SPRING VALLEY COAL CO. V. PATTING.
433
plead to his counterclaim." The practice act prescribes the due course of proceeding where a party fails to plead. It is to move for judgment as for want of answer. Therefore the court properly declined to make the unwarranted order asked for. No matter what reason the court assigned ·for its refusal, if the refusal was right its action was not erroneous. But what is a more conclusive answer to the writ of error is, there was no final judgment entered by the court against the complainant to be reviewed OD writ of error. Toland v. Sprague, 12 Pet. 331. It was rather the refusal of the court to proceed to judgment that the writ of error was demanded to correct. A writ of error is Dot the appropriate remedy where a court refuses to proceed to the hearing and determination of a cause. The only final judgment in this record is that complaJned of by plaintiff below, which is as follows: ' "Wherefore It Is considered by the court that this suit [I. e. the plaintiff's Sl1lt] be, and same Is hereby, dismissed out of this court, and that the defendant do have and recover of and from the plaintiff his costs by him In this behalf laid ant and expended," etc.
The defendant below did not, and does not, complain of this judgment. The writ of error, therefore, sued out by the defendant below, is dismissed, at his cost, and the judgment of the circuit conrt is reversed, at the cost of defendant in error, and the cause is remanded for further proceeding in conformity with this opinion.
SPRING VALLEY COAL CO. v. (Circuit Court of Appeals, Seventh Circuit. No. 465. 1.
April 21, 1898.)
MASTER AND SERVANT-NEGLIGENCE-COMPETENCY OF EMPLOYE.
Where a cage In which a mIner was beIng lowered Into a mine through a shaft 360 feet deep escaped control of the engineer by reason of his failure to expel the water from the cylinder of the small engine, by which the brake. and reversing apparatus were operated, and the miner was Injured, and the past competency and experience of the engineer were proved by satisfactory evidence, this sIngle act of negIlgence is not such proof of incompetency as to make the master liable. Failure to provide. a light at the bottom of a shaft, as reqUired by the nlinols statute, "to Insure, as far as possible, the safety of persons getting on or off the cage," does not make the master liable for injuries to a servant who was being lowered through the shaft In a cage, where the absence of the light neither caused nor affected the Injury. Where a servant is injured while being lowered Into a mine In a cage, and the same Is caused by the engineer's failure to keep In proper condition the cylinders of the engines operating the brake and reversing apparatus, and the same would have been sufficient except for such neglect, the master Is not chargeable with failure to supply a suflicient brake and reversing apparatus. Where a servant Is Injured through the negligence of the engineer in charge of the engine operating the cage in which he Is being lowered to a mine, such negIlgence is that of a and the master Is not IIable. 86F.-28
2.
SAME-FAILURE TO OBEY STATUTE.
8.
SAME-DEFECTIVE BRAKE.
4.
SAME-NEGLIGENCE OF CO·EMPLOYE.
" Where tl:l.e court submits a, tp I the jury upon fQur propositions. only 'whIch it is to say on tbe ver· oile ,,' ' dIet was retutted; and it must be reversed.
