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client wanted her money and damages in withholding the payment of the same. November 11th Col. Gear appeared before the grand jury, and read to his fellow grand jurors a statement to this effect; that he believed himself disqualified from acting as a member of the grand jury if they should undertake to investigate a matter which he desired to call to their attention; that the Los Angeles Investment Company had invited the public to invest in gold bonds of the company as being a first lien on all assets of the corporation, whereas in truth he found that they were not secured by assets, but were merely liabilities entitling the holders to participation in the assets of the company along with other creditors, and he desired the grand jury to take such action as might seem appropriate.

There is nothing to show that the grand jury had been considering any charge against the Los Angeles Investment Company before Mr. Gear read his statement to the body. The foreman of the grand jury and the secretary filed counter-affidavits saying that the grand juror Gear was not present at any time during the deliberations or the proceedings upon which the indictments against these defendants were based or returned; that he left the grand jury room before the matter was taken up or considered, and did not return, and never was present in the grand jury room when the matters were heard or considered or discussed by the members of the grand jury; and that the statement read by Mr. Gear on Novenber 11th had been thereafter given by the foreman to the United States attorney, and was not thereafter read or considered in the proceedings or deliberations of the jury. The grand juror Gear himself, in an affidavit, denied that he had ever told Derby that, if the matter of the Los Angeles Investment Company should come before the grand jury, he might need a friend, and denied that the question of his being on the grand jury ever was mentioned; but said that when he called on Derby he sent in a card, upon which he wrote, “Will Mr. Derby see Col. Gear, 4306 E. First street, member of United States grand jury?" Mr. Gear further says in his affidavit that he did not attend the sessions of the grand jury while the investigation of the officers of the Los Angeles Investment Company was in progress, heard none of the evidence, and did not vote on the indictment, and never talked to any member of the grand jury in reference to the company, and never tried to influence or persuade any member of the grand jury to vote to indict the officers of the company; that he considered it his duty to present the matter to the grand jury as he did, because he had received through the United States mails literature in reference to the “Gold Notes” in which a client of his had invested a thousand dollars.

There is no doubt of the fact that, if a grand juror knows that a crime has been committed which is properly the subject of investigation by the grand jury of which he is a member, it is his duty to call the matter to the attention of his fellow grand jurors. Of course, if he is in any way personally or otherwise directly concerned, he should excuse himself from participation in the investigation and the deliberations of the grand jury with respect to the matter. Clearly, in the present case, the grand juror did nothing illegal, and we affirm the ruling that there was no sufficient ground for quashing the indictment.

13 It is said that the verdict should be set aside because of the misconduct of a trial juror. The point comes in this way: The court made an order that the jury should not be allowed to separate after it was impaneled and sworn, but on the morning of July 21, 1915, while the trial was in progress, one of the jurors told the bailiff in charge he must go down to his office. The bailiff told him that there was not time for him to do this, meaning that there was not time before the opening of court to assign the proper court officer to accompany the juror to his office. The juror said that he would go and take the consequences. The juror was gone about 20 minutes, and then returned. Except for the fact of this brief separation of the jurors, no circumstance is shown to justify an inference of possible injury to the rights of the defendant. The Supreme Court in Holt v. United States, 218 U. S. 245, 31 Sup. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138, in discussing the action of the District Court in overruling a motion for a new trial based upon the ground that some of the jurors had read articles on the case in the daily papers while the trial was going on, said:

"We are dealing with a motion for a new trial, the denial of which cannot be treated as more than matter of discretion or as ground for reversal, except in very plain circumstances indeed. Mattox v. United States, 146 U. S. 140 [13 Sup. Ct. 50, 36 L. Ed. 917). See Holmgren v. United States, 217 U. S. 509, 130 Sup. Ct. 588, 54 L. Ed. 861, 19 Andi. Cas. 778). It would be hard to say that this case presented a sufficient exception to the general rule The judge did not reject the affidavit, but decided against the motion on the assumption that more than it ventured to allege was true. As to his exercise of discretion, it is to be remembered that the statutes or decisions of many states expressly allow the separation of the jury even in capital cases. Other states have provided the contrary. The practice has varied, with perhaps a slight present tendency in the more conservative direction. If the mere opportunity for prejudice or corruption is to raise a presumption that they exist, it will be hard to maintain jury trials under the conditions of the present day.”

A number of exceptions are based upon the action of the court in admitting and excluding certain testimony. We have examined them, and find no substantial error in the rulings of the court. Nor do we find error in the instructions which stated the law carefully and with sufficient fullness to enable the jury to understand the principles which should control in their consideration of the evidence.

Believing that no substantial reason is advanced for holding that the defendants did not have a fair and legal trial, the judgment is affirmed.

