827

(158 U. S. 326)

UNION PAC. RY. CO. v. HARRIS.

(May 20, 1895.)
No. 896.

CIRCUIT COURT OF APPEALS

FINALITY OF DECISION-ACCIDENTS TO TRAINS-RESCISSION

OF RELEASE.

1. In an action by a citizen of one state against a federal corporation, alleged to be a citizen of another state, the judgment of the circuit court of appeals is not final, though jurisdiction is invoked on the sole ground of diverse citizenship, as the fact that defendant is a federal corporation would support jurisdiction; and by Act March 3, 1891, § 6, the judgment of the circuit court of appeals in this class of cases is final only where jurisdiction is dependent entirely on the opposite parties to the controversy being citizens of different states.

2. Where a railway company delivers cars to a mining company by leaving them on a siding, it is bound to see that they are left and maintained in such a position as not to interfere with trains on the main track; and if the mining company negligently permits them to run down on the main track, whereby a train is derailed, and plaintiff injured, the railway company is liable.

3. In an action for personal injuries, where the issue is as to the validity of a release executed by plaintiff shortly after the accident, an instruction, based on evidence, that plaintiff was not bound thereby if his mind was in such a condition from the effect of drugs and whisky that he could not comprehend what he was doing, or if defendant understood that they were making a settlement in full, while plaintiff understood that it included only medical expenses and loss of time, and plaintiff did not read the release because prostrated by the accident, is not erroneous.

In Error to the United States Circuit Court of Appeals for the Eighth Circuit.

This was an action brought in the circuit court of the United States for the district of Colorado by Robert E. Harris against the Union Pacific Railway Company to recover for personal injuries received by him while he was a passenger on defendant's train. Plaintiff recovered judgment in the circuit court, and the defendant sued out a writ of error from the circuit court of appeals for the Eighth circuit, by which the judgment was affirmed. 63 Fed. 800. A writ of error from this court was allowed, and, the cause having been docketed, motions to dismiss or affirm were submitted.

Willard Teller, Sam' Shellabarger, and J. M. Wilson, for plaintiff in error. Geo. G. Vest, for defendant in error.

Mr. Chief Justice FULLER delivered the opinion of the court.

*The complaint alleged Harris to be "a citizen of the state of Colorado," and complained of "the Union Pacific Railway Company, defendant, which was heretofore and now is duly chartered and organized under and by virtue of the laws of the United States, and having its principal place of business in the city of Omaha and state of Nebraska, and is now, and was at the time and times hereinafter stated, a citizen of the state of Nebras ka." The motion to dismiss is made upon the ground that the judgment of the circuit court of appeals was final, inasmuch as the Jurisdiction was dependent upon the opposite

parties being citizens of different states. As, however, the judgments of the circuit courts of appeals are final in this class of cases only when the jurisdiction is dependent "entirely upon the opposite parties to the suit or controversy being aliens and citizens of the United States or citizens of different states," plaintiff in error insists that this judgment was not final, since the jurisdiction depended not solely on diverse citizenship, but also upon the fact that plaintiff in error was a federal corporation.

In Railroad Co. v. Amato, 144 U. S. 465, 12 Sup. Ct. 740, a suit was brought in the supreme court of New York against the railroad company to recover damages for personal injuries sustained by the plaintiff, and was removed by the defendant into the circuit court of the United States for the Southern district of New York on the ground that it arose under an act of congress, in that the defendant was a corporation created thereby, and a writ of error to the circuit court of appeals for the Second circuit was sustained. In that case the citizenship of the plaintiff was not mentioned in the complaint or in the petition for removal, and the petition stated that the action arose under an act of congress. It was accordingly held that the judgment of the circuit court of appeals was not made final by section 6 of the judiciary act of March 3, 1891. In the present case jurisdiction was invoked on the ground of diverse citizenship; and it is said that that was the sole ground, and that the reference to the authority under which the corporation was chartered and organized was merely incidental; and, further, that, as the case did not involve the validity or construction of the charter of plaintiff in error, no federal question arose. It is not for us to inquire why writs of error to circuit courts of appeals in actions for damages for negligence of railroad corporations should be allowed simply because the corporations are chartered under the laws of the United States, in a statute whose object was to relieve an overburdened court, since such is the effect of the statute according to its plain language. Nevertheless, as plaintiff be low appears to have really proceeded on the ground of diverse citizenship, we think there was color for the motion to dismiss, although, as the other fact upon which jurisdiction could be predicated existed, we are obliged to overrule it. But this brings us to the motion to athrm, which, as we do not need further argument, we proceed to dispose of.

