Walter A. Shumaker (W, W. Erwin, on the brief), for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

SANBORN, Circuit Judge. Is a railroad company liable under the general law for the injury of an employé on one train caused by the negligence of the conductor in its employment on another train in leaving a switch open that it was his duty to close?

If not, is it liable, under section 697 of the Compiled Statutes of Montana, for an injury to a fireman in its employment on one train, which was inflicted in Montana, and was caused by the negligence of a conductor in its employment on another train in leaving a switch open?

These are the only questions presented by this record. The case was tried by the court below, without a jury, upon an agreed statement of facts and a stipulation to the effect that, if the court was of the opinion that either of these questions should be answered in the affirmative, judgment should be rendered against the plaintiff in error for $4,000. The circuit court was of the opinion that the first question should be answered in the affirmative, and upon that ground or dered the judgment, to reverse which this writ of error was sued out. Mase v. Railroad Co., 57 Fed. 283.

In our opinion, the conductor of a railroad train, through whose negligence in operating the railroad an employé of the same company on another train is injured, is a fellow servant of the latter, under the general law, and on that account the common master is exempt from liability for an injury caused by his negligence, and the court below should have answered the first question in the negative. Our reasons for this opinion are stated, and some of the authorities that support our conclusions are cited, in Railway Co. v. Needham (decided at this term) 63 Fed. 107, and it is useless to repeat them here. We turn to the consideration of the second question.

In the absence of legislative enactments, the liability of a master to one of his employés for the negligence of another is determinable by the general law, and not by the local law, and the decisions of the courts of the state in which the injury is inflicted are not controlling in the national courts. But, whenever this subject is regulated by the statutes of the state in which the injury is inflicted, these become the "rules of decision in trials at common law" in the national courts, under section 721 of the Revised Statutes, and measure the duties and liabilities of the litigants. Railroad Co. v. Hogan (decided by this court at this term) 63 Fed. 102; Railway Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. 185; Railroad Co. v. Baugh, 149 U. S. 368, 378, 13 Sup. Ct. 914; Railroad Co. v. Hambly, 14 Sup. Ct. 983; Hough v. Railroad Co., 100 U. S. 213, 226; Railway Co. v. Prentice, 147 U. S. 101, 106, 13 Sup. Ct. 261.

This case was tried in the circuit court for the district of Minnesota, but the injury was inflicted in the state of Montana. While

it is true that the statutes of a state have in themselves no extraterritorial force, yet rights acquired under them are always enforced by comity in the state and national courts in other states, unless they are opposed to the public policy or laws of the forum. It is settled by the decisions of the supreme court of the United States and by the decisions of the supreme court of Minnesota that the right to recover in an action of the character of that before us is governed by the lex loci, and not by the lex fori. Railroad Co. v. Babcock, 14 Sup. Ct. 978; Herrick v. Railway Co., 31 Minn. 11, 16 N. W. 413; The Antelope, 10 Wheat. 66; Smith v. Condry, 1 How. 28; The China, 7 Wall. 53, 64; Dennick v. Railroad Co., 103 U. S. 11; The Scotland, 105 U. S. 24, 29; Railway Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905; Huntington v. Attrill, 146 U. S. 670, 13 Sup. Ct. 224.

The result is that the right of recovery in this action, if it exists at all, must rest on the statute of Montana. That statute provides: "That in every case the liability of the corporation to a servant or employee, acting under the orders of his superior, shall be the same in case of injury sustained by default or wrongful act of his superior, or to an employee not appointed or controlled by him as if such servant or employee were a passenger." Comp. St. Mont. 1887, c. 25, § 697.

This section is found in a chapter of the general laws of Montana relating to railroad corporations, and it seems to affect the liability of such corporations only. It goes without saying that the purpose of this statute was to extend the liability of railroad companies to their servants for the negligence of servants of a higher grade. It is equally clear that the pronoun "him," in the clause "or to an employee not appointed or controlled by him," refers to the employe's "superior," and that the intention of the legislature was to extend the liability of the companies for the negligence of superior servants for the benefit of two classes of employés, viz. those injured by the default or wrongful act of a superior employé under whose orders they were acting, and those injured by the default or wrongful act of a superior servant who did not appoint and who had no control over them. The statute is inartificially drawn, but its meaning is not doubtful, and its obscurity at once disappears if the clause "or to an employee not appointed or controlled by him" is transposed to its grammatical and logical position in the sentence, and placed before the verb. Then the statute would read:

"That in every case the liability of the corporation to a servant or employee acting under the orders of his superior, or to an employee not appointed or controlled by him, shall be the same in case of injury sustained by default or wrongful act of his superior, as if such servant or employee were a passenger."

