A' PPEAL by defendant from a judgment Line S. S. Co. v. Smart, 107 Pa. 492; of the Superior Court for Yakima Spears v. Spartanburg, U. & C. R. Co. County in plaintiff's favor in an action 11 S. C. 158; Moore, Carr. § 6, p. 395. brought to recover the value of property Messrs. Snyder & Luse, for respondent: destroyed while in defendant's possession The goods being in the defendant's warefor transportation. Reversed. house, and the plaintiff having called for them, and the defendant having failed and The facts are stated in the opinion. Messrs. B. S. Grosscup and Ira P. En-refused to deliver them, the defendant should glehart, for appellant: The railroad company is liable only as a warehouseman after depositing goods in its warehouse at the end of transportation, and is not responsible for their loss in the absence of negligence. Francis v. Dubuque & S. C. R. Co. 25 Iowa, 60, 95 Am. Dec. 769; Norway Plains Co. v. Boston & M. R. Co. 1 Gray, 263, 61 Am. Dec. 423; Almand v. Georgia R. & Bkg. Co. 95 Ga. 775, 22 S. E. 674; Georgia & A. R. Co. v. Pound, 111 Ga. 6, 36 S. E. 312; Chicago & A. R. Co. v. Scott, 42 Ill. 132; Merchants' Despatch Transp. Co. v. Hallock, 64 Ill. 284; Chicago, I. & L. R. Co. v. Reyman (Ind.) 73 N. E. 587; Pittsburgh, C. & St. L. R. Co. v. Nash, 43 Ind. 423; Mohr v. Chicago & N. W. R. Co. 40 Iowa, 579; E. O. Stanard Mill. Co. v. White Line Central Transit Co. 122 Mo. 258, 26 S. W. 704; Herf & F. Chemical Co. v. Lackawanna Line, 100 Mo. App. 164, 73 S. W. 346; Neal v. Wilmington & W. R. Co. 53 N. C. (8 Jones, L.) 482; Chalk v. Charlotte, C. & A. R. Co. 85 N. C. 423; Shenk v. Philadelphia Steam Propellor Co. 60 Pa. 109, 100 Am. Dec. 541; National received no bill of lading and was not notified of their arrival until 4 or 5 o'clock P. M. of the day they reached their destination, and it was customary for the carrier's of fice to close at 6 P. M., and the goods were burned in the car that night. McGregor v. Oregon R. & Nav. Co. (Or.) 14 L.R.A. (N.S.) 668, 93 Pac. 465. The consignee was held not to have had a reasonable time to remove his goods from the car where notice of arrival was required by the bill of lading, and notice was not given that the car was set out ready for the removal of the goods until 6 P. M., it being in the winter and after dark, and the goods were destroyed by fire eight hours later. Scott County Mill. Co. v. St. Louis, I. M. & S. R. Co. 127 Mo. App. 80, 104 S. W. 924. Seven and one-half days was held to be more than a reasonable time where the consignee had due notice and full knowledge that the goods had arrived and were waiting his acceptance and removal. Murphy v. Southern R. Co. 77 S. C. 76, 57 S. E. 664. be liable for their destruction. Denver & R. G. R. Co. v. Peterson, 30 Colo. 77, 97 Am. St. Rep. 92, 69 Pac. 578; Berry v. West Virginia & P. R. Co. 44 W. Va. 538, 67 Am. St. Rep. 781, 30 S. E. 143; Union P. R. Co. v. Moyer, 40 Kan. 184, 10 Am. St. Rep. 183, 19 Pac. 639; East Tennessee, V. & G. R. Co. v. Kelly, 91 Tenn. 699, 17 L.R.A. 691, 30 Am. St. Rep. 902, 20 S. W. 312; Meyer v. Chicago & N. W. R. Co. 24 Wis. 566, 1 Am. Rep. 207; Lake Erie & W. R. Co. v. Hatch, 52 Ohio St. 408, 39 N. E. 1042; Richmond & D. R. Co. v. Benson, 86 Ga. 203, 22 Am. St. Rep. 450, 12 S. E. 357. The common-law liability of a common carrier continues until the consignee has had a reasonable opportunity to inspect his goods and take them away. Denver & R. G. R. Co. v. Peterson and East Tennessee, V. & G. R. Co. v. Kelly, supra; Kansas City, Ft. S. & G. R. Co. v. Morrison, 34 Kan. 502, 55 Am. Rep. 252. Pac. 228; Normile v. Northern P. R. Co. 36 Wash. 28, 67 L.R.A. 271, 77 Pac. 1087. to send the notice did not contribute to the failure of the consignee to call for his package on Monday, it appearing that he would not have received the notice because he did not go to the postoffice on that day. Hutchinson v. United States Exp. Co. (W. Va.) 14 L.R.A. (N.S.) 393, 59 S. E. 949. From 8:30 A. M. until the next morning was held to be more than a reasonable time to remove baggage; and the fact that the owner stopped off at an intermediate station and thus made it impossible for him to claim the baggage at the time of its arrival was held not to prolong the liability of the common carrier as such. Moyer v. Pennsylvania R. Co. 31 Pa. Super. Ct. 559. From 1:24 A. M. to 2 P. M. was held to be more than a reasonable time to remove bag gage arriving on the same train with its owner. Kressin v. Central R. Co. 119 App. Div. 86, 103 N. Y. Supp. 1002. Whether plaintiff called for his trunk within a reasonable time was held to be a question for the jury in Moffat v. Long IsFrom 4: 30 P. M. on Saturday until the land R. Co. 123 App. Div. 719, 107 N. Y. following Monday night was held to be Supp. 1113, where it appeared that he armore than a reasonable time for a consignee rived on a train ahead of the trunk; that to remove a package from an express office it arrived by regular train at 6:27 P. M.: at which deliveries were made only at the that the station was closed