UNITED STATES v. MOBILE & O. R. CO.

UNITED STATES v. MOBILE & O. R. CO. (Circuit Court of Appeals, Fifth Circuit. October 30, 1925.) No. 4591. 1. Appeal and error <g=>695(2)_Whether denial of motion for directed verdict as to all counts of complaint was error cannot he determined from bill of exceptions containing evidence only as to two counts. Where exception was taken to denial of motion for directed verdict on all four counts of a complaint by the United States, under Safeiy Appliance Act 1893, as amended (Comp. St. § 8605 et seq.), but bill of exception contained only evidence submitted on two counts, it is impossible to determine whether error was committed in denial of motion for directed verdict on all counts. 2. Appeal and error <§^=>273 (11) — V/here no separate motion for verdict was made or exceptions taken as to separate counts, assignments of error as to them must fail. In suit by United States against railroad for violation of Safety Appliance Act 1893, as amended (Comp. St. § 8605 et seq.), where complaint contained four separate counts, and where plaintiff excepted to denial of motion to direct verdict in its favor on all four counts, assignments of error to separate .counts must fall, where there are no separate motions for verdict or exceptions taken, since it does not follow, because trial court denied motion for directed verdict on all four counts, that it would have denied motion to direct a verdict on a single count. In Error to tho District Court of the United States for the Southern District of Alabama; Robert T. Ervin, Judge. Action at law by tho United States against the Mobile & Ohio Railroad Company. Judgment for defendant, and ths United States brings error. Affirmed. James S. Hawley, Sp. Asst. U. S. Atty., of Washington, D. C., Jos. W. John, Asst. U. S. Atty., of Mobile, Ala. (Aubrey Boyles, U. S. Atty., of Mobile Ala., on the brief), for the United States. David B. Goode, of Mobile, Ala. (Stevens, MeCorvey, McLeod, Goode & Turner, of Mobile, Ala., on the brief), for defendant in error. Before WALKER, BRYAN, and FOSTER, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. This is a suit to recover penalties for violations of the Safety Appliance Act of 1893 (27 Stat. 531. as amended [Comp. St. § 8605 et seq.]). The complaint consists of four counts, each charging a separate and distinct violation. Exception was taken to the denial of plaintiff’s motion at the close of the evidence to direct a verdict in its favor on all the counts. There was a verdict and judgment for defendant. The bill of exceptions contains tho •evidence submitted on the first and fourth counts, but does not purport to include all the evidence on the second and third counts. It is therefore impossible to determine that the trial court committed error in denying plaintiff’s motion for a directed verdict on all the counts. The assignments of error relate only to the first and fourth counts; but, as no separate motion for a verdict was made and exception taken as to them, they must fall. It does not follow, because the trial court denied the motion directed to all four counts that it would have denied a motion directed to a single count. Tho result is that plaintiff is without the proper exception upon which to base its assignments of error. Tho judgment is affirmed.