Morgan v. Hines

HONORABLE JEREMIAH J. LYNCH, District Judge,

sitting in place of MR. JUSTICE FARR, disqualified, delivered the opinion of the court.

The plaintiff brought this action originally against the defendants, Chicago, Milwaukee & St. Paul Railway Company and Walker D. Hines, Director-General of Railroads, and sought to recover from them in his own right and as assignee of four others damages in the sum of $1,000 for negligent delay in the transportation of 52 range cattle by rail from Harlowton, Montana, to Chicago, Illinois, between the seventeenth and twenty-fourth days of November, 1919, for holding them in the ears during the journey an unreasonable length of time without food or water, and for knocking them down and piling them up in the cars through the negligent handling of the train,- all of which said acts on the part of the defendants caused much loss in the weight and valúe of said cattle.

On January 27, 1920, the defendants appeared by separately demurring to the complaint on general and special grounds. On the same day the railway company filed a motion to dismiss the action as to it on the ground, among others: “That, from the reading of the complaint it is admitted that the damages alleged to have accrued to plaintiff is a result of acts or omissions as of the eighteenth day of November, 1919, thereby admitting that the acts accrued during federal control, and the defendant cannot be held responsible.” The demurrers and motion were subsequently overruled by the court. The defendants then filed a joint answer, in which it was admitted that at all the times mentioned in the complaint the Chicago, Milwaukee & St. Paul Railway Company was a corporation and Walker D. Hines, as Director-General of Railroads, had control and direction of the railway company’s line of road extending from Harlowton to Chicago. The answer denied all the other allegations of the complaint. On July 27, 1920, the defendants moved that John Barton Payne, Director-General of Railroads, be substituted for themselves and each of them as the party defendant in the action, and the plaintiff moved that the complaint be amended so as to add the name of John Barton Payne, Director-General, as a party defendant. The court denied the motion of the former and granted that of the latter. Thereafter, on the same day, the ease came to trial before a jury which returned a verdict in favor of the plaintiff and against all of the defendants for the sum of $500. Judgment in accordance therewith was then rendered. From this judgment and an order denying their motion for a new trial the defendants have appealed.

Courts take judicial notice of the Acts of Congress and proclamations of the President, and of the fact that during all of the year 1919 he (the President) was in exclusive possession and control of the railroad systems of the country, including that of the defendant corporation. Consequently its demurrer should have been sustained, and its motion to dismiss granted. (Missouri Pac. R. Co. v. Ault, 256 U. S. 554, 65 L. Ed. 1087, 41 Sup. Ct. Rep. 593; Bryson v. Great Northern R. Co., 61 Mont. 351, 203 Pac. 529; McFeena’s Admr. v. Paris Home Tel. & Tel. Co., 190 Ky. 299, 227 S. W. 450, 19 A. L. R. 698, note.)

On January 19, 1920, when this action was commenced, Walker D. Hines was Director-General of Railroads. On March 11, 1920, the President by proclamation designated Walker D. Hines, Director-General of Railroads, and his successor in office, as Agent to defend suits of this character arising out of federal control of railroads. Shortly after he tendered his resignation as such Director-General and as such Agent, and it became effective on May 18, 1920. Four days earlier the President issued two proclamations, one appointing John Barton Payne Director-General of Railroads, and the other appointing John Barton Payne, Director-General of Railroads, as such Agent. When the trial of the case began he was still acting in both capacities. This being so, the court at that time should have made an order substituting “John Barton Payne, Director-General of Railroads, as Agent designated by the President under the Transportation Act of 1920,” for Walker D. Hines as a party defendant. It was not proper practice to permit the action to continue against both. (Sec. 206, Federal Transportation Act of 1920, 41 Stat. 461; Adams v. Quincy, O. & K. C. R. Co., 287 Mo. 535, 229 S. W. 790; Gundlach v. Chicago & N. W. R. Co., 172 Wis. 438, 179 N. W. 577, 985; Hines v. Collins (Tex. Civ. App.), 227 S. W. 332; Payne v. White House Lumber Co. (Tex. Civ. App.), 231 S. W. 417; Kersten v. Hines, 283 Mo. 623, 223 S. W. 586; Helm v. Hines, 109 Kan. 48, 196 Pac. 426, 198 Pac. 190; Wagner v. Union Stockyards Co. (Neb.), 186 N. W. 996; Payne v. Stockton, 147 Ark. 598, 229 S. W. 44.)

