The proposition rests upon the omission from the Judicial Code of the certain words in the act of 1888 through which in the quotation which we have previously made a line has been passed. But when paragraph 16 of § 24 of the Judicial Code and § of the act of 1888 are considered together, the omission of the words referred to serves at once to destroy the proposition here relied upon for these reasons: Section 4 of the act of 1888, as will be seen, opened with the provisions which excluded national banks from the Federal jurisdiction which other visions of paragraph 16 are comprehensively all-embracing, they must be held to be restrictive, and on the other hand, that because the provisions of the act of 1888 were re-enacted, they were repealed. As it follows that the court below was right in dismissing the bill for want of jurisdiction as a Federal court to consider it, its decree is therefore affirmed. (237 U. S. 671) W. H. SAWYER and Frances Sawyer, His v. RAYMOND S. GRAY and Sena Gray, His This case is governed by the decision in [No. 632.] 1915. PPEAL from the United States Circuit Court of Appeals for the Ninth Circuit to review a decree which aflirmed a decree of the District Court for the Western District of Washington, sustaining a demurrer to the bill in a suit to establish the ownership of real property, and to subject defendants holding under United States patents to a trust in favor of complainants. Reversed. See same case below, 129 C. C. A. 666, 213 Fed. 1022. wise would have attached to controversies concerning them. This being done, the statute proceeded to provide that the exclusion previously specified should not include certain classes of controversies which it was deemed best should come under the Federal jurisdiction, thus leaving those classes of cases under the general rule, since they were carved out by the last clause of the section from the provisions as to exclusion which were found in the first. In re-enact Argued April 22, 1915. Decided June 14, ing these provisions of the act of 1888 in paragraph 16 of § 24 of the Judicial Code, obviously to make the purpose of the reenacted statute clearer, just the opposite form of statement was resorted to, since paragraph 16 opens by conferring Federal jurisdiction only in those classes of cases which were kept within that jurisdiction by the concluding clause of § 4 of the act of 1888, and hence no jurisdiction was given as to the other classes of cases which were excluded from such jurisdiction by the act of 1888. The re-enacted section in other words, instead of generally stating what was excluded from jurisdiction and then carv ing out exceptions, as was done in the act of 1888, gave jurisdiction only in the cases where it was intended to give it, and then proceeded to declare that in all other cases within the contemplation of the section there should be no jurisdiction, thus making the lines clear and broad and leaving no room for controversy or doubt. Aside from this it is to be moreover observed that the This case is controlled by Daniels v. intention of Congress to make by the adop-Wagner, No. 239, 237 U. S. 547, 59 L. ed. tion of the Judicial Code so radical a change, 35 Sup. Ct. Rep. 740, recently decided, from the rule which had prevailed for so The suit was broa ht for the purpose of oblong a period is not to be indulged in with-taining a decree recognizing the claim of out a clear manifestation of such purpose. ownership of the complainants to the west Besides, as there is no ground for distin- half of section 32, township 11 north, range guishing between the restrictions as to juris- 4 east of the Willamette meridian, county diction imposed by paragraph 16 of § 24, of Lewis, state of Washington, and of furit must follow that the argument now made, ther having it decreed that the defendants, based upon the omission of the words which holding under patents of the United States, were found in the act of 1888, would apply were subject to a trust in favor of the comto all of paragraph 16, and therefore non plainants because the Land Department, by of the restrictions as to jurisdiction in that a mistake of law, had patented the land to paragraph would be operative. This in the defendants or their assignors when, if both aspects the contention must come to the law had been complied with, the patents this: that on the one hand, because the pro- should have been issued to the complainants. The facts are stated in the opinion. Messrs. Francis W. Clements, Evans Browne, and Alexander Britton for appellants. Messrs. H. H. Field and F. M. Dudley for certain appellees. Mr. Chief Justice White delivered the opinion of the court: said application was made the survey asked for by the state of