
    Root vs. The Great Western Railway Company.
    In view of the difficulties under the modern system of transporting goods by connecting lines of railroads <fcc., in the way of shippers seeking redress in case of injury or loss, it is necessary that the courts should so modify the rules of evidence as to render redress possible, while the. defendant is not exposed to be charged when liability is not established with reasonable certainty. Per Müllin, P. J.
    Proof of the course of business adopted by connecting lines of railway should be received as competent evidence, on the question of the receipt or delivery of property by the one to the other.
    If books are kept by the agents of a company, in which are entered the receipt and delivery of property by such company, such books, when shown to belong to the company—of which the use by the agent, in the company’s business, is prima facie evidence—are also competent evidence, prima facie, of the entries therein; and it is not necessary to prove that the entry is in the handwriting of any agent or servant of the company, provided it be made to appear that the entries have been made in the same handwriting for such a length of time as to satisfy a jury that the person making the entries was a recognized agent of the company, and as such authorized to make such entries.
    C., the agent of the plaintiff, delivered to the agent of the New York Central Bailroad Company at Victor, N. Y., a box of tools belonging to the plaintiff, directed to him at B., Mich., to be carried by said company to Suspension Bridge, and from there to be forwarded, by connecting roads, to B. The box was never delivered to the plaintiff. In an action against thq defendant, whose road connected with the New York Central, at Suspension Bridge, to recover the value, it appeared on the trial that B. was situated on the line of the Michigan Southern and Northern Indiana Bailroad Company, which joined the defendant’s road at Detroit. A booh kept by P., one of the defendant’s freight agents at Detroit was produced, containing this entry: “Car 303, April 21st, 1866. Noah Root, Burr Oak, B. county, Mich. One box of goods.” P. had charge of the delivery of freight from the defendant’s road to the Michigan Southern and Northern Indiana Railroad Company. The witness who identified the book could not swear that the entries therein were in the handwriting of P., but to the best of his knowledge they were. A clerk and cashier in the office of the Michigan Southern and Northern Indiana Railroad Company at Detroit testified that it was his duty to receive and disburse moneys, and to see to freight matters; that he had general charge of the freight books, but knew nothing of the box in question; that the bill ought to have come into his hands, if the box was delivered to his company, and it did not; that the defendant made charges for back freight on this box, against his company, which it had refused to pay, because it had not received the box.
    
      Held, 1. That the book was properly received in evidence; and if the entries therein were competent testimony, the receipt of the property by the defendant was satisfactorily established.
    2. That if the property was received at Detroit, it must have been taken by the New York Central Railroad Company from Victor to Suspension Bridge and there delivered to the defendant.
    3. That the defendant having received it, it devolved upon the defendant to show its delivery to the Michigan Southern and Northern Indiana Railroad Company; and that having failed to do so, it must be held liable for its value.
    
      Held, also, that the defendant, although a foreign corporation, having appeared and answered, it was not necessary for the plaintiff to prove its incorporation.
    And that if the plaintiff was obliged to prove the defendant’s incorporation, the laws of Canada were sufficient for that purpose.
    
