Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

26 F.(2d) 24

which are situated in the Western judicial district of that state.

[1,2] Error is assigned to the trial court because of the denial of a motion made on be half of the defendant Isbell for a severance. This, under the authorities, rests in the sound discretion of the court. Nothing appears in the record which would indicate that the trial court abused this discretion in denying the motion, or that the facts in this case present a situation from which it might be apparent that either defendant could not or did not secure a fair and impartial trial by being tried jointly with his codefendant.

[3] The indictment itself is challenged because of its alleged legal insufficiency. The indictment charges in substance, that on or about the 30th day of January, 1926, in Washita county, in the Western district of Oklahoma, the defendants did then and there knowingly, willfully, unlawfully, and feloniously transport in interstate commerce from Wichita, in the state of Kansas, into the Western district of Oklahoma, a certain Buick automobile, giving the number thereof, which had theretofore been stolen from one J. Arch Butts, the owner thereof, at Wichita, Kan., the said defendants then and there well knowing said motor vehicle to have been stolen. This statement appears to be sufficiently specific under the recognized rule to advise the defendant of the charge made against him. It clearly appears that there was charged a joint transportation by the two defendants of a car stolen from a person named, with knowledge of its being stolen, from Wichita, Kan., into the Western district of Oklahoma, and that in a specified county in the latter state, to wit, Washita county, a portion of such transportation was fixed. It was in this county that the defendant Camp, according to the proofs, had eventually driven the car, and defendant Isbell had later endeavored to regain possession of it. Under the statute (18 USCA § 408) prosecution may be in any district in or through which the vehicle is transported or removed.

[4] Complaint is also made that the stolen character of the car is not sufficiently established by the evidence. The trend of the testimony upon this point is that the car was sold to one John Arch Butts, of Wichita, Kan., delivery made to him by the retailing agency, and payment received for the same; that the son of the owner was given permission to drive the car by his father, and that while using it the son parked it at a certain place in the city of Wichita at a certain time, from which place it was taken without his knowledge or consent. We think that this

evidence is sufficient to establish the character of the car here in controversy as a stolen motor vehicle. If we were to adopt the rule contended for by counsel for plaintiff in error, it would virtually mean that, in order to establish the stolen character of an automobile, the title owner would have to be in immediate personal charge of the car previous to the theft.

[5] The remaining point raised is to the effect that the verdict and judgment are not sustained by proper and sufficient evidence. In reviewing the record we are convinced that the evidence was entirely sufficient to sustain the verdict of the jury and the judgment of the court based thereon. The evidence seems to justify the conclusion that upon the trial each defendant was trying to absolve himself from criminality and place the burden of blame upon his codefendant. Considering that the crime charged was the transportation of a stolen motor vehicle knowing it to have been stolen, the jury could quite easily come to the conclusion that the defendants were equally guilty. It having been established that the car was a stolen one, and the defendant Isbell having admitted that he assisted in the transportation of it from Kansas to Oklahoma, the only remaining essential element of the crime necessary to be established as against Isbell was his knowledge of the stolen character of the car at the time of the transportation. In this respect we feel that the principal evidence is independently supported by various circumstances, which amply sustain this phase of the charge. The stories told by the defendant Isbell were conflicting, and not in consonance with the theory of a guiltless participant. He made statements to friends that, if the truth were known in regard to the car, the law would pick him up. He first claimed ownership of the car, and then stated that it belonged to another, whose name he admitted afterwards was fictitious, in regard to which his only explanation was that it was stated in the nature of a joke. Again, he made statements to the effect that, if the truth were known, there would be enough dope to send him to the penitentiary, and later said that he would arrange to send a man to Wichita for the purpose of transmitting a bogus telegram, in order to secure the release of the car from the authorities, who had taken it into their possession. All of these circumstances, together with others, tend to establish evidence of a guilty knowledge on the part of defendant Isbell.

All the assignments of error, as they were grouped by counsel for plaintiff in error,

have been considered in the foregoing, with the result that we find no error in the record of the trial court and its judgment is affirmed.

ST. LOUIS-SAN FRANCISCO RY. CO. v. BAEHLER.

Circuit Court of Appeals, Eighth Circuit. April 27, 1928.

No. 7728.

1. Railroads 350 (3)-Negligence of railroad in maintenance of crossing rendering it liable for death of motorist held insufficient for jury (Comp. St. Okl. 1921, § 5533).

In action against railroad for death of motorist, based on alleged negligence in maintaining crossing, on ground that it was not maintained of the width of the highway, proper evidence that crossing was in compliance with Comp. St. Okl. 1921, § 5533, in that it was unobstructed and maintained in good condition, and that crossing was within rule of reason as to what ordinary country railroad crossing might be, held to render erroneous refusal of defendant's motion. for directed verdict on ground that no negligence of defendant had been shown. 2. Trial 139(1), 141-Court should direct verdict where evidence is undisputed or so conclusive that verdict in opposition to it would be set aside by court.

It is duty of trial court to direct verdict at close of the evidence in cases in which the evidence is undisputed and in cases in which evidence is conflicting but of so conclusive character that court, in exercise of a sound judicial discretion, would set aside verdict in opposition to it.

In Error to the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.

Action by Mrs. Ada H. Baehler against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with directions to grant new trial.

Ben Franklin, of Oklahoma City, Okl. (E. T. Miller, of St. Louis, Mo., and Cruce & Franklin, of Oklahoma City, Okl., on the brief), for plaintiff in error.

Raymond A. Tolbert, of Oklahoma City, Okl., and Irving D. Ross, of Newkirk, Okl. (Embry, Johnson & Tolbert, of Oklahoma City, Okl., and Sargent & Ross, of Newkirk, Okl., on the brief), for defendant in error.

Before STONE and VAN VALKENBURGH, Circuit Judges, and KENNEDY, District Judge.

KENNEDY, District Judge. The defendant in error, plaintiff in the court below,

brought this suit as the surviving widow of one E. J. Baehler, under the laws of the state of Oklahoma, for the benefit of herself and minor children against the plaintiff in error, defendant in the court below, for damages growing out of the death of the husband and father at a railroad crossing because of the alleged negligence of the railway company in maintaining such crossing. The defenses were general denial and contributory negligence. In the court below the jury returned a verdict of $3,500 in favor of the plaintiff, a judgment was entered thereon, and the railway company brings the case here by petition in error.

The record discloses substantially the following facts surrounding the accident: The railway company maintained a line of railroad through Kaw county, and at the point where the accident occurred in open country it ran in a northeasterly and southwesterly direction, being crossed by a public highway running approximately due east and west. The generally maintained width of the highway was about 30 feet until near the approach on either side toward the railway track (the exact distance being in dispute) where it angled to the northerly side of the highway and there crossed the railroad track. Drainage ditches were maintained on either side of the railroad track, and at a point some 12 feet from the center of the railroad. track culverts were inserted 20 feet in length to permit the unobstructed passage of the drainage water, and these culverts covered with earth, with the exception of a slight portion at either end. At the crossing proper, planks 12 feet in length were laid on either side of both rails, and the surface at the approaches and between the rails was graded in such a way as to make a reasonably smooth crossing. The deceased had resided for a period of some years at a distance of about three-quarters of a mile west of this crossing, was generally familiar with it, and in traveling to Newkirk, a town of some considerable municipal proportions in that vicinity, 8 or 9 miles distant from his home, the usually traveled route was along the highway intersecting the crossing at the point where the accident occurred. On the 9th of February, 1925, the day upon which the deceased met his death, he was operating a thresher on the east of the railroad track and some 8 or 9 miles distant from it. Threshing operations had continued until dark that evening, after which the men so engaged, including the deceased, had partaken of supper. The deceased thereupon spoke of driving to his home in his Ford car, and stated that he

26 F.(2d) 26

would wait until the moon came up because operating a line of railroad, within this state, he had no lights on his automobile. The far- to construct a crossing across that portion of mer for whom the threshing was being done its track, roadbed or right of way over which advised the deceased against this, and invited any public highway may run, and maintain him to remain during the night, but that the same unobstructed, in a good condition thereafter, and about 9 o'clock, the deceased for the use of the public, and to build and left that place in his automobile, driving with- maintain in good condition all bridges and out lights. This is apparently the last time culverts that may be necessary on its right that he was seen alive. His lifeless body was of way at such crossing." found by passers-by near the railroad crossing about one hour and three-quarters later. The physical evidences disclosed at the place of the accident were that his car had left the generally traveled path of the highway near where it began to curve toward the crossing at the west approach; that the left wheels of his car had passed over the small portion of the culvert not covered by dirt; that the car had vaulted both rails of the railroad track, and, striking the ditch on the east side, had turned completely over, and, again righting itself, was found facing in a northeasterly direction. The body of the deceased was found lying a few feet distant from the car. When found, the car was able to be taken away on its own power, and, after a manipulation of some of the ignition wires, it was possible to produce a light in one of its headlights.

At the close of plaintiff's evidence, the defendant demurred to the evidence upon the ground that it was not sufficient to sustain the charge of negligence, which demurrer was overruled by the court, and at the close of all the evidence in the case the defendant moved for a directed verdict upon the ground that no negligence of the defendant had been shown, and that, in addition, the evidence showed contributory negligence on the part of the deceased. This motion was likewise overruled by the court, and the case submitted to the jury, with the result above indicated.

There are but two questions presented for consideration of the court here under the assignments of error: First, Did the plaintiff make out a case of primary negligence chargeable to the defendant? and, second, if so, was such contributory negligence established on the part of the deceased as in law to defeat plaintiff's recovery?

[1] The charge of negligence against the railway company and to which proofs of plaintiff were directed is that it carelessly and negligently maintained the crossing in question. The law of Oklahoma as found in section 5533, Compiled Statutes of Oklahoma 1921, provides:

"It shall be the duty of every railroad company or corporation doing business, or

By this provision it will be observed that it is incumbent upon a railroad company to maintain its crossing of a public highway so that the same is "unobstructed" and in a "good condition," and likewise bridges and culverts adjacent to such crossings. There seems to be no evidence in the record which justifies any complaint of the condition of the crossing or culverts as they were then and there physically constructed and maintained, as all the evidence, including photographs taken immediately after the accident, shows that the crossing was reasonably smooth and was unobstructed as to view for a considerable distance upon both east and west highway approaches. The contention of counsel for the defendant in error is thereby narrowed to the point that the railway company was negligent in not maintaining a crossing of the width of the highway proper. No authorities which seem to us in point are presented to sustain this theory in regard to a railroad crossing in the rural districts and under conditions which appear in this case. There are cases, some of which have been cited, which apply to crossings within municipal limits, but these cannot be considered as being in point here. Other cases cited are those in which there was either a defect in the construction of the crossing itself, or where there were holes not ordinarily observable by the traveler and obstructed by weeds, or some other features present which went to the point of causing the crossing as it was constructed to be condemned, but counsel have given us no citation applying to a country railroad crossing, where the mere fact that the crossing proper is not equal in width with the generally maintained adjacent portions of the highway has been held to constitute an improper or unsafe railroad crossing. The record discloses that the jury in its deliberations sought additional instructions upon this point, and, through a discussion of counsel in the presence of the jury, it was remarked by one of the plaintiff's counsel that a crossing "would have to be reasonably adequate to public travel." Our own experience teaches us, through use of the public highways, that at the crossing of railroad tracks the traveled portions of highways are

usually narrowed to some extent in country districts. But more important here is the fact, clearly established by the evidence, that any one driving an automobile in the daytime or at night with proper lights would have absolutely no difficulty in negotiating this erossing by following the well-defined course of the traffic which the evidence showed had been established for many years at this point. There was no obstruction which obscured the view, no unsafe condition of the culverts or the crossing itself, which was properly planked and graded and of adequate width to accommodate the ordinary traffic in that district. Certainly such a crossing was clearly within the scope of the Oklahoma statute, in that it was unobstructed and maintained in good condition, and also within the rule of reason as to what the ordinary country railroad crossing might be.

