,IUeJilOLlif v.-1I0RT.oN.
827
be' pl'esented;"but the' authorities are abundant in Bnpport: of the prinelplethat it is no object\ion"to an indictment to say tha.t ,"defend· ant did, Ql caused to be dQl:fe, " a particular act whichispuniabable by criminal statute. The allegation is good in that form, although tlie statute may employ the disjunctive conjunction -instead of "and." The follow.ing are some of. the authorities upon this point: Com. v. Twitchell, 4 Cush. 74; v. Fletcher, 18 Mo. 426; Durham v. State, l' Blackt 88rState v. Meyer, 1 Speer, (S.C.) 805; State v. Kuns,5 BlaQkf. 314jStatev. MOl'ton,.27 Vt.310; 2 Archbold, Crim'. Law, 810: See U.8. v.,eJorbin, II REP.
238;,
TJ. 8.
2 LoW. 232.
NICHOLS
v.
HORTON.
(Circuit Oourt, N.J). Iowa, E. D. December 8,1882.) 1. PRIVILEGE OF WITNESS-EXEMPTION FROM SERVICE OF
CrvrL PROCESS. Defendant, while in attendance. as a party and witness upon the trial of a case in Howard county, Iowa, by telegram directed -and instructed the sherilf of Mower county, Minnesota, to seize by writ of attac,:hment tIle goods of plaintiff,-whereupon plaintiff immediately brought suit. for the wrongful taking thereof, and served defendant with.notice of the commencement of such suit. Hdd, that defendant could not protect himself from respondihg to the ac-tion.1'lronght against him by the aJIegedowner of the property, under thepriv. ilegeusuallyac()orded to witnesses and patties in attendance upon a trial of a cause in court. RULE.
2. SAME-EltCEPTION
Where' parties or witnesses, while in attendance upon the trial of a cause, in. cluding going to and returning from the place of trial, do no wrong or injm:y to third parties, they may claim exemption from serviceo! civil process; but where they lay aside the character of parties or witnesses, and for their own be. half and benefit give cause for the institution of actions against them by thitd parties, they cimnotinvoke this but must be deemed to have-waived the exemptiol\'._ 'fhe trial upon the party or witness is in attendance must be interfered with by such service.
Thisdaction was commenced in the circuit court of Howard county, 10*0.-: "The defendant'is, and was at the time of the be¢nning of the action, a/resident and citizen of Minnesota. Service of the original notice was had npon defendant 'at Cresco, Howard county, Iowa, on ,the fourteenthd'ay of April, 1882. The petition alleges that plaintiff is the owner ()f certain personal property; that the sameW8.s in his posseBsionj' that while he (the
328
FEDERAL REPORTER.
plaintiff) was removing said property to Dakota territory it was levied on by the sheriff of Mower county, Minnesota, by virtue of a writ of attachment issued from the district court of Olmsted county, Minnesota, in an action wherein the present defendant is plaintiff and William. O. and W. Nichols are defendants; that such levy was for the benefit of the defendant herein, and was made by his express directions; that such levy and taking possession of said property were wrongful and to the great damage of plaintiff. At the September term, 1882, of the circuit court of Howard county, to-wit, on the twenty-sixth day of September, being the second day of the term, the defendant filed a petition for the removal of the cause into the federal court, which petition was granted, and the cause has been duly filed in this court. The defendant took no action in the state court save only the filing the proper petition and bond for the l'emoval of the cause into this court. On the first day of this term of this court, and as soon as it could be done after the removal of the cause, the defendant filed a motion to quash and set aside the notice and the service thereof npon defendant, being the notice served in the state court upon defendant, notifying him of the commencement of the action, for the reasons that, when said notice was served upon him, the defendant was a resident and citizen of Minnesota; that he was in Iowa. only temporarily, and for the sole purpose of attending as a party and witness upon the trial of a suit then pending in the court of Howard county, Iowa, and that service of the notice was made on him while he was in Iowa, for the .above purpose, and before the cause upon which he was in attendance was heard; that being thus in attendance upon the court as a party and witness, he was privileged from being served by legal process in a civil action. It is shown by the affidavits filed in connection with this motion that the defendant went to Cresco, Iowa, on or about the tenth or eleventh of April, 1882, for the purpose of attending the trial in the cause then pending at that place; that previous to going to Iowa, and about the eighth day of April, he instituted an action in Olmsted county, Minnesota, against William O. and W. Nichols, and sued out a writ of attachment therein, and caused the same to be placed in the hands of the sheriff of Mower county, with instructions to levy t4e same upon the property which was subsequently taken by the officer; that he instructed the officer to keep watch for said property, and informed him that he was going to Iowa, and that he would en.deavor to ascertain when the property would be shipped from Iowa
NICHOLS tI. HORTON.
