818
,.
,
I
/ ..
L
I'BDEBAL REPORTER,
vol. 50.
the said city council of said city had no power to pass suchan ordinance under·the charter of the saidcUy of Ft. Worth." . The bill ofexceptioIi.$utlder which this assignment of error is made shows that the injury to 'plaintiffoccurred within the corporate limits ofthe oity of Ft. Worth; that the train was running at a highenate of speed than was permitted by the city ordinances. There was testimony that tended to prove that the bell was being rung and the whistle blown. There was also testimony tending to prove that no bell was .rung or whistle blown. Section 259 of the Revised Criminal Ordinances of the city ot:·Ft. Worth prohibits the running of an engine or car in said city without a bell attached thereto being rung before starting, anu all the time the same shall be in motion therein. Section 80 of the charter of the city of Ft. Worth, among other powers given in relation to the laying and construction of railway tracks, etc., confers the power upon the city coun.eil '.'to regulate or prohibit the blowing of locomotive whistles within the city, to direct the use and regulate the speed of locomotive engines in'said city, or to prevent or prohibit the use or running of the same within the city.» And section 85 of the same charter provides that"The city councll shall have powpr to pIlSS. pllblish. amend. or repeal all . ordinances. rules. and police regulations not contrary to the of this sl.ate;' for the I!ovl'rnment. pE'ace, and orller of the city; * * * to enforce the observance of all slJt'h rules. ordinances, and public regulations; and to punish Violations t.hereof by fines. penalties, aud costs." Under the powers granted in these ordinances, we are of the opinion that this assignment of error is not well taken, lor it seems perfectly competent under the power expressly given to direct the use and regulate the speed of locomotive engines in said city, and to prevent or prohibit the use or running of the same within the city, to' prevent or to prohibit the running of an engine without a bell attached thereto being rung before starting, and all the time the same shall be in motion. On the whole case, we find no reversible error on the part of the circuit court, and the judgrntlnt complained of is therefore affirmed, with costs.
ASlIER
et aI. v.
CABELL
et
(Circuit Court 0/ .Appeals, Flfth,C&rcuU. Mar 80. 1832.)
No. 3. Under Rev. St. Tex. art. giving a right of action for wrongful death,. Iiability for the acts of agents or servants is confined to common carriers, and all other persons are liable for their own acts alone. Hendrick v. 6 S. W. Rep. 749, 69 Tex. 192, followed. S.SAME-UNITBD ST"-TB. MAR8JUL - KILLINet 011' PRISONIIRS BY MOB - INCOMPETENT Under thts United States marshal, who, knowing that certam awles8 personslU'E! hostile to a prisoner in his custody, him for transport, shack'led to a deputy' whom he knows to be incompetent and unfit, is liable on his official bond, becaUBe of his own for the killing of such prisoner by a mob, the deputy'a unfitness. BRUCE, District Judge, dissenting. DEPUTY. .. . . ' . ' · 1
1.
DIIATH BY WRONGFUL ACT-ACTS OF SERVANTS AND AGENTS.
ASHER tI. CABELL.
819
In Error to the Circuit Court of the United States for the Northern District of Texas. At Law. Action by Venia Asher and her husband, Thomas Asher, against William L. Cabell, formerly United Siates marshal, and his sureties, for permitting a prisoner to be killed by a mob. Judgment for defendants on demurrer to the petition. Plaintiffs bring error. Reversed. Statement by PARDEE, Circuit Judge: ThLs cause was heard in the court below on exceptions to the plaintiffs' second amended original petition, which it seems necessary to give in full, as Jollows: "By l..ave of the court. plaintiffs amend their flrst amended petition filed herein on the - - - day of FelJruary, H:l91, sO that the same shall read as follows: "Vellia Asher, joined by her husband, Thomas Asher, hereinafter · plaintiffs, '.cvml'laining of WiI'iam L. Cahell, James Moroney. C. W. Tel'1'y, J. S. Dallgherty, E. M. Tillman. Hugh Blakeny, and Philip :::.anger, who are hereinafter sty led' defen·lants,' rt'spectfully rl'presents: "That at the time of the in!<titution of this suit, to wit, on the 18th day of January, 1890, t1w said Venia r..sl<.lOO in county. Texas. in said dis· trict, anti was at that time the widow of Alfrt'd Aaron Marlow, who was slain by a mob in said Young county. as will lJe herelnailp." relatell; that during the pendency of this suit sha has intermarri.·d with Thomas A!lher. her coplaintiff, who joins her in this action; and she, with the minor children, here· inafter nanl'd, of herRelf and her tleceasPl1 husband. now resides with her present husband. the saitl Thomas Asher. in the Indian Territory. "The abov...·mentlOned dt'fendants are alllesi.lent:l and citizells of the county of Dallas, in S811] noriherll district of TexHs. "Plaintdf:lllut' for aetnal damages on account of injnries causing the dl'ath of sai.1 Alfred Aaron Marlow. and spek a reCllvt'ry on the official bond of the said William L. Cabell as Ullited i:itatt'S marsl,lal. such a(·tion lJei ng bronght and sllch recovery being sOllght for the bt'nt'lit (1) of said Venia. formerly wife and widow of said de<:easadj (2) of Williamson Wilson Marlow, a boy of four years oM, and Anuie Laul"ie Marlow. a girl two years old. the minor children of said Venia and Alfred Aaron j and (3) of Martha.J ane M,lrluw. the widowed mother and only surviving parent of said deceast'd, who 1I0W resides in the ('OIlllty of Ouray. in the state lit' Colorado. "That heretofore, to wit. on the 28th day of April. 