91 FEDERAL REPOR'rER.
ated the proposition that the contriving of a fraud or the conniving in a crime could form part of the professional occupation of an attorney or counsel. There is no pretense in this case that the codicil, or anything which took place at the time of its alleged publication, was of a fraudulent or criminal nature. VVe conclude that the order of the court below was an erroneous exercise of power, and it is therefore reversed.
McGEHEEet at v. McCARLEY. (CircuIt Oourt ot Appeals, Fifth Circuit. "January 10, 1899.) No. 763.
ADMINISTRATOR-VALIDITY 011' ApPOINTMENT-COLLATERAL ATTACK.
The validity ot the appointment ot an administrator, made by · court ot general probate jUrisdIction, cannot be questioned collaterally In an
action brought by such administrator to recover for the tortious killing of his decedent;, It not appearing but that a jUdgment In the action would render the matters involved res jUdicata. Proof that a station agent of a railroad company made an assault on a woman waiting In the station for a train at night, by reason of which the woman's chIld, seven yeartl old, became frightened and ran out on the tracks, and was rUn over and kllled by a train, Is sufficient to warrant a recovery agaInst the company tor the death of the child.
CARRIERS-AcTION FOR KILLING OF CHILD-SUFFICIENCY OF EVIDENCE.
.. EXEMPLARY DAMAGES-LIABILITY OF MASTER FOR TORT OF SERVANT.
Exemplary damages are. Dot recoverable from a raIlroad company tor the klIIlng ot a chUd, resulting from a wlllful and wanton assa.ult comwhich was not authorized or ratified by the committed by an pany.1
Writ ·of Error to the Circuit Court of the United States for the Northern District of· Alabama.
Zuma Allred, a chlld seven years of age, having been run over and killed at Belle Mlna.. Ala., by a train of the Memphis & Charleston Railroad Company, Andrew J. McCarley was appointed administrator of her estate by the probate court of Blount county, Ala. As administrator, he then brought suit in the circuit court ot Morgan county,Ala., against the receivers of the Memphis & Charleston RaUroad Company, for $10,000 damages for the alleged tortious killing of the decedent. The lult was removed by the defendant receivers to the United States circuit court for the Northern district of Alabama. As stated by the counsel fot the defendant in error In their brief, the complaint presents three theories as to the cause of the chlld's death: "(1) That the depot· agent for about half an hour before the arrival ot train tried to Induce the chlld's mother to have carnal Intercourse with him, which she refused to do; and he finally caught hold of her and caused her to scream, whlch awakened and frightened the chlld, and caused her to run out on the tracks. (2) That there was a negligent to provide llghts at the depot whereby the chUd or her mother could have seen the tracks. (3) That the engineer whlle coming Into the station negllgently faUed to keep a proper lookout, which would have discovered the chlld on the track In time for him fo have stopped his train before reaching her." The defendants below pleaded the general .Issue, as also. specially, contributory negligence on the part of hoth the child and her motheI, and that McCarley's appointment as
I All to Injuries caused by negllgence or torts of servants of carriers, see note to Rallway Co. v. Wllliams, 10 C. C. A. 4,66; and, Bupplemental thereto, to Mulvana v. The,Anchoria, C. C. A. 651. "
M'GEHEE V. M'CARLEY.
