MISSOURi 'pA.c., BY. cO.
,C TEXU PAd. BY. CO.
311
as heretofore stated, that it Mnnot be regarded as working' an estoppel .in this proceeding. Whlltever rights were secured by that decree must, of course, be enforced as between parties now entitled to the protection of the decree.'
V.'!'J,<;XAS ; .
February 4, 1890.)
(Oilrcuit Oowt. E, D·
claimed' damages for injuries to his' wife,received while defetrd:ant and In' support of his claim prorallWBt' Cbmpany was in the: hands the adudgmentrelldered in the state court againstsucb receiver. On. reference to a maSter, intervenor a witnesll who further testified as'to 'the.'lact and extent of the injury,Helil, that this waS a waiver of the rightto claim,tbat tbe judgment agaitlst. the receiver was COIlclllsive as to negligellC6 and ' , , '... . '. " . " . 8; 'SAMtI:.i..VERDICT-ExOESSIVE' DAMAGES.' j Intervenor's wife waslniuted by the negllgence of the employes of defendant J:ailway.. appeared that she bad been employed in keeping the boarding-car attacbed to tbewnlitruction train; that by tbeaiJcident ber leg was ,broken, her arm dislocated, snd her back, shllulder, and sidiliniured. Sbe had done most of the workon but, by reason Qf her injuries, had 'bcenable to do nothing for two 'years; Held, that a verdict $10,000 damages was excessive, and that it would be reduced tof5,OOO. . '.
lNJURlEs-JUDGMEl'T-o-WAIVER.
".,
of
,
,Hm.oe
Armstrong, for mtervenor. . , Ptenti88 and T. H. P?"endfJl'gast, for defendant.
to the ¥aster's Report., Intervention of Owen Sullivan. ' '
I
·. In this case, on October 26, court maqe an .' , orderdlsPhargi,ng the receiver, ,and directing the dellv:ery to the defendant company of all property, funds, and aseets in his bands as receh;er. It is further provided in said order that the said'(}ompal1y should take the saidptoperty subject to any andaUjudgments which have heretofore 'been rendered in favor pf intervenoTs in the case, which have not been paid, as well as subject to such judgments as might be thereafter rendered by the court. in' favor of intervenors on interventions then pending and or which might be file.d. prior to February, It further 'provides that all claims againat the receiver, aS8uch,up to *e 31st day of October, !..888, bepresente(iband prosecuted by intervention
.:312
FEDERAL REPORTER t
vol. 41 ·
prior to February 1, 1889, and, if not so presented by that.date, the .same be barred, and not to bea charge on the property of said company. Under this said order, the intervenor presented to this court his petition of intervention on the 3d day of January, 1889; and in his petition he alleges that on the 25th day of February, 1888, he recovered a judgment against John C. Brown, receiver of the Texas & Pacific Railway Company, in a suit entitled "Owen Sullivan against J. C. Brown, Receiver," on the docket of the district court of Harrison county, Tex., a court of 'colllpetent jurisdiction, in the sum of $10,000, for injuries done to the wife of intervenor by a railroad engine. operated by, and under the control of, said receiver, his agents and employes, all of which 'will more fully appear by the transcript and abstract of'judgment attached. Further, that this judgment was appealed from by the said John C. Brown, receiver, to the supreme c9urt of the, state ,of Texas, iq ,which court the was affirmed. He aV&8,also, that said judgment has in whole Or in part, and the said judgment was obtained when,all the property oithe defendant railway company was in the hlmds:of,and under the control of, said John C. Brown,receiver. Inthat his. said petition of intervention be filed, and reof the of the COl1J;'t fat: examination and report as to ferred 'W the binding effect of the same upon the said J. C. Brown, receiver, and · the said J. C.Brown,receiver, be t6 pay intervenor the sum ·of 810,000, with interest, according to the terms of said judgment, and ·for eqpHable relief. .Service of said 'petition beinga,cpepted by the