« ΠροηγούμενηΣυνέχεια »
(112 U. S. 227)
in the latter court in reference to its own jurisdiction. Neither does it appear by which party the case was docketed in the circuit court. It does appear, however, that the appellant consented to the docketing, and that he made no effort whatever to have the case remanded. He was the first to move in the circuit court, and there is nothing to show that he remained in that court against his will. We are strongly inclined to the opinion that the removal was effected with the consent of both parties, and without the attention of either of the courts having been called to the jurisdictional facts. Under these circumstances each party should pay one-half the costs in this court.
The decree of the circuit court is reversed, and the cause returned to that court with instructions to remand it to the state court from which it was improperly removed, and with liberty to make such order as to costs accruing in the circuit court after the removal as equity and justice may require. A judgment will be entered against the appellees for one-half the costs in this court.
BRADSTREET Co. v. HIGGINS.
(November 17, 1884.)
JURISDICTION OF SUPREME COURT-Amount in Dispute.
The jurisdiction of the supreme court for the review of the judgments and decrees of the circuit courts, in so far as it is affected by the $5,000-limitation, depends on the value of the matter in dispute in the supreme court, and it is the actual matter in dispute, as shown by the whole record, and not the ad damnum alone which governs.
In Error to the Circuit Court of the United States for the Western District of Missouri. On motion to dismiss.
W. Hallett Phillips and C. L. Dobson, for motion. Henry Wise Garnett, for opposition.
*WAITE, C. J. This record shows that Higgins, the defendant in error, brought suit against the Bradstreet Company for $8,000, the price and value of certain property of his which the company had appropriated to its own use. The answer of the company contained (1) a general denial of the allegations of the petition; (2) a counter-claim of $1,104.18 for moneys collected by Higgins for the use of the company and not paid over; and (3) a counter-claim of $1,833.42, the expenses of the office of the company at Kansas City over its receipts, which Higgins, as superintendent of the office, was bound to pay. Higgins in his reply admitted the first counter-claim, and consented to its being applied as a credit upon the demand for which his suit was brought. As to the second counter-claim, his defense was, in effect, that the legitimate expenses of the office at Kansas City while he was superintendent, which he was bound to pay, did not exceed its legitimate receipts. Upon these issues a trial was had, which resulted in a verdict and judgment in favor of Higgins for $3,333.92. Upon the trial a bill of exceptions was taken by the company, from which it appears that evidence was introduced by the company "tending to show that the legitimate expenses of the Kansas City office exceeded its legitimate receipts, during the time plaintiff acted as its superintendent, in the sum of $61.10, including plaintiff's salary of $100 per month as expenses." This writ of error was brought by the company, and Higgins now moves to dismiss because the value of the matter in dispute does not exceed $5,000.
In Hilton v. Dickinson, 108 U. S. 165, S. C. 2 SUP. CT. REP. 424, it was decided, on full consideration, that our jurisdiction for the review of the judgments and decrees of the circuit courts in this class of cases depends on the value of the matter in dispute here, and that it is the actual matter in dispute, as shown by the whole record, and not the ad damnum alone which governs. Here the recovery against the company was less than $5,000, and
that, according to all the cases which were fully collected and commented on in Hilton v. Dickinson, it is not of itself enough to give us jurisdiction. The right of the company to bring the case here, therefore, depends on the jurisdictional effect of its various counter-claims. As the first of these claims was admitted by Higgins in his reply, there could not have been below, and there cannot be here, any dispute about that. The conclusive presumption upon the record is that the amount of this claim was credited upon the sum found due from the company for the property about which the suit was brought, and the verdict and judgment given only for the balance remaining after that deduction was made. As to the second, the record shows that while the claim in the pleadings was for $1,833.42, the evidence introduced in support of it only tended to prove that there was $61.10 due from Higgins on that account. The dispute in this court, therefore, according to the record, is (1) as to the right of Higgins to retain his judgment against the company for $3,333.92; and (2) as to the right of the company to recover $61.10 from Higgins. As these two sums combined do not make $5,000, it is clear we have no jurisdiction, and the motion to dismiss must be granted. Had it not been for the statement in the bill of exceptions, which, in effect, limited the counter-claim to the amount which the evidence tended to prove, the case would have been different, for then it would have appeared that the company might have been entitled to recover the whole amount of $1,833.42, after defeating the entire claim of Higgins, thus making the apparent value of the matter in dispute here in excess of our jurisdictional requirements. As it is, however, we can look only to the statement in the bill of exceptions of what the amount in dispute under this claim actually was. Dismissed.
(112 U. S. 216)
SNYDER v. UNITED STATES.
(November 17, 1884.)
1. INTERNAL Revenue-INFORMATION FOR FORFEITURE.
A general verdict, upon an information in several counts for a single forfeiture under the internal revenue laws, is valid if one count is good.
A verdict which speaks of "evaluating" instead of "valuing," is not therefore insufficient to support a judgment.
In Error to the Circuit Court of the United States for the District of Louisiana.