Washington was no longer pending because it had been completed, and the state had made its selection of lands within the area of the survey, which selections did not include the land in question. The existence of notice, actual or constructive, and the want of good faith, was also charged as against the defendants concerning the fact of this application. It was moreover alleged that it had become a custom in the Department to allow persons who owned land which had been included in forest reserves, on full compliance with all the provisions of law, to give a power of attorney to make selections of lieu lands under the act of 1897, and that the papers establishing the surrender to the United States of the land and the power of attorney evidencing the right to make a new selection in lieu thereof were known as lieu scrip; but that the Department had passed an order suspending all right to make lieu entries based upon what was known as Hyde scrip, that is, the surrender by F. A. Hyde & Company of land situated in a reserve as a basis for the selection of lieu land. It was alleged that under this order, without rejecting the particular application of the complainants which was pending for action, the Land Department; in violation of law and the rights of the complainants, had patented the land covered by the second application to the defendants, or those under whom they held. Hence the relief which we have at the outset stated was prayed. Some of the defendants were the original stated. It was averred that at the time patentees and others held under assignments of right based upon such patents, and as to all the bill explicitly charged actual notice or such a state of fact as would constitute constructive notice and want of good faith. The facts as alleged in the complaint were briefly these: On March 29, 1900, the complainants, or F. A. Hyde & Company, under whom they held, applied to the local land officer at Vancouver, Washington, to enter 1,120 acres of unappropriated public lands under the act of June 4, 1897 [30 Stat. at L. 11, chap. 2], in lieu of lands in California owned by F. A. Hyde & Company, which had been included in the Pine Mountain and Zaca Lake Forest Reserve. The bill alleged that all the necessary steps to comply with the law and regulations concerning the selection of the lieu land had been complied with. It was further averred that at the time this application was filed there was pending in the local land office an application of the state of Washington for a survey of the township in which the lieu land applied for was situated to enable the state to make selections of land which it was entitled under the law to make, and which it was the duty of the state to make within sixty days after survey. It was alleged that the lieu land application was forwarded by the local land officers to the Commissioner of the General Land Office, as it was their duty under the law to do, and that the same was rejected by the Commissioner of the General Land Office on the ground that the land was not subject to the lieu entry because of the pendency of the application of the state for survey, and that the action of the Commissioner was affirmed by the Secretary of the Interior. The bill charged that under the law and the settled practice of the Land Department the rejection of the application was wrong, as it should have been held in abeyance to await the completion of the survey and the selection to be made by the state within the limits of the survey under its asserted rights, and, after the selection by the state, should have then attached to the land, provided the land was not included in the selec-state for a survey, and reliance is placed tion made by the state. The bill further upon that fact to establish that the decree alleged that on March 2, 1902, after the below rests upon an independent ground of action of the Secretary of the Interior above law and fact not involving the existence of stated, the complainants, or F. A. Hyde & the discretionary power passed upon in the Company, under whom they claimed, made Daniels Case. But conceding, for the sake a further application to be allowed to en- of the argument only, the soundness of the ter the land in controversy; that is, the contention, this does not control the case, west half of section 32, township 11 north, as the rights of the complainants are in range 4 east of the Willamette meridian in addition based upon the second application Lewis county, Washington, as lieu land, the to make the lieu entry, which, as we have land to which said entry related being in- seen, was filed after the survey and after cluded in the larger area previously applied the state had made such selections as it for and