tlie mortgagee should not suffer for any act or neglect of the mortgagor or owner of the property. Consequently, if the mortgagor obtained more insurance than he was entitled to, it was his own act, and could not affect the rights of the mortgagee: The fact that th'e 'policies were in the possession of the mortgagee did not make him a party in obtaining any excess of insurance which may have ex· isted. With respect to the Concord policy which the evidence tended to show was obtained by the mortgagee or plaintiff, trustee, we think the court was right in charging the jury that, if such insurance was taken out at the request of the mortgagor, it would be his act, and not the act of the trustee; and, further, if they believed it was the act of the trustee, and that at the ime of issuing such policy the whole amount of insurance then existing, including the policy in question, did not exceed the amount permitted, it could not invalidate his claim under this policy. Upon the whole, we can find no error in the court below, and it follows that the exceptions must be overruled, and judgment affirmed.
COAL CO. v. BEVIL et at (Circuit Court ot Appeals, Eighth Circuit. No. 349.
IlmUN WRONGFUL ACT. STATUTES IN FORCE-ACTION FOR DEATH BY
May 21, 1894.)
Under Act May 2, 1890, § 31, which extends over the Indian Territory, certain laws of Arkansas, as published In Mansfield's Digest, "which are not locally Inapplicable or In confiict with this act or with any law of congress. relating to the subjects specially mentioned In this section." enumerating chapters of said digest by title and number, among them "Plead· ings and Practice, chapter 119," section 5225 ot that chapter, allowing recovery of damages for death by negligence, cannot be excluded on the ground that it does not relate to pleadings and practice, as the intent was to adopt the provisions of the enumerated chapters as a whole. unless they were locally inapplicable, or in conilict with the act or some other existing act of congress.
CONDUCT OF EMPLOYE IN PARTICULAR
OPINION EVIDENCE -
Testimony that the conduct ot an employe In a particular line ot duty, in which he had been engaged but one day, was very Imprudent, given by a witness who had very little opportunity to observe his condllct In that capacity, without detailing the facts on which such opinion was predicated, Is incompetent to show that he was lmflt to be so employed because of his carelessness. "
In Error to the United States Court in the Indian Territory. This was an action by Etta Bevil and others against the Ardmore Coal Company for damages for the death of Henry Bevil. At the trial the jury found a verdict for plaintiffs. Judgment was entered thereon. Defendant brought error. W. A. Ledbetter, for plaintiff in error. W. B. Johnson, A. C. Croce, and Lee Cruce, for defendants in error. Before CALDWELL and SANBORN, Circuit Judges, and THAY. ER, DiMtrict Judge. "
vol. 61. .
T;HA.YER, DiatrictJndge. was a suit brought by .EttaBevil and her three minor, children against .the Ardmore Ooal OompQ.nyon account of the death ofher husband,Henry Bevil,. who walJ killed while working for .the defendant company at its the Indian 'l'erritory.. The complaint averred, in sub· stance, .that as the deceased was engaged in loading one of the defendant's coal cars with lumber, at the mouth of a shaft or tunnel whi<!hbi!d.l into one of the company's coal mines, he was run over to the defendant,which had and. killed ,by another car been carelessly unlQosed from its :fastenings and suffered to run downatl'UDiway which led to the mouth of the shaft where the deceased: was working. The defendant company hadin its employ a man.by,the name of James Peers, who at the time of the accident was, and. ,for' one' day previously had been, engaged as a car rustler. His duties . appear to have consisted in hooking and unhooking a cable by means of which cars were drawn out of the mine or lowered into it.uTheshaft descended into the mine to a considerable depth, and at an angle of fllom 30 to 40 degrees. It was provided with a double-track railway or tramway, one of which tracks was used for drawing cars out of the mine and the other for lowering them into the mine. As we gatherfrom the testimony, it was the duty of the car rustler to stand on an elevator platforl:ll, at or near the . mouth of \the" shaft, and to detach the cable from loaded coal cars as they were drawn upon the elevatoJ' platform to be dumped, and to. attac9f cable to empty asthey were lowered into the mme. BeVIl" and Peers were eVIdently fellow servants, but the complaint charged as a ground for recovery that Peers was a careless and. reckless. man, that he was indifferent to the safety of his fellow employes; that the defendant company knew or might have known t;tIathe was an unfit.man to aetas a car rustler by reason of his habits of negligence, and that the death of the deceased was in fact occasioned by the careless conduct of said Peers at the time of the accident. Oonflningourselves to the points discussed in the briefs of coun· sel, it is necessary to refer briefly, and in the flrst instance, to the conten.tion of counsel "that in the Indian Territory no cause of action survives in favor of anybody for injuries which result in death." This proposition is based on a higl),ly technical construction of the act of congress of May 2, 1890 (Snpp. Rev. St. vol. 1, pp. 733, 734), which extended certain general laws of the state of Arkansas over the Indian Territory. Section 31 of that act declares:
