See, also, 250 U. S. 671, 40 Sup. Ct. 15, 63 L. Ed. 1199. *220 *Mr. Vincent Victory, of New York City, for appellant. Mr. John A. Garver, of New York City, for appellees. (253 U. S. 284) PHILADELPHIA & R. RY. CO. v. HANCOCK. (Argued March 2, 1920. Decided June 1, 1920.) No. 415. 365-COMPENSA 1. MASTER AND SERVANT occurred. Memorandum opinion by direction of the A judgment affirming an award under the Court by Mr. Justice DAY. Pennsylvania Workmen's Compensation Act, The Consolidated Gas Company of New for the death of a railroad trainman must be York brought suit to enjoin the enforcement reversed, if decedent was employed in comof the New York 80-cent gas law. The juris-merce between the states when the accident diction was invoked solely upon the ground that the rate was confiscatory and hence vio- 2. COMMERCE 27(6)-TRAINMAN EMPLOYED lated constitutional rights of the company. IN "INTERSTATE COMMERCE," IF ANY The city of New York applied for leave to intervene as a party defendant in the action. The District Judge denied the petition for intervention, stating that the Public Service Commission, the Attorney General, and the district attorney properly represented private consumers; that the city had no interest in the litigation as a consumer, was not the governmental body which had fixed the rate, and was not charged with the duty of enforcing it. From the order (Consolidated Gas Co. of New York v. Newton, 256 Fed. 238) denying the application to intervene, the city of New York prosecuted an appeal to the Circuit #221 Court of Appeals, and the latter court (260 CAB CONTAINED INTERSTATE FREIGHT. Under Employers' Liability Act (Comp. St. §§ 8657-8665), a railway trainman was employed in "interstate commerce," if any of the cars in his train contained interstate freight. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.] 3. COMMERCE 27(6)-RAILWAY TRAIN MAN ENGAGED IN INTERSTATE COMMERCE, THOUGH CARS NOT BILLED WHEN HANDLED BY HIM. A railway trainman, belonging to a crew operating a train of loaded cars from a colliery to yards 2 miles away, was engaged in interstate commerce, where the ultimate destina tion of some of the cars was outside the state, oranda delivered to the conductor by the shipas appeared from the instruction cards or memping clerk at the mine, and freight charges were paid for the entire distance, beginning at the mine, though the cars were not weighed and billed to the consignee until another crew moved them from such yard to scales same 10 miles away, where they were inspected, weighed, and billed. Mr. Justice Clarke dissenting. Court. [1, 2] The application was addressed to the discretion of the District Court, and the order appealed from was not of that final character which furnished the basis for appeal. Ex parte Cutting, 94 U. S. 14, 22, 24 L. Ed. 49; Credits Commutation Co. V. United States, 177 U. S. 311, 315, 20 Sup. Ct. 636, 44 L. Ed. 782; Ex parte in the Matter of Leaf Tobacco Board of Trade, 222 U. S. 578, 581, 32 Sup. Ct. 833, 56 L. Ed. 323. As the jurisdiction of the District Court was based upon constitutional grounds only, the case was not appealable to the Circuit Court of Appeals. But, an appeal having been taken and a final order made in the Circuit Court of Appeals, we have jurisdiction to review the question of jurisdiction of that court. Judicial Code, § 241 (Comp. St. § 1218); Union & Planters' Bank v. Memphis, 189 U. S. 71, 73, 23 Sup. Ct. 604, 47 L. Ed. 712. The proper course is to reverse the judg ment of the Circuit Court of Appeals, and remand the case to that court, with directions to dismiss the appeal. Four Hundred and Forty-Three Cans of Egg Product v. United States, 226 U. S. 172, 184, 33 Sup. Ct. 50, 57 Messrs. George Gowen Parry and Charles L. Ed. 174; Carolina Glass Co. v. South Car-Heebner, both of Philadelphia, Pa., for olina, 240 U. S. 305, 318, 36 Sup. Ct. 293, 60 plaintiff in error. L. Ed. 658. Mr. Hannis Taylor, of Washington, D. C., for defendant in error. So ordered. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes On Writ of Error and Writ of Certiorari to the Supreme Court of the State of Pennsylvania. Proceedings under the Workmen's Compensation Act of Pennsylvania by Margaret of her husband, opposed by the Philadelphia L. Hancock for compensation for the death & Reading Railway Company, employer. Compensation was awarded, and the award vania (264 Pa. 220, 107 Atl. 735), and the affirmed by the Supreme Court of Pennsylemployer brings error and certiorari. Writ of petition dismissed, judgment reversed, and cause remanded. See, also, 250 U. S. 658, 40 S. Ct. 54, 63 L. Ed. 119. (40 Sup.Ct.) *285 *Mr. Justice McREYNOLDS delivered the opinion of the Court. The judgment below affirmed an award for respondent under the Workmen's Compensation Act of Pennsylvania (Act June 2, 1915 [P. L. 736]), granted because of the death of her husband from an accident while in the petitioner's employ as a trainman. After a writ of error had been sued out we allowed a writ of certiorari. 