CALDWELL, Circuit Judge,
after stating the case as above, delivered the opinion of the court.
The goods were lost on the line of the last carrier, and the only material contested question of fact in the case was whether the defendant was the last carrier, or was liable as such. The plaintiff maintained that it was. The defendant maintained that it was not, hut that the Philadelphia, Wilmington & Baltimore Railroad Company was the last carrier, and carried the goods from Baltimore to Frederick Road, where they were lost. Upon this disputed question of fact then; was a. large volume of testitnony introduced by the plaintiff, some of which is adverted to in the charge of the lower court. It would serve no useful purpose to set out this testimony. It is sufficient to say that it tended strongly to show that the stock of the Philadelphia, Wilmington & Baltimore Railroad Company was owned in whole or in part, at least, by the defendant company, and that it was in fact operated and controlled by the defendant. In folders, in advertisements, and in various other ways the defendant represented to the public that the Philadelphia, Wilmington & Baltimore Railroad was a part of its “system,” and in some instances a “division.” One item of the mass of testimony in the case is the waybill made out by the defendant for the shipment of the goods from Baltimore to Frederick Road, which shows their shipment between these points over the defendant’s road. The officers of the two companies were mainly the same persons. While
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the Philadelphia, Wilmington & Baltimore Railroad Company is a separate legal entity, according to the testimony, it sustained towards the defendant company the relation of a dummy more nearly than that of an independent, self-governing railroad company. Upon the testimony the jury might well find that the corporate existence of the Philadelphia, Wilmington & Baltimore Railroad Company was maintained by and for the use of the defendant company, and that the defendant company held it out to the world as a part of its system, for whose acts it was responsible. We think the jury might rightly infer from the evidence that, if a recovery could be had against the Philadelphia, Wilmington & Baltimore Railroad Company on the plaintiff’s claim, the result to the defendant in a financial sense would be precisely the same as if the recovery had been against it. It seems highly probable from the testimony that the losses and gains of the Philadelphia, Wilmington & Baltimore Company are in the end the losses and gains of the defendant company. As before stated, the officers of the two roads are very largely the same persons, and the dominion of the Pennsylvania Railroad Company, the plaintiff in error, over the Philadelphia, Wilmington & Baltimore Company, seems to have been complete and unquestioned. At least, there was evidence from which a jury might rightfully infer such was the case. The defendant company, of course, knew exactly the relation it sustained to the Philadelphia, Wilmington & Baltimore Company, and, if it was not such as the mass of testimony introduced by the plaintiff strongly tended to show it to be, it was open to it to produce convincing evidence of the fact, and show precisely what the relation was; and, not having done so, every inference warranted by the evidence may justly be indulged against it. Where the evidence tends to fix a liability on a party who has it in his power to offer evidence of all the facts as they existed, and rebut the inferences which the proof tends to establish, and he refuses to offer such proof, the natural inference is that the'proof, if produced, instead of rebutting, would support, the inference against him. Railway Co. v. Elliott, 102 Fed. 06, 42 C. C. A. 188; Railroad Co. v. Ellis, 54 Fed. 481, 4 C. C. A. 454; Blatch v. Archer, Cowp. 63, 65; 1 Starkie, Ev. 54; Com. v. Webster, 5 Cush. 295, 316, 52 Am. Dec. 711; People v. McWhorter, 4 Barb. 438; Wylde v. Railroad Co., 53 N. Y. 156, 164; Kirby v. Talmadge, 160 U. S. 379, 16 Sup. Ct. 349, 40 L. Ed. 463; Pacific Coast S. S. Co. v. Bancroft Whitney Co., 36 C. C. A. 135, 94 Fed. 180, 198; McDonough v. O’Niel, 113 Mass. 92.
The court rightfully refused to give a peremptory instruction to the jury to return a verdict for the defendant, and its charge in chief was a correct statement of- the law applicable to the testimony in the case. The law deals with things, not names; wdth the substance, not with the shadow; with realities, and not forms. Conceding that the Philadelphia, Wilmington & Baltimore Railroad Company is a legal entity and maintains a complete corporate organization, it by no means follows that that company alone is liable for the íoss of the goods. Whether that company and the defendant company were partners, and as such jointly and severally liable for the loss of the goods, or whether that company’s road is a part of the defend
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ant’s "system,” or one of its "divisions,” and dominated and operated by the defendant for its own exclusive benefit, or for the joint benefit of both roads, were questions of fact fairly open for the consideration of the jury upon the evidence. In Railroad Co. v. Howard, 178 U. S. 153, 20 Sup. Ct. 880, 44 L. Ed. 1015, the contention of the defendant railway company was that it was not liable for an injury received by a passenger because, prior to the accident, the defendant's road had been leased to a Kentucky corporation, which was operating the road at the time of the accident; but the supreme court held that that fact would not bar a recovery, if, notwithstanding the existence of the lease, the defendant company, through its agents, directed and controlled the train to which the accident happened. The court said:
•'The leiwe might exist, and the Virginia company might still manage the Kentucky company, or some particular through train over that road.”
And it was further said that whether it did so or not: was a question of fact for Hie jury, whose verdict ought not to be disturbed upon the evidence, which is set out in the opinion and is much less cogent: in support of the verdict in that case than is the evidence in support of • the verdict in the case at bar.
An exception was taken to'the ruling of the court excluding certain evidence offered by the plaintiff in error; but, as the exception is not argued in the brief of counsel for the plaintiff in error, we infer it is not regarded as tenable, in which view we concur. Finding no error in the record, the judgment of the circuit court is affirmed.