FEDERAL REPORTER ,
vot ,52.'
could, have ,shed
thet9wn.: .'Up6lflthfFll.dmitted fBcts dfr't!ie:case;' therefore, the, plaintitr' recovery' orliis ',Jtli'6neythe 'vert 'day' he recei ved' tbek<>,uds'hand run thE! ijmet ,e'Plittty npghthave to apply! tbisruleJ initbis case" The. pajdthe intews.t on the bonds fGrJtwoyears.: ' totlresepaymentsthe:utmoSi'efl'f;lct that can be IfOf ,them }be stntute did >l10tc'run as long as
tllat 'date the :Pl1id U() .and; ,undouhtedly , ute oflimitations would run· against an action for the money paid the bondft:Jfromthall,date. F\JJr'tong v. Stone, 12 R. 1. 437; Bishop v. 12 32,57; B'ree v. Holbech, 2 Doug. '654; Oowpet Bmg. 748, 23 E. C. L. 788; Lunt v. .. . School Dist., 26 Kan. 490; Weaver v. 52 Md. v. AdarlUl" 16 Mass. 45,6; Palmer v. Palmer,
Ao,
1
Il).nq _
inte.rest,
3,,6 i M,16W i,I,188,',!494; inpleil",.MC'P,>ift8" '50 Mo.', '" '. ofthe' cii'tmitcourt is affirmed,.' : , ,': It ff II ; , L
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(d, ,'lr" .H:-oDG,ES (Circuit Cwn of Appeals, EiOhth Oircuit. October 8, 1892.)
:No,20. , 1. . 'The questlori& wlIethercertain commercial correspQlldence cQnstituteu,contl'aot, pr'Oper ,construction,'s, are though in and,,)t lIP. excepti01lal'eltsell, when tlie.uleged contract ,rests partly in correspondence snd .partly in ,enosl Communications, the q;uest,onwhether there is a contraot, is for the ,J\1,ry; " ' , f"j; , oil' COURT ANDJ'U:Ry. '
.. SA,ME-:aRi:ACH,. ,. .' . , The: oonsignees 'of sbipments of wheat 'W&l'6 under contract., to collect tbebill
_'" -troIn !pl1lillg ·. to an order on tbe railroad . oompany to deliver, the to the mining company,' arid thereupori to reinJt the . : amo,un,to W,''lIIi&. Bh.i,1>I>, er,s." HeZd' that, ii, '.,the 00" DSlgnees. eXP,resslY or imllllMl1 con" [' by tbe. raUroad,CQmpav,y to the mUllng oompany ment o'nhe DiU, they were l}able for its llrice. " ·,; . . In ali 'actioD ;by the consignors QQnsignees, to recover the valUe Of the wheat, tW tbat wheat.was ,to thllm by the railroad comvany. was redund'arlt, and need 'rio,t,be roved,ft app. ea.ring that the'Whe.at was in cars on oonitede.4ly subject as ' P,
'" SMONDARY-¥jl'IDIINCB'-,-;4,;l>,\II,ilSP;llLITt;.",.
·Parolevtd.ence bt tl111statioh master o:t:.the contents of a ltriting given him by ·. the ,consigtil!e&, statin'!!, that' 'the railroad Was not liable for ,Wheat consigned to . tbem and F.':ill}ng company without written, orders, was it having'bil&n shown tll"t'the paper was lost, and could not be found by'ilillgent .ear'oh:, ,,'i' ' ) . .,'''.: ':'1":·;)'
.',.
.'
