Bay v. Merrill & Ring Lumber Co.

• Citation: 211 F. 717
• Decision Date: 20 February 1914
• Docket Number: 2439.
• Court: U.S. District Court — Western District of Washington
• Parties: BAY v. MERRILL & RING LUMBER CO.

211 F. 717

BAY v. MERRILL & RING LUMBER CO.

No. 2439.

United States District Court, W.D. Washington, Northern Division.

February 20, 1914

John T Casey, of Seattle, Wash., for plaintiff.

Hughes McMicken, Dovell & Ramsey, of Seattle, Wash., for defendant.

Plaintiff cites the following authorities: Colasurdo v. Central Ry (C.C.) 180 F. 832; The Daniel Ball v. U.S., 10 Wall. 557, 19 L.Ed. 999; El Paso Ry. v. Gutierrez, 215 U.S. 88, 30 Sup.Ct. 21, 54 L.Ed. 106; Slocum v. New York Life Ins. Co., 228 U.S. 364, 33 Sup.Ct. 523, 57 L.Ed. 879; Pedersen v. Delaware, etc., Ry., 229 U.S 146, 33 S.Ct. 648, 57 L.Ed. 1125; St. Louis Ry. Co. v. Seale, 229 U.S. 156, 33 S.Ct. 651, 57 L.Ed. 1129; N. & W. Ry. C. v. Earnest, 229 U.S. 114, 33 Sup.Ct. 654, 57 L.Ed. 1096; I. C. Ry. v. Porter, 207 F. 311, 315, 125 C.C.A. 55; Winona Ry. v. Blake, 94 U.S. 180, 24 L.Ed. 99; State ex rel. Clark v. Superior Court, 62 Wash. 612, 114 P. 444; North River Boom Co. v. Smith, 15 Wash. 138, 45 P. 750; State ex rel. Wilson v. Superior Court, 47 Wash. 397,92 P. 269; State ex rel. Burrows v. Superior Court, 48 Wash. 277, 93 P. 423, 17 L.R.A.(N.S.) 1005, 125 Am.St.Rep. 927; McCall v. People, 136 U.S. 104, 10 Sup.Ct. 881, 34 L.Ed. 391; Railroad Co. v. Worthington, 225 U.S. 101, 32 Sup.Ct. 653, 56 L.Ed. 1004; Behrens v. Railway (D.C.) 192 F. 581; Darr v. Railway (D.C.) 197 F. 665; Thompson v. Railway (D.C.) 205 F. 203, Northern Pacific Ry. v. Maerkl, 198 F. 1, 117 C.C.A. 237; Worthington v. Elmer, 207 F. 306, 125 C.C.A. 50; R.R. Commission of La. v. Tex. & Pac. Ry., 229 U.S. 336, 33 Sup.Ct. 837, 57 L.Ed. 1215, decided June 10, 1913; General Oil Co. v. Grain, 209 U.S. 212, 28 Sup.Ct. 475, 52 L.Ed. 754; Dozier v. Alabama, 218 U.S. 124, 127, 30 Sup.Ct. 649, 54 L.Ed. 965, 28 L.R.A.(N.S.) 264; Rearick v. Pennsylvania, 203 U.S. 507, 27 Sup.Ct. 159, 51 L.Ed. 295; In re Selman (D.C.) 204 F. 839; Baltimore v. Darr, 204 F. 751, 124 C.C.A. 565; Rosenbaum Co. v. Railway (C.C.) 130 F. 46; State v. Ry. (Tex. Civ. App.) 44 S.W. 542; Caldwell v. Nor. Car., 187 U.S. 622, 23 Sup.Ct. 229, 47 L.Ed. 336; Houston v. Insurance Co., 89 Tex. 1, 32 S.W. 889, 30 L.R.A. 713, 59 Am.St.Rep. 17; I.C.C. v. Railway, 215 U.S. 452, 30 Sup.Ct. 155, 54 L.Ed. 280; Texas Ry. v. R.R. Commission (C.C.) 183 F. 1005; Horton v. Railway, 72 Wash. 503, 130 P. 897; U.S. v. Colorado Ry., 157 F. 321, 85 C.C.A. 27, 15 L.R.A.(N.S.) 167, 13 Ann.Cas. 893; Robbins v. Shelby County, 120 U.S. 489, 7 Sup.-t. 592, 30 L.Ed. 694; Mondou v. N.Y. Ry., 223 U.S. 1, 23 Sup.Ct. 259, 47 L.Ed. 359; U.S. v. Ry. (D.C.) 197 F. 624; So. Ry. v. Gadd, 207 F. 277, 125 C.C.A. 21; Yazoo Ry. v. Wright, 207 F. 281, 125 C.C.A. 25; Walker v. New Mexico & S.P.R. Co., 165 U.S. 593, 17 Sup.Ct. 421, 41 L.Ed. 837; U.S. v. Union Stockyards, 226 U.S. 286, 33 Sup.Ct. 83, 57 L.Ed. 226, decided December 9, 1912.

