i
'EDDY
V;
LAFAYE'rfE.
807'
,the iristructicmin question. ,We have thlIscODsidered all the material pohits covered by the errors' aSsigned, and' do' not find therein any sufficient ground.for reversing the action of the . trial court. The judgment ii therefore at cost of plaintiffs in·
(cCrcuu Cou'l1 qf
Eighth
L,RBClBITBRB 011' RAlLROADCOJIPANIEB-BUI'rB WITltOU'r Lurill OJ'
, Act
Congo Marob!:13,l887.'§8, (24Bt.p. 554,):authorizing auits agoin&t'recelv81'11 of railroads without sp'ecial leave of court, was. intended to place such receivers upon the same plane wIth the railroad compauies, both as respects their liability to be sued for acts done while operating railroads, and as respects the,mode of servIce of Co. v. S£.Lou'l8,..4.. & T. BII. Co., 40 Fed. Rep. 426, fOllowea. . , . " . ' " ' '. . ·, ' , OJ' PnOOllls8'ilf; b'DIAR TllIlUUTORY. .:" , For injuriell committed in the Indian Territory, receivers sued therein are properly served by delivering a copy of the summons to one of their station agents' of a ,therein under, laws, made to in the Indmn Terrttbry. such service is, sulliClentto confer defendant ill a 'railway coml,)anyor a foreign corpqration. '
Corim;
a.S.um-QBJECTIOl1B TO JURISDIClT!ON"",," WAIVER.
, Rei:le'ivers of a railmy, in an action against them in the Indian Territory for an injurY committed therein, sf\lrvlld ,If!th SUmIll.qDS by delivering a 'oopy to one of their ,station agents therein, by on the meritl! and Il:oing to trial after motion to quash the service ill ovel"ruled, .will not thereafter be permitted to question .the jurisdiction of the court. Harkne88 v. Hyde, 98 U. B.476. dis\inguished. In an aotion in the Indian TerritOry against the receivers of a raUroad to recover for hay destroyed by a lire set by defendants' locomotive where it appears that; one of plaintiffs a of the Creek. Nation, and that the hay was cut and gathered by her ou Creek lands, it will be presumed, in the absence' ofa coutrary showing, to have been lawfuUy harveat.ed. '
'" FIBEsBET BY LOC01l0TIVE8-I'REStJ¥PTIONS.
I., S.KB"",,"PABTIBS. ' .'" . . . . '," .,..' Bay destroyed by a 1Ire negligently set; bY defendauta' locomotive was hlU'o veated' by the occupant of the land under conttaet with another, whereby he agreed to 1ldvance the reqUisite funds, the former to receive one-third the proceed", !lew, that suoh persons could maintain a joint. action for the 1088. .
6.
&1111.
.
,
. .
It Ie no ground of defenee.that the contract nnder which the haywaa harvested was invalid because mB\le· wj.Ut ,a married, woman, for, b,oth being. parties to the suit, all the necessary parties are before the court. ' In an. action to reooverfor,ha;Y. destroyed by lire set by defendants' looomotJve, a charge that in the matter of keepin/r theIr right of way free and olear of eom· bustiblematerials, alld in providing their locomotives withl!uitable defendants were ouly called npOJ/.,to exercise"reasonable care, skill, aud diligence, states the proper r u l e . ' , Negligence maYbelmputed to a railroad company it ,it allows combustible.DlateriaI to accumulate along its right of way in such ,quantity, at suchpiaces, and at such seasons 'as renders it. liable to become ignited and oause, damage to ad. jacent property. '. . ·. ' ·
f.SAMilI--NEGLIGENOB OJ' DEFBl'tnA1iT&
8.
SUIB.
'.
II.
S.UIIII.,
, The fact that fire is cOmInunicatedbi a paSsing 10cODlotiveis prima faci6 evl- . denrs of negligence. . ' ,. in the Vicinity, aud that the men so emplo,J'ed were keeping a constant lookout for
10. BAMB-N.GLlGBNCB OF
It appeared that the hay w.as burned in ricks while plalnwr. were making hay
. .' : . '
g08
FEDEJtAL
RErOBTJj:B, vol. 49.