for the night office after notice by mail, although no no- at 7:04 P. M.; and that he called at the statice was placed in the postoffice, since failuretion at 7:20 the next morning. Fullerton, J., delivered the opinion of able opportunity is given the consignee to the court: inspect them and take them away, the car The appellant is a common carrier, operat-rier's liability thereafter is that of a wareing lines of railway in this state and else- houseman, and it can be held for the loss where, one branch of which passes the city of the goods only when that loss is ocof North Yakima. The respondent is en casioned by some negligence on its part. gaged in the business of manufacturing and Was a reasonable time given in the present selling beer and other malt products at the case to inspect and take the goods away? city named, and in the course of its busi- It seems to us that there was. What conness ships large quantities of its products stitutes a reasonable time for the removal to different parts of the state, in containers of goods after notice must, of course, vary of various kinds, the title to which it re- with the circumstances of each particular tains in itself. These containers, when case, and no general rule can be laid down emptied of their contents by the respondent's applicable to all cases by which the fact customers, are returned to it over the ap- can be determined; but, because of the napellant's lines. Between the 1st and the ture of the liability and its extreme hazard morning of the 5th days of May, 1906, there to the carrier, it can be said that the conwere returned, in this manner over the ap- signee must act promptly after receiving pellant's road, containers of the aggregate notice of the arrival of his goods, and not value of $394.80. On the morning of May defer taking them away to attend to other 5th the respondent's superintendent called matters of his own, no matter how imporat the appellant's freight office in North tant they may be. The liability of a common Yakima, and asked for his expense bills, carrier for goods in transit is an extraordesiring to pay them and take away the dinary liability, and, although founded on several shipments that had there accumu- sound principles of public policy, is not to lated. The appellant's agent replied that be extended beyond the point where neceshe did not then have the bills ready, but sity for its existence continues. In the case that he would have them ready at any time before us there was ample opportunity given after noon of that day. The respondent did to take the goods away. The respondent's not call for them in the afternoon, and place of business was but 400 feet from the they were destroyed the following night in warehouse where the goods were stored. It a fire which burned the warehouse in which had its own drays and trucks, and the only they were stored. The fire that burned the reason why the goods were not taken away warehouse originated on the property of a during the afternoon preceding the night third person, some distance from the ap- the fire occurred was that it did not suit pellant's warehouse, and spread thereto, in the convenience of the respondent. This spite of the efforts made to control it. The being true, we think it should bear the loss, fire did not originate nor spread to its instead of the appellant, since each of the warehouse as the result of negligence on parties is equally free from responsibility the part of the railroad company. The trial for the fire which caused the loss. judge, trying the case without a jury, on the foregoing facts, held that the appellant's liability, with reference to the goods, was that of a common carrier; and, since the loss or destruction of the goods was not occasioned by the act of God nor the public enemy, it was liable to the respondent for their value. The correctness of this holding, under the facts, presents the only question we have found it necessary to consider. In the case of Fisher v. Northern P. R. Co. (Wash.) 94 Pac. 1073, we held that the mere placing of goods in storage by the carrier, after they had arrived at their destination, did not reduce the carrier's liability to that of a warehouseman, but that its liability as carrier continued until such time as the consignee had a reasonable opportunity to inspect the goods and take them away in the usual course of business. The converse of the rule must therefore be that, after goods have been transported by the carrier to their place of destination, and a reason The judgment appealed from will be reversed, and the cause remanded, with instructions to enter a judgment to the effect that the respondent take nothing by its action, and that the appellant recover its costs. Hadley, Ch. J., and Rudkin, Dunbar, Crow, and Mount, JJ., concur. leged to have been seduced, and giving bond, and B. E. Croker, ordinary, to annul a for her support, pursuant to Penal Code | marriage, to cancel a bond given by the 1895, § 388, cannot have the marriage de- plaintiff to the ordinary, pursuant to Penal clared void as procured by duress. representation knowledge of 2. One cannot be said to be deceived by an alleged false representation when he admits that he had knowledge of its falsity. Marriage • annulment Code 1895, § 388, for the purpose of stop- grounds. 