EDDY et al. v. LAFAYETTE et al.

This was an action brought in the United States court in the Indian Territory to recover for damages caused to the property of the plaintiffs by the negligent management of the railroad of the Missouri, Kansas & Texas Railway Company, a corporation created by the laws of the United States, and at the time of the accident in the control and management of George A. Eddy and Harrison C. Cross, receivers, who had been appointed such by the United States circuit court for the district of Kansas and by the United States circuit court for the district of Arkansas. Both of those districts and the Indian Territory constitute a portion of the Eighth judicial circuit of the United States, and the railroad in question traverses the states of Arkansas, Kansas, and the Indian Territory.

The first question presented is whether the trial court acquired jurisdiction to try the case against Eddy and Cross, receivers of the Missouri, Kansas & Texas Railway, by virtue of the summons served on one Williams as agent of said receivers in charge of their station at Muscogee, in the Indian Territory.

The return of the marshal was that he had served the summons by leaving a copy thereof with J. W. Williams, the agent of the defendants at Muscogee, on March 17, 1890.

On April 8, 1890, the defendants entered a special appearance by attorney, and moved to quash the return of the marshal, for four reasons: 'First, because on the day alleged in said return as the day of the service of said summons, to wit, March 17, 1890, J. W. Williams, styled in the marshal's return on said writ of summons as the agent of the within-named defendants, was not such agent; second, because said J. W. Williams, on the 17th day of March, 1890, was not such a person upon whom process against the said George A. Eddy and H. C. Cross, receivers of the Missouri, Kansas & Texas Railway, could legally have been served; third, because said return is untrue; fourth, because said service and said return were illegally and improperly made.'

On May 6, 1890, the defendants, appearing specially, withdrew the motion theretofore filed by them to quash the return of the writ of summons, and, again appearing specially, and only for the purposes of a motion to quash writ of summons and return thereon, and by leave of court, filed such motion, and in support thereof filed an affidavit of J. W. Williams, and a certified copy of the order appointing receivers. The reasons filed in support of the second motion to quash were as follows: 'First, because said writ of summons is improperly and illegally issued; second, because the writ of summons in this cause does not show the nature of the complaint filed herein; third, because no cause of action is set forth in the writ of summons issued herein; fourth, because said return on said writ is untrue; fifth, because said J. W. Williams, who is designated in said return as the agent of George A. Eddy and H. C. Cross, receivers of the Missouri, Kansas & Texas Railway, a corporation, was not on the day alleged in said return as the day of the service of said summons, to wit, said 17th day of March, 1890, such agent; sixth, because said J. W. Williams was not on said 17th day of March, 1890, such a person upon whom process against George A. Eddy and H. C. Cross, as receivers of the Missouri, Kansas & Texas Railway, could legally have been served; seventh, because said return and such service were illegally and improperly made.'

The affidavit of J. W. Williams was to the effect that at no time was he ever the agent of the Missouri, Kansas & Texas Railway, a corporation within the Indian Territory, but that since the month of June, 1887, he has been station agent for George A. Eddy and H. C. Cross, receivers of the Missouri, Kansas & Texas Railway Company, and has been such agent at said town of Muscogee, in the Indian Territory.

It therefore appears by the affidavit of J. W. Williams that the allegation, in the reasons filed, that said Williams was not the agent of the said receivers, was untrue, and that Williams was their agent at the time and place named in the return.

So far, then, as the objection to the service and return of the summons depended on the allegation that Williams was not the agent of the receivers, it goes for naught, but the question remains whether he was such a person or agent on whom process against the receivers could be validly served.

In and by the act of congress of May 2, 1890 (26 Stat. p. 94, § 31), it was provided that certain general laws of the state of Arkansas, in force at the close of the session of the general assembly of that state of 1883, as published in 1884 in the volume known as 'Mansfield's Digest of the Statutes of Arkansas,' should be extended and put in force in the Indian Territory until congress should otherwise provide, and among those laws so extended were those relating to questions of practice and procedure; and it is alleged in the opinion of the circuit court of appeals in the present case that it is conceded that under the laws of the state of Arkansas, which have been made applicable to the Indian Territory, such service as was had in the present case is sufficient to confer jurisdiction when the defendant is a railway company or a foreign corporation.

The trial court, and also the circuit court of appeals, were of opinion that the third section of the judiciary act of March 3, 1887 (24 Stat. 554), authorizing suits to be brought against receivers of railroads without special leave of the court by which they were appointed, was intended to place receivers upon the same plane with railroad companies, both as respects their liability to be sued for acts done while operating a railroad, and as respects the mode of service. We concur in that view, and in the conclusion reached, that the service in the present case, on an agent of the receivers, was sufficient to bring them into court, in a suit arising within the Indian Territory.