attorneys. of said Texas & Pacific Railway Company, an 'order was made ·referriilg tne same to a special master for report. The special master has reported in favor of intervenor, on the ground that the suit in Harrison county'was rightfully instituted, undera.uthority of the act of congress, approved ,March 3, 1887,'and the judgment therein rendered is conclusive against the receiver. . The spe<lialmaster recommends that the re, ceiver be ordered to pay tb.e intervenor thellmount of the judgment, interest, and costs, and the costs of this intervention. To this report the Texas and Pacific Railway Company have filed exceptions as follows: . "First. TIle' master' in holding that, under the judiciary of congress of 1887, the intervenor had a right to sue the receiver in the state court without permission of this court. Second. The master erred in holding that. the jUdgment of the state court was conclusive in the respect, and to the ex.tent, statedijy him said report. Thi1'd. 'rhe erred in holding · there was any neglect in the premiseson the part of the receiver. Fourth. The findingintnd report of the master are contrary to law and the evidence, ·and the evidence does not furnish any legal basis for .the recovery andth& 'report. Fifth, The judgment . and claim of intervenor. and amount re: ported, are, in any event. excessive anq. inequitable; and, under said actot .' ,cpngress, this c\)urt has the and power to, should, reject the same. pr .reduee the amount qf report and recovery." . .. ' · r ' · · · · ·
Subsequently supplemental exceptions were filed,·as follows: "(I) Thatthe master erred in receiving or considering the jUdgment ren, dered inithe state court, because the same was not admissible, and could not. .have anyeffe¢. for thefoU(jwing reasons: (a) Said $uit was brought against. j ..
MISSOURI PA.C. RY. CO. 'V. TEXAS PAC. RY. CO.
313
the receiver without the permission of this honorable court. (b) Becausethe said receiver, in the suit in the state court, by demurrer, excepted tothe juris. diction of the state eourt to proceed against them,: and. if the foregoing sbould be overruled, the defendant further excepts that, even if said judgment of the state court agai nst the receivers was in law conchtsive. or had the effect given to it in the master's report, whieh is denied, yet claimants and intervenors herein, on the trial of the before the master, after introducing the judgment of the state court, offered Mrs. Sullivan a witness before the master, and voluntarilyt,ook testimony in regaJ;d to the claim, which amounted, to a waiver of all right:! under the judgment, and opened the whole case, so that it could be passed upon and decided by the master and by this honorable court in the same manner as though there had been no judgment (2) Said defendants further except to the said report on the ground that, evert if the said receiver were guilty of negligence in the premises, which is ex· pressly denied, yet, even in such case, that intervenors ,cannot recover, because said Mrs. Sullivan was aiso negligent, and by her fault and negligence contributed to the accident complained of." 1. In the case of Barton v. Barbour, 104 U. S. 126, the supreme court of the United States held"That' when the court of one state has a railroad or other property in its possession for administration 8S trust assets, and has appointed a receiver to aid it in the performanl'e of its duty by carrying on the business to which the property is adapted until such time as it can be sold with due regard to rights of all persons interested therein, the court of another state has not jurisdiction, without leave of the court by which the receiver was appointed. to e'ntertain a suit against bim for a cause of action arising in the state ill which he was appointed, and in which the property in his possession is situated, based on his negligence, or that of his sel'vants, in thl;lperformanceof their duty in respect of such property."