In Minnesota.: ·
CircuitCol'lrtofthe·United States for the District of
"''-SCANL.AN''. 'HODGES,
'Atti.onhy Lyman F:' Bodgesa.nd Slimuel Y. Hyde against, Michael Scanlan and O. G·. Wal\oto recoVer the value o£24 bar loads:ofwheat. Verclietand 'Defendants bring error. ;Affinned. :rStatemcnt by CAwwELL,Circuit Judge: ; . ' ;, I ' This suit was brought in the circuit court of the United States distriet, of Minnesota. by Lyman"F, ,Hodges and Sariluel Y. Hyde', 'the defendantsin error,agttitlst MichaelScanlan aridO. G. Wall, the 'plaintiffs in error, to recover the'value of 24 car loads of wheat, alleged to be of, the \Talue of $8 The defendants, in error were dealers in wheat on: the Southern Minnesota Railroad, with headquarters at La Crosse, Wis. The plainHffs in error ,,;'ere bankers, doing business unof Ba,pk of Lanesboro, at Lanesboro, a station on rail50 miles west of La, Crosse. At Lapesboro. road; in there was a firm engaged in operating flour mills under the DlitU\e of Lanesboro Milling 'Oompany. The complaint alleges "'that in the year 1884 the plaintiffs and the defendants entered into an agreement and arrangement whereby tlle'Lari'es'-, bora Milling Company, a company doing business as, millers in said Lanesboro, were to order from the plaintiffs such wheat as they desired to USEl in their milling business, and that the plain'tiffs would deliver said wheat free on board of cars to said defendants, and the same should be consigned by rail to said defendants under their style of Bank of Lanesboro. That the said bills for said wheat should be mailed by plaintiff to said bank, and the said wheat should be shipped by plaintiffs exclusively to the said Bank of Lanesboro. That said bank would receive said wheat and hold possession thereof until the said Lanesboro Milling Company paid for the same" ,vhen the bank was to remit therefOr to. the plaintiffs; or, in default o(so bol<;ling possession, defendants agreed to pay for said wheat themselves. That under said agreement and arrangement wheat was shipped by plaintiffs to the Bank of Lanesboro, as orderedby the Lanesboro Milling Company, almost, daily from May, 1884, up to April 9, 1889. The'wheat was consigned in the same way, and the said defendants have dUring all of said time, up to March, 1889, the bil1 s Jar the price of said wheat." That between March 8 and April 9, plaintiffs, at the request of the milling (lompany, shipped to defendants 24 cars of wheat, which "was all received by the defendants under the agreement above stated. * * * . Thllt the said defendants, in violation of their contract with plaintiffs, allowed said Lanesboro Milling Company to take possession of and use said wheat without collecting or receiving the price therefor;" and that the mill company has not paid for the same, and is insolvent; and they demand judgment for the value of the wheat. In their answer the defendantsaomit that the plaintiffs sold wheat to the milling company, and shipped it by rail consigned to the defendnever had, nor was it agreed or understood ants; that they should have, of or dominion over or any responsibility for the said wheat, except to give an order for its delivery on payment therefor, and to transmit to the plaintiffs, less exchange, on pay-
356,
FEnEnALREPoRTER. vol.
52.
menttherefor to them by tbe1S8.id milling company." They deny that they ever authorized delivery to the milling company of any of the wheat shipped under that arrangement until it was demanded and paid for by that company, or that any wheat was delivered to them by the plaintiffs. Prior to June, 1884, one Easton owned, and managed the Bank of Lanesboro" and there existed between him and the defendants in error and the milling company an arrangement by which the wheat sold by the defendants in error to the milling company was consigned to the bank upon the understanding expressed in the following letter: "LA CROSSE, Wrs., May 12th, 1884· .. Bank of Lanesbol·O. Lanesbol'O, Minn.-GENTS: Hereafter our agent on the railroad will send bill of wheat shipped you for Lanesboro Milling Company, and we shall expect you to collect on those bills. and not wait for a bill from our office, unless you stand in the gap.-thatis, become responsible for the wllest. .If there are any errors, the mill company and our ,firm can adjust llfterwards. We inclose a list of freights frqm stations that are liable to ship ' there. We will advise our agents to put rate of freight on bills. HODGES & HYDE. , , "Yours,truly,' uWeship to you to collect before the wheat is delivered. , , "H.&H." About ,1st ofJune, 1884, the plaintiffs in error became the owners oLBankofLanesborQ,and succeeded to its business, which they continued to conduct in ,that name. At their respective dates the defendants in error wrote the plaintifIs ill error the following letters: "HODGEi& HYDE. c'tJea,z'er8'in Grain and Produce on the:Soitthern Minnesota Division 0/ the , 0., M. & 13kIf'.. Ry. ' ,
, " ItLA CROSSE, WIS., June 6th, 1884. ," Bank of LanJsboro, Lanesboro, Your favor 5th inst..; with slatemenll,l\t hand", ' .Jf .possiblel we will examine Rccount before' this letter, is mailed., Wie,fl,re surprised lltYOlll' inquiry, how abQutwbeat shipped 90. P as we all abQ\lt it. and h,ad met1)Qd as Wesflip wheat from cer,tainstaUons to Bank of Lallesbol'o. At time of sl!ipthent, our agent at staUot). shipped fro'lu. Dialls an invoice to Bank of Lanesboro." On arrival of Car of wheat. Bank M' Lanesboro collects the bill from andllellvers the wheat to Lant>sboro MiIlingCo. Bk. of L. then credits our account with the amount collected. Why the inquiry P Has Bk.of L. proprietors P "HODGES & HYDE. "CLARKE."JUNE 18th, 1884. Messr8. Scanlan & Wall, Home £xchange Bank, Lanesboro, Minn;GENTLEMEN: We have sold to Milling Company eleven qaJ:S of Wheat, wqicb wiJl be shipped .to you. The price of wheat is 91 cents per less fl'eigl;1t toChicago.}nvoice will be mailed to you shipped ,.on arrivalof each car please collect amount from Lanesboro tben deliver Wheat, and remit proceeds to us. * * * , 'Your friends, ', 'HODGES &, HYDE. "CLARKE." U
SCANLAN
tI. HODGES.
