require certain preliminary information before permitting a witness to relate a conversation he had with the defendant, and 7, criticizing the reference to certain persons as being "successful" rather than "practical" oil men, are thought to be too unsubstantial to require discussion.

[2] Specifications 2, 3, and 8 relate to the use of certain books purporting to be, and identified by a witness as being, the account books and records of the company. The identifying witness was a bookkeeper employed by the defendant for the company, to set up its books. She acted under his direction, and made the entries from sources and data furnished or designated by him. If they were measurably fragmentary, that was for the reason, as explained by her, that the information he supplied was incomplete. They were offered only as a preliminary to the testimony of an accountant, who had analyzed and summarized their contents, and apparently they did not go to the jury, but were produced in order that from them the defendant could check the tabulated data so prepared and used by the accountant in giving his testimony. Substantially the only purpose of the testimony was to show the relation between the receipts from unit sales and the sales expenses. Technically,

at least, the company was not a corporation,

but aside from that consideration we think that what was done finds warrant in Cullen

v. United States (C. C. A.) 2 F. (2d) 524, and Osborne v. United States (C. C. A.) 17 F.(2d) 246. It may be added that one of the duties of defendant as a trustee was to cause to be kept complete and accurate books of account, and if, as a result of his neglect in that respect, the books are somewhat fragmentary, he is scarcely in a position to complain, so long as it appears that they accurately embody all the data he supplied.

[3] Specifications 9 and 10 involve reception of a written testimonial to the high character and business capacity of defendant, purporting to have been given by one King, who seemingly was an oil operator of some prominence in Oklahoma. A witness, Fidele Meyer, testified that at the outset he was one of the trustees of the Brady Sure Shot Company, that he was 26 years of age, and that he and his mother, whose funds apparently he was handling, invested in or advanced to the enterprise approximately $50,000, part of which was for trust units. He further testified that at some time, inferably during the early stage of the enterprise, the defendant had exhibited to him a bunch of letters,

including this testimonial. Defendant's only purpose in so doing must have been to inspire confidence and induce investment. It is quite immaterial that the letters were not shown directly to Meyer's mother; he was her agent. As a witness King testified that he had not signed the testimonial, and, in direct conflict to statements contained therein, that he scarcely knew defendant. The evidence was clearly relevant to the issues in controversy.

[4] 11. What part of sales receipts was absorbed in sales expenses was a material issue. Expenses were incurred in the maintenance by the company of numerous offices in and in the vicinity of San Francisco. In allocating such expenses it became necessary to know for what purpose the several offices were maintained, whether for sales or for operation. There was no error in permitting Casperson, one of the trustees, to testify directly upon that subject. [5] 12. Because the district attorney, in arguing for the right to put in certain testimony relative to an organization, called the Mutual Drilling Company, in which defendant was heavily interested, asserted that he was going to show diversion of the Sure Shot Company's funds to that company, the later refusal of the court to permit

defendant's counsel to go at length into the financial affairs of the Drilling Company is assigned as error. But at and immediately after the district attorney's statement it was neutralized by adverse expressions from the court, and, in fact, the government made no such showing.

Specification 13, involving declination of offers to show that, after the event, defendant had made some attempts at reparation, and No. 14, involving reception of testimony in rebuttal in respect to statements made by defendant which he testified he did not remember, are without substance; nor can we say that the court abused its discretion in the limitation put upon the length of cross-examination in the particulars pointed out under specification 16.

At the close of the final instructions to the jury, the court put to counsel for the defendant the direct question whether he desired any exceptions, to which he replied, "No." Even if it were conceded that there is some ground for the criticism that in certain respects the instructions were argumentative, there was no such plain error as, in the absence of exceptions, would warrant review.

Though no exceptions were taken to the failure of the court to give them, we have carefully examined the instructions requested by defendant. Of those numbered 1 to 12, inclusive, it may be said that some of them are not even mentioned in the brief, and none of them is argued. They all have to

LOUISVILLE & N. R. CO. et al. v. CHATTERS.

Circuit Court of Appeals, Fifth Circuit. June 2, 1928.

No. 5169.

and in the main their subject-matter was sufficiently covered by the instructions given. Both 9 and 10 would, if not qualified or amplified, be likely to mislead, and the latter is appropriate only to a case resting upon circumstantial evidence.