;, firjls, and .: fused a . teet the hay...· " · , lLS.uIE-}llQlmUI·oJ'
the field. Held, 'that the oourt propet"ly reassumption that they did not use "any eftort to p.ro"', , ,
19.
awu.
II! an a.otipA W fQr" destroyed by fire set by defendants' looomotlve, an instructIOn that the measure of damages is the market value 'of the hl\.Y when burned, with interest from suoh time, is erroneous in not leaving to the jury any disoretlOn as to withholdlng or allowing interest, but is no ground of reversal, where it appears that the jury did not, in fact, allow interest.
In oase there is no lOCal market value, the value is properly fixed by the value at the nearest market, deduoting the cost of transportation.
In Error to the United States Court in the Indian Territory. Action,byBt)D F. Lafayette and Sallie M. Hailey against George A. Eddy and R.C."Crolls. as receivers of the Missouri, Kansas & Texas Railway Comp.any, tQ,recover for hay destroyed by a fire set out by defendants' locomotive. and judgment for plaintiffa. Dt>fendants'brought error. Affirmed. Olti.Q'{)'f'd L. JachKm, for plaintiffs in error. W. T.Hutching8 and Sandel8 &:HiU, for defendants in error. Before CALDWELL, Circuit Judge, and SHIlWl and THAYER, District Judges.' ' "'TnAYER, District Judge. This is an action to recover the value of 666 tons of hay which was destroyeqby fire near Wagoner, in the Indian Territory, on August 20, 1889. The hay was stacked in 15 ricks, at)listances varying from 400 yards miles from the track of the Missouri, Kansas & Texas Railway COlllpany. Messrs. Eddy and Cross were opetating said railroad as receivers when the fire occurred. The complaint filed in the lower court alleged that they had negligently perIPi.\te,d large quantities of dry grass and weeds to accumulate on the railroad'rightor way; that they hadin service a locomotive engine which was not supplied with the best a'ppliances for arresting sparks, and that while usiJlg such engiol:'it wascarelesely permitted to emit sparks, or drop ,coals ,of fire, which ignited the combustible material on the right of way,' and starwda, spread to the hay-ricks, and destroyed them. On the' trial in 'the lower court the evidence showed y:erYConclusively that the fire began on the right of way, and was most likely ocCasioned by a 10C91l1otive draWing a train of freight-cars which had passed only a few moments before the fire was discovered, and was seen to emit sparks at or the place where the fire originated. There was also considerable testimony tending to show that the right of waj' at that place, and for some distance 'in either direction, was covered with combustible material. such as dry grass and weeds, which grew very close to. the track, 'and was liable to become ignited. It was further shown that the section boss in .the employ of the receivers had been reqnested to burn the combustible material along the right of way. at that. particular point, only a short time before the hay-ricks were destroyed, but that he had neglected to comply with such request. The trial ina ,verdict against the recei\'ars in the sum of $2,664. The. recorddbefor-e us 'shows th!lot an unusllal number of exceptions
EDDY 11; LAFAYETTE.
809
were taken to the action of the trial court. Seventy-four errors are noted in the assignment of errors, forty of which seem to be relied upon by counsel to secure a reversal of the cause. It would extend this opinion to an unnecessary length, and would subserve no useful purpose, if we attempted to notice all of the errors that have been assigned. We have considered the various aFIsignments in detail, and find many of them to be without merit. We shall confine our attention, therefore, to those specifications which seem to us to be most material and important. The first exception that will be noticed relates to the jurisdiction of the trial court. Process was served on tbe receivers by delivering a copy of the summons to one of their station agents in charge of the railway station llt Muscogee, in the Indian Territory. A motion was made to quash the service, which was overruled, and an exception was duly saved. Subsequently the receivers pleaded to the merits, and went to' trial, but in so doing reserved to themselves the benefit of theirpreviou8 so iaras it was within their power to do. On this state of facts it is contended that lower court did not acquire jurisdiction to enter a judgment against the receivers, although it is conceded that un" der the laws of the state of Arkansas, which haveheen made applicable to the Indian Territory, such service as was had in the present case is sufficient to confer jurigdiction when the defendant is a railway com- . pany or a foreign corporation. Mansf. Dig. §§,4979-4982, and section 31, Act Congo May 2, 1890. (26 U. S. St. p. 94.) We regard this contention of counsel as untenable for two reasons. The third section of the judiciary act of March 3, 1887, (24 U. S. St. p. 554,) authorizing suits ta be brought against receivers of railroads, without special leave of the court by which they are appointed, was intended, as we think, to place receivers upon the same plane with railway companies, both as respects their liability to be sued for acts done while operating a railroad and as respects the mode of obtaining service. Such was the view entertained by'the circuit judge of this circuit in the case of Central Trust 00. v. St. Louis, A. « T. Ry. 00., 40 Fed. Rep. 426, and we concur in what is there said on this subject. We are also of the opinion that the jurisdiction of the lower court may be maintained on the further ground that, by answering to the merits and going to trial after the motion to quash the service of summons had been overruled, the receivers submitted to the jurisdiction of the court, and should not be permitted toquestioll its jurisdiction in this court. In so holding, we have not overlooked the decision in Harknesa v. Hyde, 98 U. S. 476. but we believe that case may be fairly distinguished from the one at bat. In Hark-ness v. Hyde the process involved had not only been served out;.. side of the territorial jurisdiction of the court, and within the limits of an Indian reservation, but the officer who served the process was guilty of a violation of law in entering the reservation for that purpose. In the case at bar the service was had at a place within the jurisdiction of the court from which the process emanated. It also had jurisdiction of the subject-matter of the suit, by virtue of the fact that the negligent acts complained of had been committed within the Indian Territory.
810
J'lIlDJlJRALBEPORTER,
vol. 49.
Undertbese:oiMUnlstanoos, weare.:unable to oonliedethat the receivers of jurisdiction in this court after pleading to the merits" ana, entering upon a long trial· in the lower court. It is a general rule defects·in the service:of process maybe waived byanap:· pearanw, w.hele.the court has jurisdiction ofthe:subject-matter oithe controversy,:lilIld the defect in the service only impairs the jurisdiction over 'p8r$ODof the defendant. Such is the rule in the state of Arkansae,whose laws have been extended over, the Indian Territory, and s114h iis: :,,180 the rule in other states. Railway Co. v. Barnes, 35 Goodwin, 34 Ark. 682; Kron8ki v. Railway 00., 77 Mo. 368; lUppft6in v. InBuranu 00.,57 Mo. 86; Eatill v. Railmad Co., 41 Fed.,Rep.:863; Railway 00. v.McBride, 141 U. S. 127, 11 Sup. Ct. Rep.982.: , 1 'l'he daBes ,.am very exceptional where a litigant is at liberty to deny the jurisdiotion, of a court,'after defending on the merits, and taking the chancee of 1making a successful defense precisely as if it had jurisdiction. If receivers desired tor-aise the qUAstion of jurisdiction in this couri,iwe a.re)of the 'opinion that they should have refused to appear in the lower :oourt, or, having appeared for the purpose of moving to quasl1 of proCess. that they should have abandoned the case .. I when their motion to quash the service was overruled. ! The next. 'question' to ,be considered is whether the plaintiffs below 'showed such a title to the hay that was destroyed. as entitled them to recover its.valu:e.