t7.CLNCINNATI, N. 0." T. 1'. BY. CO.
WOODBURN 11. CINCINNATI,
N. O. & T. P. Ry. CO.
(Circuit Court, E. D. Tennessee. 8. D. December 20, 1889.)
C.lRRJl!JRS-OF GooD8-SmPPING CONTRAOT.
Plaintiff made a shipment on a road connecting with defendant's, and took a receipt from the agent, which stated that the company was "not accountable for weight. number, or condition of the packages." Following this was the name of plaintiff, destination of the goode on defendant's road, and the warde, "Valuation limited to $5.00 per 100 pounds in case of total lose." On the back was printed 110 statement that "when a valuation as agreed upon shall be named upon this shipping receipt, it is distinctly understood that such valuation shall cover loss or damage from any cause whatever;" also a printed statement that the owner of the goods, in accepting the receipt, w be bound by all its stipulations, written or printed, as fully as though sIgned by him. Plaintiff then signed and delivered to the company a paper stating that he had voluntarily shipped at a lower rate than general tariff. on condition that he release the company from all liability for loss or damage, and containing a formal release to the company, and all other railroad or transportation companies to whom the goods should be delivered for transportation. This release was attached to the manifest, went along with the goods, and was received by defendant. The shipping receipt was not under seal, or witnessed, and was retained by plaintiff. The goods were received by defendant at a freight rate agreed on between the roads. Held, that the shipping receipt and release were separate and independent papers, prepared and signed at the instance of the company receiving the goods j and that defendant could not, in its own interest, elect which of the two should be treated as the shipping contract. The shipping receipt, not having been executed as a contract under seal, and not having been regarded and treated as one by either of the railroad companies, and having been put forward as the rate of indemnity on a total loss when there was only a partial loss, cannot be made the basis of plaintiJ!'s recovery. .
As the release executed by plaintiff provided for a complete and unconditional exemption of the carrier from liability on account of loss or damage to property in the course of transportation, it is void, as against public policy, and plaintiff is entitled to recover for the full value of his goods lost,! . When the unconditional release came into the hands of the defendant's agents, together with the goods shipped, it was notice to defendant of the illegality of the transaction, and its liability must be determined by the principlee of the general . law.
.. BAME-LIABILITY OF CONNEOTING LINES.
At LaW. Action for damages. to freight. W. H. De Witt and Wheeler & Marshall, for plaintiff. Lewis Shepherd, for defendant. KEY, J. The plaintiff shipped a car-load of furniture and other household goods, at the city of Philadelphia, upon the Pennsylvania railroad. Their destination was Chattanooga. They came over the lines of the Pennsylvania Railroad to the city of Cincinnati, and were delivered to the defendant, and were started over its line to Chattanooga. On their way, two of defendant's locomotives, drawing trains in opposite directions, collided, and the car containing plaintiff's goods was wrecked, and most of his goods destroyed. This suit has been brought for the value of the goods, and a jury is waived, and the whole case is left to the court for decision.
Barris, (Ind.) 21 N. E. Rep. 340, and note; The Portuens6, Il6 Fed. Rep. 670, and note; Bull v. Railway Co., (Minn.) 48.N. W. Rep. 391. .
tract, see Railroad Co. v. Thomas, (Ala.) 3 South. Rep. 802, and note 2 j Express Co. v.
lRespecting the extent to which common carriers may limit their liability by: con-
The Pennsylvania Railroad Company executed a receipt for this carload of freight, dated February 27, 1888. This paper was handed to the plaintiff, and is produced by him. On its face is stamped: "Loaded by the shipper. Pennsylvania R. R. Co. Not accountable for weight, number, or condition of packages." There is written in the blank space for marks and description of property: "M. A. Woodburn, Valuation Limited Chattanooga, to $5.00 pl'r 100 Ibs. Hamilton county, in case of total 1088. Tennessee. 71 ct8: 10,000 Ibs." On the back of this receipt is printed, in very legible characters: "When a valuation, 8S agreed upon, shall be named upon this shipping receipt, it is distinctly understood that such valuation shall cover los8 or damage from any cause whatever." This receipt, as it is styled, has various other stipulations and conditions printed upon its face and back, but they apply\mainly, if not altogether, to the general course of shipments, and the current course of business, upon the lines of the railroad. The case in hand is contested upon the ground that it is exempt and different in its features from the run of ordinary transactions with public common carriers, and only the special and peculiar language involved in the controversy is quoted. The concluding clause in the printed conditions upon the back of the receipt is as follows: "And finally, in accepting this shipping receipt, the shipper, owner, and consignee of the goods and the holder of the shipping receipt, agree to be bound by all its stipulations, exceptions, and conditions, whether written or printed, as fully as if they were all signed by such shipper, owner, consignee, or holder." , This shipping receipt was signed by the agent of the railroad COmpany, and delivered to the plaintiff. At the same time, and as a part of the transaction, the plaintiff signed a paper in the following language: "I, M. A. Woodburn, have this day delivered to the Pennsylvania Railroad CO!i1pany, at Shack station, the following property, viz.: One car household furniture marked, '1M. A. Woodburn.' And I have agreed to pay freight on the same at the rate of - - cents per hundred pounds from Philadelphia to Chattanooga; and I do hereby acknowledge that I have had the option of shipping the above-described articles at the rate of - ' - cents per hundred pounds, according to the general tariff of said company, and thereby retaining the security of the liability of said company as common carrier of said property upon the line of their own railroad, but that! have voluntarily decided to ship at the above-mentioned rate of - - cents per, hundred pounds, and to releilse the said company, and any other railroad or transportation company to whom the said articles may be delh'ered for transportation to or towards their place of destination, of and from all liability for breakage, leakage, loss, damage, ctecay, delay, or otherwise howsoever, to said property, considering that theditIerence in my favor in the cost is more than equivalent to the risk of transportation, And I do therefore, ill consideration of the premises, remise, J'elease, quitclaim, and discharge the said railroad company, and
WOODBURN V. CINCINNATI, N. O. &: T. P. RY. Co.