250 U. S. 658, 40 Sup. Ct. 54, 63 L. Ed. 1193. The foriner must be dismissed; the case is properly here upon the latter. Respondent maintains that the coal in cars ticketed for transportation as above commerce until such cars reached Shamokin described did not become part of interstate scales and were there weighed and billed. But we think former opinions of this court require the contrary conclusion. The coal was in the course of transportation to another state when the cars left the mine. There was no interruption of the movement; it always continued towards points as originally intended. stance is that the shipment was but a step The determining circumultimate destinations in another state. Coe in the transportation of the coal to real and v. Errol, 116 U. S. 517, 6 Sup. Ct. 475, 29 L. Ed. 715; Railroad Commission of Ohio v. Worthington, 225 U. S. 101, 108, 32 Sup. Ct. 653, 56 L. Ed. 1004; Texas & New Orleans R. R. Co. v. Sabine Tram Co., 227 U. S. 111, 124, 126, 33 Sup. Ct. 229, 57 L. Ed. 442; Railroad Commission of Louisiana v. Texas & Pacific R. R. Co., 229 U. S. 336, 341, 33 Sup. Ct. 837, 57 L. Ed. 1215; Baer Brothers Mercantile Co. v. Denver & Rio Grande R. R. Co., 233 U. S. 479, 34 Sup. Ct. 641, 58 L. Ed. 1055. [1, 2] If, when the accident occurred, the husband was employed in commerce between states, the challenged judgment must be reversed, and he was so employed if any of the cars in his train contained interstate freight. Employers' Liability Act April 22, 1908, c. 149, 35 Stat. 65 (Comp. St. §§ 8657-8665); St. L., S. F. & Tex. Ry. v. Seale, 229 U. S. 156, 161, 33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156; New York Central & Hudson River R. R. Co. v. Carr, 238 U. S. 260, 35 Sup. Ct. 780, 59 L. Ed. 1298; New York Central R., R. Co. v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1045, L. R. A. 1918C, 439, Ann. Cas. 1917D, 1139; New York Central R. R. Co. v. Porter, 249 U. S. 168, 39 Sup. Ct. 188, 63 L. Ed. 536; Southernion. Pacific Co. v. Industrial Accident Commission (January 5, 1920) 251 U. S. 259, 40 Sup. Ct. 130, 64 L. Ed. —. The judgment of the court below is reversed, and the cause remanded for further proceedings not inconsistent with this opin Mr. Justice CLARKE dissents. [3] The essential facts are not in controversy; the nature of the employment, therefore, is a question of law. The duties of the deceased never took him out of Pennsylvania; they related solely to transporting coal from the mines. When injured he belonged to a crew operating a train of loaded cars from Locust Gap colliery to Locust Summit yard, two miles away. 1. INDIANS 13-SECRETARY OF INTERIOR The ultimate destination of some of these cars was outside of Pennsylvania. This appeared from instruction cards or memoranda delivered to the conductor by the shipping clerk at the mine. Each of these referred to a particular car by number and contained certain code letters indicating that such car with its load would move beyond the state. Pursuing the ordinary course these cars #286 AUTHORIZED TO REVERSE DECISION GRANTING 2. MANDAMUS 73(1) — WILL NOT LIE TO COMPEL PLACING OF NAMES ON ROLLS OF IN- Under Act April 26, 1906, § 2, the Secre tary of the Interior was the final judge whether names should be placed on the rolls of mem were hauled to *Locust Summit yard and placed upon appropriate tracks; there the duties of the first crew in respect of them terminated. Later, having gathered them into a train, another crew moved them some 10 miles to Shamokin scales, where they were inspected, weighed, and billed to spe-bers of the Creek Nation, and where he denied cifically designated consignees in another enrollment the names cannot be ordered put on state. In due time they passed to their final the rolls, in a mandamus proceeding, upon a destinations suggestion that he made a mistake, or that over proper lines. Freight charges at through rates were assessed and he came very near to granting enrollment. paid for the entire distance beginning at the mine. (253 U. S. 209) UNITED STATES ex rel. JOHNSON et al. v. (Argued April 29, 1920. Decided June 1, 1920.) No. 291. Under Act April 26, 1906, § 2, the Secretary of the Interior had power, after informing the Commissioner to the Five Civilized Tribes that his decision granting enrollment as members of the Creek Nation to certain applicants was affirmed, to reverse his decision and deny enrollment, where the names had never been placed on the rolls. In Error to the Court of Appeals of the District of Columbia. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes by the United not lose his power to do the conclusive act, Mandamus proceeding States, on relation of Jennie Johnson and others, against John Barton Payne, Secretary of the Interior. A judgment dismissing the petition was affirmed by the Court of Appeals of the District of Columbia (48 App. D. C. 169), and the relators bring error. Affirmed. *210 *Mr. Charles H. Merillat, of Washington, D. C., for plaintiffs in error. Messrs. Assistant Attorney General Nebeker, Charles D. Mahaffie, and C. Edward Wright, all of Washington, D. C., for defendant in error. Mr. Justice HOLMES delivered the opinion of the Court. This is a petition for a writ of mandamus as all that is material can be stated in a few tary of the Interior and his previously exist- *211 former letter to *him, and reversing his decision. It was ordered that if the petitioners' names were on the rolls they should be stricken off. The Secretary gave no reasons for his action but it is suggested that he acted under mistakes of law and fact, and it is argued that when the first letter was written the petitioners' rights were fixed. [1, 2] The last is the only point in the case and with regard to that it is argued that this reversal of the first decision without a hearing was a denial of due process of law. It is not denied that the Secretary might have declined to affirm the decision below in the first instance, and that having been his power, the only question is when it came to an end. While the case was before him he was free to change his mind, and he might do so none the less that he had stated an opinion in favor of one side or the other. He did (253 U. S. 212) FIDELITY TITLE & TRUST CO. v. DU- (Argued March 25 and 26, 1920. Decided June 1, 1920.) No. 300. ON REVERSAL OF JUDGMENT FOR PLAINTIFF NEW TRIAL SHOULD BE GRANTED. On reversing a judgment for plaintiff in an action for personal injury entered on a verdict, the Circuit Court of Appeals should have ~809 (1) 2. MUNICIPAL CORPORATIONS A party suspending a political banner over a street by means of a wire cable fastened to a chimney, which was pulled down by the cable during a storm, was not relieved of liability to a traveler on the street injured by a falling brick because of the absence of any contract with him. 3. MUNICIPAL CORPORATIONS ~~ 809 (1) OVER STREET A party suspending a political banner over a street by means of a wire cable attached to a chimney, which was pulled down by the cable during a storm, under a contract with another party, could not escape liability for injury from falling brick by stepping out of control a few days before the accident; the danger having been called fully into existence by it. 4. MUNICIPAL CORPORATIONS 821 (18) PARTY SUSPENDING A BANNER OVER STREET HELD NOT TO HAVE SURRENDERED CONTROL AS MATTER OF LAW. Where defendant suspended a banner above a street by means of a wire cable attached to a chimney on a hotel building, and handled the banner whenever it wanted to, and no one else touched it, and the party employing defendant to suspend the banner testified that he asked defendant to put it up and take it down and said he did not want to have anything to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes do with it, it could not be said as a matter of law that defendant had stepped out of control of the banner prior to an accident. (40 Sup.Ct.) 5. MUNICIPAL CORPORATIONS 822 (2) - IN ACTION FOR INJURIES FROM FALLING CHIMNEY, INSTRUCTION HELD TOO FAVORABLE TO correct the error and as it was not corrected the present writ of certiorari was granted. 249 U. S. 606, 39 Sup. Ct. 290, 63 L. Ed. 799; Id., 249 U. S. 597, 39 Sup. Ct. 388, 63 L. Ed. 795. Of course if the judgment of the Circuit Court of Appeals was right on the merits a new trial should have been ordered. Slocum v. New York Life Insurance Co., 228 DEFENDANT. In an action for injuries from the falling of brick from a chimney to which defendant | U. S. 364, 33 Sup. Ct. 523, 57 L. Ed. 879, Ann. attached a wire cable supporting a banner suspended over the street, under contract with a third party, an instruction that, even if the fall was due to negligence in putting up the banner, defendant would not be liable unless by arrangement it assumed a continuing duty to maintain the banner in a safe condition, held more favorable to defendant than it was entitled to. Cas. 1914D, 1029; Myers v. Pittsburgh Coal Co., 233 U. S. 184, 189, 34 Sup. Ct. 559, 58 L. Ed. 906. But as it has been necessary to direct the record to be certified up, it is necessary also to consider the merits of the case and to determine whether the Circuit Court of Appeals was right with regard to them. Nothing turns upon the form of the plead MENT DID NOT CHANGE CAUSE OF ACTION. 