the child's admInIstrator was InvalId, because the chlld left n() a.sset except the right of action for her death, which asset, it was alleged, dId not give the probate court jurisdiction to appoint an administrator. The substance of the testimony given on the trial by Mrs. Allred, the mother of the child, is as follows: On December 1, 1893, she started from Oneonta, Ala., for Texas, with her five children, the oldest of whom was nine years old, and the youngest an infant in arms. They went by way of Birmingham, Ala., and thence to Decatur, Ala., over the Louisville & Nashville Railroad. At Decatur they changed cars to the Memphis & Charleston Railroad. They had through tickets to Texas. Instead of taking the west-bound train at Decatur, they took the east-bound train at about 4 p. m. A railroad agent at Decatur told Mrs. Allred to take the latter train. The conductor of the eastbound train, on discovering that she was on the wrong train, told her to stop at Belle a station on the Memphis & Charleston Railroad six miles from Decatur, so that she could go back to Decatur. She got off at Belle Mina with her children about sundown. The depot agent at B Mina told lle her to go Into the depot and wait. She did so. There was a platform around the depot. There was a lantern in the waiting room, but no light on the platform or tracks. It was a dark night. The agent said that the westbound train would come about midnight. He stayed in his o'ffiee for about an hour after Mrs. Allred arrived. He then went away, having given her a key to lock the door of the waiting room on the inside. The children went to sleep. About 30 minutes before the time when the west-bound train was due, the agent returned to the depot; and, Mrs. Allred having unlocked the door at his request, he entered the waiting room. After some conversation, he solicited her to go into an adjoining room to have sexual intercourse with him. She refused. He continued his solicitation, and finally seized her by the arm. She screamed, and the children a woke. The little girl, Zuma, ran out of the waiting room, d()wn the platform steps, and on the track, close by, where she was killed by the west-bound train, which was just arriving. 'l'he depot agent testified. and denied the frssault. He stated that there was a light in the waiting room, and that his impression was that a light was shining out of the bay window; that his impression was that his lantern was on the platform. and that the light allowed the track to be seen without difficulty. A witness testified that he Wa'S in bed in a room adjoining the waiting room at the time of the alleged assault, and did not hear any outcry from Mrs. Allred. The engineer and fireman of the train that killed the child testified, in substance, that everything was done to stop the train in time to save the child. There was evidence pro and con as to whether a small fund of $1.25 was made up for Mrs. Allred at Belle Mina before the accident. The baggage master at Decatur testified that he did not direct Mrs. Allred to take the east-bound train. Several witnesses testified that the depot agent at B Mina bore a good character. lle There are 44 specifications of error in the record. They relate to and complain of the following matters: The overruling of demurrers to the complaint. The sustaining of motions to strike out pleas. The overruling of the objection to the entire transcript of proceedings in the probate court appointing McCarley as administrator. The overrulIng of objections to certain questIons to and answers by Mrs. Allred and another witness. The refusal of the court to direct Ii verdict for defendants below. The refusal to charge that, even If the alleged assault is proven, it was not the proximate cause of the injury. The refusal to charge that McCarley 1s not administrator, and not entitled to recover any damages for the death of the child. The refusal to charge that only compensatory, and not punitive, damages are recoverable. rrhe refusal to charge that, if the jury believe the evidence, their verdict must be for the defendants below. The refusal to charge that, even if there were no lIghts at the depot or the platform, yet, if the jury believed that this was not the caus'e of the decedent's stepping on the track, and that she could have seen the track by the aid of the headlight, the failure to have lights at the depot would not be a negligence of which she could complain. The refusal to charge that, in considering whether the mother or the child knew the location of the tracks, the jury might consider the fact that both arrived at Belle Mina before dark, and stayed in the immediate .vlcinity of the track until midnight. The refusal .to charge that, if tba
'wits negl1genfinallowing:the child to'getnponthe track, the plaintiff below recover. ThE! ret1i'sal to charge that the action is not for damagesl'esnlting from the assanlt,butfor the death of the chUd,and unless the jury is satisfied that the assault was the proximate cause of the. child's 'and that the deathconldMt have occUrred but for the assault, the plaintUf below cannot recoverui'l'der the first count. The refusal to charge that .even if an employ6' of. the . defendants did misdirect. Mrs. Allred, at Decatur, to take the east-bound train, the misdirection was not the proximate cause of the death. Tbe'ref1lllal to charge that if the jury believe that the approach of the trainwaa!the cause of the decedent's death, and that in Buch fl1ghtened condition s;hestepped or rIlllon the track in front of the train, and so close thereto tbll.tfue trainmeneould not havettvoided the injury, then! the plaintiff below cannot recoverlJi this cause. The refusal to charge that: "The good character of the· depot agent is admissible in this .