all other railroad or transportation companiAs to whom the said property may be delivered for transportation to or towards its place of of and from all claims, demands, or liability whatever for breakage, leakage, loss, damage. decay, delay. or otherwise howsoever to said property, while the sawe is in their care, custody, or possession; and I hereby authorize the saId railroad company, as my agents, to deliver said property to any other railroad or transportation company over whose route it is necessary to be carried to its place of destination; and I agree that the said railroad company shall not be considered as carriers of said property beyond the line of their own road, or in any event to be beld liable for the negligence or non-performance of any other railroad or transportation company to whom the said property may be delivered as aforesaid." In a note below the signature of the plaintiff the paper provides that "this contract (in addition to contract in G-Form 41) is to be executed by all shippers of light furniture, household goods, or other property for which a release is required, if shipments are destined to points beyond the lines noted above. It should be pinned to and forwarded with the manifest accompanying the shipment." The shipping receipt mentioned heretofore is noted as" G-Form 22B." This car-load of goods was sent from Philadelphia to Cincinnati over the Union Line, which embraces the Pennsylvania Railroad and the Pittsburgh, Cincinnati & St. Louis Railroad, under the management of the Pennsylvania Railroad, and was there delivered tO,the defendant, to be taken to Chattanooga. The delivery slip of the Union Line shows that the car was delivered to the defendant March 2, 1888; that the weight of the goods was 24,000 pounds; that freight was charged thereon at the rate of 56 cents per 100 pounds, of which the Union Line was entitled to 31 cents and .defendant to 25 cents,-that is, the Union Line would receive the sum of $74.40 and the defendant $60; and a like slip of the Cincinnati Street Connection Line shows that it was entitled to $2.40 for carrying the car between the two lines of railroad, and, when this sum is deducted from the $60, defendant's share of the charges of transportation, it leaves the net sum of $57.60 due defendant, as stated by witness Bryan. This delivery slip furnishes all the evidence on the part of defendant as to the rates charged; but it is shown by defendant's proof that if full damages had been claimed, or were to be claimed, in case of loss, the rate would have been doubled, or nearly so. Plaintiff swears that it was agreed that he should be charged 47 cents per 100 pounds on his shipment, and that the higher rate was 92 cents. In the case of Inman v. Railway Co., 129 U. S. 139, 9 Sup. Ct. Rep. 249, the chief justice, in delivering the opinion of the court, says: "To seCUl'e care, diligence. and fidelity in the discharge of its public functions, the common Jaw charged the common carrier as an insurer: but the rigor of the rule has been relaxed so as to allow reasonable limitations upon responsibility, at all events, to be imposed by contract. We have, however, uniformly beld that this concession to changed conditions of business cannot be extended so far as to permit the carrier to exempt himself, by a contract with the owner of the goods, from liability for his own negligence." In Hart v. Railroad Co., 112 U. S. 340, 341, 5 Sup. Ct. Rep. 151, it
vol. 40.: .
<: "The limitation as to value has no tendency to exempt from liability for negligence. , It does not induce want of care. It exacts from the carriers the measure of care due to the value agreed on. The carrier is bound to respond in that value for negligence. The compensation for carriage is based on tbat value. The shipper is estopped froms8ying that the'value is grea.ter.. The articles have nogreater value for the purpose of the contract of transportation between the parties to that contract. The carrier must respond for negligence up to that value. It is just and reasonable that such a contract, fairly entered into, and where there is no deceit practiced on the shipper, should be upheld. There is no violation of pUblic·policy. On: the contrary, it would be unjust and unreasonable, and would :be -repugnant to the soundest principles of fair dealing and of the freedom of contracting, and thus in conflict with publilJpolicy, if a shipper should be allowed to reap the benefit of the contract is no loss, and to repudiate if; in case of loss. '" ... '" The subjectmatter of a contract may be valued, or the damage in case of a breach may be liquidated, in advance. In the present case, the plaintiff accepted the valuation as' just and reasonable.' The bill of lading did not contain a valuation of all animals at a fixed sum for each, but a graduated valuation, according to the nature of theallimal."
Again, page 343, 112 U. S., and page 157, 5 Sup. Ct. Rep., it is said: "The distinct ground of our decision in the case at bar is that where a contract of the kind signed by the shipper is fairly made, agreeing on the valuation of -the property canied, with the rate of freigMbased on the condition that the carrier assumes liability only tothl:' extent of the agreed valuation, even In cases of loss or damage by the negligence of the carrier, the contract will be upheld as a proper and lawful mode of securing a due proportion betweeri the amount for which the carrier may oe responsible and freight he receives, and of protecting himself against extravagant and fanciful tions. "
In a later decision it is stated: "The carrier and his customer do not stand. upon II tooting of equality. The individual customer has no real freedom of choice. He cannot afford to higgle or stand out, and seek redress in the courts. He prefers rather to accept any bill of lading, or to sign any paper, that the carrier presents; and in most cases he has no alternati ve but to do this, or abandon his business. Special contracts between the carrier and the customer, the terms of which are just and reasonable, and not contrary to public policy, are upheld. '" '" '" But the law does not allow a public carrier to abandon altogether his obligations to the public, and to stipulate for exemptions which are unreasonllbleand improper, amounting to an abnegation of the essential duties of his employment. It being against the policy of the law to allow stipulations which will relieve the railroad company from the exercise of care or diligence, or which, in other words, will excuse it from negligence in the performance of its duty, the company remains liable for such negligence. '" "'. · The general doctrine is nowhere stated more explicitly than. in Hart v. Railroad 00., and InsU1'anc8 00. v.1'ransp01·tation 00., [6 Sup. Ct. Rep. 750, 1176,] just cited. '" '" '" In the one, [the Hart Case,] a contract faIrly made between a railroad company and the owner of the goods. and signed by the latter, by which he was to pay .a rate of freight based on the condition that the company assumed liability only to the extent of an agreed valuation of the goods, even in case of loss or ,damage by its negligence, was upheld as just and reasonable. because a proper and lawful mode of securing a due proportion between the amount for which the carrier might be responsible and the compensation which he received, lionel
WOODBURN .,. CINCINNATI, N. O. " T·. P. BY. CO.
