Hill v. Wabash Ry. Co.

• Decision Date: 28 August 1924
• Docket Number: No. 6310.,6310.
• Parties: HILL et al. v. WABASH RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

1 F.2d 626 (1924)

HILL et al. v. WABASH RY. CO.^*

No. 6310.

Circuit Court of Appeals, Eighth Circuit.

August 28, 1924.

Walter H. Saunders, of St. Louis, Mo. (Wilfley, Williams, McIntyre, Hensley & Nelson and Leahy, Saunders & Walther, all of St. Louis, Mo., on the brief), for plaintiffs in error.

Homer Hall, of St. Louis, Mo. (N. S. Brown and L. H. Strasser, both of St. Louis, Mo., on the brief), for defendant in error.

Before STONE and KENYON, Circuit Judges, and KENNEDY, District Judge.

KENYON, Circuit Judge.

Plaintiffs in error instituted action in the circuit court of the city of St. Louis, Mo., against the Wabash Railway Company for damages in the sum of $61,240.72, arising from the destruction of a certain stock of lumber, a planing mill, machinery, and equipment, lumber sheds, fence, railroad switch, and other property, of which they were the owners, situated on a tract of land adjacent to the right of way of the Wabash Railway Company, in the city of St. Louis, Mo. It was claimed that the same were destroyed by a fire communicated by a locomotive engine used by the railway company upon its railroad. The action is predicated on the Missouri statute with reference to responsibility of a railroad corporation for damages caused by fires commenced from its locomotive engines.

Defendant in error denied its responsibility for the fire, and further claimed in its answer to the amended petition that the plaintiffs in error had been fully compensated for whatever claim or right of action they might have had against the defendant in error on account of the fire, and had transferred and assigned such claims to certain persons and insurance corporations not entitled to sue thereon; that plaintiffs in error were not the real parties in interest, and were not entitled to maintain the suit on behalf of themselves or said corporations.

The case was removed by defendant in error to the United States District Court for the Eastern District of Missouri, Eastern Division, and there tried. The jury returned a verdict for defendant in error, and judgment was duly entered thereon.

Various assignments of error are urged. Assignments 1 and 8 may properly be considered together, as the ultimate question involved in each is the same, viz. the effect upon the jury of the attempt to get before them the fact that the insurance companies had paid the loss, and that the contest in the court was really between such companies and the railway company. Plaintiffs in error argue very earnestly that this situation prejudiced them and prevented a fair trial, and that, notwithstanding the charge of the court, which sought to eliminate any impression created concerning parties in interest, the damage done was not remedied.

The first error assigned relating to this is the failure to sustain the motion for a separate trial upon the issues raised by defendant in error in its answer as follows: "That before the commencement of this suit the plaintiffs sold, transferred, and assigned whatever claim or right of action they might have had against the defendant on account of the fire mentioned in the petition to certain persons and corporations, and the plaintiffs are therefore not the real parties in interest in this suit, and not entitled to maintain this suit." The eighth assignment alleges the error that defendant in error was permitted to introduce evidence of the fact that plaintiffs in error carried insurance on the property destroyed and were reimbursed for said loss by the insurance companies.

The motion for separate trial was not made, considered, or ruled on in the presence of the jury. At the commencement of the trial the amended answer was read to the jury without objection, and in this way it was apprised of the claimed defense that the cause of action had been assigned. Later in the trial the following took place with reference to this matter (witness Hill upon the stand):

"Q. Mr. Hill, your property was insured, was it not?

"Mr. Williams: We object to that, if the court please. We don't think it is proper."

The court promptly sustained the objection. The reading of the answer to the amended petition and this question asked the witness Hill were apparently the only attempts made to get before the jury the question as to insurance companies having an interest in any recovery. There was evidently no argument on this subject to the jury, or reference thereto, or the record would have so shown. The court endeavored to guard this question carefully in its instructions, evidently believing that such question, under the record made, should not in any way be before the jury, saying to them:

"Something was said in the answer, and perhaps some evidence came in, from which you got the idea that this loss, either in whole or in part, was covered by insurance. I charge you that, under the law and the facts in this case, it does not make any difference whether it was covered by insurance or not. I need not go into the reason or the intricate law which governs this conclusion touching which I charge you so definitely, because it might obscure the issues and give you trouble. I merely say to you that, under the law and the evidence in this case, I charge you as a matter of law, that you are not to consider at all, or at any length, or for any purpose, the fact whether there was insurance or not. With that fact, whether it existed or did not exist, you have utterly nothing to do under the issues here, under the law here, and under the facts here."

