DWYER V. ST. LOUIS & S. F. R. CO.
87
I think, under this provision, the court below might issue a. notice requiring the defendant to be present at a. certain hour of some day named, and not less than 6 nor more than 20 days from the date and service thereof, and stating that at said time said action would be taken up by said court and disposed of according to law. The writ ofmandam'U8 will therefore be issued as in the petition prayed for.
DWYER
et ale
t1.
ST. Lours & S. F. R. Co.
(Circuit Court, W. D. Arkansas. June 29, 1892.) 1. TRIAL-INSTRUOTIONS-DIREOTING VERDICT.
If a Case is one which fairly depends npon the e1fect or weight of evidence, a court has no righUo withdraw the case from the jury, unless the testimony be of such a conclusive oharacter as to compel it, in the exercise of a sound judicial discretion, to set aside a verdict in opposition to it. The court may direct a verdict for ,the de· fendant, if the evidence goiven at. tbe trial, with all the inferences that the jury could justifiably draw from it, is inSUfficient to support· a verdict for the plainti1f, so tbat such verdict, if returned, must be set aside.
2.1IUsTER AN)) SERVANT-CONTRIBUTORY NEGLIGENOE-DANGBROUS l'REHISBll-NOTIOE.
A ,ard master in the service of a railroad company is not required to quit the serVlce of such company,orfail or refuse to perform the work devolving upon him, althongh, he knew of the dangerous condition of the company's Car yard, provided the same was not so far dangerous as to threaten immediate injnry, or the condition of the car yard was not so dangerous but that the yard master, as a reasonably prudent man,. could come to a well-gronnded conclusion that. he could. aafely perform hilf duty for the henel1t of I\is employer. It the above conditions exist, and the ,ard master is killed in the discharge of his duty, without contrlbutoryfault on his part, his wife and children may recover of the company. The federal courts are not bound by a clause in' the COde of a state with regard to the duty of courts to direct a jury to make special fiJ;ldings. , COURTS-DIRECTING SPBOIAL FINDINGs-FOLLOWING t:lTATE STATUTES.
8., FBDBRAL
,. 'EJWESSIVE llAMAGEs.
A court cannot interfere with a verdict of a jury on the grounu of excessive damages, unless the damages are so excessive as to lead to the conclusion that the;same is the :fruitof passion or prejUdice. To warrant a conclusion of that kind, the damages must oe shocking to the sense of justice, or it must be manifest that the same are unreasonably large: .
At Law. On motion for a new trial. Rogers k Read, for plaintiffs. B. R. Davidson, for defendant.
Denied.
PARKER, District Judge. Suit against defendant by plaintiffs, as the wife and children ofJames Dwyer, deceased. Recovery prayed for on the ground that defendant negligently caused the death of James Dwyer, employe of defendant, in the capacity of yard master, at Ft. Smith, Ark. Jury trial had. Verdict for plaintiff for $17,820. Defendant, by its counsel, files a motion for new trial. The first ground of said motion is that the court erred in overruling defendant's motion to require plaintiffs to elect on which count of complaint they would rely. There is no error in this action of the court. The. plaintiffs relied 011 a atate of 'negligence created by defendant. They simply set· out in the
88
REPORTER,
vol. 52.
