
    The Pennsylvania Railroad Company v. Catharine Peoples.
    1. An attachment will not be discharged on the ground that it appears from the answer of the garnishee that he is not indebted and has no property in his possession belonging to the defendant.
    2. Where a railroad company agrees, for a consideration, to carry a passenger over its road, and by its negligence an injury results to the passenger, he may, at his election, sue upon the contract or in tort.
    3. A railroad company, incorporated under the laws of another state, operating a railroad in this state with the assent of the legislature, is liable to the process of garnishment prescribed by section 200 of the code of civil procedure, and such process may be served as upon domestic corporations.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Mahoning county.
    The defendant in error brought an action in the Mahoning common pleas against the plaintiff in error to recover damages for a personal injury. She alleged by her petition, among other things, that the defendant below was an association of persons duly incorporated under the laws of Pennsylvania, but not incorporated under the laws of Ohio. That in August, a. d. 1869, the defendant was in the occupancy of and operating the Lawrence Railroad, a line of road running from Youngstown, Ohio, to Mahoningtown, Pennsylvania, and was engaged in the business of carrying passengers over the same, for hire and reward. That on or about the 7th day of August of that year she became and was a passenger at the special instance and request of the defendant upon said road to be carried from the station thereon at Haseltine to the city of Youngstown for a certain reward paid to defendant; that defendant thereby promised and agreed to carry her safely from said Iiazeltine to Youngstown, and was bound thereby to furnish her suitable and proper means whereby she could safely enter the ear of the defendant, and was bound to stop its train a sufficient length of time to enable her to get upon the same. She further alleged that the defendant had furnished no platform and no depot; that the ground was from three to four feet below the lowest step on .the car, and a ditch impeded ingress to the car, and that the company had supplied no conveniences for persons desiring to take passage at that point, and that as she was about to get upon the car the conductor of the defendant gave her such slight assistance in climbing up, and so carelessly assisted her, that in getting on the steps of the car she was thrown around on the side of the car, and through the haste of the defendant in starting its train she was bruised, strained, and injured in her back and spine, and by reason thereof had permanently lost the use of her lower limbs. She prayed judgment in the sum of $30,000.
    A summons was issued and returned: “ The within named defendant not found within my county by its agents or otherwise.”
    The defendant being a foreign corporation, upon the proper affidavits being made, an attachment issued, and an order garnisheeing the Pennsylvania Company as having property in its possession belonging to the defendant. The sheriff served a copy of the order of attachment upon the garnishee, with a written notice requiring the company to appear in court and answer, by delivering the same to E. H. Hosmer, ticket and freight agent of the Pennsylvania Company at Youngstown, Ohio. The company appeared and answered as follows :
    “ The Pennsylvania Company, garnishee herein, by leave of court how files its answer, and says that the Pennsylvania Railroad Company, defendant, is • a corporation incorporated and organized in the State of Pennsylvania, and doing business exclusively in that state, and is not a citizen of the State of Ohio, and the Pennsylvania Company, the garnishee herein, is also a citizen of Pennsylvania, being incorporated and organized under the laws of that state. The Pennsylvania Company, garnishee, has not now, nor has it' had since the service of trustee process upon it in this case, any property in this state under its control or in its possession belonging to said Pennsylvania Railroad Company under any contract, note, demand, or arrangement whatever under or by the terms of which it is liable or bound to pay said Pennsylvania Railroad Company any money in the State of Ohio. Wherefore, this garnishee prays to be dismissed.”
    Afterward, the defendant appearing for no other purpose, filed its motion to discharge the attachment on the grounds:
    
      First. That the garnishee was a foreign corporation, and that “ the person upon whom the order of garnishment was made, was simply a local agent, doing business for said Pennsylvania Company within the county of Mahoning, or in the State of Ohio.”
    
