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"I suppose it would be perfectly natural for a person coming from the hatch in the main deck, knowing that the position was a dangerous one, to look and see if the hatch was protected, and that I would have done so if I had not been looking at them raising the horse."

There was also testimony on behalf of the plaintiff tending to show that complaint had been made to an officer of the ship of the dangerous condition of the walkway, and testimony on the part of the defendant tending to show that the sheep pens were covered with canvas tightly fastened down except at one or more of the corners, and that the sheep could have been, although less conveniently fed by raising the fastened corners without going upon the walkway. On the conclusion of the evidence on behalf of the plaintiff, the defendant moved for a nonsuit, on the ground that it appeared therefrom that the plaintiff was guilty of such contributory negligence as precluded a recovery by him.

If the motion be treated as proper in form, it was waived by the defendant's proceeding to introduce evidence on its own behalf, instead of resting upon the motion, and the action of the court in respect to the motion cannot, therefore, be assigned for error here. Union Pacific Ry. Co. v. Daniels, 152 U. S. 684, 14 Sup. Ct. 756, 38 L. Ed. 597; Runkle v. Burnham, 153 U. S. 216, 222, 14 Sup. Ct. 837, 38 L. Ed. 694. But the same point arises upon the ruling of the court in respect to certain instructions given and refused, to which rulings exceptions were duly reserved by the plaintiff in error, and which are duly assigned for error by it.

On behalf of the plaintiff, the court instructed the jury, among other things, as follows:

“And if you find from the preponderance of the evidence in this case that the netting between the false deck and the main deck was placed there for the purpose of preventing any accident to any of the passengers on board the defendant's steamship, and further find from a preponderance of the evidence that the employés or any of the employés of the defendant in charge of the hatchways had knowledge that such netting had been removed and failed to replace the same, then I instruct you that you should find for the plaintiff if you further find that his injuries resulted from the carelessness and negligence of the defendant or its employés in failing to replace the netting, and you also find that the plaintiff was using and exercising an ordinary degree of reasonable care and diligence under the circumstances, considering his duties in attending and feeding the sheep on the false deck of said steamship.”

While giving the foregoing among other instructions, the court refused to give these instructions requested by the defendant, to wit:

“The court instructs the jury that if they believe from the evidence that the atchway through which the plaintiff fell and was injured was left or maintained by defendant in an unsafe or insecure manner, and that the same was known to plaintiff, and that complaint had been made to defendant of its condition; yet, notwithstanding such knowledge or complaint, the defendant failed to repair or remedy the same, and the plaintiff continued to feed the sheep and go into the vicinity of such hatchway, when another or more safe yet difficult means was available, and was injured thereby, then plaintiff is deemed to have assumed the risks incident to going about such place, and is guilty of such contributory negligence as bars his recovery in this action, and the verdict should be for the defendant. The court instructs the jury that where it is the duty of the servant to perform the work and labor in and about places known by him to be dangerous and unsafe, then it is incumbent upon such servant in the performance of his duties to exercise such extraordinary care and caution, or such increased care and caution, as the known dangerous condition and circumstances require, and, failing to do so, must be deemed to have assumed the risk incident to such danger and guilty of such contributory negligence as bars a recovery for any injury sustained by him."

The action of the court below in each of these respects was excepted to by the defendant, and has been assigned for error.

It will be seen that by the instruction given the jury was told in effect that, if they found that the plaintiff was injured through the negligence of the defendant, they should find for the plaintiff if they also found that the plaintiff "was using and exercising an ordinary degree of reasonable care and diligence under the circumstances, considering his duties in attending and feeding the sheep on the false deck of said steamship;" and this, when it appeared from the plaintiff's own testimony that he well knew of the danger attending his going upon the walkway unless the netting was in place and properly fastened at the corners; and, further, that at first he always, before going to feed the sheep, looked to see if the netting was properly in place, and, at the particular time in question, would have done so if he had not been looking at the people raising the horse. Certainly the steamship company should not be made to pay for the gratification by plaintiff of his curiosity. The knowledge that the plaintiff had of the danger in going to the place from which he fell, without looking to see that the netting that alone afforded him protection was properly in place, cast upon him, not the duty of “exercising an ordinary degree of reasonable care and diligence” merely, but such extraordinary care and caution as the known dangerous conditions required, failing to do which, he must be deemed to have assumed the risk and to have been guilty of such contributory negligence as precludes a recovery by him of damages; for it is the well-established rule of law that one who knows of a danger from the negligence of another, and understands and appreciates the risk therefrom, and voluntarily exposes himself to it, is precluded from recovering for an injury which results from the exposure. Fitzgerald v. Connecticut River P. Co., 155 Mass. 155, 29 N. E. 464, 31 Am. St. Rep. 537; Missouri Pacific Ry. Co. v. Moseley, 57 Fed. 921, 6 C. C. A. 641, Clark v. Wright, 79 Fed. 744, 25 C. C. A. 190; Seymour v. Chicago, B. & Q. Ry. Co., Fed. Cas. No. 12,685; New Jersey Express Co. v. Nichols (N. J.) 97 Am. Dec. 722; Shearman & Redfield on the Law of Negligence, p. 938, par. 513a.

