i", .. l
with train No. 13, and damaged the plaintiff in the of $2,001 by inflicting persoMI injuriea'tlpon>bioh Thenegligende of the engineer and conductor of train 14 was the proximate cause of the accident, and they were the telegraphic order, liildletlving Marshall Junction before train No. 13 metandpassed them. Upon these agreed facts the courL below ordered judg6.1kti'tfor the plaintiff for the stipulated damages, to Judgment pursuant t(Mheorder, to reverse whichthis writ of error was sued out. The 'ill in ordering ju(jgment for the
' . John O. Bullitt, Jr., and Tilden R. Selmes, for plaintiff in error. O. Wellington and W.:WlErwin, iMdefendant in error. Before CALDWELL and SANBORN, Circuit Jndges, and SRIRAS, District Judge.
Judge, ,after stating the facts as above, delivered the opinion of ,the court. The facts in this case bring it clearly ;within the decision of the premecotirtin Railroad 00. v. Ross,H2 U. S. 377,5 Sup. Ct. Rep. 184, and the judgment below is affirmed, with costs.
'CENTRAL RAItROAD OF NEW JERSEY t1. STOERMER.
(Oircuit Court oj'Appeals, Second Oircuit. JUly 2O,1S92.)
. In an acMon against a rliilroad company for personal injuries to plaintiff, an averment in' the com.plaint that one of defendant's trains, at the' place where plaintiff was elDployed, was suddenly started by defenliant or its agents, without notice to plaintiff, causing tbe inju,rias cQmplained of, was controverted by a general.denial, but aO'avarment tbat defendQntwas, at the' same time and place, "operating a railroad," was expl'essly it appe,ared in proof that only one railroad was being operated at tbat time and place. Held, tbat defendant could not be permitted to contend that tbe railroad was D<lt operated by itself. It. !'ER80N4L lNroI;\Y-:,FELLowBIRV.lNT-N'EGLIGBNCE. While a qoal train of qefe\l4ant railroad company, wbose tracks ran over tbe docks of a coal company, wall delivering coal to the latter company, a brakeman of the coal company, engaged in' coupling cal'S 011 tbe train, was injured by the negli. gence of defendant's engine\lr.Held, that 8!Jchengineer was not a fellow employe of the iRjured brakeman, hen.ot being under the power and direction of the coal QQmpany. engaged exclush',ely.in doin/.f its work or "lent" to it for the occasion. EWlln v. Lippincott, 47 N. J. Law,192; Johnson v. BQston,US Mass.n4; Rourke v, White M08s Colli.erll 00., 46 Law J. C. P. 288,-distinguished.
Error to the Circuit Conrt of the United States for the Southern District of New York. : Action byPatll O.lkSt6ermer against the c,entral :Railroad of New Jersey. Judgment for plaintiff. Defendant appeals. Affirmed. This action was brought by Stoermet, 8. brakeman in the employ of the Lehigh &Wilkesbarre OoalCompanyat Bergen point, N. J., to raco\"er damages :for personal iqjuriesalleged to have been sustained by
CENTR....L R....lLMAD "OF NEW JERSEY II. STOERMER.