rejected under the circumstances' desired, and after the time for selections by The bill was demurred to for want of equity. The demurrer was sustained. The case was taken to the circuit court of appeals, where the judgment was affirmed, the court resting its opinion in express terms upon the ruling which had been previously made by it in Daniels v. Wagner, which ruling has been here since reversed in the case referred to at the outset. In the discussion at bar reference is made by the appellees to the first application to enter the land pending the request of the it had expired. The case, therefore, must necessarily rest upon the general action of the Department concerning what was known as Hyde scrip, and this, in view of the manner in which the right was asserted, necessarily raises the question of the existence of the discretionary power which was passed upon in the Daniels Case, a result clearly indicated by the action of the court below in basing its ruling in this case upon that which it had previously made in the Daniels Case. We think, therefore, that as our previous decision in the Daniels Case unmistakably establishes that the ground upon which the court maintained the demurrer in this case was an erroneous one, it must follow, as there is no ground independent of that upon which the action of the court can be sustained, that the decree must be reversed and the case remanded for must be reversed and the case remanded for further proceedings in accordance with this opinion. Reversed. (.. U. 8. 599) KANSAS CITY SOUTHERN RAILWAY v. given by the original act to a person suffering injury shall survive to the personal representative for the benefit of the same bene ficiaries in whose behalf the right of action [Ed. Note. For other cases, see Death, Cent. 3. A judgment under the Federal employers' liability act of April 22, 1908 (35 Stat. at L. 65, chap. 149, Comp. Stat. 1913, § 8657), as amended by the act of April 5, 1910 (36 Stat. at I.. 291, chap. 143, Comp. Stat. 1913, § 5662), which includes a recovery both for the decedent's conscious pain and suffering and for the pecuniary loss sustained by the relatives or next of kin for whose benefit the action was brought will not be reversed by the Federal Supreme Court on writ of error to a state court because the jury was not required to specify in its verdict the amount awarded on account of each distinct liability, where the verdict seems in harmony with local prac tice and has been approved by the courts below. [Ed. Note.--For other cases, see Courts, Cent. Dig. 926-932; Dec. Dig. § 352.] SAM E. LESLIE, Administrator of the Es APPEAL AND ERROR (§ 14)-DEAT!! (§ tate of Leslie Old, Deceased. REMOVAL OF CAUSES (§ 3) - DIVERSE 1. The removal from a state court to a Federal court, upon the sole ground of diversity of citizenship, of an action brought under the Federal employers' liability act of April 22, 1908 (35 Stat. at L. 65, chap. 149, Comp. Stat. 1913, § 8657), as amended by the net of April 5, 1910 (36 Stat. at L. 291, chap. 143, Comp. Stat. 1913, § 8662), is prohibited by the provisions both of such amendatory act and of the Judicial Code, § 28, that no such action brought in any state court of competent jurisdiction shall be removed to any court of the United States. [Ed. Note. For other cases, see Removal of Causes, Cent. Dig. § 4, 5; Dec. Dig. § 3.*] DEATH (§§ 82, 85° ) --DAMAGES UNDER FEDERAL EMPLOYERS' LIABILITY ACT-CONSCIOUS SUFFERING-PECUNIARY LOSS TO BENEFICIARY. 95)-GROUND FOR REVERSAL-INSTRUC TION AS TO DAMAGES. 4. It is reversible error to instruct the Jury that in fixing the damages in an action under the Federal employers' liability act of April 22, 1908 (35 Stat. at L. 65, chap. 149, Comp. Stat. 1913, § 8657), as amended by the act of April 5, 1910 (36 Stat. at L. 291, chap. 143, Comp. Stat. 1913, § 8662), with reference to the pecuniary loss resulting from decedent's death to the relative or next of kin for whose benefit the action is brought, the age, health, habits, occupation, expectation of life, mental and physical disposition to labor, the probable increase or diminution of that ability with the lapse of time, and the deceased's earning power and rate of wages should be taken into consideration, and that from the amount thus ascertained the personal expenses of the deceased should be deducted, and the remainder, reduced to present value, should be the amount of recovery if the verdiet should be for the plaintiff. [Ed. Note. For other cases, see Appeal and Error, Cat. Dig. §§ 4219, 4221-4224; Dec. Dig. 1064 Death, Cent. Dig. §§ 108, 109, 111-115, 120; Dec. Dig. § 95.) [No. 538.] 1915. 