ot protecting himself against extravagant and fanciful valuations, which is quite different from exempting himself from all responsibility whatever for the negligence of himself and his servants." Steam 00. v. Insltrance 00.,129 U. S. 441, 442, 9 Sup. L't. Rep. 469.
The principles and distinctions of these decisions are so clear that they need neither comment nor elucidation, and upon them rests the controversy in this trial. The defendant, in support Qf his defense, relies upon two the shipping receipt, signed by the railroad agent; and the other, the contract, signed by the plaintiff. These papers are separate and distinct in. character, different in their provisions, and dissimilar in terms. They cannot be regarded as complementary to each other, as evidence of the same contract. It is true they bear the same date; and we may infer that they have reference to the same property, looking to the face of tIle papers only. The first paper has written upon its face: "Valuation limited. to $5.00 per hundred pounds, in case of toWloss." The second paper stipulates "to release the said company, and any other railroad or transporta.tion company to whom the said articlell may be delivered for transportation to or towards their place of destin.a.. tion, of and from all liability for breakage, leakage, damage, decay; or delay, or otherwise howsoever, to said property, considering the dif-:ference in my favor in the cost is more than equivalent to the risk of transportation. And I do therefore, in consideration of the premises, remise,. release, discharge, and quitclaim the said railroad company, and all other railroad or transportation companies to whom the said property may be delivered for transportation to or towards its place of destination, ofand from all claims,'demands, orliabilitywhatever for breakage, leakage, loss, damage, decay, delay, or otherwise howsoever, to said property, while the same is in their care, custody, or possession." This is a contract for complete exemption from any and all liability on account of loss or dam.. age to the property in the course of its transportation, and manifestly against public policy, and void under the decisions cited. Admitting that the first contract is such as might be legalin its character, which of these papers is to control in the decision in this cause, under the circumstances of this case? The last contract is signed by the plaintiff. It is a form of agreement prepared and presented to him by the railroad, for his sig. nature. ,When signed, it was 'witnessed by two of the officers of the railroad company. It is under seal, and on its face it is stated that "this contract should be pinned to and forwarded with manifest accompanying the shipment." It was so forwarded, and came along, with thelmani· fest of the goods, to the hands of the defendant, and is produced upon the trial as evidence protecting it from or limiting its liability. It was' the that, went along with the goods. and stopped when they stopped. It was the paper that the officers aod agents of the transpor. tation companies saw when the goods came to their hands. The other paper was signed by the agent of the railroad company only. It was not witnessed, nor was it under seal. It did not travel with the goods. The stuborinvoice upon which its special features were copied remained in the possession oOhe railroad company at Philadelphia until produced
trial. With the parties thus situated, in the language of one of the decisions already quoted, "the carrier and his customer do not stand upon a footing of equality." The individual customer has no real freedom of choice. He cannot afford to higgle or stand out, and seek redress in Murts. He prefers rather to accept any bill of lading, or sign .any paper, that the carrier presents." Both these papers were prepared by the railroad company, and executed at its instance. After a collision has taken place between the contracts, it can hardly be permitted to the to select from the wreck the paper most beneficial to its inter.ests, and require the other party to be controlled by its provisions. Equity andjustice demand the contrary. Butitmay be insisted that, while all this may be true as between the Pennsylvania Railroad Company and the plaintiff, it does not apply to the defendant. It is true that the defendant made no contract with the plaintiff as to the transportation of these goods. The goods were delivered to it by the Pittsburgh, Cincinnati & St. Louis Railway Company, :a member of the Union Line. The witness of the defendant states that the goods were shipped under a limitation of value. He knew the fact from the notations on the delivery slip, which showed the contract of shipment of these goods, "that the rate of freight was much less than the regular freight rate for that class of goods. It was less because the :shipper assumed the risks of damage and loss in 00urse of transportation, and agreed that the value should be limited, in case of loss, to $5.00 per 100 pounds." When the witness is asked to file any written or printed contract which accompanied the delivery of the goods to the defendant, or has been received since, and to attach all of them to his -deposition, h'e responds: "As requested, I hereto attach the contract, street connection, transfer slip, .and the delivery slip, marked, respectivPly, -Exhibits A. B, and C.' They were received, with the goods, March 3<1,1888, from the P.,.C. & St. Louis Ry. ·Company." The contract attached is the original contract signed by the plaintiff, which is required to be pinned to and accompany the manifest of the shipment. The street connection transfer slip shows only that the car with the goods marked to plaintiff, "Chattanooga, Tenn.," had passed over its line; that the goods weighed 24,000 pounds, and its share of freight thereon was $2.40. The delivery slip of the Union Line shows by its heading that this line is composed of the Pennsylvania Railroad and Pennsylvania lines west of Pittsburgh. That the car of goods had been ;shipped from Shackamaxon station, February 27, 1888, manifest No. 28, car 5,054, and arrived at Cincinnati, March 2, 1888. That the goods were marked: "M. A. Woodburn, Chattanodga, Tenn. One car household furniture, at owner's risk. Care of Cin. Southern." That the weight ·of the freight was 24,000 pounds; rate, 56 cents per 100 pounds, of which the Union Line was entitled to 31 cents and the Cincinnati South-ern to 25 cents. Not one word is said in either of these papers about the limitation of value to $5 per 100 pounds in case of total loss. Th1'l <Jontract, and the only contract, accompanying the delivery of the goodli
& T. P. RY. CO.