negligence oOhe Central Railroad of New Jersey.. The particular neglP gencealleged consisted in starting a train of coal cars without notice or warning to the plaintiff,who was'at thetirrie engaged in coupling. I The usual course of business, was that pla:intiff) upon a signal fromtheengineer, should step in between two cars to ,couple, or unoouple them, and, having done SO, should step back and indicate by a signal totheengineer that all was ready. ' Until such signalwas.given, the engineer was not to start the train. On this occasion itwasclaimedthat the engineer started the train before the plaintiff gave such signal,and ;the plaintiff sustained severe injuries in consequence. The road was at the timein the hands- Qf receivers. Plaintiff recovered a verdiot in the court below, and a writ oferror was duly aHowed. The, other facts, so far as they are material to the points decided,are sufficiently set forth in the opinion. Robert W. DeForest,for plaintiffin error. Leopold :Leo, for defendant in error. Before L....COMBE and SHIPMAN, Circuit Judges. L.... COMBE, Circuit Judge. Upon the record in this case the plaintiff in errOf IS not entitled to claim that the trial court erred in refusing to direct a verdict in its favor on the ground that there was no prooiof negligence on its part because its road was at the time operated byreceivers. The second paragaph of the complaint alleged, in "on April 4, 1887, while plaintiff was employed at Bergen Point, New Jersey, by the Lehigh & Wilkesbarre Coal Company, one of the trains of the defendant, at the point or place where plaintiff was so employed, was suddenly started by defendant or its agents, without notice or warning to the plaint,i,fi', while the plaintiff was lawfully between two cars of said train," causing the injuries complained of. The averments of this paragraph are controverted by the general denial in the answer, and, if there were nothing else in the pleadings, would fairly present an issue whether or not the railroad by whose operation the accident was alleged to be caused was in fact operated by the defendant at the time. But the whole pleadings are to he construed together; and the complaint also averred the defendant was at the time hereinafter in its first paragraph mentioned * * * operating a railroad, among other places, at the point or ,place where the plaintiff was injured." This allegation defendant expressly admitted. '1t must therelore, for the purposes of the action, be taken as true, (Code CivilProc. N. Y. § 522; Dnnham v. Cudlipp, 94 N. Y. 129;) and when it appeared, as it did in the proof, that only one railroad was being operated aHhe time and place of the accident, defendant aannot be permitted to contend that it was not operated by itself, but by some one else. Under these pleadings, plaintiff:came into court to sustain by proof the affirmative of no such issue. It is as!:'ign,ed as error that the trial judge refused to directa 'Verdict in favor of the defendant on the ground that "the negligence, if there be such, wa8the negligence of fellow servants." The accident happened upon the dock of the Wilkesbarre Lehigh Coal Company at
Bergen Point, over which run' tnettracks of the Central Railroad of New Jersey. The negligence which paused the accident :was that of PaUlman, the engineer. He was selected, appointed engineer, and placed,jn charge of this engine by receivers of the plaintiff in error, and received his pay from them. . The proof does not sustain the contention :of the plaintiff in error that hig service had at the time been transferred from to the coal company. The business he was' engaged in was delivering .ooal from the main line of the railroad company to the coal company upon its dock by the operations of defendant's·railroad. This was the business of the railroad company, and he remained its servant,'although an agent of the coal company exclusivelydirected whenandwbereabouts on the dock the cars should be dumped, what cars should be brought in and taken out. As the defend· antin error was exclusively in the employ of the coal company, the engineer was not his fellow servant. The case is to be distinguished from Ewan v. Lippincott, 47 N. J. Law, 192; Johnson v. BOBton, 118 Mass. 114; Rourke v. White MOBS Colliery Co., 46 Law J. C. P. 283-by the circumstance that the proof does not show that the engineer was, under the power and direction of the coal company, engaged exclusively in doing its work, or hired by it from his original employers, or "lent" to it to perform its wprk. The question as to whether plaintiff's own negligence contributed to the accident was properly left to the jury, and their find· ing is conclusive. Judgment
SMITH fl. PREFERRED MASONIC MUT.
(Circuit Oourt, D. Indiana. JulS 13, 1892.)
A certificate. of membership in a mutua.l accident association provided that "any olaim under this certifioate· shall, if the association require it, be referred to arbitration, * * * and 00 suit or proceeding at law or io equity sball be brought to recover any sum under this insurance, unless the Bame shall be commenced after 90 days, and not later than .one year," aftet' the alleged accident. that the arbitratipnclause constitutes no condition precedent, aod cannot be pleaded io bar or abatement in a suit 00 the certificate; such olause not ousting the court of jurisdiction, but simply referring the question of the ;)f to arbitration.
CLAUSE IN POLICy-EF.e'ECT ON JURIBDICTION.
At Law. Action by Mary F. Smith against the Preferred Masonic Mutual Accident Association. Judgment for plaintiff on demurrer to the answer. S. M. Shepard, for plaintiff. OhaJr1e8 Martindale, for defendant.
