Mr. C. H. Van Alstine for plaintiff in error. November 30, 1914. Dismissed with costs, on motion of Mr. Frederick S. Tyler George D. VanDyke for defendant in for the appellants. error. November 30, 1914. Per Curiam: Dismissed for the want of jurisdiction, upon the authority of Spies v. Illinois, 123 U. S. 131, 181, 31 L. ed. 80, 91, 8 Sup. Ct. Rep. 21, 22; Erie R. Co. v. Purdy, 185 U. S. 148, 154, 46 L. ed. 847, 850, 22 Sup. Ct. Rep. 605; Louisville & N. R. Co. v. Woodford, 234 U. S. 46, 58 L. ed. 1202, 34 Sup. Ct. Rep. 739; Willoughby v. Chicago, 235 U. S. 45, 59 L. ed., 35 Sup. Ct. Rep. 23. Motion to dismiss. F. B. WILLIAMS CYPRESS COMPANY, Ltd., Plaintiff in Error, v. STATE OF LOUISIANA. [No. 215.] In Error to the Supreme Court of the State of Louisiana. Mr. Charlton R. Beattie for plaintiff in error. No counsel appeared for defendant in error. November 30, 1914. Dismissed with costs, on motion of counsel for the plaintiff in error. WILLIAM KNAPP et al., Partners, etc., Plaintiffs in Error, v. EVERETT P. HOLDEN. [No. 301.] In Error to the Supreme Court of the State of Ohio. Mr. Constant Southworth for plaintiffs in error. Mr. Charles M. Cist for defendant in error. November 30, 1914. Judgment affirmed with costs, per stipulation of counsel. EDWARD J. ROBISON et al., Plaintiffs in Error, v. FRANK S. FISHBACK. [No. 108.] In Error to the Supreme Court of the State of Indiana. Mr. Merrill Moores for plaintiffs in error. No counsel appeared for defendant in error. December 4, 1914. Dismissed with costs, pursuant to the Tenth Rule. Mr. William J. O'Sullivan for complain- OREGON SHORT LINE RAILROAD COMPANY, Plaintiff in Error, v. CHARLOTTE A. HoMER. [No. 109.] In Error to the Supreme Court of the State of Utah. See same case below, 42 Utah, 15, 128 Pac. 522. Messrs. George H. Smith and Henry W. Clark for plaintiff in error. No counsel appeared for defendant in error. December 7, 1914. Per Curiam: Judg ment reversed with costs, and case remanded for further proceedings upon the author、 ity of Boston & M. R. Co. v. Hooker, 233 U. S. 97, 58 L. ed. 868, 34 Sup. Ct. Rep. 526. Jon F. DOYLE and John F. Doyle, Jr., Individually and as Copartners Trading as John F. Doyle & Son, Appellants, v. GEORGE J. SCHMIDHEISER, Trustee, etc. [No. 424.] Appeal from the United States Circuit Court of Appeals for the Third Circuit. See same case below, 126 C. C. A. 143, 209 Fed. 1. Mr. John P. Connelly for appellants. Mr. Otto Wolf, Jr., for appellee. December 7, 1914. Per Curiam: Dismissed for want of jurisdiction upon the au thority of Holden v. Stratton, 191 U. S. 115, 48 L. ed. 116, 24 Sup. Ct. Rep. 45; Duryea Power Co. v. Sternbergh, 218 U. S. 299, 54 L. ed. 1017, 31 Sup. Ct. Rep. 25: Pennsylvania v. York Silk Mfg. Co. 232 U. S. 718, 38 L. ed. 813, 34 Sup. Ct. Rep. 601. MINNEAPOLIS, ST. PAUL, & SAULT STE. MARIE RAILWAY Co., Plaintiff in Error, V. JOSEPH LEORA, by John Leora, His Guardian ad Litem. [No. 48.] In Error to the Supreme Court of the State of Wisconsin. See same case below, 156 Wis. 386, 146 N. W. 520. Mr. William A. Hayes for plaintiff in error. Mr. W. P. Crawford for defendant in error. L. Per Curiam: Dis December 7, 1914. missed for want of jurisdiction upon the authority of Spies v. Illinois, 123 U. S. 131, 181, 31 I. ed. 80, 91, 8 Sup. Ct. Rp. 21, 22; Eric R. Co. v. Purdy, 185 U. S. 148, 154, 46 L. ed. 847, 850, 22 Sup. Ct. Rep. 605; Louisville & N. R. Co. v. Wood ford, 234 U. S. 46, 58 L. ed. 1202, 34 Sup. Ct. Rep. 739; Willoughby v. Chicago, 235 U. S. 45, 59 L. ed., 35 Sup. Ct. Rep. 23. (See Chicago, M. & St. P. R. Co. v. Hanson, 255 U. S. 693, 59 L.. ed. ——, 35 Sup. Ct. Rep. 206. Decided Nov. 30, 1914.) EX PARTE: IN THE MATTER OF Lro M. FRANK, Petitioner. [No, --, Original.] Application for the allowance of a Writ of Error. See same case below, 142 Ga. 741, L. R. A. 1915). S17, S3 S. E. 645. Messrs. Louis Marshall