1. The Act of February 22, 1848, which enacts that the
provisions of the Act of February 22, 1847, transferring to the
district courts of the United States cases of federal character and
jurisdiction begun in the territorial courts of certain territories
of the United States, and then admitted to the Union (none of
which, on their admission as states,
Page 75 U. S. 343
however, as it happened, were attached to any judicial circuits
of the United States), shall apply to all cases which maybe pending
in the supreme or other superior courts of any territory of the
United States which may be admitted as a state at the time of its
admission, is to be construed so as to transfer the cases into
district courts of the United States if, on admission, the state
did not form part of a judicial circuit, but if attached to such a
circuit, then into the circuit court.
2. An averment in the declaration that the plaintiffs were a
firm of natural persons, associated for the purpose of carrying on
the banking business in Omaha, Nebraska Territory (a place which,
at the time of the suit brought, was remote from the great centers
of trade and commerce), and had been for a period of eighteen
months engaged in that business at that place, is equivalent to
saying that they had their domicile there, and is a sufficient
averment of citizenship.
3. An averment that the defendant is a foreign corporation,
formed under and created by the laws of the State of New York, is a
sufficient averment that the defendant is a citizen of New
York.
4. A common carrier of merchandise is responsible for actual
negligence, even admitting his receipt to be legally sufficient to
restrict his common law liability. And he is chargeable with actual
negligence, unless he exercise the care and prudence of a prudent
man in his own affairs.
5. A simple omission of a court to charge the jury as fully on
someone of the points of a case about which it is charging
generally, as a party alleges on error that the court ought to have
charged, cannot be assigned for error when it does not appear that
the party himself made any request of the court to charge in the
form now asserted to have been the proper one.
Error to the Circuit Court for the District of Nebraska. The
case, which involved two distinct subjects, one of jurisdiction and
the other of merits, was thus:
I.
As to the matter of jurisdiction. This again
involved two different points.
An act of 1847 [
Footnote 1]
provided, that in all cases of federal character and jurisdiction
commenced in the superior courts of the Territory of Florida, and
the court of appeals of that territory, after the 3d of March,
1845,
"in which judgments or decrees were rendered, or which are
claimed to have been since pending there, in the records and
proceedings thereof, and the judgment and decrees therein, are
hereby transferred to the District Court of the United States for
the District of Florida."
The provisions of the act were made
Page 75 U. S. 344
at the time applicable to cases pending in the then new State of
Michigan, and by an act of 1848, [
Footnote 2] were afterwards extended to courts of the then
new State of Iowa. Neither Florida, Michigan nor Iowa were, at the
time of becoming states, attached to any judicial circuit of the
United States.
This last act, the act of 1848, declares that the provisions of
the act of 1847 shall apply to all cases which may be pending in
the Supreme, or other superior court of any territory of the United
States which may be admitted as a state, at the time of its
admission. With these acts in force, Kountze Brothers brought suit
in a District Court of the Territory of Nebraska against the United
States Express Company. The declaration described the plaintiffs
as
"an association of persons not incorporated, formed for the
purpose of carrying on the banking business at Omaha, Nebraska, and
who were, at the time the cause of action arose, and still were
engaged in said business at Omaha,"
and described the defendants as "a foreign corporation formed
under and created by the laws of the State of New York."
The answer and a replication being filed prior to the 3d of
July, 1867, the proceedings while thus
in fieri, were on
that day -- Nebraska having now become a state of the Union --
brought and filed by the plaintiffs in the
Circuit Court
of the United States for the District of Nebraska.
Nebraska, as a territory, was, at the time of her admission to
the Union,
attached to the eighth judicial circuit of the
United States.
II.
As to the merits. The suit was brought to recover
from the Express Company, as common carriers, the value of certain
gold dust which they had undertaken to forward from Omaha to
Philadelphia.
The dust had been delivered to the company, for the
transportation just mentioned, on the 29th of September, 1864, and
was one of regular series of consignments running through a term of
more than eighteen months. The receipt given for it was the
ordinary receipt of the company.
Page 75 U. S. 345
It set forth that it had been expressly agreed, that the company
should not be liable
"for any loss or damage by fire, the acts of God, or
the
enemies of the government, mobs, riots, insurrections, or
pirates, or from
any of the dangers incident to a time of
war."
There were two routes used by the company to convey their
property. One was across the State of Iowa, and the other to St.
Joseph, Missouri, and thence across that state by the Hannibal
Railroad. The latter route was the most expeditious, but the former
was the safest, as the rebellion was in progress at this time, and
Missouri, although adhering to the Union, was infested with
predatory rebels, as well as with more regular bodies of the
Confederate troops.
