HOLMES : 'I . ' ; I;; ! l-'," '
'I ".,
.'.'
OREGON' & ,
"CALiFORNIA BY. CO. '::'; ,I
.'
I ) , '."
528 ", ;.
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CALIFORNIA,
,Ry" CO.- ,
(District
fl" GRANT."
1881.) r
1.
ord, with to be regulated by law, (article 7, H rand 12;"'i!.nd'by statth'e'(Civ.Code, t869jri has the exclusive power to grant l'ettcrsdfadm1nistrat:ion upon tbe' estate of a persOnwho&t imilie'dil\t:eh'befo're h'is'dcathwasan inhabitant of'thecounty. Held, (It that' d'edree of the county court of Multnomah county, granting letters to D. upon the estate of P., bJwhlch it appears to have been adjudged by said court, upon a proper petition, that P: was an inhabitant of the county at or iiilmcdiately bMore his death, cannot be questioned the grol.1nd ,that P. was not. jn sHcP j ,,(2) t4\!<tsl!otd cOl1rt having",geullral jurisdictioll ,0f the of upon the vacant, estate of.. a deceased 'person---:lt baa the inquire and determine whether,' in'tMi particular case, the , I",as an inhabitant Qf the cQuiltyor not, and that cit&. decision upon the is except,upqn appeal; anq. (3)thatasubseq\lent by the couniy of aiJ,otper county, granting lette1'!l o(ad, ministration upon the 'same eat ate to H.; while the first fUll force and e1llect, is null and void.' ,: '".;' '
By the constitution of this state the cou'rttv court·!g'aCourfof rec-
ot
were in
2. I1Iuu.BITANT.
,
'"
, . ,,'
The. word,. "
\'Sused in , .-
a a pei-soiml presei:ltil in thll'COl1i1ty 3. NEGT;IGENCE.
as a
section 869 aforesaid, has thim doniicile, a.nd unplies dweller th:etein: ' " I
" ) ,
"'rhe defendant's steamAerry,' i!rbstled river to Port: ;land,ona dark night"with passeUgers fromJtsrailway; the ponto?n at,t,he, fell into theriyer andwasd:-owned. Held, the want of a guard 'to prEN-im t .the' passen'gets fr<nn attempting to :g6 'ashore' before' the , 'laniling was/safely made,'kd some sUfficieni: wm-npasscnthe,waut gerllwhell-, of light upon the. boat and pimtoon pali!sengers to readily observe the same and sitluaUon,was negjigence, imd caused tll.e'death of P. '" ';'j 'CONTRIBUTORY NEGLIGENcE-DRUNKENNEilB. " " J. '
@1: It.',
:{ Ai':"
FEDERAL REPORTER.
5. COMMON CARRmR· .1'- common carrier of passengers for hire is b9und to prOYide for their so far as is praeticalile,by hiuuan care and foresight; and, where one is drowned under the circumstances aforesaid, drunkenness, if it existed, was not contributory negligence. 6. DAMAGES.
The damages recoverable under section. ::)67 of. the Oregon Civil Code, by an administrator for the death of his intestate, are general assets of the estate, and are given merely as a pecuniary compensation for the death, and not as a soZatium; nor are they to be exemplary or vindictive, but accordiJ;1g to the yalue .of the life, having due regard to the capacity and disposition of 'the. deceased to be useful-to labor . , and to save. · ( \.i
In Admii:aIty
D. tq:recoyer the sJm of 1,',1,900, ,,\lnder: section 361:01 the..Oregon Civil Code, on accountrof tha libellant?s intes?eEln .br,the; peg,ligence?f. the 16, ,said Perkins across the Wallamet river at Portland, oni.ts' No.1. The answer of the defendant, in addition'to'ithe:alledirectlY'resffonsive to 'the and' cbntesting the cause of in bar of the same, the equivalent of the pleas of ne unques admin3,lld a adjudication at law. These pleas are but different fomis 'of ,the same defence, and the facts upon which as fblldws: In June,1877, William A; Perkins, then'ill)iis twenty-secoI;ld yea,r, to' 'Jackson county, Oregon; via California, from his native state, Vermont, with his mother and step-father, Michael Riggs, where he remained until September 10, 1878, when the mother, on account of alleged cruel treatment, left Riggs, taking with her her three minor children and the effects which belonged to her, and started for California, where she had a brother living, with the ultimate purpose of going back to Vermont to reside, where she had a son still older than the deceased. The de{leased accompanied her, first disposing of a pre-emption
Sidney :Dell, fOD ,libellant. Oymu"i!; Dolph an:d Joseph;N; Dolph, for defendant.
HOLMES V.' OREGON',. ,OAIJ:FORNIA. BY. 00.
:t!lS
claimcinr :gdeh,ripon: whilili heand:hiS ,mother had resided. separate ,from Riggslfor: 'some months,alJ,d" l-eavmg not)ling behind i'·, l: ·;r· , '! " . At Roseburg ,they were/detained ,by sickness' and poverty until October 10, :1878, :when'they came to SItilem;wherefor the want of means to; pursue .their journey they remained mitil November 16th, when,; by aid of others, they started for California on the defendant'!!!' railway, and on the evening of the same. day, whilecro8singihe river at Portland, the defendant was drowned;. . On December 2, 1878"the,oonnty oourtof Multnomah county, upon the proper. petition of the mother of· the deceased, styling herself "Mary· A. RiggS; .ofthe ' city of ,Port.. in whioh it was allaMed'-. the was, at or immediately heforehis death';a'il inhttmtant!of s8iil'eG1mty/, m.adean. order oW. lqaY'is'adrrtilltistraoor the estate of said .William Perkins; in!;whichi things, is l!ltllegedthat; by"tlre oath: of Aihe' p,etitiorier,Y:it was Baid ,Peroos ,diad Jintesta.teoin, Mrilthmbah Oregp.n., .he: immediately befQte !his ,aewth aninbabitlia),tc()f; said county,",whieh.order lilnd,appointment still·in effect';. and said ,navis;; ,iItpliJ.tsl!I8JlWe thereof, uuly jqutlllifi'ed as'sne;q administrator; and oU' January 2,1819, brou.ght..alU:80c:tiouIMj.law ill' tlie1oirbuit,oourt[ofl;th'e state under: seotion1l36fi aforesaid;, fo.J:: the idrenticaLcause of suit, alleged in the i libel :iniwhich, ond4arch 31st, said·ci'rcuit,c0ui't.gaVe JIMgment that the plaintiiUabnothing was, on August 11,1879, duly;affirmed bythesupreme.courl oUhe state and still remaiJ;lS:in fulI.£orce and effect.' On September 17, 1879, court of Jackson county, Oregon, appomted the libellant administrator of the estate of said Perkins, 'and in pursuance thereof the libellant duly qual. ii!ed as such administrator, and brought this suit to recover damages for the death of his intestate. Upon these facts the plea of a. prior adjudication is not sUfltained; for although the action of Davisv. The O. G.,By. Co· .w asforthe same
'.