,
In Error to the Circuit Uniteif States for the:Northern Division of Northern District;ofijUnois. Henry S.Robbins, for plaintiff in' error. JamesD. Springer, for defendant in error. WOQDS, JENKINS" and SHOWALTEn, Circuit Judges Judge: " Alex Pattlng, the defendant in error, recovered judginent againsftbe Spring yalley Coal CompaI1:rdi,n the sum of '$10,000 for personal injury suttered on the morning Of November, 24, 1893, while being lowered through a shaft, 360 feet deep, to the the company, in which for'about two years he had Men employed to dig coal. The cage in which, witq eight or nine other miners, he was being lowered, escaped the control of the engineer, and descended with sucp rapidity that when it struck the bottom he was thrown oritupori'the ground be'side the cage, and during the rebound one of his legs w,as caught th,e cage an,d broken above the knee., Afterwards amputation but; as'the plaintiff in error clairns on the testi)llOny of lithe doctor in ,charge," by reason of disobedience of the doctor's instructions. 'The 'declaration as amended contains a number of counts,;but before entering upon the trial it was stipulated by the parties that plaintiff based his right of recovery in the case only upoiithe following grounds of negligence on the part of the defendant: "First, th/lt failed to ,fjIqU,sh a sufficient ?rake,; second, that the defendant was negligent in the employment and retentIOn of a competent engineer; third, that there was no lightat:the bottom of the shaft at the time of the accident, and that this absence of,/llight C9-ntri!.)nted to the plaintiff's. failiug to supply a injury; ,fourth, tl:l.at ,defendlintwas guilty pf negligence stifficlent reversln$ apparatus and ,appliances.'" '
in
Attheproper time' the plaintiff JIlek'ror moved for inf!.' verdict favor,a,nd alsoblpved for an iustJ;uction to.each ofthe alleged groundsofreeovery,separately, that it should be withdrawndrom the consideration of the jury because notsuJ?ported by the evidence adduced. court overrule<i each motion, and'submitted the'case to tPI? for'd,etermin,atjon uPl?u all of thegr;oupds alleged and, i:t;lcluded in the' ,stipulation., ,Exceptions were duly, sayed, and errOlvhas been assigned I upon each of the rulings, though it is to.be the brief ,f6r the, plaintiff in error does not contain, after the f!tatement of the case, "a'specificatidl,l of the errors relied OD.," as the second cll;tuse of rule 24 of this (21 C. C.· A. xcii,; 78 Fed. xcii.). It i8not a compliance with the rule to make a statement of Unless the specifications of error are givell i substantially as they appear in the record, it is not evident on the face of the as contemplated by the ,wbether "the points ofJaw," whichby the next dause of tJ:ae, rule ,are required to beCIearly ,stated in I'a brief. of the argument" are properly presented. The supreme court deemed it worth while
SPRING VALI,EY COAL CO. V. PATTING.
435
to recommend these rules for adoption. This court deems it important that they be respected. No good purpose would be served by a review of the evidence in the record. We consider it clear beyond reasonable dispute or debate that there was no evidence to justify the court in leaving to the cone sideration of the jury whether there was a liability on the second, third, or fourth ground. There is no' evidence of the engineer's incompetency, unless it be in the circumstances and fact of the accident complained of. In that instance it is clear enough that he was guilty of negligence in not expelling the water from the cylinders of the small engines by which the brake and the reversing apparatus were operated, but in that single act of negligence there is not proof of a want of competency, and, if there were, it was impossible that the master should have known of it before it happened. The competency and experience of the engineer were proved by satisfactory evidence, and before the occurrence in question there was no known reason why the company should not have believed him equal to every emergency of the emplOYment. '£hat the absence of the light at the bottom of the shaft either caused or added to the effects of the injury it is impossible to believe, and the fact that such a light was required by statute "to insure, so far as possible, the safety of persons getting on or off the cage," is irrelevant and without significance. There was no defect in the reversing apparatus. It did not work with prompt efficiency on this occasion because of the failure of the engineer to expel the water from the engine by which it was controlled, but the company is not responsible for the negligence of the engineer, who was a fellow servant of the plaintiff. In fact, the reversing apparatus is not intended, nor is it well adapted or adaptable, to check a too rapid movement of the cage on sudden emergency, and an attempt to use it in that way probably involves a new danger not less than that to be avoided. On the first proposition, that the defendants had failed to furnish a sufficient brake, the question discussed in the briefs and at the hearing is whether, in addition to the one "sufficient brake on every drum," which the statute of the state (2 Starr & C. Ann. 8t. [2d Ed.] p. 2721, c. 93, § 6) requires, the company ought to have provided a brake to be operated by hand in case of the failure for any cause of the one worked by steam power. Whether such a brake, if present, would have been effective to prevent or to mitigate the injury suffered by the plaintiff, and whether the plaintiff in error was at fault in not foreseeing a necessity for it, are questions on which the court need not now express an opinion. It cannot be said that the error of the court in refusing to withdraw othet' issues from the jury was harmless. If it were assumed that among the theories asserted there was one on which a verdict for the defendant in error could be upheld, it is impossible to say that the verdict refurned was found, or beyond reasonable question ought to have been found, on that theory. The judgment below is reversed, with direction to grant a new trial.
436
86 li"EDERAL REPORTE:El. HATCH v. HElM. (CircuIt COurt of Appeals,Sl!venth CiJ:cuit. No. 471:.
April 16, 1898.)
1.B.\TLMENT-CONTRACT FOR CONTROL OJ'FARM.
The owner of a farm, on which he then lived and bas since lived, agreed with .bis son that the Son should take QOntrol and management of the farm, implements, and stock, make repairs, pay. taxes, replace stock, and have the net encl). party being free to terminate the 'agreement at any time. This arrangement continued, with 'an Interval of a few months, for six years. Held, that the transaction was a bailment, which did not vest the title of any of the property, or of the proceeds of the farm, in the son, so as to subject it to an execution for: his debts. The possession of five years which, under 2 Starr & C,. Ann. St. Ill.. 1896, p. 2020, § 7, establishes title, Is an exclusive and undivided possession, and does not apply to a case where the possession, amounting only to custody, is held for the benefit of the owner, under circumstances which could not be promotive of fraud.
In Error to the District Court of the United States for the Northern Division of the' N6rthern District of Illinois. Geo. A. Dup_uy, for plaintiff in error. K. M. Landis, for defendant' in error. Before WOODS, JENKINS, and SHOWALTER, Circuit Judges. Hatch, filed WOODS, Circuit Judge. The plaintiff in error, in the court below his petition, entitled "Joseph G. Heim, Receiver, &c.,v. Frank W. Hatch," averring in SUbstance that he was the sole and· absolute owner of certain personal property, consisting of live stock, farming implements, and farm products; that on Saturday, August 21, 1897, the property described was levied upon by virtue of an execution dated August 13, 1897, and issued out of that court, "to enforce the collection of a judgment for four thousand dollars debt and three hundred fifty-one and nine-hundredths dollars dllmages and costs, entered on July 20, A. D. 1897, in favor of said above-named plaintiff, and against the above-named defendant, Frank W. Hatch, in the aboveentitled proceeding"; and that the property had been wrongfully levied upon and taken from his possession. It does not appear in the record, but was assumed at the hearing and in the briefs, that Heim was receiver of a national bank, and that for that reason the case was one of which the district court hap jurisdiction. No answer or plea to the petition was filed, but a jury was impaneled and sworn to try "the issue joined," and, after hearing the evidence and the charge of the eourt, returned a verdict finding 1Jhe issue for the receiver, and that the property levied upon was the property of Frank W. Hatch when the levy was made. Various errors are insisted upon. Those predieated upon the rulings of the court in admitting and excluding evidence do not seem to merit special consideration. If material error was committed, it is to be found in the court's charge, the, jury. The essentialfacts of the casE! that, in 1883, Lewis Hatch, being the owner of a large and well-stocked farm, on which he then had and
IHTCH V. HElM.
