It appears by the affidavit of the agent of the plaintiffs in
error that he was their agent when service of process was made upon
him, and that their allegation that he was not then their agent was
therefore untrue.
The second section of the Act of March 3, 1887, c. 373, was
intended to place receivers of railroads on the same plane with
railroad companies both as respects their liability to be sued for
acts done while operating a railroad and as respects the mode of
service, and the service in the present case on an agent of the
receivers was sufficient to bring them into court in a suit arising
within the Indian Territory.
The terms of the summons were in accordance with the provisions
of § 4868, Mansfield's Digest of Statutes of Arkansas, under
which the summons was issued.
This action was brought by the defendants in error to recover
the value of a large quantity of hay which it was alleged had been
destroyed by a fire caused by sparks escaping from a locomotive
through negligence, and falling on a quantity of dry grass and
leaves that had been negligently allowed to accumulate on the
railroad operated by the plaintiff's in error as receivers. The hay
was cut from lands of the Creek nation under direction of Sallie M.
Halley, an Indian, one of the defendants in error, by Lafayette, a
white man who was to receive an agreed part of the hay for cutting
and curing it.
Held:
(1) That, in the absence of proof to the contrary, it must be
assumed
Page 163 U. S. 457
that Mrs. Halley was entitled to cut hay upon the land which she
occupied in common with other members of the Creek nation.
(2) That Lafayette, under his agreement with Mrs. Halley and his
performance of it, acquired an interest In the hay.
(3) That an instruction to the jury
"that evidence of a railroad company allowing combustible
materials to accumulate upon its track and right of way which is
liable to take fire from sparks escaping from passing engines and
communicate it to adjacent property is sufficient to warrant the
jury in imputing negligence to the company"
was correct.
(4) That there was no error in the treatment given by the
circuit court of appeals to the several assignments respecting the
trial court's instructions on the subject of the respective duties
of the railroad company and of the plaintiffs.
The rule in cases of tort is to leave the question of interest
as damages to the discretion of the jury, but as it is evident from
the record that the jury did not allow interest, but based their
verdict entirely upon the number of tons of hay destroyed at the
market value per ton, this Court acquiesces in the disposition made
by the circuit court of appeals of the question made in respect of
the instruction of the trial court on the subject of interest.
The complaint in this case was filed in the United States court
for the Indian Territory on March 17, 1890, and on the same day the
clerk of that court issued the following summons:
"United States of America"
"Indian Territory"
"The President of the United States of America to the Marshal of
the Indian Territory:"
"You are commanded to summon George A. Eddy and H. C. Cross,
receivers of the Missouri, Kansas and Texas Railway, a corporation,
to answer, on the first day of the next April Term of the United
States Court for the Indian Territory, being the 7th day of April,
A.D. 1890, a complaint filed against them in said court by Sallie
M. Hailey and Ben. F. Lafayette, and warn them that upon their
failure to answer the complaint will be taken for confessed, and
you will make due return of the summons on the first day of the
next April Term of said court."
"Witness the Honorable James M. Shackelford, judge of
Page 163 U. S. 458
said court, and the seal thereof at Muscogee, Indian Territory,
this 17th day of March, A.D. 1890."
"Wm. Nelson,
Clerk"
The summons bears the following return:
"Received this summons at 2 p.m., March 17, 1890, and I certify
to having served said summons by leaving a copy thereof with J. W.
Williams, the agent of the within-named defendants at Muscogee,
this 17th day of March. 1890."
"T. B. Needles,
Marshal"
The complaint began as follows:
"The plaintiff Ben. F. Lafayette, white, and residing in the
Indian Territory, and plaintiff Sallie M. Hailey, an Indian, and
residing in the Indian Territory, allege that defendants, George A.
Eddy and H. C. Cross, white men, were at the time hereinafter
mentioned, and are now, the receivers of the Missouri, Kansas &
Texas Railway, a duly incorporated railroad company doing business
in the Indian Territory, and operating its railroad through the
Indian Territory under and by virtue of the laws of the United
States, and that said George A. Eddy and H. C. Cross were on the
___ day of _____ duly appointed as receivers of said railroad by
the Circuit Court of the United States for the Eighth judicial
circuit."
