EXPRESS COMPANY

v.

KOUNTZE BROTHERS

Mr, Justice DAYIS delivered the opinion of the court.

Before proceeding to consider the merits of this controversy, it is necessary to dispose of the point of jurisdiction which is raised.

It is urged that the Circuit Court had no jurisdiction over the cause, because there was no authority to transfer it. This depends on the construction of the acts of Congress relating to the subject.

On the admission of a new State into the Union, it be comes necessary to provide not only for the judgments and. decrees of the Territorial courts, but also for their unfinished business. In recognition of this necessity Congress, after Florida became a State, passed an act. providing, among other things, that all cases of Federal character and jurisdiction pending iu the courts of the Territory be transferred to the District-Court of the United States for the District of Florida. The provisions of this act were made applicable, at the time of its passage, to cases pending in the courts of the late Territory of Michigan, and were afterwards extended to the'courts of the late Territory of Iowa. Congress, in making this provision for the changed condition of Iowa, thought proper in the same act to adopt a permanent system on-this subject, and extended the provisions of the original and supplementary acts to cases from all Territories which should afterwards be formed into States.

It is contended, if this cause were transferable at all, it went, under these acts of Congress, to the District Court, and not to the Circuit Court. This would have been true if Nebraska had not at the time of the transfer occupied a different judicial status from that occupied by Florida, Michigan, or Iowa, when these laws were passed. These States •were not then, a part of anyone of the judicial circuits, while Nebraska, when this cause was removed, was attached to the eighth circuit. Their District Courts had general Circuit Court powers, while the District Court in Nebraska liad only the ordinary jurisdiction properly belonging to the District Courts.of the country. If Nebraska had not at the time of the transfer formed a part of a judicial circuit., her District Court would; by virtue of the laws above recited, have been clothed with the general powers of a Circuit Court, and could have taken cognizance of this cause, and it would, in the purview of these laws, have been rightfully transferable to it. To construe these laws so as to limit .the right of transfer to the District Court alone, without regard to the povrers of that court, would defeat the very object. Congress had in view. That object is made plain enough by the legislation relating to this subject. It was, on the admission of a-new State, to transfer pending civil cases of a Federal character from the Territorial courts into the District Court, if the State did not form part of a judicial circuit; because in such a case the District Court was invested with Circuit Court powers. But if the State were attached to a circuit, then, as the District Court did not possess this jurisdiction, the cause was transferable to the Circuit Court. To adopt any other construction would render the provisions for the transfer of causes, in case a new State on its admission were-attached to a circuit, nugatory.

It is said, if cases of a Federal character were properly transferable to the Circuit Court, this was not one of them; because it does not appear that the suit was between citizens of different States. It is true there is no direct averment to this effect, but it is the necessary consequence of the facts stated in the pleadings, that the parties to the suit were citizens of different States.- The averment that the plaintiffs were a firm of natural persons, associated together for the purpose of carrying on the banking business in Omaha, and had been for a period of eighteen months engaged in said business at said place, is equivalent to saying they had their domicile there. In this-country people usually-live and have their citizenship in the place where they do business. Especially is this true of persons engaged in a business requiring' capital, and involving risk, at a point which is remote from the great centres of trade and commerce.

The citizenship of the defendant is clearly enough averred. It is alleged that the United' States Express Company, the defendant in the suit, is a foreign corporation formed under and created by the laws of the State of New Fork. The obvious meaning of this allegation is that the defendant is a citizen of the State of New York. ' The course of proceeding in the court below shows that the parties to the suit recognized -it as being of Federal jurisdiction, and it could only be so (as there was no Federal question involved), on the ground that the plaintiffs and defendant were citizens of different States. If the parties had thought otherwise, after the cause reached'the Circuit Court, the point would have been taken, and an-effort made at least to test the jurisdictional question. The record shows that nothing of the sort was attempted.

There remains to be considered the merits-of this case,, so far as they arc presented in the bill of exceptions.

The only subject for review here is the charge given Joy the court to the jury. The court instructed the jury only on a single point — that of negligence. The jury were told substantially that, although the contract was legally sufficient to restrict the liability of the defendant as a common carrier, yet, if the defendant was guilty of actual negligence, it was responsible. And that it was chargeable with negligence, unless it exercised the care and prudence of a prudent man in his own affairs. The defendant requested the court to charge the jury that it was not liable unless grossly negligent.

To understand what are the rights of the parties to this suit, so far as the'court was asked concerning them, it is necessary to see what were the facts proved in the case. It appears that the particular lot of gold dust, which is the subject of this controversy, was confided to the express company for transportation to Philadelphia, on the 29th of September, 1864, and that it was one of a scries of shipments of the same kind, running through a period of eighteen months or more. The receipt given for the packages was not different from the ordinary receipts of the company, and was doubtless intended to limit the liability of the company as common carriers. There were two routes employed by the express company to convey their property — one across the State of Iowa, and'the other to St. Joseph, Missouri, and thence across that State by the Hannibal Railroad. The latter was the most expeditious route, but the former the safest, as Missouri, although at the time adhering to the Union, was in a disturbed and unsettled condition. The property in dispute was conveyed by the St. Joseph route, and was robbed while in transit across the State by a band of armed men. Under the circumstances in which the country was then placed, no prudent man, in the management of his own affairs, would have sent his property by the Missouri route, if another route were open to him. It seems that the-plaintiffs acted on this idea, for one of them testifies that he notified the agent of the company not to send their gold dust by the St. Joseph route. . If this =• testimony be true, it is hard to conceive a grosser case of negligence, for here were two routes — the one safe and the other hazardous — and yet the express company, in defiance of the wishes of the owner of the property, reject the safe, and adopt the hazardous route. Carriers of goods cannot escape responsibility if they behave in this manner, for they are required to follow the instructions given by the owner of property concerning its transportation, whenever practicable.* In this case it was practicable to obey the instruction given,by the plaintiffs, and the defendant furnishes no excuse for not obeying it.

It is said that the weight of the evidence is against the-statement of the plaintiffs, that they directed their goods sent by the Iowa route. Conceding this to be true, it cannot be corrected here. It was a proper matter to be considered by the court below, on a motion for a new'trial, but the granting or refusing such motions are not subject to.be reviewed in this court.

If the evidence in the case tended to prove the defendant guilty of actual negligence, then the court below were justified in basing upon it ah instruction to the jury. Thjtt it did tend to prove it is clear, and the charge of the court on the subject correctly stated the law to the jury.

As the court was not asked to instruct the j,ury on any other point, there is not, as the argument for the plaintiff in error seenis to. suppose, anything else for this court to review. It is the usual practice for the presiding judge at a nisi prius trial, in his charge to the jury, to take up the facts and circumstancés in proof, explain their bearing on the controverted points, and declare what are the legál rights of the parties arising out of them. If the charge does not go-far enough, it is the privilege of counsel to call the attention of the court to any question that has been omitted, and to request an instruction upon it, which, if not given, cau be brought to the notice of this court, if an exception is taken. But the mere omission to charge the jury on some one of the points in a case, when it does not appear that the party Reeling himself aggrieved made' any request of the court on the subject, cannot be assigned for error. Judgment aeeirmed.

*

Redfield on Carriers, § 34.