"That oortain general laws of the state of Arkansas in force at the close of the session of the.gel)l!ral aSSE11llqly of that state of 1883, as published in 1884, in the volume kno)VD. as Mansfield's Digest of the Statutes of Arkansas, which are not loeally Inapplicable ol"in conftlct with this act or with any law of conrelating to ,tbe subjects specially mentioned in this section, are hereby extended over and put in force in the Ipdian Territory until congress shall othll!:wise provide, that is to say: The provisions of the said General Statutes of Arkansas relating to administration, chapter one," etc.
Then follow's a particularenumeratlon of: numerous other chapters of Mansfleld?s,Dtgest, embodying 'general1aws, which are referred to and described by the number of the chapters and the title thereof
ARDMORE COAL CO. fl. BEVIL.
as they are numbered and entitled in Mansfield's Digest publbhed in 1884. Because section 31 above quoted contains the phrase, "relating to the subjects specially mentioned in this section," it is argued that when a chapter of Mansfield's Digest is subsequently referred to by its number and title in the following manner, "Pleadings and Practice, chapter one hundred and nineteen," no provision found in such chapter is extended over the territory unless, upon a critical view of the provision, it is found to be properly classified as a law relating to pleading and practice. In other words it is insisted that congress did not intend to approve the classification which the learned author of the Digest had seen fit to make, or to adopt the several enumerated chapters of the Digest as a whole, but that it merely intended to exteud over the territory such provisions of law found therein as properly related to the subjects designated by the titles of the several enumerated chapters. It so happens that Lord Campbell's act, as re-enacted in the state of Arkansas, is section 5225 of chapter 119 of Mansfield's Digest, which chapter is entitled, "Pleadings and Practice," and it is contended that this section was erroneously classified under that title, as it does not relate to pleading and practice, and for that reason that the provisions contained in section 5225 were not extended over the Indian Territory by the act of congress aforesaid. We think that the process of reasoning by which the foregoing result is attained is alto.gether too technical and refined to deserve much consideration. We have had some difficulty in stating the contention in an intelligible form, as well as the substance of the argument by which counsel seek to enforce it; and this is perhaps a sufficient reason for rejecting the construction for which counsel contend. In construing a statute like the act of May 2, 1890, it is generally safe to reject an interpretation that does not naturally suggest itself to the mind of the casual reader, but is rather the result of a laborious effort to extract from the statute a meaning which it does not at first seem to convey. It is apparent, we think, that congress intended to extend over the Indian Territory all of the provisions that are found in the several chapters of Mansfield's Digest, which are enumerated in section 31 of the act of May 2, 1890, unless they were locally inapplicable, or were in conflict with the act of May 2, 1890, or with some other existing act of congress. The phrase, "relating to the subjects specially mentioned in this section," is tantamount to the expression, "hereafter more particularly mentioned and described in this section." Congress intended to put in force in the Indian Territory all of the general laws contained in the several chapters of Mansfield's Digest which are designated in section 31 of the act of May 2, 1890, by number and title. It certainly did not intend to make the existence or nonexistence of a law to depend upon the question whether it was published under a title which correctly indicated the character of the law. It follows, therefore, that no error was committed by the trial court in overruling the motion to exclude all testimony on the ground that the complaint did not state a cause of action.