This action arose and was tried in the state of Missouri. Section 1401, Revised Statutes of Missouri 1919, provides as follows: "Where there are several causes of action united in a petition, or where there are several issues, and the court shall be of the opinion that all or any of them should be tried separately by the court or jury, it may, on the application of either party, direct separate trials." This statute has been construed by the Missouri courts as placing a discretion in the trial court as to whether the issues in a case shall be tried separately.

In Sexton v. Anderson Electric Car Co. (Mo. App.) 234 S. W. 358, 359, the court said: "In the case at bar, there is no claim that there is more than one cause of action, but two issues clearly were raised by the pleadings: First, as to whether Sexton is the proper party plaintiff; and, second, the controversy on the merits of the case. The clear intent of the statute is to prevent confusion in deciding the several issues. The statute is not mandatory, the granting of separate trials thereunder is purely within the discretion of the court, and this discretion will not be reviewed unless it clearly appears it has been abused." See, also, Smith v. Baer, 166 Mo. 392, 66 S. W. 166; Stone v. Perkins, 217 Mo. 586, 117 S. W. 717.

Being a matter of procedure under the Missouri statute, and no federal question being involved, the construction of the statute by the appellate courts of Missouri is controlling. Pacific American Fisheries v. Hoof (C. C. A.) 291 Fed. 306; Richmond v. Smith, 15 Wall. 429, 21 L. Ed. 200; Old Colony Trust Co. v. Omaha, 230 U. S. 100, 33 Sup. Ct. 967, 57 L. Ed. 1410; Colorado Power Co. v. Halderman (D. C.) 295 Fed. 178; Georgia Ry. & Power Co. v. Decatur, 262 U. S. 432, 43 Sup. Ct. 613, 67 L. Ed. 1065. It is the evident holding of the Missouri courts that under the section of the statute hereinbefore referred to the granting of a separate trial, where more than one issue is presented in a case, is a matter resting in the discretion of the trial court, and in the absence of abuse thereof there is no review.

In this case there could be no abuse of discretion in the court's action refusing to separate the issues for trial, unless such action of necessity resulted in getting before the jury improper matter creating an erroneous impression, that could not be eradicated by the instructions of the court or the withdrawal of the same from the consideration of the jury. The objection of plaintiffs in error is not so much to the technical ruling refusing a separate trial as to the claimed result that such action created the possibility of getting before the jury alleged prejudicial matter, and that such possibility was realized.

It is earnestly urged that the jury was saturated with the idea that the controversy in the case was between the railway company and the insurance companies. We think such claim is not sustained by the record. The answer, as before stated, to the amendment to plaintiffs in error's petition was read to the jury. The statements of this answer, however, were not facts in evidence. The question asked of witness Hill with reference to insurance on the property was not answered, the objection thereto being sustained. Under the theory of the case adopted by the court, such question was improper, and should not have been asked, and, had such questioning been persisted in with the evident intent to get improper evidence before the jury, it would warrant serious attention by an appellate court. The question, however, was asked but once, and of but one witness. The matter was not again referred to anywhere before the jury in the trial, except in the instructions of the court, and no evidence whatever on the subject was introduced over the objection of plaintiffs in error, who seem to feel that the asking of the question of Hill as to insurance and the reading of the answer created the same effect as if the evidence was actually introduced.

Plaintiffs in error do not question the general rule that error in the introduction of evidence is cured by the withdrawal of the same by the court before the conclusion of the trial or by a clearly presented instruction to the jury to disregard it, as held in Penn. Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141; Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. 614, 30 L. Ed. 708; Waldron v. Waldron, 156 U. S. 361, 15 Sup. Ct. 383, 39 L. Ed. 453; Maytag v. Cummins, 260 Fed. 74, 171 C. C....