BAKER, District Judge. This is an action on a certificate of member· .ship· ina mutual accident association·.''The defendant answers in abate-
SMITH V. PREFERRED MASONIC MtJ'r. ACC. ABS'N.
ment. The answer alleges that among the covenants and conditions in the certificate in suit, which is copied in full in the complaint, is the one which follows: "(I) Any claim under this certificate shall, if the association require it, be referred to arbitration; the board of arbitrators to be composed of not less than three, nor more than five, master Masons in good slanding. an equal number to be selected by the association and the claimant, the other member to be selected by the arbitrators; such arbitration to be held at the "mce of the association at Detroit, Michigan, the eXpeDi'le thereof to be borne equally by the association and the claimant; and no suit or proceeding, at law or in eqUity, shall be brought to recover any sum under this insurance, unless the same shall be commenced after ninety days, and not later than one year, from the time of the alleged accidental injury." . The answer further alleges that the defendant notified the plaintiff that under said clause it required that the claim of the plaintiff should be submitted to arbitration, and the defendant requested the plaintiff to unite with it in selecting arbitrators and arranging the time for holding the arbitration. It alleges that the plaintiff accepted said request, btit before the arbitrators could be appointed she withdrew her consent, and refused to submit her claim to arbitration. It also alleges that the deiendant ·has always been, and is now, ready and willing to submit the question of its liability to arbitration, as provided in said certificate, and to abide by and pay any award that such arbitrators should make. To this answer the plaintiff demurs, alleging that it does not state facts sufficient to constitute a cause of action in abatement. The condition above quoted provides that" any claim" under the certificate shall, on the request of the association, be submitted to a board of arbitrators for decision. It is difficult to determine whether the condition should "be construed as requiring every question of liability and damage to be so referred to arbitration or not. The language is broad enough to justify such construction. The frame of the answer indicates that the pleader so understands it. But such a construction ought not to be adopted as will render the clause illegal. Contracts ought to receive such a construction as will give effect to the langnage employed. To hold that this condition required every matter of difference between the parties to be submitted to arbitration would render it illegal. It has been decided in many cases that parties cannot by contract oust the courts of their ordinary jurisdiction. After a careful review of the authorities, Bacon, in his work on Benefit Societies, (section 450,) says; .. It is a settled principle of law that parties cannot by contract oust the courtll of their jurisdiction, and agreements to refer to future arbitration will not be enforced in equity, and will not be sustained as a bar to an action at law or a suit in eqUity." The principle is applicable to courts of equity as well as in courts of law: "And where the stipulation, though not against the policy of the law, is an effort to divest the ordinary jurisdiction of the common tribunals of justice, Stich as an ·agreement, in case of any disputes, to refer the sallie to arl:ii· trator8, courts of equity will not, any more than courts of law, interfere to
.enforGe: th!lt agreement, but th,ey' wi;ll Jwwe the parties to their own pleasure .in. regard to suchagreetl;lents. The regulm; at;lruinistrationof jnstice might be greatly impeded or interfered with by such stipnlations, iOt,ey were specificallyenforced. And, at all events, conrts of j uslice are ptes iiln ad to be bet· ,ter ,of'adininistering &nci,enforeing .the rights of the pat'ties than anrmeve.prWate1l.rbitrators, as well from thelrsu!Jerior kno:wtt'dge as their superior mean.: of sHtingthe controversy to the bottom." 1 Story, Eq. Jur. § , , 'tbe caSes ,announces. the ,doctrine. Scott v. Avery,5U. L. Cas. 811; IfMU'I'ance ,Co. v. Morse, 20 Wall. 445; Reed v. Insu,rance 00., 138 Mass. 572; Badenjeld v. Asaociation, 154 Mass. 77, 27 E. Rep;'769; Hobbs v.l'MUrance Co., 56 Me. 421; Mentz v. Insurance Co., 79 Pa. St. 478; Supreme Councilv. FO'I'singer,125 Ind. 52, 25 N. Rep. 129. Giving a narrow construction to the in question, and treating it as a,stip'Illation not ousting the court of its ordinary jurisdiction, but simply as referring the question of the amount of. less or damage to arbitra.tion,it may be held valid. I think the condition ought to receive .such a constrUdion. Thus construed, is the clause a condition precedent,-one..whichmust be performed, if requested by the defendant, hefore a suit can be