Wright v. Southern Exp. Co.

• Decision Date: 30 March 1897
• Docket Number: 3,397.
• Citation: 80 F. 85
• Parties: WRIGHT v. SOUTHERN EXP. CO.
• Court: U.S. District Court — Western District of Tennessee

80 F. 85

WRIGHT v. SOUTHERN EXP. CO.

No. 3,397.

United States Circuit Court, W.D. Tennessee, Western Division.

March 30, 1897

This is an action for damages for personal injuries alleged to have been sustained in a struggle between the plaintiff and the defendant's agent over a parrot in its cage, constructed of wooden strips tacked together with nails, such as is commonly used in shipping birds. It had come from Nicaragua consigned by a brother to his sister, Mrs. Williams. The plaintiff, being a sister of the consigner and consignee, had heard, according to her story, that the bird was to be sold for charges, delivery to the consignee having been delayed by her absence. The plaintiff, appearing at the express office proposed to buy the bird. Parleying ensued, which resulted in her paying the amount of the charges, executing a receipt on the delivery book, and the consequent delivery to her then and there. She laid her hands upon the cage to send it away by her servant, accompanying her, when the agent was warned by a bystander that the plaintiff was taking the bird as her own through a pretended purchase from him, contrary to his understanding of the transaction, according to its contention, and contrary to the bystander's notion of the agent's right to thus dispose of the bird. Anticipating trouble for himself and his company, the agent forbade the plaintiff to take away the bird, laid his hands upon the cage to prevent her from delivering it to her servant, and thereupon the struggle for its possession ensued. Upon the facts proved, the court peremptorily instructed the jury that the plaintiff was a trespasser and a wrongdoer, or else should have yielded a ready assent to the rescission of the supposed purchase from the agent for the correction of the mutual misunderstanding between them, and left the bird in the express office; that the agent had a right to retain it in the office, and to use such force as was necessary to accomplish that purpose; but that the defendant company would be liable for any unnecessary or excessive violence in defending his possession. Having received such other instructions as the case required, the jury returned a verdict for the plaintiff, assessing the damages at $3,500. There had been a previous trial of the case, Mr. District Judge Clark presiding, and also a verdict for the plaintiff for $2,500. The instructions in that case proceeded upon a somewhat different theory of trying the case, not being confined, as in this trial, to the question of excessive violence. That verdict was set aside, and a new trial granted, mainly upon the ground that the evidence did not make it reasonably certain that the plaintiff had been injured by the struggle in the express office. The defendant, upon this present motion for a new trial, filed an affidavit of newly-discovered evidence as follows:

'Florence H. Wright versus Southern Express Company.

'In this case G. W. Agee makes oath that he was, when this suit was instituted, and ever since has remained, the superintendent of the Western division of the Southern Express Company, and that as such officer it has been his duty to look after this lawsuit and see to its defense; that he has been actively engaged in its defense since the suit was instituted, and has attended to the preparation of the case for trial and to the two trials which have been had in said case. He further states that during the last trial, in December, 1896, and not until then, did he discover that the plaintiff, Florence H. Wright, had been regularly committed to an asylum for the insane at Utica, N.Y., upon the certificate of Drs. John de Vello Moore and William J. Schuyler, legally qualified examiners in lunacy, approved by the Honorable W. T. Dunmore, judge of Oneida county, New York, this application for commitment to the insane asylum having been made by Miss Florence Wright, of Utica, N.Y., a daughter of said plaintiff, and her brother, Rev. B. F. Cossitt, of Waterville, Oneida Co., N.Y.; and that she had remained there in the insane asylum as a patient from September 11, 1895, until December 11, 1895, when the said Mrs. Florence H. Wright was allowed to leave the hospital for the insane on parole of thirty days, and at the expiration of thirty days she was entered on the books of said asylum as 'Discharged, unimproved.' He further states that soon after the plaintiff left the Utica Insane Asylum, unimproved, that she came to Memphis, Tenn., and this case was brought up for trial in February, 1896, about two months thereafter, at which time the plaintiff was, as he understands the facts, undoubtedly of unsound mind. Her further states that he is thoroughly satisfied that she has not recovered from the mental disorder, and that she still was insane, at the time of the last trial, and still is insane; that upon a new trial of the case the defendant will be able to show by the testimony of Dr. G. Alder Blumer, superintendent of Utica State Hospital for the Insane, Utica, N.Y., that the plaintiff was and is now afflicted with an incurable mental disorder rendering her insane, and which would either disqualify her as a witness or materially weaken any testimony given by her in this case. Upon the last trial of this case the defendant was not able to make this proof, as it was not aware of the fact that the plaintiff had been committed to any asylum for the insane, and only discovered the fact when a witness in the case, during the progress of the trial, showed defendant's counsel a letter from Dr. Blumer, stating these facts, and it was then too late to obtain the presence of witnesses at the trial or secure his deposition. He further states that he does not know of any negligence or want of care upon his part, or that of any officer of his company, or its counsel, that this fact was not known. In support of the above statement of facts he attaches hereto correspondence which he has had with Dr. Blumer, which correspondence will verify the facts above stated, all of which he respectfully submits to the court. He further states that this application is not made for the purpose of delay, but to the end that justice may be done.

