United States v. Union Pac. R. Co.

• Decision Date: 15 February 1909
• Docket Number: 2,873.
• Citation: 169 F. 65
• Parties: UNITED STATES v. UNION PAC. R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

169 F. 65

UNITED STATES v. UNION PAC. R. CO.

No. 2,873.

United States Court of Appeals, Eighth Circuit.

February 15, 1909

Timothy F. Burke (George P. McCabe and Edward T. Clark, on the brief), for the United States.

John W Lacey, for defendant in error.

Before VAN DEVANTER, HOOK, and ADAMS, Circuit Judges.

ADAMS Circuit Judge.

This was an action at law instituted by the United States to recover a penalty from the defendant railroad company, a carrier of interstate commerce, for alleged violation of Act Cong. June 29, 1906, 34 Stat. 607, c. 3594 (U.S. Comp. St Supp. 1907, p. 918), which prohibits confinement of live stock in cars for more than 28 hours without unloading for rest, water, and feeding. The petition stated facts constituting a cause of action under the statute, and particularly stated that the railroad company confined the live stock 'knowingly and willfully.' The answer contained an admission that defendant received the stock for carriage, that it was confined en route, and not unloaded for a period of more than 36 hours. It then averred as follows:

'And defendant denies that its failure to unload the said live stock in accordance with law was in any way willful or from avoidable cause which could have been anticipated by the exercise of due diligence and foresight; but, on the contrary, avers that the said failure was wholly caused by the great and unusual press of business both on the tracks of the defendant and at its stockyards, causing delays at the meeting points of its trains, and failures of its engines, both those carrying the cars aforesaid and those drawing other trains which affected and delayed the train carrying the said live stock and alone caused the said live stock to be confined beyond the time limited by law.'

The sufficiency of this answer as a defense was challenged by demurrer, which was overruled, and, plaintiff declining to plead further, final judgment was rendered in favor of the defendant. Due exception having been preserved, the case is brought here by writ of error for review. Did the answer state a defense? Section 1 of the act of June 29, 1906, provides that no railroad engaged in interstate commerce in the transportation of cattle, sheep, swine, or other animals shall, without the written request of the owner or person in custody thereof, 'confine the same in cars * * * for a period longer than twenty-eight consecutive hours without unloading the same in a humane manner into properly equipped pens for rest, water, and feeding, for a period of at least five consecutive hours, unless prevented by storm or by other accidental or unavoidable causes which cannot be anticipated or avoided by the exercise of due diligence and foresight. ' The provisions of section 2 are immaterial for our present inquiry. Section 3 provides 'that any railroad' engaged in interstate commerce ' * * * who knowingly and willfully fails to comply with the provisions of the two preceding sections shall for every such failure be liable for and forfeit and pay a penalty of not less than one hundred nor more than five hundred dollars. ' Section 4 provides 'that the penalty created by the preceding section shall be recovered by civil action. * * * ' From the foregoing it appears that section 1 creates a duty to be performed by carriers and that section 3 imposes a penalty not for the failure to perform the duty, but only when the carrier 'knowingly and willfully' fails in that regard. The defendant by not denying the averment of the petition in that regard admitted that it 'knowingly' failed to unload the stock.

It is contended that the answer puts in issue the allegation of the petition that defendant's failure to unload the stock was willful and the allegation that defendant was not prevented from unloading the stock by an unavoidable cause which could not have been anticipated by diligence and foresight, and that as a result of these denials of material averments an issue of fact was joined which necessitated the overruling of the demurrer.

The answer, after admitting that the stock was not unloaded, and denying that the company's failure to unload was willful or from avoidable cause, proceeded in an unbroken sentence to declare as follows:

'But, on the contrary, avers that the said failure was wholly caused by the great and unusual press of business, * * * which alone caused the said live stock to be confined beyond the time limited by law.'

It is a familiar principle of pleading and one repeatedly recognized by this court that a general averment is always controlled and limited by specific allegations on the same subject-matter. Boatmen's Bank v. Fritzlen, 68...