857
The course of business was this: When a car of wbeat was shipped to the bank the defendants in error sent to the bank a bill therefor in the following form: "WELLS, MINN., March 14th, 1889. "Bank of Lanesboro, Lanesboro, Minn., to Hodges & Hyde, Dr·· Deale1's in Goal, (Jrain, and Produce: "On Southern Minnesota Division, C., M. & St. P. Railroad. "1 car wheat, No. 5,594, Am't. $396.95." "467 bushels, at 85e. At the same time the milling company was advised of the shipment by a notice in the following form' "LA CROSSE, WIS., March 8th, 1889. "Wheat shipped to Lanesboro, Minn. "Bought of Hodges & Hyde. "Dealers in "Grain and Produce. "On the Southern Minnesota Division, C., M. & St. P. Railway. "DATE. CAR. WHERE FROM. BUSHELS. GRADE. PRICE. AM'T. "One (I) car wheat. "5304 Mapleton 462 76c. "Tare 15 4t "447 SOl
$359.80."
The defendants in error continued to ship wheat to the bank and the bank continued to collect and remit, less its exchange, for the wheat consigned and billed to it from June, 1884, until May, 1889. The shipments amounted on an average to 6 car loads of wheat per week, averaging in value about $350 per car, making the total value of all shipments for the whole period between $500,000 and $600,000. During tbis time the business was conducted to the satisfaction of both parties, and without complaint, save in one instance, the occasion and the nature of which is shown by the following correspondence: On the 6th dayof January, 1889, the defendants in error wrote the plaintiffs in error the following letter: .. (Con fidentiaI. ) JAN, 6th. "Bank of Lanesbo1'o, Lanesboro, Minn.-GEN'l'S: There are 34 cars wheat billed to your bank by us tbat has not been paid for. We understand they have been, or most of them have been, unloaded. Now, will you please tell us just how this matter stands? We are holding you, and we suppose you are holding the R. R. Co. We presume this matter is all right, but it implies a good deal of money, which we want before you give orders to have it unloaded. Have they the wheat on hand that is not paid for? We hope this matter wi1l come out O. K. without trouble; and please consider this letter confidential. Yours, truly, HODGES & HYDE." To this letter the plaintiffs in error made the following answer: "M. SCANLAN, President. O. G. WALL. Cashier. "Bank of Lanesbo1'o. SCanlan & Wall, Successors to J. G, Easton. "LANESBORO; MINN" 1-7-1889. "Messrs. Hodges & Hyde, La Grosse-DEAR SIRS: Yours 6th at hand. The railroad company, through its agent here, had permitted L. M. Co. to
FEDEIU.L!iREPORTER,
vol. 52.
ou,t or"ae,rs,f, e:e" ,g", payme,nt:,',fO,l' ,Ql'd,eJ,', ,.Tpe auditor. along one d,ay thi.(!, w,ook·· and cneC'ked' and got, onto'" the arrangement,' which, I (itll ag,e,nt){orders for the takmgabi1l of sale dour, and stock in,'the(mills, and an assIgnment of all insurance coverfitf,1tb6(same', to ,$l{),{)0() worth of wheat on hand, or in flour ready for Shipment, at this time. I have ..,and would have been able to have ))6since then remitted $2,000 more to-day had it been possible to handlll the cars, but the push englUil is off bucking snow, and will not be back until to;.night, if then. If the stock begottell out, I will be able ,to remit you $2,000 or $3,000 to;.morrow; 'It will be readyifbr the cars; anti I trust 'we will be able to get them set in where they can be loaded. I ha:ve taken everytJrecaution to be on safe, and assure you that it win be you feel. If the cars looked after with more anxiety on our can be handled, the whole.matLer canbecl,eaned up by the middle of next week. Car' 20 Tyler,' 600bushll!S, is notunloacted yet, and will not be until all else is cleaned up. Pleasesllndme a of all cars charged to us. , ,:,1 O. Q. WALL."
