EGBERT v. OITIZENS' INS. CO.' OF MISSOURI.
. 47
with five-sevenths of the orator's costs,after denuptingtwo. sevenths of the defendants' costs, and the expenses to the defendants of the suit in Iowa, including reason.able'counsel 'fees, to be taxed by the clerk, which are allowed as a fine against the orator, with a stay of execution until evidence of the discontinuance of that suit is filed.
EGBERT arid others
V.
CITIZENS' INs. CO. OF MISSOURI. March 28, 1881.)
(Oircuit Court, S. D. Missoun
. of May 9,1872, in a case in which there are several parties plaintiff and defendant, it is not necessary to state in the caption the names of all the parties' to the suit. It is sufficient to give the style in the case thus: A. B, p.f al., plaintiffs, v. D. et al., defendants.
a.
2.
SAME-SAMlll.
A caption sufficiently shows tbe reason for taking depositions it it states where the depositions are taken', without giving the distance from the place of taking to the place of trial, if the distance is iD fact, and is well known by aU parties to be, more than 100 miles. 3. SAME-CERTIFICATE.
Where an officer by whom depositions are taken seals them up, marks the style of the ease on tIle envelope, directs them to the'clerk of the court in w\lich the case is pending" alid. writes the usual dorsement across the seal, and the depl;j.llitions are received by the clerk to whom they are addressed, through the mail, 'MId, that the certificate to the depositions should bedecmed sufficient, though it fails to state that the officer delivered the depositions to the court in which the cause was pending, or that pe sealed them up and dep08fted them in the post-office.
Motion to Suppress Depositions.
E. T. Farish, for plaintiff. ' O. B. Sansum, for defendant. TREAT, D. J. The several plaintiffs named in this suitt according to the petition,wer.e copartners' doing> business ·;in San Francisco,'California. The defendant, being a Misgonri corporation, had an established agency in the fontrerphide, and its agents there drew a: bill of eicbtlngeori tbe:dMe-a-aant
48
FEDERAL REPORTER.
dated July 12, 1877, for $2,500, on account of a loss sus. tained under a named policy. Said bill went to protest. Subsequently, in 1877, successive payments thereon were made to the amount of $1,700, and this suit was instituted September, 1879, in the state court, for the balance due. The defendant filed a general denial, and caused the suit to be removed to this court, January, 1880. In the course of subsequent proceedings the plaintiffs, by their attorney, gave the following notice t6 take depositions: R. S. EGBERT et al. fl8. THE CITIZENS' INs. Co. OF MIs80URL
(In the United States Oircuit Oourt, Ea8tern Di8trict of Mi8souri.)
To the above-named defendant or O. B. Sansum, attorney of record: You are hereby notified that depositions of George W. Scott, C. D. Farnsworth, J. P. Clark, and E. Potter, witnesses, to be read in the aboveentitled cause, on the part of plaintiff, will be taken at the office of Samuel F. Murphy, notary public and commissioner, No. 607 Montgomery street, in the city of San Francisco, state of .California, on the fourteenth day of February, 1881, between the hours of 8 o'clock in the forenoon and 6 o'clock in the afternoon of that day; and that the taking of said depositions, if not completed on that day, will be continued from day to day, at the same piace IIond between the same hours, until completed. Enw. F. FARISH, Attorney for Plaintiffs. Service of the above notice is hereby acknowledged. St. Louis, January 26, 1881. O. B. SANBUM, Attorney for Defendants.
Under this notice depositions were taken and returned to this court. A motion has been filed to suppress those depositions on several grounds, and numerous authorities cited in support of the motiQn, most of which pertain to ex parte depositions under the act of 1789, and are deemed inapplicable to depositions taken under notice pursuant to the act of 1872. When an ex parte course was pursued under the foriner act, the courts insisted upon lit rigid compliance withlill its requirements, inasmuch as such pr.oceedings were in derogation of the common law, and might be had without notice to the adverse party, or his attorney, under stances indicated therein. If a party chose to ,pursue that the supreme court of the United States, in 1851, (Walsh v. Rogers, 13 How. 283,) said: "Testimony thus obtained must always be unsatisfactory and liahle to sus-
'V. CITIZENS' INS.
co.
OF MISSOURI.
49
picion, especially if the party has had time and opportunity to take it in the regular way." That court gave the reason which induced the act of 1789 in that respect, restated the rule that depositions without notice were in derogation of the common law, etc. There was a hint, at least, looking to the distinction between depositions when taken with and when taken without notice. The act of 1872 has, to a large extent, cured the evil thus complained of. These general remarks are here made, because it is not proposed to review in detail the many authorities cited, or to enter upon a discussion of each of the several grounds of the pending motion. It must suffice to pass upon each seriatim. It is objected to as follows: (1) Because the caption of the depositions fails to state the names of all the parties to the suit; that is, instead of naming each of the copartners plaintiffs, it followed the style of the case as given in the notice, and as docketed.
