of the commerce, not the accident of local or through bills of lading which determines federal or state control over it; and it takes character as interstate or foreign commerce when it is actually started in the course of transportation to another state or to a foreign country. The facts of the case at bar bring it within the ruling.”
The court sitting in equity assumed, as it had the right, to decide the fact and held that it was not concluded as a matter of law by the terms of the bills of lading in determining whether it was interstate or intrastate commerce. In 1913 the Texas & N. O. R. Co. v. Sabine Tram. Co., 227 U. S. 111 (57 L. Ed. 442, 33 Sup. Ct. Rep. 229), was decided. That also was a trial by the court. The lumber was shipped from Ruliff to Beaumont by one railroad and thence by another to Sabine on intrastate bills of lading. On arrival at Sabine, by direction of the firm that had bought the lumber en route by paying draft with bills of lading attached, the loaded cars were at once run on about one quarter of a mile beyond the railroad station to a dock where the lumber was unloaded within reach of ship’s tackle by which it was taken aboard as cargo for foreign export. The court considered the usual course of business connected with such shipment, and the fact that the parties took advantage of the longer free time allowed for moving foreign exports from cars to ships over that for handling domestic freight. It was held that the facts that the bills of lading-were wholly intrastate and the railroad transportation entirely within the State of Texas were not controlling
“In determining whether commerce is interstate or intrastate, regard must be had to its essential character. Mere billing, or the place at which the title passes, is not determinative. ’ ’
What is known as the “lake cargo” coal case, Railroad Commission v. Worthington, 225 U. S. 101 (56 L. Ed. 1004, 32 Sup. Ct. Rep. 653), decided in 1912, was where the railroad commission of Ohio undertook to fix railroad rates for transportation of coal from interior points in that state to coal-bunkers at Huron, Ohio, to be transported by steamers to other states as required. The court said:
“The question is, then, one of fact. * * It is true that the shipper transports the coal ordinarily upon bills of lading to himself, or to another for himself at Huron on Lake Erie. The so-called Take cargo coal’ is necessarily shipped beyond Huron. If it stops there another and higher rate applies.”
The court then considered the circumstances of a lower rate applied to the transportation, including the loading on the steamers and trimming the cargo, whenever the coal went out of the state. The court disregarded as not conclusive the fact that the coal was billed only to Huron and distinguished Gulf, C. & S. F. R. Co. v. Texas, 204 U. S. 403 (51 L. Ed. 540, 27 Sup. Ct. Rep. 360), involving a shipment of com between two points in Texas where the court held that the interstate transportation from another state had been completed under a contract to deliver the corn at Texarkana, Texas, and that when sold there the buyer’s shipment of it to G-oldthwaite, Texas, constituted a new, independent intrastate shipment. Texas & Pac. Ry. v. Langbelm (Tex. Civ.), 158 S. W. 244, decided in
‘1 There is no merit in the contention that it was an intrastate shipment. The fact that the appellant (common carrier) only obligated itself to transport the animals to San Antonio does not affect the interstate character of the shipment. It was clearly interstate in its nature. ’ ’
In 1911 was decided Southern Pac. Terminal Co. v. Interstate Commerce Comm., 219 U. S. 498 (55 L. Ed. 310, 31 Sup. Ct. Rep. 279). The Terminal Company had some docks at Galveston forming a connecting link in transportation of freight from interior Texas points to the seaboard and thence by ship to other states and countries. It did not charge defendant Young the same dockage rates as it did others in handling oil cake and meal, but leased to him one of the piers at such an annual rental that he was enabled to make a profit of 30 or 40 cents per ton of such produce over the average gain of his competitors in such transaction. In a suit by the interstate commerce commission to enjoin operations under the lease as discriminative on the part of the Terminal Company it was urged that the transportation was not interstate commerce and that the commission therefore had no authority in the matter because, among other reasons, the oil cake was hauled to the Galveston docks on intrastate waybills only, there unloaded, ground into meal and sacked for water carriage. The court considered all the circumstances affecting the business, including the fact that the premises on which the docks were located had been dedicated substantially for the
“In order to determine this question it is important and necessary to ascertain: 1. What was the motive or intention of the shipper? 2. And what was the object and purpose to which the shipment was devoted? These two tests necessarily determine the nature of the shipment as being interstate or intrastate and they were had in mind in each of the foregoing cases wherein the court passed upon that question.”