'Thll;;tation agent ofthe'railtoad compl\tny at Lanesboro testified that, at the request, ofthe auditor of the railroad company, he went to Mr. Wall, to get a writing with reference to the cars which had been delivered without the order of the bank, and that Mr. Wall gave him a paper, the original ofwhich has been lost,ahd cannot be found, which read as follows: "The &"St. Paul Rail'way Company is not held responsible for wheat'orate not :liable for tbe whea.t consigned to the Bank of Lanesboro and deli:veJ'ed to the Lanesboro Milling Company without written orders." There was evtdet;lce tending to show that wheat corisigned to the bank to the milling company without an order from the bank, and 'thll,ithe bank had knowledge of this fact. . The carS loaded 'with wheat intended for the milling company were placed on a spur track running up to the rolll, from which the wheat could be unloaded directly into the mill. The court below ruled that the letters of the 6th and 18th of June constituted thecbntract between the, parties, and that that contract imposed defendants the obliglltion" upon the arriv/tl of the wheat /l.t Lanesb6ro,;tg. use reaaonable diligence and ordinary care to take posIleljsion of theaame, and not deliver to the milling company until it was paid for according to the bills of invoice sent the defendants. The court, in the COUl-seafa lengthy charge to tbejury, told them that\Va& .. "r I: -'
"These two quesUons of fact are submitted to you:' First. Did the defendants receive the wheat in «,Juestion? Second. Did they llllow the mill company to take or.: get posseslflonthel"ec)f or of any portion of said wheat. without collecting ()rl:lIceiving the pay for the same? These two. facts must be the plaintiffs, or they cannot recover. *,* * The burfound in favor, den of proof Is upon the plaintiffs to show by a preponderance of evidence that the defendants either expressly or knowingly or tacitly assented to or acquiesced in the taking of that.wheatbythe mill company without their first .paying the .price; for the same. * ..... *, This is an actipn against the de-
tl. HODGES.
359
fendants'foraUowing the milIcompany to get possession of this wheat after it was delivered to them.' If. therefore. the wheat was never delivered to defendants by the milroad company, they. cannot be legally helt,1 in this action. " And at the request of the plaintiffs in error the court gave the following, with other. instructions to the jury: "The bnrden is on the pl:dnuffs to show by a preponderance of evidence that this wheat in question was delivered to the defendants. and, if thE' plaintiffs have failed to shoW this. they are not entitled to rlll:0ver in this action. .'. . .... . ... "lUhe railroad company or its agents or servants delivered this wheat to the millcollpany without the authodty or consent of the defendants, the defendants are not liable therefor. '" , "There can be no recovery in this action for any wrongful or illegal act of the railroad company;unless the defendants authorized such act.. "The burllenis on the plaintiffs to shOW by a preponderance ,of evidence that the defondllnts delivered or the delivery of this wheat to mill company·. and, .if the,plaintiffs hav,e to show that fact, the ants canllot legally be held liable in this action. "Delivery of cars by the railroad company to the mill company without orders from the defendants cannot make defendants responsible to plaintiffs. unless defendants knew of such delivery, and consented to it. "These defendants were llot bound to guard against the illegal delivery of this wheat to the mill company by the railroad company before it had been delivered to the defendants. "The transportation of the wheat by the railroad to the vlllage of Lanesboro, and the notice that such wheat had arrived at Lanesboro, or even the setting of the cars on the side track of Lanesboro, did not stitutea delivery of such oars to these defendants, unless the defendants knowingly consented to accept such acts a.s a delivery.", There was a verdict and judgment for the plaintiffs, and the defendants sned' out this writ of error. TluYTnas Wilson and Lloyd W. Bowers, for plaintiffs in error. J. W. Lusk and W. Bunn, for defendants in error. Before CALDWELL, Circuit Judge, and THAYER, District Judge.
a.