The gold dust was conveyed by the St. Joseph route, and the
company was robbed of it by a band of armed men while it was in
transit across the state.
On the trial, the plaintiffs testified that they gave notice to
the agent of the company not to send their gold dust by the St.
Joseph route; though there was testimony also that tended to prove
that this notice was not until after the robbery of this particular
gold.
No exception was taken, on the trial, to the admission or
rejection of evidence, and the only subject for review here was the
charge given by the court to the jury. The court instructed the
jury only on a single point, that of negligence. The jury were told
substantially that although the contract was legally sufficient to
restrict the liability of the defendant as a common carrier, yet,
if the defendant was guilty of actual negligence, it was
responsible, and that it was chargeable with negligence, unless it
exercised the care and prudence of a prudent man in his own
affairs. The Express Company requested the court to charge the jury
that it was not liable, unless grossly negligent.
The jury having found for the plaintiffs, and the judgment
having gone accordingly, the present writ of error was taken.
The case being thus, here the grounds asserted for reversal
were:
I. As to jurisdiction.
Page 75 U. S. 346
1. Because there was no statutory authority for removal into the
circuit court.
2. Because there was no such averments of citizenship as to
bring the case within the provision of the Constitution and
Judiciary Act of 1789. [This second point, however, not being taken
in the court below.]
II. Because the court had not charged that the company was not
liable, unless grossly negligent.
Page 75 U. S. 349
MR. JUSTICE DAVIS delivered the opinion of the Court.
Before proceeding to consider the merits of this controversy, it
is necessary to dispose of the point of jurisdiction which is
raised.
It is urged that the circuit court had no jurisdiction over the
cause, because there was no authority to transfer it. This depends
on the construction of the acts of Congress relating to the
subject.
On the admission of a new state into the Union, it becomes
Page 75 U. S. 350
necessary to provide not only for the judgments and decrees of
the territorial courts, but also for their unfinished business. In
recognition of this necessity Congress, after Florida became a
state, passed an act providing, among other things, that all cases
of federal character and jurisdiction pending in the courts of the
territory be transferred to the District Court of the United States
for the District of Florida. The provisions of this act were made
applicable, at the time of its passage, to cases pending in the
courts of the late Territory of Michigan, and were afterwards
extended to the courts of the late Territory of Iowa. Congress, in
making this provision for the changed condition of Iowa, though
proper in the same act to adopt a permanent system on this subject,
and extended the provisions of the original and supplementary acts
to cases from all territories which should afterwards be formed
into states.
It is contended, if this cause were transferable at all, it
went, under these acts of Congress, to the district court, and not
to the circuit court. This would have been true if Nebraska had not
at the time of the transfer occupied a different judicial status
from that occupied by Florida, Michigan, or Iowa, when these laws
were passed. These states were not then a part of anyone of the
judicial circuits, while Nebraska, when this cause was removed, was
attached to the eighth circuit. Their district courts had general
circuit court powers, while the District Court in Nebraska had only
the ordinary jurisdiction properly belonging to the district courts
of the country. If Nebraska had not at the time of the transfer
formed a part of a judicial circuit, her district court would, by
virtue of the laws above recited, have been clothed with the
general powers of a circuit court, and could have taken cognizance
of this cause, and it would, in the purview of these laws, have
been rightfully transferable to it. To construe these laws so as to
limit the right of transfer to the district court alone, without
regard to the powers of that court, would defeat the very object
Congress had in view. That object is made plain enough by the
legislation relating to this subject. It was, on the admission
Page 75 U. S. 351
of a new state, to transfer pending civil cases of a federal
character from the territorial courts into the district court, if
the state did not form part of a judicial circuit, because in such
a case the district court was invested with circuit court powers.
But if the state were attached to a circuit, then, as the district
court did not possess this jurisdiction, the cause was transferable
to the circuit court. To adopt any other construction would render
the provisions for the transfer of causes, in case a new state on
its admission were attached to a circuit, nugatory.
It is said, if cases of a federal character were properly
transferable to the circuit court, this was not one of them,
because it does not appear that the suit was between citizens of
different states. It is true there is no direct averment to this
effect, but it is the necessary consequence of the facts stated in
the pleadings, that the parties to the suit were citizens of
different states. The averment that the plaintiff were a firm of
natural persons, associated together for the purpose of carrying on
the banking business in Omaha, and had been for a period of
eighteen months engaged in said business at said place, is
equivalent to saying they had their domicile there. In this
country, people usually live and have their citizenship in the
place where they do business. Especially is this true of persons
engaged in a business requiring capital, and involving risk, at a
point which is remote from the great centers of trade and
commerce.