That this was the law prior to the judiciary act of 1887 is not disputed. In this case, however, jurisdiction is claimed: for the district court ()f Harrison county, state of Texas, over the receiver appointed in this <lOurt in the main suit, which was instituted in this court an the 15th day of December, 1885, by virtue of the third section of the judiciary act, approved March 3, 1887, correctly enrolled by act approved August 13, 1888, (25 St. at Large, 436,) which provides- . , "That every receiver or manager of any property appointed byany court of the United States may be sued in respect of any act or transaction of his'iri. carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; but such auit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was appointed, 80 far as the same shaH be necessary to the ends of justice." . . The repealing clause of the said judiciary act contains this proviso: "That this act shaH not affect the jurisdiction over, or disposition, of., any suit removed from the court of any state, or suit commenced in any court of the United States, before the passage hereof, except as otherwise expressly provided in this act." The question then presented is whether the permission given by said third section to institute suit against receivers in the United States courts without previous leave obtained of the court ,appointing the receiver, af-
fects thejdrisdiction oHhiscourt 'aver the main suit. The case ofBa'l!· ton. t. is autliority"for holding that the necessity of 9btnining Jt9 prosecute a sUIt' against a receiver appointed.byanother c();urtiE! ,jp,rlsdictionaI. Tbls court has exclusive originaljurisdiction overitueceiver as to actions based on negligence in the operation of the trnstproperty when the act of 18$7 was passed. If the third section of that act went into inimediaite operation quoad this cause,then it seetnscleaf tbats.aid act affects th'ejtirisdiction over a suitthen pending; and this the revealing pIause prohibits. It also seems blear that whatcounty acquired by saiq ever jurisdiction the district court act was so, much jurisdiction taken ,away from this court. It would seem to follow that,as to the receiver of the Texas & Pacific Railway, the act of 1887 did not take effect, and that therefore the district :court of Harto entertain a suit against rison countyt'Tex'., ,was such receiver. If said court was without jurisdiction. then it follows that on the! pending intervention this court is not concluded by reason of the verdict and judgment rendered upon the qrlestionof negligence, nor upon the "quantum of damages.:;-: The third section of the act of 1887, quoted above, in terms.ptovides that the suit so instituted in ansubject to .the 'g,eneralequity jurisdiction of the in which .. receiveds .so far as the same shall be neeess!lry to of justIce: ,'Tne.'b{jtte,r opinion of the efrect of said of the court appointing seetion is receiver, as a prerequisite to instituting a suit against him in another court, and that a 'suit brough.t thereunder has the same status, and a judgment rendered therein has the same effect, as if permission to sue bad been regularly granted by ,the court the receiver. However this maybe, it is clear thatwnjlna judgment is so obtained, and is as a lien upon brought to the court of original! juriediction to be the .trust funds" such judgment is subject to the general llquity jurisdie-. tion, and the duty of determining thepghtfulness of the judgment, including whether the amount is just,is.atill imposed upon this court, as it would be if it had ordered. an issue tried at law; for this court mn,st the languj\ge ofthe l'ltatute, a "general equity jurisdiction, so far.as the. same shall to the. ends of justice." In the present case, the proceedings before the master show that intervenor oft'eredevidence, in addition to that contained in the record from the state court, teading to show the fact of injury, and theextent of damages, therebyw8iving any right ihtel'venor may havehad to claim that his judgment was conclusive upon the question of negligence and dam':' ages. For these reasons I aOl'ofthe'opinion that in the present intervention the: court may inquire as to ! whether or not the intervenor has a li,en,and, if so, the rank and amount thereof, andthatin such inquiry the court is not conc1udedin1l.'Jlyway by the verdIct and judgment pro':' duced from the district court of Harrison county, Tex: ',"'2. The evidence submitted in this case on the intervention is practically the same evidence that was submitted on the hearing of the cause in the state court. It is only supplemented by the testimony of the in·
J4ISBOUlU tAc. BY. CO. 11. TEX'AS PAc., BY. CO.
815
jured party that at the time of the hearing before the master she had notTecovered from the injuries complained of. This evidence makes a case of negligence upon the part orthe receiver's employes, through which the wife of the intervenor received the injuries complained of. It does not establish that by her negligence she contributed to such injuries. It is therefore a case in which the intervenor is entitled to damages. The amount of damages, however, is more difficult to determine. It appears that Mrs. Sullivan, the wife of intervenor, was employed in· keeping a boarding-car for the receiver,'in connection with theconstruction train, in which, according to her testimony, she did a large partof the work;dhat by the accident her leg was broken, her arm her back, shoulder, and side injured. At the end of two years she had not recovered from such injuries, and was able to dd Httle work. The injury occurred in May; and, according to her testimony, she was unable to walk until September. Previous to the ipjury she was a stout, healthy woman. At the time of the trial in Harrison county, she was hardly able to dress herself.Tge jury that heard her case gave a verdict of $10,000 damages. This amount is claimed to be, and I think is, excessive. The supreme court of Texas, in this very case, said: "The verdict is large. a.nd, the court below, in the exercise of a sound discretion, might properly have set it aside; but the damages are not so greata$ to manifest that the jury were actuated by passion or prejudice, and therefore we cannot disturb the verdict because it may seem to us too large." Brown v· Sullivan, 10 S. W. Rep. 2&:1. This court, in determining the extent of intervenor's lien, as has been shown above, is not concluded by the verdict and judgment in the Texas court; and under all the circumstances, as developed by the evidence, it appears that the sum of $5,000 will be ample pecuniary remuneration to the intervenor for all such damages and injuries as can be compensated in money. The following order will be entered in the case: This cause came on to be further heard upon the intervention of Owen Sullivan, and the master's report thereon, and exceptions thereto, and was argued, whereupon it is ordered, adjudged, and decreed, that the exceptions to the master's report be, and the same are hereby, sustained. It is further ordered that the intervenor do have .and recover from the receiver, in this cause, the sum of $5,000, with 8 per cent. interest per annum there-' oil from the 4th day of May, 1887, and the costs of this intervention, and that the Texas & Pacific Railroad be condemned to pay the said judgment under the order'of this court rendered on October 26, 1888, under which the said company retook possession ofits railway property.
816 ,MISSOURI PAC.
Ry. CO.
V. TEXAS: PAC.
Ry. CO.,
(ANDREOLA,
Inter-
venor.) 'I'
(Oircuit Oourt, E. D. Louisiana. February 5, 1890.) 1. IMPUTJ!ID NEGLIGENCE-DRIVER 'AND
i.
IN PUBLIC CARRIAGE.
Ina'll action for damages for injuriesc&used by the collision of a railway train with II carriage occupied J:>y intervenor'.8-Wife, it alJpeared that by reason of the accident her left shoulder was broken, causing her great pain for several weeks i that as a result tbe arm was' practically 'paralyzed, and permanently disabled, ana often, painful; that sbe was a dress-maker by trade, and· contributed largely to the . support of the family; and that her ability to so contribute was impaired by her injurIes. Held, that a verdict of 34,500 was not excessive.
DAI\JAGES-FoRPERSONAL INJURIES.
In EqUity. On exceptions to the master's report. Intervention of Constantine Andreola. Rice &- Armstrong, for intervenor. F. H. Prendergast and Howe &- Prentias, for defendant. On the 22d'day of March, 1887, the intervenor's wife, while occupying a public carriage, hired for the occasion, was injured' through a collision with said carriage and one. of the trains operated by the receivers. in this cause, at a public crossing in the town of Marshall, in the state of Texas. . On the 9th pf,August, 1887, the intervenor instituted a suit in the district court.of Harrison county, Tex., against the repeivel's, to recover damages for slwh injuries. Tlle receivers appeared, and demurred to the jurisdiction of the court,and at the same time. pleaded a genernl denial,and<lontributory negligen.ce. On the trial o,ftbecase, in August,1888, the jury verdict as "We, the jury , find for the plaintiff actual damages, including all ex'pensesitothe total amount of four five hundred dollars." Upon which verdIct the court rendered thefollowjng judgment: "It is therefore considered. ordered, and adjudged by the comt that the plaintiff do have and recover of the defendlliUts, John C.:Brownand Lionel A. Sheldon,in"their capacitIes ,as rllceiversof the Texas & Pacific Railway. the sum of four.thousand five hundred dollarll, ($4,500.00,) the finding of the jury aforesaid; with all the costs of tlliil suit ; that this jUdgment be tified to thl! bonorable circuit cOilrt of the 'United States for the eastern district of Louisiana, at New Orleans, in which said court said receivers were appointed, and under the orders of which said Brown is now, and has been. operating said road, to be paid, under the orders of said court, out of the earnings of said railroad; and it is further ordered, adjudged,and considered by the court that this judgment shall lie a lien upon the earnings of said road in the hands of said receiver, arising from the operation of said road in Texas, and on all machinery purchased by the receivers under said earnings, and on the improvements and betterments placed upon said railway in Texas, out of the earnings of said rail way. "