1886. th.e defenrlant William L. Cabell was dilly apl'ointpd anti commissioned marshal of the United t'itates for the northern distnct of Texas; and thai on the 20th day of No. veml.er. the said Will. L. Cal)!'ll as prmcipal. w.th the otherdefl'ndants 8B sureties. matiI', expc"tell. anti deli verecl. in conformity to law. a ct'riain official Lowlor the said Wm. L. C'lJplI as BIICh marshal, in the sum of tWt'nty thousand ,10Ilars, ($20,000,) which said bond was in dill.' tillle approved hy the proper aUlhority, amI a copy of the saine is hereto attaclJell and made a part of this petition. . "ThH condition containl'd in sain bond is as follows: " · Now. if the said William L ·.'Calipll. by h msdf and by his shall faithfully perform all the dllties of the sa,d office of marshal. then this oLligalion to Le void; otherwise to remain ill full furca and virtue.' "Which conditions, lJ..illg fllily interpreted, mean. alllongst other things, that one of the duties of such officer and I lis depllti.>s is and was to saffly k...ep in custody anti from harm, to humanph' treat and caft·fully protect. all prisoners lawfully committed to or held in the custody of said marshal and his
820
FEDERAL REPORTER ,vol.
50.
any of them; and, furLher,tha:t the said marshai would appdint and retain in his service as deputies none but fit, proper, and competent personS. . , "That thereafter, to wit, on the 19th day of January, 1l;l89,and before that day, in the county of Young, in said district, the said Wm. L. Cabell, while marshal, as aforesaid, by his duly-authorized deputy marshal, Ed. W. Johnson, (who was then and there acting under the immediate orders and instructions of said William L. Cabell,) had in his custody. by reason of such orders and instructions, and also by virtue of office and by lawful authority, several certain prisoners of the United States, one of whom was Alfred Aaron Marlow, then the husband of the plaintiff Venia Asher, the father of her minor children. herein named, and the son of Martha Jane Marlow. "That for a long time prior to the said 19th day of January, 1889. and on that day. there was great and violent pUblic prejudice openly fested bycei'tain lawless persons in said Young county towards said Alfred Aaron Marlow and certain of his fellow prisoners. to wit, his three brothers. Lewellen Marlow, George Marlow, and Charles Marlow. who at the same time were confinedy.ith him in the county jail of Young county upon the lawful orders of a proper oflicer'ofthe United States, on charges of violating the laws thereof, which charges, upon final trying in the proper court, proved to be unjust and groundless. . .' "That on and vefure said 19th day of January. 1889, William L. Cabell. marshal as aforesaid. was well aware of the excited and lawless and dangerous condition, of pUblic sentiment in Young county against his said and of the hostility and prejucUce entertained flgainst them by the lawless persons aforesaid t as was also the said Ed. W. Johnson. his deputy; yet, notWithstanding iluch knowledge. the said William L. Cabell. ,being then and there in the county of Dallas, ordered the said Ed. W. Johnson, who wils then and there in the county of Young. about one hundred and twenty miles (120) distant from theconnty of Dallas. to remove said prisoners from the county jail of Young connty, leaVing the time and manner of their removal to the discretion of said Johnson. "Plaintiffs would now further show to the court that said Ed. W. Johnson was an improper and unfit person to perform the hazardous and responsible duty ofremoV'ing said prisoners under the circumstances herei n detailed. and this the said William L. Cabell well knew or might have known by the use of ordinary diligence. "For that llaid Johnson was a brawling and qnarrelsome man, with little respect for the laws of the land, and t prior to his appointment by the said marshal t had committed a homicide. That during his tenure of office as deputy marshal under said William L. Cabell, and prior to said 19th day of Januaryt 18i:l9. hEl had lost his right arm in a person"l shooting affray over a lewd woman, in which affray he committed still anoUier hOmicide·· That. being morally unfit for the place he held, he. the said Johnson, became, by reason of his maiming. as aforesaid, physically unfit and incapacitated for the performance of theduties of his office, especially in a frontier region. such as that in which Young county is situated. and also in the Indian country, which to a great extent was his field of dnty; and more especially was said Johnson unfit the post of chief deputymarshalt which he held at Graham in in every. 'iVay said Young cdunty, where one branch of this honorable court is located, -all of which said William L.Cabell was bound to know, and did know. and still retained the. said .Johnson in his service as chief deputy in that portion of his district.' " And' that, furthermore, by reason of the carelessness and unfitness of sain Johnson for the position so held by him, the said jail in which the aforementioned prisoners were confined had been attacked on the 17th day of January,
ASHER'll. CABELL.