The citizenship of the defendant is clearly enough averred. It
is alleged that the United States Express Company, the defendant in
the suit, is a foreign corporation formed under and created by the
laws of the State of New York. The obvious meaning of this
allegation is that the defendant is a citizen of the State of New
York. The course of proceeding in the court below shows that the
parties to the suit recognized it as being of federal jurisdiction,
and it could only be so (as there was no federal question involved)
on the ground that the plaintiffs and defendant were citizens of
different states. If the parties had though otherwise, after the
cause reached the circuit court, the point would have
Page 75 U. S. 352
been taken, and an effort made at least to test the
jurisdictional question. The record shows that nothing of the sort
was attempted.
There remains to be considered the merits of this case, so far
as they are presented in the bill of exceptions.
The only subject for review here is the charge given by the
court to the jury. The court instructed the jury only on a single
point -- that of negligence. The jury were told substantially that,
although the contract was legally sufficient to restrict the
liability of the defendant as a common carrier, yet, if the
defendant was guilty of actual negligence, it was responsible. And
that it was chargeable with negligence, unless it exercised the
care and prudence of a prudent man in his own affairs. The
defendant requested the court to charge the jury that it was not
liable unless grossly negligent.
To understand what are the rights of the parties to this suit,
so far as the court was asked concerning them, it is necessary to
see what were the facts proved in the case. It appears that the
particular lot of gold dust, which is the subject of this
controversy, was confided to the express company for transportation
to Philadelphia, on the 29th of September, 1864, and that it was
one of a series of shipments of the same kind, running through a
period of eighteen months or more. The receipt given for the
packages was not different from the ordinary receipts of the
company, and was doubtless intended to limit the liability of the
company as common carriers. There were two routes employed by the
express company to convey their property -- one across the State of
Iowa, and the other to St. Joseph, Missouri, and thence across that
state by the Hannibal Railroad. The latter was the most expeditious
route, but the former the safest, as Missouri, although at the time
adhering to the Union, was in a disturbed and unsettled condition.
The property in dispute was conveyed by the St. Joseph route, and
was robbed while in transit across the state by a band of armed
men. Under the circumstances in which the country was then placed,
no prudent man, in the management of his own
Page 75 U. S. 353
affairs, would have sent his property by the Missouri route if
another route were open to him. It seems that the plaintiffs acted
on this idea, for one of them testifies that he notified the agent
of the company not to send their gold dust by the St. Joseph route.
If this testimony be true, it is hard to conceive a grosser case of
negligence, for here were two routes -- the one safe and the other
hazardous -- and yet the express company, in defiance of the wishes
of the owner of the property, reject the safe, and adopt the
hazardous route. Carriers of goods cannot escape responsibility if
they behave in this manner, for they are required to follow the
instructions given by the owner of property concerning its
transportation, whenever practicable. [
Footnote 3] In this case it was practicable to obey the
instruction given by the plaintiffs, and the defendant furnishes no
excuse for not obeying it.
It is said that the weight of the evidence is against the
statement of the plaintiffs, that they directed their goods sent by
the Iowa route. Conceding this to be true, it cannot be corrected
here. It was a proper matter to be considered by the court below,
on a motion for a new trial, but the granting or refusing such
motions are not subject to be reviewed in this Court.
If the evidence in the case tended to prove the defendant guilty
of actual negligence, then the court below were justified in basing
upon it an instruction to the jury. That it did tend to prove it is
clear, and the charge of the court on the subject correctly stated
the law to the jury.
As the court was not asked to instruct the jury on any other
point, there is not, as the argument for the plaintiff in error
seems to suppose, anything else for this Court to review. It is the
usual practice for the presiding judge at a
nisi prius
trial, in his charge to the jury, to take up the facts and
circumstances in proof, explain their bearing on the controverted
points, all declare what are the legal rights of the parties
arising out of them. If the charge does not go far enough, it is
the privilege of counsel to call the attention of
Page 75 U. S. 354
the court to any question that has been omitted, and to request
an instruction upon it, which, if not given, can be brought to the
notice of this Court, if an exception is taken. But the mere
omission to charge the jury on someone of the points in a case,
when it does not appear that the party feeling himself aggrieved
made any request of the court on the subject, cannot be assigned
for error.
Judgment affirmed.
[
Footnote 1]
February 22, 1847, § 8; 9 Stat. at Large 130.
[
Footnote 2]
February 22, 1848, § 2; 9
ib. 211-212.
[
Footnote 3]
Redfield on Carriers § 34.