It proceeded to allege that the said railroad was located near
the premises of the plaintiff Sallie M. Hailey, in the Indian
Territory; that the defendants had negligently permitted large
quantities of dry grass and weeds to accumulate on the railroad
right of way, which was 100 feet in width on either side of the
track; that the defendants on August 20, 1889, were operating and
running over the road an engine, No. 63, which was not supplied
with the best appliances for arresting sparks of fire, and that,
while using the engine upon the road near the premises of the
plaintiff Sallie M. Hailey, they negligently permitted it to cast
sparks and coals of fire into the dry grass on the said right of
way, thus starting a fire which spread over the land of the said
plaintiff, and there destroyed large quantities of hay,
Page 163 U. S. 459
which she and the plaintiff Ben. F. Lafayette had jointly put up
and cured, and in the proceeds of the sale of which the plaintiffs
were in certain proportions to share. It was averred that the
amount of the hay so destroyed was 666 1/2 tons, of the value of
$2,666, for which sum the plaintiffs asked judgment.
On May 6, 1890, the defendants entered a special appearance in
the case, stating that they appeared "specially and only for the
purposes of this motion, and for no other purpose," and moved the
court to quash both the said summons and the said return, upon the
grounds that the summons was improperly and illegally issued, did
not show the nature of the complaint filed, and did not set forth a
cause of action; that the return was untrue; that J. W. Williams,
who was designated in the return as "the agent of the within-named
defendants," was not on March 17, 1890, such agent; that J. W.
Williams was not on that day such a person as could legally have
been served with process against the said receivers, and that the
return and service were made improperly. In support of this motion,
the defendants proved that they were receivers of the said
Missouri, Kansas & Texas Railway, duly appointed as such by the
Circuit Court of the United States for the District of Kansas, and
by the Circuit Court of the United States for the Western District
of Arkansas prior to the institution of this suit; that as such,
they were engaged in operating the said railway previously to and
at the time of the service of the summons upon J. W. Williams, and
that J. W. Williams was on March 17, 1890, station agent for the
said receivers at Muscogee, Indian Territory. The defendants filed
at the same time the affidavit of J. W. Williams to the effect
that, since the month of June, 1887, he had been station agent for
the said receivers, but that he had never been the agent of "The
Missouri, Kansas & Texas Railway, a corporation" within the
Indian Territory, and was not such agent on March 17, 1890.
The court, having heard and considered the motion, overruled the
same, to which action the defendants excepted. Afterwards, on May
19, 1890, they filed their answer, denying
Page 163 U. S. 460
therein all the essential allegations of the complaint, but
protesting that they had not been served with process, and
asserting that the court had not acquired jurisdiction over them in
the case.
A trial was duly had before the court and a jury. After all the
evidence on the part of the plaintiffs had been introduced, the
defendants moved to have the same stricken out for the reason that
it did not show that the engine which caused the alleged damage was
engine No. 63, as alleged in the complaint. The motion was
overruled, and the court granted the plaintiffs leave to amend
their complaint by striking out of the same the words and figures
"No. 63." The defendants excepted, and then moved for a continuance
of the case in order to give them time to meet the allegations of
the complaint as amended. This motion also was overruled, to which
action the defendants excepted.
At the close of all the testimony, the defendants moved the
court to direct the jury to return a verdict in their favor. The
court overruled the motion, and the defendants excepted. They then
requested the court to give the jury certain instructions, among
which was the following:
"The court instructs the jury that if you find from the evidence
in this case that the hay claimed by the plaintiffs to have been
burned by sparks cast out from the fire of one of defendants'
engines was cut from the public domain, or open lands of the Creek
Nation, and not upon land owned or possessed by plaintiffs, or
either or both of them, and that said hay was so cut upon the said
public domain, or open lands of the Creek Nation, without the
consent of the said Creek Nation, or its officers or agents, that
then the plaintiffs cannot recover in this action."