·.
nause.8.s· ,this,dit, ,was between::different parties' plaintiff, who were nbt',priviefli"C[Phe JllCkscin!\WOOty. administrator is not the successor of the Multnomah one.0nrUiecontrary.,he titLe' to ,the esttlJte'oltha 'deceased:by 9i distinct and 'independent,,,::i{, notan·'a4Vleraeg;rant. !Hie suit proceeds Juponthe a.ssuptionthat Davils i:W.8t8 not the administrator, and that therefore his aotiontdrecl;l'Verdam.a.ges belonging to the estaie.,ofthedeceased was' iii nullity.itnd,of no effect. ,The! defence,that the .lihellahi' .was "mot I ever tor" of the deceased, involves the inquiry. :(1) Did the county' b0Il:rt"of Multnomahoomity.. hl1ve jurisdiction to grant the administratictlD of the estate'ot the·deceased to Davis when and' (l&}Can the deC4'oo'()f said!cou;rt:maJking said -granUeattacked collatemlly?;,ThEl jurisdicition to grantlet ters of adminietrationupon Ferkins' estate was vested in the county court oUhe connil;y of which the deceased, "at orim:. mediatelybefore,his death,.ws,s an inhabit8J.nt""":"'''in whatever place he ,may. havedied/' Oregori '§§ 1051, 1053. And' firilt, as to the' fact-of what county' w4s' the deceased at or immediately 1>ef016 his death ? ' In the consideration ,of this, question counsel for the libellaut' SUDleS thf!,thabitaiion and domicile are in: ,this dase convertibleterms,. and that t.herefore a pe!1"son is always an inhabitant of the place in whioh he haaadomicile;andvice ?JerSa. Butt dO;'notthink that the term "inltabitant, "as used in' the statute, is the equivalent of the technical taNri "'d6micile." :'Aihabitfl,tionisa 'place'of abOde...-a place to dwell in; Bind an inhaQitint' place is one who l'u:i;a an actualresidenca there. ;;But it place where he may reside in fact, or for, rbanyipu,tpeSGs1may be deemed to reside. Indeedl,a personmay.hav.etwo.domiciles1tt once; "as, for exatnpIe, if a :fdreigmni,,'coming to this cotmtty, should establish New': York' and the other in New Orleans, in eaeh;he would, for most prd'po S 6'8 j.J:i.:ave ;twe 'domiciles." 'Bouvier ; Doniicile. ' . cA,man'sdoin.icile', Rstbeword implies, is:hishouse;;hls home;; a.nddt>may.conti,uue tOibe euoch .forycearsi '\tithout'being o
HOLMES V.,
BY. CO.
'5"7
inhabitBhtof aJ place i$ ,present there;-; DOt me:relyin itinere, but as a resident and dweller therein. DoniiciTe;as,d il! ofteJil' of grel1t. diffi culty to determihe. ¥eh conteInplation of has,a ;domicile BomEl; it generally l!ights"imd duties, and· ,of his:prdpettyafter his· death. ,Abiflgtqn ,v. North Brid!fiwater, 23\ Pick. 176 ;iMitcheU v."TheU. 8.93U>8iJ .. 609. Furthermore, a pel'son.wbo"m. contemplation 'of law,. }HI.S ,!J. domicile, Jnay; ,n,evartp131essi..Rs fact, be a anduoi inhabitant of ;a,riy. ,place. view of ,the law.,Id§)' nottpink,;that Perkins can qe 'Bit,the time ofi,. h.iadElath, nor, indeed, of .any cQwityiin;tlie state.Al'I ro1riat· ter:offact heha.d county, .and was.jou:rne,YillB I state', to Oalifornia.,,'· ,mhl!refore;\ the power to grant letters to_ of the ,cOuniy!,i if.. :any" :of whichdi e :Whs an 'inhabita.nt ;immediately befQre::his death.; 'an", inb/llbitant Qf countY,b.eforahis death, but I. doubt' if, h_w'was · .Jmbiediately u;teans without any· thing very. opposite ':ofLmediately.rln this statute t. tlJ;e shltU beg,ranted'in i aadnhabitwrit at' 01' msti: before his ,I" " f'rt,):/! I i ' .,q . " j , : ; )nv> ,The six weeluLhntuediabelypJ.·etieding'hia: death .,P'erkins· lived . he. did notiritend 'to' . ,-" ibut dnly tmtil' his mother eould: get awaycwitiifyet I a'lin i,nelined1tb the . that tlIat .was last .ooritrty' he,wasan; inh8lbitUtnt,j)f-:. before, dalit,th; if it wasnot,:lthen 'Jackso:d lCoUnty''\\r'lis.B Howevtlr 'lllay<be, 1 dOln6t 4llaink P:erkihBwas'alb tillhwb/ itant of Multnomah county at:'tb:e 't'itrii:l01 his' ..amh ·.alil faa},\ the: eonrity court' df ij!Bt'OOun'ty nQtat),tho,rized ,to! .grantllle'tt'EilJ> :Qf Jadmiriistratfunt :uponl :Au.duthis: UIS of<"the') .,';' ','," . . "
..-
528
'FEDERAL REPORTER.
principal question-can the decree of the county court grant. ing the letters of administration to Davis be attacked collaterally? By the constitution of the statl:'! (article 7, §§ 1, 11, and 12) it is provided, in effect, that the>county court shall be "a court of record, 'having the general jurisdiction" "pertaining to probate courts," to be limited by law; and by section 869 of the CIvil Code it is declared that such court "has theexelusive jurisdiction in the nrst instance, pertaining to a court 'of probate, to grant and revoke letters of administration." In TU8tin v. Gaunt, 4 Oregon, 305, the supreme court of the state held that the county court, in 'jurisdiction pertaining. to probate courts, is a. court "of superior jurisdictiol1, as contradistinguished from courts of inferior and limited jurisdiction;" and that its "judgments and ings," when questioned collaterally, ltre entitled to all the presumptions of law in favor of their legality that pertain to the judgments of courts. In the case of a judgment of a superior court-a court of record-the law presumes that the court had jUl'isdiction unless the contrary appears; and in the courts of the same state it has usually been held that, unless the contrary appears from the record of the case, it cannot be shown at all; in other words, the validity of the judgment and the jurisdiction of the court that pronounoed it must be tried by the reoord alone. But the record of a judgment of a court of a state may be oontradicted in the courts of a sister state orthe United States, as to the facts neoessary to give jurisdiotion, and if it be shown that suoh facts did not exist, the reoord, notwithstanding its recitals to the oont·rary, is a uullity. Thomp8on v. Whitman, 18 Wall. 457; Pennoyer v. Neff, 95 U. S.714. And the same rule ,has lately been applied by the New York oourt of appeals to domestic judgments. Fergu80n v. Crawford, 70 N. Y. 253. Assuming this to be the rule! governing this (lase, the·contention of the, libellant is: (l)TbEi county court of Multnomah county had not jurisdiction to grant the letters of admin.
HOLMES V.OREGON & OAi'ttFORNIA RY.OO.
-529
istration u!X>n Perkins' estate, as it diditmle88 he was' art inhabitant of such' county at or immediately before 'his death; (2) it appears that Perkins· was, not ever an'inhabitant Of said county; and (3) therefore, the 'COurt acted without juris. diction, and this fact maybe shown recora of Davis' appointment, and thereby destroy its validity.' Upon what fact or jurisdiction <if I a' court t6 grant letters of administration upon the estate :ofa de<ltiasM petsoll depends, is a nice and vexed-question, lipon which· the authorities are in direct conflict. At common law, the grant of letters by the bishop, when by reason of the locality of tHe bona notabilia of the deceased-the equivalent of inhabitartcy -the power did not belong to Mm, was void, bli.t' when: made by ,the metropolitan, under like circumstanees,itw8.s only voidable. ' Toller on Ex: 53. ' In Massachusetts, in Cutts v. Haskins, 9 Mass. 543, it was, held that the grant of administration by a judge of 'Probate on the estate of a deceased person, not at his death an inhab. itant of the county in which such administration was granted, was simply null and void. This ruling was'followed in Holy. oke v. Haskins, 5 Pick. 20, and 9 ·Pick. 259, when the legislature intervened, and declared that the jurisdiction assumed by a probate judge, so far as it depends upon the place of residence of any person, shall not be contested, except directly upon appeal, unless the want of jurisdiction appears upon the record. Rev. St. c. 83, § 12. To the same effect is the ruling in Becket v. Selover, 7 Cal. 233; and in Fletcher v. Weir, l' Dana, 345, it was held that the decree of probate court, admitting a will to ,probate, was prima facie evidence of its jurisdiction, which, it was said, might be overcome by showing that the testator was not domiciled ill the' state. On the other hand, it has been heUi that where -8i probate court grants letterB'of administration upon a petition which states thefaets neoessary to givb the court jurisdiction,the decree bfthe' c'ourt iSllot void, ana cannot be questioned <lOllaterallyi: althongh the residence 'of the deceased at or last before his death was not, in fact, in v.5,no.6-34
<$80 . the oounty
,'_.
,"q ,I.!
FEDEML,l,lEPQRTER·..
.W;eJ:e Sueh has 'been (F'.iBher ,y.. Bt;f,Bsett, 9;Leigh,: ill9; AnweW8 v. Avor.y,j,4 OratiiLn, in v. Goour!t, 2,SVt. 66l;) Silsbee, dI5 65:MQ. 264;7 bama", (Coltp,rt v. -Allen, 4:0 Ala.:J,5:Ori)- in California, (Irwin v. Scriber.,, 18 Cal. 503;) and iJ;lJ:New York, (Bumstead v.Read, $1 Darb. 664; Bolton, v. Brew8.te'l1,' ,3.2 Ba'rb. 393.) , .:The reasons given for not alwaiYsthe sflme, or even harmpniouB. is not a ,simplE! one; and affords a 0PPOl:tl1tUty for subtlety and ,refinement. case,s, gone, more or less, ',UPQll ,the argument alil'dj tAB fa.<;t ,that any other.fule is and wou14l.c;Jave, dependent UPOll oaf growing out of the grant of i,n'anuna"nd preqario)ls :,condition. But in my j:udgn;J.¢tlt ·the con,clusioJ? reac;h,ed in these c,ases is legll;lly a'fj :w:ell'fl,1f . '" ,.d'", The. couAty. (wurts of Oregon have and" eXQlu:-< sivejurisdictiontograntletters.of of d,eceased persons, tpbe exercj.sedj however, !,by. cOllnty court only in casesw1}ere. the, dece.aaeil. was an inhSt:hc;>fthat couJilty,at Ol;.jplInediately before his death.f E!Ubj\1ct-lIlf1tter the gra:p.ting administration, upO'u:, the 9f 11, wi{hout. a.uadmi;nistrator-..ia within the' general jurisdiGtioJ;l of ever;' CO\l!Uty: ;in Oregoll r but the exerci!lEl: 9fjt in cases Mpefids upon the existepce of partiQular facts, be ,aecertained by the court in the D;laUner prel'lcribed. by 1aw,a,nd in. the of it,sadmit:te{l, jp.dsdiction,to of in tP,e Cafjes in., the statute. :rf:a\lrl iLt;b.eperson is. ;not .dep,<'J, or t,9<6 of, bis hitS already been. of ,the ¢Qurt; it does <l!3Cree' appqinting an, admi:a.istrator in aUllh case is ' s,iJ;llply ,mid.. Ia,m aware court of appeals of New, Ym'.k ,v. E. It. S. InsiitIJtioll, 63 N. Y. 460) by 0. d
'J."