2. The recovery in an action brought by the personal representative of a deceased railway employee under the employers' liability act of April 22, 1908 (35 Stat. at L. 65, chap. 149, Comp. Stat. 1913, § 8657), as amended by the act of April 5, 1910 (36 Argued April 22, 1915. Decided June 21, Stat. at I.. 291, chap. 143, Comp. Stat. 1913, § 8662), may include both damages for the decedent's conscious pain and suffering during the period intervening between fatal injuries and death, and damages for the pecuniary loss sustained by the relative or next of kin for whose benefit the action is brought, in view of the provision of the amendatory act that any right of action ERROR to the Supreme Court of the State of Arkansas to review a judgment which affirmed a judgment of the Circuit Court of Little River County, in that state, in favor of plaintiff in an action under the Federal employers' liability act. Reversed. •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes ↑ Act March 3, 1911, c. 231, 36 Stat. 1094 (Comp. St. 1913, § 1010). See same case below, 112 Ark. 305, 167 | be removed to any court of the United S. W. 83. The facts are stated in the opinion. Messrs. James B. McDonough, Frank H. Moore, and Samuel W. Moore for plaintiff in error. Mr. W. P. Feazel for defendant in error. States." The language of both amendment and Judicial Code, we think, clearly inhibits removal of a cause arising under the act from a state court upon the sole ground of diversity of citizenship. The same conclusion has been announced frequently by lower Federal courts. Symonds v. St. Mr. Justice McReynolds delivered the Louis & S. E. R. Co. 192 Fed. 353, 356; opinion of the court: In May, 1913, Sam E. Leslie, administrator, brought this suit under the Federal employers' liability act (35 Stat. at L. 65, chap. 149, Comp. Stat. 1913, § 8657), as amended April 5, 1910 (36 Stat. at L. 291, chap. 143, Comp. Stat. 1913, § 8662), against the Kansas City Southern Railway Company in the circuit court, Little River county, Arkansas, alleging that the injury and death of Leslie Old (March 24, 1913) resulted from its negligence, and demanding $10,000 for pain and suffering endured by deceased and $15,000 pecuniary damage to the wife and young child. The company unsuccessfully sought to remove the case; there was trial to a jury and verdict for $25,000 without apportionment, a remittitur of $7,000, and a final unqualified judgment in favor of the administrator for $18,000, which the supreme court of Arkansas affirmed (112 Ark. 305, 167 S. W. 83). Three substantial assignments of error demand consideration. 1. The deceased and his administrator were citizens and residents of Arkansas. The railway company, a Missouri corporation, seasonably set up nonresidence and demanded removal of the cause to the United States district court. Its petition therefor was denied and this is now assigned as error. The above-mentioned amendment of 1910 Strauser v. Chicago, B. & Q. R. Co. 193 Fed. 293, 294; Saiek v. Pennsylvania R. Co. 193 Fed. 303; Lee v. Toledo, St. L. & W. R. Co. 193 Fed. 685, 686; Ullrich v. New York, N. H. & H. R. Co. 193 Fed. 768, 770; Hulac v. Chicago & N. W. R. Co. 194 Fed. 747, 749; McChesney v. Illinois C. R. Co. 197 Fed. 85, 87; De Atley v. Chesapeake & O. R. Co. 201 Fed. 591, 596; Kelly v. Chesapeake & O. R. Co. 201 Fed. 602, 605; Rice v. Boston & M. R. Co. 203 Fed. 580, 581; Teel v. Chesapeake & O. R. Co. 47 L.R.A. (N.S.) 21, 123 C. C. A. 240, 204 Fed. 918, 921; Patton v. Cincinnati, N. O. & T. P. R. Co. 208 Fed. 29, 30; Eng v. Southern P. Co. 210 Fed. 92, 93; Burnett v. Spokane, P. & S. R. Co. 210 Fed. 94, 95. A different view expressed in Van Brimmer v. Texas & P. R. Co. 190 Fed. 394, decided October, 1911, cannot be accepted. 2. It is said the court below erred in approving the charge permitting recovery for pecuniary loss to widow and child and also for conscious pain and suffering endured by deceased in the brief period-less than two hours-between injury and his death. This point having been considered, the right to recover for both these reasons in one suit was recently sustained. St. Louis, I. M. & S. R. Co. v. Craft, 237 U. S. 648, 59 L. ed. -, 35 Sup. Ct. Rep. 704 [announced June 1, 1915]. It is further objected that as the declaradeclares: "The jurisdiction of the courts tion set up two distinct and independent of the United States under this act shall liabilities springing from one wrong, but be concurrent with that of the courts of the based upon different principles, the jury several states, and no case arising under should have been directed to specify in their this act and brought in any state court verdict the amount awarded, if any, in reof competent jurisdiction shall be removed spect of each. This objection must be overto any court of the United States." Section