Morse v. Montana Ore-Purchasing Co.

• Decision Date: 10 December 1900
• Docket Number: 531
• Citation: 105 F. 337
• Parties: MORSE v. MONTANA ORE-PURCHASING CO.
• Court: U.S. District Court — District of Montana

105 F. 337

MORSE v. MONTANA ORE-PURCHASING CO.

No. 531

United States Circuit Court, D. Montana.

December 10, 1900

John F Forbis, William Scallon, T. J. Walsh, L. O. Evans, Henry G McIntire, Wilbur F. Sanders, and William Wallace, Jr., for plaintiff.

Cullen Day & Cullen, F. E. Corbett, John B. Clayberg, John W Cotter, Arthur P. Heinze, Elbert D. Weed, Robert B. Smith, and John J. McHatton, for defendant.

KNOWLES District Judge.

The plaintiff in this case has petitioned the court for a new trial. As grounds therefor, many alleged reasons are presented. In the argument made in support of the petition only a few of the reasons or grounds for granting the same were urged. The following were presented in the brief of counsel for plaintiff:

1. That the juror Passavant was disqualified for the reason that his name did not appear as a taxpayer on the assessment roll of Lewis and Clarke county, Mont., for the year 1899; that being the county of his residence. The plaintiff failed to interrogate this juror upon that point, and made no challenge to him as a juror on that ground. Plaintiff has presented affidavits showing why he did not examine said juror Passavant as to his qualifications as a juror under the laws of Montana. Indeed, it is stated that they had examined the county records of Lewis and Clarke county, and found upon the assessment roll of the preceding year the name W. A. Passavant, and supposed that this was the name of the above-named juror. The general rule is that, if a party fails to challenge a disqualified juror, he waives all objections to the same. It is very easy for a party to interrogate a juror as to his qualifications, and because he has failed to do so upon a mistake of fact, not induced by the juror or the opposing party, he should not be entitled to a new trial, especially when the trial has been a long and expensive one, and where the party does not show, as in this case, that he would have challenged said juror had he known the fact concerning his disqualification. The fact that the juror was anxious that it should appear that he was a taxpayer in the county where he lived, in order that he might serve as a juror, is not sufficient ground of itself for a new trial. It has been often found that persons were anxious to become jurors for no other purpose than that of finding employment.

2. The second ground that I will consider is that it appears from the affidavit of one Tibbitts that the juror Farris made declarations before the cause was finally submitted to the jury showing that he was biased, and had been influenced by the publication in the Helena Independent newspaper of an article in regard to the result of a trial had in Judge Clancy's court in Silverbow county. The said affidavit details the conversation had with said juror in regard to said case, and its effect upon the case on trial in which he was a juror. Mr. Farris, in an affidavit, positively denies this conversation. The burden of proof as to the same was upon the plaintiff, and I am not Willing to hold that he has established it.

3. The third ground presented is in regard to the furnishing of refreshments to the jurors in the cause. The affidavit of J. P. McCabe states that on the evening of the 24th of December, 1899, and during the trial of the cause, one Sam McMurran, an employe of the defendant, and the juror E. C. Perrett entered the Chamber of Commerce Saloon, in Helena, drank together at the bar, and entered into a conversation in a low tone of voice for some 15 minutes. This is positively denied in the affidavit of both McMurran and Perrett, and the statements contained in the affidavits of McMurran and Perrett are corroborated by the affidavit of O. B. Totten, the father-in-law of said Perrett, in this: He states that Perrett was at home at his house during all of the evening of said December 24th. In the affidavit of J. M. Hannigan it is stated that he was a barkeeper in the saloon of T. J. Cronin, in Helena, and that on the 24th day of December, 1899, said McMurran and the juror Perrett came into said saloon and drank together. There is some evidence as to a talk between Hannigan and McMurran about the matter of tampering with the jury. This is also denied in affidavits made by said Perrett and McMurran. There are also affidavits presented stating that the reputation of the said McCabe for truth, honesty, and integrity, in the community where he resides, is bad. An affidavit is also filed attacking the reputation of the said Hannigan for truth, honesty, and integrity, made by one W. H. Orr. As the burden is on the plaintiff to establish these facts, I do not think the court could find them to be true.