HOLMES V. OREGON &
53t
majoi'itylilLve beldthil.t a grant of albninistrt!.tion' bya de&th' of the person; uP6Ihvhose estate administration is granted; &nd conclusive offthe to act until the were revoked or the otdei"g1t!l,litins,:them aet aside on; appeal,"gofat;' at least-;aB toptotootifi'nooo:rit persons' actil1'gJul}()U,the faith of them,"", .. ".' r , 'But'this nohvithsta;ndiilg the plausible arguments iidilipport of it, is, as JadgeRedneld rema,rked, (5 Am. Law Reg. 213,) "without a precl)dent in English or' American and the responsibility for it is practically tfle statuie"of thesta..te, which is said to require surrogate in all <cases, to hear Elvidenceand:determine ,the' question ofde'ath<before gtantitig the letters. If '''But·iriJJocltwmsen v. S. S;lJ'ank;a Allen,' 88, the supreme court of rYassatlhuse1its i ' under likecircumstq,ncas;' held thlltt agratitof administration \lpOtrethe ,estate iof 'it neously 8uppo'ged,to be bacause thejQril!ldid:. tion of the probate judge was limited to the appointment of, upontbe: estittEfs of deceas:ed parsons. And in GrijJithv. Fra,zier, 8 'CMnen,9;the court of the United States 'held that the appointment of an administrator, by the' 'ordinary of 'South Carblina upon the estate of a person, where there wa.s an .executor entitled to act; '",as void..Chief JuatieeMarshall delivere(t:'the opinion'of the court, and in noticing the al'gumentthat the apPolutrnent was the judgn1ent·ofanofficer exercised upon a. sdbject cognizable i:n:his court;' and· therefore not'Voitl, even if :errohMus, admitted its andth.e: difficulty of distitl'iulshing the cascs in which a courtof'gensl·al! 'probate juriSdiction may. be said to have withln::ilts:cognizanee, 'and said: "But the difficulty'ohtiarking the,preoiseline of distinction does not,prove that; 'no Buch line: e'XlaU. .To give the ordinary j:urisdtiction, 'a oaJSe in 'which: by <law letters of administration may issue must; hefbroughtbefore hihr. · But sup,. pose, ,administtation tc} begr-ruIW3d!on the .6fjtate of, a person not'tElll;lly:dea.,lhrThe act,:all will 'admit, is'totally void;Ye\
ga.te 'was'ajudieial
-I .
.01 .... \
,'I'Jll.DI1UU,IJ l);EPORTER·.
the, ordinary, nmst :alWalY·s inquire an-d decide i911\ person whose l:\$taAie is ito the be dead or. in IUs a: b,ran,chof every cause inw4ich ters of adminifltration.issue. Yet the decision of the ordinary that the person 01;1; whose estate he aQts iadead, if the fact be otherwise, does no,li;inv6st the person he may appoint with tbe character or powers of an hdministrator. The case, in truth, was not one within his jurisdiction. It was not one in, which he bad a right to deliberate. It was not committed tobimby law." :This ruling was followed in Kane v. Paul, 14 Pet. 83, where it was decidedtbat the grant of administration of an estatElI where there was an executor entitled to act, was void. But when there is a case forthe cognizance oltha court,...-that is, an estate ola deceased personwithoqt an administrator,-the cO;uxt,i up.on tbe proper applie.ation, has the juria.diction to act, and:tQidetermine.every may ati!!fl,in the course. of ithe proceeding, inclndingthatof,rthe of the deased. In J:i'i8her v. !3a88ett, supra, Judge,Tucker tion between graJilting to proceed,)jn,a admiuistrllotion of particular case. After stati,ngtlaat he did .not COllsider the; county court of N'irginU1, the sam.e,a&the ordinary of England, hl:lcause the form.er was a coud: of J:'ecor.d, WhQSEl judglDen.ts .cause, couldnot be questiU!le4, if Lt had';jurisdiction said.:;. "And this is to'be understood as havhlg. ref-erence to jurisdiction over thesubject-m&tter; for though.it may be that the facts do not give jurisdiction over the particular case, yet if the jurisdiction extends: :over that cla-ss. of .casesthe judgment cannot be questioned; for then the question of jurisdiction enters into, and becomes an essential part of, the judgment of tbe coul't. Thus, if a county court were to give judgment of death against a white man, the sheriff would bave no lawful authority to execute him; or, if a court of chancery were to grant probate of a will, it would be ipso facto void, since that court has no jurisdiction in any case of proi · ./ ' I ' · , II
HOLMES
v.
C"'1'.!IFORNIA BY. CO.
" aary its
ipsp facto.