ruled. Of course, in causes arising under 28, Judicial Code, effective January 1, 1912 this statute trial courts should point out [36 Stat. at L. 1095, chap. 231, Comp. Stat. | applicable principles with painstaking care 1913, § 1010], specifies causes removable and diligently exercise their full powers to from state courts by nonresident defendants and concludes: "Provided, That no case arising under an act entitled 'An Act Relating to the Liability of Common Carriers by Railroad to Their Employees in Certain Cases,' approved April twentysecond, nineteen hundred and eight, or any amendment thereto, and brought in any state court of competent jurisdiction shall prevent unjust results; but its language does not expressly require the jury to report what was assessed by them on account of each distinct liability, and in view of the prevailing contrary practice in similar proceedings we cannot say that a provision to that effect is necessarily implied. As the challenged verdict seems in harmony with local practice and has been approved by the (238 U. S. 586) courts below, the judgment thereon is not | E. L. BRAND, JR., and E. Belle Brand Atopen to attack here upon the ground speci fied. well, as Surviving Executors of the Estate of Edwin L. Brand, Deceased, Plffs. in Err., V. UNION ELEVATED RAILROAD COM- CONSTITUTIONAL LAW ($ 280*)-DUE PRO- The property rights of an abutting 3. Complaint is also made of the following instruction-No. 10-given at the administrator's instance: "If you find for "If you find for the plaintiff, you should assess the damages at such sum as you believe from a preponderance of the evidence would be a fair compensation for the conscious pain and suffering, if any, the deceased underwent from the time of his injury until his death and such further sum as you find from the evidence will be a fair and just compensation with reference to the pecuniary loss resulting from decedent's death to his widow and child; and in fixing the amount of such pecuniary loss, you should take into consideration the age, health, habits, occupa- j tion, expectation of life, mental and physical disposition of labor, the probable increase or diminution of that ability with the lapse of time and the deceased's earn ing power and rate of wages. From the amount thus ascertained the personal expenses of the deceased should be deducted and the remainder reduced to its present value should be the amount of contribution for which plaintiff is entitled to recover, if your verdict should be for the plaintiff." The Arkansas supreme court expressly ap proved this upon authority of St. Louis, I. M. & S. R. Co. v. Sweet, 60 Ark. 550, 31 S. W. 571. Recent opinions of this court have laid down the rule concerning the measure of pecuniary damages to benefi- Argued May 6 and 7, 1915. Decided June ciaries which may be recovered under the act. A recovery therefor by the administrator is in trust for designated individuals, and must be based upon their actual pecuniary loss. Michigan C. R. Co. v. Vreeland, 227 U. S. 59, 68, 57 L. ed. 417, 420, 33 Sup. Ct. Rep. 192, Ann. Cas. 1914, 176: American R. Co. v. Didricksen, 227 U. S. 145, 149, 57 L. ed. 456, 457, 33 Sup. Ct. Rep. 224; Gulf, C. & S. F. R. Co. v. McGinnis, 228 U. S. 173, 175, 357 L. ed. 785, 786, 33 Sup. Ct. Rep. 426, 3 N. C. C. A. 806; North Carolina R. Co. v. Zachary, 232 U. S. 248, [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 877-890; Dec. Dig. § 280.] [No. 268.] 21, 1915. ERROR to the Supreme Court of the State of Illinois to review a judgment which affirmed a judgment of the Appellate Court for the First District, affirming a judgment of the Superior Court of Cook County, in that state, in favor of defendants in an action by an abutting owner to recover for the loss in market value consequent upon the construction and operation of an elevated railway in the street. Af firmed. See same case below, 258 Ill. 133, L.R.A. 256, 257, 58 L. ed. 591, 594, 595, 34 Sup., 101 N. E. 247, Ann. Cas. 1914B, 473. Ct. Rep. 305, Ann. Cas. 19140, 159; Norfolk & W. R. Co. v. Holbrook, 235 U. S. 625, 629, 59 L. ed. —, 35 Sup. Ot. Rep. 143, 7 N. C. C. A. 814. Instruction No. 10 conflicts with the approved rule, and the probable result was materially to prejudice plaintiff in error's rights. The judgment of the court below is reversed and the cause remanded for further proceedings not inconsistent with this opin ion. Reversed. The facts are stated in the opinion. Messrs. Roger L. Foote, Francis W. Mr. Justice McReynolds delivered the opinion of the court: By ordinary warranty deed from Calvin F. Rice, dated November 13, 1889, Edwin L. Brand became owner in fee simple of a •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |