Opinion of the Court.

But as the question was not fully discussed, we have thought it proper to reconsider it in the light afforded by the opinion of the Supreme Court of the District in McDade's case.

While, however, we are of opinion that there was error in this particular in the judgment of affirmance, we are not constrained to reverse it, if the interest be remitted. Bank of Kentucky v. Ashley, 2 Pet. 327; Phillips & Colby Construction Co. v. Seymour, 91 U. S. 646, 656; Kennon v. Gilmer, 131 U. S. 22, 29. In Bank v. Ashley, the remittitur was filed in this court. In Construction Co. v. Seymour, the remittitur was filed in the court below and a certified copy thereof filed here. If the defendant in error shall within a reasonable time during the present term of this court produce and file a certified copy of a remittitur of the interest in the Supreme Court of the District, the judgment, less the interest, will be affirmed; but if this is not done, it will be reversed. In either event the costs must be paid by defendant in error.

Ordered, that if the defendant in error shall, within a reasonable time during the present term of this court, produce and file a certified copy of a remittitur of the interest in the Supreme Court of the District of Columbia, the judgment, less the interest, will be affirmed; but if this is not done it will be reversed. In either event the costs must be paid by the defendant in error.

MR. JUSTICE BREWER did not hear the argument and took no part in the decision.

NEW YORK, LAKE ERIE & WESTERN RAILROAD COMPANY v. ESTILL; and v. LEONARD.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI.

No. 127. Argued February 3, 1893. Decided March 6, 1893.

Two suits at law against a railroad company, incorporated by New York, were brought in the Circuit Court of Saline County, Missouri, by two different plaintiffs, to recover damages for injury by the company, as a common carrier, through negligence, to live cattle transported by it. The damages occurred from a collision which took place in Ohio. The cattle were being transported from Massachusetts to Missouri. The process of the court was served in St. Louis, Missouri, on a city passenger agent of the defendant, in its business office there, who had charge of it at the time, no chief officer of the defendant being found in St. Louis at the time. By a petition in each suit by the defendant, which stated that it appeared only for the purpose of making the application, the suit was removed into the Circuit Court of the United States, because of diverse citizenship. The defendant then moved in the latter court, in each suit, to quash the process on the ground that it conferred no jurisdiction on the state court over the defendant. The motion was overruled. Both cases were then tried before the same jury. In one case the verdict was for $8750 damages, and $2362.50 interest thereon at 6 per cent per annum from the time the suit was brought, and in the other case for $44,000 damages, and $11,880 interest thereon. In the first case judgment was entered for $11,112.50, with interest from the date of the verdict, and in the second case for $50,000, and like interest, the plaintiffs having voluntarily remitted $5880, because the petition claimed only $50,000 damages. There was only one bill of exceptions, covering all matters in the two suits, and one writ of error, and one citation, and one supersedeas bond, and one transcript of record. This court took cognizance of the two cases.

The state court acquired jurisdiction of the cases, under subdivision 4 of § 3489 of the Revised Statutes of Missouri of 1879, and § 3481 of the same Revised Statutes.

The cases on that subject in the courts of Missouri reviewed.

Whether e defendant waived any objection to the service of the process in the state court by appearing therein and filing a petition for the removal of the cause into the Federal court, quære.

A large number of the cattle being cows with unborn calves, which were lost through their premature births, caused by the collision, the defendant was liable for deterioration in the value of such cows, caused by

Counsel for Defendants in Error.

such abortions, although it was not shown that the defendant knew that the cows were with calf.

Detached sentences in a charge to a jury cannot be selected as grounds of objection, but must be read in connection with the whole charge.

The cases having been tried in the court below on the theory that the value of the cattle at their place of destination in Missouri was the proper bas.s for fixing the damages, the point that their value at the terminus in Ohio of the defendant's road was the proper basis cannot be taken for the first time in this court.

It was proper to show that some of the cattle died, or lost their calves, after their final arrival in Missouri, from the effects of the collision. The proper rule of damages was the difference between the market value of the cattle, in the condition in which they would have arrived but for the negligence of the defendant, and their market value in the condition in which, by reason of such negligence, they did arrive. It was not material whether the plaintiffs intended to keep the cattle upon their farms, for breeding purposes, or to sell them upon the market, the depreciation in value of the cattle being the same in either case. The court having instructed the jury that the burden was upon the plaintiffs to show that the abortions were the direct result of the collision, and the jury having found in favor of the plaintiffs on that question, and the bill of exceptions containing all the evidence in the case on either side, and there being sufficient evidence to sustain the verdict, this court cannot review it on the weight of the evidence.

There is no ground for holding that the plaintiffs ought to have traced each animal and to have shown the amount received for it when sold.

It was improper, under the statutes of, and decisions in Missouri, for the jury to allow interest on the damages from the time suit was brought; and as the jury stated, in each verdict, the amount of interest allowed, this court reduced the judgments by striking out the interest, and ordering judgments to be entered for the amounts of the damages, with interest from the entry, and costs; the costs of this court to be paid one-half by the plaintiff in error and the other half by the defendants in

error.

THE case is stated in the opinion.

Mr. Garland Pollard for plaintiff in error. (Mr. Percy Werner was with him on the brief.)

Mr. W. M. Williams and Mr. John Cosgrove for defendants in error. (Mr. O. Guitar and Mr. Samuel Boyd were with them on the brief.)

Opinion of the Court.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is a single writ of error involving two suits, each of which was brought in the Circuit Court of Saline County, in the State of Missouri.

The first suit was commenced November 21, 1883, by Wallace Estill, Hugh W. Elliott, and William R. Estill, against the New York, Lake Erie and Western Railroad Company. The petition set forth that the plaintiffs were the owners of 70 head of polled Angus or Aberdeen cattle, imported from Scotland, and of the value of $35,000; that the cattle were intended for the Missouri market, and the defendant had full knowledge of their value and the purposes for which they were intended; that the defendant operated a railroad through the States of New York and Ohio, and was a common carrier of live stock and other freights over the line of its railroad in those States; that on or about September 12, 1883, the plaintiffs delivered to the defendant, as such common carrier, to be transported over its line of railway, the 70 head of cattle, and the defendant received them as such common carrier, well knowing their character, and the importance of transporting them with care and reasonable dispatch; that on the receipt of them, the defendant undertook and became bound to transport them safely over its railway, and to deliver them at the terminus thereof within a reasonable time; that the plaintiffs paid the usual freight and charges for transporting the cattle; that the defendant failed to transport them with reasonable dispatch and safety, but, about September 16, 1883, at Nankin, Ohio, negligently ran its train of cars, on which the cattle were being transported, into another train of cars, and by reason thereof, broke a large number of the cars in which the cattle were, threw the cattle violently against the cars and each other, and greatly jarred, bruised, maimed and injured them; that 55 of the cattle were cows in calf at the time of the accident, and about 20 of them had since the accident, and in consequence thereof, prematurely lost their calves; that the cattle were detained at the place of the accident for about 36 hours after it occurred, without suitable

VOL. CXLVII-38

Opinion of the Court.

food, water or attention, and in consequence were greatly reduced in value and damaged; that, in consequence of the injuries received by the cattle, the plaintiffs had been put to great trouble and expense in caring for them, and the value of the cattle had been greatly reduced; and that, by reason of the premises, the plaintiffs had sustained damages in $12,000, for which sum and costs of suit they asked judgment.

The other suit was commenced November 27, 1883, by Leverett Leonard, Charles E. Leonard, William H. Leonard and Abiel Leonard, against the same defendant, for a like cause of action. The petition contained substantially the same averments as that in the Estill suit, except that it was founded on damage to 306 head of imported polled Angus or Aberdeen and Galloway cattle, alleged to be of the value of $200,000. It averred that the defendant negligently ran the two trains, or sections of a train, upon which the cattle were being carried, into and against each other, so that about 16 of the cars, in which the cattle were at the time, were broken to pieces and demolished, and 7 of the cattle were killed or so badly injured that they were rendered worthless; and that about 250 of the cattle were cows in calf, and about 60 of them, since the accident and in consequence thereof, had prematurely lost their calves. Damages in the sum of $50,000 were alleged, and judgment was asked for that sum and costs of suit.

In each of the two cases, a writ of attachment was issued by the court to the sheriff of Saline County, and to the sheriff of the city of St. Louis, against the property of the defendant, each of which attachments contained also a direction that the sheriff summon the defendant to appear in the court, on a day specified, to answer the petition. The sheriff of the city of St. Louis made return on each of the writs issued to him, that he had executed it in the city of St. Louis, on January 7, 1884, by delivering a copy of the writ and petition to one W. E. Conner, city passenger agent of the defendant, "who was in its business office, and had charge thereof, at the time of said service," and that "the president or any other chief officer of said defendant could not be found in the city of St. Louis at the time of said service."