J. D. Rouse and Wm. Grant, for plaintiff in error. Asst. Atty. Gen. Maury, for defendant in error.
GRAY, J. This is an information in several counts, under section 3372 of the Revised Statutes, for the forfeiture of the tobacco, machinery, tools, and materials in a tobacco manufactory, for violations of the internal revenue laws. The property was released upon the claimant's giving a bond to abide the final decree. The claimant demurred to the information, as not setting forth any facts warranting the seizure or forfeiture of the property. The demurrer was overruled, the claimant filed an answer, and, upon a trial, a verdict was returned in this form: "We, the jury, find a verdict for the government, evaluating the goods and machinery seized at a sum of one thousand dollars." The claimant moved, in arrest of judgment, that several of the counts were insufficient, and that the verdict was general upon all the counts, and was vague and uncertain, and not responsive to the issue. The motion was overruled, and judgment rendered for the United States, and the claimant sued out a writ of error.
Informations under the revenue laws for the forfeiture of goods, seeking no judgment of fine or imprisonment against any person, are not strictly criminal cases, in which the decisions of the circuit court are final, unless a
division of opinion is certified; but they are civil actions, of which this court has jurisdiction in error, without regard to the sum or value in dispute. Rev. St. § 699; Pettigrew v. U. S. 97 U. S. 385. Yet, as has been expressly adjudged, they are so far in the nature of criminal proceedings as to come within the rule that a general verdict upon several counts, seeking in different forms one object, must be upheld if one count is good. Clifton v. U. S. 4 How. 242, 250. As one of the counts in this case is admitted to be good, it is unnecessary to consider the objections taken to the other counts.
The verdict, though expressed in bad English, clearly manifested the intention and finding of the jury upon the issue submitted to them, and the court rightly gave judgment upon it. Rev. St. § 954; Parks v. Turner, 12 How. 39, 46; Lincoln v. Iron Co. 103 U. S. 412.
(112 U. S. 250)
CONNECTICUT Mut. Life Ins. Co. v. UniON TRUST Co. of NEW YORK,
(November 17, 1884.)
1. EVIDENCE-COMPETENCY OF WITNESS-STATE LAW.
The provision in the New York Civil Code that "a person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in professional capacity, and which was necessary to enable him to act in that capacity," is obligatory upon the courts of the United States sitting within that state in trials at common law.
2. SAME-REV. ST. U. S. ¿ 721.
Section 721 of the Revised Statutes, declaring that "the laws of the several states, except where the constitution, treaties, and statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply," relates to the nature and principles of evidence, and also to competency of witnesses, except as the latter subject may be regulated by specific provisions of the statutes of the United States.
8. LIFE INSURANCE-ANSWER TO QUESTION AS TO DISEASE.
To the question, in an application for insurance upon life, whether the applicant had ever had the disease of "affection of the liver," the answer was "No." Held, that the answer was a fair and true one within the meaning of the contract, if the insured had never had an affection of that organ which amounted to disease,that is, of a character so well defined and marked as to materially disturb or derange for a time its vital functions; that the question did not require him to state every instance of slight or accidental disorders or ailments affecting the liver which left no trace of injury to health, and were unattended by substantial injury, or inconvenience, or prolonged suffering.
An exception to the modification by the court, in its general charge, of a particular proposition submitted by one of the parties, without stating specifically the modification to which objection is made, is too vague and indefinite.
In Error to the Circuit Court of the United States for the Southern District of New York.
This is an action upon a policy of life insurance in which a verdict and a Judgment were rendered for the plaintiff. The policy was taken out on the twenty-first of February, 1878, by the Union Trust Company of New York, for the benefit of the children of William Orton who might survive him. The insured died on the twenty-second of April of the same year. In the application signed by the trust company and by Orton the following question (the seventh) was propounded: "Have you ever had any of the following diseases? Answer (yes or no) opposite each." Then follows a list of diseases about which the applicant was asked-apoplexy, paralysis, insanity, epilepsy, habitual headache, fits, consumption, pneumonia, pleurisy, diphtheria, bronchitis, spitting of blood, habitual cough, asthma, scarlet fever, dyspepsia, colic, rupture, fistula, piles, affection of liver, affection of spleen, fever and ague,
disease of the heart, palpitation, aneurism, disease of the urinary organs, syphilis, rheumatism, gout, neuralgia, dropsy, scrofula, small-pox, yellow fever, and cancer or any tumor. As to colic, fistula, and fever and ague, the answer was "yes," and as to all the other diseases, "no." Being asked in the same question to state the number of attacks, character, and duration of all the diseases which he had had, the applicant answered: "Had fistula in 1871, induced by intermittent fever; radically cured." The eighth question was: "Have you had any other illness, local disease, or personal injury; and if so, of what nature, how long since, and what effect on general health?" The answer was: "Had colic for one day, October, 1877; no recurrence; general health good." The fourteenth was: "How long since you were attended by a physician; in what diseases? Give name and residence of such physician." The answer was: "October, 1877; for colic; Dr. Hasbrouck, of Dobbs' Ferry; sick one day." The fifteenth was: "Is there any fact relating to your physical condition, personal or family history, or habits which has not been stated in the answers to the foregoing questions, and with which the company ought to be made acquainted?" The answer was: "No; nothing to my knowledge." The sixteenth was: “Have you reviewed the answers to the above questions, and are you sure they are correct?" The answer was, "yes." The application concluded in these words: "It is hereby declared and warranted that the above are fair and true answers to the foregoing questions; and it is acknowledged and agreed by the undersigned that this application shall form a part of the contract of insurance, and that if there be, in any of the answers herein made, any untrue or evasive statements, or any misrepresentations or concealment of facts, then any policy granted upon this application shall be null and void, and all payments made thereon shall be forfeited to the company.' Upon the back of the application were several indorsements, among them the following: "PROOFS OF DEATH REQUIRED.-Blanks for the several certificates required to be made in proof of death will be furnished upon request." The policy purports to have been issued in consideration of the representations and declarations made in the application, and of the payment of the annual premium at the time designated therein. It purports, also, to have been issued and accepted upon certain express conditions and agreements, among which are: "That the answers, statements, representations, and declarations contained in or indorsed upon the application for this insurance-which application is hereby referred to and made part of this contract-are warranted by the assured to be true in all respects, and that if this policy has been obtained by or through any fraud, misrepresentation, or concealment, then this policy shall be absolutely null and void."
