New York Co v. Estill
| Decision Date | 06 March 1893 |
| Docket Number | No. 127,127 |
| Citation | 13 S.Ct. 444,37 L.Ed. 292,147 U.S. 591 |
| Parties | NEW YORK, L. E. & W. R. CO. v. ESTILL et al |
| Court | U.S. Supreme Court |
[Syllabus from pages 591-592 intentionally omitted] Garland Pollard and Percy Werner, for plaintiff in error.
W. M. Williams and John Cosgrove, for defendants in error.
This is a single writ of error, involving two suits, each of which was brought in the circuit court of Saline county, in the state of Missouri.
The first suit was commenced November 21, 1883, by Wallace Estill, Hugh W. Elliott, and William R. Estill, against the New York, Lake Erie & Western Railroad Company. The petition set forth that the plaintiffs were the owners of 70 head of polled Angus or Aberdeen cattle, imported from Scotland, and of the value of $35,000; that the cattle were intended for the Missouri market, and the defendant had full knowledge of their value, and the purposes for which they were intended; that the defendant operated a railroad through the states of New York and Ohio, and was a common carrier of live stock and other freights over the line of its railroad in those states; that on or about September 12, 1883, the plaintiffs delivered to the defendant, as such common carrier, to be transported over its line of railway, the 70 head of cattle, and the defendant received them as such common carrier, well knowing their character, and the importance of transporting them with care and reasonable dispatch; that on the receipt of them the defendant undertook and became bound to transport them safely over its railway, and to deliver them at the terminus thereof within a reasonable time; that the plaintiffs paid the usual freight and charges for transporting the cattle; that the defendant failed to transport them with reasonable dispatch and safety, but, about September 16, 1883, at Nankin, Ohio, negligently ran its train of cars, on which the cattle were being transported, into another train of cars, and by reason thereof broke a large number of the cars in which the cattle were, threw the cattle violently against the cars and each other, and greatly jarred, bruised, maimed, and injured them; that 55 of the cattle were cows in calf at the time of the accident, and about 20 of them had since the accident, and in consequence thereof, prematurely lost their calves; that the cattle were detained at the place of the accident for about 36 hours after it occurred, without suitable food, water, or attention, and in consequence were greatly reduced in value and damaged; that in consequence of the injuries received by the cattle the plaintiffs had been put to great trouble and expense in caring for them, and the value of the cattle had been greatly reduced; and that by reason of the premises the plaintiffs had sustained damages in $12,000, for which sum, and costs of suit, they asked judgment.
The other suit was commenced November 27, 1883, by Leverett Leonard, Charles E. Leonard, William H. Leonard, and Abiel Leonard, against the same defendant, for a like cause of action. The petition contained substantially the same averments as that in the Estill suit, except that it was founded on damage to 306 head of imported polled Angus or Aberdeen and Gallowat cattle, alleged to be of the value of $200,000. It averred that the defendant negligently ran the two trains, or sections of a train, upon which the cattle were being carried, into and against each other, so that about 16 of the cars, in which the cattle were at the time, were broken to pieces, and demolished, and 7 of the cattle were killed, or so badly injured that they were rendered worthless; and that about 250 of the cattle were cows in calf, and about 60 of them, since the accident, and in consequence thereof, had prematurely lost their calves. Damages in the sum of $50,000 were alleged, and judgment was asked for that sum and costs of suit.
In each of the two cases a writ of attachment was issued by the court to the sheriff of Saline county, and to the sheriff of the city of St. Louis, against the property of the defendant, each of which attachments contained also a direction that the sheriff summon the defendant to appear in the court on a day specified to answer the petition. The sheriff of the city of St. Louis made return on each of the writs issued to him, that he had executed it in the city of St. Louis on January 7, 1884, by delivering a copy of the writ and petition to one W. E. Conner, city passenger agent of the defendant, 'who was in its business office, and had charge thereof, at the time of said service,' and that 'the president or any other chief officer of said defendant could not be found in the city of St. Louis at the time of said service.'
