49 F. 807 | 8th Cir. | 1892
This is ah action to recover the value of 666 tons of hay which was destroyed by fire near Wagoner, in the Indian Territory, on August 20,1889. The hay was stacked in 15 ricks, at distances varying from 400 yards to 1J miles from the track of the Missouri, Kansas & Texas Railway Company. Messrs. Eddy and Cross were operating said railroad as receivers when the fire occurred. The complaint filed in the lower court alleged that they had negligently permitted large quantities of dry grass and weeds to accumulate on the railroad right of way; that they had in service a locomotive engine which was not supplied with the best appliances for arresting sparks, and that while using such engine it -was carelessly permitted to emit sparks, or drop coals of fire, which ignited the combustible material on the right of -way, and started a fire that eventually spread to the nay-ricks, and destroyed them. On the trial in the lower court the evidence showed very conclusively .that the fire began on the right of way, and was most likely occasioned by a locomotive 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 very near the place where the fire originated. There was also considerable testimony tending to show that the right of way-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 requested 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 resulted in a verdict against the receivers in the sum of $2,664.
The record before us shows that an unusual number of exceptions.
The first exception that will be noticed relatos to the jurisdiction of the trial court. Process was served on the receivers by delivering a copy of the summons to one of their station agents in charge of the railway station at 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 their previous exception, so far as it was within their power to do. On this state of facts it is contended that the 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 have been made applicable to the Indian Territory, such service as was had in the present case is sufficient to confer jurisdiction when the defendant is a railway company or a foreign corporation. Mansf. Dig. §§ 4979-4982, and section 31, Act Cong. May 2, 1890, (26 U. S. St. p. 94.)
We regard this contention of counsel as uni enable for two reasons. •The third section of the judiciary act of March 3, 1887, (24 U. S. St. p. 554,) authorizing suits to 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 Co. v. St. Louis, A. & T. Ry. Co., 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 to question i Is jurisdiction in this court. In so holding, we have not overlooked the decision in Harkness v. Hyde, 98 U. S. 476, hut we believe that case may he fairly distinguished from the one at bar. In Harkness v. Hyde the process involved had not only been served outside 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.
The cases are very exceptional where a litigant is at liberty to deny the jurisdiction of a court, after defending on the merits, and taking the chances of making a successful defense precisely as if it had jurisdiction. If the receivers desired to raise the question of jurisdiction in .this court, we are of the opinion that they should have refused to appear in the lower court, or, having appeared for the purpose of moving to quash the service of process, that they should have abandoned the case when their motion to quash the service was overruled.
I 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 value. It is strenuously insisted by counsel for the receivers ¡(and this is said to be their main contention) that the plaintiffs below-showed no such title as warranted a recovery, for the reason that the hay ¡was cut on lands belonging to the Creek Nation, and that both of the plaintiffs were trespassers in so doing; and, secondly, because one of the ¡plaintiffs was a licensed trader, and, as such, was expressly prohibited ¡by a local statute from cutting hay on the common pasturage grounds of -,the Creek Nation. It is sufficient to say, with reference to this contention, that the record before us fails to show whether the hay was cut on the common pasturage of the nation, or on lands at the time occupied and held by Mrs. Hailey individually, according to the customs and usages of the nation. We will certainly not presume that either of ■the defendants in error was guilty of a trespass, much less that in cutting the hay either of them violated a criminal statute. In so far as we are permitted to indulge in presumptions, we must presume that the hay was lawfully harvested. The burden is on the receivers to overcome .that- presumption, and we find nothing in the present record that would ■ authorize us to say that the hay was gathered on the public domain ' without license, and that, for that reason, the defendants in error showed no title.
The record does disclose, and there is no evidence to the contrary, that one of the plaintiffs in the lower court (Mrs. Hailey) was a member of the Creek Nation. As such, she certainly held the land where the hay • was harvested as a tenant in common with other members of the Creek .Nation, even if it was not gathered on lands of which she was the sole
A number of the exceptions taken have reference to the charge, and to the action of the trial court in refusing 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 parties 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 way free and clear of combustible materials, and in the matter of providing their locomotives with suitable appliances so that, they would not emit 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' diligence that a prudent and skillful man would exorcise under like circumstances to prevent injury to his own property. It further instructed the jury, however, that while the receivers were not liable unless the fire was occasioned by their negligence, yet, if they had allowed combustible
It is contended, however, that, in defining the duty of the defendants in error, the trial court should have gone further than it did, and should have declared, as it was requested to do, “that if * * * the plaintiffs did not use any effort to protect their hay, which they allege was burned by sparks cast out by defendants’ engine, either by plowing around the ricks of hay in question, or by making fire-guards around the same, or using other means, such as a careful, prudent person should have done, and that becausé of such failure to so protect said hay that the same was burned, the jury should find for the defendants.” We' think this request ought not to have been given, for the following reasons: It assumes that the evidence in the case tended to show that the defendants in error had made no effort and had taken no precautions to protect their hay from fire, which was not the fact. The testimony
There are two other assignments of error to be considered, which relate to the measure of damage. The court below instructed the jury that the measure of damage was “the market 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 he allowed as damages, in cases where property has been destroyed through the culpable negligence of another, as well as when it has been wrongfully converted; but the usual, and perhaps the better, practice is to ieave such allowance to the discretion of the jury. Beals v. Guernsey, 8 Johns. 446; Thomas v. Weed, 14 Johns. 255; Decereux v. Burgwin, 11 Ired. 490; Gilpins v. Consequa, Pet. C. C. 85; Sedg. Dam. (7th Ed.) 189 — 191. In the present case, however, we find no occasion to disturb the verdict on account of the error complained of, as it is quite evident from the record that the jury estimated the value of the hay at four dollars per ton, and did not in fact award interest.
The plaintiffs in error also requested the trial court to charge the jury “that, if they found that there was a market for hay in the rick * * *
“That the measure of damagés was the market value'of the hay and six per cent, interest, and, if there was no local market value, that the value might be fixed with reference to the market value at the nearest place where hay was sold, due allowance being made for cost of transportation,” etc.
We are unable to discover any material error in this direction or in the refusal of the receivers’ request. It is evident, we think, that the jury must have understood the charge as a direction to allow the market value of the hay at Wagoner, if there was a local market value, irrespective of 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-lower court with a view of saving as many exceptions as possible, and, in view of that fact, wre cannot refrain from condemning a practice which subserves no useful purpose, and imposes so much unnecessary labor on-an appellate court. The judgment of the lower court is hereby affirmed..