two, CO\lllts of their complaint the facts upon which they relied to show aoondition of negligence. There is here but one cause of action, and it arises from. the negligence of defendant in killing James J. Dwyer. But if there !Were two separate <lauses of action they might be joined, and the plaintiffs could proceed to try both of them at the same time, as, where two causes of action of. the same nature exist, they may bejoined in the same complaint. Section 5014, Mansf. Dig. Laws Ark. par. 6, which provides "that all claims arising from injuries to persons or property may be joined," and, when so joined, they may, of course, be tried in the same suit; so I can see nothing in tbis ground for a new trial. , The second ground is t4at the court erred in admitting testimony over objection of defendant; and tlie third is that the court erred in excluding testimony offered by defendant. I do not consider either of tbese en uses as having any weight, especially as no specific errors of this kind have ' been pointed out by counsel. The fourth cause is that the court erred in overruling defendant's motionto instt\1ctt,he jury to find the issues for tqedefendllnt. This cause is not one' upon which anew trial can be grAnted, because there were facta sirde of plaintiff of such proving power as made it necessary that they should be passed on by the jury. The case is not of that chfl:racter ean be taken byihe court from the jury. It is bne which, in my judgment, fairly depends upon the effect or weight of evidence, and such a cil.se could not be withdrawn from the jury, unless the testimony be of such a conclusive character as to compel the court, in the exercise of a sound judicW discretion, to set aside a ,verdict in opposition to it. 11l8Urance Co.v.Doster, 106 U. S. 30, 1 Sup. Ct. Rep. 18; Insurance Co. v. Lat/wop, 111 U. S. 612, 4 Sup. Ct. Rep. 533; Township of Montclair v. Dana, 107 U. S. 162, 2 Sup. Ct. Rep. 403. If the evidence given at the trial, with all the inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, BO that Buch a verdict, if returned, must be set aside, the court may direct a verdict for the defendant. Such is the rule laid down in Randall v. Railroad ('AJ., 109 U. S. 478, 3 Sup. Ct. Rep. 322; Mw'shali v. HUblJard, 117 U. S. 415, 6 Sup. Ct. Rep. 806; Harris v. Railroad Co., 35 Fed. Rep. 116; North P. R.,Co. v. Commercial Nat. Bank, 123 U. S. 727, S. Sup. Ct. Rep. 266. I am not able to say that the facts in this case warrant the application of the rule asked for by defendant. The fifth cause for new trial is that the court erred in giving its charge to the jury as the law or the case over the objection of the defendant, the objectionable provisions at the time being specified or pointed out. Without dwelling in detail on the charge of the court as given, and on .the propositions the court refused to give, I think the law was clearly and fully declared. To my mind. both reason, justice, and authority sustain the charge of the court. The following part of the charge is in relation to the fact that deceased was not called on either to quit the service, or fail or refuse to perform the work devolving on him, although he knew of the dangerous condition of defendant's car yard, provided the same was not so far dangerous as to threaten immediate injury, or·
DWYER 'D. ST. LOUIS &: 'So F. R.CO.
89
the condition of the yard was not so dangerous but that the deceased, James J. Dwyer, as a. reasonable and prudent man, as he was, could come to well-grounded conclusion that he could safely perform his duties for the benefit of his employer. If that was the case, then he acted with prudence and care, as measured by the acts of a man possessing these characteristics. In such a case, there would not be that case of patent, flagrant danger that would signal deceased to take no chances, or, if he took them; he did so at his peril. If the danger was no greater than that described in the charge. of the court, then reasonable and prudent men in the performance of duty would confront such danger, and what such men would do, under such circumstances, the deceased might do without being chargeable with contributory negligence, as the rule for his guidance is derived from what reasonable men would do under the same circumstances. . The above remarks apply to the construction with equal force to that part of the charge of the foreign fruit car, upon which rests one ground of the negligence of the defendant, as set out in, the complaint. The authorities sustaining this principle are very numerous. The proposition is very clearly stated by Judge WALLACE in Railroad CO. V. Young, 49 Fed. Rep. 723, and many authorities are there referred to as sustaining the principle. Beach, Neg. 373, and notes; Soeder v. Railway 00.,100 Mo. 673, 13 S. W. Rep. 714; Huhn V. Railway 00.,92 Mo. 440, 4 S. W. Rep. 937. The sixth cause is that the court erred in refusing instructions asked for by defendant numbered 6, 8, 9, and 10, and requiring instruction No. 10 to be qualified before giving same. There is no error in this, as the law relative to the case was fully given in the charge of the court, and the propositions asserted as named in this cause for new trial were properly refused. The seventh cause is that the court erred in refusing to require the jury to make special findings as requested by defendant. The court is not bound by the clause of the Code of the state, in regard to the duties of courts, to direct special findings. In a case of this kind such Iindings can answer no good purpose. They may be used to put the jury in an inconsistent position, and thus aflord a ground for an attack on their verdict by the court. It was no error for the court to refuse to instruct the jury to make special findings. Association V. Barry, 131 U. S. 120, 9 Sup. Ct. Rep. 755; Railroad Co. v. Horst, 93 U. S. 291; Nudd v. Burrows, 91 U. S. 426. The eighth cause is that the verdict was contrary to and not supported by the evidence. I am not prepared to say that the verdict was against the evidence, or rather against its preponderance, nor can I correctly as13ert that the position set up in the ninth cause for new trial, that the verdict is contrary to the law as given by the court, is well taken. The tenth cause is that the damages assessed were excessive,appearing to have been rendered under the influence of prejudice or passion. Excessive damall;es, appearing to have been given under the influence of passion or prejudice, are a good cause for a new trial, under the Code of the state. Section 5151, Mansf. Dig. At common law, if damage.