maintained,-,or is it an .independent. covenant, for whose.breach damages may be recoveted in an independent action, but which cannot he pleaded in bar or abatement. of a suit .on the certificate? It seems to me plairily to belong to the latter class. Where the contract provides in terms, or by necessary implication, that the money secured by the policy of insurance is not to become payable until tbe amount 0008&:01', damage hasbe.en determined by the award of arbitrators, no action can .bemaintained until such award has been made or waived. III such case the making or the waiving of the award becomes a condition precedent to the accruing ofthe right ofaction. Such is the principle on which the case of Hamiltonv. Insurance Co., S. 242, 10 Sup. Ct. Rep. 945, is decided. The court there says: "The conditions of the pOlicy in suit clearly and unqu Ivocally manifest the intention and agreement of the parties to the contract of, insurance. that any .9tfference arising between tpemas to tbe amount of lOllS or damage of the property shall be s.ubmltted, attlle request in writing of either party, 'tqtM appraisal of and impartial to chost'n as therein provided, whose award shall be conclusIve as to theair10unt of such loss or damage only, and shall not determine the question of the liability of the company: that the compaIiyshall have theright. to take the: whole or any part of ,.t.4e property at its appraised ,value .so, and that until such an appraillslsl)sll hav.e aud lluQhan award obtained, the loss shall Jlot be payable, and IlO shall against, the The appraisal, when requested in writing by either party. is distinctly made a condition precedent to the payment of any loss, and to the maintenance of any action. "
186JU. S. 254, 255, 10 8up.Ot. Rep. 949. '
The clause in the c.ertificate at bar doesnot in terms, or by necessary 'c:ondltion', pr¢cedent to the maintenance .of /lny actlon. It 18 ,8\'1. tp the effect, of a refusal by the assured. to arbitrate. The courti()ugOtinottorea.d,into it a oondition not written
therein by the parties, which shall operate to oust the court of its ordinary jurisdiction. In the case of Hamilton v. Insurance Co., 137 U. S. 370, USup. Ct. 133, the policy in suit provided that"In case differences shall arise touching any loss or damage after proof thereof has been received in due form, the matter shall, at the written request of either pilrty, be submitted to arbitrators, wllOse award in writing shall be lJinding on the parties as to the amount of such loss or damage, but shall not decide the liability of the company uuder this policy." It was held that the refusal of the assured to perform this condition did not preclude the maintenance of a suit by him; that to have such effect the policy should have further provided that llO such action should be brought until after the award. To the same effect are Crossley v. In-8'Urance Co., 27 Fed. Rep. 30; Reed v. Insurance a>., 138 Mass. 572; Badenjeld v. Association, 154 Mass. 77, 27 N. E. Rep. 769. Counsel for the defendant has called the attention of the court to the case of the Chippewa Lumbera>. v. Phenix Ins. a>., 80 Mich. 116, 44 N. W. Rep. 1055, and the case of Morley v. Insurance Co., 85 Mich. 210, 48 N. W. Rep. 502. as holding a contrary doctrine. In this claim counsel is mistaken. In the first of these cases the policy of insurance ex· pressly provided that "the amount of loss or damage shall be ascertained by arbitration, and shall not be payable until it is so ascertained by arbitration, and that such arbitration shall be a condition precedent to bringing suit on the policy." It was held that this condition was reasonableand valid, and that no suit could be maintained until the conditionbad been performed or its performance waived. It is clear that the court would have reached a different conclusion if the language in the policy before it had been similar to that in the certificate under consideration. The condition in the policy in the case last above cited provided that the money secured by it should not become payable until the amount of the loss or damage should be first ascertained by the award of arbitrators. The court followed the doctrine ann01ilnced in its former decision. It follows that the answer in abatement is insufficient. Let the uewutltlf be sUlitaineu, with leave to thl!l d\Jfenuunt to alllSWtJl over.
THE MIRANDA.. UNITED STATES 11. THE MIRANDA.
(C(rcuU Cowrt of .AppeaZ8, Second Circuit. JUly 20, 1891.)
SHIPPING-LIGHT MONBr-FoBBIGN-BUILT VBSSBL-COLLBCTOB's CEBTIJ'ICATIL
A unregistered vessel, which, carries a collector's certificate tbal the ,)wner Is an American citizen, and that the, bill of eale tor such vessel Wall 'lalid and duly recorded- In the United States custOmhouse, Is In possession of such 1'l1gular document as Is required by Rev_ St. 5 and exempt trom payment ot light. Rev. St.. S4225, 011 entering a port or t.he Unit.ed States. 4.7' Fed. Rep.