CALDWELL, Circuit Judge, (after stating the facts.) The plaintiff.'l in error received the letters of the defendants in error dated, respectively, June 6 and 18, 1884, and January 6, 1889, and it is not controverted that the business was conducted on the part of the defendants in error in the mode outlined in those letters. Exception is taken to the rulof June 6th and 18th constituted ing of the lower court that the the contract between the parties. The letters, though characterized by that of statement common in commercial correspondence, are not of doubtful meaning. They state succintlyand clearly the proposed course of dealing; and make no reference to material extrinsic facts; nor is it neceSsary to their proper construction to have recourse to any extrinsic facts. Undoubtedly, the general rule is that the question whether given written instruments constitute a contract. as well as the interpretation of such written instruments when it is determined that they do constitute a contract, belongs to the court,and not to the jury; and this rule is as applicable to commercial correspondence as to a formal written
360
vol·. 52.
Qoptract.' BrO'lJ1Yl, v. McGran,.14 Pet. 479,494,495; Turner V.' Yates, 16 How., 16" 23; Drakeley v.Gregg, 8 Wall. 242; Goddard \1. Fbster, 17 Wall. 123:,'1'42. Exceptional cases arise where the contract rests partly in QOrrespondeace and pattly in oral communications, in which it is held that the question whether or not there is a contract is a question for,tbejury; but this is not one of those cases. In thiJ Mnstruction of a written contract the court may consider the relatio1\ !Of the parties to the contract and its subject-matter; in other words, the court is not denied the sa me light and information the parties enjoyed when the contract was entered into. Goddard v. Foster, supra. Looking at these letters 'in this light, it is clear they expressed the contrl!-ct of the parties. .But the bill of exceptions puts this question at rest. The bill of exceptions states in terms: "TMevidllncealso establishes the fact that no wheat was delivered to the L.M. co·. itter its failure, April 9, IB89, and that the contractand arrangement between'the plaintitfsand'<l,efendants were made by letter; and all of the letters tending to show jVhatthat contract was are hereto annexed and ml!:de a part of .tbisbill of 'exceptions." the course of business fOll five years, and the letter of the defendantsin error ,to thephiintiffs in error, dated January 6,1889, and the thereto, show (loilelusively that the letters of the 6th and 18th of of the parties, and that they agreed understanding ()f the contract. When the relation of the par,tiElS:to this arrangement is considered, there is no room for doubt as to,thefobject of the contract, or its proper construction. The defendants in error were wheat dealers, and wflnted to sell wheat by the car load to the Lanesboro Milling Company ,but, were unwilling to ship the wheat in a mode that would enable that company to get possession of it before it had been p!lid for. :Thereupon the plaintiff." in error agreed that the wheat might be and billed to them, and that they would collect the price from the milling company. and then, and not before, give an order upon the railroad company for the delivery of the wheat to the milling company. It is useless and irrelevant to the case to speculate as' to what vvouldhave been the duty of the plaintiffs in error if the rail.road company.had to them, and made a peremptory demand for its cars, before the milling company had paid for and received the wheat. The contract having been proved, the principal and the vital question in the. case, after that, was one of fact, and was whether the plaintiffs in authorized or consented to or knowingly allowed or the delivery of the wheat by the railroad company to the milling company before it was paid for. This issue was very clearly put to thejury in the charge in chief, and in several instructions given at the request of the plaintiffs in error. These instructions are '. set out in the statement of the case, aQd need not be here repeated. The jury were told over and over .that the defendants were not liable unless they authorized and consented that the railroad company might deliver the wheat company beforeit was paid for, and that, if the ,railroad company delivered it without their consent or authority; they
SCANLAN V. HODGES.