to tha defendant is that executed by the plaintiff, exempting the company from any and all liability in case of loss or damage. The witness, however, states that the delivery slip from the connecting carrier shows goods shipped under a limitation a rate which is the rate for of value in case of loss. The idea of the witness is that the two papers constitute a single contract of a compound character; that is, that the paper signed by the plaintiff as shipper, in consideration of the reduced rate of freip;ht, exempted the companies from all partial damage or injury,-from such as did not amount to a total loss; and that the limitation of value in the paper signed by the railroad agent applied to total loss, exclusively. The contract evidenced by the paper signed by the plaintiff is void, whether its provisions apply to partial or total losses; and, under the theory suggE'sted, that is, that both papers constituted but one contract, the nature and character of the provisions which invalidated the stipulations of the void paper must taint and destroy the entire contract. Being contrary to public policy, every part of the contract inhering in or dependent upon these illegal stipulations must fail. But the stipulations of the paper executed by the plaintiff do not embrace or pertain to partial losses only, but they include damages and losses of every kind and character, both partial and total. When this paper came to the hands of defendant's agents, along with the goods to which it referred, it was notice to the defendant of the illegality of the transaction, and does not shield or protect it. Again, if the one paper applied to partial losses only, and tbe other paper to total losses only, the last paper would have no force or effect in this cause, because there has been no total loss of the goods. The plaintiff has accepted and received of the goods a quantity weighing about 500 pounds, and many more of them: remained in the hands of the defendant in a damaged state. We have, under the condition of things, under the theory suggested, no liability on one writing because the loss is not total, and no liability on the other writing because its terms exclude any recovery under it for any injury, however it may arise. Such a contract, everything else out of the way, would not be fair and reasonable, and would be invalid on that account. A contract of the character of this should not only be fair and reasonable, but should be carried out fairly, and .in substantial conformity to its provisions. This was not done in the busirness under consideration, conceding the validity of the contract executed by the agent of the railroad. That paper shows no rate for the freight, but it does show that there were 10,000 pounds of the freight. One of the witnesses for the defendant testifies that he weighed the goods, and they amounted in weight to 10,040 pounds. The testimony further discloses that the consideration of the limitation of $5 per 100 pounds upon the value of these goods. was the reduced rate plaintiff was to pay for transportation, and that this rate was about one-half the rate which was charged when there was no limitation upon the value of the shipThe delivery slip given by the Union Line to the defendant, at the time the goods were delivered to it, represented the goods to be of the weight of 24,000 pounds, and charges freight accordingly. The v.40F.no.13-47
freightS'thus charged were·upon more, by weight, than twice the quantity of goods received for shipment, so that plaintiff was charged more than double the amount contracted for,and more than the full rate would have been had no contract of limitation of value been made. It is not probable that the change of weight was but it is unexplained, and, so far as plaintiff is concerned, operates to his prejudice as much as if it had been intentional. If the railroad company abandoned its contract, the plaintiff might disregard and abandon it, and the parties would be left to be controlled by the general law applicable to the transaction. It may be insisted that, whatever the conduct of Pennsylvania Railroad Company may have beell, the defendant is innocent of any wrong. It did not entet into any contract with the plaintiff in respect to the traIlspqrtation of· theRe goods. That it receiyed the goods in the usual course of 'business between itself and the Union Line, as connecting lines of pnblic common carriers, without notice· of any wrong-doing. All this appears to be true. But the defendant did receive the' goods,asslich carrier, for transportation, and undertook to deliver them at their point of destination. While the goods were in .its custody they were. or destroyed by its negligence. If it had no special validcontraet with the plaintiff limiting its liability, its responsibility must be determined by the principles of the general law. The defend: allt made no such special contract upon its own account. Such contract as was made forit was ,made by the Pennsylvania Railroad; That contract is invalid,' as we haveseen,and cannot stand. The result is, the defendant'soontention hetemust be determined under the principles of the public law, unaffectef;lby any special contract. Defendant must be held responsible for the injury to 'the goods to the full extent of the damage to them by the 'Collision in 'which they werewrecited. ' . There is but one item ib'the lot 'of goods about which there is any controversy as to is the value of a piano. The plaintiff proves the value of the goods shipped to have been $3,396.43. He admits that hehaneceived' bfgoods shipped various articles of the value of,$704;81, frQmthe grpss slim, leaves $2,691.62. AmonJ!: the articles which make' this sum area piano and stool valued The piane> was in.1.1se about 10 years, and was stored in 1874, ' and remained in store until just before it wasship'pedj when it was over.. haUled and repaired at :acost of $50. It 'cost originally $700. The' v;a1liation n'ot be a fanciful . It n1Ust be such a sum as it would bring in themal'ket, provided the owner wanted to sell, and the chaser wanted to buy. Such '1$\ piece of goods is likely to be highly prized by the family, andatt exaggerated opinion be entertained by them' of its ,The piano. waS' 'Illore than 20 years old, and would not probably bring prieeiri the market. Taking the proof in regard to' it altoJ!:ether, I thirik$250wtiulq be a fair market price for it at the' time of the accident. ,The plaintiff says he hasneverpaid freight upon the shfpment. As he receives full damages, he ought t? account for the freights, which amount to $134.40. This amount, added to the $250'
deducteq. from tbecharges for1;he -piano, produces the sum of $38,4040, which, when taken from the balance due according to plaibtiff'sstatement,willleave $2,307.22, for which he will have judgment, with in.. terest at the rate of 6 per cent. from May 1, 1888, and costs.
(Oircuit Oourt, B.D. New York. December1n,lS89.)
