Atlantic Coast Line R. Co. v. United States

• Decision Date: 01 March 1909
• Docket Number: 842.
• Citation: 168 F. 175
• Parties: ATLANTIC COAST LINE R. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

168 F. 175

ATLANTIC COAST LINE R. CO. v. UNITED STATES.

No. 842.

United States Court of Appeals, Fourth Circuit.

March 1, 1909

(Syllabus by the Court.)

It was the manifest intention of Congress, in the enactment of the safety appliance act (Act March 2, 1893, c. 196, 27 Stat. 531 (U.S. Comp. St. 1901, p. 3174) to require all common carriers engaged in interstate commerce to keep their cars and engines at all times equipped with proper safety appliances.

The degree of diligence required by the statute is of the highest order, and the duty thus imposed is absolute and unconditional. Therefore, any failure on the part of the railroad company to comply with its requirements must necessarily subject the railroad company to the penalty imposed.

While this suit is in the nature of a penal action, yet it does not follow that it is a criminal prosecution. It is really an action for debt.

A complaint under the federal safety appliance act (Act March 2, 1893, c. 196, 27 Stat. 531 (U.S. Comp. St. 1901, p. 3174) alleging that the violation occurred 'on or about' a particular date, is not vague and indefinite. Pleading in a civil suit need not be as specific in alleging dates as in a criminal proceeding.

Even admitting that the requirements of the safety appliance act (Act March 2, 1893, c. 196, 27 Stat. 531 (U.S. Comp. St. 1901, p. 3174) are unduly severe and unreasonable, that fact would not justify a modification of the statute by judicial decision. The courts do not possess the power to read an exception into a statute so as to modify or change the nature of the same and thus defeat the purposes for which the law was intended.

It has been the policy of our lawmakers to grant railroads certain privileges not enjoyed by private individuals, and, while this is a wise policy and has met with general approval, it is likewise proper that due regard should be had for the rights of those employed by railroads in performing duties that are necessarily dangerous in their character; and it cannot be said to be an unreasonable provision to require railroad companies, enjoying privileges thus conferred upon them, to manage and operate their engines and cars so as to minimize the risk incident to travel and employment.

This was an action brought by the United States to recover 45 penalties of $100 each for violations of Act March 2, 1893 c. 196, 27 Stat. 531 (U.S. Comp. St. 1901, p. 3174), known as the 'Federal Safety Appliance Act," as amended by Act April 1, 1896, c. 87, 29 Stat. 85, and Act March 2, 1903, c. 976, 32 Stat. 943 (U.S. Comp. St. Supp. 1907, p. 885). The complaint alleges that the defendant is a common carrier engaged in interstate commerce by railroad, and is a corporation organized and doing business under the laws of the states of Virginia, North Carolina, and other states of the United States, having an office and place of business at South Rocky Mount in the state of North Carolina.

Of the offenses made the basis of this prosecution, 41 were violations of section 2 of the act (defective couplings), and 4 were violations of section 4 (failure to have secure grabirons and handholds).

The defendant filed a demurrer to each count, alleging nine specific grounds of demurrer. The court below overruled the demurrer, and this case comes here on writ of error to the District Court of the United States at Wilmington, N.C., for the Eastern district of that state.

George B. Elliott (Junius Davis, on the brief), for plaintiff in error.

Harry Skinner, U.S. Atty., and Philip J. Doherty, Special Asst. U.S. Atty. (Luther M. Walter, Special Asst. U.S. Atty., on the brief), for defendant in error.

Before GOFF and PRITCHARD, Circuit Judges, and MORRIS, District Judge.

PRITCHARD, Circuit Judge (after stating the facts as above).

From an inspection of the record it appears that the plaintiff in error assigns nine grounds of demurrer, but only two of the grounds of demurrer thus assigned are relied upon in this court, the first being that the complaint is vague and indefinite in that it alleges that the violation occurred 'on or about' a particular date. The court below, in passing upon this point, held that a pleading in a civil suit need not be as specific in alleging dates as in a criminal proceeding, where prosecution is by indictment.

In matters of practice and pleading the United States courts are governed largely by the practice and pleading of the courts of the state where the suit may be instituted. This rule is based upon the provisions of section 914 of the Revised Statutes (U.S. Comp. St. 1901, p. 684), which reads as follows:

'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.'

Therefore we must ascertain what the practice is in this respect in the state courts of North Carolina.

