3. CARRIERS (§ 320*) · TION FOR JURY. NEGLIGENCEQUES- | and control the defendant's elevator at the time of the plaintiff's injury, was 14 years In an action by a passenger for personal and 5 months old. injuries received on defendant's elevator, the question of defendant's negligence in the operation of such elevator by a child, employed in violation of Laws 1907, c. 4, should have been submitted to the jury. [Ed. Note.-For other cases. see Carriers, Cent. Dig. 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 13151325; Dec. Dig. § 320.*] Exceptions from Supreme Judicial Court, Androscoggin County, at Law. Action by Lucinda N. Jones against the Co-operative Association of America. The court orders nonsuit, and plaintiff excepts. Exceptions sustained. Argued before WHITEHOUSE, C. J., and SAVAGE, CORNISH, KING, and HALEY, JJ. McGillicuddy & Morey, of Lewiston, for plaintiff. Oakes, Pulsifer & Ludden, of Auburn, for defendant. WHITEHOUSE, C. J. This is an action to recover damages for personal injuries to the plaintiff resulting from the alleged negligence of the defendant in the operation and control of the elevator in its store in Lewiston, known as the "Peck Department Store." The negligence complained of is described in the plaintiff's declaration in substance as follows: The defendant carelessly and negligently placed in charge of the elevator, to run and operate the same, an inexperienced, incompetent, and unsuitable boy of immature years, contrary to law, and negligently permitted another of its employés, a boy of immature years, to ride on the elevator without any business or employment thereon. The boy in charge of the elevator started the same by means of the lever, and ran it, with the plaintiff and the other boy thereon, down to the first floor of the store, and there stopped it for the plaintiff to alight; and while the plaintiff, in the exercise of due care, was attempting to alight by stepping out onto the first floor, the boy in charge of the elevator negligently failed to guard and protect the lever, and left the same unat tended and unguarded, and while so left the other boy meddled with the lever and set the same in motion, whereby the elevator was suddenly and without warning started in motion with great force, so that the plaintiff was thereby thrown with great force and violence to the first floor of the store, fracturing the bone of her arm near the shoulder, and causing the other injuries of which she complains. It is provided by section 1 of chapter 4 of the Laws of 1907 that "no person, firm or corporation shall employ or permit any person under the age of fifteen years to have the care, custody, management or operation of any elevator," under the penalty prescribed in section 2. | [1] The fact that Hayes was employed by the defendant, in violation of law, to operate and control this elevator, was competent. but not conclusive, evidence of the defendant's negligence with respect to all consequences resulting from a failure of duty on the part of such boy of immature age; and if it is unexplained, and taken in connection with other facts and circumstances, it may be conclusive evidence of such negligence on the part of the defendant. As stated by this court in Larrabee v. Sewall, 66 Me. 381: "It may be 'strong evidence' that a party is in the wrong, when he is doing that which the law forbids him to do." Neal v. Rendall, 98 Me. 69, 56 Atl. 209, 63 L. R. A. 668; Moore v. Maine Central R. R., 106 Me. 297, 76 Atl. 871. In Bourne v. Whitman, 209 Mass. 166, 95 N. E. 404, 35 L. R. A. (N. S.) 701, the defendant was operating an automobile without a license, and it is said in the opinion: "It is universally recognized that the violation of a criminal statute is evidence of negligence on the part of the violator as to all consequences that the statute was intended to prevent. See, also, Berdos v. Tremont & Suffolk Mills, 209 Mass. 489, 95 N. E. 876, Ann. Cas. 1912B, 797; Doolan v. Pocasset Mfg. Co., 200 Mass. 200, 85 N. E. 1055; Finnegan v. Winslow Skate Mfg. Co., 189 Mass. 580, 76 N. E 192; and Stehle v. Jaeger Automatic Machine Co., 220 Pa. 617, 69 Atl. 1116, 14 Ann. Cas. 122. On the day of the injury in the case at bar, the plaintiff, a lady 67 years of age, accompanied by her daughter, made some purchases at the defendant's store, and, after lunching at the restaurant on the fourth floor, took the elevator in charge of the boy Peter Hayes for the purpose of returning to the first or street floor. At the third floor the elevator was stopped by Hayes, and another boy by the name of Lloyd Kritz. who was also in the employment of the defendant, and apparently of about the same age as Hayes, was taken into the elevator. The two boys were "playing and fooling" coming down to the first floor; Kritz making several attempts to seize and control the lever by which the elevator was operated. But Hayes retained control of it until the street floor was reached, when the elevator was stopped, and, according to the testimony of the plaintiff's daughter, Hayes "opened the door and stepped across away from the lever, or away from his post of duty," leaving the lever unguarded and Kritz within reach of it. The plaintiff's daughter stepped out, and just as the plaintiff was in the act of alighting, and before her feet