      Held, further, that the plaintiff must be deemed to be a resident of B., Mich., and the cause of action the breach of the contract to carry and deliver to the Michigan Southern and Northern Indiana Railroad Company, which breach, it was to be implied from the course of business between the connecting roads, occurred either in Canada or Detroit. And that in this condition of things the action could not be brought in this State, (Code, § 42Y,) but as no question was made on the trial, that the plaintiff was a non-resident, a judgment in his favor was affirmed.
    The non-residence of the plaintiff, in an action against a foreign corporation, is matter in abatement merely, and is waived by appearing and pleading in bar.
    IN April, 1866, the plaintiff resided at Burr Oak, in Michigan, and was owner of a box of tools, which he left at Victor in Ontario county, in the charge of one Culver. On the 14th of that month, Culver, by the direction of the plaintiff, delivered to the agent of the New York Central Railroad Company at Victor said box of tools, directed to the plaintiff at his residence in Michigan, to be carried by said company to Suspension Bridge, and from there to be forwarded by connecting roads to the plaintiff. Culver took a receipt for the box from the agent of the Central railroad company, in which the company agreed to carry the box to the Suspension Bridge and be ready there to deliver it to the party entitled to the same. And it was expressly provided that said company should not be liable for any injury to, or loss or detention of, said property by any other company after the same was loaded and shipped or sent from the company’s warehouse at Suspension Bridge. This receipt was sent to the plaintiff.
    The Central railroad company’s agent at Victor testified that the box was not left at that place ; that is to say, it was left by Culver, and was thereafter taken away by some person other than Culver. The next that is heard of the property is from an entry in a book kept by one of the defendant’s freight agents at Detroit, in which is entered goods delivered by the defendant to the Michigan Southern and Northern Indiana Railroad Company, whose road runs to Burr Oak, where said box was to be left. In that book was the following entry : “ Car 303, April 21st, 1866. Noah Root, Burr Oak, Branch county, Michigan. One box of goods.” The book containing this entry was kept by one Peters, who had charge of the delivery of freight from the- defendant’ s road to the Michigan Southern. The witness who identified the book could not swear that the entries in the book were in the handwriting of Peters, but said, to the best of his knowledge it was Peters’. In this book were receipts signed by other agents of the Michigan Southern whose business it was to give to the defendant’s agents receipts for freight received from the defendant; and it contained all the property delivered by the defendant to the Michigan Southern from the date at which it commenced until the happening of a fire that destroyed all the warehouses of these companies, at Detroit.
    A witness describing himself as cashier and clerk in the freight department of the Michigan Southern Railroad Company at Detroit, testified that it was his duty to receive and disburse moneys, and to see to freight matters; had the general charge of the books relating to the reception and shipping of freight; knew nothing of the box in question. The bill ought to have come into his hands, if the box was delivered to his company, and it did not. The defendant made charges for back freight on this box, against his company, but as the latter did not receive it, it did not pay or admit the account. That charge is still in dispute between the companies.
    The defendant moved for. a nonsuit on these grounds:
    
      First. No sufficient proof of incorporation.
    
      Second. No proof of delivery of the property to the defendant.
    
      Third and Fourth. No proof of contract or duty, on the defendant’s part, to carry it.
    
      Fifth. No proof of breach of duty, or of contract, on the defendant’s part.
    
      Sixth. No proof that the box ever reached Suspension Bridge.
    
      Fighth. No proof of cause of action .established by the evidence.
    
      Ninth. No proof, of any contract between the New York Central Railroad Company and the defendant to carry said property.
    
      Tenth. No proof that it was ever in the defendant’s possession.
    The motion was overruled, and the defendant’s counsel excepted.
    The jury, after the charge of the court, rendered a verdict for the plaintiff. The defendant’s counsel moved for a new tidal, which motion was denied. Judgment was entered, and the defendant appealed from the order and judgment.
   By the Court, Mullin, P. J.

The new modes of transportation of property that have been brought into use within the last few years have rendered it more difficult than it was before for an owner to recover of the carrier for the loss of, or damage to, property received for transportation. Before railroads were used for the carrying of goods, it was comparatively of rare occurrence that they were required to be transported from one line to another, in order to be carried to their destination; and hence the owner was not required to look beyond the carrier to whom he delivered his goods, for any loss or injury he might have sustained.

When the Brie canal was completed, and boats were placed upon it, to carry property to and from the west, and to run in connection with steamboats on the Hudson river and the lakes, the difficulty which the owner encountered to fasten the responsibility for loss or injury to his goods really began. It is true that the same difficulty theoretically existed when goods were carried by wagons, and had to be transferred from one wagoner to another, or from the one steamboat to another; but the number of persons through whose hands property was required to pass, and the personal interest each carrier had to protect himself from personal liability for the misconduct of others, rendered it comparatively easy to fasten liability upon the carrier who should be charged with it.

But since the business of carrying property passed to corporations and associations organized for the purpose of transporting goods, not only has the risk of loss and damage greatly increased, but there is a constantly increasing difficulty to fasten liability upon any company into whose custody property may pass. The employees have no personal interest in the protection or prompt dispatch of the goods; facilities for theft have multiplied ; and these, with the temptation that there is to cover up the wrong in order to protect employees as well as themselves, render it difficult in all cases, and impossible in some, for the injured party to obtain redress.