and Henry A. Alexander for petitioner. No counsel appeared for respondent. Lucius E. Jusos, as Trustee, etc., Petitioner, v. WILLIAM A. NASH, as Tru tee, etc., et al. [No. 62.] Petition for a Writ of Certiorari to the United States Circuit Court of Appeals for the Second Circuit. Mr. Oscar A. Lewis for petitioner. OGDEN M. REID, Petitioner, v. JAMES C. FARGO, as President of the American Express Company et al. [No. 689.] Petition for a Writ of Certiorari to the United States Circuit Court of Appeals for the Second Circuit. Messrs. Howard S. Harrington and Oscar R. Houston for petitioner. Messrs. Charles C. Burlingham and Walter F. Taylor for respondents. December 7, 1914. Granted. MAHLON GRO, Petitioner, v. CHARLOTTE ANITA WHITNEY. [No. 674.] Petition for a Writ of Certiorari to the Court of Appeals of the District of Columbia. See same case below, 42 App. D. C. 381. STATE OF MISSOURI EX REL. ST. JOSEPHI WATER COMPANY, Plaintiff in Error, v. JACOB GEIGER et al. [No. 83.] In Error to the Supreme Court of the State of Missouri. See same case below, 246 Mo. 74, 154 S. W. 486. Mr. John E. Dolman for plaintiff in error. Mr. Vinton Pike for defendants in error. December 14, 1914. Per Curiam: Dismissed for want of jurisdiction upon the g. 258, 262, 263, 52 L. ed. 782, 783, 28 Sup. authority of (1) Thomas v. Iowa, 209 U. Ct. Rep. 457; Bowe v. Scott, 23 U. S. 658, 63, 661, 58 L. ed. 1141, 1144, 115, 34 Sup. Ct. Rep. 769; (2) Kansas City Star Co, v. Julian, 215 U. S. 589, 54 L. ed. 310, 30 Sup. Ct. Rep. 403; Consolidated Turnp. Co. v. Norfolk & O. V. R. Co. 228 U. S. 926, 334, 57 L. ed. $57, 862, 33 Sup. Ct. Rep. 510; Rep. 510; Lewiston v. Chamberlain, 234 L. S. 751, 58 L. ed. 1576, 34 Sup. Ct. Rep. U. THE STATE OF WASHINGTON EX REL. GRANT SMITH et al., Plaintifs in Error, v. THE CHY OF SEATILE. [No. 476.] In Error to the Supreme Court of the State of Washington. See same case below, 74 Wash, 438, 133 Pac. 1005. Messrs. Harold Preston, George Donwerth, and Elmer E. Todd for plaintiffa in error. Mr. Howard A. Hanson for defendant in error. December 14, 1914. Per Curiam: Dismissed for want of jurisdiction upon the authority of Yazoo & M. Valley R. Co. v. Adams, 180 U. S. 41, 44, 45 L. ed. 415, 417, 21 Sup. Ct. Rep. 256; St. Paul Gaslight Co. v. St. Paul, 181 U. S. 142. 45 L. ed. 788, 21 Sup. Ct. Rep. 575; Cleveland & P. R. Co. v. Cleveland, 235 U. S. 50, 59 L. ed., 35 Sup. Ct. Rep. 21. SPLAIN, United States Marshal, etc., et al. [No. 523.] Appeal from the Court of Appeals of the District of Columbia. See same case below, 42 App. D. C. 300. Mr. Henry E. Davis for appellant. Mr. Solicitor General Davis for appellees. December 14, 1914. Per Curiam: Dismissed for want of jurisdiction upon the authority of Jones v. Montague, 194 U. S. 147, 48 L. ed. 913, 24 Sup. Ct. Rep. 611; Security Mut. L. Ins. Co. v. Prewitt, 200 U. S. 446, 50 L. ed. 545, 26 Sup. Ct. Rep. 314; Richardson v. McChesney, 218 U. S. 487, 492, 54 L. ed. 1121, 1122, 31 Sup. Ct. Rep. 43. Mr. Waldo G. Morse for petitioner. Mr. Samuel F. Frank for respondents. December 14. 1914. Denied. UNIVERSAL FILM MANUFACTURING COMPANY, Petitioner, v. S. COPPERMAN, Doing Business as Thalia Music Hall, et al. [No. 711.] Petition for a Writ of Certiorari to the United States Circuit Court of Appeals for the Second Circuit. See same case below, 134 C. C. A. 305, 218 Fed. 577. 35 S.C.