Eddy v. Lafayette

The complaint in this case was filed in the United States court for the Indian Territory on March 17, 1890, and on the same day the clerk of that court issued the following summons:

'United States of America, Indian Territory.

'The President of the United States of America to the Marshal of the Indian Territory: You are commanded to summon George A. Eddy and H. C. Cross, receivers of the Missouri, Kansas and Texas Railway, a corporation, to answer, on the first day of the next April term of the United States court for the Indian Territory, being the 7th day of April, A. D. 1890, a complaint filed against them in said court by Sallie M. Hailey and Ben. F. Lafayette, and warn them that upon their failure to answer the complaint will be taken for confessed; and you will make due return of the summons on the first day of the next April term of said court.

'Witness the Honorable James M. Shackelford, judge of said court, and the seal thereof, at Muscogee, Indian Territory, this 17th day of March, A. D. 1890.

'Wm. Nelson, Clerk.'

The summons bears the following return:

'Received this summons at 2 p. m., March 17, 1890, and I certify to having served said summons by leaving a copy thereof with J. W. Williams, the agent of the within-named defendants, at Muscogee, this 17th day of March. 1890.

T. B. Needles, Marshal.'

The complaint began as follows: 'The plaintiff Ben. F. Lafayette, white, and residing in the Indian Territory, and plaintiff Sallie M. Hailey, an Indian, and residing in the Indian Territory, allege that defendants, George A. Eddy and H. C. Cross, white men, were at the time hereinafter mentioned, and are now, the receivers of the Missouri, Kansas & Texas Railway, a duly-incorporated railroad company doing business in the Indian Territory, and operating its railroad through the Indian Territory under and by virtue of the laws of the United States, and that said George A. Eddy and H. C. Cross were on the ___ day of _____ duly appointed as receivers of said railroad by the circuit court of the United States for the Eighth judicial circuit.' It proceeded to allege that the said railroad was located near the premises of the plaintiff Sallie M. Hailey, in the Indian Territory; that the defendants had negligently permitted large quantities of dry grass and weeds to accumulate on the railroad right of way, which was 100 feet in width on either side of the track; that the defendants on August 20, 1889, were operating and running over the road an engine, No. 63, which was not supplied with the best appliances for arresting sparks of fire; and that, while using the engine upon the road near the premises of the plaintiff Sallie M. Hailey, they negligently permitted it to cast sparks and coals of fire into the dry grass on the said right of way, thus starting a fire which spread over the land of the said plaintiff, and there destroyed large quantities of hay, which she and the plaintiff Ben. F. Lafayette had jointly put up and cured, and in the proceeds of the sale of which the plaintiffs were in certain proportions to share. It was averred that the amount of the hay so destroyed was 666 1/2 tons, of the value of $2,666, for which sum the plaintiffs asked judgment.

On May 6, 1890, the defendants entered a special appearance in the case, stating that they appeared 'specially and only for the purposes of this motion, and for no other purpose,' and moved the court to quash both the said summons and the said return, upon the grounds that the summons was improperly and illegally issued, did not show the nature of the complaint filed, and did not set forth a cause of action; that the return was untrue; that J. W. Williams, who was designated in the return as 'the agent of the within-named defendants,' was not on March 17, 1890, such agent; that J. W. Williams was not on that day such a person as could legally have been served with process against the said receivers; and that the return and service were made improperly. In support of this motion the defendants proved that they were receivers of the said Missouri, Kansas & Texas Railway, duly appointed as such by the circuit court of the United States for the district of Kansas, and by the circuit court of the United States for the Western district of Arkansas, prior to the institution of this suit; that as such they were engaged in operating the said railway previously to, and at the time of, the service of the summons upon J. W. Williams; and that J. W. Williams was on March 17, 1890, station agent for the said receivers at Muscogee, Indian Territory. The defendants filed at the same time the affidavit of J. W. Williams, to the effect that since the month of June, 1887, he had been station agent for the said receivers, but that he had never been the agent of 'The Missouri, Kansas & Texas Railway, a corporation,' within the Indian Territory, and was not such agent on March 17, 1890.

The court, having heard and considered the motion, overruled the same, to which action the defendants excepted. Afterwards, on May 19, 1890, they filed their answer, denying therein all the essential allegations of the complaint, but protesting that they had not been served with process, and asserting that the court had not acquired jurisdiction over them in the case.

A trial was duly had before the court and a jury. After all the evidence on the part of the plaintiffs had been introduced, the defendants moved to have the same stricken out for the reason that it did not show that the engine which caused the alleged damage was engine No. 63, as alleged in the complaint. The motion was overruled, and the court granted the plaintiffs leave to amend their complaint by striking out of the same the words and figures 'No. 63.' The defendants excepted, and then moved for a continuance of the case in order to give them time to meet the allegations of the complaint as amended. This motion also was overruled, to which action the defendants excepted.

At the close of all the testimony the defendants moved the court to direct the jury to return a verdict in their favor. The court overruled the motion, and the defendants excepted. They then requested the court to give the jury certain instructions, among which was the following:

'The court instructs the jury that if you find from the evidence in this case that the hay claimed by the plaintiffs to have been burned by sparks cast out from the fire of one of defendants' engines was cut from the public domain, or open lands of the Creek Nation, and not upon land owned or possessed by plaintiffs, or either or both of them, and that said hay was so cut upon the said public domain, or open lands of the Creek Nation, without the consent of the said Creek Nation, or its officers or agents, that then the plaintiffs cannot recover in this action.'

The court refused to give this instruction, to which refusal he defendants excepted. Among the instructions which the court gave, and to the giving of which the defendants excepted, were the following:

'(10) The court further instructs the jury that evidence of a railway 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.'

'(12) It is the duty of a railroad company to keep its right of way clear of combustible materials, and failure to do so is a circumstance showing negligence.

'(13) The court further instructs the jury that, if they shall find for the plaintiffs, then the measure of damages is the market value of the hay when burned, together with interest at six per cent. per annum from the date of the destruction of the hay.'

On June 27, 1891, the jury rendered a verdict for the plaintiffs for the sum of $2,664, with interest thereon at 6 per cent., and on July 10, 1891, judgment was entered in favor of the plaintiffs in the said amount, with 6 per cent. interest on the same from date until paid. The defendants took the case upon writ of error to the United States court of appeals for the Eighth circuit, where, on February 15, 1892, the said judgment was affirmed. 1 C. C. A. 441, 49 Fed. 807. They then made a motion for a rehearing in that court, and, the same having been denied, they sued out a writ of error, bringing the case here.

James Hagerman, C. L. Jackson, and J. M. Bryson, for plaintiffs in error.

W. T. Hutchings, for defendants in error.

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.