488
FEDERAL
61.
juri.sif.iction of. .district, court.of clm,tAs 'PYsaI!1 ,statute. To enable the plamtIffs to sue, the specIal a<;t,qf;t\fQ.rch 2, 1889,was passed, which- provides "the claim" shall be referred to, and the court of claims shall "hear and determine the same to judgment." This act is the warrant for that court's jurisdiction,Jl.lld measures the relief to be granted. In pursuance thereto,that' court has the amount, 'but has not decreed the payment of interest thereon. There is no provision in the act allowing interest: on the clahnoI' on the judginent; nor is there any general statute allowing it· which includes this special case of an excepted cause of action specially referred to this particular court. men the .CQurt had fixed. the amount, the time of payment was thes1;1bject. of legislative will thereafter. So far as interest was concerried, .the status of the case was as though congress had originally passed a private act fixing the amount, and ordering it paid, but making no appropriation for such payment. Under such facts, it could not well becohtended that interest ran until an appropriation was made, We are therefore of opinion that no interest upon' the jUdgment is recoverable. But conceding for the present purposes it is, the question still remains, can such right be enforced by the present proceeding? The judgment was recovered in a court of competent jurisdiction, and interest, if recoverable at all, is recoverable as an incident to that judgment. it is the province of that court to enter a judgment or decree which shall embrace all matters incident to the controversy before it. It will be noted we are not asked to enforce Ii judgment thecourt of claims, for its judgment, to the extent to whiCh it went, is now paid, but we are asked to say whether that judgment bore the incident of interest or not,-in substance, to decide what the court of claims has omitted to decide. In our opinion, the ql1estion is one incidental to ;the original suit, and the court of claim.s is the proper forum for its determination. For the reasdtls set forth, the demurrer is sustu.ined.
fixed
. ':A.OHESON,'Circuit Judge, concurs.
NEWPORT NEWS & M. VAL. CO. v. UNITED STATES. (Circuit Court of Appeals, Sixth Circuit. No. 45. CARRiERS-LIVE STOCK-PENALTY FOR FAILUEETO UNLOAP.
April 3, 1894.)
;
'Under Rev. St. §§ 4386-4388, forbidding interstate carriers of animals : to 'confine them more than 28 consecutive hours without unloading for rest, water, and feeding, unless prevented "by storm or other accidental causes," and imposing a penalty for "knowingly and wlllingly" failing to' 'comply with this provision, such unloading is excused by unavoidable causes only, and therefore nOt by an accident to a train, due to
In Error to the District Oourt of the United States for the District of Kentucky.
NEWPORT NEWS & M. VAL. CO.
v.
UNItED STATES.
489
Holmes Cummins, for plaintiff in· error. Geo. W. Jolly, for the United States. Before TAFT and LURTON, Circuit Judge.
and KEY, District
LURTON, Circuit Judge. This was a suit by the United States to recover from the Newport News & Mississippi Valley Company the statutory penalty imposed by sections 4386, 4387, and 4388 <if the Revised Statutes of the United States for the detention of cattle while being transported over appellant's line of railroad,for a longer period than 28 consecutive hours, without being unloaded for rest, food, and water. There was a verdict of guilty, froni which the railroad company has appealed. The statute involved is as follows: "Sec. 4386. NC' railroad company within the United States whose road forms any part of a line of road over which cattle, sheep, swine, or other animals are conveyed from one state to another, or the owners or masters of steam, sail- , ing, or other vessels, carrying or transporting cattle, sheep, swine, or animals from one state to another, shall confine the same in cars, boats, or vessels of any description for a longer period than twenty-eight consecutive hours, without unloading the same for rest, water and feeding, for a period of at least five consecutive hours, unless prevented from so unloading 'by storm or other accidental causes. In estimating such COllfinement, theti,me during which the animals have been confined without such rest on connecting roads from which they are received shall be included, it being the intent of this section to prohibit their continuous confinement beyond the period of twentyeight hours, except upon contingencies hereinbefore stated. Sec. 4387. Animals so unloaded shall be properly fed apd watered, during suchre$t,by the owner or person having the custody thereof, or in case of his default in so doing, then by the railroad company or owners or masters of boats or veSsels transporting the same, at the expense of the owner or person in custody thereof; and such company, owners or masters shall, in such case, ha'Ve a lien upon such animals for food, care and custody furnished, and shall- not be liable for any detention of such animals. Sec. Any company, owner or custodian of such animals who knowingly and willingly fails to comply with the provisions of the two preceding sections shall, for every such failure, be liable for and forfeit and pay a penalty of not less than one hundred nor more than five hundred dollars. But when animals are carried in cars, boats, or other vessels in which they can and do have proper food, wate.r:. space and opportunity to rest, the provisions in regard to their being unloaded shall not apply."