NETERER District Judge.

The testimony upon the trial, on the part of the plaintiff, established the fact that the defendant was the owner of a large tract of timber land in King and Snohomish counties, and was engaged in logging the land, selling all logs upon the open market, and in connection with this land it owned a logging road of standard gauge build which was connected by switch or siding with the Great Northern Railway; that the defendant operated over its road engines and logging cars; that it has large booming grounds in the waters of Puget Sound about two miles below Mukilteo; that it operates several large logging camps upon its lands; that over its logging road it runs five or six logging trains each day to and from its various camps and places in its booms over half a million logs per day; that the logs are sold by the defendants to the various mills upon Puget Sound; that poles and piles which it cuts from its land are sold to a company which ships them to California; that the logs are sold by it from its boom to the Weyerhouser Mill at Everett, and are manufactured by said mill with other logs purchased by it from other sources and sold on the market upon orders which are received by the mill from the eastern and central western states and coast cities, and from foreign countries, and from the state of Washington; that about 80 per cent. of the output of the mill is shipped to other states or countries; that the defendant is a corporation organized under the laws of the state of Washington, and among its authorized powers is that of common carrier together with numerous other powers; that the defendant never at any time operated its road as a common carrier or tendered it in any way to the public for service; that the services rendered by the said road have all been private, and for the purpose of carrying to the booming ground of the defendant the timber taken from its land; that no other product has been taken over the road except some timber taken from the land of another under contract with the defendant to log the land for the owner and deliver the logs in the waters of Puget Sound; and certain poles or piles taken from the land of the defendant which were sold to the National Pole Company at a certain rate per stumpage delivered at the boom of the defendant company; that no service was rendered by the plaintiff in the hauling of any of the poles.

After the plaintiff rested his case, the defendant moved for a nonsuit on the ground that there was no testimony to sustain a verdict. The motion was granted. A motion for a new trial has been filed and submitted.

It is strongly urged by the plaintiff that the court erred in granting motion for nonsuit, citing Slocum v. New York Life Ins. Co., 228 U.S. 364, 33 Sup.Ct. 523, 57 L.Ed. 879. It is urged in argument that it is the duty of the judge to submit a case to the jury upon the testimony which is presented, and let the jury determine whether recovery should be had, upon the instructions which the court gives upon the law, and that it is an invasion of the constitutional right of the plaintiff to deprive plaintiff of this privilege. In the Slocum Case the trial judge submitted the issues to the jury upon the testimony which was presented on the part of the litigants. Thereafter a judgment was entered non obstante veredicto by the Circuit Court of Appeals. The Supreme Court held that this was an infraction of the seventh amendment to the Constitution of the United States, which provides:

'In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined * * * than according to the rules of the common law.'

The court stated that the entering of a judgment by the court non obstante veredicto was the trial of an issue that had been submitted to the jury, and that the power of the court was limited to granting a new trial. The same case, however, holds-- and this has been recognized by all of the federal courts-- that, where there is no testimony to support a verdict, it is the duty of the court to grant a dismissal. The judge's function is to superintend and direct the course of trial, and the jury are to determine the ultimate facts in issue; and, when the facts disclosed by the testimony clearly cannot under the law support a verdict, it would be useless to submit it to a jury.

The act under which this action is prosecuted provides:

'That every common carrier by railroad while engaged in commerce between any of the several states * * * shall be liable in damages,' etc.

In order for the plaintiff to recover he must establish that the defendants owned and operated a common carrier railway and was engaged in interstate or foreign commerce, and that the plaintiff was employed by the defendant in such trade or...