Express Company v. Ware

Express Company v. Ware. 1. This court will not examine evidence to ascertain whether a jury was justified. in finding, as it has done, on an issue of fact. 2. Where a statute of limitation enacts that á defendant’s absence from the State will prevent its running, but that “in the case of a foreign corporation, if it has. a managing agent in the State, service of the writ may be made on .him,” on a question of fact arising in a suit brought more than five years after the cause of action had accrued, whether the defendant did or did not have a managing agent for the State prior to the time when the suit was brouglit, it is proper to charge that the time during which the plaintiff was disabled from suing by reason of defendant having no managing agent in this State is not to be counted as part of the five years’ limitation period. Error to the Circuit Court for the District of Nebraska; the case being thus: - The Code of Nebraska bars actions upon contract in five-years. The defendant’s absence from the State is not, however, to be computed. But in tbe ease of a foreign corpora- ■ tion, if it-has a managing agent in tbe State, service of' the writ may be made upon such managing agent; These provisions of the code being in force, Ware delivered, on the 29th of September, 1864, and during the late’ rebellion,'to the United States Express Company a quantity of gold, to be carried by it. from Nebraska City ,to New York. The company by its receipt undertook to carry the gold, but exempted itself from any loss by “ the acts of the enemies of the government, or insurrections, or any of the dangers incident to a time-pf war.” - The company carried the gold on the Hanibal and St. Joseph Railroad, which crosses the north part of Missouri. At the time when this gold was delivered, that part of Missouri.was in a high state of commotion with the rebellion, rebels being nearly'as numerous as loyal persons, and of equal or greater activity. In the course of the transit upon the railroad just mentioned, a body of eighty armed rebels, on the Bd'O'f October,-1864, fired- into the train of Cars, and stopped and robbed it, carrying off this gold. ■Hereupon, on the 27th of February, 1870 — more than five years.after the loss — Ware sued the express, company, serving- the writ upon a managing agent of it, and- alleging that' the route at the tirne of ,the transportation was unsafe; that the express company-was, guilty of negligence in. carrying gold, on it; and that there was, at. the time, a safe and suitable route across the State of Iowa, which the company could have-and dught to have hsed. The company set up its speciál contract and ari exemption under it; Evidence was given by both sides as to the.safety or'dangér. of travel on the Hannibal, and St. Joseph .Railroad on and about, the 3d of October, 1870. Trains-, it appeared, up to-' that date had beéb,running regularly,-hut itappeared equ.ally ' that tracks'hádNééii torn up in places, that a train had been fired into a? it passed arid a brakeman killed, arid that 'from the generally disturbed condition <of .the region, there was-with many persons a greater or less degree of fear that trains would be captured. Evidence was also given on both sides — on the company’s to show, that at the time of the loss and for some time after-wards, the company did have a “ managing agent,” and that, therefore, as suit could have then been brought by a service on him, the present action not having been brought till the 27th of February, 1870, was barred by the statute of limitations — and on the part of the plaintiff to show that there was no “managing agent” on whom seryice could be made prior to the said 27th of February, when the suit -was actually brought. The court below charged the jury: “ If you find that the defendant had a managing agent within the State at the time of the loss, then the statute began to run from that time,,and if it had such agent in the State for" the next five years after the loss, then this action is barred, but otherwise it is not. In other Words, to bar this action the plaintiff must have been- able for five years before suit brought to have sued the defendant in this State, and compelled it to answer the suit by a service upon a managing agent therein.” Verdict and judgment having been given for the plaintiff the- express company brought the case here, assigning for error— 1. That the evidence of negligence ,did not support the verdict. 2. That the action was barred by the statute of limitations, and that the court erred in its instruction on that point. ■ Mr. J. M. Woohoorth, for the •plaintiff, in error; Mr. Clinton Briggs, contra. Revise Statutes of Nebraska, 395, 396, 404, [MAJORITY — The CHIEF JUSTICE] The CHIEF JUSTICE delivered the opinion of the court. We see no error in the charge, and cannot examine the evidence to ascertain whether the jury was justified in finding as it did upon the issues of fact. Judgment affirmed.