The complaint alleged that plaintiff on July 30, 1892, was a passenger for hire upon one of defendant's coaches in a train with a locomotive, being operated and conducted by defendant between the city of Georgetown and the city of Denver, defendant being, by the terms of the contract of passage, bound to deliver plaintiff safely at Denver, having undertaken to carry and convey him in safety to that city, and to use due care and diligence thereabout; but that defendant, in dis

8

regard of its undertaking and promise and its duty in that behalf, carelessly and negligently ran one or more of its freight cars out on one of its sidings, known as "Silver Age Mill Siding," and negligently left the same insecure and unsafe, and in such a position and condition as to interfere with the passage of the train of cars upon which plaintiff had passage, along the main line of defendant's track, so that, when the train upon which plaintiff was a passenger came along, it ran into this freight car, and the injuries complained of were inflicted. This was supported by the evidence, from which it also appeared that the freight car in question was loaded for the Silver Age Mill Company with coal, and was unloaded by that company's

men.

The defendant, in its answer, denied all negligence, but admitted "that it had standing upon its side track, at about the "place mentioned in said complaint, one or more freight cars, but denies that the said freight cars were left insecure or unsafe, or in such a position as to interfere with the passage of the train of cars upon which this plaintiff was riding." The answer contained no allegation or suggestion that any other company had any control over the side track or the freight cars, or that any other company was in any manner responsible for the negligence which resulted in the collision.

The circuit court charged the jury that "there is no room for controversy, notwithstanding the fact that this car was delivered to the mining company filled with coal, and for the use of the mining company, and that it would seem from the evidence that, after unloading the car, it was not sufficiently fastened in respect of the brakes; perhaps it was necessary to block the wheels also in such a place as that; but that whatever was necessary to keep it securely in place upon the side track was not done, and it moved down upon the track so as to overthrow the cars in the train which came down with the plaintiff. The act of negligence of the servants of the mining company is to be ascribed to the defendant. In other words, the railway company, as to its passengers, is bound to keep its track clear from obstructions of this kind, to see that the cars which it uses on side tracks are secured in place, so that they will not come upon the track to overthrow any train that may come along; and there seems to be no question but that the car in which plaintiff was riding was overthrown by the freight car coming down from the switch or side track, and onto the main track, in collision with the cars of the train which carried the plaintiff."

To the giving of these instructions defendant excepted. But we agree with the circuit court of appeals that, on the evidence and under the pleadings, there was no reversible error therein; and that this is so as to the motion at the conclusion of the evidence by defendant for an instruction that the defendant

was not liable, and that the Silver Age Milling Company was, if there were a liability at all. Indeed, it is stated by the circuit court of appeals that it was conceded on argument that defendant's negligence was sufficiently established.

The stress of the contention of the railroad company is thrown, however, upon another branch of the case. The complaint was filed November 26, 1892, and the answer January 11, 1893. On July 8, 1893, the defendant below filed a supplemental answer, setting up a written release in bar of the action, executed four days after the accident, to which supplemental answer a replication was filed July 11, 1893, averring as ground of avoidance of such release that plaintiff's mind at the time of its execution was so enfeebled by opiates, shock, and pain that he was unable to enter into contractual relations; that the minds of the parties never met on the principal subject embraced in the release, namely, the damages for which the action was brought; and that the release was obtained through misrepresentation and fraud. The trial commenced July 14, and was concluded, by the rendition of the verdict, on July 17, 1893. Upon the issues joined, the validity of the release was a matter to be left to the jury; and, although the bill of exceptions does not purport to contain all the evidence, it appears thereform that there was evidence tending to sustain the replication. Certain exceptions were taken by plaintiff in error in relation to the admission of evidence over objection, and these were dismissed by the circuit court of appeals with this observation: "A separate statement and consideration of these exceptions is not necessary, as none of them is of any general importance. They have all been considered carefully, and we are satisfied none of them has any merit." We are of the same opinion, but will refer by way of illustration to two of the rulings complained of. One of the questions in the case was whether Harris was bound to have read the release at the time he signed it, and that involved considering whether he was able to do so. He was asked upon the trial whether he could read any part of the release without spectacles, it being contended that he did not have his spec tacles at the time the claim agent of the railroad company interviewed him in his bed just after the accident. The witness testified that he could not read the fine print with spec tacles, nor the large print without; that his eyesight was not as good as it was when the release was presented to him; but that 'at' that time he could not have read a word of it without his glasses. Again he was asked: "Were you, at the time of signing that, conscious that you were signing any agreement other than for your expenses of sickness and loss of time for two weeks?" And he answered: "That is what he told me; that is just what he told me;" and that the release was not read to him by the claim agent. We do not think that any ruling in reference to this

088.

tesimony can be held as substantially incorrect. The word "conscious" related to the understanding of the witness at the time, and the question and answer are to be taken with the other testimony and the instructions in the case; and we find nothing in these particulars calculated to mislead the jury or to be so prejudicial to the defendant as to justify complaint.