The court refused to give this instruction, to which refusal he
defendants excepted. Among the instructions which the court gave,
and to the giving of which the defendants excepted, were the
following:
"X. The court further instructs the jury that evidence of a
railway company allowing combustible materials to accumulate upon
its track and right of way, which are liable to take
Page 163 U. S. 461
fire from sparks escaping from passing engines and communicate
it to adjacent property, is sufficient to warrant the jury in
imputing negligence to the company."
"XII. It is the duty of a railroad company to keep its right of
way clear of combustible materials, and failure to do so is a
circumstance showing negligence."
"XIII. The court further instructs the jury that, if they shall
find for the plaintiffs, then the measure of damages is the market
value of the hay when burned, together with interest at six percent
per annum from the date of the destruction of the hay."
On June 27, 1891, the jury rendered a verdict for the plaintiffs
for the sum of $2,664, with interest thereon at six percent, and on
July 10, 1891, judgment was entered in favor of the plaintiffs in
the said amount, with six percent interest on the same from date
until paid. The defendants took the case upon writ of error to the
United States Court of Appeals for the Eighth Circuit, where, on
February 15, 1892, the said judgment was affirmed. 49 F. 807. They
then made a motion for a rehearing in that court, and, the same
having been denied, they sued out a writ of error, bringing the
case here.
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This was an action brought in the United States Court in the
Indian Territory to recover for damages caused to the property of
the plaintiffs by the negligent management of the railroad of the
Missouri, Kansas & Texas Railway Company, a corporation created
by the laws of the United States, and at the time of the accident
in the control and management of George A. Eddy and Harrison C.
Cross, receivers, who had been appointed such by the United States
Circuit Court for
Page 163 U. S. 462
the District of Kansas and by the United States Circuit Court
for the District of Arkansas. Both of those districts and the
Indian Territory constitute a portion of the Eighth judicial
circuit of the United States, and the railroad in question
traverses the states of Arkansas, Kansas, and the Indian
Territory.
The first question presented is whether the trial court acquired
jurisdiction to try the case against Eddy and Cross, receivers of
the Missouri, Kansas & Texas Railway, by virtue of the summons
served on one Williams as agent of said receivers in charge of
their station at Muscogee, in the Indian Territory.
The return of the marshal was that he had served the summons by
leaving a copy thereof with J. W. Williams, the agent of the
defendants at Muscogee, on March 17, 1890.
On April 8, 1890, the defendants entered a special appearance by
attorney and moved to quash the return of the marshal, for four
reasons:
"First, because on the day alleged in said return as the day of
the service of said summons, to-wit, March 17, 1890, J. W.
Williams, styled in the marshal's return on said writ of summons as
the agent of the within-named defendants, was not such agent;
second, because said J. W. Williams, on the 17th day of March,
1890, was not such a person upon whom process against the said
George A. Eddy and H. C. Cross, receivers of the Missouri, Kansas
& Texas Railway, could legally have been served; third, because
said return is untrue; fourth, because said service and said return
were illegally and improperly made."
On May 6, 1890, the defendants, appearing specially, withdrew
the motion theretofore filed by them to quash the return of the
writ of summons, and, again appearing specially, and only for the
purposes of a motion to quash writ of summons and return thereon,
and by leave of court, filed such motion, and in support thereof
filed an affidavit of J. W. Williams, and a certified copy of the
order appointing receivers. The reasons filed in support of the
second motion to quash were as follows:
"First, because said writ of summons is improperly and illegally
issued; second, because the writ of summons in this cause does not
show the nature of the complaint filed herein; third, because no
cause of action is set forth in the
Page 163 U. S. 463
writ of summons issued herein; fourth, because said return on
said writ is untrue; fifth, because said J. W. Williams, who is
designated in said return as the agent of George A. Eddy and H. C.