It assigned for error that the trial court erred in permitting, the following question to be propounded tp one D. H. Collier, who 'Was the father of, and .the principal witness for, the plaintiff Etta Bevil: "Did or not James Peers, jn operating the cars as car rustler,. act in a prudent or imprudent manner while he was operating the cars as car rustler for the Ardmore Coal Company?" The witness answered the question as follows: "He did not rustle 1;hem correctlY,and wa.s very imprudent." It is manifest, we think, after a careful perusal of the entire record, that there was .no evidence before the jury tending to show that Peers was a careless or reckless man except the testimony of Collier in the answerabove quoted; and ,it is also manifest that, in the absence of such testimony, there was no evidence to support the verdict for '12,000 which the jury eventually rendered against the defendant companyJ It must be conceded that the' judgment rests wholly upon the opinion expressed by Collier in reply to the question above mentioned. It may also be said that it appears from the uncon. tradicted 'evidence in the case that Peers had only served as a car rustler for one day previous to the accident, and that Bevil was injured early in the morning of the second day on '¥hich Peers served in that capacity. Moreover, we do not find any explicit testimony in the record 'showing for, what length of· time, if any, Collier had obserVed Peers' conduct as a car rustler, or that he had in fact had any opportunity to obseI!ve his conduct in that line of duty, except as itmay be inferted that he had had some opportunity from the fact that he assumed to express the aforesaid opinion. It does 'appear, however, that Collier, Bevil, and Peers had worked together in the shaft of the mine, in the discharge of varions duties, for about 15 daxs prior to the accident, and it is most probable, we think, that whatever opinion Collier had formed with reference to Peers' competency as a car rustler had been formed while Peers was employed in another and entirely different line of duty. It should be further observed that the evidence fails to show that the occupation of a car rustler was one requiring either a high degree of skill or .experience. On the contrary, it is evident, that the duties pertaining to thltt occupation were exceedingly simple, and that any commOn laborer possessing ordinary sense would be able to discharge them in an efficient manner. Under these circumstances, we are persuaded that the trial court erred in' overruling the defendant's objection to the above-mentioned queStion, and that such error is of sufficient importance to entitle the defendant company to a new trial. . We do not question .the general rule that witnesses may give their opinion concerning the general character of a person for prudence or carelessness, when an issue of that kind is raised by the pleadings. To avoid the trial of numerous collateral issues concerning the conduct of a person On particular occasions, it is competent for a witness to give the result of his observation of a person's general conduct, 'with .respect to his being negligent or otherwise, provided always that the witness has had a fall' opportunity to observe
ARDMORE COAL dO. V. BEVIL.
his conduct. Frazier v·.Railroad Co., 38 Pa. ElL 104, 110; Gahagan v. Railroad Co., 1 Allen, 187,190; Railroad Co. v. Rambo, 8 C. C. A. 6, 59 Fed. 75. The rule in question, permitting -witnesses to give their opinion on such questions, rests largely upon grounds of convenience and necessity. But in the present case the question propounded was not framed with a view of eliciting an opinion from the witness as to whether Peers was generally, by disposition and habit, a careless person, and for that reason unfit to be trusted in the discharge of duties which required the exercise of care and discretion. The question had reference to his conduct in a particular line of duty, which he had only followed for one day prior to the accident. The witness was asked whether Peers acted in a prudent or imprudent manner as a car rustler, not whether he w,as generally a prudent or imprudent person. This question was also asked under circumstances which rendered it evident that the witness, at best, had only had a very meager opportunity to observe his conduct as a car rustler, and that he was probably a prejudiced witness in view of his relationship to the plaintiffs. Under these circumstances, Collier was practically permitted to say that, in his opinion, on the particular occasion when Bevil was hurt, Peers had acted in an imprudent manner, and to make this statement without detailing the facts upon which his opinion was predicated so that the jury might judge of its reliability. But, even if it be conceded that the question propounded was not objectionable because it confined the witness' attention to Peers' conduct in a particular line of duty and during a single day, rather than to his general character for prudence or imprudence, still it is ev.ident that no sufficient foundation was laid for permitting the witness to answer the question, even in the form in which it was propounded. Collier was not shown to have had a sufficient opportunity for observing Peers' actions while in charge of the car elevator to entitle him to pronounce judgment with reference to his general conduct in that line of service; Even if it should be conceded that the jury might infer from the fact that a coal car broke loose, rushed down the incline, and ran over Bevil, that it so broke loose through some culpable neglect of Peers, as to which propositio:Q. we express no opinion at this time, yet in the case at bar it was not sufficient to show that Peers was guilty of a single act of negligence that had resulted in the death of the deceased. It was necessary for the plaintiff to prove, or to produce testimony tending to prove, that Peers was an unfit person to be employed in the service in which he was engaged at the time of the accident, because of his careless or reckless habits, and that this fact was known to his employer, or that it ought to have been known. The only evidence offered tending to show that he was a careless man, and unfit to be so was the opinion expressed by Collier, and that was incompetent for the reasons heretofore stated. Wherefore the judgment must be reversed, and the cause remanded, with directions to award a new trial. It is so ordered.
