St. Louis & S.F.R. Co. v. Loughmiller

• Decision Date: 06 February 1912
• Docket Number: 126.
• Citation: 193 F. 689
• Court: U.S. District Court — Western District of Oklahoma
• Parties: ST. LOUIS & S.F.R. CO. v. LOUGHMILLER.

193 F. 689

ST. LOUIS & S.F.R. CO. v. LOUGHMILLER.

No. 126.

United States District Court, W.D. Oklahoma.

February 6, 1912

Flynn &amp Ames and R. A. Kleinschmidt, for plaintiff in error.

E. L Fulton and C. W. Stringer, for defendant in error.

POLLOCK District Judge.

This proceeding in error was brought to review a judgment of the district court of Oklahoma county, territory of Oklahoma entered in an action brought by defendant in error, the father of Guy A. Loughmiller, deceased, to recover damages for an injury resulting in death, alleged to have occurred through the negligence and wrongful act of the railway company. In the view taken of the case, after a reading and consideration of the record and briefs of counsel, I am of the opinion a detailed statement of the facts out of which the injury to deceased and his ensuing death arose is unnecessary. Suffice it to say the injury was inflicted on deceased December 24, 1903, while in the employ of the railway company as a brakeman, engaged in operating a train at Chickasha in the Indian country, from which injury death resulted the ensuing day.

At the time of his death deceased was single and unmarried. This action was instituted by his father as heir at law and next of kin in the district court of Oklahoma county in the then territory of Oklahoma, January 4, 1904. In order to a proper understanding of the principal grounds of error presented, a statement of the record is requisite.

The petition on which the action was instituted and tried made no reference whatever to any statutory enactment of the Indian country, where the injury occurred, creating a right of action in any one for damages sustained by reason of death by wrongful act. The summons, at the institution of the action was served, as shown by the return thereon, in the following manner:

'I received this summons on the 5 day of Feby 1904 at . . . o'clock . . . M and executed the same in my county by delivering a true copy of the within summons with all the endorsements thereon L. F. Poole as agent for the St. Louis San Francisco R.R. Co. this 8 day of Feby 1904.

'M. A. O'Brien, Sheriff of Oklahoma County, Okla., 'By W. C. Sadler, Deputy.'

In response to this summons defendant appeared specially and moved to quash the service made. As appears from the record, during the pendency of this motion to quash plaintiff applied to the court for an order permitting the sheriff to amend his return on the summons by inserting the word 'freight' before the word 'agent' in said return, which application was granted, and the return on the summons was accordingly so amended.

Thereupon defendant again moved the court to quash the service as shown by the amended return on the summons. Thereupon plaintiff again applied to the court for an order permitting the sheriff to further amend his return, which application was denied. Thereafter and on January 19, 1905, another summons was caused by plaintiff to be issued and served; the return indorsed thereon being as follows:

'I received this summons on the 19th day of January 1905, at 11 o'clock a.m., and executed the same in my county by delivering a true copy of the within summons with all the endorsements thereon, to L. F. Poole, who was on said date the freight agent of the St. Louis and San Francisco Railroad, at Oklahoma City, Oklahoma county, Oklahoma Territory, on the 20th day of January, 1905.

G. W. Garrison, 'By W. O. Parks, Deputy Sheriff, Oklahoma County.'

Thereafter defendant again appeared specially and moved to quash the service on it, which motion was by the court denied, and defendant, excepting thereto, answered to the merits of the case.

On issues joined the case came on for trial on April 20, 1906. At the conclusion of all of the evidence, defendant requested a peremptory instruction directing a verdict in its favor. Thereupon plaintiff asked permission to amend his petition by setting forth the acts of the Legislature of Arkansas in force in the Indian country where injury and death occurred, creating in said country a cause of action for death by wrongful act, and providing for the distribution of the recovery had, which amendment was by the court allowed, and was made over the objection of defendant. The trial resulted in a verdict and judgment in favor of plaintiff. Proceedings in error were prosecuted to the Supreme Court of the territory and were there pending when statehood intervened. By removal and by operation of law the case has been transferred from the Supreme Court of the territory to this court for decision.