329
through Minnesota, and would notify the sheriff by telegraph of' the facts, in order that the sheriff might make the levy; that while the defendant herein was at Cresco, Iowa, to-wit, on the eleventh day of April, the defendant sent a telegram to the sheriff of Mower county, notifying him that the property was in transit, and to make the levy; that this telegram was not received until the next day by the sheriff, who had already found the property, and executed the writ of attachment by taking possession of the property; that on the thirteenth and fourteenth days of April the defendant sent telegrams to the sheriff of Mower county directing ·him to' hold the property under : the writ of attachment. Under this state of facts it is urged in behalf of plaintiff that the privilege -claimed,of exemption from seryice of process in aeiV'il', action when in attendance upon another court as a party and wit- . ness, does not properly apply; and, further, that it is how tool'ate' to assert the claim, for the reaSon that the defendant did not make . the claim in the state court, but simply appeared generally in the action, and filed a petition for removal into this court upon the ground that there was a controversy pending 'between the parties inwhich i the amount involved exceeded $500. II. O. McCarty, for plaintiff. Reed et Marsh, for defendant. SHIRAS, D.J. The general principle that parties, witnesses, and " jurors are privileged from service of legal process in civil actions while in good faith they are in attenliance upon the hearing of a cause in court, is well recognized by the authorities, and in the case of parties and witnesses this exemption from service of process extends to the taking of testimony before a master or commissioner preparatory to the final submission of the cause to the <lourt. In point of time, the privilege exists during the time fairly occupied in going to and returning from the place of trial or hearing, as well as during the time when the party is in actual attendance at the place of trial. See Brooks v. Farwell, 2 McCrary, [8. C. 4 FED. REP. 166;] Juneau Bank v. M cSpedan, 5 Biss. 64; Bridgesv. Sheldon, 7 FED. REP. 17; Plimpton v. Winslow, 9 FED. REP. 865 ; Lyell v. Goodwin, 4 McLean, 29; Personv. Grier, 4'.6 N. Y.124; 1 Green!. Ev. §§ 316,317. Although this rule came into exiRtence at a time when, in civil cl'l.uses, the defendant mightbeal'l'esteJ and held in custody to answer the writ unless bail were given, and although that facthM doubtless great weight in bringing about the adoption of the rule, as it is mal1ifest that if a party, juror, or witness attending npon on&
330 causo could, be arrested in another and kept in custody, it would impede and possibly defeat the proper djsposition of the cause on trial; yet this was not. the sole Or. only reason for the of the rule in question. If it. had been the sole reaSOJ;l for the rule, then, upon the abolition in a.ny state of the right to arrest a defendant in a 'civil causo, thetule itself might be qeemild to have been thereby abrogated. Experience, however, has -shown .that in order that causes may be fully heard, and, thil orderly administration of justice may be assured, it is necessary that parties, witnesses, and jurors shall be protected against service of process in civil actions while they are in good faith in attendance upon the trial of causes. If parties or witnesses are liable to be sued when in. attendance upon the court in which the cause with which they are connected is pending, and by reason thereof they may be com,Pl'llled to appear and answer in a foreign tribunal, or in one different and far distant from th.at wherein they could alpne have been sued,. had they not been in attendance upOn the court, the fear thereofmigilt well deter them from attend,ing at the place ,of trial; and if they were beyond the reach of a subpama, a party might, as a consequence, be deprived of the personal presence and testimony of witnesses whose absence would be fa.tal to his cause. Without, however, endeavoring to give all the reasons why the 'privilege isstilbecognized and enforced in states under laws po arrest of the person can be made, as part of the proCQss for tbe,institution of civil actions, it is sufficient to say that the and is in .force, and in aU cases coming within its reason and· true. purpose this court will not. hesitltte to enforce it. Is it, however,arule. withqut exception, to be rigorously enforced in every case without reference to circumstances? Suppose a party or witupon a trial in a given case, and while so in ness is in wrongfully takes or injures the property ·of a third person, or, inflicts bodily injury upon him, is such. third person to be: debarred from bringing an actipn at onoe against the wrong-doer, because he happened. .be .a party qr witness in some cansethel} pendingJoi' trial;.but, with which the thirdpers()n has no connection? cqmes. from ltdistapt state, Or possibly Suppose a party :01' from cQqptry, to attend upon a trial, and while on his journeYrha"COlllmits a:wrOl}g, is the party thus injurl'ld; obliged to,submit until to ·t!:le .wrong aiDd pOElt,ppne.the ,bringing of an action Jor t\lf;l has} to };lis, may· be,w ip, t,he.U ;may