htloS its ca$!'! ip void, because its ,invalidity .with. out an inquiry into the facts; ,an .inquiry which t4l'l)court it.aeU, be 'presumed ha;ve made, whicJ1 :win-not, therefore, ,be permitted to be.rl;jvived . And, 1;\, parallel ease, it seems to me, is this: The cuit court of all civil in law and equity, of a value, arising of and if iII, such a. case it that the parties are. citizens and of thecontrov;8f1U' "betweerlthem, its decisipn,in .r,espea,t'is conclusive, except, upon appeal. c, , : , be. by, means to grant ... providefoJ;! :411e and to. tpe of this, of..LAt? As, I mel'ely l!>' Djlattel,' jqrisdiction :the, of. importat:lpe in,.pJ'Qvi,ding fpr what be suppoaed b6; tpe .. thf, aeveral oo;unty j pf' ji,he, stat,e. . '. : 'A'om ;The pfh.,oldiIlg,tlw of ,a istration9f: a.H; elltateto ,.ba ,copc!ullive; .asto of uP0l;l;,,8ppeal, is very' ought to have much weight. Cases are in which it is to say, habitancy of the,decea.sedw;a.s. ; fll.cts upop deciaion of the often so obscure, vague,and a.mbiguous or thatqo t':Vo courts can 4ardlybe expected to draw the same conclusion from Andyet its decision is a mere only to the pro. cedure-and involves no substantial right. Apart from the local convenience of parties it makesuo differElnce what court of the state grants the, administration. The case under consideration is a striking illustration of
584
PEDERAL lnllPORTER. '
the difficulty Of deciding wh8.twas last residence of a 'deceased'persoh, for the purpose of'gdtnting ddminlstratloIi upon his ,esta.te, arid what useless', confusion, litigation, 'and loss would follow if the judgilientofthe comity judge such a question was open to attack collaterally, whenever' and' ;any right 'of action or property'arising out of Of depending upon thecorrectDElss of such jUdgment was con, tested or called in question. ' WilhIDe the'70days immediately prior to his death, Perkins wals'ih four' counties of " Already administration haabeen granted in twei' of them, made under the' advice of learned counsel; and if I were called upon'to decide Of which county he was an inhabitant, at or immediately before his death, I shot1ld probably say not 'eiiher: of these, but' Marion county. ·. So that if the rule r.or1tended for by the libellarihvere to and the grant of administration be heM void; in case it appears to this the conclucourt that it was ttotIIlade'ih si<)D might" be'that fJavis' nor BolInas is the' legal administrator of the debeased'. 'ButT do riot think the residen{le of the' aecMaed is 'ali dpen 'question in this' court. In the exercise :O{i(its' general jurisdiction '(}ter' the' estates of conn of Multnotrialicounty, in thEl'lippointment of Davis as that the' deceased was' 'an inhabitarit of time oIhis death; an'd,this deeision, except upon appe'a'!; is 'Cotlcltlsive of: tlie'question.' iTliegrltht 'ofadrillnistration to the libellan't 'having been an estate ''Was not vacant, but already vested 'in the administrator appointed "by the court of Multnomah county; it fGUo'Wstlra:t suah granns void, and the plcit bfne is sustained. 'This conclusion also derives, suppoH'from ·the analogies of the foHowing cases relating 'of jurisdiction'in probate' courts and matters': Grigndn'v. Astbt;2How. 335; Florentine v. Barton, 2 Wall. 210; 3 Wall. 402; Canjolle v. Fefl'ie,18WaU>f69'; Bj'oderick'sWill, 21 Wall. 509; Mohr
HOLMES V'.R-REGON &,IC)4Mf.-!?*NIA BY.
co.
.1,)35
v. ,¥anier?:e, 101. p-: S,: 417; ·. ' ! ; ' plea t9 4}s,PQse tpe case iIi this court; 'PHt the defendfL.nt having also upon the merits', the. case, being ,J,iaole to Ml' It to be consideredin.the . . ,'. . . " '. ' l the of. j\ldge upon the to oi. Ja,ct drawn, lllerely fxpm read7 ing 'the notes..'._ t4e witnesses,' testimony, but a . : - .. of ,-,. k,lllowledge.Qf , "; '.-' -0\ .,- · the locus inquo!,apd a· observationof the '.1 ',-;.
4f>3; Shroyerv. Richn!,ond, land, 10 Wis, If>;,.Gager, v.l!enry, 5
whi<;h .so .often qualify, dict, 'to rwnailling. t:wo. pase: (l)J)id 'come to bis de::ljth py wron,gful actpr omi,ssiqn. of t})e <iI:),an.d fault on part if he did, ought .adminis,trato;J.' ,to und,er the statqte therdor? ., ' .. ' . . . Upon the fiee., of iu,compaJ;l.Y wMh his mot1}er, brother, ,t'Yo., left. Salem for', Portland on railway, w.1l.iGh arri tttthedepot.·on e'ast' side riverat'4 P. . Oregon City two bours th,e WI1S, dark and passengers, gl\ge, and the:Q.; tp the . Ifp,.d his faDlily,walk,ing ,fr0:Ittl+e depot to th.e. boat, a distancf'lQf about The, bp/llt 'Yll's the. of a stationed in, the five or six fe,et; the level of the deck, and !1bout$q feet back. of the po,w. one light on thll-t was an ordinary ,tpe only eD?-ploye, .gn, ,decli. ; deck immedia in, VQ'nt of.t4f3 pilot-house was I feet .,eitherr sidl3 the.re were running forward, 1 ", 29. ," H. '. ,'. "'" d" .'.", ,; '" ... I.. .'"
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the forward end of these railings the deck was 20 feet across, and from thert1 to the end of the boat-a distance of eight feet-there was no rail or guard; neither was there 'any chain, gate, or guard across the deck, or any like means to prevent tha egress of passengers at or before landing. On the Portland gide of the river the boat landed at· a pontoon about 40 feet wide, a circular recess in the front of it about 20 feet across and 8 feet deep in the center, into which the bow of the boat was run, and then fastened by a line taken from the boat on the port or upper side at or near the end of the railing, and belayed to a kevel on the upper side of the pont06n about 10 feet from the boat, and then an apron about 12 feet 'in length was turned over from the front of the former on 'to the bow of the latter, which served as a bridge upon which wagons crossed the joint or slight opening between the boat and pontoon, while the foot passengers usually stepped off from the former on to the latter anywhere within the circle. The cabin was in the middle of thp. boat, running fore and aft, with a pilot-house at either end and a wagon way on either side, with a stairway at each end ascending between the house and the cabin-the one then next to the shore from the port side. While crossing the river the deceased and the family, with two or three others, occupied the cabin, which was but the light did not produce any effect forward of the pilot-hoUlie. Themail wagon, drawn by two horses, was on the. port side roadway and nearly abreast of the stairway leading into the cabin. On this occasion, owing to the darkness, the boat did not make her landIng at' the pontoon direct, but ran in {rom down the stream, and at an angle of about 57 degrees with the line of its face, and went hard up against the pontoon at each end of the circular recess therein, leaving a crescent-shaped space between it and the pontoon and these points of about 18 inches in width at the center. As soon as the boat struck the pontoon the watchman stepped on to the ullper side of it, sat down his lamp and made the line' fast to the kevel; and at the same time most of the passengers-probably 20 or
BOLMES V. OnEGON ,& CALIFORNIA BY. CO.