reached the floor, Kritz seized the unguarded lever and started the elevator up with a jerk, throwing the plaintiff heavily to the floor, and causing the injuries of which she complains. Peter Hayes, the boy employed to operate Action by Jonas Edwards against the American Express Company. On report. Judgment for plaintiff. At the conclusion of the plaintiff's evidence, the presiding justice ordered a nonsuit upon the defendant's motion, with a stipulation on the part of the defendant that, "if for any reason the order for a nonsuit is overruled and the case sent back for trial, | HALEY, JJ. the question of damages only shall be submitted to the jury." [2] It was incumbent upon the defendant to exercise such thoughtfulness, prudence, and discrimination in the selection of eleva tor boys as the proper discharge of that duty and the situation and circumstances demanded, having regard to the serious consequences likely to flow from a negligent or unskillful operation and management of the elevator. He was prohibited by statute from employing any boy under 15 years of age. A boy of more mature years and judgment might have anticipated that it would be necessary to guard the lever of the elevator with vigilance, in order to prevent the mischief which might be caused by an intermeddling playmate, who had shown an eager desire to obtain control of the lever and operate the elevator himself. [3] There is no suggestion of any want of due care on the part of the plaintiff herself, and, under all the circumstances, it is the opinion of the court that the question of the defendant's negligence should have been submitted to the jury, and that there was sufficient evidence to support a verdict in favor of the plaintiff upon that issue. According to the stipulation of the parties, the certificate must therefore be: Exceptions sustained; case to stand for trial upon question of damages only. (109 Me. 444) EDWARDS v. AMERICAN EXPRESS CO. (Supreme Judicial Court of Maine. Nov. 11, 1912.) 1. CARRIERS (§ 79*)-FREIGHT-ROUTING. Where a bill of lading prescribes no particular route, the carrier can select any one of the ordinary routes which is reasonably safe and expeditious, and not excessive in its charges. Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, KING, and Oakes, Pulsifer & Ludden, of Auburn, for plaintiff. White & Carter, of Lewiston, for defendant. WHITEHOUSE, C. J. This is an action to recover damages for an alleged breach of the defendant's contract with the plaintiff, who resided at Auburn, Me., to transport 28 horses from East St. Louis, Ill., to Detroit, Me. The contract was evidenced by a bill of lad ing of the standard form employed in shipping live stock. The following memorandum was written in pencil on the margin, name "Consignee's request is that horses be fed and watered and unloaded at Auburn, Maine, besides Buffalo, New York." The stipulation in the bill of lading was for the transportation of 28 horses, Big Four car 287, consigned to Jonas Edwards, at Detroit, for the sum of $355. There was no express requirement that this car should go by the way of Auburn, Me., and there was no provision in the contract requiring the shipment to be made by any particular route. The plaintiff complains in his declaration that the horses were transported by a route which did not pass through Auburn, and that they were not unloaded, fed, and watered at Auburn in accordance with the consignee's request, and he avers that in consequence of the defendant's failure to transport the horses by way of Auburn he was deprived of his lawful right to accept delivery of them at Auburn, and to excuse the defendant from the further performance of the contract. It appears that in fact the plaintiff desired and intended to have 16 of the horses left at Auburn, and 12 only actually delivered at Detroit, and he claims to recover as damages $26 for the express paid for reshipping 16 horses from Detroit back to Auburn, and [Ed. Note. For other cases, see Carriers, $35.92 for plaintiff's loss of time and expensCent. Dig. § 274; Dec. Dig. § 79.*] 2. CARRIERS (§ 208*)-FREIGHT-ROUTING. An express company, which carried a shipment of horses consigned to Detroit. Me., under a bill of lading which did not specify any particular route, though a memorandum written on the margin recited a request by the consignee that the horses be fed, watered, and unloaded at Auburn, Me., is not liable to the consignee for not shipping them through Auburn, thereby depriving him of an opportunity to accept delivery at Auburn, where the horses arrived at Detroit as early as they would have arrived at Auburn, and where the consignee did not signify his desire to accept delivery at Auburn until the horses had so arrived. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 924-928; Dec. Dig. § 208.