820
FEDERAL REPORTER,
vol. 48.
ashe now contends, to be untrue, he ought ndt to have read them. If false, why offer them in evidence? What purpose could they subserve to be firstread and then argned away as being untrue?, The absurdity of such a practice is obvious. To tolerate it would but bea waste of time. Having introduced the depositions, complainant is bound thereby, unless there is other proof in the record showing the fact to be otherwise. There is IlO such proof, and it .ollows thai cbmplainant is not entitled to a decree on the ground that the conveyances mentioned were made to hinder and defraud creditors. But complainant urges another ground of relief. He insists that, conceding the testimony of these witnesses to be true, he is entitled to a decree. They both adinit that the rents realized from defendant's separate property, which constitutes the' consideration for the conveyances attacked, were paid' to the husband by the wife's direction and request; Rnd thereupon it is contended that "when a married woman, living with' her husband, consents to and permits her husband to receive the inC'ome of her separate estate," the estate thus received "becomes absolutely his, alld that he is not answerable to her 'for it," and that theteceipt of such income" is not a sufficient· consideration to support a' conveyance from the husband to the wife," as against his creditors, unless there is an agreement by hinI "to repay or invest the same for her." We concur in the proposition as stated; but we think 'the evidence (if the testimony ofthe witnesses lIlentioned is to be received as true) brings this case within the exception. The rents realized [rom defendant's property were by her direction paid to her husband, but it was so paid upon an "understanding" that he would invest the same forhei' benefit. This understanding was repeatedly recognized by him. He thus became her debtor, morally and legally. His obligation to account was enforceable in a court Of conscience, and the'conveyances made in discharge thereof are supported by a valid consideration. Complainant's bill will be dismissed,with costs.
MELVILLE
v.
MISSOURI RIVER,
F. S. &G.
R.
Co.
(Circuit Court, W. D. Mi88oUri, W. D. May, 1880.)
1.
MASTER AND SERVANT-DUTY TO EMPLOY SKILLFUL FELLOW-SERVANTS.
A company employing helpers to its blacksmiths is bound to see that they are, reasoiJ,ably skillful in that work; but this duty is discharged if the foreman em· ploying exercised ordinary care therein. .
2.
SAME-NEGLIGENOEOF
A blacksmith, injured by the careless blow of a skillful helper, cannot. recover. from tl:l,e;;r. commp.D master, unless the helper was habitually careless,aJ;ld that fact was known to the master, and not to the blacksmith. ' . A servant, injured by a mere accident, incident to the. work in which he is employed. cannot recover from his master. ,
8.
SAME-AoCIDENTS..;,;,RISKS OF EMPLOYMENT.
At Law.
Action for damages for personal injuries.
MELVILLE V.MISSOURI RIVER, F. S. & G. R. CO.
821
KREKEL, J., (charging jury.) The case about to be submitted to you, in the application ofthe principles which must govern it, is of importance, and deserves, and I have no doubt will receive, careful consideration at your hands. Melville, theplaintift· in the case, sues the receiver of the Ft. Scott Railroad Company for $10,000 damages on account of injuries received while in the employment of the company as a blacbmith. The injury for which the damages are claimed is the loss of one eye, which was caused, as alleged by plaintiff, by the unskillfulness of.a helper or striker in the defendant company's employ. The evidence tends to show that Melville, on the 11th day of August, 1876, was engaged upon apiece of blacksmith work in the shop of the defendant company. His usual striker or helper being absent, and he, Melville, needing help, he rllpped uporithe anvil in the customary way for help, and one Matoon. a striker or helper of an adjoining fire, stepped up to answer the call. The piece of iron had to be bent in. order to square it. After having been l3utlidently bent over for squaring, a flatter was held over the bent part to be stricken sidewise by the helper so as to, bring the bent iron plate to a . square., It is claimed by plaintiff, Melville, that in striking the flatter the helper did it so unskillfully that tbereby a piece of iron was detached by the blow, which struck and put out his. plaintiff's, eye. All of this might be true, as alleged by the plaintiff, and yet the company is not liable unless the striker was unskillful, applying the term" u,nskillful" tothe work for which he was engaged. If the helper was skillful, and struck a foul blow, or even if an unskillful blow did not cause or contribute to the injury. the consequences of such foul blow must be borne by the plaintiff, and the company is not liable therefor. All the defendant company is bound to do is to supply a sufficiently skilled striker. or helper for the work in hand..· It is not liable for neglect or carelessness -of the helper, unless such neglect or carelessness was habitual, and was known, or by the use of reasonable diligence might have been known, to the company, and was unknown to the plaintiff. The law is that laborers who engage in joint work assume to run all ordinary risks growing out of the occupation and work in which they are engaged, includiog Acts of skillful eo-laborers. There, are no complaints of any fault in the tools or appliances furnished by the company. Three questions are to to be determined by you: (1) Was the striker or the helper, Matooll, -sufficiently skillful for the work in which he was eng,aged? (2) Did plaintiff directly or indirectly contribute to the injury? (3) Was the injury an accident? The law applicable to these several propositions I will proceed to discuss in the order in which I have stated them. Whether striking or helping in a blacksmith shop, or work such as has been testified to, is a skilled profession, to be learned by practice, .clnd what amount of skill and practice is required to become a skillfulstriker, is· for you to determine from the evidence. In trying to arrive ata proper conclusion you will carefully consider the testin;l.Ony bearing upon the question, and take into consideration, also, the acts of -the plaintiff. The testimony shows that plaintiff had been in different companie&' shops for five years before the occurrin.g of in-
822
J'EDERAL REPORTER.
