language employed, the remedy of the American Company is in equity and not in a court of law.

The principal question in the case is whether the evidence tending to show that the parties intended to incorporate into the renewal contract the modification of September 16th, as well as the original contract of September 7th should have been received; for, if it should not have been, the judgment rendered in the prior suit based on the parol agreement would not be relevant to any issue in the case.

The terms of the contract here under consideration, namely, the renewal contract of September 28, 1911, are clear and explicit. It in no way refers to the oral agreement of September 16, 1910, or to any modification of the original contract of September 7th. The contract of September 7th is, however, referred to in the renewal contract as the "said memorandum of agreement dated September 7, 1910," and it is provided that the renewal contract shall be "annexed to said agreement of September 7, 1910," meaning the "memorandum of agreement" of that date. The memorandum of agreement of September 7th is also spoken of in the renewal contract as "such original agreement," and it is there provided that it is "to be considered as continuing with all its covenants, conditions and provisions, without change, except as to the date of the expiration thereof." The renewal contract is unambiguous both on its face and when applied to the subject-matter to which it refers, and, such being the case, we are of the opinion that the evidence offered was properly excluded under the general rules of evidence applicable in such cases and under the statutes and Code of Porto Rico to which we have been referred.

* *

[2] It is plain, however, that the defendant has misconceived its remedy for enforcing its rights; for, if the parties, as a matter of fact, understood that the contract of September 7th as modified by the parol agreement of September 16th was to be incorporated into the renewal contract of September 28, 1911, equity and justice require that it should have an opportunity to show the fact and have the contract reformed to comply therewith. And, although the judgment of the court below must be affirmed, we see no reason why execution thereon should not be stayed pending an immediate application by the American company by bill in equity to reform the contract, and that, if reformed in accordance with its contention, why execution should not be permanently stayed.

The judgment of the District Court of Porto Rico is affirmed, with costs to the defendant in error; but execution thereon is stayed pending an immediate application by the plaintiff in error to reform the

contract.

ATLANTIC COAST LINE R. CO. v. WINN.

(Circuit Court of Appeals, Fifth Circuit. November 28, 1917. Rehearing Denied January 12, 1918.)

No. 3035.

1. DEATH 50-RIGHT TO SUE-EMPLOYERS' LIABILITY ACT.

Under Georgia Employers' Liability Act (Acts 1909, p. 160), declaring that in case of the death of an employé of a common carrier suit may be instituted by the surviving widow, in case no administrator or executor has been appointed at the time suit is filed, a petition by the surviving widow of the railroad employé, killed in an accident, which did not allege that no executor or administrator had been appointed at the time suit was filed, is defective, if seeking to state the cause of action under the statute.

DEATH 46-INJURIES TO SERVANT-EMPLOYERS' LIABILITY ACT-ACTIONS

-PETITION-STATUTE.

Petition of the surviving widow of an employé on a train of a second company operated over the tracks of defendant company, which sought recovery for the death of such employé from defendant, alleged that trains operated over defendant's tracks were operated under its rules and under the exclusive management, direction, and control of defendant, that the train was the property of the second railroad company, but that the officers and agents of defendant in charge of the operation of its trains had exclusive right to control the direction of such trains, even to the extent of discipline and discharge of train employés of the second company. Held that, while the petition showed that the employés of the second company engaged in operating trains over the tracks of defendant were entitled to many rights to which they would have been entitled if employés of defendant, including among them the right of a safe place to work and protection against negligence of the officers, agents, and employés of defendant, such employés were not defendant's employés, so that an action for death should have been brought under the Employers' Liability Act of Georgia, in which state the accident occurred, but the action was properly brought by the surviving widow in her own name under the general death statute.

In Error to the District Court of the United States for the Southern District of Georgia; W. W. Lambdin, Judge.

Action by Minnie L. Winn against the Atlantic Coast Line Railroad Company, begun in state court and removed to federal court. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Wm. W. Osborne, A. A. Lawrence, E. H. Abrahams, and Shelby Myrick, all of Savannah, Ga., for plaintiff in error. Francis M. Oliver and Edgar J. Oliver, both of Savannah, Ga., for defendant in error. Before WALKER and BATTS, Circuit Judges, and GRUBB, District Judge.

