2 Indian Terr. 407 | Ct. App. Ind. Terr. | 1899
We have carefully examined this alleged stipulation, and also the motion for a continuance filed by the appellant, and the exhibits attached thereto, and it is our opinion that the appellant had no right to a continuance of this cause on either. This cause has been upon the docket for more than four years. The venue had been changed by the appellant from South McAlester, on the 1st day of February, 1894, and the record does not disclose that between that date and the month of November 1897 this
“(2) The court erred in refusing to allow appellant’s challenges to jurors Murphy, Bramstetter, and Whiteside.” The record shows that the juror Murphy had had several claims against the Missouri, Kansas & Texas Railway Company; that some of them had never been settled; but, when asked by the court the question, “Are they still pending?” he answered, “They have been dropped, ” He stated that he had not had any claim against the railway company since the year 1889, except such as had been settled by the railway company, with one exception, and that was a small fire, which burned a few hundred rails for him, and that that had occurred in 1884 or 1885, and that he had never brought suit. He was further asked by the court the question: “Is there any reason why you cannot try this case now according to the law and the evidence, without any bias or prejudice whatever on account of your previous relations with the company?” Answer: “That would cut no figure in the case pending, nor in any other case.” Question: “Your mind, then, is perfectly free from y bias or prejudice
“(3) The district court erred in overruling appel
“(4) The district court erred in overruling appellant's objection to the reading of the depositions of witnesses Andrews, Thoman, and Smythe.” The record discloses that all three of these witnesses resided at the city of Deni-son, in the state of Texas; that they were or.had been in the employ of the defendant railway company; that the witness Andrews was, at the time his deposition was taken, a conductor for the Missouri, Kansas-& Texas Railway Company; that the witness O. E. Thoman, at the time his deposition was taken, was a locomotive engineer for the defendant railway company; and that the witness John Smythe, at the time his deposition was taken, was a fireman for the defendant railway company. And the record further discloses that the appellant was present, and cross-examined these witnesses, at the time these depositions were taken: The objection to the reading of these depositions was that all three of these witnesses, although they resided in the state of Texas, were frequently within the jurisdiction of - this court, as they were employed by the defendant railway company upon its division running from Muskogee, Ind, T., to Denison, Tex. At the time these depositions were taken, although the appellant was present and cross-examined the witnesses, no objection was made to the taking of the depositions for the reasons now urged; nor was there any objection made by the appellant until this case was called for trial and the jury sworn. Sections 2954-2956, Mansf. Dig., read as follows:
“Sec. 2954. Exceptions to depositions shall be in*415 writing, specifying the grounds of .objection, filed with the papers of the case, and noted on the record.
•‘Sec. 2955. No exceptions, other than to the competency of the witness, or to the relevancy or competency of the testimony, shall be regarded, unless filed and noted on the record before the commencement of the trial.
“Sec. 2956. The court, on the motion of either party, shall decide upon the exceptions before the commencement of the trial, ”
The first and fourth paragraphs of section 2921 read as follows:
“Sec. 2921. They [meaning depositions] may be used on the trial of all issues in any action in the following cases: First. Where the witness does not reside in the county where the action is pending, or in an adjoining county, or is absent from the state, or in the military service of the United States, or of this state. Fourth. Where the witness resides thirty or more miles from the place where the court sits in which the action is pending, unless the witness is in attendance upon the court. ”
We are therefore of the opinion that the objection of the appellant to the reading of the depositions of these witnesses was properly overruled by the court, because the witnesses did not reside in the district or in an adjoining district, and resided more than 30 miles from Muskogee, where this action was pending; and we are also of the opinion that, even if this objection had been well taken, it was made too late by the appellant, the trial of the cause having commenced, and this objection not having been made as required by the statute.
“(5) The district court erred in admitting the evidence complained of in the specifications of error 8, 9, 10, 11, 12, 13, 14, 15, 16, 20, 21, 31, 32, 33, 35,.37, and 38.” The
The witness J. F. Andrews testified that he was the conductor of the south-bound train which collided with the north-bound train; that he had received orders for the running of his train, which were issued from the train dispatch-office, which was located at McAlester, Ind. T., at that time; that-he received various orders at different stations between Muskogee and McAlester; that he received his last order at Eufaula station; that this order was in writing, and that he had torn it up or destroyed it. As this order had been destroyed, it certainly was not error for him to testify what the order was.
The witness O. E. Thoman produced the order about which he was testifying, identified it, it was made a part of his deposition, and it was clearly admissible; and as the record shows that all the testimony as to the contents of these writings was admitted either because the writings themselves had been destroyed or lost, or, being in the possession of the defendant railway company, it refused to produce them at the trial, as it had been notified to do by the attorneys for the appellees on the 24th day of September, 1897, we are of the opinion that the appellant’s objections were properly overruled.
As to the alleged errors urged by the appellant in its paragraph 6, on page 61 of its brief, that the court erred in admitting the testimony of the witnesses Thoman, Smythe, and Sullivan, stating that the man Barton was a train dispatcher, and in further stating what the duties of a train dispatcher were, we are of the opinion that the court properly admitted this testimony. All of those witnesses were in the employ of the defendant, railway company. Two of
As to the errors alleged and urged by the appellant in paragraph 7, on page 62 of its brief, the court properly
As to the eighth assignment of error urged on page 65 of appellant’s brief, “that the court erred in admitting the testimony of the witnesses Powers, Morton, and Broyles as to the compensation and salary of firemen in general, and as to the deceased, ” we are of the opinion that this testimony was properly admitted. Morton was the station agent of the defendant railway company at Muskogee, and Powers was a fireman in the employ of the defendant. Morcon testified that he had in his possession a schedule showing the amount paid firemen, and we think that both of these witnesses were competent to testify as to the amount received by firemen on defendant’s line of railway, and the testimony of the witness Broyles, who stated that the deceased told him the amount received by him, we believe was competent testimony.
As to the error alleged in specification No. 9, on page 71 of appellant’s brief, that “the court erred in permitting the witness Sullivan to testify as to the contents of certain records in the train master’s office, ” we think the testimony was competent. The testimony shows that all of these records were kept in the state of Texas, outside of the jurisdiction of this court. It would be an impossibility to have them produced by a supoena duces tecum, and the contents of those records could be proved-.First, by the production of the records themselves; second, when the writing is in the hands or power of the adverse party, as in this case, the notice served upon the adverse party to produce the writing at the trial is sufficient to lay the foundation for the introduction of secondary evidence as to the contents of the document or record. See 2 Greenl. Ev. (13th Ed.) § 560. It appears from the record in this case that this notice was served upon the defendant railway company, that they failed to produce the records called for, and therefore the
The alleged error complained of in paragraph 10, on page 73 of appellant’s brief, in our opinion, is without merit. The witness Broyles was the father-in-law of the deceased; was acquainted with him, and had been for a number of years, and certainly was qualified to testify as to his habits and custom with reference to providing for his family; and we think that his testimony with reference to the wages received by the deceased as railway fireman was admissible. It is probable that no witness, except an official of the railway company, who kept the account of the deceased as fireman, or the paymaster,’ who paid him monthly, could have testified exactly as to the amount of wages received by the deceased. While the appellant infers that it could have proved that Elliott was in his private life a profligate man, it did not attempt to give the narhe of any witness by which this proof could be made, and we are of the opinion that, if the deceased had been the character of man claimed by counsel for the appellant, he would not have been in the employ of defendant railway company as a fireman.
There are three other questions raised by the appellant’s brief which we deem necessary to consider. The first is that the plaintiffs allege in their complaint that the defendant was a private corporation, “duly incorporated under the laws of the state of Missouri. ’ ’ The defendant’s answer upon that proposition is as follows: “Defendant denies that it is a private corporation, duly incorporated under the laws of the state of Missouri. ” Appellant claims that the court should have directed the jury to return a verdict for it, because the plaintiff failed to prove the allegation as charged. This contention is not well taken. It was the duty of the appellant, if it had intended to deny that it was a corporation, or that it was a Missouri corporation, or that, if it had been a corporation, the corporation had been dissolved, or if it intended to plead misnomer, to have also stated the facts. In the case of Express Co. vs Haggard, 37 Ill. 465, the defendant was sued as a corporation, which was in fact a limited partnership, and the denial in its answer was as follows: “It denies that the defendant is, or ever was, a corporation organized and existing under the laws of England.” The court held that this was a negative pregnant,-pregnant with the admission that the defendant was a corporation,-and that it consequently raised no issue. The plea of the defendant admitted that it was a corporation, and, by answering the pleading as such, it waived this objection. See 6 Thomp. Corp. §§ 7677, 7678.
The second question to be considered is a proposition contended for by counsel for appellant that the train dispatcher Barton was a fellow servant of the deceased, and therefore that the appellees could not recover for that reason, and that the court below should have directed a verdict for the appellant. The case of Railroad Co. vs Barry, 58 Ark. 198, 23 S. W. 1097, was a case very similar to the one at bar. In that case a fireman was injured in a railway collision, and
If, now, we apply these rules of the relation of a train dispatcher of railway trains to the company and to the subordinates on the trains under his direction, the objections urged to the rulings of the court below will be readily disposed of. The purport of the court’s rulings touching the liability of the company is that the train dispatcher and fire
It was not disputed on the trial below that the collision which caused the death of the fireman was the result of the negligence of the train dispatcher, and hence was attributable to the negligence of the appellant company. See Sheehan vs Railroad Co., 91 N. W. 332; Smith vs Railway Co., 92 Mo. 359, 4 S. W. 129; Darrigan vs Railroad Co., 52 Conn. 285; Railroad Co. vs. McLannan, 84 Ill. 109; Railroad Co. vs McKenzie, 81 Va. 71; Cooley, Torts, 564. In the case of Railroad Co. vs Camp, 13 C. C. A. 233, 65 Fed. 952, this question was involved and directly passed upon. The court, in substance, held as follows: A train dispatcher, who has complete control of all trains on a division of a railroad, is not a fellow servant of an engineer of a train running on such division, either at common law or under the statute of Ohio. Judge Taft delivered the opinion of the court in that case, and the conclusion was that a person who was merely a telegraph operator, and who has no authority to direct the movement of trains, is a fellow servant of a-fireman or engineer; but that a train dispatcher, wbo has the power and authority, acting in the name of the superintendent, to direct the movement of trains, would not be a .fellow servant, and the railroad company would be liable for his negligence.
The third and last question raised by the appellant in its brief is that the right of survivorship of actions by the widow and heirs against one who wrongfully killed the husband and father does not exist in the Indian Territory,