jury complained of. 'Dheknowledge he must havehali of the work upol'lwhich he wasengaged,and the amount of skill necessary on part ofthe helper to aid himjhis knowledge of the helpers in the shop who could obey his call; his failing to complain,-:-all this will be considered by you for the purpose of arriving at the conclusion whether Melville conSIdered such helpers, including Matoon, sufficiently skilled to aid' him j for, bad he been dissatisfied, he could have quit the service of the company at any time. Much has been said about rules and the grading of mechanics in well-regulated shops, inapplicable in this case. The Ft. Scott ,Railroad Company had a right to make its own rules and regulationsi'Elgarding its mechanics and the employment of its hands, and if the mannei' in whieh it was done was known to this plaintiff he is supposed to have acquiesced in it, and has no cause of complaint, though such employment and control differed from other similar or like establishlnents. It was the duty of the defendant company to supply suitable helpers, and the plaintitfhada r.ight, in the absence of knowledge to the contrary, to presume that helpers employed were sufficiently skilled; but 'this obligation on part of the railroad is fully discharged if ordinary care was exercised by the foreman in the employment of hel pers. Of this you are the judge under the testimony. To one thing I desire to call your attention "pecially, and it is this: That if you find from· the testimony that Matoon was sufficiently skillful for the work in which he was engaged, and struck the blow which eaused the injury negligently or carelef.sly, the railroad company is not responsible for the consequences of such neglect or carelessness. The consequences of such acts must be borne, as already stated, by those engaged in the common work. Passing to the second proposition,-the contributing on part of plaintifho the injurY,-I may dispose of this branch of the case by saying that ifyoti;shall find froln the tp.slitnony that plaintiff, by his own acts, materiallyeobtributed towards bringing about the injury complained of, he cannot recover. I now pass to the third and most tmportant part of the case, and invite youi' close llttention thereto;nameJy, to the question, was the injury received by the plaintiff Cllused' by an accident? It is for you, del' the e'videnoe. to determine whether the injury received by plaintiff was accidental. If accidental, the mislortune must be borne by him. upon whoni it falls'. The law furnishes plaintiff no redress. The theory is that either a sCllleor a small piece of iron was detached by Matoon's blow from the flatter, whioh flew intoplaintilf?s eye, and destroyed it. The flatters and hammers have been described to you. The testimony tends to show that both; when new, are made somewhat rounding on their lace; that· by the blows' both the hammer uno flatter are grad ually flattened, after oonsiderable use, ragged edges, pieces of which by use ared'etached. It further appears from the testimony thatthe strokes. eveh when most carefully made by the bez;t of strikers, donot always fall upon the same place the face of the flatter. You havebeen told by the witnesses how,after long use, flatters wear down to...
PRICE
PRICE.
823
near the edge. You must judge from the testimony and experience how many blows it takes to wear out a flatter, the Use of flatters generally, the number of injuries similar to the one under consideration occurring, and -determine whether what happened was an accident or not. If you cOlIle to the conclusion it was an accident, the plaintiff is remediless, and the 'COmpany not liable.
PRICE 17. PRICE
et al.
(Dtstrlct COt//I't, E. D. Virginia. J'uue,l8S0.)
Thesssignee of B bankrupt cannot, eltha!' voluntarily or' by service of process, become a party to a suit In a ,state'col1l't against the bankrupt's lands. st!thOrity from as that oourt, under the bankruptcy act. has eXcluBivejurisdiotion over '&he entire estate. , , .\;be assignee is madesparty sucb sutbority't tbe bankrupt after litlgating tbe case dUring aye 'years tel a ftn81 decree in tlie '.te:te subl'etne court, have all injunction in the banki'uptoy, court· against t1;le Ult" outlo,n ahuah,decree. . ',' ,
O,J'
IN,l:)TA'l'B ·CoUItT.
, In .Bankruptey.· Bill ,by. Warqeld Price, , Price 'Others to enjoiJ;l, the of ,a decree in ,a ,state On/motion to dissQlve SipreliminllTy injunction., Granted. J. 4. Meredith and E. ,Barksdale, for plaintiff. , ", 1lambrough. & Ha'T/1jbrough and Guy « Gillici-rrt, for defendants.
HUGHES, J. In this case a lien creditor filed a, bill in a state cpurt in September, 1874, to subject, land of the bankrupt's estate b01,lndby 1rustJ.deed, and Joined the bankrupt. and his, assignee in bankruptcy, among others, as defendants. It was competent ror the creditor to do so, ifhe could 'secure tQe.assignee in bankruptcy as a. but the' assignee h.ad no ilegalautPority ,to become suchdefenda,nt unless by special order of the bankrbptcy court; that court having e:x.clusiv:e juris. diction over the bankrupt's estate, real as well as personal. See sixth clause of section 711, the eighteenth of section 563, and section 4972, Rev. S1. U. S. Unless express authority from the bankruptcy court were necessary to authorize an assignee to be sued in respect to the bankrupt's estate vested by law in him, the law of congress giving exclusive jurisdiction to the bankruptcy court over the bankrupt's estate would be futile, and that jurisdiction would be of no avail. The complainant in the suit in the state court had no right to call the assignee in bankruptcy into that court; nor could the assignee consent to be a party there, ex· cept by express order of this court, granting leave. The suit in the state court was therefore faulty in its inception. Nevertheless it went on to a final decree, and was taken up from that decree by l>etition for .appeal to the appellate court of highest resort in the state, and the peti.