6. LIMITATION OF ACTIONS 127(5)-ORIG-ings. The evidence for the plaintiff was in INAL DECLARATION SUFFICIENT, AND AMEND- conflict with that for the defendant upon important points, but we shall state the case as the jury might have found it to be if they believed the plaintiff's evidence, as the verdict shows they did. A member of a political party requested the defendant to suspend a political banner, which he furnished, across one of the principal streets in the borough of Dubois, between the Commercial Hotel and the Deposit National Bank. He asked the defendant to put it up, take it down after the election and attend to it for him, saying that he did not want to have anything to do with it. The defendant put up the banner, at first suspending it by a *214 Where the original declaration alleged negligence in fastening a cable suspending a political banner to a chimney, and alleged that the fall of the chimney was due to such use, it was sufficient, and an amendment after the statute of limitations had run, alleging also that defendant maintained the banner, did not change the cause of action. On Writ of Certiorari to the United States Circuit Court of Appeals for the Third Circuit. Action by Vernon W. Pancoast against the Dubois Electric Company, which was continued by the Fidelity Title & Trust Company, ancillary administrator of the deceased plaintiff. A judgment for plaintiff was reversed by the Circuit Court of Appeals for the Third Circuit without ordering a new trial (253 Fed. 987, 165 C. C. A. 668), and plaintiff brings certiorari. Reversed, and judgment of the District Court affirmed. rope, but the rope breaking, substituted for it a wire cable of the defendant's, and, the plaintiff says, did so without further orders. This cable was fastened on the hotel side by taking two turns round a chimney and clamping the end. The chimney stood thirtyone inches from the edge of the cornice over the street, was twenty-one inches square at the base, and had a tin flashing from the roof inserted between the courses of brick two or three courses above the roof. AcMr. W. C. Miller, of Clearfield, Pa., for re- còrding to the plaintiff's evidence the cable spondent. was attached above the flashing. The lower corners of the banner were attached to the buildings on their respective sides. Five Messrs. Charles Alvin Jones and M. Acheson, Jr., both of Pittsburgh, Pa., petitioner. W. for *213 *Mr. Justice HOLMES delivered the opin- days after the banner was suspended the ion of the Court. man who employed the defendant caused it to string electric lights along the wire, not otherwise interfering with the work. The same day in the afternoon, the weather being stormy, the banner dragged the chimney over and a brick struck Pancoast on the head, making a comminuted fracture of the skull. The defendant put up the banner a third time after this fall, again, the plaintiff says, without further direction, and when the election was over took it down. [1] This is an action begun by Pancoast, to recover for personal injuries, and continued after his death by the petitioner as ancillary administrator. At a former trial the plaintiff had a verdict but it was set aside and a new trial ordered by the Circuit Court of Appeals. Du Bois Electric Co. v. Fidelity Title & Trust Co., 238 Fed. 129, 132, 151 C. C. A. 205, L. R. A. 1917C, 907. At the new trial the plaintiff again got a verdict and judgment, but the Circuit Court of Appeals set them aside, this time simply reversing the judgment without ordering a new trial. 253 Fed. 987, 165 C. C. A. 668. An opportunity was allowed to that Court to [2] If these were the facts, and, except with regard to the extent of the defendant's control, they could not be disputed, manifest ly the verdict was warranted. It did not leave the defendant free from any duty to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Pancoast and the other travelers in the by the law. Evidently the defendant hanstreet that they had no contract with it. An dled the banner when it wanted to, and no act of this kind that reasonable care would #216 one else *touched it. The defendant's employer if he told the truth not only did not intermeddle but might be found to have expressly required the defendant to take the responsibility. All the probabilities are that such control as there was remained with the V. have shown to endanger life, might have made the actor guilty of manslaughter, if not, in an extreme case, of murder. Rigmaidon's Case, Lewin, 180. See