FRANCISCO
v.
CHICAGO, M. & ST. P. RY. CO.
647
The issue on trial before the court and jury involved simply the question whether when the note was indorsed by Shaver the indorsement was colorable only, or did the plaintiff in good faith buy said note, and become the real owner thereof. The best evidence on this issue would be testimony showing what in fact was done and said 'at. the time of the transfer, or in immediate connection therewith. The of Mr. Tuthill, and of aU other officersof the corporation having any knowledge of the transaction, could hR"e been taken, and thus the real facts of the matter could have been reached. Instead of procuring this testimony, the defendant sought to introduce a declaration or statement made by the president of the corporation long after the transfer of the note, and without any evidence showing that Mr. Tuthill had any authority to make such a declaration, or that he was charged with any duty in the premises,or was held out asthe officer to whom application for information should be If, under such circumstances, the declarations of Mr. Tuthill should be held binding upon corporation, and therefore admissible in evidence against it, it would be equivalent to holding that the corporation was / bound by aU statements or declarations made by ttny ofitsgeneral officers, no matter when or under what circumstances. It is not necessary to citelluthorltiesto show that so ;broad a proposition cannot beeustained'. The motion for new trial is therefore overruled.
FRAl<CISCO V.CHICAGO,
M. & ST. P. Ry. Co.
(Oircuit Oourt, No
n. lowa, a. n.JulY24,l888.)
EuCUTORSAiI'D' ADMINISTRATORS-Al'POilifTMENT-COLLATERAL' ATTACK.
Where an administrator appears to be duly appointed by the district court of Iowa. which has exclusive jurisdiction of such appointments, the regularity of the appointment cannot be raised collaterally hi a suit brought by'the administrator. ' , ' '
At Law. On demurrer, to theans'Wer. " ' Suit by H. E.Francisco, administrator ofWilliam' E. Brannegan.deceased, against the Chicago, Milwaukee & ,st. Paul Railway Company, to recover for an accident causing the death of the said: deceased. Stanbury & Olark,Bherwin & SchermerhM"niand M. D. O'OonneU" for plaintiff. Gemge E. Olarke, for defendant. SHIRAS, J. In the petition filed in this cause it is averred that on the 21st day of December, 1887, one William E. Brannegan, then in the employ of the defendant as a fireman on a locomotive, was killed in a collision occurring on defendant's road; it being averred that the collision was caused by negligence on part of the defendant company. It is also avel'Ied that the plaintiff has been duly appointed administrator of the
648'
FEDERAL REPORTER ·
. esta.te of aaid Brannegan, by the district court of Cerro Gordo county I Iowa, ofwhich, oounty said Brannegan was a resident at the time of his death. In theanawer filed by the defendant it is averred that the plaintiff is not the legally appointed administrator of the estate in question, for the reason that the statute of Iowa provides that administration shall be first to the wHe,or such person as she may select, and, secondly, to the next of kin, and that a period of 20 days is allowed to each class within which to apply for letters; that the letters in this instance were issued ,to plaintiff upon the petition. of one Florence E. Brannegan, who claimed to be the lawful widow of William E. Brannegan. while in fact she was not such, by reason of the fact· that when she married the deceased she had a:.lawful husband 'then living; that by reason thereof she was not the lawful widow'of the deceased, and could not, therefore,.exercise the right ofselecting the administrator, to the exclusion of the next of kin; and that the act' of the Cerro Gordo district court in appointing the plaintiff was therefore void; and that plaintiff cannot maintain this , action. To the second count orthe answer setting up the facts stated a dBmurrer is interposed,thus presenting the question whether the appointment of plaintiff,asadministrator can ,thus be attacked.· Under the provisions of Cerro Gordo county had the exof the statute of elusive right to appoint the administrator of Brannegan's estate. When the application, therefore, was made for the appointment of an administrator, that court had full and exclusive jurisdiction ofthesubject-matter, and its action in the premises cannot be collaterally attacked. If for any reason the appointment,was improvidently made, the remedy lies with that court. So long as the appointment made stands unreversed by that court, the perspB:so appointed ll1;lSt be recognized as the legal administrator of the estate of William E. Branl1egan. If the next of kin claim that the was misled' in making the appointment, they should apply to that coutt for redress. It is not, however, claimed that the next of,kin are moving in.the matter, or that they object to the appointmpnt of the plaintiff. The defendant is asking the court, in effect, to review }he action of the district court of Cerro Gordo county in appointing the administrator, on the ground that,the rights Of the next of kin were not properly considered', and'that the appointment of the presentplairitiff is wholly void', because that court otightnot to have made the appointment until the 20 days allowed to the next of kin had expired. As already said) that court hadt:ull jurisdiction of the application for the appointment of the administrator, and its action on that question is final, so far as this court is concerned. The demurrer to the second count of the answer is therefore sustained.
