Thom v. Pittard

• Citation: 62 F. 232
• Decision Date: 22 May 1894
• Docket Number: 71.
• Parties: THOM v. PITTARD.
• Court: U.S. Court of Appeals — Fourth Circuit

62 F. 232

THOM v. PITTARD.

No. 71.

United States Court of Appeals, Fourth Circuit.

May 22, 1894

Richard Walke, for appellant.

Robert M. Hughes, for appellee.

Before GOFF and SIMONTON, Circuit Judges, and JACKSON, District Judge.

GOFF Circuit Judge.

While the Atlantic & Danville Railroad Company was being operated by Alfred P. Thom (a receiver appointed by the circuit court of the United States for the eastern district of Virginia, in the suit of Newgass & Co. against said railroad company for the foreclosure of a mortgage on the same), John B. Pittard was employed by those representing said receiver as a laborer on a material or work train, which was used on the line of the railway, in hauling dirt, rock, and other material from one point to another, and in repairing the roadbed, and was injured by the collision of said train with a hand car which was then being used by a section boss in transporting his employes to their place of work. The collision took place on the morning of July 21, 1891, on the line of said railway between Boydton and Gill's station. The work train was under the charge of the foreman of the work gang, Jefferson Jones, who also acted as conductor, and the hand car was directed by Section Master King. The work train was moving east; the hand car, west,-- and, as they were on the same track, they did not succeed in passing each other. It was the duty of Jones to assign the men to their work; to see to the hauling of dirt, rock, and material; and to keep his train out of the way of the regular trains on the road. He received his instructions as he deemed proper,-- such as the condition of affairs required. It was the duty of King to keep his section of the road, about six miles in length clear of obstructions, and to keep the track in good and safe condition, the bridges in repair, and to see that the men under him (five in number) properly discharged their duties. He had no control over any of the men on the work train, nor had Jones any authority over the section master and his gang. The work train in charge of Jones had the right of way over the road, in preference to the hand car controlled by King which was only used in going to and returning from work at different points on the road, and when so used it was usually protected by a flagman. At the time of the collision the flagman was not on duty, but, a short time before, Jones had stopped the car, and, not hearing the work train, had proceeded on his way. In rounding a curve in a cut, the collision occurred, and two of the flat cars of the work train were thrown from the track, Pittard, who was on one of them, sustaining a fracture of the clavicle, with internal injuries, painful and dangerous in their nature, preventing him from engaging in work for some weeks. On the 18th day of May, 1892, he filed his petition with the permission of the court in the chancery cause mentioned, against said receiver who appeared, and answered it. In his petition he claimed that his injuries were on account of the carelessness improper conduct, and neglect of the receiver and his agents and he prayed for an inquiry as to the amount of his damages, and that the same might be decreed to him. The receiver answered, denying the allegations of the petition; claiming that there was no liability on him on account of said accident and injuries, because the same had been caused by the acts of petitioner's fellow servants, the liability to which was imposed upon and assumed by petitioner when he accepted employment from and under said receiver. On the 20th day of April, 1893, the court directed that a jury be impaneled and sworn to try the issue joined on the petition and answer. On the 12th day of December, 1893, the jury heard the evidence, argument of counsel, and the charge of the court, and, after considering the case, assessed the damages at $2,500. For this sum, with interest thereon, and costs, the court entered a decree in favor of petitioner against the receiver, and adjudged the same to be one of the liabilities of the receiver, mentioned in the decree of sale, which had been theretofore entered. The receiver petitioned for an appeal from said decree, which was duly granted by the judge holding the circuit court. During the trial three several bills of exceptions were granted, at the request of the receiver, to the action of the court, in the giving of instructions asked for by the petitioner, and in refusing instructions prayed for by the receiver. The same are relied upon in the assignment of errors, and now come before this court for review.

But first we have a motion to dismiss the appeal as improvidently awarded, made by the appellee; the reason assigned being that the receiver is in fact not a party to the suit, and therefore not entitled to an appeal. It is claimed that the receiver, the officer and servant of the court, subject to its orders, without personal interest in the funds under his control, which are to be accounted for as the court may direct, is not to be permitted to refuse to obey the court's orders by appealing from its decrees. But we must remember that the receiver represents all the parties in interest. He stands for the railroad company as well as for all persons having claims against it, and he speaks for the bondholders as well as for the stockholders. While he has no personal interest in the proceedings, except to faithfully and impartially discharge his duties, it is incumbent upon him to carefully protect the property confided to his keeping; to report to the court all matters connected therewith, relating to its safekeeping and proper disposition; to obtain permission to sue for debts due, and leave to pay claims owing by him. Permission given the receiver to sue, or direction to him to defend, should take with it the right to follow the suit to the court of last resort. It is a plausible argument that counsel for appellee submits, but it is, we think, without real merit. While it is true that any of the defendants to said chancery suit, interested in the property of the railroad company, and in its proper distribution, as also the plaintiffs, could have appealed from said decree in favor of appellee, proper steps therefor having been taken, still it does not follow that the receiver, who was in fact the defendant, so far as the issues raised by the petition were concerned, could not also appeal. In suits like the one in which this petition was filed, after the appointment of a receiver, there is no one but him to defend the issues presented by such pleadings; and it is, at least, not best to have it understood that the court's directions to him to defend extend only to the court that hears the trial. But, so far as this proceeding is concerned, there is no difficulty, as the court below, whose officer the receiver was, gave him permission to prosecute still further the questions raised by the petition, when it approved his application for, and granted, this appeal. We consider the question settled in favor of the right of the receiver to appeal in cases like the one we now examine by the decision of the supreme court of the United States in Farlow v. Kelly, 108 U.S. 288, 2 Sup.Ct. 555, and 131 U.S., append. cci. It is insisted for the appellee that the right of the receiver, as an abstract question of law, to appeal, was not involved in that case. But it must be admitted that the supreme court held that in cases where an appeal had been granted the appellate court would entertain the same, and treat the order granting it as permission to appeal. While it is true that under the provisions of section 692, Rev. St. U.S., it follows, of course, that an appeal will be granted if prayed for by one who has the right to it, still it is the duty of the trial court to determine if the party asking for the appeal stands in such relation to the case that he can demand it. If he does not occupy such position the court can properly refuse the appeal. If the appeal is refused in a case where it properly lies, mandamus will issue. Ex parte Jordan, 94 U.S. 248.

The appellant claims that the court below erred in its charge to the jury, to the giving of which he at the time excepted. The bill of exceptions relative thereto recites as follows, after setting forth in full the charge:

'And thereupon the defendant, by his counsel, objected to the giving of the said charge, which objection the court overruled, and gave the said charge, to which ruling of the court, overruling the said objection, and granting the said charge, the defendant, by his counsel, excepted, and prayed that this, his bill of exceptions, might be signed, sealed, and made a part of the record in this cause, and the same is accordingly done.'

This is a very general exception, containing nothing special to any particular part of the charge. It does not comply with the form nor the spirit of the practice, as established by the supreme court, and it is in conflict with rule 10 of this court, which is as follows:

'The judges of the circuit and district courts shall not allow any bill of exceptions which shall contain the charge of the court at large to the jury in trials at common law, upon any general exception to the whole of such charge. But the party excepting shall be required to state distinctly the several matters of law in such charge to which he excepts; and those matters of law, and those only, shall be inserted in the bill of exceptions and allowed by the court.'

A general exception to the charge as a whole is not proper, and bills of exceptions so drawn should not be allowed. The court below was entitled to a full specification of...