Iu an action for crimin'al conversation, where the act of. aciulrery is not shown by direct proof, the plaintiff must show-F1Jrst, a disposition t,o illicit inrercourse on the part, of'the wife; second,' a disposition t,o illicit inrercourse with the wife on' the part, Qf the defendant; and, tMrcl, opport,unity to graUfy suoh mutual disposition.
CONVERSATION_FACTS NBOESSARY TO BBSUOWN.
cases the rule Is that when the evidence is as capable of an interpretaUQU which makes it consistent with the innocence of the accused party as of ODe Ilonsistent with his guilt, the must be ascrIbed to it which accords with' his innocence rather thaI\ that which 1D1putes to him a criminal intent. ,' SAMB-EvlDjlNOE-I'BESUlQ'TJQN FROM F AlLURE TO INTROl)UOE. If the weaker and less sa,tisfactory evidence is given and relied on in support of a fact, when it is apparent' that proof of II more direct and explicit character was within th'e power of the part,y, it will be presumed that if the more perfect exposition had been given it would have laid open deficiencies and objections whicti the more obscure and uncertain testimony was intended to conceal.
SAMB-SUFFJOJBNOY OF EvmBWCE. '
The circumstance upon which plaintiff especially relied In support of ,the inference that defendant was disposed towards improper intercourse with the wife was the discovery of two letrers which plaintitr claimed were written by defendant. The letters were unslgu!"d,were not Shown to have ever been in defet;ldant's POllsession, and were sought to be connecred with him only by proof as to handwriting. Besides defendant's testimony denying the Writing of the letrers, two witnesses who had known defendant, and had business transactions with him, for 25 years, testified positively to the opinion that the, letters were not in defendant's handwriting. to this restimony there. appeared only the plaintiff himself. His only knowledge of defendant's handwriting was derived from having 'once seen him fill up an insurance policy, from once received an iremized bill from him,. and from having several Umes seen hIm make ent1'ies in his books. Held, that the evidence was insufficient to establish the fact that defendant wrote the lett.ers.
Motion for a new trial in a,ction for criminal conversation, the jury having given plaintiff a verdict for $2,500. Benno Loewey, for defendant. (1) Where a wrong is charged wherein there is moral turpitude, there is a
presumption of innocence. M010ris v. Talcott, 96 N. Y. 100; Jaeger v. Kelley,52 N. Y. 274; Pollock v. Pollock, 71 N. Y. 137; Orook v. Rindskopf. 105 N. Y. 476, 12 N. E. Rep. 174. (2) A verdict influenced by prejudice, misapprehension, or improper motives on the part of the jurors should be set aside as against the weight of evidence.. Corning v. Factory, 44 N. Y.577; Wilkinson v. Greely,l Curt. 63; Childs v. Bailroad Co., 20 Law Rep. 561; Cady v. Insu1'anc6 Co., 18 Int. Rev. Rec. 30; Stafford v. Hair-Cloth Co., 2 Cliff. 82; Fuller v. Fletcher, 6 Fed. Rep. 128; Pollard v. RailwayOo·· 62 Me. 93; Clark. v. Bank. 8 Daly, 481; Of'U.ikshank v. Bank, 26 Fed. Rep.li8ji.. (3) Where all the witnesses a fact are equally the CQurtwill
be governlld rather by the means of knowledge they possess than by their number..' Taylor v. Harwood, Taney, 487. (4) Expert testimony must be received and upon with caution,.U. B. v. Pendergast, 32 Fed. Rep. 198. (5) A plaintiff being now permitted to state his own case as a witness, ought, when he is convers811t with all the facts, to be able to make his right of action entirely clear. Meddaugh v. Bigelow, 67 Barb.106: Lynch v. Pyne, 42 N. Y. Super. Ct. 11; Oorney v. Andl'ews, 14N. Y. St. Rep. 672. (6) Error in the charge is ground for a new trial. Scott v. Lunt, 7 Pet. 596; U. B. v. Beaty, Hemp, 487: Emerson v. Hogg, 2 BIatchf. 1. (7) What constitutes interest in a witness. Bork v. Norton, 2 McLean, 422; Burroughs v. U. B·· 2 Paine, 569; Moran v. McLarty, 75 N. Y. 25; Fralick v. BtajJ'ol'd, 11 Wkly. Dig. 327: Sharon v. Hill, 26 Fed, Rep. 337. (8) The effect of interest in a witness. Newton v. Pope, 1 Cow. 110; 'Elwood v. Telegraph 00.· 45 N. Y. 554; Nicholson v. Oonner; 8 Daly. 212; Kavanagh v. Wilson, 70 N. Y. 179; Andrews v. Hyde, 3 Cliff. 516; (9) Failure to call a producible witness. U.' B. v. Schindler, 10 Fed. Rep. 547; Olifton v. U. B.. 4 How. 242. (10) Hostile relations between a witness and the party against whom he is called, a proper subject of charge., Stan' v. Cmgin, 24 Hun, 177: Newton v. Hart'is, 6'N. Y. 345: Patterson v. People, 12 Hun, 140. (H) Condonation a bar to actions against the paramour. Norris v. Nords, 30 Law J. Div. & Matr.Hl; Aitken v. Macree, 15 Fac. Col, 562, 2 Shaw, Dig. 842; Adams v. Adams, 36 Law J. Div. & Matr. 62, R.I Prob. & Div.333. (12) Condonation as affecting husband's testimony as to guilt. Btate v. Marvin, 35 N. H. 22; Timmings v. Timlnings, 3 Hagg. Ecc. 76; Phillips v. Phillips, 1 Rob. Ecc.160; Oook v. Wood, 76 Amer.Dec. 677; Hodges v. Windham, Peake, 53. (13) Negligence of plaintiff in these cases. Bunnell v. (heathead, 49 Barb. 106: lJubel'ley v. Gunning, 4 Term R. 657: Winter v. Henn, 4 Car. & P. 494; Oalcrafty. Earl of HaTbol'ough, Id., 499: Reeve, Dom. ReI. (3d Ed.) 140; Seagar v. Bligel'land, 2 Caines, 219;.Tl'avis v. Bat"ger, 24 Barb. 614. (14) Measure of damages. Leeds v. Oook, 4 Esp. 256: Fel"guson v. Smethers. 70 Ind. 519; CoWing v. Cowing. 33 LawJ. Div. & Matr. 150: lJain v. WucojJ', 7 N. Y. 191; v. Little, 3 Mason. 106.