a
90 "iven,
FEDERAL REPOMER,voL
:extravagantas'to make' ikprobable thafthe jury ,by passion or a ,verdict might.;qpon, this, ground. RailroCldOo·· 89 Fed. ,Rep. 174; and authorities to.'rI'his is. substantially, the rule of the statute. When can a oourt interfere with a verdict on this grQund? When can acoul't sky I the amount of damages is so excessive as toJead to the concll1sioh;:tMt :the same is the fruit of passion or prejudice? , The answer iSiwhen'thesa'me isshooking to the sense of justice, or it iii manifest the same;1s,unreasonably large. Railroad ev. v. Cella; 42 Ark. 528. Is that;the 'case here? . Is a verdiotof 817.820,:as ,the compensatory pliice()ttludife of a man like Mr. Dwyerlso large as to shock the sense of jUllticlll? Or is it unreasonably large? He was a man of large rienceiil'his cs.1ling. He was prudent,.sober, industrious, careful with hisearningsjdev<Jted to hi'S occupation, faithful in all respects to hil:! familYi'with ability to earn from 885 to $90 per month. Physically, bewll.sa':strong,healthyman, with,aocording to the:evidence, a life eJllpeotlmcy;-of82,years. :What'is the !ifeof such a man worth to his family? Take:his earningsat$85 per month for 82 years, and you have $82,640: Or' takeoff 10 ,years for old age, disabiHty, and loss of time, and you haveri{lllr 22 years, at $1,020 per year, $22,440.:Making iii liberal allowance for presElntpayment, that is. for discounting the price . of a human life', and when you take. what the jury found. you do not have an amount' shocking to the· sense of justice. . Nor. is it manifest frOI'ntheir finding'8uchan amount:that the damages are unreasonably large. Thisds,tlJe testfo:r!the.court, and it can be governed by no other. iWhen we have a statute so barbaric, and almost brutal"as to prohibit the consideration! by the jury of that terrible agony. grief, and suffering ,of the faithful wife and little children for their loss by death of such a htisbll'n'd'and father as Dwyer,we should award fairly compensatory damages. "1:'he:award should be made with a reasonably liberal spirit. Under this statute, man is considered only as an animal,:a beast of burden, Hke a horse ot amule,twith to be considered when he is killed· by· negligence but his ,earning capacity. Then, under such a condition,when his earning power is fairly shown, and manifestly the jury have not gone beyond it in giving damages to his wife and children, we cannot inferthat they have done that which is shocking to our sense of 'Justice.; Cll' that they .acted from passion or prejudice.· The eleventh ground, based upon the allegation of newly-discovered evidence, is not sustained as required by the law. I think the law on all the propositions involved was fairly given, and the subject-matter in controversy was:fully stated. 'fhe evidence pro and con was weighed by the jury. . I am :not prepared to say the jury could Dot find from the evidence the truth of the propositions as claimed by plaintiffs. Upon ·the Whole case, I can see no ground for interfering with the verdict. The motion for new trial is therefore overruled.
.
52.
BEUSENB tI.8TAPLa.' "
9l
REUBENS II. STAPLJI&
(CCrcuit OOUrt,W. D. VwginCa. Aprll BB, 1891.) DJumll-EXIIlCU'l'ION AIm ACKNOWLBDGMENT-ElI'I'AClEM1lINT OJr BBAU!.
Deeds executed in Massachusetts in 1800 and 1838 conveying land In Vir¢nla, the. sig.ning and ensea1ing. whereof were acknowledged and verified according to the registry'acts then in force, (Acts Va. Dec. 1792, and Feb. 1819,) and duly admitted W record in pursuance thereof, mu.st be held to have passed the legal title, a1tb.ough no seal's appear upon the deeds at this date; tor it will be presumed that the waxen Mala'then in use, and whioh were liable to be effaced, were properly alJixed.
At LaW'.
Statement by PAUL, District Judge: This Was an action of ejectment brought byG. Reusens, a citizen of New York, against A. P. Staples, a citizen of Virginia, to recover 16,649 acres of land lying in Patrick county, Va. In the course of the trial the plaintiff offered in evidence, by way of tracing his title, two deeds, the first of which was from John Soley, of Boston, Mass., conveying 50,000 acres of land in Patrick county, Va., to John Miller Russell, of Charlestown, in the state aforesaid. (This deed also convt>yed several other tracts of land lying in Bath and other counties in Virginia from said John Soley to said John Miller Russell, Joseph RUBBell, and John La but the said lands are not involved in the suit at bar.) The attestations on said deed are as follows: "In witness whereof the said John Soley, Jun'r, hath hereunto set bls band and seal this twentieth day of March, in the year of our Lord one thousand and eight hundred. JOHN SoLEY, Jun'r· ."Signed, sealed, and delivered in the presence of .. GEORGE BLAKE· .. WILLIAK ALLINE. "JOHN PRYOR, Jr." .. Oommonwealth of M Suffolk: On this twentieth day ot March, in the year of our Lord one thousand eight hundred. before me, Wm. Alline, a justice of the peace for the county of Suffolk aforesaid, personally appeared Mr. John Soley and acknowledged the within written instrument by him subscribed to be his voluntary act and deed, and consented that the came should be entered of record. WM. ALLINE, Justice of Peace." "Oommonwealth of Massachusetts, Suffolk-ac.: At the supreme ,judicial court, begun and holden at Boston, within and for the county of Suffolk, on the third Tuesday of February, being the eighteenth day of said month, A. D. 1800, personally appeared before the court George Blake, William .Alline, and John Pryor, Jun'r, the to this instrument, and severally make oath that they saw the said John Soley, Jun'r, sign, seal, and deliver the same as his free act and deed, and that they severally subscribed their names thereunto at the same time. JOHN TUOKER, Clerk." "I certify that Tucker, Esquire, signer of the above, is now, and was at the time of signing the above acknOWledgment. clerk of said supreme judicial court, and that full faith and credit are and ought to be given to his attestations as such. ISAAO PARKER, Chief Justice of said Coud. .. Boston, .August 19th. 1816. If
91
J'EDERAL REPORTER, vol 52.
(Here follows the certificate of the clerk of the county court of Bath county, Va., that said deed was admitted to record in his office on 19th February, 1818.) "PATlUOK CoUNTY CLERK'S OFFIOE, February 26th, 1818. "Virginia, to wit: This instrument of writing from John Soley. Jun'r, to Russell. and from said Russell to Joseph Russell and John La Farge, W;ith the certificates indorsed thereon, was presented in said office and admitted to record. SAMUEL STAPLES, Clerk." The$econd of said deeds was from John Miller Russell, of Cambridge, in the COU11ty of Middlesex and commonwealth of Massachusetts, conveying to Henry O. Middleton, of Fredericksburg, in the state of Virginia, 50,000 acres of land lying in Patrick county, Va., described as being the same tractofland which was conveyed by "John Soley to this grantor ,1)1 deed the 20th day of ¥arch, in thl' year of our Lord one thoUSlijl,q, eight hundred." The·p,ttestation clause oHhis said deed is as follows: "Inwltness whereof the said John Miller Russell hath hereunto set his hand"nq seal this twentii:lth day of July, in the year of our Lord one thousand eigJIthundred and thirty-eight. JOHN MILLER RUSSELL. sealed. and delivered in the presence of "a:ENIl.Y M. CHAMBJmLAIN. "N4THAN FISKE. .. ·: "JULY 27TH, "OommontMa.lth ,q'Ma'Bae'husett8, MiddlesB:»-ss.: We, Nathan Fiske and Henry M. Chamberlain,justices of.,the peace in and for said county ot do ce!-:tjfy that John Miller grantor in the us and acknowledged the, samlll to deed on the'day and year above written. , . . "N.AT,HAN FISQ. . "HENRY M' CHA.MBERLAIN, "Justices of the Peace." "JULY 27TH, 1838. "Count,ltJ.lMtddlfiSerJJ':rlommonwealthlof Massaehu,setts : I hereby certify that Natban,'Fiske and Hen.ry,M. Chamberlain are and were magistrates at the time of taking tht! acknOWledgment oftthegrantor in the above deed. In testimony.,!\\'hereof I, Elias Phinney, clerk of the supreme judicial court ot the commonwealth of M.:lssachusetts for the county of Middlesex, have hereunto set my hand and affixed the seal of sald court this 27th day of July, 1838. "ELIAS PHINNEY." "25TH JA.NUARY, 1840. "In Patrick Ot61'k's Office: This deed from John Miller Russell 10 Himry O. Middle.ton with the certificate of acknowledgment'thereon indorsed (autbellticated according to the act ot congress) was presented in the clerk's ot· tice aforesaid. and admitted to record. A. STAPLES, Clerk." To the introduction of these deeds as evidence objection was made by the defendant on the ground that. said deeds were not nnder seal, and this. point were askedfo.r l>ydefendant's counsel. .J'iirnldi.n, Jr., D. B. Pierce, and E.:§. Bouldin, for plaintiff. N. H. HairBtoo and BfIrl"Jj'man Green, fordefenpant.
ltEUSENS fl. STA.PLEB.
93
PA.UL, District :Judge, (after stating 1M facts.) The Virginia act of &8lI6mbly, passed December 13, 1792, provided as follows: "1. That no estate of inheritance or freehold or for a term of more than five years, in lands or tenements, shall be conveyed from one to another, unless the conveyance be declared by writing, sealed, and delivered; nor shall such conveyance be good against a purchaser for valuable cons1deration, not having notice thereof, 01' any creditor, unless the same wJ'iting be acknowledged by the party or parties who shall have sealed and delivered it, or be proved by three witnesses to be his, her, or their act before the general court, or the court of that district, county, citj', or corporation in which the land conveyed. or some part thereof. lieth, or in the manner hereinafter directed within eight months after the time of sealing and delivering. and be lodged with the clerk of such court to be there recorded." "5. If the party who shalisign and seal such writing reside not in Virginia, or in the district 01' county where the lands conveyed lie, the acknowledgment by such party. or the proof by the number of witnesses requisite, or the sealing and delivering of the writing, before any court of law. or the mayor or other chief magistrate of any city, town, or corporation of the county in which the party shall dwell, certilled by such court or mayor or chief magistrate in the manner such acts are usually authenticated by them, and offered to the proper court to be recorded within eighteen months after the sealing 'and delivering, where the party resides out of this commonwealth, and within eight months after the sealing and delivery where the party resides within this commonwealth, shall be as effectual as if it had been in the last-mentioned court." ' So, also, the Virginia act of assembly, passed