· It is' strenuously insisted by counsel for the receivers (and this i8:8ll1dto be their, main eontention) that the plaintiffe below showed nosuchtiUeas warranted a:recovery, for the reason that the hay ;was cut. On belonging to the Creek Nation" and that both of the plaintiffs were trespassers in so doing; and, secondly, because one'of the plaintiffs waSia licensed trader, and, &s such, was expressly prohibited 'by a 10calstl1ltuteJrom cutting hay on the oommon pasturage grounds of itheCreek,Nation. It is sufficient to' say, with reference to thisconten.Yon. that th13 .record before us fails to show whether the hay was cut 'on the oommotlo pasturage of the nation, or on lands at the time occupied and beld-/by, Mrs. Hailey indi,vidually, according to the customs and ofthe nation. We will certainly not presume that either of ·the defendants in error WI\S guilty of a trespass, much less that in cutting thehlly either of them violated a criminal statute.' In so far as we are permittBd to. indulge in presumptions, we must presume that the hay was lawftUly: llar\tested. The burden is on the receivers to overcome that presumption, and w'efind nothing in the present record that would authorize us to say that the hay was gathered on the public domain without'lic6nse,and that, for that reason, the defendants in error showed no title. ,. , The doesdisclose,aod thete is no evidence to the contrary, that one·of tbeplaintiffs :iothe,lower court.(Mrs. Hailey) was a member of the,Creek Natibn.;,Assuch, she certainly held the land where the hay was harvested as a tenant in, common with other members of the Creek Nation, eveniHt was not:gatliered,on lands of which shewns the sole
I EDDY
LA'tl'AYET'rE.·
sit
oecupantjltcoordirig to the; nsages and customs of ber tribe.· know· of no Jaw of the nation, nor has any such law been called to our tion, that would preclude her from cutting hay 00 land which she occupied in common with other members of the Creek Nation. The record further shows that the hay in question was harvested under 8 contmct between the defendants in error, whereby Mrs. Hailey agreed to cut and bale, and also to deliver, 2,000 tons of hay at Wagoner, in the Indian Territory. The'requisite means to enable her to fulfill the contract were to be advanced by Ben F. Lafayette; the other defendant in elTor, and, inconsideration of the performance of the contract by Mrs. Hailey, she was to receive one-third of the net proceeds of the hay when harvested and sold. The hay appears to have been put up in ricks, pursuant to the provisions of this contract, by persons in Mrs. Hailey's employ, and it was in her possession when the fire occurrtld. Under .these circumstances, we are of the opinion that the defendants in E:rror showed a sufficient title to enable them to maintain a joint action against II; wrongdoer lor the loss of the hay. In this connection we will also add that the receivers are not in a position to urge, as a ground of reven=al, that the contract between the defendants in error was invalid, because Mrs. Hailey was a married woman. Even if such be the faet, it does not impair her title to the hay or prevent her from recovering its full value. If the position is tenable, it merely shows that one of the plaintiffs beMrs. Hailey has not thought proper to low WllS an ,unnecessary lay claim to the entire proceeds of the hay, on the ground that the contract between herself and the other defendant in error is not enforceable as against her by reason of her coverture. and the receivers will not be permitted tt> make 6ucha plea in her behalf. It is sufficient for their protection that all parties who have an interest in the hay have been made parties to the suit, and will be concluded by the judgment. Allell v. Buffalo, 38 N. Y. 280; Simar v. Cannday, 53 N. Y.298, 301; MisBissippi Planing Millv. Presbyterian Ohl1,rc!l, ")4 Mo. 520jLas8' v. Eisleben, 50 Mo. 122; Yonley v. Thmnpson, 30 ArK. 399. A number of the exceptions taken have reference to the charge, and to the action of the trinl court in refnsing requests to charge, which were tendered in behalf of the receivers. As some of these exceptions relate to the giving and refusal of instructions touching the degree of care that the partiE's to the suit were bound to exercise, we 'can best indicate our views on this branch of the case by. stating the .substance of the charge of the trial court on these points. In the matter of keeping their right of WilY free and.clear of combustible materialS, and in the so that matter of providing their Jocomoth'es with suitable they ,vould not Amit sparks. the trial court charged that the receivers were only called upon to exercise" reasonable care, skill,' and diligence;" in other words, that the law only exacted of them that degree of dil, igence that a prudent and skill luI man would exercise under·like cumstances to prevent injury to his own property. It further ihstructed the jury, however, that while the receivers were not liable unless the fire was occasioned by their negligence. yet, if they had allowed combustible
We
accumulate 'along the track wllich was liable to be ignited by .passing enginesl,the jury would ,be authorized to impute neg· ligence. ' It further directed the jury that it was the duty of a railway oompa:UY to keep its right of way clear of combustible materials, and that its fltilUl:e,to, do so was a cil'cumstanceshowing negligence. It also instructed them, in substance, that the fact that a fire had been occasioned '!?y sparks from a passing engine was prima facie evidence of negligence, and that !luch proof would compel the receivers to show that it was not due toth6irJault, and that they had not been guilty of negligence. On the otharhaqd, the jury were advised that the plaintiffs in the lower e,ourtcould not recover if, by their own falllt or negligence, they had qontributeQ.tQ the burning of the hay. They were further told that if tpaevidenpll showed the eiistence, in the locality where the hay was of "11 general and uniform custom of long standing, to plow around ,hay-ricks or make fire-guards, " they might consider that fact in determ.inftng if the plaintiffs: had been guilty of contributory negligence. insubstallce, were the directions given by the trial court concerning tIle respective duties of the parties to the controversy. In so far as the charge of the lower court .defines the degree of care that should have exercised in keeping their locomotives and right of way in a proper 'and to prevent fires, the plaintiffs in error have no cause ' The charge in this respect embodies the substance of several requests that were asked by the plaintiffs in error. That portion of t4e charge also appears to us to have been substantially correct which r.elllted ,to the accumulationofoombustib1e material along the right of way ,.and to the burden of proof after the origin of the fire had been shown. may properly be imputed to a railway company if it suffers <:,9mbustib1e material to accumulate on its right of wayin such quantity, at such places, and at such seasons as renders it liable to become ignited, and adjacent property. It is also incumbent on a railto show tbat it has used all of those reasonable precautions which the law exacts, when it is proven that adjacent property has been qa:magedby a fire, which was occasioned by sparks or cinders from a Raljs.ing locomotive. The decisions.to this effect are both numerous and tJni.form. Shear. & R. Neg. §§ 676, 678, and citations. however, that, in defining the duty of the defendants trial court should have gone further than it did, and should hllye declared, as it was requested to'do, "that if * * * the plaintiffI'! did, no,t,use any effort to protect their hay, which they allege was P.1 cast out by defendants',engine, either by plowing of hay in question, or by making fire-guards around the other means,.such as a careful, prudent person should have. ,done, because of such failure to SlY protect said hay that ,was ):lurned, the jury. should find for the ,defendants." We request, ought not to have been given, for the following reaspns: It,assumes that the evidence in the case tended to show that the defen,4;antsin error had made no effort and had taken no precautions to hay 'which was'llot the fact. The testimony
813
sPowed (and was no proof to the contrary) that the defendants-in' error were making hay in the immediate 'vicinity of the riCks when they were destroyed; that'"' the men so employed were keeping a constant lookout for fires; and had two water-wagons on the field for the express purpose of extinguishing such fires as might occur. The request was accordingly misleading, and was properly refused, in tha.t it ignored testimony tending to show that certain reasonable precautions had been taken by the defendants in error to protect their property. It is not claimed, nor does it appear from the record, that there was any e\'idence of contributory negligence, except the testimony of three or four witnesses, tending to show that it was the practice of some persons, in the locality where the fire occurred, to plow around hay-ricks, for the purpose of preventing fires. The existence of any practice tantamount to a general custom was controverted by the defendants in error. The receivers, however, requested the trial court to charge,in substanctl, that, if the proof showed "a custom to plow around hay-ricks," the jury might consider that fact in determining whether the defendants in error had been guiItyof such negligence as would preclude a recovery.. From the tenor of the charge as above stated, it appears that the trial court granted the prayer, andchal"ged the jury on this point substantially as the plaintiffs in error had requested it to do. We conclude, therefore. that the receivers are not entitled to complain of the manner in which the issue as to contributory negligence was submitted to the jury. In so far as the trial court dealt with that question, its charge was certainly correct. It might have directed the jury to consider whether the failure to plow around the hay-ricks was not culpable negligence, irrespective of the existence ofsu0ba custom; but it was not asked to give that direction, and its failure to do so,under the circumstances stated, will not warrant a reversal. There are two other assignments of error to be considered, which late to the measure of damage. The court below instructed the jUry that the measure of damage was "the marke.t value of the hay when burned, with six per cent. interest from the time it was destroyed." This instruction is fairly subject to criticism, for the reason that it did not leave the jury any discretion to withhold or allow interest on the value of the hay. We entertain no doubt 'that interest may be allowed as damages, in cases where property has been destroyed through the culpable negligence ofanotber, as well as when it has been wrongfullycollverted; but the usual, and perhaps the better, practice is to leave such 8 Johns. 446; allowance to the discretion of the jury. Bea18 v. TlwmfUJ v. Weed, 14 Johns. ·255; Devereux v. Burgwin,1l1red.490;Gilpins v. Ccm,gequa, Pet. C. C. 85; Sedg. Dam. (7th In the present case, however, we find. no to disturb the .verdict on. account of the' error of, as' it is quite evident· frOID the record thl1t the jury ,the value or the hay at fom dollars per ton, and did not in fact award interest.. . . 'fhe plaintiffs in error also requeSted 'thi:ltrialcourt to charge the:jury "that, if they found that there was a markeHor hay iIi·the rick*: * '.