3. Is an equitable suit to annul a marriage maintainable for causes recognized by the statute as grounds for total divorce seduction. At the time of making the af qua re. Seduction innocence. - bond to stop prosecution annulment divorce. fidavit upon which the warrant issued, Ragsdale asserted that his daughter (who was nineteen years of age) was a virtuous 4. It is no ground to cancel a bond exe- female, and had been seduced by petitioner, cuted under Penal Code 1895, § 388, to stop and had become pregnant four months a prosecution for seduction, that the man theretofore. About the time the warrant has subsequently discovered proof exoneratwas issued Ragsdale approached Henry R. ing him of the crime. Griffin, the father of petitioner, and repreMarriage 5. An equitable petition for the annul- sented to him that petitioner had seduced ment of marriage, and for the cancelation his (Ragsdale's) daughter, and that he was of the bond executed pursuant to Penal Code determined to prosecute petitioner for se1895, § 388, which fails to allege a cause of | duction, and cause him to be imprisoned in action in these respects, cannot be retained the penitentiary of the state for this ofas a statutory proceeding for divorce, and fense, unless petitioner married the said especially so when it is lacking in a jurisdic- Lilla, and that the neighbors had made up a Į tional averment required in a libel for divorce, and contains no specific prayer for di- large sum of money, to wit, $1,500, to be employed in prosecuting petitioner for seduction. After the warrant had issued, petitioner's father made known to him RagsRROR to the Superior Court for Pauld- dale's assertions and intent to prosecute ing County to review a judgment in him for seduction, and about the same time defendants' favor in an equitable petition two other citizens of the county informed to annul marriage and to cancel and pre-him that Dr. George Ragsdale had declared vent enforcement of a bond given by plaintiff to stop a prosecution for seduction. Af firmed. vorce. (April 15, 1908.) Statement by Evans, P. J.: This is a petition by John E. Griffin against Lilla Griffin, W. A. B. Ragsdale, Case Note. Right to avoid marriage entered into to escape prosecution for seduction, upon ground of duress. This question is discussed in the note to Collins v. Ryan, 43 L.R.A. 816, where the cases to the date of that decision will be found collected. The rule as gathered from the authorities reviewed in the earlier note appears to be that a legal prosecution for seduction or bastardy will not generally amount to duress so as to avoid the mar riage, though in one or two instances the rule has been relaxed in favor of inexperienced boys. And the few recent decisions that can be found assent to the same proposition. Thus, in Blankenmiester v. Blankenmiester, 106 Mo. App. 390, 80 S. W. 706, it was held that, where a man arrested for seduction married the woman in order to escape the penalty for that offense, his action was voluntary in a legal sense, and he could not afterwards have the marriage annulled on the ground that he was coerced. to them that Lilla was four and one-half months advanced in pregnancy. He denied that he had had sexual intercourse with Lilla, and declared to these citizens and his father that he had not seduced her and was innocent of the charge. He was raised on a farm, had always borne a good charaċ So, in Ingle v. Ingle (N. J. Ch.) 38 Atl. 953, it was held that the rule that a man in jail on the charge of seduction, who married the woman to escape the charge, could not have the marriage annulled upon the ground of duress, was not changed by the man's misunderstanding of the length of the term of imprisonment by which such offense was punished. Attention should be called to Hawkins v. Hawkins, 142 Ala. 571, 110 Am. St. Rep. 53, 38 So. 640, in which it appeared that an inexperienced boy under arrest and about to have a preliminary hearing for seduction was advised by the magistrate to marry the girl, which he did upon the understanding that the prosecution would be dismissed. It further appeared that the ceremony was performed under an invalid license and was not followed by cohabitation. The court, without directly passing upon the question of duress, held that the boy could maintain a bill in equity to have such pretended marriage declared null and void. ter, and "knew nothing of courts or the nature of said charge made against him." His father stated to him that, notwithstanding his good character, he was at the mercy of W. A. B. Ragsdale and his daughter, and that, in the event he refused to marry Lilla and give bond and security for her maintenance for the term of five years, as provided by law, he would be convicted of the offense