United States v. Illinois Cent. R. Co.

• Decision Date: 26 May 1937
• Docket Number: No. 8380.,8380.
• Citation: 90 F.2d 213
• Parties: UNITED STATES v. ILLINOIS CENT. R. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

90 F.2d 213 (1937)

UNITED STATES v. ILLINOIS CENT. R. CO.

No. 8380.

Circuit Court of Appeals, Fifth Circuit.

May 26, 1937.

Rene A. Viosca, U. S. Atty., and Robert Weinstein, Asst. U. S. Atty., both of New Orleans, La., for the United States.

Selim B. Lemle, of New Orleans, La., for appellee.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

Suing for penalties under the Cruelty to Animals Act,¹ the United States moved for judgment on the pleadings. This motion overruled and a jury waived, the cause was submitted upon an agreed statement of facts.

The District Judge concluding that the defendant had not, within the meaning of the act, knowingly and willfully failed to comply with its provisions, made findings and conclusions and gave judgment accordingly. This appeal tests whether, upon the facts pleaded, stipulated, and found,² judgment for the United States was demanded. In summary, this is the case the pleadings and stipulation made.

The complaint alleged: (1) That the defendant did knowingly and wilfully confine a certain number of cattle in one of its cars for a period of more than 36, to wit, 37 hours, without unloading them. (2) That defendant was not prevented from unloading by storm or other accidental or unavoidable causes which could not have been anticipated or avoided by the exercise of due diligence and foresight. Defendant in its answer (1) admitted that the cattle were actually confined in one of its cars for more than 36 hours; (2) denied that they were knowingly and willfully so confined; (3) alleged that their overconfinement was due to the negligent oversight of the night general yardmaster, in this; that, though he had, in an earnest and bona fide attempt to comply with the law, taken extra precautions to get the cattle to the place of unloading in time, he had yet, through oversight alone, failed to give notice to the employee whose duty it was to unload them.

By the stipulation it was agreed (a) that there had been 1 hour's overconfinement of the cattle; (b) that defendant was not prevented from unloading the cattle by storm or other accidental or unavoidable cause; (c) that the defendant did not unload the cattle within the 36 hours for the reasons and under the circumstances following, that defendant's night general yardmaster, having received advance information of the approximate time of the arrival of the cattle, had, in order to insure their prompt unloading within the time allowed, procured an extra engine and crew, and upon the arrival of the cars had caused them to be switched and placed in the Crescent City packing yards for unloading within the time allowed therefor by law; that the unloading was delayed, however, an hour beyond the time because the night general yardmaster, though knowing how long the cattle had already been confined, and that they should be unloaded, failed to notify the employee of the defendant, whose duty it was to unload the car, that it was to be placed for delivery. The night yardmaster is now dead.

The District Judge found (1) all the facts stipulated to be true; (2) that the defendant attempted in good faith to comply with the statutory requirement; (3) that its failure to unload the cattle within the time was not knowing and willful; (4) but was due to the negligent oversight of the night yardmaster in failing to notify the unloading employee, although he had made special efforts by using an extra train and crew, to comply with the law. He concluded that "negligence of an employee of a carrier while performing his regular duties is not equivalent to knowledge and wilfullness, as those words are used in section 3 of the Act 45 U.S.C.A. § 73 in question," and that "failure to unload due to such negligence, does not render the carrier liable for the penalty there provided." He further concluded that, though there was actual negligence on the part of the yardmaster, and therefore by imputation, of the carrier, it was not liable for the penalty because its failure to unload the cattle was not knowing and willful within the act.

The United States insists that section 1 of the act (45 U.S.C.A. § 71) imposes an absolute duty to unload within the time allowed, "unless prevented by storm or by other accidental or unavoidable causes which can not be anticipated or avoided by the exercise of due diligence and foresight," and that section 3 imposes an equally absolute liability for penalties in all cases of failure to unload as required by, and except as excused in, section 1, though the failure is not intentional but inadvertent. It insists, in short, that a failure to unload as provided in section 1 is in law the knowing and willful failure required under section 3, though the failure to unload was not intentional or with conscious purpose, but the result of mere inadvertent, and unintentional, oversight. It therefore urges upon us that the carrier, having admitted the nonexistence of any of the excuses provided for in section 1, must stand in judgment, and that to hold otherwise would result in defeating the law by letting in, in every case, the defense of simple negligence. Appellee, on the other hand, with equal vigor insists that the construction the United States contends for in effect reads out of the statute the two words "knowing and wilful," which, having a fixed and settled meaning in law, essentially condition liability to penalties. It therefore urges upon us that, in view of this conditioning, the agreed statement of facts, and the court's findings, no other judgment than one for it could have been entered. It argues that this is so, because (1) the stipulation containing no admission, and there being no evidence, that the failure to unload the cattle was knowing and willful, the United States has wholly failed in its proof of the ultimate facts, knowingness and willfulness, essential to its recovery; United States v. Boston & M. R. R. (C.C.A.) 84 F.(2d) 365, and (2) if the facts agreed to are sufficient to support an inference that the violation was knowing and willful, they are certainly equally, if not more, sufficient to support...