UNITED METALS SELLING CO. V. PRYOR et al. (Circuit Court of Appeals, Eighth Circuit. April 20, 1917. Rehearing Denied

July 9, 1917.)

No. 4526. 1. CARRIERS 140-CARRIER AS WAREHOUSEMAN-GOODS AWAITING DELIV.

ERY.

Defendant railroad company, as the last connecting carrier, received a carload of copper ingots, shipped under a bill of lading providing that "property not removed by the party entitled to receive it within 48 hours or warehouse subject to a reasonable charge for storage and to carrier's responsibility as warehouseman only." Defendant's tariff schedule, duly filed and posted as required by law, and which, in accordance with Interstate Commerce Act Feb. 4, 1887, c. 104, § 6, 24 Stat. 380, as amended by Act June 29, 1906, c. 3591, § 2, 34 Stat. 584 (Comp. St. 1916, § 8569), contained rules and regulations governing terminal privileges and charges, provided that, “when delivery of cars consigned or ordered to private industrial spur tracks cannot be made on account of the act, neglect, or inability of the consignee to receive them, . delivery will be considered to have been made when the cars are tendered." On arrival of the car of conper the private track of the consignee was fully occupied, and defendant left the car on its connecting side track, and notified the consignee that the car was at its disposition, subject to the payment of a demurrage charge after the free time allowed by the rules of the company. Six days later the consignee paid the demurrage charges and the car was moved upon its track, when it was found that one of the seals was broken and that a part of the copper was gone, although, when, inspected by defendant's yard watchinan the evening before, the seals were secure. Held, that defendant's liability was that of warehouseman only.

* * after notice of its arrival * ette may be kept in car * * *

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

[Ed. Note. For other cases, see Carriers, Cent. Dig. 88 609, 60912, 611616.) 2. COURTS O365-INTERSTATE COMMERCE ACT-LIABILITY FOR GOODS LOST

-LAW GOVERNING.

The liability of a railroad company subject to the Interstate Commerce Act on a contract with an interstate shipper is not governed by state law, but is a federal question, governed by uniform rule.

[Ed. Note.-For other cases, see Courts, Cent. Dig. $8 950, 952, 955, 969–

971.) 3. WAREHOUSEMEN Cmw 24(1)-ACTION AGAINST FOR Loss or Goods-BURDEN AND MEASURE OF PROOF.

Under the rule of the federal courts, a warehouseman is liable only for negligence, the burden of proving which rests on the party alleging it, and is not shifted by proof merely of loss or destruction of property in charge of the warehouseman.

[Ed. Note.-For other cases, see Warehousemen, Cent. Dig. $$ 11, 48.) Appeal from the District Court of the United States for the Eastern District of Missouri; Elmer B. Adams, Judge.

Suit in equity by the Equitable Trust Company of New York, as trustee, against the Wabash Railroad Company. On petition of intervention by the United Metals Selling Company against defendant and Edward B. Pryor and Edward F. Kearney, its receivers. From a decree dismissing its petition, intervener appeals. Affirmed.

Jones, Hocker, Hawes & Angert and George F. Haid, all of St. Louis, Mo., and Shearman & Sterling, of New York City, for appellant.

James L. Minnis and N. S. Brown, both of St. Louis, Mo., for appellees.

Before SANBORN, Circuit Judge, and REED and BOOTH, District Judges.

REED, District Judge. In a suit of the Equitable Trust Company' of New York, as trustee, a New Jersey corporation, against the Wabash Railroad Company, a consolidated railroad corporation of MisCow For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

souri and other states, pending in the United States District Court for the Eastern District of Missouri, to foreclose certain mortgages upon the property of the railroad company, in which Edward B. Pryor and Edward F. Kearney were duly appointed as receivers of the property of the railroad company, the appellant, the United Metals Selling Company, a corporation, in due time filed an intervening petition claiming of the Wabash Railroad Company the sum of $2,447.60 as the value of 415 ingots or bars of refined copper, weighing 18,674 pounds, alleged to have been lost from the car in which it was shipped, while in the custody of the railroad company upon its tracks in St. Louis, Mo., consigned to the Moore-Jones Brass & Metal Company of that city, under a bill of lading issued to the intervener by the Chicago & Duluth Transportation Company at Chicago, Ill., December 6, 1909, which copper it is alleged was delivered to the railroad company at St. Louis and lost from the car in which it was shipped while in its custody, about January 7, 1910, solely through the negligence, carelessness, and wrongful acts of the defendant railroad company; and judgment is prayed against the railroad company for the value of said copper, with interest from January 7, 1910, and that it be decreed a lien upon the property of the railroad company or its proceeds in the custody of the court, prior to the complainant's mortgage upon said property.