¥ .' tending to prove' the" falsity. of the. charge of. assault upon the moth.ero!,!!laidZuma Allred; and I charge you that it maybe sufficient, if proved t6your' satisfaction to lYe good, to generate a doubt· in your mind as to whether' saidassaultwftsCOItlmitted, and if, from the evidence of his good cMracter, you have It doubt or uncertainty as to whether he committed saId' alleged assault, then you must find that sll'id assault was not committed; and tnthis event, If you belie'Vefrom the evidence thattbe said child ran updn the track of said rallroad'irisuch close proximity to the train as that the useofaH preventive effort .llould not bave averted the injury, then your verdict must be for the' defendants." The refusal to charge that, if the jury the eVldence;'tbeirverdict must be for the defendants below on eachofth'efirst, third, 'and fourth counts of the complaint: (The second count' or the coihplaint .had been stricken' out by amendment.) The refusal to grant anew trial. The t1'ialresulted in a verdict and judgment in favor of the below for $2,625, which judgment the receivers have taken their writ of error to court.
Milton Humes, for plaintiffs in error. Henry Kirk White, for defendant in error. Before PARDEE, and McOORMICK, Circuit Judges, and PAR· LANGE, Dif!!lWict· Judge.
'.: :;,' ":,i'
. PARLANGE, District Judge (after;·stating thefaets as above). appearst()us tllat of the complaint of the]Haintiffs in error c04sists Q(the aI1eged,jnvaltdity Clf the appointment of the administrator whobJ'ought this· suit, the refusal of the trillI court to direct a verdict against the plaintiff below; the .refusal to give a special charge . the · good character of. the. depot agent charged with the ot ,tIle to restrict the jUl'yJp compensatory damages. lAs. to the first three of those matters,we' areaf opini?D that the lower court did not- err. The apMinbnerlt of the administrator should not pave been inquired into in t):J.ii\¢ase. ,c(ilurt which. appointed him had ,Ithas;J;lot been shown that a final determinathmdn this cause,as1between McCarley,suingasadministrator, and theplaintiifsln error, 'Would not be res judicata, and a c,omplete pro!'l"Q.it.fQr of action,. This protec.tlon'l' all :the Interest whIch the plalntd'fs merror have m the point. The low,el'cOurt diOllot err in refusing to direcHlverdict in favor bfthedefehaa;ntlil 'If it be true that mak' ing of thechpd, so terrified "the child that .she.r:all. Q;liI,t ,qponthe track,and that there, because of her fright and theCil:CUlnstanees<then,surronnding her,she1wasruDaver and killed
'by the train, we see no reason why the plaintiff below should not recover. Again, the alleged failure to provide proper and sufficient as an independent cause for lights, whether the same be recovery, or as a circumstance in the matter of the assault upon the mother, and the consequent fright and bewilderment of the child, was also a question for the jury. We therefore conclude that a direction to the jury to find for the defendants below would have been improper and erroneous. It is clear that the speciaJ charge concerning the good character of the depot agent was properly refused. The defendants below had the full benefit of that evidence. It seems to have been admitted and heard without objection, and the judge charged the jury that the character of the depot agent was conceded to be good. Even if it were true, as contended on behalf of the plaintiffs in error, that the character 9f the depot agent was admissible in this case, it would not follow that the special charge should have been given. This charge required proof of the assault beyond a reasonable doubt. ,It went even beyond this, and required the jury to find against the plaintiff below on the question of the assault, if the character evidence generated in the minds of the jury any doubt or uncertainty. But a majority of this court finds material error in this cause, resulting from the failure of the trial court to charge the jury, as the defendants below requested,that only compensatory, and not punitive, damages were recoverable in the case. It is plain to us that under the doctrine of Railway Co. v. Prentice, 147 U. S. 101, 13 Sup. Ct. 261, no punitive damages could be recovered in this case. It is not claimed that the corporation ever authorized or ratified the alleged negligence or assault. While the corporation may be compelled to make compensation for the tortious act of its servant committed in the scope of his employment, even if theact be willful and wanton, yet, if the corporation be itself innocent; it cannot be punished by the infliction of vindictive damages. See circuit Gourt of appeals, Seventh circuit, in Railway Co. v. Russ, 6 C. C. A. 597,57 Fed. 822. We find nothing in the statute law of Alabama which would require a departure from the doctrine announced in Railway Co. v. Prentice, supra. On the contrary, we find that the supreme court of Alabama, in construing the very statute under which this action was brought· (Code Ala. 1886, § 2588), said that the damages recoverable under that statute,are compensatory, and not punitive. Williams v. Railroad Co., 91 Ala. 635, 9 South. 77. We are clear that the judgment lUust be reversed be· cause of the error above stated. It is ordered that the judgment of the lower court be reversed, and that this ca!Jse be remanqed to that court, witA the direction to grant a new trial.