821
were wickedly bent and determined upon doing to the said Alfred Aaron Marlow and bis aforementioned fellow prisoners great bodily harm. "That said Ed. W. Johnson resided in said town of Graham, and was there at the time of the attack on the :lforementioned jail and before that tIme. That the said federal prisoners therein confined bad all been to such jail com· mitted upon arrests made by him; yet, disregarding his lawful and sworn duties, the said Johnson suffered persons to be employed as guards at said jail who were in sympathy with the lawless persons aforesaid, who were compassing the destruction of said prisoners, and made no effort to repel the attack of said lawless persons, or to stay their violence. which was open and notorious, but left said prisoners to deal with their assailants as best they could, with their naked hands; nor did said Johnson take any measures to arrest or bring to justice the said lawless persons,-all of which the said William L. Cabell well knew. or might have known by the use of ordinary diligence. there being at the time communication by wire between the town of Graham, where said Johnson was, and the city of Dallas, where said. Cabell was, at the time of the happening of the matters and things aforesaid. That by messages from said Johnson and other persons, and from news dispatches published in daily newspapers the next day, the said William L. Cabell.was fully informed of the attack on said jail, and of the imminent danger which menaced the lives of his said prisoners. "'fhat, the matters and things hereinbefore relaterl, and that they had taken place almost under the very eyes of said .Johnson, the said William L. Cabell carelessly,. wrongfully, and negligently further intrusted the safekeeping and removal of said from the jail in which they were confined to his said deputy, on the 19th of January, 1889, two days after the at· tack on said jail. .. And the said William L. Cabell, by virtue of his office and the lawful au· thorityaforesaid, and by his orders and instructions unto the said Ed. W. Johnson immediately directed, caused the said Johnson, on the date last aforenamed, to take said prisoners and the said Alfred Aaron Marlow into his official charge. with further orders to remove them from the said county jail of Young county. That said marshal could easily have given to said removal his personal attention, or have intrusted the same to a propel' deputy, which was then and there his sworn duty. "That while said Alfred Aaron Marlow and his fellow prisoners aforenamed were in the custody of said marshal, as before recited, a large number {)f the lawless persons aforementioned, having at heart the injury, great bod· i1y harm, and destruction of said prisoners and the said Alfred Aaron, had unlawfully, willfully. wl"Ongfully, Wickedly, and maliciously combined. confederated. and conspired together to carry out their wicked and unlawful purposes, all of which the said Johnson well knew, and through him the said WilliamL. Cabell well knew, or might have known by the use of ordinary diligence. "That. well knowing the great hostility which, prior to the said 19th day {)f January, 1889, and on that day, had been openly and .notoriously manifestpd by said lawless persons against the aforementioned prisoners, the said. William L. Cabell wrongfully and negligently permitted the said Ed. W. .Johnson-an unfit person for such service in any event-to attempt the re·· moval of said prisoners in the nighttime, which the said Johnson <tid. COiltrary to common sense, to ordinary discretion and care. and against the advice, warning, and admonitions of divers good citizens of said Young county. "That lInder the circumstances aforementioned said prisoners, for the pllr·. pose of removal, were taken from their place of confinAment in the nighttime, in the. presence of a large number of the boisterous and lawless persons afore.