The railway company moved that the jury be instructed that, upon the evidence, the release was a complete bar to the action, which Instruction the court declined to give, and defendant excepted; but, as there was evidence tending to sustain plaintiff's contention in relation to the validity of the release, the instruction was properly refused. The court charged the jury in this regard, in substance, as follows: "A release of this kind is of the highest significance in general when it appears that the situation and circumstances of the parties show that it has been entered into with an understanding of the rights of the parties respectively, and with intent to include all matters of difference between them;" and "that when the parties are upon an equal footing, and there seems to be no reason to believe that any mistake has been made in respect to it, that neither party is at liberty to deny the force and effect of what it may contain; he is not at liberty to say that he did not read it or that he did not understand it" but that "when it appears that either party is in a situation as to his health, physical condition, or as to the state of his mind that makes it probable that he acted without deliberation, without an understanding of the act with which he is charged, the instrument itself may be disregarded"; that in this instance, plaintiff, having been injured July 30th, and while he was lying in bed apparently quite ill, "was approached by an agent of ⚫ the defendant company, and was induced to sign the release which has been put in evidence before you"; and upon that "it becomes a question in the first instance whether he was in a condition to know precisely what he was doing. He seems to have had in some degree and to some extent the possession of his faculties. He had used whisky at the time of the accident, or shortly afterwards, and morphine had been administered to him on several occasions. There is a question as to the effect of the accident, how far he was disabled by it, and as to the effect of the drug and of the whisky, perhaps, on his mind; whether he was then in a condition to deal with such a subject as was presented to him. If he was not, and you can say that his faculties were in such a state that he could not comprehend what he was doing, and the force and effect of the paper which he signed, you may say he is not to be charged with it." "And aside from that, if there was a misunderstanding of the facts, whether the facts were willfully misstated by the agent of the railway company or not is not a very material question; but the question is whether the

facts were understood by both parties." That upon that the agent of the railroad company said "that he only spoke in general way of making a settlement," and "his language was such as to comprehend all matters that were in difference between them; while plaintiff says that he was not asked to consider, nor did he consider, the question of the liability of the railroad company to him for the injury which he had received." And "that, in reckoning up what should be paid to him, they considered only the question in respect to his illness, his doctor's bill, and the like, and the loss of time for two weeks"; and, if the jury accepted "plaintiff's account of the negotiation between them as against that of the agent of the railway company, then it would appear that the plaintiff, at least, did not understand the subject-matter of the negotiation; and as to what is expressed in the release he says that he did not read it, and could not read it without his spectacles, and that he did not have them at the time this paper was given to him."

The court further instructed the jury: That, "under some circumstances, a man in full health, and accustomed to the transaction of business, executing such a paper as that, would not be at liberty to deny his knowledge of its contents; but with one in the situation of plaintiff, lying on his bed, and somewhat prostrated by the shock which occurred at the time of the accident, be may be excused from reading it if he did not in fact read it." "He may be excused because he was in some pain, misery, and perhaps, to some extent under the influence of the morphine which he had taken." And, further, that "if he understood what he was doing, and understood that he was making a settlement of the whole business, the entire matter between himself and the railroad company, then he is bound by the settlement, without regard to the amount of money which he received. * If the settlement was made with a full understanding of the rights of the parties, the plaintiff then being in a state of health to enable him to transact such business, and upon that you say that the settlement is binding upon the plaintiff, he is concluded of this action, and you need make no further inquiry in respect of it; that is to say, his action cannot be maintained." And the court further charged the jury that, if they made an allowance to the plaintiff, they should deduct from it what he had received.

To various parts of the charge defendant excepted, but we deem it unnecessary to go over these exceptions in detail, as the charge as a whole was in accordance with the great weight of authority upon the subject, and was correct, upon the issues joined and the evidence thereon. Railway Co. v. Lewis, 109 Ill. 120; Bliss v. Railroad Co., 160 Mass. 447, 36 N. E. 65; Mullen v. Railroad Co., 127 Mass. 86; Railroad Co. v. Doyle, 18 Kan. 58; Lusted v. Railway Co., 71 Wis. 391, 36 N. W. 857; Dixon v. Railroad Co., 100 N. Y. 170, 3 N. E. 65; Rail

$347

road Co. v. Welch, 52 Ill. 183; Mateer v. Railway Co., 105 Mo. 320, 16 S. W. 839; Stone V. Railroad Co., 66 Mich. 76, 33 N. W. 24; Smith v. Steamship Co. 99 Cal. 462, 34 Pac. 84.