PARSHALL "- MINNEAPOLIS & ST. L. RY. CO.
649
PARSHALL 'D. MINNEAPOLIS
&
ST.
L. Ry. CO.
(Oircuit Oourt, D. Minnesota.
June 28,1888.)
i.
RAILROAD COMPANIES-LIABILITY FOR NEGLIGENCE-COLLISION.
One injured by a collision between two trains, on one of which he was a passenger, can recover against the company on whose road the other train was running, its engineer, having caused the disaster by his negligence, although the engineer of the formel'" train may also have been guilty of negligence. ' In an action against a railroad company for personal injuries, under a petition alleging that plaintiff is a minister, engaged in other avocations at different times. and was prevented by such injury from performing his avocations. evidence of the amount of the salary plaintiff had received theretofore is to the amount of recovery, and it is prope,r for the court to refer thereto in its charge. In such action. though a statement made by the conductor of defendant's train" not part of the res gestr,e, was improperly admitted, yet if upon 'relevant evidence in the case, the verdict was plainly right, and would have almoilt necessarily followed had such error not occurred, the verdict should not be set aside. " , "" '. A motion .for a J).ew trial being argued before a different judge from th'e olie presiding at the trial,and the evidence relating to the character and extent of the damages sustained, not being all preserved by bill of exceptions, the verdict will not be set aside on the ground that the damages are excessive.' , It being doubtful whether' the j nry arrived at their verdict by adding together the amounts each thought the plaintiff should receive, and 'dividing the sum by twelve, the quotient to be the amount of the verdict, agreeing in advance to, abi<ie by the result, or simply made su$ cal,culation as a basis for further discussion and agreement, a motion to set aside such ve'rdict on the ground of misconduct of the jury should be overruled. 1 ' '" , . ' , " . . ' '
2.
DAMAGES-FoR PERSONAL INJURy-EVIDENCE.
3.
NEW TRIAL-RULINGS ON EVIDENCE-HARMLESsERROIt.
4., SAME;
,G.
SAME-,MISCONDUCT OF JURY.
At Law. On motion to set aside verdict of jury. Action by R. F. Parshall against the Minneapolis & St" Louis Railway Company for injuries received by a collision of trains. Verdict for plaintiff, and damages assessed at $8,000, which verdict defendant moved to set aside. Bleekman, Bloomingdale Jc Tourtelotte and Flandrau, Squires Jc Outcheon, for plaintiff. J. D. Springer, F. D. Larrabee, and a. D. O'Brien, for defendant. 1 It is. entirely proper for the jury, in actions for unliqnidated damages, to l'dd the amounts named, by eaCh, and divide the sum by 12, to obtain a medium sum to be submitted as a proposition for a verdict; .but such process mu,st not be, Bdopte,d,pursuant to an agreement to be bound by its result. Village of Ponca v. (Neb.) 87 N. W. Rep. 609. , The testimony of jurors is not admissible to impeach their verdict by showing that the amount of damages awarded WaS averaged. Clark v, Manchester, (N. H.)lS Atl. Rep.867; Ward v. Blackwood, (Ark.) 8 S. W. Rep. 624, A motion for new trial on the of misconduct of the jury is ordinarily addressed to the discretion of the trial Judge. Com. v. White, (Mass.) 16 N. E.Rep. 707. See, also, cases cited in note. On the general subject of when a new trial should be granted on the ground ofmisconduct of the jury, and how such misconduct is shown, see State v. Rush, (Mo.) 8 S. yv. Rep. 221; Griffin v. Harriman! {Iowa,) 38 N, W. Rep. 139; Grottkau v. State, (Wis.} 36 N. W. Rep. !31, and note; v. Co., (Me.) 5 Atl. Rep. 262, and note; Berry v. De Wltt, 27 Fed. Rep. /28. , '
