Panama R. Co. v. Curran

• Decision Date: 24 March 1919
• Docket Number: 3237.
• Citation: 256 F. 768
• Parties: PANAMA R. CO. v. CURRAN et al.
• Court: U.S. Court of Appeals — Fifth Circuit

256 F. 768

PANAMA R. CO. v. CURRAN et al.

No. 3237.

United States Court of Appeals, Fifth Circuit.

March 24, 1919

Frank Feuille, of Ancon, C.Z., and Walter F. Van Dame, of Balboa Heights, C.Z., for plaintiff in error.

Stevens Ganson and Theodore C. Hinckley, both of Panama, R.P., for defendants in error.

Before PARDEE, WALKER, and BATTS, Circuit Judges.

WALKER Circuit Judge.

This is a writ of error sued out by the Panama Railroad Company (which will be referred to as the defendant) to obtain a review of a judgment rendered against it in favor of Mrs. T T. Curran and her husband, T. T. curran (who will be referred to as the plaintiffs).

The judgment was rendered on the 28th day of November, 1917. By an order entered on the same day the court allowed 20 days for a bill of exceptions. A bill of exceptions was presented and allowed within that time. It was not presented within 10 days after November 28, 1917. The defendants in error move that the bill of exceptions be stricken, on the ground that it was not presented to the judge within 10 days after the court was informed that a bill of exceptions was desired and a memorandum to that effect was entered, as required by section 136 of the Code of Civil Procedure of the Canal Zone with reference to bills of exceptions for the review of final judgments by the Supreme Court of the Canal Zone. The claim that the statute just referred to is applicable is based upon the provision of section 9 of the Panama Canal Act of August 24, 1912 (37 Stat. 565, c. 390 (Comp. St. Sec. 10045)), that 'all existing laws in the Canal Zone governing practice and procedure in existing courts shall be applicable and adapted to the practice in the new courts. ' The same section of the statute which contains the just-quoted provision contains also the provision which confers on this court appellate jurisdiction to review final judgments of the District Court of the Canal Zone in the classes of cases stated. A part of the latter provision is that such appellate jurisdiction 'may be exercised by said Circuit Court of Appeals in the same manner, under the same regulations, and by the same procedure as nearly as practicable as is done in reviewing the final judgments and decrees of the District Courts of the United States. ' The last-quoted provision makes it quite plain that the first-quoted one does not include the manner of bringing cases from the District Court of the Canal Zone to this court. The explicit statement that the appellate jurisdiction conferred may be exercised 'in the same manner, under the same regulations, and by the same procedure as nearly as practicable as is done in reviewing the final judgments and decrees of the district courts of the United States,' shows that existing laws of the Canal Zone were not intended to be made applicable to anything done after judgment looking to a review by this court. Hudson v. Parker, 156 U.S. 277, 15 Sup.Ct. 450, 39 L.Ed. 424; Detroit United Railway v. Nichols, 165 F. 289, 91 C.C.A. 257. The bill of exceptions is not subject to be stricken on the ground stated in the motion made to that end.

The court overruled a motion of the defendants that the plaintiffs be required to deposit security for the costs of the suit. The motion was based upon the following provision of an executive order of the President issued on August 14 1914:

'Section 1. The plaintiff in any civil suit, or special proceedings, may be ruled to give security for the costs upon motion of the defendant, or of any officer of the court interested in the costs accruing in such suit; and if such rule be entered against the plaintiff, and he fail to comply therewith, within the time prescribed by the court or judge thereof, the suit shall be dismissed.'

The terms of the quoted order are such as to indicate that it was not intended to require that an order be made that the plaintiff give security for the costs whenever moved for by a defendant, and that an exercise of the power conferred was left to the discretion of the court. The complaint in the cause described the plaintiffs as residents of the Canal Zone. The record does not disclose what, if any, evidence was adduced on the hearing of the motion in question. There was evidence in the trial to the effect that the plaintiffs were residents of the Canal Zone. The quoted order is not to be given the effect of putting it in the power of a defendant to make a resident plaintiff's right to prosecute a suit dependent upon his giving security for the costs. It is not made to appear that there was any abuse of discretion in the disposition made of the motion.

In reference to the complaint as to the action of the court in overruling a motion of the defendant for a second continuance of the cause no more need be said than that it is not made to appear by the record that that ruling was an improper one. It is not disclosed what, if any, evidence was adduced on the hearing of that motion.

The action was for the recovery of damages claimed to have resulted from injuries sustained by Mrs. Curran in consequence of her slipping and falling on the floor of the defendant's commissary or store in the village of Pedro Miguel, Canal Zone, while she was there for the purpose of making purchases. The alleged injuries were attributed to the negligence of the defendant in permitting the floor to be in a dangerously slippery condition. The right of the plaintiffs to maintain the action was brought into question on the ground that the store or commissary at which the injuries complained of occurred was not being operated by the defendant under its charter and by-laws, but, at the time of the injuries alleged and for some years prior thereto, was operated by the defendant as an agency of the government of the United States in the construction and operation of the Panama Canal. On the cross-examination of R. K. Morris, a witness for the defendant, he stated:

'The commissaries are merely general stores for the benefit of the employes of the Panama Railroad and the Panama Canal. All of the employes have the privilege of going there for the purpose of buying. The goods at the Pedro Miguel commissary

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