Judgment affirmed.

(158 U. S. 346)

UNITED STATES v. SMITH.

SMITH v. UNITED STATES. (May 20, 1895.)

Nos. 289 and 345.

UNITED STATES DISTRICT ATTORNEY — MILEAGE AND PER DIEM FEES-EXTRA COMPENSATION.

1. The mileage allowed by Rev. St. § 824, to district attorneys for traveling to and from court is intended as a reimbursement for expenses presumed to have been incurred, and is not a fee, charge, or emolument of his office, within the meaning of section 834, to be included in his return to the attorney general.

2. The per diem fee allowed by Rev. St. § 824, to district attorneys for attendance in court or before a judge or commissioner is intended as compensation, and not as reimbursement for expenses incurred, and hence must be included as part of the maximum compensation allowed by

law.

3. Under Rev. St. § 771, making it the duty of district attorneys to prosecute all civil actions in which the United States are concerned, where an extra compensation is paid the district attorney of New Mexico for services performed at the direction of the attorney general in suits in which the government was interested, though not en titled thereto, yet, having received it, he must account therefor as part of the fees and emoluments of his office, under Act Aug. 7, 1882 (22 Stat. 344), requiring all fees and moneys re ceived by him above $3,500 to be paid into the treasury of the United States.

Appeals from Court of Claims.

These were cross appeals from certain allowances and disallowances in the accounts of the claimant, who was district attorney of the United States for the territory of New Mexico from January 1, 1886, to December 31, 1888.

His accounts for the services performed by him during that time were duly rendered, with vouchers and items, to the proper district court, and were duly approved by said court in the sum of $19,230.80, as just and according to law. The accounts were afterwards presented to the treasury department, and certified as correct to the amount of $18,605.80, of which $14,266.34 was paid, leaving an unpaid balance of $4,339.36.

This balance the accounting officers of the treasury refused to certify for payment, upon the ground that the claimant had been paid for the three years in question the maximum compensation of $3,500 per annum prescribed by the act of August 7, 1882, for the attorney of the United States for New Mexico, and on the further ground, in respect to another item of $595, that it had been disallowed by the attorney general, as being in excess of just compensation.

The unpaid balance of $4,339.46 is composed of certain services performed by him in a claimed unofficial capacity under the direction

of the attorney general, of mileage, and of per diem compensation.

The court of claims rendered judgment in his favor for the mileage, amounting to $1,270.80, but disallowed his claim for per diem compensation, amounting to $2,843.66, and for special services, $225.

Both parties thereupon appealed to this court.

Eppa Hunton and J. Althens Johnson, for plaintiff. Asst. Atty. Gen. Dodge and Felix Brannigan, for the United States.

* Mr. Justice BROWN, after stating the facts In the foregoing language, delivered the opinion of the court.

This case involves the question whether the three items of travel fees, per diems, and extra services should be included in the fee and emolument account of the district attorney, as belonging to the "fees, charges, and emoluments" to which a district attorney is entitled by reason of the discharge of the duties of his office. Rev. St. § 833, 834. If these items are included, his compensation would exceed the maximum allowed by law, and he would not be entitled to the excess. The court of claims held that he was entitled to his travel fees, but not to the other items.

The case depends upon the construction given to certain provisions of chapter 16, tit. 13, of the Revised Statutes, with respect to the fees of officers of the United States courts. Section 823 provides that "the following and no other compensation shall be taxed and allowed to attorneys, solicitors, and proctors of the courts of the United States, to district attorneys, etc. Section 824 fixes the fees of district attorneys, among which are the following: "For each day of his necessary attendance in a court of the United States on the business of the United States, when the court is held at the place of his abode, five dollars; and for his attendance when the court is held elsewhere, five dollars for each day of the term." "For traveling from the place of his abode to the place of holding any court of the United States in his district, or to the place of any examination before a judge or commissioner, of a person charged with crime, ten cents a mile for going and ten cents a mile for returning."