The petition in error, with case-made thereto attached, was filed in the Supreme Court of the territory November 5, 1906. Thereafter, and on the 3d day of January, 1907, while the case was pending in the Supreme Court, plaintiff moved therein for an order permitting the sheriff of Oklahoma county to further amend his return on the summons issued out of the district court of Oklahoma county, Oklahoma Territory, and theretofore on the 20th day of January, 1905, served by the sheriff of that county on defendant. The record does not disclose any action taken by the Supreme Court of the territory on this motion. Thereafter, and on the 7th day of October, 1907, an application was made by plaintiff to the district court of the state of Oklahoma sitting in Oklahoma county for an order by said court directing the return on the summons to be amended to read as follows:

'Received this summons on the 19th day of January, 1905, at 11 o'clock a.m. and executed the same in my county by delivering a true copy of the within summons, with all the endorsements thereon to L. F. Poole, who was on said date the freight agent of the St. Louis & San Francisco R.R. Co. in Oklahoma City, Oklahoma county, Oklahoma Territory, on the 20th day of January, 1905. The said railroad company not having appointed or designated an agent in said county on whom service of process might be had, as required by law, and not having in said county any presiding or other chief officer.

J. B. Garrison, Sheriff of Oklahoma County, 'By W. O. Parks, Deputy.'

The order so applied for was granted and the return on the summons so amended.

After the removal of the case from the Supreme Court of the territory into the Circuit Court of the United States for the Western District of Oklahoma, and while pending therein, on November 16, 1908, a motion styled an application for a writ of certiorari was by plaintiff presented to that court, praying an order directed to the clerk of the circuit court of Oklahoma county, state of Oklahoma, to certify to said court a copy of the summons with return thereon as theretofore amended under the order of the judge of said court, as above set forth, which writ or order prayed was granted by the Circuit Court November 23, 1909, without prejudice to a future consideration of its effect. On said order there was certified by the clerk of the district court of Oklahoma county, Okl., a copy of the summons with return thereon as last amended, set forth.

On this record the railroad company assigns error, as follows: (1) The trial court erred in overruling the motion to quash the service of summons on defendant and requiring defendant to proceed with the trial over its objection and exception. (2) The trial court erred in permitting plaintiff to amend his petition on the trial after both parties had rested their case, and pending a request made by defendant for an instructed verdict in its favor, by pleading the statutes in force creating a cause of action for injury resulting in death, and the statutes providing for the distribution of the recovery in such cases, in force in the Indian country when the injury to deceased occurred and death resulted therefrom, and this for two reasons: (a) In so ruling the trial court abused its discretion; (b) that said amendment substantially changed the cause of action, and as said amendment was made more than two years after the injury was received and the death of deceased occurred it was barred by the time limit of two years prescribed in the statute creating the right of action. (3) As shown by the uncontradicted evidence in the case, a verdict should have been directed for defendant.

At the date this action was instituted the statutes of Oklahoma Territory relating to service of process on railroad companies doing business in the territory provided as follows:

'A summons against a corporation may be served upon the president, mayor, chairman of the board of directors, or trustees, or other chief officer: or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent; or, if none of the aforesaid officers can be found, by a copy left at the office of usual place of business of such corporation, with the person having charge thereof.

'Every railroad company, or corporation, and every stage company doing business in the territory of Oklahoma, or having agents doing business therein for such corporation or company, is hereby required to designate some person residing in each county, into which its railroad line or stage route may or does run, or in which its business is transacted, on whom all process and notices issued by any court of record or justices of the peace of such county may be served.

'In every case such railroad company or corporation and stage company, shall file a certificate of the appointment and designation of such person, in the office of the clerk of the district court of the county in which such person resides; and the service of any process upon the person so designated, in any civil action, shall be deemed and held to be as effectual and complete as if service of such process were made upon the president, or other

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