bas ever since maintained his home, entered into an agreement with his. son, Frank W., then just out of school, whereby the latter was to take the control and management of the farm and of the. implements of husbandry and the live stock thereon, maintain repairs,pay taxes, replace stock disposed of, and have as his own the net proceeds; each par,ty being at liberty to terminate the arrangement at any time. The testimony of the father and son to tbat effect is harmonious, and was not materially affected, so far as we perceive, by other testimony, or by the.proof of other facts, such as their returns of property for taxation, and the disposition made by them of wool which had not been levied upon. The court in its charge stated the arrangement as follows: "Mr. Lewis Hatch was. then approaching hIs seventieth year, according to the testImony, and desIred to retire from active.worl{. He.says to his son: 'Now, here Is the farm [In effect; I am not attempting to quote the language, but inefl'ect]. Now, here is thIs farm of 700 acres, and here is all of this stock, farming Implements, and property on the farm. I want you to take it. I want you to do well by it. You shall receive all of the Income or revenue which Is derived out of It,-In other wordS, all the whIeJ:1 accrue from tbe use of the farming property; subject, however, to the payment of all taxes, to the keeping up of repairs, and the property itself, both farm and personal property,shall be kept up, so that at the termination, whenever that shall be, there shall be left here as much of personal property, stock, etc., as I turn over to you.' "
The farm was conducted under this arrangement, the son living with the·father, until 1886 or 1887, when, having maI'ried, Frank removed to Texas, but after some months returned, at the request of his father, and resumed control, upon the same terms and conditions as before, except ,that he lived in a separate house built on the farm for his use. In November, 1892, he went away again, going to the state of Washington, wbere he incurred the liability for which the judgment was taken, for the satisfaction of which the property in question was seized on execution; but whether in that instance there was a complete and intended abandonment of the farm and property thereon, as when he went to Texas, is not clear, but, in the view we take of the case, the question is not important. The natural and reasonable construction of the arrangement, in our judgment, is a bailment, which did not vest the title of any of the property, or of the proceeds of the farm, in Frank Hatch, though, while the arrangement lasted, he had power to sell to others without further authority from his father. Certainly. the jury would have been justified in so finding, if, indeed, the court ought not to have so instructed. And, this being the arrangement, it was not necessary that Lewis Hatch, in order to protect his rights in the property, should assert dominion, or in any way interfere with Frank's visible possession and contr:oI. The relation between them was not that 01 landlord and tenant, but was more like that of master and servant. The father, desiring his farm cared for and kept up, and at the same time wishing to afford an opportunity to his son, employed him to take the control and mfl.nagement, as stated; and the possession given the son, being necessary to the performance of the service contemplated and determinable at any time at the will of either party, was ;not a tenancy, but the possession of a servant. See cases cited in Chiitard Y. O'Donovan, 80 Ind. 20. The son's posses!>ion of the farm, and also of the products thereof and of other property, was the posses-
86 FEDERAl' REPORTER.
SiOll"of the fathet.The .same' is also; of implements, or live stock ,bought and brought on the place, in pursuance of the agreement, as a part of the farm equipment. ' 'It follows that the proposition (for which Story, Bailm.· § 439, and Lonergan v. Stewart, 55 Ill. 49, are cited) that whenoneman turns over personal property to another, under ali arrangement by which the latter is not obliged to return the 'specific articles, but may'deliver other property of like kind and value, thel'eceiver becomes the owner of the property delivered to him,is not appHcable, and the court erred when, after stating the arrangement, it proceeded to say to the jury: ','Now, then, In that there Is no word of s.uggestlon by LeWis Hatch that hll"reserves a control as· to how ,he was to conduct, It [the farm], as to whom he, would sell thIs or that produce from the nosu,ggestion of that is in' the agreement farm, or this or that'plece as stated. Look over the conduet',of'the'>partles subsequently,' and see If you can find fromtbat'any stich ;: ,", "
!':
.u
. ThiB is, what wll;s tinctlyaffil'bleVp. d,'OIkWlS absolute ,oveJ.'lill thatprOrletty," "the !ffect of the arrangement WR$toputtbe title! of:ntbe in:W. W.,lIatch,l' This error was emphasized by other equivalent expressions in' the charge, and espeeiaIlybythe,&tatemepttila,b: ,;I!U'''!i:
"'No' rIght topuf into'the absoluteeontrtll and possession ,of' another personal property for a long jlel!iodt :.of ,time ,(In the,stMe of: IUjnols .forthe period of· fl.ve years or more) with0l1t ,taking the, which accrue to ';Vhom therefrom, namely"that the litlelpWitlle'pre!>umed t? l)e In it was given \lver, If the. control Is an absolute control.·· ,'" '" "ItreqUlres a a paramount control in LeWis that IS,R right to say clear what shall be d,one:Wlth: reference to all this personal. property or any of it. Unless that WIlS' feta,iIled by him, the title passed."