'(Signed) G. W. Agee.'

The two attorneys of the plaintiff filed their affidavits in the absence of their client, which indicate that she herself will swear that she had been unjustly placed in an insane asylum, and had been released therefrom by habeas corpus; that there had been no formal adjudication of her insanity, but an examination by medical men for the purpose of transferring her from a sanitarium or hospital to the asylum; that while the full extent of the information possessed by the defendant company and its counsel before the first trial and before the second trial is not known to the affiants, they do know, from conversation with the counsel of the defendant company, that they had some information or had heard some rumor that the plaintiff had been in an insane asylum; and that they were informed by the testimony of Bishop Gailor, and other clergymen having knowledge of the plaintiff, that she was suspected of being insane. It is not necessary to give these affidavits in full, nor to await the filing of the plaintiff's affidavit, because there is no doubt of the fact that the defendant company and its counsel all the time have had intimations or suspicions of the plaintiff's insanity. They questioned her on the trial about her having been in sanitariums or hospitals, though not upon the subject of her having been confined in an insane asylum or adjudicated insane.

The testimony as to the injury of the plaintiff consisted of her own description of her physical and mental sufferings, and that of medical men who had attended her or examined her, some of them for the purpose of giving their evidence, and some for purposes of treatment. Witnesses testified as to her condition of health, her habits and conduct of life, before and since the occurrences at the express office. This testimony was met by the defendant company with the testimony of medical men speaking to a hypothetical case, or men who had examined her while under treatment, and especially the physician who treated her at home after the altercation at the express office, and such other witnesses as could speak of the plaintiff's physical condition, habits of life, and conduct. Among other incidents of her life, it appeared that she had some years before been thrown from a carriage, and received serious injury affecting her spine, for which she had in the intervening time been often treated. Her own proof, and that of her medical men, was that she had recovered from this injury, she producing among other testimony, that of a New York physician who had certified to her good health in aid of her application to become a member of the Episcopalian Order of Deaconesses. Around this old-time accident, had the conflict over the bird at the express office, the testimony of the plaintiff was gathered to show that she had entirely recovered from the previous injury, and that all her pain and sufferings were attributable to the violence of the struggle with the defendant company's agent; and on the part of the defendant to show that she had never been a well woman, had never recovered from the former injury, was not at all injured by the quarrel over the bird and cage, and that she was a physically frail woman, with mental disorders that made her irascible, quarrelsome, and unreasonable in her conduct towards other people. There was a motion by the defendant company to direct a verdict, both at the end of the plaintiff's testimony and at the end of all the proof, which motion the court refused to grant, but submitted the case to the jury as hereinbefore indicated.

J. H Watkins and E. E. Wright,...