1889. by a numerOus mob, composed of the lawless persons aforesaid; who
I'EDEBAL RJill'OBTER"
said; 11y,the·'s'&td:Ed.W. Johson; arid, well knowing ,the dangers surround-ing;bim, tbe said deputyma'rshal wbolly failed to pl;ovidereliable guards to protect said prisonerl!l;but, on the contrary, knowingly selected as guards a forucnnade up almost e'nllireI1'ofthe same lawleslt persons who bad wickedly and un'lawfully, on the 17th day of January, 18891 attacked, asbereinbefore recited,.the jail In which said, prisoners wt>re confined, for the purpose of taking their lives, or of c10ing them great bodily harm. "And a large numller of others of the lawless persons aforementioned, in pursuance of their unlawful and malevolent purposes and designs, combined together as a mob, and, being in collusion with the guards selected by said deputyllull'shl!l as afuresaid, did,.on the 19th day of January, 1889, In the county of Young, 'in said northern district of Texas, unlawfully, willfully, wroll/{fully, maliciollsly, and cruelly assault with guns and firearms the said priSOnel's. and did then and there, under circumstances of peculiar atrocity andbadmrity, mortally wOlmd and shuot to death the said Alfred Aaron Marlow, wltbuut allY fa II It or callse therefur un his part. '''rbat at the time of the unlawful and murderous /lssault last above mentiont'd the pr!sonel's alorenamed, tbe said Alfred Aaron Marlow, being securely in pairs by their ankh'S, were unable to escape, and, being unarmed, were unable to defend ves the person8S0 assaulting them, excl'pt as they might disarm their assaIlants under the impull:!e of the great peril besetting them· .. Plaintift'saver that at the time of the night attal'k upon the aforesaid. bound and dt'ft'nseless '8S thpy were, in wbich the sai<! AI. rl'd Aaron Marlow was shot to dt-'ath as hert-'inbpfore redted. the said dl'puty marshal, and 'said ,guards in his employ, unlawfull,v df'serted said prisoners, and immediately jUined With said uthl'r lawless persons who were tben ami thl're assaulting said prIsoners, t1wrehy deliverin/{ said prisollPrs into the hands of said mub. Tbat neither said Johnl:!ull nor his s'aid guardll fired a single shot in dtfel1se 01' said priSonf'I'S, but, on the ('ontral'y. joined the said mub, and aided the lawless. pel'sunscolllposing the same by 114..lping them tu shoot, wound, and kill the s.dd prisuDt-'rs. That several uf !laid guards voluntarily h/ludel.) 0\,('1' thelr/lrms tosalll mob, l'xcept such aswel'e Sl'iZ611 by said pl'isont'rs louse in tbt-'ir self-deft'nse; /lnd said Juhnson loilllsel1' was disarmtlll by one of said prisonl'rs as he, the said .Juhnson, WaS in the act of voluntarily hllndingovel' his pistul to line of the lawless persons. "In conclusion, plaintiffs allege that said d"puty marshal and his said guards culluded and togl'ther with said Illwlt'ss persons so 11ssaulting said prisonl'rs; and that, in order to carl'Y Ollt such conspiracy, said dl'pIIty marshal knuwingly emplu.,'ed as guards uther lawlt'lls persuns, who, hut twu days prior to thl'ir s'lmmons to serve as su. h guards, had bt'en engaged in the attack on the jail where said prisoners Were tht'n conlinl-'d, anll had, immediat,'ly prior to their said summons su to serve as gllards, made known their purpose tu kill and murder said priHoneT>l; anll thal Ed. 'tV. Juhnsun, deput," marshal, .emovell said prisollt'rs from the jail of Young cuunty,/lnd. with the /lssistance of said persuns so summonllli as guards, cllrried them in the nighttime tu aJ<lIlely /ludsedudt'd sput. lli-tllnt 1"1'0111 human habitalicl1ls, and, when s/lld prisont'r11 were aUaekt'd by said lawless pt'rsons, the said deputy marshal. in K"CiJl'dance \Ylth a previolls und,·rstanding with sai,1 perllons t111'11 IItldtht"'I'e 8 ·.id.attack. dill, with his guards, unlaWfully desl'rt said prisoners, and leave thtHn to be attacke,l and murdered by silid mob, without making any t'll'urt whatever to prott'ct them. "That by reasoll of sllch att/lck the saltl Aifl't'd Aarun Marlow was kllll'd, 8S also was his bl'otllt'r, Lewellen Mal'low, and Marlow and Charles Marlow were permatlt'nUy disabled. by gunshut wOlllllls. Nor did the said Willialll L. Cabell, atter the occurrences herein related, dismiss or disl:bal'ge
ASHER· '!1.CABELL.