While this suit is in the nature of a penal action, yet it does not follow that it is a criminal prosecution. It is really an action for debt. Therefore it is important that we should carefully consider the rulings of the Supreme Court of North Carolina in such cases.

The case of Lumber Co. v. Railroad, 141 N.C. 171, 53 S.E. 823, was an action to recover penalties of the defendant on account of discrimination and overcharge in the shipment of logs, and in that case it was held that it was sufficient to allege the time of shipment as between the 15th day of November, 1898, and the 30th day of April, 1901, and that the lower court, in refusing to sustain the demurrer, was within the rule, inasmuch as the defendant could have asked for a bill of particulars.

Judge Connor, in delivering the opinion of the court in that case among other things, said:

'In regard to the exception to the complaint for indefiniteness, as to debts, etc., the defendant might, if it so desired, have asked for a bill of particulars. Revisal 1905, Sec. 494. The ruling of his honor was correct.'

In this connection it might be well to consider the rule of the Supreme Court of North Carolina in the case of State v. Long, 143 N.C. 670, 57 S.E. 349, as showing the practice in this respect in criminal procedure in that state. In that case the defendant was charged in the indictment with bigamy. The defendant moved to quash, and also for arrest of judgment, (1) because the bill of indictment did not charge the date of either marriage; (2) because the indictment did not allege where the second marriage took place; (3) because it did not charge that the offense was committed in Rutherford county and in the state of North Carolina.

Chief Justice Clark, speaking for the court, at page 673 of 143 N.C., page 350 of 57 S.E., said:

'It is sufficient to follow the words of the statute, and the date of the marriage is not required to be charged (Revisal 1905, Sec. 3361). Besides, Revisal 1905, Sec. 3255, provides: 'No judgment upon any indictment for felony or misdemeanor shall be stayed or reversed * * * for omitting to state the time at which the offense was committed, where time is not of the essence of the defense.' Citing State v. Burton, 138 N.C. 578, 50 S.E. 214; State v. Arnold, 107 N.C. 864, 11 S.E. 990; State v. Peters, 107 N.C. 883, 12 S.E. 74. * * * '

Again, at page 676 of 143 N.C., page 350 of 57 S.E.:

'If the defendant had wished fuller information in regard to matters not named in the statute as ingredients of the offense, and therefore not required to be charged (State v. Covington, 125 N.C. 642, 34 S.E. 272), so as to prepare his defense, such as the times and places of the marriages, he should have asked for a bill of particulars, as is now provided by Revisal 1905, Sec. 3244. Citing State v. Brady, 107 N.C. 826, 12 S.E. 325; State v. Gates, 107 N.C. 832, 12 S.E. 319; State v. Dunn, 109 N.C. 840, 13 S.E. 881; Townsend v. Williams, 117 N.C. 337, 23 S.E. 461; State v. Pickett, 118 N.C. 1231, 24 S.E. 350; Goldbrick Case, 129 N.C. 657, 40 S.E. 71; State v. Van Pelt, 136 N.C. 639 and 669, 49 S.E. 177, 68 L.R.A. 760.'

The case of Conley v. Railroad, 109 N.C. 692, 14 S.E. 303, is cited in support of the contention that the allegation herein is too indefinite as to time by employing the words 'on or about' a certain day. While there may be some parts of the opinion in that case in conflict with the ruling announced in the other cases, which we have mentioned, yet that case was overruled by the case of Allen v. Railroad Company, 120 N.C. 548, 27 S.E. 76. Chief Justice Faircloth, who , among other things, said:

'The demurrer to the sufficiency of the cause stated brings to this court a question of form or uncertainty in the pleadings and not the merits of the action, and thus costs and delay are incurred which might have been avoided by a proper motion below, as we are to assume that the judge would have granted the proper motion, certainly until it appears otherwise.

'Without commending the form in which the plaintiff has stated his case in the complaint, we think the defendant's remedy was by motion and not by demurrer. * * * '

The second paragraph contained in the first cause of action reads as follows:

'Plaintiff further alleges that in violation of the act of Congress known as the 'Safety Appliance Act,' approved March 2, 1893 (Act March 2, 1893, c. 196, 27 Stat. 531 (U.S. Comp St. 1901, p. 3174)), as amended by the act approved April 1, 1896 (Act April 1, 1896, c. 87, 29 Stat. 85), and as amended by an act approved March 2, 1903 (Act March 2, 1903, c. 976, ...