UNITED STATES PARDEE) J.
V.
NORRIS.
741
The United States having sued the defendant Mrs. Annie
E. Norris, wife of William B. Norris, for the sum of $3,000, for the value of timber unlawfully cut by trespassers on the public lands, and converted by the said defendants to their own use, recovered a verdict of $105, upon which judgment was rendered for the sum of $105, with 6 per cent. interest thereon, etc., from which judgment the United States prosecutes this writ of error. The only errors assigned relate to the charges and refusals to charge by the court, as set forth in the following bills of exceptions: "Be it remembered that upon the trial of this callse. the evidence being concluded. the court. among other things. charged the jury as follows. to-wit: · That. the defendant being in good faitb in the purchase of the timber in open market. and at the usual place for delivering logs to her mill. the government can recover against defendant only the value of one dollar ($1.00) per thousand at or on the land where the timber was cut ready fOl' hauling.' -to which ruling plaintiffs excepted. and took this their bill of exceptions. and ask the same to be entered of record. Be it further remembered that the plaintiffs ask the court to charge the jury as follows: 'If the jury finds that W. B. Norris. agent for tbe defendant. purchased the timber in question at or near his mill, or in the water-way leading thereto. they will find against the defendant in the sum of five dollars per thousand; or. if they find that he paid for said timber five dollars pel' thousand. they will find for that sum.'which charge was refused by the court; to which refusal, as well as for the charge given, plaintiffs excepted. and tender this their bill of exceptions, and ask the same to he entered of record." etc. These bills of exce"ption recite no evidence, and the case seems to be identical in all respects with that of U. S. v. Wingate, lately deciued in the circuit court for the eastern district of Texas, reported ante, 129, and for the reasons there given the judgment of the district court must be affirmed.
UNITED STATE.'l
NORRIS et al.
NORRIS et al. v. UNITED STATES. (Circuit Court, W. D. Louisiana. January 5, 1S91.)
M. O. Elstner. U. S. Atty. J. L. B1'adford, for Mrs. A. E. Norris.
At Law.
Error to district court.
PARDEE. J. The United States brought suit in the district court against the defendant to recover the value of certain timber and logs unlawfnlly removed by trespassers from vacant public lands, and by the defendants received and converted. After various exceptions were filed. which seem to have been disregarded because tiled too late, the deft>ndant filed a general denial. A trial was had before a jury. which fonnd a verdict for the plaintiff. and against the defendant, in the sum of $687.50, whereupon the defendant filed a motion for a new trial. on the ground that the verdict was excessive. and contrary to the law and the evidence. The motion for a new trial appears to have been dis-
742 ,posed
FEDERAL REPORTER,
vol. 44.
by between the parties that it should be granted, for thereafter, without mentioning it,1\ waiver of trial by jury was entered and the cause was submitted to the court. The court found the following statement of facts: "Henry Gill, in 1877, desiring to enter the following described lands: N. iN. E. i, S. W. i. N. E. i, N. E. i. N. W. i, sec. 12, in T. S. 7, R. 8, W., lying in LOllisiana, Calcasieu parish. public lands at that time,-Gill made application and affidavit under homestead laws, and paid thirteen and ninety-seven one-hundredths dollars ($13.97) as the fee required by the government. He did not go UpOIol the lands, and made no improvements thereon at any time or kind; that in 1883 and 1884 Gill sold to Lanier & Nixon all the right to cut all the timber on the said lands; that Lanier & Nixon gave him Ii trifling sum for the right to cut the tim· ber. Lanier & Nixon trespassed upon the lands. and cnt five hundred pine logs therefrom. The five hundred logs measured one hundred and twenty-five thousand feet. The logs lying cut on the ground were worth $1.25 per thousand. After they were put in the water to· be converted the logs were worth $5.50 per thousand. W. B. Norris, as. the agent of his wife, the defendant in this suit, bought the five bundred logs from Lanier & Nixon at $5.50 per thousand. He did not know that said logs were cut by them from the described lands. Norris . bought and received the logs at the general place where he bought logs for defendants' mill in open market at the ordinary prices for timber. Gill. desiring in 1889 to take the benefit of the law of 1880. (June 15th, section 2 thereof,) was allowed by the government officers in the land-office to pay $1.25 per acre to the government for said lands, and he was allowed a credit on the sum to be paid by him for the $13.97 paid by him in 1887, when he made his application. Gill now has title to the said land. On this statement of facts the court orders and decrees that plaintiff have judgment against the defendant in the sum of one hundred and sixty-seven and twenty-five one-hundredths dollars, ($167.25,) with legal five per cent. interest from date of filing petition in said suit." The reasoning and opinion of the are fou nd iq 41 