*] Report from Supreme Judicial Court, Androscoggin County, at Law. es of men, besides an overcharge of $20 inadvertently made. The case comes to the law court on report. It is admitted in the agreed statement that the shipment of horses in question left East St. Louis May 9, 1911, at 8:18 p. m. on "Big Four" train numbered 24, which was a passenger train. On their arrival at Buffalo the horses were unloaded, fed, and watered, and given five hours' rest, according to the request in the memorandum on the bill of lading. They left Buffalo at 5:40 a. m. of May 11th, arrived in Boston at 7:50 p. m. of the same day, were shipped from Boston May 11th at 10 p. m. on a passenger train running by way of Portland and Augusta to Waterville, arriving at Waterville at 4 a. m. on May 12th, and left Waterville by the first train at 7:15 a. m. of May 12th, arriving at their destination at Detroit, Me., the same morning. The car containing the horses traveled by passenger trains the entire distance from Buffalo, N. Y., to Detroit, Me. There was no train leaving Boston on the night of May 11th, after the arrival of the horses there at 7:50 p. m., which ran by the way of Auburn. At Portland the car containing the horses might have been detached from the train on which they left Boston, held at Portland, and forwarded to Auburn on the train leaving Portland at 7 o'clock the following morning, and reaching Auburn at 8:15 a. m., which was the same time the horses reached their destination at Detroit, Me. May 12, 1911, the plaintiff paid for the services rendered under the contract at Detroit, Me., $398.25, of which the sum of $23.25 was the advance charge for unloading, feeding, and watering the horses at Buffalo. [1] It is a well-settled and familiar rule in the law of carriers that, where a bill of lading contains no stipulation prescribing the particular route by which the shipment of goods shall be made, the carrier has the option to select any one of the ordinary routes of travel which is reasonably safe, as well as expeditious, and not excessive in its charges. McElveen v. So. Ry. Co., 109 Ga. 249, 34 S. E. 281, 77 Am. St. Rep. 375; Patten et al. v. Union Pac. Ry. (C. C.) 29 Fed. 591; Elliott on Railroads, vol. 4, § 1410, and notes. [2] But it is contended in behalf of the plaintiff in the case at bar that the consignee's request that the horses be unloaded, watered, and fed at Auburn became a part of the contract, and imposed upon the defendant the obligation to make the shipment of the horses by way of Auburn. It has been seen, however, that all of the 28 horses were consigned to Jonas Edwards at Detroit, Me., and the defendant had no knowledge of the plaintiff's secret purpose to have 16 of them unloaded and retained at Auburn until the evening of May 11th, when there was a discussion between the plaintiff's agent and the defendant's express agent at Lewiston respecting the rule authorizing the defendant to make a charge of $10 a head, for every horse unloaded and kept at Auburn under the conditions then existing, and even then it does not appear that the express agent was requested by the plaintiff or his representative to instruct the conductor of the train, then near Boston, to have the car containing the horses sent through Auburn.' It has been seen that the horses coming by the route through Augusta arrived at their destination at Detroit at the same hour at which they would have arrived at Auburn, if the car had been detached from the train at Portland, and sent through Auburn by the 7 o'clock train on the morning of the 12th. although Detroit is 70 miles further east than Auburn. In view of this fact, and of the fact that the through rate by express from East St. Louis to Detroit is the same as that to Auburn, it is not denied by the plaintiff that the route through Augusta was an expeditious one, and one which the defendant was justified in selecting, unless bound to go through Auburn by force of the plaintiff's request to have the horses watered and fed there. In the absence of information that any of the horses were to be left at Auburn, the defendant was warranted in assuming that the only purpose of his request for watering and feeding was to insure suitable care for the horses and to keep them in proper condition for use or sale. It was known that, if the horses were shipped by the Augusta route, proper care would not require them to be fed and watered until they reached their destination at Detroit, and the needless expense of unloading, watering and feeding at Auburn would thus be avoided. But the plaintiff further contends that, in view of the confident claim of the defendant's local agent that the plaintiff would be chargeable with $10 for every horse unloaded and retained at Auburn, he decided on the evening of May 11th to accept delivery of all the horses at Auburn and relieve the de fendant of the further performance of its contract. The express agent denies that any such decision was made known to him on the evening of May 11th, and states that the first knowledge he had of it was on the morning of May 12th, after the horses had arrived at Detroit. There is a sharp conflict of testimony upon this question, and it is sufficient to say that the plaintiff's contention does not seem to the court to be established by a preponderance of the evidence. It is fairly to be inferred from all the evidence that the real object of the plaintiff in having all of the horses consigned to him at Detroit, and requesting that they be watered and fed at Auburn, was to hold 16 of them at Auburn, and save the local express rate on the other 12 horses from Auburn to Detroit. But this plan was defeated by the regulation requiring an unloading charge of $10 a head. The conclusion is that there was no breach of contract on the part of the defendant company. But, on account of the inadvertent overcharge admitted by the defendant, the certificate must be: Judgment for the plaintiff for $20, with interest from May 12, 1911. 