Z. M, Ward, also, for defendant. (1) The verdict resting Wholly ont.he testimony of a party which Is opposed by that of disinterested and unimpeached witnesses should be set aside. Pollard v. Railway 00., 62 Me. 93. (2) In doubtful cases, the hypothesis of innocence should prevail. 'Mayel' v. Mauer, 21 N. J. Eq. 246. (3) New trial will be granted where the verdict is against the weight of evidence, although there was testimony on both sides. Manttfactul'ing 00. v. 51 Barb. 350; A.dsitv. Wilson,. 7 How. Pr.· 64: Kinne v. Kinne, 9 Conn. 102; Broum v.Ft·ost. 2 Bay, 126; OUTtiS v. Jackson, 13 Mass. 506: Byron v. Beal, 7 Atl. Rep. 601: lJexter v. Toll-BTidge 00., 12 Atl. Rep. 547: Reclamation 00. v. Cunningham, 71 Cal. 221,16 Pac. Rep. 711; Bell v.Shields, 19 N. J. Law,93: Corlies v. Little, 14 N. J. Law, 373; Boylan v. Meeker, 28 N. J. Law,274; Windmuller v. Roberston, 23 Blatchf. 233, 23 Fed. Rep. 652.
George F. Elliot, for. plaintiff. (I) A strong preponderance of evidence against the verdict is not enough \0 warran.t setting it aside. Hickenbottom v. Railroad 00., 15 N. Y. St. Rep. 11;. MOTSS v. Sherrill, 63, Barb. 23: Beckwith v. Raitt'oad 00.,64 Barb. 299; McKinley v. Lamb, Id.199; Cheneyv. Railroad 00.,16 Hnn, 415: Pope 10 Reporter, 783; Bills v. Railroud 00.,84 N. Y. 10; Emberson v; Dean, '46 How. Pl'. 236; BrooklJ v. Moore, 67 Barb. 393; Clark v. Bank, 8 Dil.1y,481; Waters v. Insurance 00., 7 Reporter, 456; Fuller v. Fletchel", 11 Reporter, 601; McOann v; Meehan, 13 Reporter, 224: Archer v. Railroad
RAliSA.Y 11. RYERSON.
00., 18 N. E. Rep. 318; Ilsley v. KeUh, 9 N. Y. St. Rep. 828; Redlein v. Railroad 00.,7 N. Y. St. Hep. 264; Reitmeyer v. Ehlers, 9 N. Y. St. Rep. 63; Mulholland v. Mayor, 9 N. Y. St. Rep. 85; Archer v. Railroad 00.· 106 N. Y. 602,13 N. E. Rep. 318. (2) Where the evidence is contradictory, the finding of the jury is conclusive. Finney v. Gallaudet, 2 N. Y. Supp. 707; Mill1J1' v. O'Dwyer, 1 N. Y. fSupp. 618:. Cummings v. Vanderbilt, Id. 523: Smith v. Inhabitants, (Me..) 13 At!. Rep. 890; Purinton v. Railroad Co., (Me.) 7 Atl. Rep. 707: Byron v. Beal, (Me.) 601: Nash v. Somes, (Me.) 10 At!. Rep. 447. (3) Verdict should not be set aside for excessive damages, unless jury were plamly influenced by passion or prejudice. Eppendorf v. Railroad 00.,69 N. Y.195; A've1'y v. Rail1'oad 00., 2 N. Y. Supp.WI. (4) New trial should not be granted. although some mistakes have been made, if, on the wbole, the verdict be substantially right, and justice have been done. McLanahan v. Insumnce Co., 1 Pet. 170; Hunt v. Pooke, 1 Abb. (D. S.) 556. (5) Generally, as to setting aside verdicts. Folsom v. Skojield. 53 Me. 171; Price v. Evans, 4 B. Mon. 386; Jossey v. Staple toll, 57 Ga. 144; Kightlinger v. Egan, 75 Ill. 141; Miller v. Balthasser, 78 Ill. 302; McAlexander v. Puryear, 48 Miss. 420; Wiggin v. Coffin, 3 Story, 1; Peck v. Land, 2 Ga. 1.