5a'(
were standing on the deck forward of the ashore, as was uSllal in .the day-time, some on .and otheraon the lower side of the pontoon, where touched or came close together, without objection Of direction from anyone. From the. pontoon the street ascends the hill a distance of probably 200 feat. Near the foot to Front of, the hill ,some hotel hacks were standing, one or two of which had lights shining towards the river, and upon the further side ,of Front street, and about 35 feet above the level of the river, stood a street lamp. Besides these and the watchman's lantern there were no lights at the landing or in the vicinity. On the pontoon there were So'uumbef of hotel runners making tha air ring with the na,mes and advantages of their respf:)ctiye houses. Neither ,the defendant nor ,the family had ever been at Portland, or had any knowledge of the landing or its,surround,. ings. As soon as the boat struck the pontoon, an!! the passengers on the deck began to go ashore,the deceased, who had reason to believe the boat' waS landed, went ,down fromthe cabin to go ashore. He had a sack of clothes on one arm and a valise in the other hand; and as he reached the deck and passed forward he'disturbf:)d the off horse in the. mail wagon, and the animal, being skittish or vicious, jumped or kicked, whereupon the driver railed out at him, telling him with much profanity to stand back or tl1-ke care, or he would get hurt. With this the deceased, who was now at the front of the pilot·house, diverged a little to the right, and saying, "I am all right," walked forward to the starboard quarter of the bow, a few feet forward of the end of the rail, and undertook to step off on to the pontoon, but struck his toe against the latter instead of stepping on it, and thereby fell into the river through the space between the pontoon and the boat, which was there u"om 18 inches to two feet wide, and was drowned. Upon this state of facts it is too plain for argument that the deceased came to his death by "the wrongful omission"-the negligence-of the defendant. The defendant was a common carrier of passengers fol'
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588 hire; si\'d
.'.) ":: 'FEbER!L
REPORTER.
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'to; a. ;very strict it was bou'nd; tb provide' for the safeltS';:efi 't1fe· deceased, while' upon' its" bOat and gettin.g on shore; "scVfM as was pra:eticableby theeletcise 'bf human. r oaI'e'and foresight.", ShOemaker v.Kingsbury, 12 Wall. 376. To this end, itwas'cgrtIi4ttly,jts'dttty'fu have had its boat andlanding,opartictilddy the latter, well lighted; and to have mairittlilned a'guaNi ot-gate" across the bow of the former to before the 'landing was ful1yi ma de, alld to have sign'ified to the passengers in sone by thel'lhging of a bellwhen it wag safeI' Q;hd, go ashbre.: But all theset pteootitionlS Were omitted,:and' !lJthough the fact that the boat did not usually cross the river at night may it}! some meli<Bure excuse those in immedittte charge of th.e boat" fOl';' the 'omission, it, dbes not exonerate the defendant from tbJ leg-a1 effecttherebt" that the deceased'was duly warned not 'itlshore'/w.hen atl.d'l1liY he did, and that his disregard of such warningwaB the callSIJ'M' his death; or aubst1tntiailj contribute8. to it; and also tllat he was intoxicated at the time of' his death; and of apprehending or avoiding; the :ditnger which callsed thelos8 of his life.· :"" Contributory is a· defence to· this action. The ani/Mos, .. 'But the burden of proof is upon' the defendant to establish .it. I admit the authorities are in hopeless conflict upon this question, but in my judgment any; other rule than this violates all the analogies of the law, and is practIcally illogical and unjust. See 2 Thomp. Neg. 1175,' § 24. The evidence in rega-rd to the warning and intoxicationr eom.es'fl;om thewitnesl':lesl!6f the defendant, and must be taken with many grains'Lof allowattce, besides being substantially cohtradidted by those of the libellant. The witnesses of thedefendarit,.from whom this evidence comes, are its employes,' or persons habitually traveling On its road in connection with: transportation of the maR, or engaged as solicitors for riheir;ptotection",vassuhject f ·· ,
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HOLMES V,OBEGON & QALUOOJ,lNIA BY. 00.
530
hotels that largeshare,9f.their patl'onage,froJll, the travel over this r{)Ad.. They JllOre. oJ; flympathy wi.th the defendant or representatiye.&' are persons of standing and influence in this Comm1ll;4ty,. the deceased was a poor st:r:anger The circumstances to which oUhem; oQcllrred jp a crowd on the boat and.t4e 'pontoon; when :the Wll-!l utterly unknown to most of them, while confusion :was such as to vation or apprehensi.on of what did take plaoe. , Upon the ques.tion of .ill while the train was delayed at 9regon,City the deceasecl became partially sQ,ag .to him at alJ helpless Or unconscious, but he reach.ed boat the-effect of the liquor badpracticaUy passed aw.i+Y. He appears to have. gone back and forth on the train :during the passage from Oregon City without, diijiculty. He alBo pears to have gotten down .from the,cttrs at the depot,and walked to the ferry-boat, and Bat in the cfl,bin crossm.g the river, without any trouble Qr a,ttracting the attentionQf those in hiB iomediat.epJ.'esence and,coD;lpany. It is; mitted that intoxication iii evidence of. gence, and in some cltse:s,m:ay be sufficient to establish..it. thecircumstanO'es .of this case, But it is not admitted, that if the deceased beeI). drun,kthedefenc;lp,nt would not be liable dflath!";,,The receive4 him on its boat without al1dif 'Was paJ,paQly drunk it was bound totakecate of him ae;cordin.gly.;·; !I In Robinson v. Pioche, 5 Gal. 460; which, was ap;a;qtiQn.JOf by the .pllliUltUf ff\Ui;ng. a.A ered bole, dug in Qfthe premises, and taken to the pourt: llPQua,n toihe charge iII, the ..court, intoxication.; bf theplaintitr .w,lj.S o:neof, the: <mus!l;S of. injury, he. Jlould, no,t. Hydenje.lt,J., opinion of the" courtTf(}J! reversal.lsaid tILth'e defendants 'were at in leavung, inJhe aid.e walk u
I
. FEDERAL .REPOR'l'ER.