The judgment is reversed, and the cause remanded to the court below for a new trial.

CARLSON et al. v. SULLIVAN et al.

(Circuit Court of Appeals, Ninth Circuit. June 19, 1906.)

No. 1.246.

1. PARTITION-DENIAL OF TITLE-ADVERSE CLAIM—ISSUES.

The bare denial of complainant's title on information and belief by defendants in a suit for partition, defendants not claiming adverse title in themselves, does not put title in issue, so as to require the court to stay the suit until title has been established at law.

[Ed. Note.-For cases in point, see vol. 38, Cent. Dig. Partition, 88

53–59.] 2. ME-OUSTER-REMEDIES-EJECTMENT.

While a common possession is always implied from a common title until the contrary is shown, in cases where an ouster is made by one tenant in common with his co-tenants, there is no longer a common possession, and the remedy by the ousted tenant is by ejectment to recover" possession of his individual moiety, and not by petition for partition.

[Ed. Note. For cases in point, see vol. 38, Cent. Dig. Partition, $$.

60–63.] 3. JURY—RIGHT TO TRIAL BY JURY.

Under Const. U. S. Amend. 7, securing the right of trial by jury in suits at common law where the value in controversy exceeds $20, a party in possession of land, claiming the whole title, is entitled to a

right of trial by jury of the issue of title. 4. SAME-FEDERAL CONSTITUTION—AMENDMENT-APPLICATION TO TERRITORIES.

Const. U. S. Amend. 7, securing the right of trial by jury in suits at common law where the value in controversy exceeds $20, applies to

judicial proceedings in the territories of the United States. Appeal from the District Court of the United States for the Second Division of the District of Alaska.

This is a suit for a division of a certain mining claim according to the respective rights of plaintiffs and defendants therein, and, if partition cannot be had without material injury to those rights, then for a sale of the premises and division of the proceeds between the parties, etc. It was brought under the provisions of the Alaska Code, which reads as follows: "When several persons hold and are in possession of real property as tenants in common in which one or more of them have an estate of inheritance,

any one or more of them may maintain an action of an equitable nature for the partition of such real property according to the respective rights of the persons interested therein and for a sale of such property or a part of it, if it appears that a partition cannot be had without great prejudice to the owners." 31 Stat. 399, c. 786, sub. c. 43, § 397. In the complaint it is alleged that plaintiffs and defendants "own and possess as tenants in common" the property in question; that the interests of all the parties, plaintiffs and defendants, were derived from the same source by mesne conveyances from the locator of the claim, one A. Samuelson, and his assigns. In paragraph 12 it is alleged: “That in order to preserve the interests of the said owners of said property and mining claim it is necessary to represent said claim by performing assessment work thereon each year of the value of at least $100; that plaintiffs have offered to do said assessment work for the year 1903, but the defendants have refused to permit them so to do, and by threats of violence to plaintiffs have prevented and threatened in the future to prevent the plaintiffs from enjoying the beneficial use of said premises, and from prospecting or otherwise working said claim, unless enjoined and restrained from so doing by the order of this court," etc. George Sullivan filed a separate answer. The other defendants filed an answer denying "that. the plaintiffs, or either of them, own and possess, or own or possess, either as tenants in common or otherwise, any interest whatever” in the property in controversy ; "deny that each of the plaintiffs, or either of them, has an estate of inheritance, or any estate or interest whatever, in said mining claim, or any part thereof." In answer to the twelfth paragraph of the complaint they "admit that in order to preserve the interest of the owners of said property and mining claim it is necessary to represent said claim by performing assessment work thereon each year of the value of at least $100, but said defendants deny all the other allegations of said paragraph 12, except that the said defendants other than George Sullivan have refused to permit the plaintiffs or either of them to enter upon or work said mining claim or any part thereof."