LACOMBE, J. It is apparent from the verdict that the jury discredited the testimony both of the defendant and of the plaintiff's wife. In cussing the question, therefore, whether the verdict is, as defendant claims, against the weight of evidence, such testimony will be entirely disregarded by the court. When, however, the jury discredited the defendant's testimony, they did not thereby put the case in the same condition as if the defendant had not testified at all. Still less did they thereby alter the issues raised by the pleadings. The defendant's side of the story was not practically abandoned because of any failure on his part to sustain it with his oath; and, uuder the pleadings, the burden rested upon the plaintiff to show affirmatively, by competent and sufficient legal proof, that between April and October, 1887, his wife committed adultery with the defendant. If the proof were insufficient to establish that charge, the jury were not at liberty to supply any defects in such proof by ferences from outside; nor were they warranted in assuming that because they decided thedefEmdant's narrative to .be false they were entitled to jump to the conclusion that the converse of such narrative must be trne, without any further examination of the testimony. In actions of this character, where the act of adultery is not shown by direct proof, the plaintiff must show-First, a disposition to illicit intercourse on the part of the wife; second, a disposition to illicit intercourse with the wife on the part of the defendant; and, third, opportunity to gratify such mutual disposition. It must be shown that a criminal attachment subsisted between the wife and the defendant, and that they had an opportunity to gratify their unlawful passion. Pollock v. Pollock, 71 N. Y. 137. The jury were so charged, and in plain and unmistakable terms were told that, while they might find these three essentials as inferences from facts, they must, in drawing such inferences, use only the facts in proof. The evidence, if any, as to the first of these essentials need not now be discussed. This motion will be considered solely in the light of'such evidence as affects the defendant. The circumstance upon which plain-
in:;s.u,pport of the inference that defendant was disppaed tWYi!trds idlprQper. intercourse, with the wife was the discovery of the two letters, Exhibits'A and C. The plaintiff claimed that these were and:that therefore the jury might take them into inferences as to defendant's disposition. The Iettf$l'S'Yere.'un,signed"were not shown to have ever been in defendant'sposse,sslOn, and ,sought to be connected with him onloY by proof as to handwriting. Not counting the defendant, Who denied writing them, but whose testimony"as above indicated, the jury did not credit, there examined on this point. De Baum, who batlknown defendant, lfurl had business transactions with him, for over 25.years, and was quite familiar with his handwriting, testified positively to the opip.ion that A and C were not in defendant's handwriting. Lydecker, who had known him for 30 years, had repeated business transaotions with himl and who was in no way interested in the result of thissu.it, also testified to the same effect. In opposition to this testimony there appeared only the plaintiff himself. His only knowledge of defendant's, haIl 4 was .derived from once seen him fill up an insurance po;!.iCYl from having once received an itemized bill from him,and from having several tiD;JeEl seen hiDl , in the country grocery store which he kept at Ramsays', N. J., make entries in his books. by such measure of experience, he expressed the opinion that Exhibits A and C were written by the defendant. And, though he, as well as the defendaqt, had lived at Ramsays' all his life, he did not .calla single witness frolll the many persons in that place who must be entirely familiar with handwriting. If this action were one to recover a liquidated amount upon a written obligation for payment of money, the authenticity of which was in dispute, it is inQredible that a.single on6 of thesetwelvc jurymen, who presented the outward seeming pf intelligent business men, would have found such proof sufficient to. establish the genuineness of .the document sued upon. That they reached a different conclusion as· to the documents in this case, and their verdict seems to indiCf1,te that they did so, resulted, probably, from an acute attack of that of hysteria to which jurymen in sexual cases are so peculi,arly liable. Besides these letters, the only circumstances relied on by the plaintiff as sustaining the inference that defendant had a disposition towards illicit intercourse with the wife are these: It appeared.that defendant lllade repeated visits to the house of defendant while the absent in New York. It also appeared, however, that he always called there t.o deliver butter or groceries, in the ordinary transaction ofhis business.. Mrs. Tenure, the only witness to these visits, says that he came on. business, to deliver goods, and did not stay more than 10 minutes, at longest. It WaS shown that on one occasion he brought to the house a package of groceries under the string of which waS a letterj but it also appellred that defendant .was pqstmal;!tel', and occasionally left his customers' wail with their groceries. The :witness Mrs. Tenure.also testified that the plaintiff's little boy came out of his mother's room alld witnel3s' room, when came, which
RAMSAY fl. RYERSON.
was only on Saturday mornings; but she also admitted that in the winter-time the boy came into' her room nearly every day, and that in the summer-time he was always out of doors; and it was with the period from April to Octoher only that the complaint is concerned. The same witness also testified that on one occasion defendant stopped in front of the house in a sleigh and she heard him say to the plaintiff's wife, who had gone to the gate, in a low voice,-not exactly a whisper, but a low voice,-"We are watched;" but the same witness also admits that she, the observer and reporter of this conversation, was at the time at the window of her own room,-a distance, according to her own statement, of from 100 to 150 feet. Except for the letters, there is absolutely ing else on this branch of the case. Such evidence, standing alone, is altogether too feeble to support the inference which the jury seem to have drawn from it, especially in view of the fact that the offense charged against the defendant is a crime,-'-an offense involving moral turpitude. In such casas the rule is well settled that when the evidence is as ble of an interpretation which makes it consistent with the innocence of the accused party as with one consistent with his guilt the meaning must be ascribed to it which accords with his innocence rather than that which imputes to him a criminal intent. Morrisv. Talcott, 96 N. Y. 100.; Jaeger v. Kelley, 52 N. Y. 274; PoUock v. Pollock. 