211 F. 391 | 8th Cir. | 1914
Lead Opinion
The plaintiff complains of the trial of an action for damages for his ejection from a Pullman car in Oklahoma, and for his arrest, conviction, and fine for disturbing the peace. In the first count of his 'petition he alleged that at about 1 o’clock in the morning of December 31, 1910, at Kansas City, Mo., he purchased a railroad ticket of the railway company and a .ticket for a berth in the Pullman car from the Pullman Company from Kansas City to McAlester, Okl., rode thereon and occupied his berth until about 9 o’clock that morning, when at Vinita, Okl., the defendant companies unlawfully, maliciously, and in an insulting manner compelled and caused officers of the law to compel him to leave the car and train and to remain at Vinita until the next train going toward McAlester came along and then to pay $3.81 fare for his passage to McAlester, to his injury in the sum of $25,003.81 actual damages and $25,000 punitive damages. In the second count of-his petition he alleged the same facts, and that while he was detained at Vinita the defendants caused the officers of the law to take him before a justice of the peace under arrest on some charge of which he was not guilty and to compel him to pay $13, and he prayed damages in the sum of $25,016.81 actual damages and $25,000 punitive damages. The Pull
As the plaintiff was an interstate passenger and the defendants in transporting him were engaged in interstate commerce over which the Congress had exclusive and the state of Oklahoma .no jurisdiction, the court below tried the case on the theory, and at the close of the trial charged the jury, that the separate coach law of Oklahoma furnished no defense or justification for the acts of the defendant railway company, but that as Congress had made no regulation regarding separate coaches for the members of the two races the railway company had the power and right to make lawful regulations to the effect that no member of either race should ride on its railroads in Oklahoma in a coach or compartment set apart for the members of the other race, provided always that there was no discrimination in the accommodations furnished to the members of the two races and that such accommodations were equal in safety, comfort, and convenience (Chiles v. Chesapeake & Ohio Ry. Co., 218 U. S. 71, 30 Sup. Ct. 667, 54 L. Ed. 936), and no exception was taken to this charge. So it is that every question regarding the separate coach law of Oklahoma is excluded from the consideration of this court in this case and that law is here dismissed.
The statutes of Oklahoma empower peace officers to arrest persons for public offenses committed or attempted in their presence, for felonies committed .and for felonies charged upon reasonable cause though they were not present when those offenses were committed, and those statutes declare that every person who willfúlly delays or obstructs any public officer in the discharge or attempt to discharge any duty of his office is guilty of a misdemeanor. Comp. Laws of Oklahoma 1909 (Snyder) §§ 6603,2207. It was the duty of the Pullman Company to exercise reasonable care and diligence to protect the passengers in its cars from unlawful discomforts, attacks, inconveniences, insults, and injuries; but that duty did not require it or its employes to substitute their opinions of the law and of the duty of officers of the law for the judgment of the latter and to interfere and obstruct the discharge by these officers of their duties, and the failure of the Pullman Company and its employés to obstruct, interfere with, or prevent the arrest and removal of the plaintiff from the Pullman car by the deputy sheriff did not constitute actionable negligence. Brunswick & W. R. Co. v. Ponder, 117 Ga. 63, 43 S. E. 430, 431, 60 L. R. A. 713, 97 Am. St. Rep. 152; Bowden v. Atlantic Coast Line R. Co., 144 N. C. 28, 56 S. E. 558,12 Ann. Cas. 783.
The specification numbered 11 in the brief for plaintiff in error, which is that the verdict and judgment are violative of the Constitution of the United States, presents no reviewable question here in the state of the record before us for the same reason, that is to say, because the issues of fact which condition the constitutionality of the verdict and judgment are not reviewable by this court and no ruling of' the court below on the question of law involving that issue is presented for our consideration by the record.
The court fails to find in the brief of counsel, as required by Rule 24, § 2, subd. 3 (109 C. C. A. xvi, 188 Fed. xvi), any reference to the pages of the record where the demurrer of the railway company or the ruling upon it, of which they complain, appear, and this court might well follow its established practice that:
“Where counsel for plaintiff in error considers the errors he assigns too trivial to warrant him in finding and citing the pages of the record which present them, the court will not deem them of sufficient importance to require it*398 to search for them.” Hoge v. Magnes, 85 Fed. 355, 358, 29 C. C. A. 564, 567; City of Lincoln v. Sun-Vapor Street-Light Co., 59 Fed. 756, 759, 8 C. C. A. 253, 255; National Bank of Commerce v. First National Bank, 61 Fed. 809, 811, 10 C. C. A. 87, 89; Shoe Co. v. Needles, 67 Fed. 990, 994, 15 C. C. A. 142, 147; Haldane v. United States, 69 Fed. 819, 821, 16 C. C. A. 447, 448.
But that no injustice may result this court has searched the entire-record for this demurrer and the ruling upon it, and all it has been able to find is a recital that before the railway company answered it filed a demurrer, which the court overruled, that at the close of the plaintiff’s evidence the railway company “filed a demurrer to both counts of the plaintiff’s petition ruling on which demurrer was reserved by the court,” and that after all the evidence had been received and before the case went to the jury, the court overruled the railway company’s demurrer to the first count of the petition and sustained it as to the second count. Neither the demurrer nor any copy of it, so far as we can find, appears in the record in this court. The statutes of Missouri specify seven grounds of demurrer to a petition and require the demurrer to specify distinctly the grounds of objection to> the petition. Revised Statutes of Missouri 1909, §§ 1800, 1801. The result is that, as the plaintiff has failed to present the demurrer to this court and to show thereby that it presented no tenable ground of demurrer to the second count of the petition, he has failed to bear the necessary burden of proving that the ruling of the couri below here was erroneous and the legal presumption that the demurrer specified some sound objection to the petition must prevail.
Second. If this court should go farther and should presume that .the demurrer contained no tenable objection to the second count of the petition, even then the judgment below, could not be lawfully reversed. All the admissible evidence on both counts of the petition was introduced at the trial. The first count charged the defendant with the unlawful and malicious ’ejection of the plaintiff from the train by means of its use of the officers of the law to his injury in the sum of $25,003.81 actual damages and $25,000 punitive damages. The second count charged the defendant with the same ejection by the same means and with arresting and fining him without just cause by use of the officers of the law to his injury in the sum of'$25,016.81 actual damages and $25,000 punitive damages. The evidence was conclusive that neither the defendant nor any of its. agents caused the arrest, detention, and fine, unless their information to the officers of the law that a negro was riding in the car set apart for whites and their designation to the officers of the law of the plaintiff as the negro who so rode caused it. But the jury found by its verdict on the first count of the peti- ’ tion that the railway company was not liable in damages for the ejection of the plaintiff from the train on account of those acts, and that finding is a demonstration that they could not and would not have found the railway company liable in damages for the arrest, detention, and fine. Thus it clearly appears beyond doubt that, if the court was in error in sustaining the demurrer to the second count of the petition, that error did not prejudice and could not have prejudiced the plaintiff, and error without prejudice is no ground for reversal.
The judgment b.elow must be affirmed. And it is so ordered.
Affirmed.
Concurrence Opinion
(specially concurring). The railway company pleaded in defense the separate coach statute of Oklahoma and in brief and argument relied on McCabe v. Railway, 109 C. C. A. 110, 186 Fed. 966. It may not be inappropriate to direct attention to some features of the McCabe case, in the decision of which the writer con
“That the acts and conduct of the defendants and each of them are being done under the provision of the state (statute) of Oklahoma above set out and will be continuous and will work great hardship upon your orators and all persons of the negro race desiring to travel on railroads in the State of Oklahoma.”
And in order to show a ground of jurisdiction in e.quity, which was indispensable to the maintenance of the suit, the averment continued:
“And unless restrained and enjoined by your honors from carrying out the intended injury, a multiplicity of suits will ensue; there being at least 50,000 persons of the negro race in the state of Oklahoma who will be injured and deprived of their civil rights unless so restrained by this honorable court.”
This was the only averment to invoke the equitable jurisdiction of the court. The trial court gave no opinion showing the grounds for its 'action, but it is manifest from long-settled principles of law and procedure that the dismissal of the suit by that court and also the affirmance of its action by this court were imperative for reasons not reaching or touching in any degree the constitutionality of the legislation.
But suppose the above obstacles, which would seem insuperable, had not been in the way, and it became necessary to consider the proviso of section 7 of the Oklahoma statute that:
“Nothing herein contained shall be construed to prevent railway companies in this state from hauling sleeping cars, dining or chair cars attached to their trains to be used exclusively by either white or negro passengers, separately but not jointly.” <
Clearly there is nothing on the face of this provision that affirmatively commands’a violation of anybody’s constitutional rights. Violations could only arise from the future conduct of the railroad companies in particular cases, not from the letter of this provision. But even were the letter of the provision ambiguous and fairly susceptible of two constructions, one making the statute valid, the other making it unconstitutional, a court would adopt the former when a specific case arose requiring it to decide the question (United States v. Delaware & Hudson Co., 213 U. S. 366, 29 Sup. Ct. 527, 53 L. Ed. 836), but it would not indulge in prevision or conjecture. . It may be convenient at times to test out beforehand what a law or some part of it means and what may
From the earliest times in-this country and in England it has been, the rule that observations in an opinion not called for by the issues of the case are not in judgment and are not authoritative. It has its-foundations in the necessary limitations of the judicial power which deny legislative functions and forbid decision upon cases or conditions-not in court, and also in the limitations of the human mind which perceives less distinctly and less accurately those things that lie outside the path of a cause but are regarded as analogies, arguments, or illustrations pointing the way to the end. It is a rule of justice and necessity and is of constant application in the courts, and among the judges of a court not only to the opinions of other tribunals and judges but also-to their own. As was said years ago in Lucas v. Commissioners, 44 Ind. 525, 541:
“The members of a court often agree in a decision, but differ decidedly as-to the reasons or principles by which their minds have been led to a common conclusion. It is therefore the conclusion only, and not the process by which it has been reached, which is the decision of the court, and which has the-force of precedent in other cases.”
In the trial of the case at bar in the court below the opinion in the McCabe case was relied on as controlling -authority. As one of the judges who sat in the McCabe case, I have deemed' it my duty to those who may feel bound by expressions in the opinions of this court to state clearly and accurately the real status of that litigation. Having done so, the responsibility in the future must rest with those who continue to regard the views expressed as judicially authoritative or res adjudicata.