This conclusion renders it unnecessary to consider the soundness of the further view of the circuit court of appeals, that the receivers waived their objections to the service of the summons by pleading to the merits and going to trial, although having excepted to the rulings of the trial co rt sustaining the regularity of the service. Such is certainly not the general rule. The court below thought the rule in Arkansas is that mere defects in the service of process may be waived by appearance after a motion has been overruled to set aside the service, in cases where the court has jurisdiction of the subject-matter of the controversy, and the defect in the service only impairs the jurisdiction over the person of the defendant; citing several decisions of the supreme court of Arkansas to that effect. As already said, however, we do not deem it necessary for us to consider that ground of the decision upholding the validity of the service in the present case.

Another objection argued in the court below, and in this, to the summons, was that it did not sufficiently set forth the nature of the complaint.

The circuit court and the circuit court of appeals were of opinion that the terms of the summons were in accordance with the provisions of section 4868, Mansf. Dig. Ark., under which this summons was issued, and we see no reason why we should not agree with them.

Coming to the case on its merits, we are met by the contention that the plaintiffs failed to show such title to the hay destroyed as entitled them to recover its value. The title to the land from which this hay was cut is in the Creek Nation, and it is claimed that the Nation alone is in possession of the land, and entitled to maintain an action for trespass or injury to the same. The view taken of this contention by the circuit court of appeals was that the record failed to show whether the hay was cut on the common pasturage of the Nation, or on lands at the time occupied and held by Mrs. Hailey individually, according to the customs and usages of the Nation; and that court declined to presume that either of the plaintiffs was guilty of a trespass, much less, that in cutting the hay either of them violated a criminal statute.

The latter observation, as to a violation of a criminal statute, was occasioned by the putting in evidence by the defendants of a statute of the Creek Nation, as contained in the compilation of their laws of March 1, 1890, which was in force at the time the hay in question was cut and burned, and was in the following words:

'No non-citizen licensed trader, who has not intermarried with a citizen of this Nation, shall be allowed to enclose more than two acres of our public domain, nor be allowed to cut and put up hay from one common pasturage, and any non-citizen, not intermarried, licensed trader found cutting and putting up hay from the common pasturage shall be fined ten dollars per acre for each acre so cut and put up.'

And as it was shown that B. F. Lafayette, one of the plaintiffs, was a noncitizen licensed trader, not intermarried with a citizen of the Nation, it was urged that he, as a trespasser, could not recover for the hay. But the evidence for the plaintiff tended to show that the hay in question was cut and put up for Mrs. Sarah M. Hailey, a citizen of the Creel Nation, who had contracted with Lafayette to cut and put up the hay, and that Lafayette was to have an interest in the proceeds of the hay, in consideration of his services.

There was no evidence tending to show that Mrs. Hailey, in procuring the hay in question to be cut and put up, was acting illegally, or was in any wise a trespasser. And the statute above quoted implies that citizens of the Nation might cut hay without limit from the common pasturage, as it forbids only noncitizen traders from cutting hay from the common pasturage; and we agree with the court below that there is nothing in the present record that would authorize us to say that the hay was gathered on the public domain without license. No law of the Nation was shown, forbidding Mrs. Hailey from cutting hay on land which she occupied in common with other members of the Creek Nation.

The trial court charged the jury as follows: 'The court further instructs the jury that evidence showing that the fir originated from sparks of a passing engine is prima facie proof of negligence, and the burden shifts on the railway company to show that it was guilty of no negligence,' and it is assigned for error in this court that the circuit court of appeals erred in not correcting this error. It is sufficient to say that no exception was taken to this part of the charge in the trial court, nor was it assigned for error in the circuit court of appeals.

Exception was taken in the trial court to the following part of the charge: 'The court further instructs the jury that evidence of a railroad company allowing combustible materials to accumulate upon its track and right of way, which are liable to take fire from sparks escaping from passing engines and communicate it to adjacent property, is sufficient to warrant the jury in imputing negligence to the company.' And that instruction was assigned for error in the circuit court of appeals, whose refusal to hold the same to have been erroneous is complained of here.

We think that part of the charge was plainly correct, and no error was committed by the circuit court of appeals in sustaining it. As we read the instructions given by the trial court, the jury were not told that the action of the railway company in allowing combustible materials to accumulate upon its track and right of way, which were liable to take fire from sparks and communicate it to adjacent property, was negligence of itself, but was a fact from which, in the circumstances shown the jury might infer negligence.

Nor do we find any error in the treatment given by the circuit court of appeals to the several assignments respecting the trial court's instructions on the subject of the respective duties of the railroad company and of the plaintiffs.

The court instructed the jury that the measure of damages was the market value of the hay burned, together with interest at 6 per cent. per annum from the date of the destruction of the hay, and to this instruction exception was duly taken.

Undoubtedly the rule, in cases of tort, is to leave the question of interest, as damages, to the discretion of the jury. The circuit court of appeals, while saying that the better, though not the invariable, practice, is to leave the allowance of interest, in cases of tort, to the discretion of the jury, regarded it as quite evident from the record that in point of fact the jury did not allow interest, but based their verdict entirely upon the number of tons of hay destroyed, at the market value per ton. Regarding the error, if such it was, as immaterial, the circuit court of appeals declined to disturb the judgment of the trial court, and we acquiesce in that disposition of the question.

The judgment of the circuit court of appeals is affirmed.