The railroad company and the receivers answered the intervening petition, admitting that about December 6, 1909, the intervener shipped some 40,000 pounds of refined copper from Chicago, to the MooreJones Brass & Metal Company at St. Louis, by the Chicago & Duluth Transportation Company and connecting carriers, but denies that it was lost, if lost at all, because of any neglect or fault upon the part of the railroad company, and further allege that the defendant railroad company on December 30, 1909, received the car containing said copper from the Terminal Railroad Association of St. Louis, and on January 1, 1910, notified in writing the consignee, Moore-Jones Brass & Metal Company, of the receipt thereof, and thereafter held said car as a warehouseman only, and not as a common carrier. Some other detenses may be noticed in the course of the opinion,

The matter was submitted to the special master in said foreclosure proceedings upon a stipulation of facts, which so far as deemed material is set forth in the margin."

1 STIPULATION OF Facts. "That on or about December 6, 1909, the intervener shipped 775 copper ingot bars, of the weight of 40,002 pounds, from Chicago, Illinois, to the Moore-Jones Brass & Metal Company at St. Louis, Missouri, under a bill of lading contract of shipment entered into between the Chicago & Duluth Transportation Company, a common carrier, and the intervener, dated Chicago, Illinois, December 6, 1909, a copy of which is hereto attached, made a part hereof and marked Exhibit 'A.'

"The bill of lading, Exhibit A is the uniform bill of lading-standard form of straight bill of lading, approved by the Interstate Commerce Commission by order No. 787 of June 27, 1908, and includes a receipt which recites that, subject to the classifications and tariffs in effect on the date of its issue, December 6, 1909, it received from the United Metals Selling Company the

1. The master filed with the court his findings and recommendations as follows:

* * * * The [intervening] petition alleges that about December 6, 1909, the petitioner shipped 775 ingots of refined copper, weighing 40,002 pounds

property described below, 775 copper ingot bars, weight 40,002 pounds, signed, 'Chicago & Duluth Transportation Company, B. L. Burke, Traff. Agt., Chicago, Ill.,' consigned to Moore-Jones Brass & Metal Company, St. Louis, Mo., and that said company agrees to carry to its usual place of delivery at said destination, if on its road; otherwise, to deliver to another carrier on the route to said destination. It is mutually agreed, as to each carrier of all or any of said property der all or any portion of said route to destination, and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the conditions whether printed or written, herein contained (including conditions on back hereof) and which are agreed to by the shipper and accepted for himself and his assigns.

"Indorsed on the back of the bill, Exhibit A, is the following:

“ 'Sec. 5. Property not removed by the party entitled to receive it within forty-eight hours (exclusive of legal holidays) after notice of its arrival has been duly sent or given may be kept in car, depot, or place of delivery of the carrier, or warehouse, subject to a reasonable charge for storage and to carrier's responsibility as warehouseman only, or may be, at the option of the carrier, removed to and stored in a public or licensed warehouse, at the cost of the owner and there held at the owner's risk and without liability on the part of the carrier, and subject to a lien for all freight and other lawful charges including a reasonable charge for storage.'

"That the copper covered by the bill of lading was placed in Illinois Central car No. 130479 at Chicago; each of the doors of the car being sealed after the car was loaded and contents checked. That the car was carried by the Illinois Central Railroad Company to East St. Louis, where it was examined, seals found intact, and delivered to the Terminal Railroad Association of St. Louis. The Terminal Railroad Association transported the car across the river and turned the same over to the Wabash Railroad Company, at St. Louis, at which time the car was again examined and the seals found unbroken. The car was then carried by the Wabash Railroad Company to its yards, and for the reasons hereinafter stated the car was placed on its track No. 24, December 30, 1909, with seals intact. On January 1, 1910, the car was transferred to track No. 25, and the following notice was then mailed to the consignee, Moore-Jones Brass & Metal Company, and received by said company: 'You are hereby notified that the following cars are now on tracks at this station for your unloading or disposition and that said cars are subject to a charge of $1.00 per day or fraction of a day, for all time that they are held beyond the free time allowed by the rules of this company.' That said notice contained the number of the car containing the shipment involved in this case, and otherwise complied with the tariff requirements of the Wabash Railroad Company, lawfully in effect at that time. That the tariff of the Wabash Railroad Company, providing the rules and regulations and charges governing the assessment of demurrage and storage charges, and during all of said times on file in the office of the Interstate Commerce Commission at Washington, in the District of Columbia, and duly posted as required by law, provided as follows: "When delivery of cars consigned or ordered to private industrial spur tracks cannot be made on account of the act or neglect of the consignee or the inability of the consignee to receive, delivery will be considered to have been made when the cars were tendered. The carrier's agent must give the consignee written notice of all cars he has been unable to deliver, because of the condition of the private industrial track or because of other conditions attributable to consignee, this will be considered a constructive placement.'

“The consignee paid to the Wabash Railroad Company $4.00 for demurrage

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