91 FEDERAL REPORTER,
CONNELL T. SOUTHERN RY. 00. 1
(CircuIt Court of Appeals, ,Fifth Circuit. January 10, 1899.),
RAIT,ROADS-INJURY TO PERSON ON TRACK-TRESPASSERS.
Defendant railroad company entered into a contract with a Ilecont! company for the exclusive Use of certain terminal tracks of the latter on which to run trains to and from exposition grounds, the two companies, however, sharing in the expenses and earnings of such trains. Such tracks ran through the yards of the second company, in which was situated its yard office, in close proximity to one of the tracks so used by defendant. '1Itld, that a person in the yards and at such bunding on business with the second company, and rightfully there as to Buch company, was not a trespasser as to defendant.
.. SAME-SPEED OF TRAINS-NEGLIGENCE.
It is the duty of a railroad company to exercise due care In the running of its trains at all places where It had knowledge that there are likely to be persons on or near its tracks, to avoid injury to such persons, whether or not the place is a public crossing. In an action for the death of a person struck and killed by defendant's train In the evening in front of the yard office of another road, the doors of which opened on the side next to the track used by defendant; which was about seven feet from the building, it being shown that numerous persons, chiefly employlis of the other road, frequented the building, passing in and out of the doors at all hours, the question of the speed of the train, and the manner of its operation, the lighting of the place, the existence of guardll, and the other surroundings of the place, are all matters for the jury, as bearing on the question of defendant's negligence In operating the train.·
In Error to the Circuit Court of the United States for the Northern District of Georgia. This was an action by Nannie E. Connell against the Southern Rallway Company to recover damages for the death of her husband, alleged to have been caused by the defendant's negligence in the operation of one of its trains. Under instruction of the court, a verdict was returned for defendant,and plaintiff. brings error.. J. T. Pendleton and J.L Hopkins, for plaintiff in error. R. T. DOfsey, P. H. Brewster, and Saunders McDaniel, for defendant In error. . Before PARDEE and McCORMICK, Circuit Judges, and SWAYNE, District Judge. McCORMICK, Circuit Judge. The Southern Railway Company and the Georgia Railroad Company entered into the following contract:
''This agreement and made and entered into on ,this 22d day of July, 1895, by and between the Southern Railway Company, party of the first part, and the Georgia RaIlroad Company, party of the: ' second part, both having terminal facilities at Atlanta, Georgia, witnesseth: That Whereas, the people of Georgia are contemplating the making and presentation of a Cotton States and International Exposition, to begin at Atlanta, Georgia, on the 18th day of September, 1895, and to continue for ninety days or more, which is expected to draw a large number of visitors to attend the Rehearing denied February 21, 1899. · I!'or liabil1ty of carriers for negligence ot their servants, see note to Rallwar Co. v. Wllliams, 10 C. C. A. 466.