814:
FEDERAL REPOR'fER,
in the vicinity, WaE! then they should disregard all evldllllce ,as to the fot' hay at other places." 'l'his request the court denied inform,but charged in as follo"Ys: "That measure of was the market .value of tile hay and six ,interest, and, ift\llll',e was no local market value, that the value per might be ,1lxrd withrefereilce to the market value at the nearest place where bay was sold, due being made for cost of transportation," etc.
We are unable to discover any materilll error in this direction or in tbe refusal of the receivers'request. It is evident, we think, that the jury must have understood. the chargeasa direction to allow the market value of the hay at' Wagoner, if there was a local market value, irraof its value elsewhere. There is also abundant evidence in the case to support the ,finding of the jury as to the value of the hay. We have, as before stated, considered all of the exceptions taken to the action of the trial court, but have only mentioned those which appear to us to ,have most weight. The case seems to have been tried in the lowe" court with a view of saving as many exceptions as possible, and, in view of that fact. we cannot refrain from condemning a practice which 8ubserves1)o useful purpose, and imposes'so much unnecessary lahor on an appWlate court. The judgment of the lower court is hereuy affirmed.
EDDY et
al.
tJ. POWELL.
(C'l.nrttCt Court o/A.ppealB, Eighth CirQu1.t. February HI, 1802.) 1. 1"L1UDING-AMBNDMBNT.
Plaintiff's oomplalnt, tn an IIil1tton for personal injuries, was entitled as all'atnst "E"and Rceival's," and in the opening. paragraph pJainti:J complained of "the defendants E.and C" rllPJivers of" a cllrtaln railroad, to be iii corporation doing oU8111ess, etC: Held. that an amendment W¥lI properly allowed so as to state a case IIill:alnst defendlillta In their official capacity" as" receivers·
C.,
.. RAILROAD
Plaintitf,.while driving 'over defendants' crossing between two sections of a train whioh had btlen cnt 80 as ,1;0 make a passage, was caught between them by the sudde.nmQveWllnt, without warning. of one of the sections, He testified that he waited'to c'toss, but was S,ignaledby the train brakema,n, to,proceed. but In this he , was contradicted. Held;that,a charge, in substance. that ,if plaintiff was directed by the brakeman to cross. qontrarv to his previous intention. and in SO doing he Bustalne,d 1i:J'jury. be was entitled to recover. nnless in attempting to cross he had assumed a rilk of getting caught between, the two I!ll<'ltlons which was known to him at thetimc, and waS B,uch as a prudent man obviOUsly would not have taken, was proper. and not erroneou8. from tbe use of tbe wO'rd "reckless," as applied to plaintiff's conduct, the context showing the COUrt. 1;ol;1ave used it as synonYIllQus with
AT
' , .
United ,States Cpurt in the Indi,an Territory. '. , jby(1,eorgeW. Powell agtlinst George A.,Eddy and H. C. Cross, as receivers of the Missouri. Kansaa & Texas Railway Company, to r,ecover{orpers\lnl,il VerdIct and juugmep:t Jorplaintitr. DeJendants brought . .... ..,
In