Upon the trial the plaintiffs offered a deed from A. Samuelson of an undivided one-third interest in the mine, and a deed from Carlson to his coplaintiff, Loman, to a one-sixth interest therein. On the cross-examination of Carlson the "bill of transfer" from Carlson to J. Venes of an undivided one-sixth interest, set forth in the record, was admitted. There was no evidence with regard to the actual possession of either party. At the close of plaintiffs' testimony the defendants moved to dismiss the action on the following grounds: "(1) That it does not appear that the plaintiffs and defendants, or any of the defendants, hold and are in possession of the real property involved in this action as tenants in common. (2) That an action or suit in partition is not the proper form of action in which to litigate disputed questions of title to lands. (3) That this action should be brought in ejectment, under the statute, and not a suit in partition. * * (4) That the issues raised in this action are issues which should be tried by an action at law, before a jury." The court granted said motion and dismissed the cause without prejudice, on the ground that the defendants have the right to have the question of the disputed title determined in an action at law before a jury, to which ruling the plaintiffs excepted, and claim that the court erred in dismissing the suit. The appeal is taken from the judgment of dismissal.

Chas. E. Naylor, for appellants.
G. J. Lomen, pro se.

J. C. Campbell, W. H. Metson, F. C. Drew, and Ira D. Orton, for appellees.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge

*

HAWLEY, District Judge, after making the foregoing statement, delivered the opinion of the court.

Did the court err in dismissing the suit? In Heinze v. Butte & B. Con. M. Co., 126 Fed. 1, 61 C. C. A. 63, this court held that the bare denial of complainant's title on information and belief, by defendants in a suit for partition, who do not allege adverse title in themselves, does not put such title in issue, so as to require the court to stay the suit until it shall be established at law. That case is the principal one, among many others, relied upon by appellants to sustain their assignments of error herein. If identical in its facts, it might be considered binding upon the court in this case; but is it identical ? We think not. In that case Judge Gilbert, delivering the opinion of the court, said:

“In none of the pleadings so far filed in the case was any defect or infirmity in the complainant's title alleged, nor was it asserted that any of the parties had adverse claims against the alleged title of the complainant, or adverse possession of the property sought to be partitioned. All the information that was conveyed by the pleadings at that date was that the complainant alleged a title in fee simple, and that the defendants and the intervener all denied, on information and belief, that the complainant was the owner of the interest which it asserted in its bill. In other words, by their answer they said to the court: "We own an individed one-half of one claim, and an undivided one-third of the other, but we deny, on information and belief, that the complainant owns the other interests.''

It was while the pleadings were in that condition that the motion was made to stay the proceedings until complainants established their case at law. This motion was denied. In the present case plaintiffs show in paragraph 12 of their complaint that the defendants denied their right of possession, and had virtually ousted them from the mine; and the defendants in their answer deny that the plaintiffs, or either of them, own or possess any interest whatever in the property. It is in the light of these facts that the present case must be determined.

1. We are of opinion that a common possession is always implied from a common title until the contrary is shown; but, in cases where an ouster is made by one tenant in common with his co-tenants, there is no longer a common possession, and the remedy is, not by petition for partition, but by ejectment to recover possession of the individual moiety. In Rich v. Bray (C. C.) 37 Fed. 273, 277, 2 L. R. A. 225, the court said:

“There is no question of the jurisdiction of a court of equity to make partition of lands, in which action all the equities between the coparceners may be considered and adjusted. But I understand the rule to be likewise inflexible that, in a partition suit, either at law or in equity, the title to the land cannot be litigated. Where there is an adverse holding under claim of exclusive right, amounting to an ouster among tenants in common, it destroys the unity of possession, and takes away the right of partition. Resort must first be had to the action of ejectment at law. 'If one coparcener disseise another, during his disseisin a writ of partition doth not lie between them for “non tenant insimul et pro indiviso." ""

In Brown v. Cranberry I. & C. Co. (C. C.) 40 Fed. 849, Judge Dick held that where defendant in partition denies complainant's title, it is proper to stay proceedings so that complainant may establish his title by an action in ejectment. In the course of the opinion he said:

"Questions pertaining to a legal title and the nature of possession are matters of law, and should be decided by a judge and jury in a legal tribunal. This was the method of practice and procedure that prevailed in the courts of equity in this state before the abolition of such courts by our new Constitution, and the adoption of a Code system, which required all legal and equitable remedy and relief to be sought by civil action or special proceedings."

The Alaska statute, heretofore quoted, is taken verbatim from the Oregon Code. In Savage v. Savage, 19 Or. 112, 116, 23 Pac. 890, 891, 20 Am. St. Rep. 795, which was an action for partition of lands, the court, after construing the provisions of the Code, said:

“Seisin and possession, as now understood, mean the same thing. To constitute seisin in fact, there must be an actual possession of the land; for a seisin in law there must be a right of immediate possession according to the nature of the interest, whether corporeal or incorporeal. 1 Wash. Real Prop. 62. Under this view there can be no seisin in law where there is not a present right of entry. And where the life tenant is in possession, there being no present right of entry in the remainderman or reversioner, they are not constructively seised, and neither can maintain a suit as plaintiff for partition. The authorities generally sustain this view"-citing cases.

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