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

• Decision Date: 11 May 1909
• Docket Number: 2,903.
• Citation: 171 F. 319
• Parties: ST. LOUIS & S.F.R. CO. v. CUNDIEFF. [d]
• Court: U.S. Court of Appeals — Eighth Circuit

171 F. 319

ST. LOUIS & S.F.R. CO. v. CUNDIEFF. ^[d]

No. 2,903.

United States Court of Appeals, Eighth Circuit.

May 11, 1909

J Lionberger Davis (D. T. Flynn, T. G. Chambers, and C. B Ames, on the brief), for plaintiff in error.

Charles B. Rogers, for defendant in error.

Before HOOK, Circuit Judge, and RINER and AMIDON, District Judges.

RINER District Judge.

This was an action to recover damages for personal injuries. The action was originally brought in the United States Court for the Northern District of the Indian Territory, prior to the time of the admission of the state of Oklahoma into the Union, of which this district became a part. After the admission of the state of Oklahoma, the case was removed to the Circuit Court of the United States for the Eastern District of Oklahoma. The original petition was filed in the United States Court for the Indian Territory on the 12th of June, 1907, and the railroad company filed its answer October 12, 1907. The answer denied the allegations of the petition and also set up as a defense contributory negligence on the part of the plaintiff. October 12, 1907, the day the answer was filed, the plaintiff in the court below filed a motion to strike from the answer portions thereof.

Oklahoma was admitted into the Union November 16, 1907, and on December 11, 1907, the defendant in the court below filed its petition for removal, and the case was removed to the Circuit Court. On April 17, 1908, the case come on for trial, the motion to strike was not called to the attention of the court, and the trial proceeded on the petition and answer.

At the conclusion of the evidence the defendant moved the court to direct a verdict for the defendant upon the ground that under the pleadings, as well as the evidence, the plaintiff was not entitled to recover. The motion was overruled, and an exception saved. The jury returned a verdict in favor of the plaintiff, and on the 20th of April, 1908, the defendant filed a motion for judgment notwithstanding the verdict, on the ground that the pleadings in the case showed that the defendant was entitled to a verdict because no reply had been filed to that part of the answer setting up as a defense the contributory negligence of the defendant.

It is conceded by the plaintiff in error (hereafter referred to as the 'railroad company') that prior to the admission of Oklahoma the Arkansas practice prevailed in the Indian Territory, and that under that practice no reply to the answer was required, but all affirmative allegations of the pleading were treated as in issue. The schedule of the Constitution of Oklahoma (sections 1 and 2) provides as follows:

'Section 1. No existing rights, actions, suits, proceedings, contracts or claims shall be affected by the change in the forms of government, but all shall continue as if no change in the forms of government had taken place.

'Sec. 2. All laws in force in the territory of Oklahoma at the time of the admission of the state into the Union, which are not repugnant to this Constitution, and which are not locally inapplicable, shall be extended to and remain in force in the state of Oklahoma until they expire by their own limitations or are altered or repealed by law.'

The statutes of the territory of Oklahoma, prior to its admission as a state (St. 1893, Sec. 3980), provided:

'When the answer contains new matter, the plaintiff may reply to such new matter, denying, generally or specifically, each allegation controverted by him, and he may allege in ordinary and concise language, and without repetition, any new matter not inconsistent with the petition, constituting a defense to such new matter in the answer, or he may demur to the same for insufficiency, stating in his demurrer the grounds thereof; and he may demur to one or more of such defenses set up in the answer, and reply to the residue.'

And that (St. 1893, Sec. 4006):

'Every material allegation of the petition not controverted by the answer, and every material allegation of new matter in the answer, not controverted by the reply, shall, for the purpose of the action, be taken as true.'

It is contended by the railroad company that these statutes, by virtue of the constitutional provision above referred to, governed in the trial of this case, and that therefore the railroad company was entitled to a judgment on the pleadings for the failure of plaintiff to reply to the affirmative defense set up in the answer.