823
said ·Johnson from his service. but retained him ail depllty until bis, said CabeWs, successor was appointed, long afterwards, thus virtually ratifying and approving said acts. "Wherefore, in the matters and tbings hereinbefore recited, which led to the cruel and inhuman murder of said Alfred Aaron Marlow, plaintiffs allege that said William L. Cabell, marshal as aforesaid, acted wrongfully and negligently. and that by n'ason of such wrongful acts and negligence the said Alfred Aaron met his death. "Plaintiffs show that the said Alfred Aaron, being a young man, 26 years of age, had a reasonable expect.ancy of a continuance of life for a further period of thirty-eight years; that he was an industrious and sober laboring man, whose earnings were, on an average, fully five hundred ($500) dollars a year, and that be. supported his family comfortably for a man in his sphere of life: that his mother, Martha Jane Marlow, for whose benefit this suit is also brought, is an aged woman, 65 years old, and almost belpless: that she has still a reasolJable expectancy of !\ continuance of lite for a further period of eleven y!'ars:' that she was larg...ly dependent upon the assistance of hpr said son, during his lifetime, for hel' sU>ltenance, and that be dutifully recognized her dependence upon him, and contributed to her maintenance aud support fully 8100 a year up to the time of his death. "Wherefore, plaintiffs say that there has been a breach of the official bond of the sail William L. Cabell, marshal, as aforesaid, and that by reason of the facts herein set forth the said marshal and his sureties are liable to plaintiffs on said bond for damages in the sum of $10,000: and they pray that said defendants, being already herein duly cited, be, on final trial, adjudged to pay said sum and the ('osts of this suit, and that they have general relier." To the said petition the defendants filed their second amended original answer, as follows: "Now at this time come the defendants in the ahove entitled and numbered cause, and by leave of court file this. their second amended original answer, in lieu of their first amended answer. llled in this cause on FeLruary 6, 1891, and plead anew as follows: "(1) Now at this time come the defendants in the above entitled and numberedcause, and demur to the pleading of the plaintiffs herein, and they except to the sufficiency of the second amended original petition of plaintiffs filed herein, and say that the matters therein alleged, if true, constitute no cause of action against these defendants, and of this the said defendants pray the judgment of. the court. "(2) And specially excepting to the said pleading of the plaintiffs, thpse defendants say that the same is insufficient, because said petition shows that the acts complained of, and on account of which plaintiffs seek to hold these defendants liable, were not the immediate !lcts of thesedefendallts themselves, nOlO of any of them, and heu!le the plaintiffs show no right of recovery against deflmdants. "(3) And, further, these defendants speciallyex('ept to plaintiffs' pleading, because on 'the face of said pleading it appears that the cause of action alleged by the plaintiff!! against these defendants accrued and arose (if it ever existed) more than one year before the tiling of plaintiffs' second amended origherein, in which for the first time plaintiffs set out their alleged inal cause of a"tion. on which they now ask recovery, and hence on said causes of action (if they ever existlld) are now lJarred by the statute of limitation of one year. " (4) These defenda nts also specially except to all those extensive. portions oUhe second'.amended original petition of the plaintiffs herein which are made up of statements regarding injuries and wrongs which occufted long
FEDERAL REPORTER,VOl.
prior to the alleged death of Alfred Aaron Marlow, which were not the jurleswbich resulted in hIs death, because all such allegations are priate, and are evidently alleged by the plaintiffs for their oratorical effect. "(5)A'nll, should the foregoing demurrer and special exceptions be by the court overruled, then these defendants, further answering to the plaintiffs' second amended original' petition herein, come and deny each and every allegation in said pleading contained, and they call for strict proof. and of this they themselves on the country, and hence pray jUdgment that they go hence," etc. Dpon the hearing of the exceptions to the said second amended the court below rendered judgment sustaining the said second exception, and thereupon, the plaintiffs declining to amend, inissedthe Buit. The plaintiffs have brought the case to this court for review, an,d assign aElerror "that the court erred in sustaining the defendant/l'second exception to plaintiffs' second amended original petition,and ,in dismissing this cause, as will appear from an inspection of Said petition, the defendants' demurrer, and the judgment thereon." No written opinion appears to have been given by the jndge rendering the decision, and defendants in error .submitted nO arguments brief in.the case. M. L. Crawford, Andrew 1. Houston, and Eclward8 &; Blewett, for plaintiffs in: error. B(l88ctt, Musc and McCormif;k &; Spence, for defendants in error. Before PARDEE, Circuit Judge, and LOCKE and BRUCE, District Judges.
or
PARDEE, Circuit Judge. It is well settled that by the common law no civil action lies for an injury to a person which results in his death. 8urance Co. v. Brame, 95 ,D. S. 754-756; Denniclc v. Railroad (h., 103 U. '$. 11-21; The Harrisburg, 119 S. 199-214, 7 Sup. Ct. Rep. 140. There. is no statute of the United' States giving such an action in the courts of the United States. It follows that, if such action can be maintained, authorities must be found therefor in the statute of the state wherein the injury occurred. Article 3128, Rev. St. Tex., is as follows: "The common law of England (so far as it is not inconsistent with the and laws of tIlis state) together with such constitution and laws. be the rule of decision, and shall'continue in force uutil altered or repealed by the)egislature." .
It follows that in the state of Texas no civil action will lie for injuries resulting in death, unless authorized by statute, and the following is the only statute on the subject: "An action for actual damages on account of injuries causing the death of any person may be brought in the following cases: First. When the death Of any person iscaosed by the negligence or carelessness of the proprietor; owner, charterer, or hirer of any railroad, steamboat. stagecoach, or other vehicle for the conveyance of goods or passengers. or by the unfitness. gance, or carelessness oftoeir servants or agents. Second. When the death of any person is cansed. by ,the wrongful act, negligence, unskillfulness, or fault of·another." Rev. St. Tex. art. 2899. .