of seduction, and sent to the penitentiary; that Ragsdale and his daughter were respectable people, and could and would convict him of seduction. He protested his innocence to his father, and affirmed that he would rather die than marry the said Lilla, to which his father replied that he had advised with counsel, and that he must marry her or go to the penitentiary. Petitioner further alleged that, being influenced by the threats of W. A. B. Ragsdale to prosecute and convict him of seduction, and send him to the penitentiary, and by the advice and command of his father to marry her and escape the penitentiary, he married her on June 8, 1905, and on the same day executed and delivered to the ordinary of the county a bond, with his father as security, in the sum of $750, for the support and maintenance of his wife and such child or children as she might have for the term of five years, as required by law. After the marriage he lived with his wife at his father's house for two months, and then, ascertaining that the fraud and duress practised on him in bringing about the marriage could be established, he refused longer to live with her, and repudiated the marriage. He alleged that on September 20, 1905, his wife committed the offense of adultery with an unknown person, also that prior to her marriage with him she was not a virtuous female; that in November, 1902, she committed the offense of fornication with a named person, and that he was ignorant of her unchastity until after his marriage; that the marriage and the execution of the bond were procured by the fraud and duress of W. A. B. Ragsdale and Lilla Rags dale in falsely and fraudulently accusing him of seduction, and of being the father of the child with which she was pregnant, and causing the issuance of the warrant against him for seduction; that he was not guilty of the crime of seduction, and that Ragsdale, at the time of preferring the charge against him, knew that his daughter Lilla was not virtuous, and that petitioner was not the father of the child with which she was pregnant. He prayed for the annulment of the marriage, and for a cancelation of the bond. The court dismissed the petition on general demurrer, and the exception is to that judgment. Messrs. J. J. Northcutt and A. J. Camp for plaintiff in error. Messrs. John W. Maddox, G. E. Maddox, and C. D. McGregor for defendants in error. Evans, P. J., delivered the opinion of the court: 1-3. The plaintiff against whom a warrant for seduction had been issued, stopped the prosecution by marrying the female alleged to have been seduced, and by giving the statutory bond. Section 388 of the Penal Code of 1895 provides that a prosecution for seduction "may be stopped at any time by the marriage of the parties, or a bona fide and continuing offer to marry on part of the seducer: Provided, that the seducer shall at the time of obtaining the marriage license from the ordinary of the county of the female's residence give a good and sufficient bond in such sum as said ordinary may deem reasonable and just, taking into consideration the condition of the parties, payable to said ordinary and his successors in office, and conditioned for the maintenance and support of the female and her child or children, if any, for the period of five years. If the defendant is unable to give the bond, the prosecution shall not be at an end until he shall live with the female, in good faith, for five years." The plaintiff seeks in this proceeding to have his marriage annulled and the bond canceled because of the conduct of his wife and her father alleged in the petition. He contends that the circumstances under which he married amounted to duress. "Du. ress consists in any illegal imprisonment, or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means amounting to or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will." Civil Code 1895, § 3536. The facts relied on to constitute duress are the assertion by Ragsdale to the plaintiff's seduced by the plaintiff, and that Ragsdale father that Ragsdale's daughter had been intended to prosecute the plaintiff for seduction unless the plaintiff married her, and that the neighbors of Ragsdale had made up a large sum of money to be employed in the prosecution; that after the warrant had been issued the plaintiff's father communicated these matters to him, and advised and commanded him to stop the prosecution by marrying the woman alleged to have been seduced, and giving the bond required by the statute in such cases. There is no charge that the warrant was illegally issued, or that the money which was to be contributed by the neighbors was to be unlawfully employed in the aid of the prosecution. Nor is it alleged that any force or threat of per- on the assumption that a marriage may be sonal violence was used to induce the plain- annulled in equity; but the marital, relation tiff to marry. On the contrary, it appears involves something more than a civil conthat, when his father received information tract between the parties. It