-14 NEW YORK LIFE INSURANCE COMPANY, Petitioner, v. EFFIE J. GOULD DUNLEVY. [No. 703.] Petition for a Writ of Certiorari to the United States Circuit Court of Appeals for the Ninth Circuit. Messrs. Edward J. McCutchen and James H. McIntosh for petitioner. No counsel appeared for respondent. (235 U. S. 669) ARIZONA & NEW MEXICO RAILWAY| uary, 1912, in the district court of the fifth COMPANY, Plff. in Err., v. THOMAS P. CLARK. COURTS (431) TERRITORIAL COURTS- 1. Any irregularity in transferring to the Federal district court for the district of Arizona a suit begun prior to statehood in a territorial court, based upon the employers' liability act of April 22, 1908 (35 Stat. at L. 65, chap. 149), as amended by the act of April 5, 1910 (36 Stat. at L. 291, chap. 143, Comp. Stat. 1913, § 8662), is waived where defendant answered upon the merits the amended complaint filed in the Federal court, without questioning the jurisdiction. [Ed. Note-For other cases, see Courts, Cent. Dig. 1143-1149; Dec. Dig. § 431.] -WAIVER. 2. Neither the testimony of other wit nesses, offered by the patient, nor his own voluntary testimony as to his physical condition at the time of his examination by a physician, nor any averments in the pleadings, amount to a waiver of his privilege, under Ariz. Rev. Stat. 1901, § 2535, subd. 6, against the disclosure by the physician of any communications made by the patient with reference to any physical or supposed physical disease, or any knowledge obtained by personal examination of the patient, which, according to the proviso in that section, may be waived only in the event that the patient offers himself as a witness and voluntarily testifies with reference to the "communications" made by him to the physician. [Ed. Note. For other cases, see Witnesses, Cent. Dig. 1 769, 781, 782; Dec. Dig. § 219.] [No. 347.] judicial district of the then territory of Two matters only require particular discussion. The enabling act of June 20, 1910, under which Arizona was admitted as a state (36 Stat. at L. 577, chap. 310, § 33), provided in effect that actions which, at the date of admission, were pending in the territorial courts (other than the supreme Argued and submitted December 1, 1914. court), should be transferred to and pro Decided January 11, 1915. N ERROR to the United States Circuit Court of Appeals for the Ninth Circuit to review a judgment which affirmed a judg. ment of the District Court for the District of Arizona, in favor of plaintiff, in a suit under the Federal employers' liability act. Affirmed. ceed in the proper Federal court in cases where, if they had been begun within a state, the Federal court would have had exclusive original jurisdiction, and that where the cause of action was one of which the state and Federal courts would have concurrent jurisdiction, the action should be transferred to and proceed in the appropriate state court, but in this case might be See same case below, 125 C. C. A. 305. transferred to the Federal court upon ap207 Fed. 817. The facts are stated in the opinion. Messrs. John A. Garver and William C. McFarland for plaintiff in error. Mr. William M. Seabury for defendant in error. Mr. Justice Pitney delivered the opinion of the court: This action, brought by Clark against the railway company, was commenced in Jan plication of any party, to be made as nearly as might be in the manner provided for removal of causes from state to Federal courts. The present action being one of which the Federal and state courts have concurrent jurisdiction, it is insisted that upon the commencement of statehood, it should have been transferred to the proper state court, subject to removal to the Federal court upon application made in due form for •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes that purpose; that in fact the files and records in the territorial court were never transferred to the proper state court, or to any state court; and that a certain petition of plaintiff, which appears in the record, wherein he prayed for the removal of the cause from the state to the Federal court, was insufficient and inefficacious for the purpose, for want of compliance with certain of the requirements of the removal statute. It is further insisted that in the enabling act it was the intention of Congress to provide for the removal of actions from the state to the