Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1909-06-12
Railroad Must Pay Shipper 81 400
Within Thirty Days.
HUMPHREY CASE IS AFFIRMED
Life Sentence Against Man Who
Killed Chinsman Upheld.
RULING IN MILES WILL CASE
Woodmen of the World wins in
Suit Brought by Mrs. Mabel Ogden
TO Recover Insurance on
Husbands Death.
tFrom a staff Corresrondent.N

From a staff Correspondent.)
! LINCOLN June 1l-CSpecial 1.-The SUI
preme court holds constitutional the law
| of 1905 requiring railroads to carry 1.-Two
stock at not less than eighteen miles ar
hour on main lines and twelve miles an
hour on branch lines between the initial
point Of receiving to the point of feeding
or destination.
! A judgment for SL640 I'm favor OF Wilbur
| L. Friend against the Burlington railroad
| for delay in live stock shipment is affirmed
! by the court, providing the plaintiff files
remittitur of s24O in thirty days. each to
pay his own costs. The opinion of the
court was written by Judge Root, con-
CURED In by Judge Fawcett in a separate
opinion, and Judge Barnes dissenting.
| The shipments in question were from
Burwell to South Omaha during July, Aug
ust. September and October 1905. The de-
lays complained OF were from one to fifty
two hours, The penalty provided in the
law is $40 per hour per car for each hour
consumed beyond the time limit, even II no
damages are caused by the delay.
! The Judgment for $240 ordered remitted
was for delay in shipping one care from
Burwell to South Omaha. the delay being
caused by stopping and feeding at Lin
coin. II the shipment had continued with
out delay the stock would have arrived
at South Omaha Sunday. Deducting the
delay at Lincoln, there was a delay Of
only one hour on the shipment. The court
gives the railroad company the benefit Of
the statute relating to the running OF trains
on Sunday and holds that the plaintiff was
not entitled to recover on this cause OF ac-
tion. Judgment on all other causes of ac-
tion is affirmed,
Opinion of the Court.
The court finds that the defendant failed
to prove any affirmative defense save that
as to its delay in feeding and caring for
stock and II did so in Difference to the
statute prohibiting the operation Of trains
on Sunday. The defendant. having been
given the benefit of this defense. II is un-
necessary to determine whether the statute
precluded any other defense.
The Legislature may provide by general
law that a shipper of live stock may recover
liqudated damages from a public carrier.
The constitution does not prohibit the leRis-
lature from increasing the common law
liabilities Of common carriers, and courts
will not declare the statutes void on COM
plant of a carrier because in some hypo-
thetical case the law II applied might work
hardship.
The statute does not interfere with or
regulate interstate commerce. Where de-
lay occasloned by unloading stock to feed
| water and rest and TO have continued the
shipment probably would have compelled
the carrier to nave operated its trains on
/ Sunday and have resulted I'm the delivery
of live stock on the Sabbath a judgment
based said count will be reversed.
The court holds the statute does not
contravene the constitution of the state and
l.,
amendment to the constitution of the Unite
States The statute Is complete in itself
and though II may conflict somewhat with
other sections OF the statutes will not for
that reason be held void, as the carrier act
must yield to the latter.
Judge Fawcett in concurTng, favors
actual damages as the measure OF damages
but to so hold the court would have to
overrule a number OF former decisions. He
says there is nothing so conducive for the
well-being of the state as a settled state
of llw
Judge Barnes DIssents.
Judge Barnes. in dissenting. says the
statute is unconstitutional for several
reasons. He asserts that the opinion hold
ing the railroad company not liable for
delay which occurred on Sunday at feeding
yards is an amendment to the law and
amounts to judicial legislation. when in
order to prevent law from being declared
unconstitutional" says Judge Barnes, ut
is necessary to amend It by judicial con-
structon, it is the duty Of the court to
promptly declare II Unconstitutional and
thus avoid usurping power" He believes
tho statute deprves carriers of property
without due process of law
Pumphrey Case Amrmed.
The supreme court has affirmed the decl-
sion of the lower court in the case OF
Charles Pumphrey, sent Up from Douglas
county to serve a life sentence in the penl-
tentiary for the murder OF chinaman.
, Among other reasons for reversal OF the
decision of the lower court the attorney
for Pumphrey argued that japanese Va
not qualified to take the oath and tesi 4.
The court held that an adult citizei pf
Jalan is competent to take an oath Sha
testify. The litgant, the court said, migft
have questioned the witness before he took
the oath 10 show his incompetency. but
this had not been done
w. o. w. Wins Case.
The Woodmen or the World won in the
case brought by Mrs. Mabel ogden on
policy on the life OF her husband, Charles
ogden. II was shown in the trial in the
lower court that ogden had Joined the
lodge in 1899 and died in 1904. He did not
pay the assessment against his policy in
December. 1903. The plaintiff insisted that
in the year 1903 ogden had paid to the
lodge $3.50, which paid for five assess
ments. and that the sum was paid in De-
cember This she held reinstated him, The
company showed, however, that the amount
was paid in November and the deceased
had not paid the last assessment The
lower court was affirmed.
Miles VIII Case Ruling.
The supreme court overruled the motion
OF the appellees in the case Of Williams
against Miles 10 quash the bill Of excep-