      Secondly. “ That both said Pennsylvania Company, garnishee, and the Pennsylvania Railroad Company, defendant, are corporations foreign to the State of Ohio, and are neither citizens nor residents therein, and that said Pennsylvania Company has no property in its possession within the State of Ohio, nor had it at the time said process of garnishment was issued, belonging to the Pennsylvania Railroad Company, nor was said Pennsylvania Company at that time, nor is it now, indebted to the Pennsylvania Railroad Company by virtue of any contract, obligation, or debt, c other arrangement whatever, which, by the terms thereof, is due in the State of Ohio.”
    
      Thirdly. “ That the claim upon which the plaintiff bases her action, and upon which is based the order of garnishment in this case is not founded upon a debt or demand arising upon contract, judgment, or decree.”
    
      Fourthly. “ That the plaintiff’s cause of action did not accrue within six years prior to the commencement of the action.”
    The second ground of said motion was supported by the affidavit of the defendant’s attorney, and the fourth was claimed to be established by the allegations of the petition. But- it was admitted by counsel for the defendant, among other things, that the Pennsylvania Company, garnishee, was operating a railroad kuown as the Ashtabula, Youngstown and Pittsburg Railroad within the county of Ma-honing and city of Youngstown, and has almost daily in its yards at Youngstown cars of the Pennsylvania Railroad Company, and at the freight depot in said city, garnishee was daily receiving money for freight to go over defendant’s road, and some of whiph money was in the possession of garnishee at the time of the service of garnishee process. The court of common pleas found the grounds set forth in the motion true, and granted an ox’der discharging the attachment and dismissed the petition. A bill of exceptions wTas taken, setting out the affidavit of defendant’s attorney, a copy of the petition' of the plaintiff, together with the above recited admission. Oii error, the district court x’evei’sed the order vacating the attachment and dismissixxg the petition, and remanded the cause for further proceedings. The court here is asked to reverse the judgment of the district court, and to affix*m the order of the common pleas.
    
      J. T. Brooks, for the motion :
    The attachment should be discharged—
    1. Because the defendant and the garnishee ax’e both foreign corporations, and the laws of Ohio relating to attachment proceedings are not broad enough to embrace a foreign coi’poi’ation as garnishee. Amended sections 191— 201 of the Code; 11 Pet. 515; 2 Disney, 1; 45 N. H: 533; Dx’ake on Attachment, sec. 80; 41 N. Y. 149. And especially as to garnishment of non-residents: Drake on Attachment, sec. 474 et seq.; 10 Mass. 343; 3 Pick. 302; 15 Pick. 445; 21 Pick. 263; 3 Met. 564; 1 Gray, 424.
    2. The cause of action is not a debt or demand founded on contract, judgment order, or decree. Amended section 191 of the Code (S. & S. 550, 551); 25 N. Y. 625; Am. L. R. (January, 1877,) 421.
    Tort is the basis of the action. Wharton on Neg., secs. 354, 547; Pomeroy on Rights and Remedies, 229, 326; 58 N. Y. 126; 24 ITow. 486; 16 How. 269; 15 N. Y. 444; 107 Mass. 108.
    
      JR. JB. Murray, of Jones & Murray, contra:
    A foreign company operating a railroad in this state, is subject to garnishee process in the State of Ohio. Act of March 19,1869, 66 Ohio L. 32, 33.
    An attachment will not be discharged on the ground that the answer of the garnishees fails to show that they have property of the defendant in their hands subject to the garnishment. The plaintiff is not concluded by the answer of the garnishee. Myres v. Smith, 29 Ohio St. 120.
    The cause of action set forth in the petition was founded upon contract. 1 Chitty’s PI. 102; Lenox v. Iiowland, 3 Caines, 323; Drake on Attachment, secs. 13,14,19-22, and notes.
   Boynton, J.