Federa' courts only in case they might have been removed if the action had not been commenced until after the admission of the territory as a state; and that, under the express prohibition contained in the amendment of § 6 of the employers' liability act, passed April 5, 1910 (36 Stat. at L. 291, chap. 143, Comp. Stat. 1913, § 8662), shortly before the passage of the enabling act, and which declares that "no case arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States" (re-enacted as § 28, Judicial Code [36 Stat. at L. 1094, chap. 231, Comp. Stat. 1913, § 1010]), actions of this character were not removable under the general provisions of § 33 of the enabling act. We need spend no time upon these questions, since there is no ground for denying the jurisdiction of the district court of the United States over the subject-matter, the objections urged are of such a nature that they might be waived, and the record shows that they were waived by the action of defendant in permitting the cause to proceed in the Federal court, and answering there upon the merits, without objection based upon the grounds now urged or any jurisdictional grounds. The action being one arising under a law of the United States, and the requisite amount being in controversy, the Federal district court had original jurisdiction under § 24, Judicial Code. The removal proceedings were in the nature of process to bring the parties before that court, and the voluntary appearance of the parties there was equivalent to a waiver of any formal defects in such proceedings. Mackay v. Uinta Development Co. 229 U. S. 173, 176, 57 L. ed. 1138, 1139, 33 Sup. Ct. Rep. 638. The case of United States v. Alamogordo Lumber Co. 121 C. C. A. 162, 202 Fed. 700, cited by plaintiff in error, is clearly distinguishable, for timely objection was there made. The second matter requiring mention is the alleged error of the trial court in excluding the evidence of two physicians called by defendant for the purpose of testifying to the results of a personal examination of plaintiff shortly after he received the injuries for which damages were claimed. The trial court based the rulings upon an Arizona statute (Rev. Stat. 1901, § 2535, subdiv. 6), which reads as follows: "6. A physician or surgeon cannot be examined, without the consent of his patient, as to any communication made by his patient with reference to any physical or supposed physical disease, or any knowledge obtained by personal examination of such patient: Provided, That if a person offer himself as a witness and voluntarily testify with reference to such communications, that is to be deemed a consent to the examination of such physician or attorney [sic]." A material part of the injury complained of was the loss of the sight of plaintiff's left eye; and because this was set forth in the pleadings, and upon the trial plaintiff testified personally in regard to his injuries, mentioning the loss of sight and pain in the eye, and called as a witness a nurse who attended him after the accident, and who testified as to the condition of the eye, it is insisted that plaintiff in effect consented to the examination of the physicians with respect to his condition. The argument is that the statute was intended to protect persons in the confidential disclosures that may be necessary in regard to their physical condition, but was not intended to close the lips of physicians where the patient voluntarily publishes the facts to the world. In support of this, plaintiff in error cites two cases from the New York court of appeals,-Morris v. New York, O. & W. R. Co. 148 N. Y. 88, 51 Am. St. Rep. 675, 42 N. E. 410, and Capron v. Douglass, 193 N. Y. 11, 20 L.R.A. (N.S.) 1003, 85 N. E. 827. But the New York statute 1 is materially different from that of Arizona. The pur 1 Extracts from the New York Code of Civil Procedure. |