[2] In our opinion the plaintiff failed to sustain the burden placed upon her in proving negligence on the part of the defendant railroad. The rule in regard to directed verdicts, announced by our court in the case of Atchison, T. & S. F. R. Co. v. Wyer (C. C. A. 8) 8 F. (2d) 30, at page 32, is as follows:

"It is the duty of the trial court to direct a verdict at the close of the evidence in two classes of cases: (1) That class in which the evidence is undisputed; and (2) that class in which the evidence is conflicting, but is of so conclusive a character that the court, in the exercise of a sound judicial discretion, would set aside a verdict in opposition to it. Small Co. v. Lamborn, 267 U. S. 248, 45 S. Ct. 30 [300] 69 L. Ed. 589 [597]; Ewert v. Beck, 235 F. 513, 149 C. C. A. 59; Fricke v. International Harvester Co., 247 F. 869, 871, 160 C. C. A. 91; New Amsterdam Casualty Co. v. Farmers' Co-op. Union of Lyons, Kan. (C. C. A.) 2 F. (2d) 214; Walton Trust Co. v. Taylor (C. C. A.) 2 F. (2d) 342; Kintyre Farmers' Co-op. Elevator Co. v. Midland National Bank (C. C. A.) 2 F. (2d) 348."

In these circumstances we feel that the trial court committed error in not sustaining the demurrer of defendant to plaintiff's evidence, and in any event in not directing a verIdict for the defendant at the close of all the evidence in the case.

The other point relates to the question of contributory negligence. There is undoubtedly established by the testimony under the rule in the federal courts a clear case of contributory negligence on the part of the deceased, because the conditions surrounding

the accident show that he must have been driving at considerable speed in order for the accident to have happened in the way it did,

and that he did not have his car under control, as well as the strongest kind of evidence that he was driving without lights. However, considering the peculiar provision of the Oklahoma Constitution, that the defense of contributory negligence or assumption of risk shall in all cases whatsoever be a question of fact and left to the jury, together with the fact that our court has not decided the question as to whether or not this rule is binding upon the federal courts in the trial of cases of this character arising in Oklahoma, we think it unnecessary to discuss this phase of the case further, as to whether or not the trial court committed error in not sustaining the motion for a directed verdict upon the ground of contributory negligence shown.

For the reasons stated in the point first discussed, the case will be reversed and remanded, with directions to grant a new trial.

ENGLISH et al. v. GAMBLE. Circuit Court of Appeals, Eighth Circuit. April 27, 1928.

1. Appeal and error

No. 7827.

1054(1)—Admission of

immaterial evidence in trial to court without jury held not reversible error.

In trial to court without jury, admission of immaterial evidence cannot be said to be prejudicial, as it may be disregarded in assembling and considering competent evidence.

2. Appeal and error 1010(1)—Judgment on question of fact in case tried without jury will not be disturbed if sustained by any substantial evidence.

When case is tried to court, a jury being waived, if there is any substantial evidence to sustain judgment upon question of fact, such judgment will not be disturbed on appeal. 3. Banks and banking

248 (1)—Directors

who deposited money in escrow to purchase stock of nonresponding stockholders held liable for subsequent assessment.

Where money was deposited by directors of bank in escrow to satisfy deficiency resulting from stock held by stockholders failing to respond to assessments, and nonresponding stock was purchased with such funds by cashier as trustee with knowledge and consent of directors, held that directors thereby became joint owners, jointly and severally liable for subsequent statutory assessment upon such stock.

In Error to the District Court of the

United States for the Western District of Oklahoma; John H. Cotteral, Judge.

Action by Joseph A. Gamble, as receiver of the First National Bank of Devol, against F. M. English and others. Judgment for

26 F.(2d) 28

plaintiff, and defendants bring error. Affirmed.