Nash v. United States, 229 U. S. 373, 377, 33 Sup. Ct. 780, 57 L. Ed. 1232; Commonwealth Pierce, 138 Mass. 165, 178, 52 Am. Rep. 264. The same considerations apply to civil liability for personal injuries from similar ed that even if the fall was due to neglicauses that would have been avoided by rea-gence in putting up the banner, the defendsonable care. See Gray v. Boston Gas Light ant would not be liable unless by arrangeJo., 114 Mass. 149, 19 Am. Rep. 324. A man defendant. The defendant got more than it was entitled to when the jury were instruct ment it had assumed a continuing duty to *215 maintain the banner in a safe condition. The testimony on the two sides was contrasted and it was left to the jury to say which they would believe. is not free to introduce a danger *into public places even if he be under no contract with the persons subjected to the risk. [3] It hardly is denied that there was evidence of negligence, but it was held by the Circuit Court of Appeals that the defendant's relation to the work ceased when the banner was hung, that it had no further control over it and was not liable for what happened thereafter. Of course it is true that when the presence or absence of danger depends upon the subsequent conduct of the person to whom control is surrendered, the previous possessor may be exonerated when the control is changed. Curtin v. Somerset, 140 Pa. 70, 21 Atl. 244, 12 L. R. A. 322, 23 Am. St. Rep. 220; Murphey v. Caralli, 3 Hurlst. & Colt. 462; Thornton v. Dow, 60 Wash. 622, 111 Pac. 899, 32 L. R. A. (N. S.) 968; Glynn v. Central R. R. Co., 175 Mass. 510, 56 N. E. 698, 78 Am. St. Rep. 507; Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 48, 15 N. E. 84, 4 Am. St. Rep. 279. But how far this principle will be carried may be uncertain. Union Stock Yards Co. v. Chicago, Burling (253 U. S. 345) ton & Quincy R. R. Co., 196 U. S. 217, 223, PORTO RICO RY., LIGHT & POWER CO. v. MOR. (Argued April 23, 1920. Decided June 1, 1920.) No. 728. 25 Sup. Ct. 226, 49 L. Ed. 453, 2 Ann. Cas. 525. And when as here the danger had been called fully into existence by the defendant it could not escape liability for the result of conditions that it alone knew, had created and had arranged to have continue, by stepping out of the control a few days before the event came to pass. Harris v. James, 45 L. J., Q. B. 545; Todd v. Flight, 9 C. B. N. S. 377; Swords v. Edgar, 59 N. Y. 28, 17 Am. Rep. 295; Godley v. Hagerty, 20 Pa. 387, 59 Am. Dec. 731; Joyce v. Martin, 15 R. I. 558, 10 Atl. 620; Jackman v. Arlington Mills, 137 Mass. 277, 283; Dalay v. Savage, 145 Mass. 38, 41, 12 N. E. 841, 1 Am. St. Rep. 429; Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 49, 15 N. E. 84, 4 Am. St. Rep. 279. [4, 5] But it could not be said as matter of law that the defendant had stepped out of control. The facts in their legal aspect probably were somewhat hazy. Presumably the tenant of the hotel simply permitted what was done and had no other relation to it than such as might be imposed upon hir [6] As we have implied, we regard it as too plain for discussion that the plaintiff's evidence if believed warranted a finding that the defendant undertook the care of the banner while it was up. An effort is made to establish an error in allowing an amendment to the declaration after the statute of limitations had run. The declaration originally alleged negligence in the use of the chimney and that the fall was due to the use of the chimney as alleged. The amendment alleged also that defendant maintained the banner. If any objection is open it is enough to say that the original declaration was sufficient and that the amendment plainly left the cause of action unchanged. Judgment reversed. Judgment of the District Court affirmed. 1. COURTS 438-ALIEN DOMICILED IN PORTO RICO NOT ENTITLED TO SUE IN UNITED STATES DISTRICT COURT. Under Act March 2, 1917, § 41 (Comp. St. 1918, § 3803qq), giving the United States District Court for Porto Rico jurisdiction of all controversies where all of the parties on either side are citizens or subjects of a foreign state or citizens of a state, territory, or district of the United States "not domiciled in Porto Rico," the quoted clause applies to aliens as well as American citizens, and a Spanish subject domiciled in Porto Rico cannot sue a Porto Rico corporation in such court; especially as an opposite construction would be inconsistent 1898 with Spain, guaranteeing to Spaniards with the spirit of article 11 of the treaty of residing in Porto Rico the right to appear before such courts and to pursue the same course as citizens of the country to which the courts belong. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |