·, 188 .·Atthij·co'O.Clusion of :the! testimony· the trial court chfLrgeq·the jury, relatibI1; existing between the two employes, in the follovying language: afellow servant of the plaintiff or not depends enl:tbe nlation he sustained to the defendant company; and the court instiqct.s you:tbat if you tlndfrom the evidence that Holverson was a 'foreman for thedeff,lndant company, and that as such foreman he ;chargf,l and superintendence of putting in ties and lining and keeping In' oftha road; that he hired the gang of hand/:j', about thirteen in nmnl:,ier, to do this work for the company, and had tMi!:dltisive'charge and management of said gang of hands in all with 'their employment, and was invested with authority to liire:and discharge the hands to do said work at his discretion; and tha,t p!AUntiff one of thf,lgang of hands so hired by Holverson; and that the plainti1t.l'aS. !',ubject to the authority of Holverson in all matters relating to his dutiesa!,alaboTer,-tllen the plaintiff and Holverson were not fellow servants .10 the sense that· wlll preclude the plai ntiff' from recovering from thel'ailroad;OO1npany damages for any injUry he may have sustained through the negligence of Holverson, acting in the course of his employment as such forema·n." In view of what has already been said, we are unable to hold that the trial court· erred in giving the fbregoing instruction. Weare equally unable to say that the cOn'rt erred in refusing to direct the jury as a matter of law that Holversbu and Peterson were in fact fellow servants. As these are the only substantial errors assigned, the judgment of the circuit court must be and it is hereby affirmed.
WithreSpeot tb the
was
'MUNOS
etaZo
fl. SOUTHERN PAC.
Co.
(C£rcuit Court of .A1,lpeal.9, Fifth O'rcuU.)
DBATB)JT
an for wrongfulde&tlJ. occurring in another state, the statute of limitations of the forum governs, unless the statute giving the right of action in sucb ,other state itself prescribes alimitation.
Oll' LAWS.
In Errorto'the Circuit Court of the United States for the Western District of Texas. Actioll. by Refugio and Jose Munos, minors, by their next friend, Juan Ochoa, against (he Southern Pacific Company. Judgment for l;iefendant on dElI:nurrer to plaintiffs' petition. Plaintiffs bring error. Affirmed. . Millard Patltmwn, C. N. Buckler, J. A. Buckler, and John Mitchell, for plaintiffs in error. .. Henry J. Lep1YJl and Joseph Paxton Blq,ir, for defendant in error. and MCCORMICK, Circui$ Before LocKE, Pistrict Judge, and Judges. '. , ' . ; ,I
PARDEE, Circuit Judge. This suit was commenced March 20, 1891, to recover damages for the death of a parent, alleged to have been caused
MUlJiOS t1. SOUTHERN PA.C. CQ.
189
by defendant's negligence, in the territory of New Mexico, on February 17, 1888. The suit was instituted under article 2308 of the Compiled Laws of New Mexico of 1884, as follows: "Whenever any person shall die from apy injury resulting from, or occasionell: by, the unskillfulness, or criminal intent of any officer, agent, servant, or employe, whilst running, conducting, or managing any locom9tive, car, or train of cars, or of any driver of any stagecoach or other public conveyance, whilst in charge of the same as driver, and' when any pas. seogershall die from any inhtry resulting from, or occasioned by, any defect or insufficiency in any railroad, or any part thereof, or in any locomotiVe or car, or in any stagecoach or other pulJli,c conveyance, the corporation, individual, or individuals in whose employ any such oflicer, agent, servant, employe, engineer, or driver shall be at the time sllch injury was committed, or who owns any such railroad, locomotive, car, stagecoach, or other pUblic conveyance at the time any injury is received, resulting from or occasioned by any defect or insufficiency above declared, shall forfeit and pay, for every person or passenger so dying, the sum of five thousand dollars, which may be sued for and recovered-Fi1'st, by the husband or wife of the deceased; or, second, if there be no husband or wife,or if he or she fails to sue within six months after such 'death, then by the minor child or children of the deceased; or, third, if such deceased be a minor, and unmarried, then by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment; or, if either of them be dead, then by the survivor. In suits instituted under ,this section. it shaU be competent for the defendant or his defense to show that the defect or insufficiency named in this section was not a negligent defect or insufficiency." -Article 2316 of said Compiled Laws and a subsequent section of the origiriill act, provided as follows: . ,"Every action by virtue of the provisions of this act mllst be brought within one the cause of action shall have accrued, or after thiS act shall go into effect." Article' 2316 was ex:pressly repealed by Sess. Laws N. M. 1887, c. 2, and Sess. Laws 1887, was repealed by Sess. LawsN. M. 1889. Among other exceptions filed by the defendant to the said suit was the following, numbered'5: . . "Furtherllpeeially ex:cepting to the defendant's saill third amended original petition, the defendan t says that the same shows upon its face that the action brought was not instituted within the time reqUired by law, and that plaintiffs are barred ahd precluded from recovery by conditions and limitations of law; and of this defendant prays the judgment of the court. " On the trial the court held that section 2316, c.' 23, Compo Laws N. M., was repMled (1887) by Sess. Laws N. M. 1887, c. 2, and that this repealing statute was by the legislature of New Mexico repealed by Sess. Laws 1889, c. 75, and that the effect of the enactment of 1889, which repealed the repealingstatute of1887, was to revive section 2316, c. 23, Compo Laws N. M., and thereupon sustained said exception No.5, and directed judgment for defendant, dismissing plaintiff's suit. The main argument of the case in this court has been as to the correctness of that ruling, which presents the very interesting question as to whether the common law prevails in the territory of New Mexico, and, if SOl how far it has been modified by the statutes of the United States.
the Ifsection 2316 of the Compiled Laws of New Mexico wns :tIe'V'hred 'bY IDerepealoC :S},Af1.lte'othWipttioI?- for one waS correct. ,On thl'tother the C?ppiled 'Yas not renvedi,J;.yjU\e, the was no, perIOd of limita,tiotl,:prescribed as a part of the; remecly giV:enby ,section 2308 of the 0ompiled:' Laws under which, the present action vrlls' btb\lght',bthedvisethan l1S provided by the 'general' law of limitatioilS sald .111' ;which case,thela"'.8 'of!fexas. in regard to the ,3202" 'Rev:. , St. 'fex., provIdes: " ,,' l ' ' "Tl)ere 'sbalHe commenoed and prosecuted within one year after the C&use aecrued, :R'Del.n.ot,afterwards, all actions Qr suits in court, ofthefoHowlng:descrlptlOO: ....'1' *: ,(4) Actiona, for injuries qone to the persoD10fl:motller, where death et1suedfrom .sucb injuries,j,.and the cause of aetioIlsbaU' be'considered'88 ,having 'accrued at the death of the party injured.", : t, i '.'" Under t;hls tne'tuling or-the' court below must be affirmed, because {Pei action wasnqt brought 'YHhin' after it accrued: "LawsJi miting the time of: of the lex fori of every country; they are laws for administering dnstioe, one of the most v. 5, 457, ; McElnwv,le , v. Cohen, 13 Pet. 312; Amy v. Dubuque,,98U. S. 470. "Remedies are ,gpyerned 3 Qrllnch, 319; Banl'v. ,J)(m,nally, J!owqrd, 20 How. 22; Pritchard v. Norton, 106 U. S. 124,lSQp, Ct. Rep. 102; ,}f<1l,9hv. Mli,ym:,;.:lll J:I.,8.,31, 4 Sup., Ct. 260; J?ankv.Eldred, S. 9 Slip. Ct. Rep. 690. are commitforw,gn co,1,lI}triesror beyond t91'l. territoria.l,.. of, the sovereignty in which the action is brougpt, the Zrf.fp-"'" no matter 1+P9nthEl;,9omtnon law or a local statute, unless the creates! or confers tbe rigbt limits the 'duration of snch 'tight! to 0. prescribed time. This will appear from.an examinationof'the following authorities': Poll. Torts.{Textbook Series) 130; Wood, Lim. Act;p. 23, §9; Nonce,v.'Rauroad Co., 33 Rep. .429; The Har,risburg,,119 B. S. 199,7'$1,lp. Ct. Rep. 140; Boyd v. Clark, 8 Fed. Rep. 849; EastVJQQd y. Kenneq,y, 44. 563; fiailrQad. 00., v. .llinie,25 Ohio St. ,629; 07Shield8.. ,v. &itway .S.E. Rep. 268, 83 !Gal,621." .. .. ,., ':The judgment oftheicirC1ilit court is: llitIirmed, with costs.
U.
UNITED STATES V.
9, CASKs UNITED iSll"ATEs
OF DISTILLED SPIRITS.
191
ex fe!.
ATroRNEY v. 9
OASKS& PACK..'
AGES OF DISTILLED
'SAME'll. ,64 CMKS
&
PACKA'GESOF DISTILLEDZ:;PIR!TS.
(.mBtrWt Court.lD. D. ,lI[i880Wl'l. Nos; 3,499, 8,500;
D. April 9. 1892.)
1.
INTBRNALRBVBNt1E--:VIOLATIO;N',OlI' laWS-DISTILLED SPIRITS":"'WARUlIOUSU STAMPS AND IN8P11JOTIONlI"ARK. .. . . . '
.
Under Rev.St. 5 8289, declaring a forfeiture of any cask or package oontaining of found without baving thereon "eallb mark jlnd !ltlinip required 'by IlLW, >l such a' package is forfeited when found bearing adistilllery warehouse stamp ,and an inspectton mark, neither 'of which have any, datejJ,'orsection 3287 requires: ,each stamp to bear the date of tlIere., ceipt' of 'the 1'lackage into' and the promulgated by the ·commiss!.otler of internai,revenuerequlX'e the inspection brand to show the'dateo! inspectlQD·. ' . i . Itthe dates 'have been removed through accidental causes, their absence is no gl'O:Qnlll)ffor;fei,ture, statute ,does not in tertns conWn any exceptioIls, this nile... not be negatived by the information; it 1& matter of defense to be set'up' by the claimant. '. " ,. , ' '" . 1)Ilder Rev. St. 5,3451>,a person cannot buy a package containing distilled sflirits, already stamped alld branded, and take out the COntents and put in otherdlstilled SPiri,ts ola lower'proof,witlout rende.ri,ng the prope,rty /lu,bject to forfeiture,althoUgh the other spirits have paid the tax; and this result follows irrespective ('f any intertt.to defraud any private person. But no forfeiture would take place It the proof was reduced by natU1!$1 causes. or by, the additioll of water. . . . .
2. S...HU--jNPORMATION.
8.
SA:UE-'OXANGING CoNTENTS, OJ!' PAOKAGB.
At taw. Information for the forfeiture, of certain casks and packagell of distilled liquors. Demurrer overruled. GeorgeD.Reynoltk, U. S. Atty. Hcrugh & Hough, for,claimants. " THAYER, District Judge; (orally.) In: this case (No. 3,500) the first paragraph ,of the second article of the information charges that the packages and barrels referred to in the preceding article were found in casks or containing more than five gallons without having thereon each mark and stamp required' by the internal revenue laws of the United States;Dor did aoyof said casks and packages in which said spirits were foundand::oontained then have thereon .the United States internal revenue distillery warehouse stamp, containing the date of the receipt into the distillery warehouse,nQl'the United States internal revenue inspection mark, containing the date of the inspection thereof by the United States gauger at the time .. of the original inspection,-contrary to the stututesof the United States, etc. Ifthere.is'Rlly uncertainty in the language employed, the article must most strongly 'against the pleader. I think the second arbe ticle is uncertain, and therefore construe it most favorably for the defendantand most· .the pleader. I hold the substance Of the charge to be this: ·That the packages and barrels do not bear the marks and stamps required by law, in that the warehouse stamps