February 24, 1819, after re-enacting, in substance and without change so far as the case at bar is concerned, provided in its seventh section as follows: 7. Any deed may in like manner be admitted to record upon the certificate under seal of any two justices of the peace for any county or corporation within the United States, or any territory thereof, or within the District of Columbia, annexed to such deed, and to the follOWing effect, to-wit: "(Oount1lor Oorporation, )8C. : We. A.B. and C. D., justices of the peace in the county (or corporation) aforesaid. in the state (or territory or district) of - - - , do hereby certify that E. F., a party (or E. F. and G. H., etc., parties) to a certain deed, bearing date on the - - - day of - - - . and hereto annexed" personally appeared before us. in our county (or corporation) aforesaid, and acknowledged the same to be his (or their) act and deed, and desired UI.I to cel'tl(Y the said acknOWledgment to the clerk of the county (or corporation) court of - - , in order that the said deed may be recorded. Given under our hands and seals this - - .- day of - . ·A',B. [Seal.] ·C. D. [Seal.]" Now, the deed from John Soley, Jr., to John Miller Russell, dated 20th of March, 1800, was acknowledged and proved in a court of record of the state of Massachusetts in compliance with the requirements of the Virginia statute, (section 5, Act Dec. 13, 1792,) and it conveyed.to ,said John Miller ,Russell the legal title to the land described in said deed. The deed from John Miller Russell to HenryO. Middleton, dated 27th day of July, 1838, was acknowledged before, two justices of the peace in sWeof¥assachusetts, in dompJiance with the provisions of section
*
·
94
tl1e'iia 1819,' t'&elegal title to the landtdtheigrantee, and not Itn equitable'interest orily, as oohten<led.('byithe defendant. The :contention of:courisel for the defenddeed'sl"teJDofproperly executed, because the seals do not witnesseS, WPPlll,\l<cknowl,eagEld, cannot be.sllstamed. We 'ro:ust,! !time the$,e ,deeds were: executed the usual way of affixing.& seal :was by an impression in wax. The scroll, as used use. The seals, being of wax, were liable now, hadln.'Ot come irito tobeeffacedor hence the, necessity of having witnesses to the signihg!lUd sooIfng.: If, at this remote dll,y from ,1he execution of these ancient documents, we are at liberty to ignore their sanctity as sealedinstrtmlents, beefliuse the impression in wax is not to be, found on thein; oHhe scroll, its legally authorized substitute, in Hastead, though we haVe thehighest'tecord evidence 'that the seals wereattachedto the t,he execution and'delivery, it would go very far ibto equitable, what have been for a century reo gardepa,s, titles. "A deed executed in Boston in, December, 1798, by parties living there Conveying land in Virginia, is properly admitted to record upon a certificate of the proof of its execution by the subscribing witnesses before the court' of Suffolk county,signed by a person describing himself as clerk of the court, though no seal is attached to it." Smith v. OhapmQ.n; lP 445. The instructions asking the conrt to constrae these deeds aBcoDveling only:aquitable interests must be refused.
et :
TDAEl
& P. Ry.Co. e. No. 86.
LUDLAM.
CoW1. qf Appeau"Il'flt'h C(rouu. June, so. 1891.) OAJlaIlOll-JCnIeonOll' OJ' P.lllSJIlNGJIlB-MBUtm.,O. D.UlAGBL
In an .J)y a against a for belnjf put oft at K., utue mUea from her 4/H1Unation, because, under rules of the company, the tralll did not ltop at the' latter place, the oourt, without objection, gave an instruotion whioh Il1bst&tttia11y deolared tke oompany's liability j and further stated that the measwas the price of the tioketahe purohased aext morning from K. to her destinatlOn, and theinoreased, damage. Buffered by reason of be,lng left at K.., instel!od of. at some earlier place, provided that the oonductor, by promptly informingher the, train did not stop at her destination, would bave enabled her to stop at; SOdle other station, where sbe would bave suffered less tban she suffered at K. HeZd, the,mle as to the measure of damages was favorable to the company, as autboriZing a leie8ning of :tbeactual damages suffered, and the instruotion was, Pr9t ,oWeotionable as stating a conjectural or hypothetical case.
" In Error to the, CirCuit Court of United states for the Eastern Dis'. Affirmed. .' "· ..' trict of W. W. l1(Y1J)8, (R. 8. Lovett arid PrendergaSt, on the brief,) for plaintiff in'erior. J. A. Armwead, for defendant in errot. Before PARDEE and MCCORMICK, 'Circuit Judges, andLocu:, Distriot Judge.
the