4. It is also alleged that the juror Joseph N. Kenck received refreshments at the hands of McMurran and Crabtree, employes of the defendant. O. A. Kenck, a cousin of said juror, in an affidavit, states that his cousin, the juror, told him that during the progress of the trial of this cause one McMurran and one Crabtree, whom he knew to be employes of the defendant, had furnished him with money to play at nickel in the slot machines, and had also furnished him with drinks and cigars whenever he wanted them, and that he would even call on them from across the street when he wanted either drinks or cigars. The juror Kenck denies this statement, and also the fact of having such a conversation, and McMurran and Crabtree deny that any such occurrence took place. The fact, however, of the juror Kenck taking a nickel and playing it in another nickel in the slot machine, and of taking a cigar from McMurran, is admitted. The manner in which this was done indicates a considerable intimacy between said juror and McMurran. The juror, however, denies that he knew that McMurran and Crabtree were in the employ of the defendant. There is also a reported conversation between this juror and said McCabe, spoken of above. This conversation, if true, as reported, exhibited a corrupt state of mind on the part of said juror. The court, however, must consider, not what the juror Kenck said, but what he did, and the only fact established is the taking of the cigar and the playing of the nickel above referred to; and considering the fact that McMurran and Crabtree were in the employ of the defendant, and were in Helena during the trial of the cause, the matter presents a ground for suspicion, but would scarcely be enough by itself to overturn the verdict in the case.

5. The next ground for a new trial is the publication of a number of articles in the Helena Independent, a newspaper published in the town of Helena, having a tendency to prejudice the minds of the jurors against the plaintiff, or the party represented by him. In the issue of said newspaper under date of December 12th, 1899, referring to the trial of this cause, appears the following:

'The trial of the contention between what was indicated by the examination of the talesmen for the cause in court yesterday to be the Amalgamated Copper Company, on one side of the action (E. Rollins Morse, as trustee, being the nominal plaintiff), and the Montana Ore-Purchasing Company, on the other, over the ownership of valuable ore bodies in Butte, was begun yesterday in the United States court.'

In the deposition of G. W. Sykes, the leading editor of the Independent, he was asked why he used the term 'Amalgamated Copper Company versus Montana Ore-Purchasing Company' in the description of the cause on trial, and he replied:

'I can answer for myself, of course. That being my understanding that the Amalgamated Copper Company owned the property of the Boston & Montana Company, the Butte & Boston Company, as well as the Anaconda; that they were all allied interests under the general name of the Amalgamated Copper Company.'

And also to another question his reply was:

'Because very few of the people would know who E. Rollins Morse was, and who he represented, unless we explained it time and time again; and, in a general way, all our readers know what the Amalgamated Copper Company is.'

This does give a clew as to whom and as to what was intended by the following articles published from time to time in said paper while this cause was on trial in this court.

In the issue of December 16, 1899, in a leading editorial, it is stated that certain parties, by means of the Amalgamated Copper Company, had swindled Eastern investors out of some $15,000,000, and that such parties will not recommend Montana as a place for the legitimate investment of honest capital, on account of this. In the issue of December 20, 1899, in a leading editorial entitled, 'Their Blighting Methods,' after abusing Marcus Daly, the president of the Amalgamated Copper Company, it is stated:

'He has of late undertaken to swindle confiding thousands of investors out of their honestly earned savings by manipulating the market for copper stocks, to his own profit and the ruin of scores. The Anaconda and Standard Oil gang, with Daly at their head, forced a consolidation of the properties of that company, the Boston & Montana, the Butte & Boston, the Parrot, and others, for purely stock-jobbing purposes, on the strength of previously honorable records of these companies. All over the East and the West and in Europe there were thousands of people with small savings who invested them in the stocks of the Amalgamated trust, and the stocks of other companies now composing the trust. By crafty manipulation these stocks were all boomed until the money of these small investors was in the pockets of the Daly and Standard Oil coterie. Then the bottom was knocked out, and the confiding investors are cursing the day they first heard the word 'Montana.' They were swindled outright, tens of thousands of them. * * * Furthermore, there

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