AETNA LIFE INS. CO. V. TOWNSHIP OF LAKIN.
AETNA LIFE INS. CO. v. TOWNSHIP OF LAKIN. (Circuit Court of Appeals, Eighth Circuit. January 29, 1894.)
No. 229. PRACTICE-N ONSUIT. Plaintiff has a right, In Kansas, by the express terms of the statute, (Code Clv. Proc. Kan. § 397,) to dismiss his action without prejudice at any time befOle its final submission to the jury, or to the court where the trial is by the court.
In Error to the Oircuit Court of the United States for the District of Kansas. This is an action on certain coupons detached from municipal bonds, by the Aetna Insurance Company against the township of Lakin, in the county of Kearney, state of Kansas. The case was dismissed, on motion, and final judgment rendered for defendant. This ruling of the circuit court is now assigned for error. W. H. Rossington, Oharles Blood Smith, and Everett J. Dallas, for plaintiff in error. F. P. Lindsay, orally, for defendant in error. Before CALDWELL, Circuit Judge, and THAYER, District Judge. CALDWELL, Circuit Judge. The record shows that, when this cause was called for trial in the court below, "the plaintiff announced that it was not ready for trial, and could not be ready for trial herein during the present term of this court, and asked permission to dismiss this action, to which the defendant objected for the reason that under the pleadings herein the defendant was entitled to judgment in its favor, which objection of the defendant was by the court· sustained." The case was thereupon dismissed, and a final judgment rendered in fav91 of the defendant. This ruling of the court was duly excepted ''to, and is here assigned for error. The suit is founded on interest coupons cut from negotiable bonds which the plaintiff alleges were issued by the township of Lakin, in the county of Kearney, Kan. The answer contains six paragraphs. The plaintiff replied to the first five, and demurred to the sixth, and, upon the demurrer being overruled, filed a reply to that paragraph. The filing of this reply seems not to have been known to the court at the time the action was dismissed. . It is contended that the reply is not sufficiently specific in its denials of the averments of the answer. It denies "each and every, all and singular, the allegations and averments therein set forth and contained." If the defendant conceived this reply was. not sufficiently specific in its denials, it should have attacked it by motion or demurrer, according as the one or the other of these modes may be proper under the practice that prevails in that state. It could not be treated as a nullity. . Upon the state of the pleadings, the plaintiff had an undoubted right, under the Code of Kansas, to dismiss its action when it was called for trial. That Code provides that "an action may be dismissed without prejudice to a future action: First, 'by the plain-
:fl.nal ,8ubmissionof.the case .to the jp.ry, or to the court, tiff before where the trial is by th.e court. ' *" Code Civ. § 397. The supreme court of that state Jil.ave uniformly held that under this section the plaintiff may dismiss his action at any time before its final submission to the jury or court. McVey v. Burns, 14 Kan. Weaver, 20Kan. 294; Amos v, Association, 21 Kan. unnecessary. to what the rule. is in the abo sence of a statute, though we may remark that no case has been do not one can be found......,which questions the right of' the: plaintiff to dismiss his action at the stage at which the pla,intiff in error asked leave to dismiss its suit. The lndgment of the circuit co'urt is reversed, and the cause is remand,ed for further proceedings therein according to law.
REILLY v. OAMPBELL et al.
(Circuit Court of Appeals, Second Circuit.
MASTER AND SERVANT-NEGLIGENCE-DEFECTIV1'l ApPLIANCES-EvIDENCE.
for Inj1U'les suffered by him, while in defendant's· em· ploy, ,through the breakJ,ng of the handle of a ladle In which he and another' were carrying molten metal. The ladle had been used for the same/purpOse for 15 years,but there wa.!l iio evidence as to Its condition .at tAAi;tlme.of the Held, that it was proper to direct a verdict in the abs.ence of any showing that there was In the ladle Rn.obvloull ijefect, or one which defendant would have discovered by the exercise ot due care.
In ijf,rqr to the Circuit Court of the United States for the South· ern Distric:tof:New York. Action'by Frank ReHlY igainst Andrew J. Campbell and William H. Van Tassel. The trial court directed a verdict for defendants, and plaintiff. brings error. Judgment· affirmed. L. E.Ohittenden.and John C. Robinson, for plaintiff in error. Hamilton. Wallis, for defendants iii error. . LACOMBE, and SHIPMAN, Circuit Judges. WALLACE; Circuit Judge. The was for personal injuries received· by the plaintiff through the alleged negligence' of the defendants.. It appeared upon tile trial that the plaintiff, while working as a laborer for the defendants, who were ironm.olders, was severel,. :injured by reason of the breaking of the handle of a ladle containibgmolten iron which, in the course of his duties, he was assistiqg to carry from one. part of the defendants' premises tqanother; "'l'he only evidence as to the circumstances of the accident was that, while the plaintiff and two other men were carrying the ladle in the customary way, one of the handles sud· denlybroke1 and the molten metal was spilled upon the plaintiff. No evidence was offered in respect tO,the condition of the ladle at the time of,' or 'previous to, the accident, except proof that the ladle