, !
Of' 6,' public street, theintdxication of the 'plaintiff cannot exciu.se iluch gTOSB negligence. Adrunkell mabis as much to a safestraet a 'sober one, and much more in 'need of it/' : ' .'As totba warning, admitting, for the' presen'!;, that th'e deleIidi:mt might by'thismelltns excuse itseiffor the want of light, gillird, and 'sigrwJ for landi:ng, the proof' is' not aatisfactory that distin6t warni:ng not togo ashore, was given to the dMeased'tha:t'lie was "bound to recogni'z(3, as intended for liim, or as coming from anyone authorized·to direct or interfere with the conduct of the passengers. The objurgation of the driver of the' 'mail wagon is claimed to have beeh a sufficient warning; but,'apart from' the fact that he was only a passenger, the .fa.ir inference from all the circumstances is that what'the driver said was occasioned by and confined to the alleged interference of the deceased with his horse. The pilot, (CharlesF. Jones.) who. under the circumstances, appears to be a fair witness, did call ont from the pilot-house, and probably as' the deceased was going forward, "to stand back." But ·there is no evidence that the call was particularly intended for the deceased, or if it was that he had any reason to think so, or even that he heard it. .There were other persons inf1"6nt· of the pilot;.house, also going f{)rward, as well as the deceased. ',. The deceased was a;' stranger to t'he boat, the place, and the manner of proceeding. He saw the great bulk of thepasseng6!'s had gone off, and iNle heard the call he might as well have understood it as applicable to the hotel runners on the edge of the pontoon waiting to catch the rest of the passengers. Some of the witnesses on shore also state that they cried, "Stand back," intending it for the deceased, without, however/mentioning any name. But their testimony upon this point is vague and indefinite, and upon other points where the facts are clear some of them are'much mistaken. One in particular states that the boat was fastened upon the lower side of the pontoon, while there is no doubt but that it was fastened on' the upper side; and that the passengers got off on the lower side, when it is
HOLMES V. OREGON. & CALIFORNIA BY.
equally certain tnat'the gre'ater number got Ofi'.otdJie upper side. Most of them represent the pontoon, when and where the deceased we[,lt ,oi. as kom.three to ·.sixfeet. wide, '8Jnd that the bOat was; atl the. time. But the the boa.tiiv.as,made fa$ as soon as she touched ,the pontoon and,remainerlHso without tothe contrarY" Be;sidesj that not back ,boat, hut only to right pOllAoPP.' illa;ke !L connection ,!"agons to igo . by one Glisan) disposes el.tra,vagllnt as to distance between the ll-nd the .pontW>:P, ill1patation upon them on the ,part .of to ero,ss auch a, , the deceased attempted to gElt off. ..b.ow of the boat just was gn.p tho.! two was aboutJ8;incbes'7"""juat a good across; deceased called tohiD:j. to "stand back," and thought to put his hand on him and, hold him. on the boat, but before. he. could do so the deceased atepped off,. he did his foot on the pontoo:p. and fell; that as he fell the witness reached fQl;Ward ltnd caught him by the lloat, but could not hold 4im., and he fell down i.nto the water, i\ix or seven .feet below. Under thecircumstances is very liable to as to the ga.p between the boat and thEl pontoon--:particu; width of larly aftEl! the lapse of two but the fact that the dEl:' ceased stepped from the one to the other Glisan'e immediate presence, and that he caught Perkins 'by the coat as he fell between them, is a matter he ;cftnnot well be mistaken about. The most probable conclusion, then, is that the space between the boat and the pontoon, when and where the deceased to cross it, was about 18 inches. But. it is also highly probable that it was less than this, if anything just '. ,. _, ,t'... · · " ",,: :'
;;lacking, thtf line" p1;oves that she coul.4not completelydi9prqve s the conj,ectural
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FEDERALREP01\TEB.,
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before the .decell.sed,'reached it. Whenth'e pilot saw tqaUhe passengers onthefoiward part of the boat had gotten off" he commenced working his wheels t08wing the stern up str.eam; and this naturally increased the opening on the .lower side; and so it was that the deceased, unconscious of 'this fact as he walked forward in ,the comparative darkness, encountered a chs,sm between the boat and pontoon, in the pIMa where others had just crossed in safety, wider than he had reason to expect or was aware Of:' ,I True, the pilot, when he swinging around, being aware the opening was between the pontoon' and the boat, called out, "Stand back," But the order was directed to nobbdy in particular, and coming as it did from above and behind the deceased, ina voice unknown to him, it' is not likely that it' was understood recognized by him as being applicable to persons in his situatioh. ;There ought ,to have been some one on deck to apply and enforce the or some guard or gate to prevent passengers ftdm l going forwatd of the rall;ng tin:tiI the landing was completed ;, and, itbove 'all thereotiglit ,', to iha va been light 'enough" lli>ihe vicinity tahave nrlide tion>apparenft6 every ohe OD' board. 'This omission 'the negligencewhich'6'aused the , death. ' ,. ' " "
of
or
The libellant contend's ,that the damages ought to be emplary, and that they "lignito be estimated for the'suffer..;' ings of the decl:lRsed, and"'the injury to the ffeelings of 'the survivors, as welllli to his estate. The sUfferings of the merelymdmentarj, and· cCluld hardly' beccrmethe subjectbf dainages'llnde.t"any stances ;'D.bi think that 'either of these grohfida 'of dam" 'ages are withinH18 statute.. It prov'ides"thatwhi3h of a person iscau'seu.by< the wrongful 'act or omission ()fan.. other," nnclEi! the circumatartces' of this itJM ,peis6riM representatives of maintaintn!a'ction 'therefdti "and' the dama.:ges therein 'shall not $5,000, an.d &thei the alllountrecovered,'ihtiiy, shall be administered n personal !the deceased. . , ofJihegenerlil Asstlts' bftli1t e:atate'brtHe
ex..