The regulations of all companies engaged in the carriage of property require their servants to take from a connecting company a receipt for all property delivered to them, and by the aid of these receipts ought to be able to ascertain in the possession of which of them the loss or injury occurred. But if those receipts are lost or destroyed, or withheld, it becomes almost impossible to ascertain which of the companies are properly chargeable. By charging the persons employed in any department of the business of their companies all means of discovery whether property has been received or forwarded are gone, and the company may laugh at the clamor of the indignant but helpless owner.

A still greater difficulty lies in the way of the man whose property has been stolen or injured, but the package in which it was enclosed furnishes externally no evidence that it has been opened or the property injured. Each carrier receives it as it comes, and if he delivers it in the condition he receives it, his or its duty is performed. Under these circumstances, the owner would be utterly without remedy, were it not for section 67 of the general railroad law, (2 R. S. 693, 5th ed.,) that provides that when two or more railroads are connected together, either of the companies receiving freight to be transported to any place on the line of either of the others shall be liable as common carriers, for the delivery of such freight at that place. The company so made liable may recover of any other company that was actually liable for the loss or injury.

This section is so framed as to meet but few of the cases, if it shall be strictly construed, in which the owner may sns’ain injury or loss.

In view of difficulties in the owner’s way in his efforts to obtain relief, it becomes necessary that the courts should so modify the rules of evidence as to render redress possible, while the defendant is not exposed to be charged when liability is not established with reasonable certainty.

If the same degree of certainty in proof should be required to charge a railroad company with the loss of goods that is required to entitle a plaintiff to recover in ejectment, owners would be, in a large majority of instances, remediless.

The course of business adopted by connecting lines of railway must be received as competent evidence on the question of the receipt or delivery of property by the one to the other. If books are kept by the agents of a company, in which are entered the receipt and delivery of property by such company, such books, when shown to belong to the company—of which the use by the agent in the company’s business is prima facie evidence— are also competent evidence, prima facie, of the entries therein; and it is not necessary to prove that the entry is in the handwriting of any agent or servant of the company, provided it be made to appear that the entries have been made in the same handwriting for such a length of time as to satisfy a jury that the person making the entries was a recognized agent of the company, and as such, authorized to make such entries,

If the entries in the book, put in evidence in this case, are competent evidence, the receipt of the property by the defendant is satisfactorily established. If it was received at Detroit, it must have been taken by the Central railroad company from Victor to Suspension Bridge, and then delivered to the defendant. Having received it, it' devolved on the defendant to show its delivery to the Michigan Southern, which it has failed to do; and it must be held liable for its value.

There is nothing in the case to show how the defendant was got into court; whether by attachment of its property and leave given to it to appear, or by service of summons by publication, or personally, on one of the officers of the defendant. (3 R. S. 756, §13, &c., 5th ed.)

If it appeared after leave granted, it cannot afterward be heard to deny its corporate existence. It must be an existing corporation, to be entitled to apply for leave. And if there was service on an officer or by publication, and there was any irregularity, it should have moved to set it aside. If it appears in the action and answers, it cannot thereafter require the plaintiff to prove its incorporation.

If, however, the plaintiff was obliged to prove the defendant’s incorporation, the laws of Canada were sufficient for that purpose.

Our statute does not permit a non-resident of the State to sue, in our courts, a foreign corporation, unless the cause of action shall have arisen, or the subject of it be situated within this State. (Code, § 427.)

The plaintiff must be deemed to be a resident of Burr Oak, Michigan, and the cause of action the breach of the contract to carry and deliver to the Michigan Southern road, which breach, it is to be implied from the course of business between the connecting roads, occurred either in Canada or Detroit. In this condition of things the action could not be brought in this State. (Cantwell v. Dubuque Western R. R. Co., 17 How. Pr. 16. Brewster v. Mich. Cent. R. R. Co., 5 id. 183. The Cumberland Coal Co. v. Hoffman Steam Coal Co. 30 Barb. 159.)

It was held in Downes v. Phœnix Bank, (6 Hill. 297,) that the non-residence of the plaintiff- in an action against a foreign corporation, is matter in abatement merely, and is waived by appearing and pleading in bar.

[Fourth Department, General Term, at Buffalo,

June 3, 1873.

Mullin, Talcott and M. D. Smith, Justices.]

JSTo question was made on the trial that the plaintiff was a non-resident.

It might be that the plaintiff could prove himself a resident of the State, had the question been raised.

The judgment must be affirmed.  