ASIU:R V. CABELL.
825
The construction to be given article 2899 seems to be clear. Asagainst common carriers, an action is given for injuries resulting in the death of a person, when caused by the negligence or carelessness of the common carrier, or the unfitness or negligence or carelessness of the servants or agents of the common carrier; as against all other persons, the cause of. action for injuries resulting in death is only given when the death is caused by the wrongful act, negligence, unskillfulness, or default of the defendant himself. In other words,common carriers are made liable for the unfitness, negligence, and carelessness of their servants or their agents resulting in the death of a person. Other than common carriers are not niade liable except for their own wrongful acts, negligence, unskillfulness, or defaults, when the saIlle results in the death of a person. And this seems to be the construction given to the statute by the supreme court of the state of Texas. In Hendrick v. Walton, 69 Tex. 192, 6 S. W. Rep. 749, which was a suit brought against a sheriff for the wrongful and unlawful act of his deputy in killing a person, the supreme court of the state of Texas, construing article 2899, among other things, said: "In the, first place, it is to be observed that this is not the regulation or extension of a right previously existing at common law. The right of action for injuries resnlting in death is wholly the creature of the statute; and the authority of the suit here brought, if fonnd at all, must be found in the written laW itself. If the second subdivision of the article quoted stood alone, it would be a grave qnestion whether we should not apply to it the maxim that what one does for another he does himself, and to hold that it not only gives a right of action against one whose own immediate act or negligence is the cause of the death of another, but also against a principal. when the death has been cansed wrongfully or negligently by the act of his agent. Neither principal nor agents are named in the subdivision in question, but in subdivision 1. immediately preceding this, an action is given the carriers, to whom it appHes, for fatal injuries, not only caused by their own personal negligence, but also where accruing from the gross negligence of th,eir servants or agents. This provision has been conaidered by this court in the case of Railway O(). V. Scott, (decided at the Tyler term. 1886.) and is held to afford no remedy against a railroad company when the death is caused by the mere ordinary neglect of the servants or agents of the corporation. This law Was amended by the omission of the word' gross' by the act of March 25, 1887, (Laws 20th Leg. p. 44,) but the amendment was subsequent to the accrual of the alleged cause of action in this case, and has no bearing upon the question. Besides, thechaDge of one clause of a statute by amendment does not operate to change the construction of another and independent clause as deriVed from the context of the original act. It is clear, therefore. that in the first subdivision of article 2899 the legislature did not mean to apply the rule that the act of the agent is the act of the principal. because for the ordinary negligence of the agent it does not make the princi pal liable. Now, is it reasonable to presume that they intended to exempt corporations owning steamboats and railroads, who can only act through agents, from liability for ordinary neglect of their or servants, and at the same time make private'persons responsible for the death of others, when not caused by their own immediate act or omission? We think not. We rather think it was the purpose to impose the greater liability upon carriers by making them responsible for the gross negligence of their agents, and at the same time to leave the liability of for the acts of their agentl:l as it existed at common law.. ' II! ,. ,"
Si."tbeiefore. ,tba
indicates that the, of for the acts. Of thelF agents &re speci,fiad,in ,the, of the ar-, It is but reasonable to conclude that they Intended to Tender other persons lildJle only immediate acts." of our
'.i;'heq'ti,eE\tion, then;' determined in the present case is whether the amended ,filed by the plaintiffs in the circuit Elllow.s a .case where defendant Cabell, late marshal, is sued for w,r()Qgful" a,cts" and defaults. The. said petition his shows the Oabell, a8 States marshal, had in his .prqces8 of the Unhed StatescClurts, certain oneofwho"n ",as Alfred Marlow. whose widow brings spit; the said'prisoners then and there in the custody Of ,the was hostility and violent public prejudice 1;>y certaiQ lawleE\s' persons in Young county, in which (:lount" said prisoners were confinedj that an attack had been m'ade by the said la'wless persons upon the said prisoners while confined in the jail aforesaid, and that in such attack' the marahal's deputies and guards made no effort whatever to pNtect the said prisoners. but wiire'insympathy with the .lawless pers()ns that the defendantCllpell was aware. of the attack upon the JaIl condition of publio aforesaid,and. of sentiment existing in said county against said prisoners, and of the hostility and prejudice 'entertained against them by the lawless persons saidCll.bell, ma.rshal. committed the custody of said , prisoners, including said Alfred Aaron Marlow, to his deputy, one Ed. Johnson, ,vell')plowingsald Ed. Johnson to be an unfit and improper or.to be, in charge of the custody and control of the said prisoners j and that the said marshal, well knowing the unfitllndimpro'perenaracter of the said deputy, and well knowing the notorious hostility and prejudice exiiiltillg against the said prisoners on the part of thehiwlesspersons aforesaid. and of a previous failure ,pf his depuUes and: gpa.:I"<ls to protect said prisoners, wrongfully and negligently the said Johnson, as deputy, as alore8lI.id, ,to takesaidprisQners into his official charge, and remove them from the countyjail in Young county, without giving the same his perBOnal attention,'or intt"u8tingitt() a fit and competent deputy. The said petition', Spes' on futtber to show that in the removal, so ordered .'and directed by with the connivance of tOe .said J ohnsou and the guards and deputiEls, selected by the said Johuson, the said -prisoners were attacked'bya: mob,who murdered the said Alfred Aaron 'Mltrlowj' thepetitioncohcluding: 1'o.'the mlittel.'sfLDd things hereinbefore reoited,which led to the inhumltn in urder '6fthe said Alfred Ali'ron Marlow,plaintiffs al/eged .Alfted AarohMarlow met hislleath." '
to
ganHy, aqd that<'.byte'asbh 'of such wrongful acts and negligence the said .. '
tlilusaidWilliamkCabel1; marshal as aforesaid, acledwr6ngfullyand negli.