Plaintiff’s offered instruction No. 1, which the court gave, is not as complete as it should be. It fails to state that in order to warrant a recovery the jury must find that the cattle depreciated in value by reason of the negligent acts of the defendants. However, this particular defect was not pointed

out in the objection made at the trial, is not urged now, and, if urged, could not be considered to the respondent’s disadvantage. (Sec. 6746, Rev. Codes 1907 [9349, Rev. Codes 1921]; Robinson v. Helena Light & Ry. Co., 38 Mont. 222, 99 Pac. 837; Yergy v. Helena Light & Ry. Co., 39 Mont. 213, 18 Ann. Cas. 1201, 102 Pac. 310; Poor v. Madison River Power Co., 41 Mont. 236, 108 Pac. 645; Frederick v. Hale, 42 Mont. 153, 112 Pac. 70; Allen v. Bear Creek Coal Co., 43 Mont. 269, 115 Pac. 673.)

Plaintiff’s offered instruction No. 8, in so far as it related to the price received for the cattle, was not supported by the evidence and should not have been given over defendants’ objection.

The court properly refused to give defendants’ offered instruction No. 17, as it was not a correct statement of the law. In the first place, there was no evidence to justify it, and, in the second place, even though there were, the jury should not be required to determine its competency.

The testimony of the witness Britzius, based on what some- body told him, as to the market value of cattle at the Union Stockyards in Chicago on November 24, 1919, of the witness Herron as to the price of cattle in the same place on the same day as shown by a broker’s market report, and of the witness Neill Morgan as to the price of cattle as marked on the Chicago Stockyards Exchange bulletin on the same day, also, was of a hearsay nature, and should have been excluded.

The court did not err in refusing to strike the testimony of the witness Britzius, as the motion was not sufficiently definite.

Appellants argue that the witnesses Frank Morgan and George Pollman were not qualified to testify to the market value of cattle in Chicago on November 24, 1919. Both of them were stockmen on a small scale, had bought and sold cattle from time to time, and had kept themselves informed as to the prices thereof in Chicago by reading newspaper quotations or market reports. They were not experts in the matter, it is true, but their testimony was none the less competent. (Sullivan v. Girson, 39 Mont. 274, 102 Pac. 320; 13 Ency. of Evidence, 552, 553, 563, 564; 3 Jones on Evidence, sec. 582; 1 Elliott on Evidence, sec. 325; 1 Wigmore on Evidence, sec. 719; 22 C. J. 575-580.)

Written assignments from William Thorson, George Poll- man, Remko Muller and Joseph Herron to the plaintiff of their claims for damages against Walker D. Hines, Director-General of Railroads, and the Chicago, Milwaukee & .St. Paul Railway Company in connection with the shipment of their cattle over the road of the latter from Harlowton to Chicago on November 18, 1919, were received in evidence without objection. Appellants now contend that these transfers were, in effect, assignments of claims against the United States, and in conflict with section 6383, United States Compiled Statutes, and therefore void. In view of the provisions of sections 3115%j and 3115%Z, United States Compiled Statutes of 1918 (Comp. Stats. Ann. Supp. 1919), and of sections 206 and 210, Federal Transportation Act of 1920, we think the law has no application whatever to assignments of this kind. (See, also, Missouri Pac. R. Co. v. Ault, supra; Jernegan v. Osborn, 155 Mass. 207, 29 N. E. 520; Thayer v. Pressey, 175 Mass. 225, 56 N. E. 5; Hines v. Collins, supra.)

Appellants claim the evidence is insufficient to justify the verdict. We are disposed to agree with them. The plaintiff did not take the position at the trial, and is not taking it now, that the market declined between the time the cattle should have arrived in Chicago, if the carriers had used ordinary care and diligence in their transportation, and the time they actually did arrive there, or that they would have commanded a greater price per pound on the hoof were the shrinkage in weight normal, rather than exceptional. The theory on which he proceeded, apparently, was that the cattle weighed much less when they reached Chicago than they would have weighed had the carriers not been guilty of the negligent acts charged against them, and that the measure of his damages, as a consequence, was the difference between what they actually brought and what they would have brought had they been in normal condition, the price per pound being the same in each instance. Admittedly, Clay, Robinson & Co., brokers, sold the cattle at the Union Stockyards in Chicago to the highest bidder. Nobody connected with them testified in the case. None of the witnesses who did testify was present when the sale took place. The record is therefore devoid of proof of the amount which these brokers actually received for the cattle. Such being the situation, the jury was left without a proper basis on which to estimate the damages the plaintiff sustained.

Assignments of error not covered by what we have already said are of no importance.

The judgment and order appealed from are reversed, and the cause is remanded, with directions to dismiss the same as to the defendant corporation, to grant a new trial as to the defendant John Barton Payne, Director-General of Railroads, and to enter a formal order substituting John Barton Payne, Director-General of Railroads, as Agent designated by the President under the Transportation Act of 1920, for Walker D. Hines as the sole party defendant.

Reversed cmd remanded.

Associate Justices Cooper, Holloway and Galen concur.