BATTS, Circuit Judge. The questions involved herein arise upon the action of the trial court in overruling a general demurrer to the petition of defendant in error. The only matter necessary to consider is whether the fifth paragraph of the petition shows that the husband of defendant in error, damages for whose death she sues, was an employé of plaintiff in error. The paragraph is as follows:

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexe 246 F.-59

"Your petitioner further shows that the line of railroad leading from Savannah, Georgia, to Jesup, Georgia, over which the said Southern passenger train, No. 31, was being operated, was owned, operated, and controlled by the Atlantic Coast Line Railroad Company. The said Atlantic Coast Line Railroad Company had the exclusive chartered rights and privileges to the said line of railway, and the trains of the said Southern Railway, running into and out of Savannah, between Savannah, Georgia, and Jesup, Georgia, over the main track of the Atlantic Coast Line Railroad Company, were operated under the rules of the Atlantic Coast Line Railroad Company, and under the exclusive management, direction, and control of the said Atlantic Coast Line Railroad Company. The engine, cars, and equipment of said Southern Railway trains, were the property of the Southern Railway Company, and the employés in charge of said trains were the employés of the Southern Railway Company; but the officers and agents of the Atlantic Coast Line Railroad Company in charge of the operation of its trains, had also the exclusive right to control and direct the operation of the trains of the Southern Railway over said Coast Line tracks, even to the extent of discipline and discharge of the train employés of the Southern Railway."

[1] The Employers' Liability Act of Georgia (Acts 1909, p. 160) provides that, in case of death of an employé of a common carrier, resulting from the negligence named in the statute, suit may be instituted by the surviving widow "in case no administrator or executor has been appointed at the time suit is filed." The petition makes no allegation to the effect that at the time the suit was filed there was no executor or administrator of the deceased husband of the plaintiff. If the necessary implication of the concluding clauses of the quoted paragraph is that the deceased husband of the plaintiff was an employé of the Atlantic Coast Line Railroad Company, the petition is lacking in an essential allegation, and was not good, even as against a general de

murrer.

[2] The allegations indicate that the Southern Railway Company, by whom the deceased was employed as a locomotive engineer, operated its trains over the railroad of defendant. These trains, according to the allegations of the petition, were operated under the rules of the defendant company, and under its exclusive management, direction, and control. The engines, cars, and equipment were the property of the Southern Railway Company, and the employés in charge of the train were its employés; but, says the petition:

"The officers and agents of the Atlantic Coast Line Railroad Company in charge of the operation of its trains had also the exclusive right to control and direct the operation of the trains of the Southern Railway over said Coast Line tracks, even to the extent of discipline and discharge of the train employés of the Southern Railway."

It was, of course, essential to the safe operation of the trains, the tracks not being exclusively used by the Southern Railway Company, that entire control should be in the owning or one of the interested companies, and, under the allegations, this matter of directing the operation of trains was in the defendant company. This right to direct also, almost necessarily, carried with it authority to discipline and discharge train employés while engaged in the operation of such trains. The right to discipline and discharge is an ordinary incident to the relation of employer and employé, but that right does not conclusively fix such relationship. Conditions may arise, and have arisen in this case, where

it is necessary that the employer should delegate to another a limited. and temporary right to discipline and discharge. The employés operating the Southern Railway trains were not hired by the Atlantic Coast Line Company, were not paid by that company, were not working for the benefit of that company, and were subject to discipline and discharge only when the conditions made it impossible for the Southern Railway Company to exercise that right, and made it necessary that the right should be in the Coast Line Company.

Under the circumstances detailed in the fifth paragraph, the employés of the Southern Railway Company were entitled from the Coast Line Company to many of the rights of employés. Among these was the right to a safe place to work and to protection against negligence of the officers, agents, and employés of the defendant company. But while such persons had certain rights measured by the rights of employés, they did not have all the rights which employés have, and one of the rights which they had not acquired was the benefit of the liberalized rules as to liability for negligence established by the Georgia Employers' Liability Act.