1. It was held, in Myres v. Smith, 29 Ohio St. 120, that a defendant in attachment can not ask or secure the discharge of the garnishee on the groijnd that his answer fails to show that he has property in his hands subject to garnishment. The plaintiff is not concluded by the answer of the garnishee. Where his disclosure is not satisfactory to the plaintiff, section 218 of the code authorizes the latter to proceed against him by action, and to recover a judgment for the amount of the property and credits of every kind of the defendant in the possession of the garnishee and “ for whatever amount he is shown to be indebted to the defendant.”

It follows, as a necessary consequence, that if the failure upon the part of the garnishee to disclose an indebtedness to the defendant, or the possession of property belonging to the latter, will not authorize the discharge of the garnishee, such failure constitutes no ground to discharge or vacate the attachment.

2. It was also alleged, as a ground for vacating the attachment, that the cause of action stated in the petition, and upon which the process of garnishment is founded, did not accrue'to the plaintiff within six years prior to the commencement of the action. Whether the effect contended for would follow, if the fact were true, may be doubted.

No such defense has, as yet, been interposed. If the right to plead the statute in bar of the action should be waived by the company, it could not be made available to defeat a proceeding purely ancillary. But it is a-sufficient answer to the point urged to say that the fact that the action was barred, if true, was not made to appear.

The petition of the plaintiff was the only evidence offered in support of this ground of the motion; and the language, fairly interpreted, fails to show that the right to recover had been lost by' lapse of time.

3. The next objection relied on is that the claim of the plaintiff is not a debt or demand arising upon a contract, judgment, or decree, and, therefore, that proceedings in attachment will not lie. This conclusion is readily admitted, if the fact is as claimed. The ninth subdivision of section 191 of the civil code provides that an attachment shall not be granted on the ground that the-defendant is a foreign corporation, or a non-resident of this state, for any claim other than a debt or demand arising upon contract, judgment, or decree. The petition avers that the defendant below, at the time the plaintiff' below took passage upon its train, was a common carrier of passengers for hire and reward; and that, for a consideration in that behalf paid, the defendant promised and agreed to cai’ry her safely from Haseltine to Youngstown. It follows from this averment that the defendant was bound to furnish her suitable and proper means of access to the train upon which she . was to ride, and was bound to stop the train a sufficient length of time for her to get aboard. These are implied obligations and duties, growing out of the contract to carry. There is no doubt that the action might have been ■founded in tort upon the breach of the common-law duty to exercise due care to carry safely.

The plaintiff had her election to set out the promise, its consideration and breach, and ask judgment (1 Arch. N. P. 124), or to set out facts which gave rise to a liability in tort, and pray judgment thereon. In Angel on Carriers, § 434, it is said “ that the action of assumpsit is the well-known and common remedy for the breach of a contract not under seal; and it not only lies upon all express contracts not under seal, but also in all cases where the law implies a contract. When a person undertakes any office, employment, trust, or duty, he thereby, in contemplation of law, impliedly contracts with those who employ him to perform that with which he is entrusted, with integrity, diligence, and skill; and if he fails to do so, it is a breach of contract for which a party may have his remedy, in most cases, by action of assumpsit, as well as by action on the case. Corbett v. Packington, 6 B. & C. 268. In 2 Greenleaf’s Evidence, § 208, the author, in speaking of the duties and liabilities of common carriers, whether by land or water, says': “ The action against a carrier, in any of these modes, is usually in assumpsit upon the contract.” While the form of the action does not materially affect or vary the character of the evidence necessary to establish the liability of the carrier, there is no doubt that the cause of action in the present case arises upon contract, within the meaning of the above provision of the code.

4. Another ground for the discharge of the attachment, and the one most confidently relied on by counsel for the plaintiff in error, is, that the garnishee, the Pennsylvania Company, being organized under the laws of Pennsylvania, is not liable to the process of garnishment provided by section 200 of the code (S. & S. 550). The claim is founded on what is alleged to be a correct interpretation of the language of that section ; and if the fact is that the garnishee is a non-resident of the state, exercising no corporate powers or functions within its limits, the conclusion would doubtless follow that the company is not within the class of persons or corporations that are made liable by that section to garnishee process. Squair v. Shea, 26 Ohio St. 645.