The district judge charged the jury, in substance, that if they found that the live stock had been confined on the cars of the appellant company for a longer period than 28 consecutive hours, without being unloaded for rest, food, and water, it would be no defense that such confinement had been caused by an accident to the train, due to negligence. The case must turn upon the correctness of this charge. Was the appellant "prevented from unloading by storm or other accidental causes?" If so, then the penalty has not been incurred. The contention of counsel for appellant is that the _ excuse for overconfinement specified in the act, "storm," is one of a class within what the law regards as an "act of God," against which a common carrier does not insure, and that can· gress has to that class added another of a different character; described as "other accidental causes;" that the use of the disjunctive
490 ."or," after "storm," indic{ltes a p"Q.:r:poseto, except deteJ:!.tiops due to causes not the act of God, and described by the term that4\lls, constru,ctiop, support in. section 4388, which imposes the penalty 'only upon such as "knowingly arid willingly" fail to comply with the requirements. while plausible, .is not satisfactory. To yield to it woPJ,d emasculate'it statute having a most humane object in view·..·. Q9ngress .did not. mean tllat simply because the carrier had encqpntered a stpl'Jill, therefore he should be excused. It must appeal.'.tb,at the stprm obedience. The storm could not .. JI1.uy be avoided or mitigated by the of diligence. If, 'with all reasonable exertion, a carbY."reasoij.' of a storm., to comply with the law, then he has been unavoidably "prevented" from obeying the law. If, the he cop.ld by due care have complied with then. ta' at. fault; ''because own negligence is the last llink in the chain of cause. and effect, and in law the proximate cause" of the failure to comply with the law. Therefore, Of the. excuse' of' "storm," the carrier must show, to . ot'a'liltorm., but that 'with due cafe he was "prevented/1,rasanunavoidable result C)f.the storm, from complying with the:}aw. We 'can reach but one· conclusion as to the meaning of 'the "othe.. causes." If, the storm is no excuse, unless its)lnavoidable effect was to prevent compliance, then it follows that no other accidental causes would be' 'an excuse, unless that canse and its effect are likewise The meaning of the general words, "other accidental causes"'.im.Ust be ascertained by referring to the preceding special words. .The rule "noscitur a sociis" is clearly applicable. A storm is unavoi'da.ble, in the 8ense that it cannot be prevented; "Other accidentaIcauses" must be taken. to. Ii1ean other unavoidable acciAneftect attributable to the negligence of the appellant: is not an unavoidable cause. The negligence of the carrier was the cause; the unlawful oonfinement and unreasonable detention, but an effectqf that negligence. What is an inevitable or unavoIdable accident has been very thoroughly considered by this court, in the case of Weeks v. Transit Co., 61 Fed. 120. It was there said that an inevitable accident"Was an which could not be by that degree of prudence. foresight, elite, and cautlon' which the law requlresot everyone under the circumstances of the pllrticu1ar case."
Agaill, law holds .! .,
"An accld,:Jnt;ls said to be inevitable when it is not occasioned in any de-
eyery ,man bound to exercise."
or directly, by the want ot such care and skill as the
. apply to an unavoidable accident, which is, in. the sense of the law, an inevitable occurrence, as defined in that' case, and those cited therein. If the accident was one which might have, been avoided by .due care, then the carrier must be taken. ,to have contemplated the reasonable consequences of his
FISHER V. KNIGHT.
491
own negligence. In this sense, he may be said to have "knowingly and willingly" failed to comply with the requirements of the law. If he was not prevented by lawful excuse, he has knowingly and willingly failed to unload for rest, food, and water, as required by law. The several sections of the act must be construed together. We must give effect to the first section, as well as to the third. To put the construction upon the words "knowingly and willingly" contended for by appellant, would be to eliminate the positive terms of the affirmative section of the act. Congress has specified the excuse which will take a case without the act. If the statutory contingencies are not shown to have prevented compliance, the carrier has willingly failed to unload as required. In view of this construction of the act, the other assignments of error are immateriaL The case turned below exclusively uP1Jn the question as to whether the delay in unloading had been due to a negligent accident'to the train. The facts were submitted to the jury under a proper charge, so far as appellant is concerned. The judgment must be affirmed.
FISHER v. KNIGHT. (Circuit Court of Appeals, Third Circuit. No.4. 1. BANKS-DEPOSITS-INDIVIDUAL AND TRUST FUNDS-SET·OFF-RECEIVER8.
April 20. 1894.)
Debts of a partner and his firm to a bank cannot, in equity, be set off by a receiver of the bank against trust moneys whiCh the partner, after the debts were contracted, mingled with the firm deposits, without the bank's knowledge, and the whole amount of which remained continuously in the bank until it failed. 58 Fed. 991, affirmed.
2. TRIAL TO COUUT--AGREED STATEMENT-WAIVER.
A stipulation in an action of assumpsit to submit the case to the court on an agreed statement of facts, with like effect as though the same had been found by a jury, judgment to be entered for the party which the court finds entitled, waives all questions as to the remedy adopted; and judgment may be entered for the party having the equitable right, without inquiring whether the same could be enforced at law. 58 Fed. 991, affirmed.
In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania. This was an action at law by Robert B. Knight, to the use of Burton Binns, assignee for the benefit of creditors of the Benevolent Order of Active Workers, against Benjamin F. Fisher, receiver of the Spring Garden National Bank. By stipulation the case was submitted to the court on an agreed statement of facts, and judgment rendered for plaintiff. 58 Fed. 991. Defendant then sued out this writ of error. The stipulation and statement were as follows: I "It is hereby agreed by and between the parties to the above case that the following facts shall be submitted to the court for Its opinion and judgment, with like effect as though the same had been found by the verdict of a jury. R. B. Knight, being about to leave the city of Philadelphia, gave on the 28th day of April, 1891, to N. T. LeWis, $2,000, for safe-keeping. This money, with other money of the firm of N. T. Lewis & Son, was, upon the 30th day of April, 1891, deposited to the credit of said firm in the Spring