The allegations of the fifth paragraph are, we think, consistent with relations between the Atlantic Coast Line Company and employés of the Southern Railroad Company, other than that of employer and employé. The widow of the deceased engineer is entitled to sue under the general statute with reference to damages for injuries resulting in death, and she has properly brought the suit in her own name. other respects the petition sets forth a good cause of action, and the general demurrer was properly overruled.

The judgment is affirmed.

In

PENNSYLVANIA R. CO. v. LACKNER.

(Circuit Court of Appeals, Third Circuit. December 20, 1917.)

No. 2302.

1. RAILROADS 274(2)—INJURIES TO PERSONS ON TRACKS-LICENSEES. At a point directly opposite a railroad station, and about 200 feet south of a street crossing, there was an open space of at least 30 feet used for all purposes by arriving and departing trains, and on this space bundles of newspapers were thrown from the early train which brought them from a nearby city, and the dealers to whom they were directed were accustomed to go upon the ground and pick out their own bundles. The custom had continued for several years, and was well known to the railroads using the station. A news-dealer in a town a few miles away went to get his papers and took the deceased with him to help. When they reached the station, the train that brought the papers had gone, and a number of bundles were lying in the open space within a short distance of the south-bound track. No regular train was due to arrive upon this track for nearly an hour, and the dealer and deceased proceeded to inspect the bundles in order to select what was theirs. While thus engaged, an unscheduled train of defendant came along and struck them both, injuring the dealer and killing plaintiff's decedent. The railroad company owning the track and station operated no trains of its own, but allowed For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

defendant and another railroad company to use the property and operate their trains thereon. Held, that defendant railroad company, deceased, and the news-dealer were licensees of the company owning the tracks and station, and defendant was bound to exercise reasonable care for the safety of the news-dealer and deceased.

2. RAILROADS 278(1) -CONTRIBUTORY NEGLIGENCE-STATUTE.

In such case, Act N. J. March 30, 1869 (P. L. p. 806; 3 Comp. St. 1910, p. 4245), declaring that it shall not be lawful for any person not connected with or employed by any railroad, except when the same shall be laid upon a public highway, to walk along the tracks, and if any person shall be injured by an engine or car while walking, standing, or playing on any railroad, or by jumping on or off a car while in motion, such person shall be deemed to have contributed to the injury sustained, and shall not recover therefor in damages, has no application; deceased not being, walking or playing on the railroad tracks at the time of his death.

In Error to the District Court of the United States for the District of New Jersey; Thos. G. Haight, Judge.

Action by Ida Lackner, administratrix, against the Pennsylvania Railroad Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

John S. Applegate & Son, of Red Bank, N. J., for plaintiff in error. McDermott & Enright, of Jersey City, N. J. (James D. Carpenter, Jr., of Jersey City, N. J., of counsel), for defendant in error.

Before BUFFINGTON, MCPHERSON, and WOOLLEY, Circuit Judges.

MCPHERSON, Circuit Judge. The plaintiff is the widow and administratrix of John Lackner, who was killed by one of defendant's trains at Matawan, N. J., about 5 o'clock in the morning of September 7, 1915.

The train, which was composed of an engine and five empty coaches, was not on the regular schedule, and was running south from New York at 25 or 30 miles an hour. The point where Lackner was struck is directly opposite the station, about 200 feet south of Main street crossing. The station building is west of the south-bound track, and between the building and the westerly rail is an open space of at least 30 feet, used for all purposes by arriving and departing train. Upon this space, bundles of newspapers were thrown from the early train that brought them from New York, and the dealers to whom the papers were directed were accustomed to go upon the ground and pick out their own bundles. This custom had been continued for several years, was well known to the railroads using the station, and was permitted without objection. On September 7 David Solomon, a news-dealer in a town a few miles away, went to Matawan to get his papers, and took Lackner with him to help. When they reached the station, the train that brought the newspapers (a train of the Central Railroad of New Jersey) had gone, and a number of bundles were lying upon the space referred to within a short distance of the south-bound track. No regular train was due to arrive on this track for nearly an hour, and Solomon and Lackner proceeded to inspect the bundles, in order to select For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes