Bangor & Aroostook R. Co. v. Jones

• Decision Date: 23 December 1929
• Docket Number: No. 2387.,2387.
• Parties: BANGOR & AROOSTOOK R. CO. v. JONES.
• Court: U.S. Court of Appeals — First Circuit

36 F.2d 886 (1929)

BANGOR & AROOSTOOK R. CO. v. JONES.

No. 2387.

Circuit Court of Appeals, First Circuit.

December 23, 1929.

George E. Thompson, Henry J. Hart, and Frank P. Ayer, all of Bangor, Me., for appellant.

Frank Fellows (of Fellows & Fellows), of Bangor, Me., and Frederick R. Dyer, of Portland, Me., for appellee.

Before BINGHAM, Circuit Judge, and MORRIS and LOWELL, District Judges.

BINGHAM, Circuit Judge.

This is an action of tort brought under the Federal Employers' Liability Act (45 USCA §§ 51-59) against the Bangor & Aroostook Railroad Company to recover damages for the death of Byron McLaughlin, who was instantly killed on May 23, 1926, while in the defendant's employment as a light repairman repairing freight cars for it on the repair tracks of the Maine Central Railroad, at a place known as Northern Maine Junction, in the town of Hermon, Me. He left a widow, Vira J. McLaughlin, for whose sole benefit the action is brought. Since his death Mrs. McLaughlin has again married. She brings this action as the administratrix of McLaughlin's estate. It is conceded the work, in which McLaughlin was engaged at the time he met his death, was in repairing cars used in interstate commerce, which was undoubtedly the fact. The ground upon which the plaintiff seeks to recover is that the defendant, through its officers, agents, and employees, knowing that the plaintiff's intestate was at work upon repair track No. 2, without warning, though it was customary to give warning, negligently drove other cars in and upon track No. 2, causing him to be crushed and instantly killed between two cars, between the ends of which a gap or space had been left for his protection, when the cars were put there to be examined and repaired.

The defendant pleaded the general issue, and under a brief statement set up as special matter of defense: (1) That the plaintiff's intestate assumed the risk; (2) was guilty of contributory negligence; and (3) that he was insured, without charge or cost to himself, in the sum of $2,000 on his life, for the benefit of his heirs, by and at the instance of the defendant, which sum had been paid to the plaintiff.

The accident occurred on the 23d day of May, 1926. The writ is dated May 16, 1928, and was returnable at the term of court held at Bangor within and for the District of Maine on the first Tuesday of the ensuing June. At the time the suit was brought the plaintiff was a resident and citizen of Dorchester, Mass., where she had lived since her remarriage in June, 1927. The case was set for trial on the 21st day of November, 1928, at which time the defendant filed the following motion:

"And now comes the said defendant, the Bangor & Aroostook Railroad Company, and says that an action between the same parties for the same cause was brought by the same plaintiff against the same defendant in the Supreme Judicial Court, within and for the County of Penobscot, and State of Maine, at the April term of said court, A. D. 1927; that said case, in said Supreme Judicial Court, * * * was heard before a jury, and at said April term * * * damages were assessed against the said defendant in the sum of forty-seven hundred and fifty ($4750.00) dollars; that said defendant company took an appeal from said decision of said court to the Law Court of the State of Maine; that said case was argued before said Law Court * * * at the December term, 1927; that after full hearing upon said motion, the Law Court allowed the motion of said defendant company and ordered a new trial; * * * that afterwards, to wit, during the April term of Supreme Judicial Court, A. D. 1928, said plaintiff became nonsuited in said Supreme Judicial Court; that at said term of court an execution was issued in favor of against said administratrix in the sum of five hundred sixty-four dollars and ninety-three cents ($564.93), costs of suit, together with fifteen ($.15) cents more for execution; that said execution, hereinbefore described, has never been settled or paid by said Vira J. McLaughlin, administratrix, and remains wholly unsatisfied.

"Wherefore your defendant prays that said plaintiff in this action be not allowed to proceed in this suit, which is brought for the same cause, before the costs of the hereinmentioned suit are paid, and your defendant further prays that further proceedings in this court shall be stayed until such costs are paid."

In support of this motion the defendant called to the court's attention section 146, c. 87, of the Rev. Statutes of Maine, and section 914 of the Rev. Statutes of the United States (28 USCA § 724), but offered no proof in support of its motion.

Section 146, c. 87, of the Rev. Statutes of Maine reads as follows:

"When a plaintiff becomes nonsuit, or discontinues his suit, the defendant recovers costs against him, and in all actions, as well those of qui tam as others, the party prevailing is entitled to his legal costs. When costs have been allowed against a plaintiff on nonsuit or discontinuance, and a second suit is brought for the same cause before the costs of the former suit are paid, further proceedings shall be stayed until such costs are paid, and the suit may be dismissed unless they are paid at such time as the court appoints."

Section 914 of the Rev. Statutes of the United States (28 USCA § 724) reads:

"The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the Circuit and District Courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such Circuit or District Courts are held, any rule of court to the contrary notwithstanding."

Although no evidence was offered to substantiate the facts alleged in the motion, the District Court apparently was of the opinion that, if the facts alleged in the motion were true, they did not state a case within the meaning of the state statute, even though that statute might be enforced as a rule of practice in the Federal District of Maine, by reason of the Conformity Act (R. S. § 914 28 USCA § 724), on a state of facts falling within the meaning of the Maine act; and denied the motion, subject to the defendant's exception.

The foregoing motion having been denied the defendant filed the following motion:

"And now comes the defendant in the above-entitled case and prays this Honorable Court to cause an order to be entered for security for costs and to impose such further terms and in reference thereto as may be deemed by the court right and proper."

In support of this motion the defendant called attention to Rule 6 of the District Court of Maine, reading as follows:

"Except as otherwise directed by law, whenever all the plaintiffs in proceedings at common law or in equity reside without the district, any defendant may, within one calendar month after his appearance, enter an order as of course for security for costs to be furnished within one calendar month after notice thereof by the clerk, in not over two hundred dollars, by a surety to be approved by the clerk, or by a deposit in the registry; but the court, or a judge thereof, may direct new or additional security, or strike out or modify such order. On failure to give such security the proceedings shall be dismissed, unless the court or judge impose further terms in reference thereto.

"In cases not provided for by this rule or by the rules promulgated by the Supreme Court, the security to be given shall be ordered in the particular case."

The defendant contended that, inasmuch as it had not caused an order to be entered for security for costs within a calendar month after its appearance was made, the applicable provision of Rule 6, to the situation as presented, was to be found in the last paragraph of the rule.

The plaintiff contended that the motion should be denied, because of the defendant's delay in presenting its motion to the morning of the starting of the trial; and that in any event she could come in under the pauper rule and proceed without paying costs. The court in the exercise of its discretion denied the motion without prejudice to its renewal if, during the progress of the trial, it appeared that the plaintiff had ability to pay, or anything of that sort, when the defendant might renew its motion. The defendant at no time renewed its motion. It excepted to the ruling.

The jury returned a verdict for the plaintiff upon which judgment was entered, and the defendant appealed.

In the assignments of error, upon which it relies, the defendant complains that the court erred: (1) In denying its first motion; (2) in denying its second motion; (3) in denying its motion for a directed verdict at the close of all the evidence; (4) in refusing to instruct the jury as per requests Nos. 1 to 15, inclusive; (5) in refusing to instruct the jury that there was no evidence in the case that at the time of the accident McLaughlin was at work upon any car; and (6) that the court erred in its charge to the jury relating to insurance.

The denial of the defendant's first motion for the payment of costs in the suit in the state court was not error:...