the
for five yeltrs Which, under the Illinois statute (2 St, 1896, p.292,O,,§'7), establishe$ title, is an does not apply, evidently was not intended to apply,. to a cll,se lik;ethis, where the possession, amounting only to custody, is held for the benefit of the owner, under circum c stances which if! suggest o,r'tould benromotiYeof fraud. The rj,gnt of any. ltsWas Mr.. Hatch to make such an arrangement with,a sOllQr with any' other Whom lie should choose Is all important ri,ght,inconsistent withno'principle o£public policy, and upon forbidden by no precept of the law; and if, instead of the farm and exerdsin,gsOlll of he had gone away, his right upon r¢turt;ling to asserttitle'to the unsold property remain,supplythe plaCe ing upontbe farm, whetherthe increase of t!:Iat wbicb. was there when he put 'son in would not be lel\sclear. ,', . , . . ..'. " ", . The charge of the.court seems a1sQ to be subjectt'o' the objection urged that the jury was not to,ld that in respect to ,matters of fact ?f and:.tMt the jury must mdep.endent '".: . , ' ..; . t .Tr IS: a new I
The . Starr & C.
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CARTER-CRJUMK CO. 'V. PEORRlJNG.
439
CAE:TER-CRUME CO. v. PEURRUNG.
({lil'culf Court of Appeals, Sixth Qircuit. No. 528.
April' 5, 1898.)
t.
If there Is anY,substantill1 eVidence upon wuichthe jury could reasonably have based their, verdict, it will not be disturbed ,on appeal, though there may have been a motion for a verdict or a motion for a new trial which was overruled. ' 2. SAME-CONTRACT IN RESTRAINT OF TRADE- WAIVEROF" DEFENSE. While the court may possibly reverse a judgment Involving the' enforcement of a contravening public poIlcy in the absence of an oJ:)jection on that ground in the trial court, it will only do so when such illegality appears as matter of law upon the face of the pleadings, the face of the contract, or from the admitted facts.
REVIEW ON ERROR-SUFFICIENCY OF EVIDENCE:
3. CONTRACTS IN RESTRAINT"OF TRADE. SAME.
A contract with an Independent manufacturer for the entire product of his, plant Is not in itself a contract in Illegal of trade. ,contracts to sell his entire product, without knowledge df' similar contraCts made by the buyer with other manufacturers, and without any knOWledge of the fact"that such contract was Intended by the buyer as one step In'lI,general scheme for monopolizing the trade in that article aJ;ldcontrolling' prices, such Independent manufacturer cannot be held to have conspired against the freedom of commerce, or to have made a contract in Illegal restraint of trade. ' OBJEC';IONNOT
If an independent
5. ApPEAL AND ERROR- JURISDICTION OF FEDERAL 'COURTS RAISED BELOW. ',' '
The objection that the suit was not broughtinthe district of the residence of either party does not affect the general jw;!sdictioJ;l of tile court, and cannO,t be raised for the first time on appeaL ' '.' , \
:'
ern Division of the Southern District of Ohio,' OscarM. Gottschal, Charles W. Baker; fol.' defendant in error: Before LURTON, Circuit, Judge, and SEVER:g,NS and CLARK, .,,':, ' " " District J :J;.U:&TON, qircuit Jlldge. ,Tb,is is an' :action at law. ,'j.'he sl}.it was brought npon a written madr August 14, 1894, petween Bros. & a firm then engaged.inJbe Of jobbing woo,den ware III Ohio, of Joseph P. and J.Peurrung, and ,the Carter-CrmnejJompany, a corporaBy. this "contract, for,copsideratipn tberein tion of. West recited, which will be hereafter referred to" the Carter-Crume Company became obliged 'to pay' to PeurrutlgB,rwt.& Co; ,$25(}on the 15thQf eacb m6nth ensuing 3 ,6 i¥onths,and 15 dllYs, unles$ tbe contract, should be sooner terminated under a provision cQ'ntained therein. ,The installments which became due prior to September 15, 1895, were duly paid. Th'esuit was for installments thel'¢after fallh\.g d,tle,'Yhich had n'ofbeen paid. The tion alleg.ed,that the firm 'of Peurrung Bros. & Co. bad been dissolved, and the intevest of Charles J.; Peurrungin the' contract had
In Error to the Circuit Court of the United rStatesfor the West-