It is hornbook law that intent and purpose are always questions of fact. In 1916 was decided Alabama Great So. Ry. v. McFadden, 232 Fed. 1000. The case was decided on a rule for judgment for want of sufficient affidavit of defense. The facts were admitted, in substance, that loose cotton was bought by the defendants at various points in Alabama and shipped on local bills of lading to Birmingham, Alabama, for compression, when it was shipped on new bills of lading to New Orleans. The through rate allowed from Albertville, the origin of the shipment, to New Orleans
We recall the testimony in the case at bar to the effect that when the lumber arrived at Baker the original plaintiff corporation took physical custody of it and had complete control of it. The clear effect of the opinion in the case last cited is to make snch evidence sufficient to take to the jury the question of fact involved in determining whether the transaction was one of interstate commerce. In 1891 was decided Cutting v. Florida Ry. & Nav. Co., 46 Fed. 641. This was a suit in equity where the interveners besought the court to direct its receiver of an insolvent railroad company to return the excess of what he had charged over the rate fixed by the state railroad commission
“So long as the railway and steamer are each operated under a separate and distinct control, making its own rates, and only liable for the carriage and safe*572 delivery of the goods at the end of its own route, the act does not apply to the transaction. To make these carriers subject to the act, the railway and vessel must, as therein provided, be operated or used under a ‘ common control’ — a control to which each alike is subject and by which rates are prescribed and bills of lading given for the carriage of goods over both routes as one.”
About ten years later was handed down an opinion in United States v. Colorado & N. W. Ry. Co., 157 Fed. 321 (85 C. C. A. 27, 13 Ann. Cas. 893, 15 L. R. A. (N. S.) 167). It was a case to recover a penalty for violation of the federal- safety appliance act. Judge Sanborn points out that the construction of the interstate commerce act does not affect the construction to be given to the safety appliance law. He indicates two classes of carriers operating within a single state and engaged in transporting articles of interstate commerce :
a. “Those who conducted that transportation with another or other carriers under a common control, management or arrangement for a continuous carriage or shipment; b. Those who conducted such transportation alone, or with other carriers without any common control, management or arrangement for such a carriage or shipment. ’ ’
He then shows that the interstate commerce law applies only to the first class, while the other act includes both; that the two enactments are not in pari materia because the first relates to contracts and rates of transportation while the second has reference to the construction of the cars and engines employed to carry interstate commerce in any form. The evils attacked in the former were favoritism and discrimination in contracts for carriage while those in the latter were injuries to employees on account of defective car
“From the facts it is clear that the complainant intended these as strictly local shipments and no evidence was offered by defendant to controvert this contention. It is true that complainant was unable to say positively whether or not these particular cars of coal had been sold by it prior to the time they reached Kansas City, but it is a fact that no orders were given to the defendant to carry the coal to any other points until after it had actually reached Kansas City. * * The billing of both shipments here concerned was to Kansas City. # * They might have been held there, the cars unloaded and the coal sold at Kansas City.”
As a question of fact the commission found that the transportation was composed of two local shipments and applied the local rates instead of the established joint one. In In re Through Routes and Through Rates, 12 I. C. C. Rep. 163, a section of the syllabus reads thus:
“Existence of a through route is to be determined by the incidents and circumstances of the shipment, such as the billing, the transfer from one carrier to another, the collection and division of transportation charges, or the use of a proportional rate to or from junction points or basing points. These incidents named are not to be regarded as exclusive of others which may tend to establish a carrier’s course of business with respect to through shipments.”
Morgan v. Missouri, K. & T. Ry. Co., 12 I. C. C. Rep. 525, was decided in 1907. Owing to local competition
“There seems to be no doubt as to the right of the shipper to consign a shipment to a given point, pay charges upon it, assume custody and take possession of the property and later reship it to another point under rates lawfully applicable to such reshipment. A carrier or carrier’s agent may not, however, act as forwarding or reconsigning agent for a shipper for the purpose of evading or defeating the terms or purposes of the law or in such manner as to defeat or evade the intent of the law. To do that would be to resort to one of the devices prohibited in the act.”
The doctrine to be drawn from all these decisions is that a bill of lading is not conclusive of the character of the shipment; yet the instruction requested and specified in the third assignment of error would require the trial judge to say as a matter of law, based alone upon the bill of lading in question, that the transaction was one of interstate commerce so as to oust the state court of jurisdiction. If such a document is inconclusive in one case it is inconclusive in others. The clear reason of the cases cited is to the effect that
“Unless evidence is by law conclusive upon the parties, it would be error for the trial court to select a single fact or part of the evidence where there was a conflict, and instruct the jury that they must find their verdict on that fact alone, and in a particular way. Such an instruction would be an invasion of the rights of the jury. ’ ’
In cases like the present it is permissible for the court to state to the jury a hypothetical case covering the entire contention of each party and to declare to the jury that if they find such to be the fact the law will be as directed by the court. If the testimony is indisputably all one way the court can direct a verdict according to the admitted facts; but where there is any material dispute about the facts or where reasonable men legitimately may draw different conclusions from a given state of facts, the decision of the ultimate question in dispute in a jury case must be left to the jurors. There was no error in refusing the instructions alluded to in the third, fourth and fifth assignments of error because they each invaded the province of the jury.
