United States v. Denver & R.G.R. Co.

• Decision Date: 22 August 1908
• Docket Number: 2,567.
• Citation: 163 F. 519
• Parties: UNITED STATES v. DENVER & R.G.R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

163 F. 519

UNITED STATES v. DENVER & R.G.R. CO.

No. 2,567.

United States Court of Appeals, Eighth Circuit.

August 22, 1908

Syllabus by the Court

A complaint under the safety appliance law of Congress to recover a penalty for hauling a car in moving interstate traffic in violation of section 2 (Acts March 2, 1893, c 196, 27 Stat. 531, and April 1, 1896, c. 87, 29 Stat. 85 (U.S. Comp. St. 1901, p. 3174) amended by Act March 2, 1903 c. 976, 32 Stat. 943 (U.S. Comp. St. Supp. 1907, p. 885)) relating to automatic couplers, is not demurrable (a) because it fails to negative the matter of the exception created by the proviso to section 6 (27 Stat. 532 (U.S. Comp. St. 1901, p. 3175) amended by 32 Stat. 943 (U.S. Comp. St. Supp. 1907, p. 885)); or (b) because it only shows that one of the couplers was out of repair and inoperative, and that it was so because the uncoupling chain was 'kinked'; or (c) because it fails to negative the exercise of reasonable care on the part of the railway company in maintaining the coupler in operative condition; or (d) because, although showing an actual and substantial hauling of the car in moving interstate traffic, it fails to specify how far the hauling was continued, or is silent in respect of any actual use of the defective coupler.

Ralph Hartzell, Asst. U.S. Atty., Luther M. Walter, Special Asst. U.S. Atty. (Earl M. Cranston, U.S. Atty., on the brief).

Henry McAllister, Jr. (Joel F. Vaile and Elroy N. Clark, on the brief), for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS, District judge.

VAN DEVANTER, Circuit Judge.

The matter here in controversy is the sufficiency of the complaint in a civil action to recover penalties under the safety appliance law of Congress. Act March 2, 1893, c. 196 27 Stat. 531; Act April 1, 1896, c. 87, 29 Stat. 85 (U.S. Comp. St. 1901, p. 3174) amended by Act March 2, 1903, c. 976, 32 Stat. 943 (U.S. Comp. St. Supp. 1907, p. 885). There are four counts in the complaint, each charging a distinct hauling of a car in moving interstate traffic when one of the couplers with which it theretofore had been properly equipped was out of repair and inoperative. In the District Court all the counts were held insufficient upon demurrer. The particular reason for the ruling is not disclosed, but in support of it the defendant makes several objections to the complaint.

The first of these is that the plaintiff does not negative the matter of the exception created by the proviso to section 6 of the act of March 2, 1893, as amended by the act of April 1, 1896, which gives the right of action for the penalty. This objection must fail, because it is opposed to the settled rule that an exception created by a proviso or other distinct or substantive clause, whether in the same section or elsewhere, is defensive, and need not be negatived by one suing under the general clause. United States v Cook, 17 Wall. 168, 21 L.Ed. 538; Ledbetter v. United States, 170 U.S. 606, 611, 18 Sup.Ct. 774, 42 L.Ed. 1162; Schlemmer v. Buffalo, etc., Co., 205 U.S. 1, 10, 27 Sup.Ct. 407, 51 L.Ed. 681; Smith v. United States, 85 C.C.A. 353, 157 F. 721, 727; Id., 208 U.S. 618, 28 Sup.Ct. 569, 52 L.Ed. . .. . The second objection is that there is no allegation of any facts showing that the condition of the coupler was such as to make the hauling of the car unlawful. It is also untenable. The statute makes the hauling unlawful if the car be not equipped with 'couplers coupling automatically by impact, and which can be uncoupled, without the necessity of men going between the ends of the cars,' and the complaint, taking the second count as an illustration, alleges that the hauling occurred 'when the coupling and uncoupling apparatus on the 'B' end of said car was out of repair and inoperative, the uncoupling chain being kinked on said end of said car, thus necessitating a man or men going between the ends of the cars to couple or uncouple them, and when said car was not equipped with couplers coupling automatically by impact, and which could be uncoupled, without the necessity of a man or men going between the ends of the cars. ' This allegation could be improved in point of directness, but it was evidently intended to mean, and we think it does mean, that the coupler on the 'B' end of the car was out of repair, in that the uncoupling chain was kinked, and that, in consequence, that coupler was inoperative in that it would not couple automatically by impact, and could not be uncoupled, without the necessity of a man going between the ends...