361
were not liable. They were also told that the defendants were not liable unless they had received the wheat. Under the instructions, it was not possible for the jury to find a verdict for the plaintiffs in the action without finding that the plaintiffs in error received the wheat, and that the wheat was delivered by the railroad company to the milling company, with the and consent of the plaintiffs in error, before it was paid for. The finding of the jury on this issue renders extended discussion of the other questions raised unnecessary. The learned counsel for the plaintiffs in error concedes in his brief that it may be inferred from the letters that the plaintiffs in error "were required, (1) on arrival of the wheat at Lanesboro, to collect the bill from the mill company; (2) thereupon deliver the wheat (i. e., give fin orderforit) to the mill company; and (3) thereupon credit the plaintiffs' ilocoilUt with, or remit to them, the amount." We think this is Ii fair statement of the obligations of the plaintiffs in error under the tract, and it is, in substance, what the court below told the jury it meant. It was implied, of course; that in the discharge of gations they would act in good faith, and exercise ordinary care ,and diligence. The contract, as construed by the plaintiffs in error, bound themMt to give orders for the delivery of the wheat, or consent, expressly or impliedly, to its delivery by the railroad company to the mm· ing company, until it was paid for; If they gave such orders, or were aware of and assented to such delivery before the wheat was paid for, their liability for the price of the wheat thus delivered to the milling company cannot be disputed. This question of fact was fairly submitted to the jury under instructions certainly as favorable to plaintiffs in error as they had any right to ask. There was evidence from which the jury could rightfully find the fact that they did authorize or consent to the delivery of the wheat to the milling company, and their verdict must therefore be accepted as question. that the wheat was delivered to the plaintiffs The complaint in error, and because of this allegation, probably, the court below instructed. the jury that the plaintiffs could not recover unless the wheat bad been delivered to the defendants by the railroad company. We do not think the plaintiffs were bound to prove this fact, notwithstanding it was alleged in the conlplaint. It was a case of redundancy of allegation. The material question was not whether the railroad company had delivered the wheat to the plaintiffs in error, but whether the plaintiffs in error had such dominion over the wheat that they could control and direct its possession. Oonfessedly, as consignees, they had that right. While the wheat was in the cars on the spur track at Lanesboro, if it was not technically in their possession, it was there su bject to their order; as much so as if there had been a formal surrender of the cars to them by the railroad company. Having the undoubted and exclusive right to control the delivery of the wheat, the jury, by their verdict, have found that they exercised that right, and that they authorized the railroad company to transfer the possession of the wheat to tlte
862
FEDERAL Rll:PORTER,
milling ,price. findings are conin error upon their own version of the cOnclusive against: tract. ,,' , These views rElQUelliti unnecessary to further disC11SS the exceptions to the givingand,l:efqsing.pf, instructions. The exceptions relating to the admissjon of May 12, 1,884, written by the defendants in error 'J.4tnesboro before the defen,d,a,nts purchased the bank, are unavailing,; bec.a,use the letter was from the consideration of the jury, and was ,pot considered by the court. There is an exceptiQn:to the adn:lissiOIil, of parol proof of the contents of the written paper or instrument .given by Mr. Wall to the railroad company. relating to whea.t delivered byJhe railroad company to .the milling company .without the written Order Qf the,plaintiffs inerrorj'. QU t the proper foundaproof of,tbe of the paper was tion for the admissiol}of lw,Q., by ahowingthat thePape;r was lost, Alnd could not :ge found after Uiligent search in the office and}Sllaces where it ought to be, alld where there reas(>nto suppose it could be .found. .A.eepamte examination of the ,uuln,erousother exceptions to the ruling,of the court i,na4tuitting rejecting evidence is not necl3ssary, as none' of themarJ) of any general importance. They have examined very and w.e arE:! satisfied that none of them have any ruerit.Findingno error in the record, the judgr,nent below is affirmed. j'
NEWPORT NEWS
& M. V.Co. .". HOWE.
(CCrcu:U; Court Qf.appeaZs, S1Zth Circuit. October 4, 1892.)
A brakeman who ill,lIent;bythe conductor;from the rear'porj;Jon of a parted tl'8in to signal the forward portion, of which the .engineer, is, br. the l-ules of the ColtJpatty, the conductOr, ill a fellow servant of the engineer, and cannot recover 'from the companyfor·an injury caused py:the engineer's negligence. BaHroad ,Co. v· .and1'cws. fiO Fed. :J;tep. 728, 1 C. A. 636, followed. 9. SAME-RULE OF DECISION iN FEDERAL CotJRTS":':'STATE DECISIONS. In the absence of statutes, the decision of the courts of Kentucky that a brakeman and. ,an eUginellr are not fellow servants, so as to prevent, rec,overy from the company 'by 'brakeman for the engineer's neglij;(ence, since it is) a ,construction of the;genElral 'contract of service, and'nota rule of property. does not'bind federal when construingtltjl,coxg,mon law o,f ,Kentucky. . ': " An engineer 'bacll:at night in seat-oh of oars broken from bia train owes DOll.uty to keep a sharp,I.oQ!l:OlJli with respect to a brakllxg,an who,bei!1g sent forward to l1ign!'l him ha,s gone to sleep upon the, track; and the cOJIlpany is only chargeab,le,with, ntlgi!gence" ool:/stitutin,,g,prOlCimate cause incase of want of care by the,engineer after discov:eriult the . .. CAUSE. ' " , '
tMASTBRAND
SERVANTS-ENGll'tEER AND BRAKEMAN.
In Error to the ' .".
.United States for the District of