The strict rule laid down by the United States supreme court with respect to transcripts of records to that court on error or appeal, upon which judgment or decrees :rp.ay follow. it seems to us ought not be pushed to the extreme contended {or with respect to depositions, where all the parties had notice and knew in what case the testimony was sought. (2) Because the caption of l1aid depositions failed to show any cause for taking said depositions; that is, it does not state that San Francisco, in California, is more than 100 miles distant from St. Louis.
It will be observed from the statement of the case that it originated in San Francisco, through the agents of the defendant, and the notice was to take the depositions there. and the respective parties knew as well as this court, judicially, that those cities are more than 100 miles distant. Why, then, should the notary be required to state what was apparent and known to all concerned. The' aet of congress gives the distance as good cause for taking such depositions. (3) Because the officer before whom said depositions were taken fails to certify that he delivered them to'the court in which said cause is pending, or that he sealed them up and deposited them in the post-office in San Francisco.
This objection is fully met by the fact that the envelope v.7,no.1-4
"
I
050 came through the mail from· San Francisco, addressed to the clerk of this court, was received by the latter accOl'dingly, was marked with the style of the case, and had the usual indorsement across the seal. It cannot be supposed that before seal· ingthe envelope the officer was bound to certify in the en.dosed certificate that he had done what could not be done until after the sealing. The other objections are too vague and indefinite to require notice. It is not to be understood that this court will relax .any rule which is proper or essential to enable it to ascertain definitely that depositions are taken within the requirements .of the acts of congress, and with due regard to the interest of contesting parties. There are in civil cases, as stated in the act of 1789, and as continued in all subsequent legislation, two grounds fOl' taking depositions: (1) That the witness lives at a greater distance than 100 miles from the place of trial; (2) that, if living within 100 miles, he is bound on a voy.age to sea, or is about to go out of the United States, etc., etc.
If it definitely appears that the witness resides Inore than 100 miles distant, the ground for taking the same is within the terms of the statutes; and in order'to read the same nothing further is required, provided the same was properly taken and certified. Under the second head, it may be that if objection is made the court would refuse to hear the deposition if it appeared that the witness was still within 100 miles. The several provisions of the 'United States laws on this subject are embodied in section 863 et seq.; and by ,an examination of the various prior acts of congress indicat· ing the course of legislation on the subject,' and the many decisions made from time to time under the then-existing statutes, it will be seen that under section 863 rea.somLble noiice'must now be writing by 'the party or his attorney to the opposite party or his attorney, as either may be near-est, which notice shall Pursuant to this ,section the depositions in this case were t.aken, and, it is held"taken in due conformity with the statutes, as sufficiently appears from the record, notice, and certific!lte. .
BROWN V. MEMPHIS & C. R. CO.
51
A party may apply for a dedimus and cause testimony to be taken, if the dedimus so states, orally; full notice being given to the opposite party, or his attorney, to appear and cross-examine, or to take the testimony by interrogatories and cross-interrogatories, filed and settled by the court. The motion to suppress is overruled. .
BROWN
v.
MEMPHIS
& C. R. Co. April 25, 1881.)
(Circuit Court, W. D. Tennessee.
LADms' CAR. A railroad company may rightfully exclude from the ladies' car. female passenger whose reputation is so notoriously bad as to furnish reasonable grounds to believe that her conduct will be offensive, or whose demeanor at the time is annoying to other passengers; but she cannot be excluded for unchastity not affecting conduct, or fur-. nishing reasonable ground to believe she will misbehave herself in the car, when her demeanor at the time was lady-like and unexceptionable. The charge of the court in this case (5 FED. REP. 499) reaftlrmed on motion for a new trial. CLUSION .FROltl
REASONABLE
QUBSTION OF LAw AND FACT. It is not error for the court, in charging the jury, to say that a given regulation is unreasonable, when the court explains to the jury what what would be the rules of law by which the reasonableness or unreasonableness is to be tested, and leaves to the jury the determination of the facts of the particular case. The ruling in this case on demurrer (4 FED. REP. 37) explained and applied. ABsENCE OF lIALICE-
3. DAltlA(lBS- CoMPENSATORY AND PUNITIVE GooD FAITH IN DISCHARGB OF DUTY.
It was not error to refuse a charge that the absence of malice on the part of the conductor, and good faith in what he regarded as his duty., would deprive the plaintiff of a right to punitive damages, and reduce ber claim to such as are purely compensatory, when the court mOdified it by adding that such facts, if true, should be taken in mitigation of the punitive damages the jury should see proper to give. The jury may protect the public and enforce the legal duty of a carrier of passengers !;iy inflicting punitive damages, where an unreasonable regulation is insisted on by the carrier, and a bonafide belief in the right to enforce the regulation is only a matter of mitigation.