Cross, receivers of the Missouri, Kansas & Texas Railway, a
corporation, was not on the day alleged in said return as the day
of the service of said summons, to-wit, said 17th day of March,
1890, such agent; sixth, because said J. W. Williams was not on
said 17th day of March, 1890, such a person upon whom process
against George A. Eddy and H. C. Cross, as receivers of the
Missouri, Kansas & Texas Railway, could legally have been
served; seventh, because said return and such service were
illegally and improperly made."
The affidavit of J. W. Williams was to the effect that at no
time was he ever the agent of the Missouri, Kansas & Texas
Railway, a corporation within the Indian Territory, but that since
the month of June, 1887, he has been station agent for George A.
Eddy and H. C. Cross, receivers of the Missouri, Kansas & Texas
Railway Company, and has been such agent at said Town of Muscogee,
in the Indian Territory.
It therefore appears by the affidavit of J. W. Williams that the
allegation, in the reasons filed, that said Williams was not the
agent of the said receivers was untrue, and that Williams was their
agent at the time and place named in the return.
So far, then, as the objection to the service and return of the
summons depended on the allegation that Williams was not the agent
of the receivers, it goes for naught, but the question remains
whether he was such a person or agent on whom process against the
receivers could be validly served.
In and by the Act of Congress of May 2, 1890, c. 182, 26 Stat.
81, 94, § 31, it was provided that certain general laws of the
State of Arkansas in force at the close of the session of the
General Assembly of that State of 1883, as published in 1884 in the
volume known as "Mansfield's Digest of the Statutes of Arkansas,"
should be extended and put in force in the Indian Territory until
Congress should otherwise provide, and among those laws so extended
were those relating to
Page 163 U. S. 464
questions of practice and procedure, and it is alleged in the
opinion of the circuit court of appeals in the present case that it
is conceded that under the laws of the State of Arkansas, which
have been made applicable to the Indian Territory, such service as
was had in the present case is sufficient to confer jurisdiction
when the defendant is a railway company or a foreign
corporation.
The trial court, and also the circuit court of appeals, were of
opinion that the third section of the Judiciary Act of March 3,
1887, c. 373, 24 Stat. 554, authorizing suits to be brought against
receivers of railroads without special leave of the court by which
they were appointed, was intended to place receivers upon the same
plane with railroad companies, both as respects their liability to
be sued for acts done while operating a railroad and as respects
the mode of service. We concur in that view and in the conclusion
reached that the service in the present case on an agent of the
receivers was sufficient to bring them into court in a suit arising
within the Indian Territory.
This conclusion renders it unnecessary to consider the soundness
of the further view of the circuit court of appeals that the
receivers waived their objections to the service of the summons by
pleading to the merits and going to trial, although having excepted
to the rulings of the trial court sustaining the regularity of the
service. Such is certainly not the general rule. The court below
thought the rule in Arkansas is that mere defects in the service of
process may be waived by appearance after a motion has been
overruled to set aside the service, in cases where the court has
jurisdiction of the subject matter of the controversy, and the
defect in the service only impairs the jurisdiction over the person
of the defendant, citing several decisions of the Supreme Court of
Arkansas to that effect. As already said, however, we do not deem
it necessary for us to consider that ground of the decision
upholding the validity of the service in the present case.
Another objection argued in the court below, and in this, to the
summons was that it did not sufficiently set forth the nature of
the complaint.
Page 163 U. S. 465
The circuit court and the circuit court of appeals were of
opinion that the terms of the summons were in accordance with the
provisions of § 4868, Mansfield's Digest of the Statutes of
Arkansas, under which this summons was issued, and we see no reason
why we should not agree with them.
Coming to the case on its merits, we are met by the contention
that the plaintiffs failed to show such title to the hay destroyed
as entitled them to recover its value. The title to the land from
which this hay was cut is in the Creek Nation, and it is claimed
that the Nation alone is in possession of the land and entitled to
maintain an action for trespass or injury to the same. The view
taken of this contention by the circuit court of appeals was that
the record failed to show whether the hay was cut on the common
pasturage of the Nation, or on lands at the time occupied and held
by Mrs. Hailey individually, according to the customs and usages of
the Nation, and that court declined to presume that either of the
plaintiffs was guilty of a trespass -- much less that in cutting
the hay either of them violated a criminal statute.