But it is an admitted fact in the case that the Pennsylvania Company is operating in Ohio, the Ashtabula, Youngstown, and Pittsburg Railroad—an Ohio corporation. We assume its right to thus operate the same has been legally acquired. “ A corporation created by one state can only exercise its corporate franchises in another by the comity of the latter.” Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566. The right to operate a railroad and to receive fares and tolls is a franchise of a prerogative character, which no person can rightfully exercise without special grant from the legislature. The State v. Boston, C. & M. R. R. Co., 25 Vt. 438.

In McGregor v. Erie Ry. Co., 35 N. J. (Law) 97, it is said that “ the right to run the road is as much a part, of the franchise as the right to build it.”. In McGregor qui tam v. The Erie Ry. Co., ibid. 118, an action qui tarn was brought in New Jersey against the Erie Railway Company for taking unlawful tolls on parts of its lines within that state, and it was held that while the company was a foreign coi'poration, it was, at the same time, “ domestic to the full extent of the powers and franchises confirmed and invested in it, in New Jersey;” that “a corporation may have a two-fold organization, and be, so far as its relations to the state are concerned, both foreign and domestic. See State v. Northern Central Ry. Co., 18 Md. 193; Green’s Brice’s Ultra Vires, 546, et passim; Pennsylvania Railroad Co. v. Sly, 65 Penna. St. 205; Balt. and Ohio R. R. Co. v. Gallahue’s Adm’rs., 12 Gratt. 655; A. & W. Sprague v. The H., P. & F. R. R. Co., 5 R. I. 233.

By section 24 of the general incorporation act of 1852 as amended March 19, 1869 (66 Ohio L. 32), it is, among other things, provided, “ that any railroad company organized in pursuance of law, either within this or any other state, may lease or purchase any part or all of any railroad, the whole or a part of which is in this state, and constructed, owned, or leased by any other company, if said companies’ lines of said road are contiguous, or connected at a point either within or without this state, upon such terms and conditions as may be agreed on between said companies respectively; or any two or more railroad companies whose lines are so connected, may enter into any arrangement for their common benefit, consistent with and calculated to promote the object for which they were created.” The assent of two-thirds of the stockholders of the Ohio companies is made requisite to the validity of any such purchase, lease, sub-letting, or arrangement. This enactment further provides that “ if any railroad company of another state shall lease a i-ailroad, the whole or a part of which is in this state, or make any arrangement for operating the same, as provided in this act, such part of said railroad as is within this state . . . shall be subject to all regulations and provisions of law governing railroads in this state,” . . . “ and a corporation of another state being the lessee of a railroad in this state, shall . . . beheld liable for any violation of the laws of this state, and may sue and be sued in all cases and for the same causes, and in the same manner as a corporation of this state might sue or be sued if operating its own road.” There can be little doubt in view of the entire provisions of this act, considered in connection with the subject-matter to which they relate and the important public interests which they affect, that it was the design of the legislature to enable actions to be maintained against the operating road, although deriving its corporate existence from the laws of another state, as fully and to the same extent as against a corporation within this state, operating its own road. The operating road is, to all intents and purposes, in the exercise of the corporate functions and franchises of the domestic corporation whose road is being so operated. And a wise public policy, in view of the important public interests involved, would hold it to the same degree of responsibility, require at its hands the performance of the same duties, and subject it to the same liabilities as are imposed on domestic corporations. In our judgment, for all purposes of proceedings in attachment and garnishment under the provisions of the code above referred to, the Pennsylvania Company is, under the admitted facts, to be deemed and held a domestic corpotation. It follows from this conclusion, that service may be made in conformity with section 201, upon the agent therein named, in any county in which said operated road may be located.

Leave refused.  