Now, the conductor whose negligence in leaving the switch open caused the death of a fireman on another train, in this case, was the superior of that fireman in the employment of the same master. His rank or grade in the service was higher. The fireman, it is true, was not acting under his orders, and was not one of the first class protected by the statute, but he was an employé "not appointed or controlled" by this superior, whose default caused his injury,

and he was clearly one of the second class to whom a right of action for such a default was given by this statute. The effect of the statute is to give a cause of action against the railroad company to every servant who is himself without fault, for the default or wrongful act of any superior servant, whether or not the latter appointed or exercised any control over the former before or at the time of the infliction of the injury. This was the construction given to this statute by Judge Shiras, of the northern district of Iowa, upon the circuit, and we have no doubt of its correctness. Ragsdale v. Railroad Co., 42 Fed. 383, 386.

That the railroad company would have been liable for any injury resulting to a passenger on the train that ran through the open switch, from the negligence of the conductor who left it open, admits of no discussion. It follows that, under this statute and the stipulation in this case, the railroad company was liable to the defendant in error to the same extent for the injury to the deceased fireman that it would have been to a passenger, and on this ground the judgment must be affirmed. It is so ordered.

CITIZENS' BANK OF WICHITA v. FARWELL et al.

(Circuit Court of Appeals, Eighth Circuit. July 16, 1894.)

No. 408.

1. GARNISHMENT-PRIORITY-FRAUDULENT CONVEYANCE.

Under Gen. St. Kan. § 4296, authorizing the garnishment of property held under a conveyance void as to creditors, the fact that after the garnishment of such property by a creditor, another creditor, on behalf of himself and other creditors, has commenced a suit to set aside the conveyance, and for an accounting by the garnishee, does not affect the right of the former under his prior garnishment.

2. SAME-SUFFICIENCY OF FINDINGS.

In garnishment, findings by the court, a jury being waived, that the garnishee took possession of certain property under a mortgage void as to the creditors of the mortgagor, and purchased the same at the sale thereunder, and converted it to his own use, and that its value was a certain amount, are sufficient to sustain a judgment against the garnishee for any amount less than the value so found.

8. WRIT OF ERROR-REVIEW OF FINDINGS.

Under Rev. St. § 1011, providing that there shall be no reversal on a writ of error for any error in fact, the sufficiency of the evidence to sustain the findings of the court can only be presented for review by a request for a peremptory holding that on the undisputed facts the finding must be otherwise.

In Error to the Circuit Court of the United States for the District of Kansas.

Action by J. V. Farwell & Co. against the Kansas Furniture Company and garnishee, the Citizens' Bank of Wichita. For former re

ports, see 6 C. C. A. 24, 30, 56 Fed. 539, 570.

W. E. Stanley, for plaintiff in error.

Edwin W. Moore and Charles H. Brooks, for defendants in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

SANBORN, Circuit Judge. On November 28, 1890, J. V. Farwell & Co., the defendants in error, brought an action in the court below against the Kansas Furniture Company, a corporation, and garnished the Citizens' Bank of Wichita, Kan., the plaintiff in error, under sections 4283 to 4296, inclusive, of the General Statutes of Kansas of 1889. March 5, 1891, they recovered a judgment against the furniture company.

Section 4296 of the statutes of Kansas provides that:

"From the time of the service of the summons upon the garnishee he shall stand liable to the plaintiff to the amount of the property, moneys, credits and effects in his possession or under his control, belonging to the defendant or in which he shall be interested, to the extent of his right or interest therein, and of all debts due or to become due to the defendant, except such as may be by law exempt from execution. Any property, moneys, credits and effects held by a conveyance or title, void as to the creditors of the defendant, shall be embraced in such liability."