650 BREWER, J. This case wa.s tried at the last term of this court, before Judge NEJ"SON and a jqry, and a, motion for a new trial was argued before me on a bill of exceptions. The case involved the same facts presented in a case just tried \at, this term, where at a crossing of the Chi. cago, & St .faulR:l;tilwayand of the, Minneapolis & St.Louis Railway .two·trains, collided; alld the plairitiff, passenger on the Milwaukee train, was injured., 1 always decline to hear a motion for a new trial ill; tried beforea'nqther judge, the case stands upon some question of law sent by that jlldge to be heard here. Motions for new trials are simply appeals to the discretion of the court, and are not matters of right to be claimed by the (defeated party. It is clear that the trial ju,c,lge:,better than allY one 'else can ,determine whether substantial justiCEl'has been done, and should pass upon such a motion; but in h'is' absence the motion waS argued before nie,atld I said to· counsel at the time that I should heard the facts to be developed in the approaching trial before determining this motion. I have heard the ;facti,j and,\'i\thether or no there wasj;\n.y negligence on ,the;partM Milwaukeeengine¢r" jUs very clear to my mind that there was culpable negligence on the part of the Minneapolis & St. Louis for,.notwithstandillg declaratio,ns,and the testimony of one aame'impoH,that he st()pped his train before he "Cl8.me to thestop"board, it is very evident to me that he did not do so; thitt he approached that crossillgwithout stopping, and without putting ,biB, traill so far under control that he could stop he saw the approachSo that, upon the facts, 1 am very clear that the :M:itineapolis,& StLouis Toad was chargeable· with negligence in that colthe questioll.whether the Milwaukee company was also chargeable with negligence., Under those circumstances, unless on the trial there was some substantial error, it is my duty to overrule the motion for a new trial. . "'Some:niattenlJ'are suggested which require a word or two of comment. Two affidavits were filed charging misconduct on the part of the jury; onel an affidavit of a juror that a 'Verdict was reached in pursuance of an agreement that each juror should write down the amount which he .thought the should receive, and ,after adding thein together and dividing by 12, that the amount so reached should be the verdict. Of course,ih, verdict is reached in pursuance of an agreement to abide by the result of such an addition and division, it is misconduct such as . But it is also true that it is not improper, eomm'on in matters of this kind, where the a.mount does not rest upon any-fixed Tule,but depends upon the discretion of the jury, for each juror to put down the amount.which he thinks the plaintiff ought the sum of the ,amounts behlg divided by twelve places to berore the jutY·a; basis forfurtherdisc'ussion and agreement; and when that is. all thM done, such attempt tareach concord and agreement does not: vitiate .the ,verdict. While the affidavit of .this juror is to the effect ,that\ theverdi'ct was obtained under such an agreement to abide by the result,! another affidavit, and the papers which wefe .found in the jury-room ,
and lS
PARSHALL
MINNEA-POLIS .& ST. L. RY. CO.