This action was brought to recover the amount insured-due notice and satisfactory evidence of death having been given. The company resisted reOvery upon two grounds: (1) That the answers to the seventh, eighth, fourteenth, and sixteenth questions were false and untrue, and known to be by Orton, in this: that so far from his general health being good at the time of the making and delivery of the application and of the issuing of the policy, he had, for many years immediately prior thereto, suffered with piles, affection of the liver, and habitual headache, and within less than 18 months prior to the application had been seriously ill for weeks, during which period several physicians attended him; that the illness in October, 1877, continued for some days; that he visited Europe upon one or more occasions for the benefit of his health, and by reason of disease was much enfeebled in body; that at the time of issuing the policy defendant did not know or have reason to believe that said statements, answers, and declarations, or any of them, were untrue, but, believing them to be true, issued the policy; and that by reason of these facts it was null and void. (2) That in the application it was declared that the statements therein were correct and true, and that there was
not, to the knowledge of the insured, any fact relating to his physical condi tion, personal or family history, or habits, not stated in answer to the ques tions in the application, with which the officers of the defendant ought to be made acquainted; yet he had been and was subject to and afflicted with the diseases therein specified; had a very serious illness and been attended by several physicians; was ill in October, 1877, much longer than stated; and had visited Europe for his health; which facts were within his knowledge, and were material circumstances in relation to the past and present state of his health, habits of life, and condition, rendering an insurance on his life more than usually hazardous, and with which the officers of the company should have been made acquainted; that these facts were concealed from, and misrepresented to, the company by Orton, whereby it was injuriously influenced, and induced to omit such examinations and precautions in reference to his condition and health as would have prevented the issuing the policy upon the considerations and conditions therein set forth; and that, by reason of such concealment and misrepresentation, the policy was and is absolutely null and void.
A. C. Brown, for plaintiff in error. W. H. Peckham, for defendant in er
HARLAN, J. 1. In support of the defense, physicians, who had attended the insured professionally, were examined as witnesses; and the first assignment of error relates to the refusal of the court to permit them to answer. questions, the object of which was to elicit information, which would not have been allowed to go to the jury, under section 834 of the Code of Civil Procedure of New York, had the action been tried in one of the courts of the state. That section provides that "a person, duly authorized to practice physic or surgery, shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity." It is not, and could not well be, seriously questioned that the evidence excluded by the circuit court was inadmissible under the rule prescribed by that section. Grattan v. Metropolitan Life Ins. Co. 92 N. Y. 274; Same v. Same, 80 N. Y. 281; Pierson v. People, 79 N. Y. 424; Edington v. Etna Life Ins. Co. 77 N. Y. 564; Edington v. Mutual Life Ins. Co. 67 N. Y. 185. But it is suggested that truth and justice require the admission of evidence which this statutory rule, rigorously enforced, would exclude, and that it can be admitted without disturbing the relations of confidence properly existing between physician and patient; that it would not afflict the living nor reflect upon the dead, if the physician should testify that his patient had died from a fever, or an affection of the liver; and that the rule, as now understood and applied in the courts of New York, shuts out, in actions upon life policies, the most satisfactory evidence of the existence of disease, and of the cause of death. These considerations, not without weight, so far as the policy of such legislation is concerned, are proper to be addressed to the legislature of that state. But they cannot control the interpretation of the statute, where its words are so plain and unambiguous as to exclude the consideration of extrinsic circumstances. Since it is for that state to determine the rules of evidence to be observed in the courts of her own creation, the only question is whether the circuit court of the United States is required, by the statutes governing its proceedings, to enforce the foregoing provision of the New York Code. This question must be answered in the affirmative. By section 721 of the Revised Statutes, which is a reproduction of the thirty-fourth section of the judiciary act of 1789, it is declared that "the laws of the several states, except where the constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision, in trials at common law, in the courts of the United States in cases where they apply." This has been uniformly construed as requiring the courts of the Union, in the trial of all civil cases at