1. CORPORATIONS (8 320*)-MINORITY STOCKHOLDERS RIGHT TO SUE. Bill by a minority stockholder lies to compel majority stockholders to account to the corporation and to restore moneys wrongfully received by them, etc., where the bill shows that defendant stockholders have corruptly and collusively conspired to wreck the corporation and convert its property to their use as individuals in fraud of the corporation and in violation of their duties as directors; that they have voted and paid themselves salaries greatly in excess of the value of their services; that, instead of paying the corporation's debts, defendants have devoted the funds to their own use; and that plaintiff is unable to procure relief through action on the part of the corporation because defendants are in control of the corporate affairs. [Ed. Note.-For other cases, see Corporations, Cent. Dig. 88 1426-1431, 1433-1439; Dec. Dig. 320.*] 2. CORPORATIONS (§ 320*)-MINORITY STOCKHOLDERS-SUITS IN EQUITY. JURISDICTION. Without winding up the affairs of a corporation, a court in equity may, at the suit of a stockholder or creditor, appoint a receiver where corporate property has been abandoned and is exposed to injury or loss, or where the corporation has no oflicers to care for its property, or where, by the acts of the directors, the property is exposed to imminent peril, or where the directors have been guilty of a breach of trust, etc. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1426-1431, 1433-1439, 2201-2216; Dec. Dig. §§ 320, 553.*] 10. CORPORATIONS (8 614*)-EQUITABLE JU RISDICTION. Though a bill by a minority stockholder against majority stockholders to compel them While equity will take jurisdiction on bill to account for corporate funds wrongfully apby a minority stockholder to compel the major-propriated by them is insufficient as a bill unity stockholders to account for moneys wrong- der Laws 1905, c. 85, § 4, as amended by Laws fully received by them, ordinarily it will not 1907, c. 137, to wind up the affairs of the cortake jurisdiction to compel the corporation to poration and decree its dissolution, the court pay plaintiff what it owes him except as in- has jurisdiction to order the corporation to pay cidental to strictly equitable relief. what it owes him on such accounting where the corporation is out of business and such assets as it has will go but a little way towards satisfying plaintiff's claim and where the corporation has no use for the funds except to REVIEW-pay such claim. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1426-1431, 1433-1439; Dec. Dig. § 320.*] 3. APPEAL AND ERROR (§ 1009*) FINDINGS-CONCLUSIVENESS. A trial justice's findings on bill for an accounting are conclusive, unless clearly wrong. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3970-3978; Dec. Dig. § 1009.*] 4. CORPORATIONS (§ 320*)-MISCONDUCT OF MAJORITY STOCKHOLDERS-EVIDENCE-SUF FICIENCY. Directors cannot lawfully vote salaries to themselves. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1334-1349; Dec. Dig. § 308.*] 6. CORPORATIONS (8 545*) DIRECTORS CLAIMS AGAINST CORPORATION. Directors, having claims against the corporation, have no right to prefer themselves over other creditors. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2170-2175; Dec. Dig. § 545.*] 7. APPEAL AND ERROR (§ 895*)-EFFECT OF SUBSEQUENT ORDERS BY TRIAL APPEAL --- COURT. On appeal from a decree, all questions presented by the record are reviewable, regardless of a subsequent decree entered by the trial justice. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2435, 2437-2444; Dec. Dig. § 614.*] Appeal from Supreme Judicial Court, Aroostook County, in Equity. Bill by Fleetwood Pride against the Pride Lumber Company and others. Decree for plaintiff, and defendants appeal. Affirmed. Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, KING, and HALEY, JJ. Butler & Butler, of Skowhegan, for appellants. Hersey & Barnes, of Houlton, for appellee. SAVÁGE, J. [1] The plaintiff is a minority stockholder in the defendant corporation. The individual defendants, Henderson and Bradstreet, are the other stockholders. Each of the three owns one-third of the capital stock. All are directors. Henderson is president and Bradstreet is clerk and treasurer. The corporation has ceased to do business as a going concern, and is practically defunct, but is not alleged to be insolvent. The bill alleges that the individual defendants corruptly and collusively conspired to wreck the corporation, and to convert its property to their use as individuals, in fraud of the corporation and in violation of their duty as directors; that they voted and paid them [Ed. Note.-For other cases, see Appeal and selves salaries greatly in excess of the value Error, Cent. Dig. §§ 3645-3048, Dec. Dig. of their services; that they have not devoted the funds of the corporation to the pay 895.