(CIrCuIt 09w:t of Appeals,. Tl!.ll"dClrcu1t. May 21, 1894.)
'Al'I'D STRlIlIllT. lUILROADS-
. in a,n, against a street-car COlnp;my for injury caused by a c<>ijfslon, de'ten!1ant asks an ins'tructlon to the effect that, If plaintiff stOiltred his horse near the car, ana the car theIi started with the horse inli:poslLion of safety, and the horseoecame unmanageable from having bElen'll(lll.red by the ri,nging of t;P.egong, and,jumped in front ,of the car before it could be.stopped, this would not be negligence, it is proper to modify the, In.\ltructi0ll: by adding that if the hprse was in a state of alarm, and the gong 'was rung "'VIolently, and so to the horse as to .produce greater alarm, and caUSe the accident, th8.t:m1ght be negligence.
InEmr to the" Circuit Court dfthe United States for the East· ern of ', ' A<;tion by JohnA. Ligl?-tcap against the Traction Gompapy forpersbnal injuries. Plaintiff obtained judgment. Defenda,Jit'1?nngs error. ' Thoma.sLeaming, for in,error. S. Mo,rris WaIn llnd John W. Westcott, for defendant in error. Before AOHESON, Oircuit Judge, and BUTLER a,nd GREEN, District Judges. BUTLER, District Judge. The plaintiff belo'w, Lightcap, sued forinjlldes sustained by a collisiQnwith the defendant's cars, while its tracks on Market street. His statement avers that he wasdrivin,g, up Eleventh street, on March 24, 1893, and that on reaching Market street, and seeing it was ''blocked with wagons, he stQppedon the side until he4;\ould get an oppor,tunity to cross; that wb.en he saw he could croli!lS ill safety, and was ordered by a policeman to proceed, he drov;e on, and, when. he reached the railroad tracks he was struck by a car carelessly and negligently operated by the servants of the, company; that the car had stopped, or was in the act of stopping, abqut twenty feet from the point where he wascrOlijling, when, althQugh the serva,nts of the company saw ,him croli!Sing, they cl4'elessly, negligently, and suddenly started the car'in motion, causing it to crash into his wagon, throwing him out with great violencet and seriously injuring him. This the cause of action which the plaintiff sought to establish, .and which his testimony (tho'llgh contradicted by the defendant's) tended to After the evidence had closed, the defendant injected another issue, by presenting the following point:
"(5) If the jury beUeve that the plaintiff stopped when both vehicles were very close: to' the inter,sElCt!on of the two trlfclrs, and that t1).e train proceeded with the plalntlt'l"s hprse in a position of safety, and that the horse then became unmllllageabl& :from having been: scared by the ringing of the gong or other canse,andjumped.ln front otthe Cllble train before it could be stopped, this: is notevl<l&IlCe' of negligence, and you,r verdict Sbould be for the defeJ;ldant.", ,,' . , ,.. 1." '"
The court answered as follows:
"I a.tlIrm that, with this qualifying suggestion, that if you tind from the evidence-and I leave that to you, without any intimation of my own about 1t-