The latter observation, as to a violation of a criminal statute,
was occasioned by the putting in evidence by the defendants of a
statute of the Creek Nation as contained in the compilation of
their laws of March 1, 1890, which was in force at the time the hay
in question was cut and burned, and was in the following words:
"No noncitizen licensed trader who has not intermarried with a
citizen of this Nation shall be allowed to enclose more than two
acres of our public domain, nor be allowed to cut and put up hay
from one common pasturage, and any noncitizen, not intermarried,
licensed trader found cutting and putting up hay from the common
pasturage shall be fined ten dollars per acre for each acre so cut
and put up."
And as it was shown that B. F. Lafayette, one of the plaintiffs,
was a noncitizen licensed trader, not intermarried with a citizen
of the Nation, it was urged that he, as a trespasser, could not
recover for the hay. But the evidence for the plaintiff tended to
show that the hay in question was cut and put up for Mrs. Sarah M.
Hailey, a citizen of the Creek
Page 163 U. S. 466
Nation, who had contracted with Lafayette to cut and put up the
hay, and that Lafayette was to have an interest in the proceeds of
the hay in consideration of his services.
There was no evidence tending to show that Mrs. Hailey, in
procuring the hay in question to be cut and put up, was acting
illegally, or was in any wise a trespasser. And the statute above
quoted implies that citizens of the Nation might cut hay without
limit from the common pasturage, as it forbids only noncitizen
traders from cutting hay from the common pasturage, and we agree
with the court below that there is nothing in the present record
that would authorize us to say that the hay was gathered on the
public domain without license. No law of the Nation was shown
forbidding Mrs. Hailey from cutting hay on land which she occupied
in common with other members of the Creek Nation.
The trial court charged the jury as follows:
"The court further instructs the jury that evidence showing that
the fire originated from sparks of a passing engine is
prima
facie proof of negligence, and the burden shifts on the
railway company to show that it was guilty of no negligence,"
and it is assigned for error in this Court that the circuit
court of appeals erred in not correcting this error. It is
sufficient to say that no exception was taken to this part of the
charge in the trial court, nor was it assigned for error in the
circuit court of appeals.
Exception was taken in the trial court to the following part of
the charge:
"The court further instructs the jury that evidence of a
railroad company allowing combustible materials to accumulate upon
its track and right of way, which are liable to take fire from
sparks escaping from passing engines and communicate it to adjacent
property, is sufficient to warrant the jury in imputing negligence
to the company."
And that instruction was assigned for error in the circuit court
of appeals, whose refusal to hold the same to have been erroneous
is complained of here.
We think that part of the charge was plainly correct, and no
error was committed by the circuit court of appeals in sustaining
it. As we read the instructions given by the trial
Page 163 U. S. 467
court, the jury were not told that the action of the railway
company in allowing combustible materials to accumulate upon its
track and right of way which were liable to take fire from sparks
and communicate it to adjacent property was negligence of itself,
but was a fact from which, in the circumstances shown the jury
might infer negligence.
Nor do we find any error in the treatment given by the circuit
court of appeals to the several assignments respecting the trial
court's instructions on the subject of the respective duties of the
railroad company and of the plaintiffs.
The court instructed the jury that the measure of damages was
the market value of the hay burned, together with interest at six
percent per annum from the date of the destruction of the hay, and
to this instruction exception was duly taken.
Undoubtedly the rule in cases of tort is to leave the question
of interest, as damages, to the discretion of the jury. The circuit
court of appeals, while saying that the better, though not the
invariable, practice is to leave the allowance of interest in cases
of tort to the discretion of the jury, regarded it as quite evident
from the record that in point of fact the jury did not allow
interest, but based their verdict entirely upon the number of tons
of hay destroyed at the market value per ton. Regarding the error,
if such it was, as immaterial, the circuit court of appeals
declined to disturb the judgment of the trial court, and we
acquiesce in that disposition of the question.
The judgment of the circuit court of appeals is
Affirmed.