do r
HOLMES V.OREGON & 'CALIFORNIA RY. CO.
kin) hi: perso'tik 'afuortg whdrrHhe law 'shan be tribhted·. It'Would, be'.g,· tle\Viway'ofpaying old debts. if the tears and anguish of the survivors· coUId l be' thUs oent 'irito tasset's for the payment of . the' \ the secondtbtthe
tHe
,,'Iii' 'tHis is: admitted tlia t; th ere are 'hb c-'l'editors, anl aeceasEla 'single nelttdf kih,: <511;he dUtnotitee's' bf 'his estate, under -his'! mother. :inl equal parts. · . ' i i ,,; i Hi}';' Ci'egOl{Laws, 547. 548, §3.8ubs. ./Ui{Mt:sifuilar statutes of <ltl1er'st8,'tefFit i lias boon:: the··rule upon whichdamages:i:lhbuld····beJs,scases 'islLEdor a':pec-ufiiiiry- injury;8nd n'ot 'a;' solatium; 'or soiace for (feelings 01' 'mental snf" feting.. :,:'2 Thomp"Neg; 1289,§90'. "', .. ,i ,'), Tlie 'nearness 'of -the an.d forwhMe. betlefit tttre and strength of the obligation of the f6rtrier to care for ;ct5nsidered itlestibiMing the damages,andt inore distant the relation Or the weaker the' obligation the less they should he:' The age. health. habits or,iIldustryand 'SO" btiety,andmlimtltl and physical skill-of 'the·d.eceased\· so <far affect his capacity for rendering useflll service td'othl. ers, or acquiring property, must also heco'llsidered,- Under the statute the life of the deceased is valued according to his 'capa.cityanddisposition t6· be useful---to labor andio sA:ve'. The in:dustrio\1S, provident, artd:'skilled 'are worth -'tnore to society than0th'e'indolent,improvident, and ignorant, and.:their death is to be compensated for accordingly. This is the law; and, as will be seen, it makes no account of sentiment or feeling; and yet, while it is administered by fallible human beings, whether on the bench or in the jury-box, the chances are that a feeling of pity for the bereaved or indignation for the wrong will creep into the estimate and swell the damages beyond the strict legal limit. Neither are the damnges to be vindictive or exemplary, by way of punishment. The law d
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544
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.has provided' fQr t tllat, Whenever deatllensues from or negligenoe of an offioer of a steamvessel,. he ,Play be proseouted and punished as .for manslaughSeotion 5a44, Rev. St. Acco:rding to the standard life tables the expectancy of life of the deceased was about 38 years. He had no trade or Galling by. which to earn anything save that of a common laborer, was indo'and the <iecided weight of the evidence is that lent or inefficient, and to intemperance. At botll :Roseburg and Salem the family were glad to accept charity from comparative strangers, although the deceased was one ofth&p1 and in. apparent good health. Earning a I;! he might, iihe 1W0uld, $300 or $400 a year, it is not probable that he could furnish his mother more than $100 a year of it. Her age is not shown directly, but it may be inferred from the circumstances that she is between 40 and 50 years old. Her expectation of life is then about 20 years. The present value the compensation she is of .$10.0 a year for. 20 years is theoretically entitled to for the pecuniary loss caused by the deat,h of her son. The expectation of life in the case of the brothers and sisters is greater, indeed greater than that of the deceased; but the obligation to take care of them is less than in the case of the mother. Counting interest at the present legal rate-8 per cent.-I think $1,000 is all that ought to be recovered. But as, in my judgment, the grant of letters to Davis was valid until avoided, and those to the libellant void, the latter cannot maintain this suit as the representative of the deceased, and therefore the libel must be dismissed, with costs.
UPHOFF V. CHICAGO, ST. L. & N. O. R. 00.
545
UPHOFF
THE CmCAGO,
ST. L. & N. O. R. July, 1880.)
CO.
(OVreuit Oourt, D. Kentucky
CoRPORATION-ADOPTION OF FOREIGN-JURISDICTION.-It
is always a question of legislative intent whether the legislature of a state hall adopted as its own a corporation of another state, or merely licensed it to do business in the state. If, however, the effect of the legislation be to adopt the corporation, it becomes, for the purposes of jurisdiction, a corporation created by the state adopting it.
2.
REMOVAL OF CAUSES-CONSOLIDATED CORPORATION-RAILROADs.-The
incorporators of a Kentucky corporation are conclusively presumed to be citizens of that state. Held, therefore, that a suit commenced in the state court by a citizen of Kentucky against a corpora.tion chartered as a. single consolida.ted company by the several states, including Kentucky, through which it operates a ra.ilroad, cannot be removed to the federa.l court, 88 a controversy between citizens of dUIerent states.
Motion to Remand. Bigger if Reid, for plaintiff. Green J; Gilbert, for defendant. HAMMOND, D. J., (sitting by designation.) The plaintiff sued the defendant corporation in the court of common pleas of Hickman county, Kentucky, for negligently killing her husband. The defendant removed the cause into this court, alleging in its petition that the plaintiff is a citizen of Kentucky and the defendant "a citizen" of Louisiana. The plaintiff has filed here a response to said petition admitting that the plaintiff is a citizen of Kentucky, but averring that "while it may be true the defendant was and is a citizen of the state of Louisiana, yet it is also true that the defendant is a corporation and citizen of the state of Kentucky, duly incorporated and made such citizen by an act of the general assembly of the commonwealth of Kentucky, approved March 11, 1878, with power as such corporation and citizen to sue and be sued and contract in the state of Kentucky." The motion of the plaintiff is now made to remand the cause to the state court for want of jurisdiction. It is to be observed that the response to the petition for removal admits that the defendant corporation is "a citizen" of Louisiana, but avers v.5,no.7-35 I