represents a that Ragsdale intended to prosecute him, and most important status of our social fabric in had caused a warrant to be issued, the which the public is interested. It therefore father advised with the son as to the best may be doubted whether an equitable suit course to pursue. In that conference for the annulment of a marriage is mainthe plaintiff protested his innocence. tainable for causes which are recognized by The father had previously taken legal ad- the statute as grounds for divorce. Brown vice, and told his son that the Ragsdales' v. Westbrook, 27 Ga. 102. Fraud or duress standing was such that they would convict in obtaining the marriage are grounds for him; that is, that a jury would likely be divorce. Civil Code 1895, § 2426. Can a lieve their testimony. Two courses were marriage be set aside on these grounds, exopen to him: Either to face a trial and cept in a statutory divorce proceeding— abide its legitimate consequences, or to stop quære. Compare Civil Code 1895, § 2416. the prosecution in compliance with the stat- 4. It is clear that the plaintiff is not enute. The plaintiff's conduct shows that he titled to cancel the bond given under Penal made his election not because of any demand Code 1895, § 388, to stop the prosecution for of Ragsdale, but to avail himself of the stat- seduction. To slightly paraphrase the lanute, to escape the consequences of a prose-guage of Mr. Justice Cobb, in the case of cution for seduction. Force, to constitute Duke v. Brown, 113 Ga. 310, 38 S. E. 764, duress in law, must be unlawful; and a man lawfully arrested on a warrant for seduction, who, to procure his discharge, marries the woman, cannot have the marriage declared void, as procured by duress. 1 Bishop, Marr. Div. & Sep. § 543; Marvin the undertaking, and he is not entitled to v. Marvin, 52 Ark. 425, 20 Am. St. Rep. 191, 12 S. W. 875; Lacoste v. Guidroz, 47 La. Ann. 295, 16 So. 836; Johns v. Johns, 44 Tex. 40; Williams v. State, 44 Ala. 24; Sickles v. Carson, 26 N. J. Eq. 440. It would be a travesty of law for a man to be able to avoid a criminal prosecution for seduction by virtue of a statute allowing him so to do, and then be permitted immediately thereafter in a court of equity to set aside the marriage on the ground that he subsequently discovered evidence to disprove the charge brought against him. The validity of the marriage is further attacked on the ground of fraud. The alleged fraud is that the Ragsdales at the time of preferring the charge of seduction against him knew that the woman was not virtuous, and that he did not discover, until some time after his marriage, that some three years previously she had committed fornication with a certain person named in the petition. The plaintiff admits that at the time of marriage he was informed that his wife was pregnant, but denies that he had carnal knowledge of her up to that time. If it be true, as he so positively affirms, that he had never carnally known his wife prior to his marriage, then her pregnancy gave him indubitable information that she was not a virtuous woman, notwithstanding the representations to the contrary. With such knowledge he cannot be considered as deceived by the representations as to his wife's virtue. the plaintiff was given his choice between the penitentiary and the contract; and, if he elects to enter into the contract instead of the penitentiary, he must not forget that he has purchased his liberty at the price of have his undertaking, which he elected to make in lieu of a possible term of penal servitude, set aside because he may now be able to demonstrate his innocence of the crime of seduction. See also Crew V. Hutcheson, 115 Ga. 511, 42 S. E. 16. 5. But it is insisted that, even if the grounds alleged in the petition are insufficient to entitle the plaintiff to sue for an annulment of his marriage and a cancelation of his bond, the petition should have been retained for the purpose of permitting him to obtain a total divorce on the ground of adultery since his marriage. This cannot be done, for the reason that there is no prayer for a divorce; nor is it even alleged in the petition that the plaintiff has been a resident of the state for a year immediately preceding the filing of his petition. Such residence is a prerequisite to an application for a divorce of any kind. Civil Code 1895, § 2431. This jurisdictional averment is essential to every application for a divorce. Besides, the proceeding for an annulment of the marriage, and the proceeding for a divorce upon grounds arising since the marriage, are entirely separate and distinct causes of action. One proceeds upon the theory that the marriage is void ab initio, and the other admits the validity of the marriage, and asks a divorce from its bonds. One is a proceeding in equity, the other a statutory proceeding. A single verdict in the equity case is all that would be required to support a decree of annulment; whereas, We have discussed the merits of the case in a divorce proceeding there must be two |