Fed. RAp. 424. On the statement of facts as found by the court the defendant asked the court to rule 88 follows: "That under the special finding of facts it is good law to hold that the United States, plaintiff in this suit. by their legislative act, being the law of June 15, 1880, § 2, condoned the .failure of the homestead enterer. Henry Gill. to enter upon, improve, and cultivate land covered by his homestead entry. according to the requirements of the homestead acts; and that, having received from him in 1889 the full price at which the lands were held for sale in 1877. issued to him the usual evidence of such payment. the said United States. as the plaintiff in this Buit. cannot recover from the said Gill, or allY person cutting timber on said lands under his authority. any civil damages for said cutting or the removal of said tim· bel' from said land when the cutting and removal were done after the said Gill made his homestead entry, and before he bought the land in 1889.» This ruling was refused by the court, and bill of exceptions reserved. The plaintiffs also reserved a bill of excep.tions to the finding that the defendant. being a purchaser in good faith, was responsible to plaintiffs only in the sum of $1.25 per thousand. Both parties have sued out a writ of error; one complaining that too small a jndgment was given in his favor, and the other that any judgment at all was given against him. . The questions presented here as to the effect of the homestead entry and the rule of damages are identical with those decided in the case of U. S. v. Norris, ante, 740, and the decision in that case must control the present case. It is therefore ordered and adjudged that the jUdgment of the district .court be and the same is reversed, with costs, and that this cause be remanded to the said district court with,lnstructions to enter judgment for the plaintiff against the defendant in the sum of $687.50, with legal interest from judicial demand, and for all costs.
743 RILlSTON fl. MATHER
et ale
(OErcuU Court, W. D. MWh1{Jan. Jannary 19, 1891.)
I. JlA.8orBB .urn BERV.urr-NEGLIGBNCB-DANGEROUS PREMISE8-PROVINCE 01' JURY. In an action for personal injuries, it appeared that plaintiff was employed by defendants in an engine-room, in which there was a steam-heater compt\sed of colla of pipe, and in which defendants kept dynamite and Qoxes oi fulminating caps. The latter were attached to fuses after being brought to the engine-room. This had been done by others until a few days before the accident causing the injuries sued for, when plaintiff was ordered to do It. Plaintiff was injured by an explosion which occurred, as he testified, one morning as he entered the engine-room. The heater was very hot at the time some of the caps and dynamite were quite near it, and the engine jarred the building. The caps were extremely dangerous to one not understanding them, and the defendants failed to give the plaintiff warning of the danger. There was conflicting evidence as to how the accident was caused, and it might have been caused by the way plaintiff handled the caps. Hel.d, that it was proper to submit the case to the jury. 9. SAllE-NOTICE OF DANGER.
Where the master puts the servant into employment attended with dangers of a latent character, he is bound to give tho servant mformation of the incidents of the peril in which he is placed, if it Is noli l'easoJlablJ' to be IUllll0sed that thQ aervanli understands them.
On Motion for New Trial.
F. O. Clark, for plaintiff. Hayden. & Young and .A o. Dustin, for defendants. SEVERENS, J. Upon the trial of this cause it appeared that the plaintiff was employed by the defendants, who were working a mine in the northern peninsula of Michigan, in the management of that part of their machinery for lifting the ore out of the mine which was situated in an engine-room, as it was called, located near the opening of the shaft, upon the surface. The engine in this room was operated by steam, brought there from the boiler-works by an under-ground steam-pipe. The engine propelled the drums, which were in the same room, and which, by means ofa car, cables, and tramway, drew up the ore and returned the car there- ' for by alternating motion. There was also in this room a heater composed of collected coils of pipe, supplied by steam from the boiler, the steam admitted to the heater being controlled by a valve. While the plaintiff was thus employed, the defendants, for greater convenience in supplying explosives to the men working in the mine, put into and kept in this engine-room a quantity of dynamite, which was allowed to be put and scattered somewhat in different parts of the room, but near the heater, where it could be kept warm. They also put there, in boxes containing 100 each, exploders or fulminating caps, which were attached, after being brought there, to one end of a fuse. The fuse and cap thus attached were carried into the mine with the dynamite, and there connected and exploded by those specially charged with that part of the work. Until within a few days (according to the plaintiff's testimony not more than one or two) before the accident which followed, another man had been employed by the defendants to attach the exploders to the fuse in the engine-room where the plaintiff was at work. But thai