71 N. Y. 137; Crook v. Rindskopj, 105 N. Y. 476, 12 N.E. Rep. 174. ·The only remaining evidence of the elise is that tending to show portunity. Theplaintifl' testified that, suspecting his wife's unfaithfulness, he followed her one morning, accompanied by a young man, a stranger, whom he hired for the occasion. That he saw her enter the Cosmopolitan Hotel, by the !tidies' el)trance. Thereupon he entered the hotel himself, by the main entrance, into the restaurant; thence went to the clerk's desk, looked over the registe,r, to see if he could trace any stated his case to the clerk, who referred hini to the proprietor, found the latter, and, with his permission, accompanied by the' clerk, went upstairs, into the hallway. outside ·of room No. 59. The door of over the top he heard voices No. 59 witS shut, but through the within, one of these voices being that of his wife. He understood what was said, but did not state it, not being asked by either side so to do. He then left the l"eturning, after a considerable time, with a detective and the yoUng They took post in a rOOm adjoining, and, after another long interval, entered room 59, which they found untenanted, the bedclothes tumbled, a' champagne bottle and two wine glasses standing on the table, and his wife's parasol in the fire-place. On his way home that evening he met his wife6n the train. He did not see the defendant that day, except.' at Ramsay's in the evening. With regard to this narrative, two suggestions are pertinent. In the first place, it is testified to only by the plaintiff;' an interested ,witness, he does not seek to corroborate his' :statl;}ments by the evidence ·:of the yOUIig man, the clerk, the register, the proprietor, 61' the detective, nor' does he attempt to account forthe absence ohny of them, except the boy, mfra. In OliftUn v. U. 8.; 4: How. it is said that "ifthe weakerl
and less satisfactory evidence is given and relied on in support of a fact, when it is apparent to the court and jury that proof of a more direct and explicit character was within the power of the party, the Eame caution which rejects the secondary evidence will awaken distrust and suspicion of the weaker and less satisfactory; and that it may well be presumed, if the more perfect exposition had. been given, it would have laid open deficiencies and which the more obscure and uncertain testimony was to conceal." Plaintiff's failure to avail of any corroborative proQf, when such, tor all that appears, was readily producible, requires us to examine this part of his narrative with more than ordinary caution. In the second place, it will be noted that, so far as above set fOl"th, plaintiff's statement of occurrences at the Cosmopolitan Hotel does not implicate the defendant. What is it that connects him therewit.h? The additional statement of the plaintiff that he recognized one of the .voices which he heard through the fan-light as that of George 1. Ryer$on. Though he knew defendant well, he was not particularly intimate with him,-hadllo such acqullintanceship with the tones of his voice all he may be assumed to have had with.those of his wife's. Be):ond .this statement of plaintiff's opinion, however, as to the identity of the voice of an unseen there is not a scintilla of evidence connecting defenda.nt· with the transactions at the Cosmopolitan Hotel on the 11 th of August. Upon this point, as in regard to the letters, plaintiff is the sole witness. To sustain a verdict in such an action as this solely upon the evidence of the plaintiff, who testifies, not to faets, but to opinions, andtoopinions forIl;led at a timEl when his mind was excited, and his judgment prejudiced by the passions of jealousy, shame, and anger, would be <;ontrary alike to reason and authority. This verdiot is not sustained by· the evidence, lllld should be set aside, especially where, as in this. case, it has, perhaps, been induced by matters not in proof. On the third day of the trial, plaintiff, who had endeavored unsuccessfully to subpcena defendant's wife the evening before, called .the marshal to the st"nd, and undertook to prove by him, before the jury, what efforts he had made to find her. This was promptly excluded.> Again, at the close of defendant's case, plaintiff moved on affidavits for leave to reopen his case and to examine a new witness, the young man who accompanied .him to the Cosmopolitan Hotel, and whom he had not called. in chief. This was refused, on the ground that it ltPpeared by the plaintiff's own statements, and by the city directories, that he might easily have procured the witness' attendance by the first day of the trial.. So, too, plaintiff was, on the objection of defendant's counsel, refused leave to reopen his case by recallipg witnesses, and examining them, llsto new matter not developed on cross-examination. The results of all th13se applications were before the jury, and, no doubt, led to suppose that testimony damaging to the defendant was thus kept out of the case by,hisobjection. Beyond the statement. that they "might not draw inferenCE!S without actual facts to support them," the jury were not specially cautioned against giving any weight to supposed testimony. ;not before them, the court assuming that they possessed a
higher degree of intelligence than they seem to have displayed; and this extraordinary, verdict may find its possible explanation in a prejudice excited by defendant's insistence on a strict application of the rules of proof. By whatever cause it was induced, however, it is clearly not sustained by the evidence, and should be set aside. Allusion was made upon the argument to the denial of defendant's motion to take the case from the jury upon the whole proof. Counsel refer to a rule familiar to state practice, viz., that where the court would set aside a verdict if against the defendant, it should nonsuit when asked so to do. A nonsuit in a state court and a direction of a verdict for defendant in a federal court, however, do not leave the plaintiffin the same position. In the one case he can pay up his costs, get together more evidence, and sue again; finding in the nonsuit no bar to his recovery. To such new action, however, the judgment entered upon direction of a verdict in a federal court would be a bar. Insurance Co. v. Broughton, 109 U. S. 121, 3 Sup. Ct. Rep. 99; Dscanyan v. Arms OJ., 103 S. 261. In· denying the defendant's motion to direct a verdict in his favor. it was stated that such denial was induced by the consideration that the defendant was not thereby irreparably prejudiced, the'motion for a neW trial securing him against any wrong from 8 verdict founded 'on insufficient proof. At the same time, it appeared to the co'urt that, in view of the suggestion of additional proof made on the motion to reopen the case, it would be unfair to the plaintiff to prevent him from going to a jury either in this case or in any other. He might have been irreparably injured by the direction of a verdict. Let the verdict be set aside.
PREBLE t1. BATES
(Olrauft Court, D. Ma8sachusett8. December 10, 1889.)
1. BILL OJ' EXCEPTIONS-IN FEDERAL A bill of exceptions, so far as regards the iluty of the attorney taking ft, should be considered as Jiledwhen taken to the clerk's office and placed in the hands of the proper ofticer for filing. The form of indorsement placed 'on it by the clerk is immaterial. '
Rev. at. U. S. 5 914, requiring the pleading, practice, and forms in the circuit court to conform as near as may be to those of tlie courts of the state in which it is held, does not govern the preparation and perfecting of a bill of exceptions. in re Iron 00., 9 Sup. Ct. Rep. 150, followed.
SAllIE-TIME OF PERFECTING.
In the federal courts the rule is that the bill of excevtions must be signed at the term in which judgment was rendered, not the term at which trial was had. ,
Samuel Hoar, for defendants.
COLT, J. The question now before the court is whether a bill of exceptions. can be allowed in; this case. A .verdict was rendered' for' the
Btttler, for plaintiff.