W. C. Stevens and J. H. Cline, both of Lawton, Okl., for plaintiffs in error.

Dudley B. Madden and Walter Hubbell, both of Walters, Okl., for defendant in er

ror.

Before STONE and VAN VALKENBURGH, Circuit Judges, and KENNEDY, District Judge.

KENNEDY, District Judge. The receiver of the First National Bank of Devol, as plaintiff in the court below, for whom Gamble, a subsequent receiver, was later substituted, brought this action against the plaintiffs in error, there defendants, to recover the statutory assessment upon stock alleged to have been owned by them in said bank at the time it became defunct. The defendants first demurred, and, upon such demurrers being overruled, filed their separate answers, which in turn were followed by replies, and upon the issues thus joined the cause was tried to the court without the intervention of a jury upon written stipulation of the parties.

to

In brief, the following situation was disclosed by the evidence: Some time in 1924, owing to the bank being in a depressed condition as to its finances, an assessment amounting to $25,000 was made among its stockholders to which a certain portion of such stockholders did not respond; such uncollected assessments amounting to $9,400. Upon demand of the office of the Comptroller of the Currency through the regular channels it was required of the officials of the bank that this sum should be placed in the bank or the institution would not be allowed open its doors. The defendants, stockholders and also directors of the bank, raised this sum among themselves and deposited it in the bank in escrow in order to satisfy the requirements of the National Banking Department. An attempt was then made by the bank to close out the stock which was in default on account of the unpaid assessments, and upon the first attempt no sale resulted. Appeal for advice was then made to the Comptroller, who advised the cashier of the bank by letter, in substance, that the defaulted stock must be sold out, and suggested that said stock be noticed for sale by advertisements in a local paper for 30 days, and, in the event no other bids were received, the amount held in escrow in the bank which was put up by the directors to cover the unpaid delinquency in the assessment might be applied to the purchase of such stock, a trustee appointed to represent the purchasers, the

stock reissued upon the books in the name of such trustee, the old stock thereupon canceled and notice given to the old shareholders of such cancellation. After consulting with the directors, defendants here, this plan of procedure was agreed upon and followed. The sale was conducted upon published notice at which, no other bidders being present, the stock was bid in by the cashier for the stockholders who had previously advanced the money and the stock reissued in the name of the cashier as trustee. The correspondence shows that this plan was merely a suggestion on the part of the Comptroller and in no way obligatory upon the directors. Some months later the bank failed. It was taken in charge by the Comptroller, and a receiver appointed, who thereupon proceeded to liquidate it. A demand was made upon the defendants as owners of the $9,400 worth of par value stock acquired in the manner hereinbefore outlined for the statutory assessment of 100 per cent. par value, which demand was refused, and this suit instituted for its collection.

Three points only are raised which seem to require the attention of this court; the cause having been submitted upon briefs without oral argument:

First, error of the trial court is alleged in the overruling of the separate demurrers. Without outlining in detail the averments of the petition, we are of the opinion that the petition is amply sufficient to present the issues upon which the plaintiff claimed the right of recovery.

[1] Second, as to the evidence of the witness Donahue' concerning the purported action of the defendant English in selling out his stock before the bank closed, it may be said that this evidence was immaterial. Yet in a trial to the court without a jury it cannot be said to be prejudicial, and it may be disregarded in assembling and considering the competent evidence which goes to sustain the allegations of the petition. There was therefore no reversible error on the part of the court in admitting this testimony.

[2, 3] Third, the judgment of the trial court is assailed upon the ground that the evidence is insufficient to sustain said judgment, which point is presented under several different assignments of error. Under the well-recognized rule that, when a case is tried to the court, a jury being waived, if there is any substantial evidence to sustain a judgment upon the questions of fact, that judgment will not be disturbed, we come to the conclusion that the evidence is not only sufficient, but preponderates strongly in favor of the receiver. The proper solution of the contro

« ΠροηγούμενηΣυνέχεια »