*] The prayer of the bill is that the individual defendants and the corporation be restrained from issuing and selling stock of the corporation, from paying Henderson and Bradstreet any salaries, and from expending any funds of the corporation; that Henderson and Bradstreet be ordered to make an accounting; that Henderson and Bradstreet be decreed to be trustees for the corporation in respect of all sums received by them for salaries which they voted to themselves; that they be ordered to restore to the corporation all amounts wrongfully withdrawn by them; that the debts of the corporation be ordered paid; and that a receiver be appointed to receive the property of the corporation, and to make disbursements as may be directed by the court. ment of debts, but, instead, have converted decree shows that he found that Henderson the funds to their own use; that the plain- and Bradstreet had received moneys for saltiff is a creditor as well as a stockholder; aries which they were not entitled to retain. that these defendants as majority stockhold- We think the finding was right. Briefly ers control the stockholders' meetings, and stated, the situation was this: The plainmanage and control the affairs of the cor- tiff was engaged in the lumbering business, poration for their own benefit, so that he is cutting, driving, and sawing logs. He ownunable to obtain any redress through any ed certain permits and contracts, certain logs action on the part of the corporation. These that had been cut, certain statutory priviallegations state a case cognizable in equity. leges on streams, a mill, teams, boilers, and If true, the plaintiff as minority stockholder other things connected with the business. is entitled to pursue this remedy. Trask v. He was in debt. The Pride Lumber Com Chase, 107 Me. 137, 77 Atl. 698. pany, a corporation, was organized in March, 1908, to take over his business and property, and it did so. Henderson and Bradstreet paid the plaintiff certain money, and each received from him one-third of the entire capital stock. It was understood that the plaintiff was to be the business manager at a salary of $2,000 a year. The plaintiff claims that he worked at that salary for nearly a year. The defendants say it was a shorter time. But in March, 1909, Henderson and Bradstreet, who were the majority directors, discharged him, and after that time seem to have conducted the business without any reference to him. He was not consulted, and, if there were any directors" meetings, he was not notified and was not present. He claims that either purposely or negligently they allowed certain valuable permit rights to lapse. The last shipment of lumber was made in March, 1910. In October, 1910, the mill burned. Insurance to the amount of $20,000 was received. At that time the insurance money, with a smal amount of other money, constituted the sole assets of the corporation, except some accounts which we infer were not very valuable, since they have not been collected, and a small amount of personal property. The corporation owed Bradstreet, the treasurer, on account of advances, $7,000. The only other creditor was the plaintiff, to whom was due something for salary and $2.447 admittedly due on account. Besides this the plaintiff had certain other claims on which something at least was que. The justice who heard the case below granted a perpetual injunction against the defendant corporation from doing any further business, ordered Henderson and Bradstreet to restore to the treasury of the corporation money withdrawn and paid to themselves in the way of salaries, decreed that the debts of the corporation should be paid, and appointed a receiver. From this decree the defendants appealed. Subsequently the justice filed another decree containing the same matter as the first, with the addition that the receiver should pay the plaintiff the sum of $13,023.19, the same being the amount found due to him, and that the plaintiff's claim for salary on one side and the salaries claimed by Henderson and Bradstreet on the other should be disallowed. Of the effect of this latter decree we will speak later. [2] It will be noticed that the plaintiff prays for relief of two entirely distinct kinds: (1) That the individual defendants account to the corporation, and restore moneys wrongfully received by them; (2) that the corporation be ordered to pay him what it owes him. To afford the first remedy equity clearly has jurisdiction. To afford the latter equity ordinarily will not take jurisdiction, except as incidental to strictly equitable relief. The defendants Henderson and Bradstreet then proceeded to administer the money on hand. Bradstreet was paid his $7,000. On January 2, 1911, at a directors' meeting of which the plaintiff, the remaining director, had no notice, and which he did not attend, they voted themselves salaries from April 1. 1908, as follows: Henderson, the president. for doing "all the labor necessary to carry on the business," at the rate of $200 a month, Bradstreet, treasurer, for personally furnishing "all the money to carry on the business, besides attending to other duties of his office," at the rate of $100 a month. [3, 4] 1. The accounting. The single jus- Bradstreet also as clerk $25 a month, and tice made no specific findings of facts. But as secretary $25 a month. Just what Mr his conclusion necessarily involves certain Bradstreet's duties as secretary were in adfindings, and such findings, unless clearly dition to those as clerk is not stated. The |