651
indicate. that there were of that kind ma.de,.........twelve sunis, put down one after the other added togethl;lf and. divided by twelve; but the result of none of these efTorts wns the exact, amount of the verdict returned. Tb,ere is also the affidavit of another juror. that there was no such agreement in advance, and that aU that wlls done was simply,as 1 suggested, an effort to see what was the average of the judgment of the jurors. Passing the question whether the affidavits of jurors are admissible in that respect to impeach the verdict, it is clear that no verdict can be impeached therefor unless it is clearly and satisfactorily shown that such misconduct did exist. It is often an easy thing to get the affidavit of a single juror as to transactions in the jury-room, but unless it is clearly shown that the jurors were guilty ,of misconduct the verdiet: should stand. Here we have the affidavits of two jurors, one against the other; and if we put them both to one side, still the papers found very strongly tend to show that all that was done was,i!iinply an effort to find out the average opinion of the jurors. Another matter was brought up, and that is the amount of the verdict, $8,,000. It is enough to say upon that, that tel;Jtimony,as to the extent and charact<;}r of the injuries is not preserved in the bill ;Of exceptions,andtherefore it is impossiblefor me to say Jhatthe verdict was not a satisfactory and just response to the testimony.' It is also objected that testimony was permitted to be introduced,and that the court called the atteution orthe jury in estimating theat:nount of the verdict to the fact that,.the plaintiff was a minister and had been receiving as compensation for his services from $1,000 to $1,800'ayear theretofore; and it is claimed that that was a matter of special shouldhave been separately and distinctly alleged. It is alleged in the petition that he was a minister, and also engaged in other avocat5.ons at different tiIJ;lcs, and that by the injury he \vas prevented from the proper prosecutiO:n of his avocations. The court did not tell the jury to multiply the plaintiff's salary by a number of years, and award hini such surD; but the testimony being, as 1 think, properly admitted under. the it was proper to call the attention of the jury to it in the charge, to be con.. ,.. ' sidered by them in determining what was due, compensation. Tbere are two or there othel\matters in perhaps the trial judge made a mistake. For instance, lie perluitted one witnE>ss to testify as to' a statement made by the conductor of the &St. Louis train after the accident. . True, it was buta few mon-rents after, but 1 am inclined to think it was not quite near enough to be received as a part of the re.a gest1e, and it was not made by one who had charge of the Olovement of the train. In one or two other matters of a similar nature, r think a. careful examination would satisfy the trial judge, as it has impressed.me with the belief, that there was some technicaletroi'.'But.1 do understandthat an error of that kind is of itself sufficient tojustify a. court insetting aside a verdict and putting the parties tothe expense and tinie ' of anotnertrial, ifupon all the facts it'l th'e case 'itfs clear thnt, these errors being excluded, the same verdict will almost, necessarily Jollow. After listening to the facts developed here I d.o bo.t see how it.iS reRJ:!on-
not
652'
FEDERAL REPORTER.
able to expect that any jury would find otherwise that the engine'll of the Minneapolis & St. Louis train was guilty of negligence; so, while perhaps another jury might estimate the damages at it different sum, yet the verdict would be ineyitably for the plaintiff. Hence, although perhaps technical error maybe found in one or two matters, I am constrained to overrule the motion for a new trial. Ordered accordingly.
SCHROEDER et ale
1). W. E. TRUBEE, (four cases.) SAME SAME V.MILLS. SAME V. WIT.LETT.
V.
COMSTOCK.
(Oircuit Oowrt, D. Oonnecticut. July 23,1888.'
Defendants controlled the entire stock of a cigar manufacturing corporation. Their salesman negotiated a sale of the stock to plaintiffs, with a view of procuring a larger salary for himself.. Plaintiffs had been called in prior thereto to ap.vise defendants as to the proper management of the factory, and knew that they were not satisfied with their business. The salesman represented that certain dividends had been declared. When the parties met to complete a sale, in accordance with a previous appointment, defendants stated that the dividends had been earned, and that the stock account was "all The defendants acted in good faith. Held, that the statements were not representations made by a seller, for the purpose of infiuencing a buyer, but were statements .of opinion of the condition of the property, and were not such representations or warranties as to entitle the plaintiffs to recover . for a breach or failure thereof. 1
W ARRANTY-FALSlIl
REPRESENTATIONS.
At Law. Action for damages for breach of contract. WiUidm B ..HiU and Simeon E. Baldwin, for plaintiffs. Goodwin Stoddard and Henry Stoddard, for defendants. SHIPMAN, J, The seven above-entitled suits are actions, at law by the same plaintiffs against different defendants, upon the same state offacts, by the court upon a written and duly signed stipulation and were waiyinga trial by jury. The facts which were found by the court to been proved and to be true, upon the trial of said several cases,are as follo\vs: OnPecember 29, 1884, ajoint-stock corporation by the name of the." Vallette &. Mitchell Cigar Company" was formed in this state, of cigars, with a capital stock of $25,000, whereof for the solicitation $20,000. was ,paid in. It was formed at the suggestion of Alexander P., Mitchell, who, and Victor Vallette, had been salesmen for e. New York dgar manufacturing house, and irithat capacity became acquainted with. the firm of Daviq. Trubee & Co., "Wholesale grocers of establishment of Bridgeport,ConI).' Mitchell proposed to that firm a corporation forthe manufacturesnd sale. of cigars,Qf which he and r lAs ,to what representations amount to warranties in contracts of sale, see McClintock v. Emick, (Ky.) 7 S. W. Rep. 903, and note; ,