Daily capital journal. (Salem, Oregon) 1903-1919, 1915-12-07
STAR LOSES
$500 DAMAGE SUIT IN
THE SUPREME COURT
Court Holds That Conductor
Has Legal Right To Eject
Drunken Man

John Spain, the buckeroo Of Round
up fame who considered himself dam
aged $4,000 worth on account of being
put off of a train and charged with
being intoxicated, came in for a
lengthy review at the hands of Justice
Mcbride in the supreme court this
morning. Spain was riding on the o,
W. R. & N. from Boise and at Hunting
ton was forcibly elected from the train
and turned over to an officer of the
city who locked him in Jail. Spain
pleaded guilty to charge of drunken,
ness and paid his fine. Then he sued
the railroad company for damages on
the ground that he was assaulted by
the conductor.
This happened October 10, 1912, after
Spain had been injured in roping
contest while giving an exhibition at
Halfway in Baker county. Spain won
the silver mounted saddle at Pendleton
in 1912 as the best broncho buster and
then took a string of wild horses over
the country giving exhibitions Of skill
At Halfway he threw his rope and II
fell over the post in the corral and
became entangled around his wrist. A
horse ran through the rope and it cut
to the hone causing Spain's hand to
be amputated.
He charged that the jail in Hunting
ton where he was incarcerated was
dirty. infested with vermin, and unfit
for human habitation, also the heating
plant left much to be desired and he
caught cold in his arm and was obliged
TO have it reamputated. He sued the
company for $4,000 for damages alleged
to have been sustained by the conduc'
tor causing his arrest and the jury in
Judge Gustav Anderson s court award,
ed him damages in the sum of $l,522
with $40 costs. The company appeal
ed from the decision of the circuit
court.
In reversing the lower court and re-
manding the case for retrial Justice
Mcbride said the supreme court would
take the view that Spain was not drunk
since the jury in the circuit court held
to this view in spite of the fact that
Spain pleaded guilty to the charge in
Huntington.
The principal issue in the case was
as to what extent a conductor is a
ueace officer and to what extent he is
d servant Of the company. Under the
statute conductor is deputy sheriff
and as peace officer the company is
not liable for his actions but as a con
duc4or the company is Liable to suit
for damages. In illustrating the case
Justice Mcbride related the story, in
his opinion, of the bishop who was rep
rimanded by the king for swearing.
~ swear as private person, not as
bishop" said the cleric.
"But," said the king, eff the priv
ate Eorson goes to hell for swearing
what becomes of the bishop?"
So, says Justice Mcbride, when the
conductor and the peace officer weal
the came skin it is difficult to define
the point where one leaves off and the
other begins. But he held that the pow
crs of q deputy sheriff were granted
not in order that the company might
escape liability, but in order that the
peace and dignity of the train NIGH
be better served.
Another point brought out was the
"quotient" verdict. 1t appears that
three of the jurymen favored the rail
road company and held that Spain wa'
not entitled to damages. Nine of then
fay ored damages for the plaintiff but
could not agree on the amount so they
eaen put down the amount they thought
just and divided it by nine and return
ed verdict in this amount which was
| 81 1922. 1t is rule of law that any
verdict which is reached upon any 9th
or than the grounds of sound reasoning
is illegal also the affidavits of jurors tC
| impeach this kind of verdict will no
be received. The case was therefore re
versed and remanded for another tria
in the circuit court.
The other opinions handed down werC
as Follows:
Lane Goff ct al appellants, vs. Grace
Kelsey ct al, appealed from Union coun
ty, action to enforce oral contract fo
the conveyance Of land, opinion by Jus
tice Harris, Circuit Judge Knowles
| Judgment for defendant affirmed.
G. F. Hall ct al VS.. Catherine Gre
Development company, appellant, ap
realed from Union county, suit to fore
close mortgage on land, opinion b!
Justice Burnett, Circuit Judge Know
les Judgment for plaintiff reversed.
j. II. McHargue VS.. Alex Calchina
appellant, appealed from Union coun
Atty, action to recover damages for re
moval of timber, opinion by Chief Jus
tice Moore, judgment of Circuit Judg,
Knowles for plaintiff modified.
Andrew j. Hegdale, appellant, vs.
Albert A. Wade ct al, appealed iron
NTalheur, suit to rescind contract TO
the purchase of land, opinion by Jus
tice Moore, Circuit Judge Biggs' judg