Knight v. Illinois Cent. R. Co.

• Decision Date: 13 July 1910
• Docket Number: 2,032.
• Citation: 180 F. 368
• Parties: KNIGHT v. ILLINOIS CENT. R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

180 F. 368

KNIGHT v. ILLINOIS CENT. R. CO.

No. 2,032.

United States Court of Appeals, Sixth Circuit.

July 13, 1910

[Copyrighted Material Omitted]

J. B Wickliffe, for plaintiff in error.

Attilla Cox, for defendant in error.

Before WARRINGTON and KNAPPEN, Circuit Judges, and McCALL, District judge.

KNAPPEN Circuit Judge.

The plaintiff brought suit in the circuit court for Ballard county, Ky., against the defendant above named and the Chicago, St. Louis & New Orleans Railroad Company for the recovery of damages by reason of the alleged negligent killing of the decedent by the defendant companies. The Illinois Central Railroad Company removed the case to the United States court on the ground of diversity of citizenship of the parties. At the close of the evidence the trial judge directed a verdict for defendant and judgment was entered thereon.

We are asked to consider assignments of error which complain of the propriety of giving peremptory instructions and alleged misinstructions as to the law of the case; also upon the proposition that the verdict and judgment are contrary to the law and evidence.

The transcript contains no bill of exceptions. There is sent up a document certified by the official stenographer to be a correct copy 'of all the evidence introduced and heard, and offered to be introduced and rejected, and all the exceptions, objections, and avowals, concerning the same, as well as all papers and exhibits offered to be or used as evidence in the trial. ' This paper is not signed by the judge, nor is it in any way authenticated by him. A bill of exceptions not actually signed by the judge must be disregarded. U.S. Rev. St. Sec. 953 (U.S. Comp. St. 1901, p. 696); Origet v. United States, 125 U.S. 240, 243, 244, 8 Sup.Ct. 846, 31 L.Ed. 743; Malony v. Adsit, 175 U.S. 281, 284, 20 Sup.Ct. 115, 44 L.Ed. 163; Oxford & Coast Line R. Co. v. Union Bank (4th Circuit) 153 F. 723, 82 C.C.A. 609. We must therefore disregard the assignments of error referred to.

The judgment entered, however, shows that at the conclusion of the evidence the defendant moved that the jury be instructed to find for the defendant; that the court thereupon excused the jury until the following morning, meanwhile hearing argument upon the motion, and at its conclusion announced to the attorneys 'upon the reasons then stated that he would sustain the motion, and that the jury would be directed to find for the defendant upon the convening of court to-morrow'; that on the opening of court the next day, before the jury had been instructed, the plaintiff moved to dismiss the case without prejudice; that the defendant's objection to such action was sustained and the jury instructed to find for the defendant, a verdict accordingly being rendered and judgment entered thereon. The propriety of the court's refusal to permit the plaintiff to submit to nonsuit is, in view of the state of the record, the only question presented for our decision.

The judgment entered shows that the court refused the motion to dismiss because 'of the opinion that it would be unjust at this stage to do otherwise. ' The Kentucky Civil Code of Practice (section 371) provides that the plaintiff may dismiss an action without prejudice to a future action 'before final submission of the case to the jury. ' The Court of Appeals of Kentucky, construing this statute, has held that after the court has sustained a motion by defendant for a peremptory instruction to the jury, but before such an instruction has been given, the plaintiff has a right to dismiss his action without prejudice, upon the ground that there has been at that time no 'final submission' of the case to the jury, within the meaning of the Code provision referred to. Vertrees' Adm'r v. Newport News, etc., R.R. Co., 95 Ky. 314, 25 S.W. 1. If this statute is binding upon the federal court, it is clear that error was committed in refusing to allow the plaintiff to dismiss.

Section 914 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 684) requires that:

'The practice, pleadings, and forms and mode 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.' The personal conduct and administration of the judge in the discharge of his separate functions is not within the meaning of this statute; hence state statutes and state constitutions forbidding judges in charging juries to express an opinion upon the facts are not binding on the federal courts (Railroad Co. v. Putnam, 118 U.S. 545, 553, 7 Sup.Ct. 1, 30 L.Ed. 257; Railway Co. v. Vickers, 122 U.S. 360, 7 Sup.Ct. 1216, 30 L.Ed. 1161); nor are state statutes providing that written instructions shall be taken by the jury in their retirement, and that papers read in evidence may be taken by them (Nudd v. Burrows, 91 U.S. 426, 23 L.Ed. 286); nor provisions that the judge require the jury to find specially upon particular questions of facts (Railroad Co. v. Horst, 93 U.S. 291, 299, 23 L.Ed. 898; McElwee v. Metropolitan Lumber Co. (6th Circuit) 69 F. 302, 319, 16 C.C.A. 232); nor statutes requiring that all instructions of the court to the jury shall be in writing (Lincoln v. Power, 151 U.S. 436, 14 Sup.Ct. 387, 38 L.Ed. 224); nor does the statute require the federal court to follow a state practice forbidding the separation of a jury after charge given and before verdict rendered (Liverpool & L. & G. Ins. Co. v. Friedman (6th Circuit) 133 F. 713, 716, 66 C.C.A. 543); nor is a state statute dispensing with the requirement that exceptions to the charge be made while the jury is at the bar, and before it retires, binding upon the federal courts (Consumers' Cotton Oil Co. v. Ashburn (5th Circuit) 81 F. 331, 333, 26 C.C.A. 436). In regard to motions for a new trial, bills of exceptions, and proceedings on review, the courts of the United States are independent of any statute or practice prevailing in the courts of the state in which the trial is had. Missouri Pacific Ry. Co. v. Chicago & Alton R.R. Co., 132 U.S. 191, 10 Sup.Ct. 65, 33 L.Ed. 309; Francisco v. Chicago & Alton R.R. Co. (8th Circuit) 149 F. 354, 79 C.C.A. 292; Chateaugay Ore & Iron Co., Petitioner, 128 U.S. 544, 553, 9 Sup.Ct. 150, 32 L.Ed. 508.

On the other hand, as to the sufficiency and scope of pleadings and the form and effect of verdicts in actions at law, the federal courts are bound by the state practice (Bond v Dustin, 112 U.S. 604, 5 Sup.Ct. 296, 28 L.Ed. 835; Glenn v. Sumner, 132 U.S. 152, 156, 10 Sup.Ct. 41, 33 L.Ed. 301); so also as to the mode of entering and recording of judgments, including provisions for entering judgments against one or more defendants (Sawin v. Kenny, 93 U.S. 289, 23 L.Ed. 926). In Central Transp. Co. v. Pullman's Palace Car Co., 139 U.S. 24, 29, 39, 11 Sup.Ct. 478, 481 (35 L.Ed. 55) it was held that 'whether a defendant in an action at law may present in the one form or in the other, or by demurrer to the evidence, his defense that the plaintiff, upon his own...