By section 833, every district attorney is required to make a semiannual return to the attorney general "of all the fees and emoluments of his office, of every name and character, and of all the necessary expenses of his office, including necessary clerk-hire, together with the vouchers for the payment of the same"; and by section 834 he is bound to include in such semiannual return, with the exception of fees in revenue cases, "all other fees, charges, and emoluments to which a dis*trict attorney * may be entitled, by reason of the discharge of the duties of his office, as now or hereafter prescribed by law, or in any case in which the United States will

*348

be bound by the judgment rendered therein, whether prescribed by statute or allowed by a court, or any judge thereof." By section 837 the district attorneys and marshals of certain districts were awarded "for the like services, double the fees hereinbefore provided," and by the act of August 7, 1882 (22 Stat. 344), this allowance of double fees was extended to the territories of New Mexico and Arizona, with a provision that the district attorney should not, by fees and salaries together, receive more than $3,500 per year.

1. The first item relates to the allowance of the claim for mileage. While an allowance for travel fees or mileage is, by section 823, included in the fee bill, we think it was not intended as a compensation to a district attorney for services performed, but rather as a reimbursement for expenses incurred, or presumed to be incurred, in traveling from his residence to the place of holding court, or to the office of the judge or commissioner. The allowance of mileage to officers of the United States, particularly in the military and naval service, when traveling in the service of the government, is fixed at an arbitrary sum, not only on account of the difficulty of auditing the petty items which constitute the bulk of traveling expenses, but for the reason that officers travel in different styles; and expenses, which in one case might seem entirely reasonable, might in another be deemed to be unreasonable. There are different standards of traveling, as of living; and, while the mileage in one case may more than cover the actual expenses, in another it may fall short of them. It would be obviously unjust to allow one officer a certain sum for traveling from New York to Chicago, and another double that sum, and yet their actual expenses may differ as widely as that. The object of the statute is to fix a certain allowance, out of which the officer may make a saving or not, as he chooses or is able. And while, in some cases, it may operate as a compensation, it is not so intended, and is not a fee, charge, o emolument of his office, within the meaning of section 834. It is much like the arbitrary allowance for the attendance of witnesses and jurors, which may or may not be sufficient to pay their actual expenses, depending altogether upon the style in which they choose to live.

The fact that these travel fees are treated in section 823 as an item of the "compensation" allowed to district attorneys, and are enumerated in section 824, under the head of "Fees of Attorneys, Solicitors, and Proctors," undoubtedly lends some support to the claim o the government that they were designed to be included in the returns of the district attorneys of the fees, charges, and emoluments of their offices. But we think that these facts, though pertinent, are not controlling, if the travel fees were designed, as we think they are, as a reimbursement or commutation of traveling expenses. In this connection there is an apparent inconsistency

in the action of the claimant, which is not noticed in the opinion of the court below, and is not presented on this record for our revision, although it may have some bearing argumentatively upon the question under consideration. This is the fact that while, under section 837, and the act of August 7, 1882, allowing to certain district attorneys "double fees" for like services, he charges double mileage (twenty cents) as a "fee," he at the same time claims that such mileage is not to be accounted for as one of "the fees and emoluments of his office." It would seem almost too plain for argument that, if such mileage be a fee to be charged for, it is also a fee to be accounted for.

In view of the fact that by section 824 the district attorney is allowed 10 cents a mile travel fees each way, it is somewhat singular that by section 828 the clerk is allowed a travel fee of only 5 cents each way, although both are allowed a per diem of $5. This discrepancy appears to have existed only since the act of February 26, 1853 (10 Stat. 161), inasmuch as by the act of February 28, 1799 (1 Stat. 624), both the clerk and district attorney were allowed travel fees of 10 cents per mile from the place of their abode to the place of holding court,-one way.

Undoubtedly, however, the strongest argu ment in favor of the position assumed by thex government-that the travel fees*in question* were intended as compensation for services-. is derivable from the fact that by section 829 of the same chapter the marshal is allowed for transporting criminals 10 cents a mile for himself and each prisoner and necessary guard; and for traveling from his residence to the place of holding court, 10 cents a mile for going only; while for traveling in going only to serve process, he is allowed 6 cents a mile, to be computed from the place where the process is returned to the place of service; with a proviso that, "when more than two writs of any kind required to be served in behalf of the same party on the same person might be served at the same time, the marshal shall be entitled to compensation for travel on only two of such writs." If, however, the writs are not in behalf of the same party, to be served upon the same person, there is no limit to the number upon which the marshal is entitled to mileage. U. S. v. Fletcher, 147 U. S. 664, 13 Sup. Ct. 434. The fact that the amount of mileage which the marshal is entitled to charge for making a certain journey is thus made to have no relation whatever to the amount of his expenses or to the number of writs he has in his possession indicates very clearly that such mileage is intended as compensation. There is also another proviso to the same effect, namely, that his fees for summoning jurors, including the mileage chargeable for each service, shall never exceed $50 at any term of court; "and in all" other "cases where mileage is allowed to the marshal he may elect to receive the same, or his actual travel