. From thi/ijit appears. thattbe defeQdant Cabell is distinctly charged with default and negligence in the performance of his duty as United
ASHER
v.
827··
Statesmal'$bal; whieh default and led and contributed to, if not eausin/!:, the killing of Alfred Aaron Marlow, in this: (1) That knowing the danger attending the life and safe-keeping of said Marlow, a prisoner in his cnstody, he neglected to take measures for his protection; (2) that he knowingly intrusted the custody and safe-keeping of said Marlow to an unfit and improper person; (3) that knowing the unfit and unworthy character of Johnson, and well knowinK that a dangerous and lawless element of the community was conspiring and contriving to injure and oppress said Marlow, and knowing of the previous .attack of said dangerous and lawless element upon the jail and the prisoners therein, and of the collusion of his deputies and guards therewith, he, the defendant, directed and permitted the said Johnson to remove said Marlow from the jail in Young county, without takinK any measures to protect said Marlow in said removal. It seems clear that defendant Cabell, as late United States marshal, while undoubtedly sued on account of the faults, negligence, and wrongful acts of his deputies and agents, is also sued for his own defaults and negligence. The question remaining is whether the defaults and negligence charged directly against the defendant are sufficient in connection with the other facts alleged to make him responsible for the unlawful killing of Allred Aaron Marlow. The defendant, as United States marshal, certainly owed a duty in the premises to the said Marlow,-that of safe-keeping and protection from unlawful injury. The defendant's oath of office, his bond, and the necessary implications of the law, all point to such duty as imposed upon him. See Rev. St. U. S. §§ 782, 783, 5538. "Whenever the common law, n statute, a municipal by-law, or any other law, imposes on one a duty, if of a sort affecting the public within the principles of the criminal law, a breach of it is indictable, and a civil action will lie in favor of any person who has Sll "red specially therefrom." Bish. Non-Cont. Law, § 132, and cases tbere cited. uCommonly, where the law has cast a duty upon one to another, a simple neglect to discharge it. whereby the other has suffered injury, is actionable." Id. § 526. "When the injury proceeds from two causes operatin/!: together, the party putting in motion one of them is liable the sallle as though it was the sole cause. This is one form of a universal principle in law, that he who contributes to a wrong, either civil or criminal, is anRwerable as a doer. And it is immaterial to this proposition whether that to which he contributes is the voliticn of a responsible person or of an irresponRible one, or whether it is a mere in· animate force or a force in nature or a ld. § 39, and cases there· cited. That Ii United States marshal may take prison. ersinto his custody, permit them to be disarmed and shackled, and then negligently and knowingly deliver them over to incompetenf deputies and the known host.ility of mobs. without liability for neglect of duty, is a proposition which we think cannot be sanctioned.Substantially, this is alleKed against the defendant in this case. The judgment of the circuit court, in sustaining the exception to the plaintiffs' second amended original petition, was, in our opinion, errone-
FEDEBAI. REPoRTER,
Iioturged,and; so far as the' 'l'he judgment of the circuit coun is reversed, with costs, and the cause is remanded, with instructions to overrule the exceptions to the plaintiffs' second amended original petition, and otherwise proceed in this cause according to law.
mearll shows, are not well ta.ken.