So far as the allegations thereof are concerned the cause was tried the third time in the Circuit Court on the same complaint used in the first trial. The only indication of actual substitution there is that in some places afterwards the names of Robert Service, Mrs. Robert Service and Peter Service were put into the title of the cause. There is an utter absence of averment connecting any of these individuals with the original plaintiff corporation or with the matters alleged in the complaint. It becomes necessary to inquire: 1. As to the effect and extent of the order of this court allowing a substitution of parties plaintiff; and 2. Whether substitution was actually accomplished in the Circuit Court. This is an action at law, the final determination of which is embodied in a judgment. This court has no original jurisdiction in such cases. The cause is not tried here de novo• as in suits in equity. In actions at law of this sort the Supreme Court exists only to review the decisions of the Circuit Court on questions of law appearing in the transcript: Section 556, L. O. L. This, of course, is subject to the terms of Article VII, Section 3, of our Constitution authorizing this court on appeal to direct judgment in certain cases in like manner and with like effect as decrees are entered in equity cases; but hitherto the court has not exercised that prerogative herein.
Remembering that the cause was originally prosecuted to final judgment in the Circuit Court and the appeal perfected eight days before the expiration of
“No action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death, marriage, or other disability of a party, the court may, at any time withiu one year thereafter, on motion, allow the action to be continued by or against his personal representatives or successors in interest.”
This statutory rule is applicable in the following manner to the transactions already had in this court as to a change of parties-: An appeal is a proceeding-distinct and separate from the original judgment: Shirley v. Burch, 16 Or. 1 (18 Pac. 344). It can be determined only in the appellate court. The cause of action on appeal is the right to have the determination of the Circuit Court reversed or modified; Jameson v. Bartlett, 63 Neb. 638 (88 N. W. 860). The proceeding to enforce this cause of action, as distinguished from the one in the complaint, was ripe for the consideration and determination of this court when the appeal was perfected on April 29,1912, eight days before the lapse of the original corporate plaintiff. Having thus acquired jurisdiction over the parties and the subject matter of the new action, conventionally denominated
It is clear that the order of this court allowing substitution was applicable only to the proceedings before
That Section 38, L. O. L., relates to corporations is at least the law of this case, but even then this court will apply its provisions only to the extent of its own jurisdiction for the preservation of the cause of action before it which is none other than the right to review the decision of the Circuit Court; and will not invade the original jurisdiction of that court on a question which has never been presented to it. Even in Long v. Thompson, 34 Or. 359 (56 Pac. 978), this court did not pretend to change parties except for the purposes of the appeal nor to impose its order upon the Circuit Court so as to bar that tribunal from deciding by jury trial the facts upon which substitution must be granted if allowed. If substitution is made regularly in the Circuit Court where original jurisdiction exists it is binding upon this court; but the reverse is not true. The reason is that under our system the Supreme Court is one of special and limited authority. This power to admit new parties to an action is confined to and is exercised only for the purpose of the proceeding
As stated, no change whatever was made in the averments of the complaint upon which the first trial was had. It is taught in White v. Johnson, 27 Or. 282, 292 (40 Pac. 511, 50 Am. St. Rep. 726), that:
“The procedure for bringing in new parties after the court has made the order to that effect appears to be to amend the complaint by inserting therein such allegations as are necessary to make the persons omitted parties to the action, and to insert their names in the summons; and if they do not enter an appearance, to serve them with the amended summons and complaint, giving them the usual time allowed by statute to original parties in which to answer: Fitnam’s Trial Procedure, § 351; Penfield v. Wheeler, 27 Minn. 358 (7 N. W. 364).”
“If no objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action.”
It has been held many times that these excepted grounds of demurrer may be urged the first time in the Supreme Court and that failure to count upon them in the assignments of error does not conclude the appealing party. Moreover, it is an error apparent upon the face of the record and involves a decision upon a point of law made wholly upon matters in writing and on file in the court. Hence, the question is before us despite the criticism made of the motion for a nonsuit which did not specify the grounds upon which it was urged. Neither is the objection properly classified as one going to the legal capacity of the plaintiffs to sue. It is true that if it is manifest upon the face of the complaint that the plaintiff has not legal capacity to sue it is ground of demurrer under Section 68, L. 0. L., and one which is waived if it so appear and the defendant answers without raising that objection. That rule applies to cases where it appears by the first pleading that the moving party himsélf would have a cause of action except for some disability apparent in his initiatory statement, such as minority, insanity or the like. To be a good eomplaint, immune from the effects of a general demurrer, the plaintiff must show in himself legal connection with the matter involved in litigation and a right in himself to recover the amount demanded.