It is insisted by the railroad company that as soon as statehood became effective the Oklahoma Code of Procedure applied to all cases then pending in the Indian Territory courts. It is conceded, however, that, if the issues had been joined under the Indian Territory practice, the Oklahoma Code would not relate back and require further proceedings; but it is said that the issues were not joined because there was pending a motion to strike portions of the answer, up to the time the plaintiff and defendant announced that they were ready for trial.

We do not think the issue upon the question of contributory negligence, to which, under the Oklahoma Code, it was necessary to reply, was governed by the statutes of Oklahoma. The issue was raised without a reply under the Arkansas practice, which, at the time the answer was filed, prevailed in the Indian Territory. The motion to strike never became operative, because it was never called to the attention of the court, and by going to trial without doing so the plaintiff, of course, abandoned it. Furthermore, it is entirely clear from an examination of the motion, which is set out in the record, that, if it had been sustained, there would still remain in the answer a specific denial to every material allegation in the complaint and also the defense of contributory negligence. It is insisted by the railroad company that the provision of the Constitution to the effect that no existing rights, actions, suits, proceedings, etc., shall be affected by the change in the forms of government, does not relate to the forms of procedure. We think this contention cannot be sustained.

The rule of constitutional construction is that the ordinary and common meaning of the words used, in the light of other provisions of the Constitution, must be adopted. The preamble to section 1 of the schedule to the Constitution of Oklahoma provides:

'In order that no inconvenience may arise by reason of a change from the forms of government now existing in the Indian Territory, etc., it is hereby declared as follows.'

And then follows the provision above referred to, together with other provisions, declaring process issued prior to the admission of the state under the authority of the territory of Oklahoma, or under the authority of the laws in force in the Indian Territory, valid and giving it the same force and effect as if issued in the name of the state.

Construing all of these provisions together, we are of opinion that they do not change, and were not intended to change, the method of procedure in cases pending in the courts of Indian Territory and of the territory of Oklahoma, but that the civil cases pending in the Indian Territory should, after statehood, continue under the law in force in the Indian Territory, and under that law no reply was required, prior to statehood. We do not think that the provision of the Constitution relied upon by the railroad company so changes the situation as to make a reply necessary.

The second assignment of error relates to the refusal of the court to permit Dean, a witness for the defendant in error (hereafter referred to as the 'plaintiff'), on cross-examination to testify that the plaintiff at the time he received his injury stated to the witness that he was standing on the main line watching the train going east on the passing track, and that the injury was caused by this condition.

The theory upon which this witness was asked these questions on cross-examination, as suggested by counsel, was: That he was one of the first persons to reach the plaintiff after the accident; that he came to the plaintiff almost immediately after the accident; that he had testified to the condition and surroundings, and to remarks made by some of the employes of the railroad company at the time; and that therefore the entire transaction and everything else relating to these conditions, including plaintiff's statements, constituted a part of the res gestae and were admissible on cross-examination.

Counsel concede the rule to be that the cross-examination should be confined to the subject-matter about which the witness has testified on direct examination, but insist that as he had testified in the direct examination that he saw the plaintiff as the train was backing over him, that at that time he (the witness) was about 100 feet distant from the plaintiff, that he immediately went to his assistance, that he and a witness by the name of Pershing were the first ones to reach the plaintiff after the accident, that soon thereafter three trainmen came up, and one of them made some remark about the accident, and that the witness had also described the surroundings, conditions, movement of the trains, place where the plaintiff was found, and all the things which he saw therefore it was entitled to this testimony, not only on the ground that it was evidence against the plaintiff, but that being made immediately after the accident, and to the first person who reached him, the statements were a part of the res gestae, and that where the witness, on his direct examination, went into a part of the facts concerning the accident and the condition in which the plaintiff was found, it was permissible, on cross-examination, to show the statements made by him as a part of the transaction itself. We...