On the 11th of February, 1884, the defendant filed in the state court, in each of the two cases, a petition for the removal thereof to the circuit court of the United States for the western division of the western district of Missouri. Each petition stated that the defendant appeared 'only for the purpose of making this application;' that it was a corporation of the state of New York; and that the plaintiffs were at the commencement of the suit, and still are, citizens of the state of Missouri. A proper bond was given in each case, and the state court approved the bond, granted the application, and made an order removing the cause.
A transcript of the record in each case was duly filed in the circuit court of the United States. The defendant then made a motion in that court, which was heard before Mr. Justice Brewer, then circuit judge, to quash the writ of summons issued to the sheriff of the city of St. Louis, and the return of that officer thereon, (which motion stated that the defendant appeared specially, and only for the purpose of making it,) on the ground that the writ and return were void, and conferred no jurisdiction over the defendant, because, (1) being a foreign corporation, operating a railroad in New York and Ohio, which did not terminate opposite any point in Missouri, it could not be brought into the courts of Missouri by writ of summons; (2) the cause of action sued on did not accrue in Saline county, where the suit was brought, and the business office of the defendant at the time of the alleged service was not in that county, but in the city of St. Louis; and (3) the record failed to show that at the time of the service, or at any time, the defendant was engaged in business in Missouri. The circuit court overruled the motion, and defendant excepted to its order and decision, and the court signed and sealed a bill of exceptions setting forth those facts.
The defendant then filed an answer in each case denying all the allegations of the petition. A stipulation was then made and filed, entitled in both suits, that they might be transferred for trial to the eastern division of the western district of Missouri, and placed on the docket for trial at the next term of the court for that division; that no question should be raised as to the jurisdiction of the court to which the cases were to be transferred, at Jefferson City, Mo., which could not be raised to the jurisdiction of the circuit court of the United States for the western division of the western district; and that no question as to the jurisdiction of the latter court should be waived.
Both cases were duly tried at Jefferson City in April, 1888, before Judge Thayer, the district judge for the eastern district of Missouri, and the same jury. In the Estill case the jury found the issues for the plaintiffs, and assessed their damages at $8,750, and allowed interest in the sum of $2,362.50, making the total damages assessed $11,112.50. In the Leonard case the jury found the issues for the plaintiffs, and assessed their damages at $44,000, and allowed interest in the sum of $11,880, making the total damages assessed $55,880.
The defendant filed a motion for a new trial, entitled in both cases, setting forth as the grounds thereof (1) that the court gave improper instructions to the jury; (2) that it refused proper instructions asked by the defendant; (3) that it admitted improper and incompetent evidence; (4) that it made improper rulings on the evidence offered by the plaintiffs; (5) that it excluded proper and competent evidence offered by the defendant; (6) that the verdict was against the law and evidence; (7) that the damages were excessive; and (8) that the court erred in overruling the defendant's motion to quash the service of the summons in the cases. The motion for a new trial was heard before Judge Thayer, Judge Philips sitting with him; and on the 19th of November, 1888, each of the judges filed an opinion denying the motion. 41 Fed. Rep. 849, 853. On the 20th of November, 1888, an order was entered in the Estill case, overruling the motion for a new trial, and entering judgment in favor of the plaintiffs for $11,112.50, with interest at the rate of 6 per cent. per annum from the date of the verdict, May 1, 1888, on the $11,112.50, until the same should be paid, and for costs. On the same day an order was entered in the Leonard suit, stating that the plaintiffs had voluntarily remitted from the amount of their verdict $5,880, so as to reduce the verdict to $50,000 amount claimed in the petition.) overruling the motion for a new trial, and entering a judgment in favor of the plaintiffs for $50,000, being the damages assessed by the jury less the amount so remitted, and awarding to the plaintiffs interest at 6 per cent. per annum from the date of the verdict, May 1, 1888, on the $50,000 until the same shall be paid, and for costs and charges.
It was then stipulated between the parties, by a stipulation entitled in both suits, and dated November 20, 1888, that one bill of exceptions, covering all matters that arose on the trial of the two causes, might answer for both; that the bill of exceptions, signed by Judges Thayer and Philips, might be incorporated in the...
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