Pennsylvania Mining Co. v. Jarnigan

• Decision Date: 08 March 1915
• Docket Number: 4273.
• Citation: 222 F. 889
• Parties: PENNSYLVANIA MINING CO. v. JARNIGAN.
• Court: U.S. Court of Appeals — Eighth Circuit

222 F. 889

PENNSYLVANIA MINING CO. v. JARNIGAN.

No. 4273.

United States Court of Appeals, Eighth Circuit.

March 8, 1915

Ira D Oglesby, of Ft. Smith, Ark. (George O. Patterson and Paul McKennon, both of Clarksville, Ark., on the brief), for plaintiff in error.

Covington & Grant, of Ft. Smith, Ark. (J. V. Bourland, of Ft. Smith Ark., on the brief), for defendant in error.

Before ADAMS and CARLAND, Circuit Judges, and AMIDON, District Judge.

AMIDON District Judge.

Jarnigan was plaintiff below. He was a union leader and organizer. There had been trouble at the mine of the defendant in Arkansas, and further trouble was apprehended. Defendant's superintendent testified that he had heard that there might be a disturbance, and that the union was going to come down and clean up the camp and burn all the buildings. Guards had been appointed to meet this danger. A superintendent by the name of Eyster was in charge of them. He says he was out to protect the property because warning had been sent that the camp and buildings were going to be destroyed. A group of these guards, with Eyster superintendent, met the plaintiff at a gate in the highway leading into defendant's property. Eyster said to him:

'Frank, you have been scaring the women and children of this camp a good deal lately. Do you think it is right?'

Further words followed, when the guards and Eyster set upon plaintiff and beat him severely. At the conclusion of the assault, Eyster said to plaintiff:

'Frank, you done well to get out as well as you did; if you ever come again, and try to organize, you will get more than you did.'

The complaint charged that:

'The defendant stationed at its mine certain named men and other agents and employes for the purpose of guarding and protecting its property and interest, and while its said agents and employes were acting within the general scope of their employment, assisted by, and under the personal order, guidance, and direction of, its superintendent, Bob Eyster, they waylaid this plaintiff while he was on the public highway leading from Clarksville to Jamestown, at what is known as the 'district gate,' and with deadly weapons unlawfully, wantonly, wickedly and maliciously attacked, beat, bruised, and wounded him.'

Several assignments of error are based upon the action of the court in overruling defendant's objection to the introduction of any evidence under the complaint, because it failed to state a cause of action. We think the complaint is sufficient. Even if it were not, the objection would not support an assignment of error. The practice of attacking a complaint in this manner, after the trial has commenced, has been frequently condemned by this court. Against such an attack, every reasonable intendment will be indulged.

At the conclusion of all the evidence, defendant moved for a directed verdict. This is the only assignment of error that has merit. There was evidence tending to support the claim of the company...