tantas ti; reiIledfif 'the'injured 'party to follow him to his home? a patty or witness, when in attendanee upon a trial, becomes 'to a hotel-keeper for his board, or to a merbbartt for goods'purchased, to he paid for on deli,,·· ery,and the debtor refuseS t<) pay his just debts thus contracted,' are the creditors powerless in theptemises, and ate they to be compelled to await the retu,rn of the debtor to his own home before they can invoke the protection of the'law? If such a rule should be would it not be Mabling pa.rties and witnesses to perpetrate wrongs upon third parties, and then to escape responsibility by invoking the as partie.s or witnesses in pend. privilege atta,ching tQ,th.eir ing litigation, thus converting that, which was originally intend.ad as a shield for their protection, into a weapon of{)ffense, to the injury of innocent third parties? Where the parties or witnesses, while in attendance upon the trial, including going to and returning from the place of trial, do no wrongor injury to third'parties, they may claim the protection of the privilege of exemption from service of civil process, but of 'parties or witnesses, and for where they lay aside the' their own behalf and benefit give cause for the institution of actions against them on behalf of third parties', then it would seem just to hold that they cannot invoke the privilege in bnttha:t by be tO,have waived the such ,action on, their part they exemption. In the exercise of the right ,of; bringing suit in such of such'third party, in instituting cases, it would be the dlity; his proceedings for the protection of his rigp-ts; t9 see to it that he does not in fact interrupt the trial of the cause upon which the 'Darty or witness is in good faith in attendance. In the case at bar, it appears that the defendant herein, when commencement of the action, was in atserved with the nQticefor in Howard county,Iowaj thll,t tendanc'e while in the ,sheriff of Mo"ercounty, :Minnesota" by his authority, a writ ,of attachment upon t)1e direction and lJ,ereip., this ,being on the of of was notcomplitted Until did not arise ulltil that ,that day, and th.e canse, of ,as the defendaJ;ltwas on.tpJl,t hiJIl in seizing property, j.t1Il,l}st ;hel4 jn of, the property, and that he cannot protect himself from responding to the ·,action c· , .· brought against him, by the alleged owner of the property, under the
hDBBAL RUORTB"
usually accorded to witnesses and parties in attendance upon a trial of a cause in court. There was no claim made, that the mere service of the notice on defendant, requiring bim to appear and answer at the September term of the court, the service being made in April, in any manner interfered with the trial of the cause then pending and upon which the defendant herein was then in attendance. Upon the facts disclosed on the record, we hold that the motion to quash the notice and service thereof must be overruled. and it is so ordered. See Larned v. GriJftn, 12 FED. REP. 590; Matthew 606, note. T.
Puffer. 10 FED. REP.
;FIELD,
Adm'r,
t1.
B. & Q. By. Co.
,circuit Court, D. Iowa. 1882.) 1. HIGHWAY CROSSINGS ON .RAILROADS-NEGLIGENCE-PERSONAL INJURIES.
The liAbility of a railroad company for death or personal injuries caused by the neglect of the company to pnt up at highway crossings the sign-board to warn travelers along the highway ot danger from the proximity of the railroad train, doesnol attach absolutely under the statute where it appears the damages sustained were the result of the injured party', own negligence, and were not caused by the absence of the sign-board. S. 8AME-S':l'ATUTE CONSTRUED-SINGN-BOARDS AT CROSSINGS.
The intention of the statute was not to create an absolute liability on the part of the railroad company, but to make the failure to provide sign-boards at highway crossings conclusive evideJlce of negligence on the part of the com· pany.
This action before the court· on motion for a new trial on the "ground of misdirection to the jury as to the lav- of the case. Plain. tiff's intestate was killed by a mo-ving trainwhile'ilittempting to cross defendant's road with a team ata public crossing. The statute of Iowa, § 1288, requires a sign-hoard" to be set up' at pn,blic crossings as a warning, and plaintiff dlaiIIl.ed" that the ne,gJect to set up such sign-board at the highway crossing where the injury occurred . made tire defendant absolutely liable under the statute. and'requested "the court to charge the jury to which the 'llourt refused. .The questioilwas upon the cOllstruc.tioll of the statute, which iBas 'follows.
is