BRUCE, District Judge, (dissenting.) The right to maintain this action arises, if at all, under article 2899 of the Revised Statutes of the state of Texas, and not upon any act of congress authorizing an action fordamages,onaccount of injuries causing the death of any person. The supreme court oithe state of Texas, in the case of Hendrick v. Walton,' 69 Tex. 192, 6 S. W. Rep. 749, have held that this statute does not authorize· an action against the principal for the act of his agent, and at page 197 the court say: ··Since, therefore, the langnage of our statute indicates that the legislature of our state did not mean to make persons responsible for the acts of their agents in t11ese cases, except such as are specified in the first subdivison of the article cited, it is but reasonable to conclude that they intended to render other persons liable only for their own immediate acts." The then, is given and survives the death of the injured person in the cases specified in the first subdivision, (which is as to common carriers;) but in the second subdivision, when the death of any person is caused by the wrongful act, negligence, unskillfulness, or default of another, tIle court holds the action is not authorized against the principal for the a,ct of his agent.' The general principle is that for tortious conduct, reslllting in death, everyone must be held responsible only for his own cond'uct. not that .of his agent, nor, by the same rule, that of his servant.' The action, then, is maintainable in the character of cases named in the statute, and, this statute, being in derogation of the common law. ,not to be construed to cover what is not fairly within its terms. The ltct, was manifestly intended for common carriers, to secure greater care on their part as to the skillfulness and. efficiency of their agents and. and was inspired, no doubt, by the desire to propublic. In the second paragraph, the words "agent" tect the or so the idea of holding persons responsible for the torts of their,agents and servants is negatived, and there is no under this act for negligence of agents and servants causing.iqjuries from which death results, except as provided in the first paragraph. The right to maintain an action under this act is restricted to the cases named in the act, and, except in the case of common carriers, is for the wrongful act, negligence, and unskillfulness of the individual himself, and not for that of his agent or servant. It may also be observed that in some of the states the act differs from that of to the representative of the deceased the same remedy Texas, which the djlceased party would have had if the injury had not reeulted is not the statute we are considering, and to give it in that effect woul4 be to go beyond .its terms. of, which resulted in the death of The
I'ARMER
e.
NATIONAL LlJ'E 48S'N.
829
Marlow, WllS the negligence of the deputy marshal, Johnson, in the per· tQrmance of his official duty; and it may be a question whether the depnty, Johnson, was in the line of his official duty at all, so that the marshal can be held to be responsible as claimed here.. But, aside from that, can the statute in question be construed to include a cause for alleged official negligence, such as is made in the plaintiffs' petition? It is the complaint is not only of the negligence of the deputy marshal, Johnson, but that negligence is charged also upon the marshal himself, althollgh he was not there at the time of the death of the prisoner, Marlow, and was not an actual participant in the violence resulting in the.death. But it is charged in a somewhat elaborate statement of the facts ,and conditions up to the violent attack upon the prisoners in charge of the deputy marshal, Johnson, that the marshal knew, or will be held to have known, the condition of the public mind at the time; the danger of mob violence to which his prisoners were exposed; and that his deputy, Johnson, was a very unfit man for the ex· ecution of the duty with which he was charged; in fact, that he was in :sympathy with the mob, and unfaithful to his trust. Concede that,and iUs stated strongly and fully,-and yet can it be held that this action here is maintainable against the marshal, upon his official bond, because his deputy betrayed his trust, or because the marshal was at fault, and did not use good judgment in the selection of his deputy to perform this duty? If an action is given on account of such wrongful conduct, negligence, or whatever it may be called, on the part of a United States marshal, then why not carry the principle further, and hold the appointing power of the marshal, if he-the marshal-be an improper maJ} for the discharge of the important and delicate duties intrusted t<;> him, responsible fo;: making an improper selection for the discharge of such duties; where negligence in their performance results in the death of a party. The principle contended for is wrorig in the application ,which is sought to be made of it, and the statute cannot fairly be held to mean more than that an action is given and may be maintained against persons for their own wrongful acts and negligences which !lrethe cause of the death of a party, and not the constructive, indirect, and remote cause.
FARMER
NATIONAL LIFE ASS'N OF HARTFORD, CoNN.
(Ctrcuit Gourt, E. D. New York. May 10, 1892.) 1. ll'Oll1l:Iq,N ;IN'3URANCE COMPANIES-SERVIC!! ON STATE SUPERINTENDENT-WAIVER.
a.
The appointment of the state superintendent of insurance as the attorney of. nonresident insurance company for the purpose of receiving service of process, as required by Laws N. Y. 1884, c. 346, S 1, does not authorize him to accept service by mail, and such service is void.
SAME-GENERAL ApPEARANCE-REMOVAL OJ' CAUSES.
The 11ling of a petition and bond for the removal of 8 cause from 8 state to .. federal court, and the proceedings thereon. do not constitnte such a general appearance all will prevent the federal court from letting asid.. the lIervice as illegal and