In brief, on this branch of tbe case, tbe effect of tbe substitution of parties in this court ended with tbe reversal of tbe judgment of tbe Circuit Court. If anyone claiming under tbe original plaintiff would have continued tbe litigation it was his duty to apply to tbe Circuit Court to be substituted. Having obtained tbe necessary permission there, it could be enjoyed and made available only by appropriate averments amending tbe complaint, in default of which no judgment could be rendered against tbe defendant in favor of tbe plaintiffs any more than A could recover upon a promissory note given to B by C without alleging indorsement to himself. It is true that, as appears by tbe abstract, tbe Circuit Court on December 9, 1916, entered an ex parte order “that Robert Service, Mrs. Robert Service and Peter Service be, and they hereby are substituted in this court as parties plaintiff in said cause.” Tbe language of Section 38, L. O. L., is that “tbe court may * * allow tbe action to be continued by or against bis personal representatives or successors in interest.” Tbe order of the Circuit Court, therefore, amounted to no more than permission to tbe applicants to proceed in their own right, which might have been denied; but it did not, nor could it, dispense with tbe necessity of their stating a cause of action in themselves. In other words, although allowed to make substitution they did not accept tbe permission in tbe only way it could be made available. We have thus a situation where substitution has not been effected in tbe Circuit Court which alone has original jurisdiction to determine tbe case on its merits. To all intents and purposes tbe prosecution
“Where the charter of a corporation expires during the pendency of a suit the suit must abate whether the company be plaintiff or defendant”: Rider v. Nelson etc. Union Factory, 7 Leigh (Va.), 154 (30 Am. Dec. 495).
In Greenbrier County v. Livesay, 6 W. Va. 44, Live-say and others sued to compel the board of supervisors of Greenbrier County to admit them to seats in that body. Pending an appeal by the supervisors the board was abolished by constitutional provision and the Supreme Court abated the suit. In La Pointe v. O’Malley, 471 Wis. 332 (2 N. W. 632), the plaintiff town was abolished by the county authorities before it appealed. The Supreme Court held that the appeal by it must be dismissed as its action had abated. In Venable Bros v. Southern Granite Co., 135 Ga. 508 (69 S. E. 822, 32 L. R. A. (N. S.) 446), after the expiration of the charter the litigation was carried on by two men who owned all the stock. On hearing in the lower court of the report of the referee counsel for the corporation suggested its lapse and the court abated the action. In May v. State Bank, 2 Rob. (Va.) 56 (40 Am. Dec. 726), the charter of the defendant expired pending an action prosecuted by it, but judgment was rendered in its favor after appeal although the decision was the other way in the trial court before the charter lapsed. An execution was issued on the judgment rendered in that court in obedience to the reversal, but after the expiration of
“At law an action abated by the death of a sole defendant ceases for all purposes, is entirely dead and*591 cannot be revived.” See, also, Dundee Mortgage & Trust Inv. Co. v. Hughes, 77 Fed. 855, 856.
Passing all this, however, the utmost effect to be given to the former remand for a new trial, the result reached in the opinion of Mr. Justice Bean rendered June 20, 1916, was thereby to allow the stockholders to make a case in the Circuit Court if they could. As we have shown, this involved their application there for leave to be substituted, coupled with an amended complaint stating a cause of action on their behalf. Granting that the reversal set forward the demise of the original corporate plaintiff to that date and made Section 38, L. O. L., again applicable, it also again put into operation the one year limit of that section within which the would-be plaintiffs should have had themselves substituted below. Though warned of this element of the litigation by the law and the constant attitude of the defendant, yet to this day so far as the record shows they have taken no measure to avail themselves of the opportunity afforded them tó present to the trial court their own ease in lieu of that of the corporation under which they claim. Persistently the contest has been waged on the old complaint which states nothing to the direct advantage of the individual stockholders. By failing to put in an amended pleading showing in themselves a right to recover, they .have utterly neglected to prepare for the new trial awarded by the opinion of Mr. Justice Bean. Meanwhile, under the construction most favorable for them, the year since
In dismissing this branch of the case it will be noted that consideration has been given only to the right to continue the prosecution of this particular action and not to the question of whether a cause of action or suit exists in favor of the stockholders or is barred by lapse of time. As to those possible features, we make no intimation.
On the appeal of the plaintiffs they rely upon certain questions about admission of testimony affecting the basis upon which reasonableness of rates is to be determined and instructions on the same questions. For the purposes of this opinion it is sufficient to say that those matters are sufficiently considered in the original opinion: 67 Or. 63 (135 Pac. 539). The conclusion of the whole matter is that the judgment of the Circuit Court is reversed without the usual privilege of a remand for further proceedings.
Reversed. Rehearing Denied.