Issue was joined between the defendants in error and the bank upon the question whether or not the latter had any property in its possession or under its control belonging to the furniture company, or in which it was interested; but the real issue was whether or not the bank held any property by any conveyances void as to creditors of the furniture company under this section. A jury was waived, and an agreed statement of a part, but of a part only, of the facts was made, and there was other evidence presented to the trial court, which is not contained in the record before us. The court made a special finding of facts, and upon it rendered judgment against the bank. But one exception was taken to any ruling of the court in the trial of the case. That ruling was that the fact that in February, 1893, another creditor of the furniture company had brought a suit in equity against the bank for himself and all other creditors who saw fit to join with him, and had exhibited a bill for an accounting concerning, and a recovery of, the same property the defendant in error sought to reach by its garnishment, was not competent or material to the issue in this case. The garnishment was made November 28, 1890. The suit in equity was commenced February 2, 1893, and the defendants in error were not parties to that suit. The fact that another creditor had subsequently brought a suit against the bank on account of the same property or liability that Farwell & Co. sought to charge in this action certainly could not affect their right to it under their prior garnishment. The statements contained in the bill were, as against Farwell & Co., nothing but hearsay. The ruling was right.

The only other question this record presents is whether, in any view, the facts found in the special finding are sufficient to support the judgment. Nor is this a fairly debatable question. The finding covers 11 pages of the printed record, and carefully sets forth the results of an accounting, and the facts relative to transactions between the bank and the furniture company, which extend over 22 months. It would serve no useful purpose to review these

facts in detail. Among other things, the court distinctly finds that on October 20, 1890, the bank took joint possession, with one Mrs. Martin, of a stock of goods of the furniture company, under two mortgages made by the latter company to them respectively, which were without any consideration, and void as to the creditors of the furniture company; that on November 24, 1890, the bank purchased at public auction under these mortgages that part of the mortgaged stock which then remained unsold, and converted it to its own use; and that the value of that remaining stock was then $12,000. The judgment against the bank was for $11,540. This finding alone is sufficient to warrant the judgment. Moreover, we have carefully examined the finding in detail, and it shows that, if no charge is made against the bank or Mrs. Martin for the accounts uncollected August 10, 1890, concerning which counsel for the plaintiff in error chiefly complains, still there could have been nothing due on these mortgages on November 24, 1890, when the bank went through the form of purchasing the mortgaged property of itself and Mrs. Martin under the mortgages. In any view, the finding well sustains the judgment.

*

*

No

The other questions discussed in the briefs we are unable to reach upon the record as it is presented. This court cannot review the weight of the evidence. The agreed statement of facts in this record does not contain the statement of all the material facts on which the case was submitted. The evidence that sup plemented it is not before us, so that the case cannot be treated as one submitted upon an agreed statement. The court below made its finding upon the statement and the evidence, and it must stand. Section 1011, Rev. St., which governs this court in this matter, provides that "there shall be no reversal in the supreme court or in a circuit court upon a writ of error for any error in fact." No requests for any declarations of law were made to the court before the trial closed, and that court made no such declarations. request for any declaration or holding that the evidence was insufficient to sustain a finding or judgment in favor of the defendants in error was made, and none that the court should make any other finding than that it actually did make upon any of the specific questions submitted to it. The result is that none of these questions can be considered. On a writ of error only those questions of law which were presented to and ruled upon in the court below in the trial of the case are subject to review in this court. The finding of the court, whether general or special, performs the office of the verdict of a jury. When it is made and filed, the trial is ended. Even the question whether or not the evidence is sufficient to sustain the finding can only be presented by a request for a peremptory holding that upon the undisputed facts the finding must be otherwise. Rev. St. § 700; Adkins v. Sloane, 8 C. C. A. 656, 60 Fed. 344; Id., 61 Fed. 791; Trust Co. v. Wood, 8 C. C. A. 658, 60 Fed. 346; National Bank of Commerce v. First Nat. Bank, 61 Fed. 809; Walker v. Miller, 8 C. C. A. 331, 59 Fed. 869; Bowden v. Burnham, 8 C. C. A. 248, 59 Fed. 752; Clement v. Insurance Co., 7 Blatchf. 51, 53, 54, 58, Fed. Cas. No. 2,882; Norris v. Jackson, 9 Wall. 125, 127; Insurance Co.