[6] The other requests, 13 to 18 inclusive, are argued together and may be so disposed of. They are to the effect that defendant could not be found guilty unless he acted with bad intent, and that untrue representations made innocently, and mere carelessness or imprudence in corporate management, would not be sufficient upon which to rest a conviction. While no formal instruction of that tenor was given, we are convinced that no reasonably intelligent juror could have failed to understand from the charge generally that such is the law. After reading to the jury the statute, which in itself conveys such an impression, the court explained that "the device or scheme or artifice which the law has in mind is any plan by false representation, false promises, false pretenses or fraudulent representations, to gain money," etc. To the ordinary mind this language undoubtedly conveys the notion, not of bad judgment merely, not of unwitting error or of exuberant confidence, but of bad faith and intentional deceit. Discussing the advertising matter sent out the court said: "And if it is false, and was known to the defendant to be false," etc., and in another connection it was said, "You will take that into consideration in determining the good faith of the defendant." Again, in speaking of still another incident, "Maybe it was only negligence; and, if it was no more than negligence, he would be guilty of a breach of trust, but not guilty of a fraudulent scheme." And still again: "That the company failed, that

is not vital either. It is a circumstance."

[7] In the course of his rambling brief, defendant comments upon other "points," including the denial of his application for a continuance, the limitation by the court of his cross-examination in certain instances, and the interrogation of jurors touching their qualifications, but in such matters the trial judge necessarily exercises a measure of discretion, and no abuse is shown. Judgment affirmed.

mine jurisdiction of federal courts and district in which suit may be brought (Jud. Code, §§ 24 (1), 51; 28 USCA §§ 41(1), 112).

Federal statutes (Judicial Code, §§ 24(1), 51: 28 USCA §§ 41(1), 112), not state statutes, determine jurisdiction of federal courts, and district in which suit within jurisdiction of such court may be brought.

2. Courts 274(14)-Federal court's Jurisdiction of suit against foreign corporation is not dependent on asserted cause of action being one arising in state of suit, or out of business transacted therein (Jud. Code, §§ 24 (1), 51; 28 USCA §§ 41(1), 112).

Federal court's jurisdiction, under Judicial

Code, 88 24(1), 51 (28 USCA §§ 41(1), 112), of suit based on transitory cause of action brought by citizen of district in which suit is brought against corporation organized under law of another state, is not dependent on asserted cause of action being one which arose in state in which suit is brought, or out of business transacted therein; but attaching of federal court's jurisdiction in such case is dependent on corporation sued doing business in state in which suit is brought, and having there an agent on whom process against it properly may be and is served.

3. Appeal and error

274(1)-Exception to jurisdiction, alleging defendant was doing business in state and had agent for service of process therein, raised no question regarding service.

Exception to court's jurisdiction, which alleged that defendant was doing business in Louisiana and had appointed an agent for service of process within that state, raised no question as to effectiveness of service of process against defendant, if suit was one within court's jurisdiction.

4. Courts 274(3)-Action for personal injuries against corporation of another state could be brought in district of plaintiff's residence, though accident occurred outside (Jud. Code, §§ 24(1), 51; 28 USCA §§ 41(1), 112).

Passenger's action against railroad corporation for personal injuries, being transitory in its nature, and jurisdictional amount being involved, and action being between citizens of

different states, suit could be maintained in district in which plaintiff was resident, under Judicial Code, §§ 24(1), 51 (28 USCA §§ 41(1), 112), even though it arose out of alleged accident occurring outside state.

ground of vagueness as to exact time alleged injury to plaintiff was sustained held not prejudicial, where defendant's train conductor and other employees testified that glass-breaking incident occurred on certain date, and it was admitted that plaintiff was in car in which that incident occurred.

6. Carriers308-Initial carrier repairing defects in cars was liable for injury to passenger occurring on another line, if negligent failure

to perform task caused or contributed to injury.

Where initial carrier, under arrangement for operation of train, cleaned, repaired, and inspected coach in which passenger sustained alleged injury, as well as other cars in train, prior to its departure, and passenger sustained alleged injury to eyes as result of breaking of window in car, as result of outside screen of one window crashing against and breaking glass of another window, initial carrier was liable for injury complained of, if its negligent failure to properly perform its task caused or proximately contributed to injury occurring on part of through route operated by another railroad.

7. Carriers 321 (20)-Instruction that, If ticket sold passenger contained certain provision, initial carrier was not liable for injuries sustained on another line held properly refused.

In action by passenger for injury sustained when window glass in railroad car broke as result of loose screen, where evidence showed initial carrier, under arrangement for operation of train, repaired and inspected coaches before departure, instruction that, if ticket sold by initial carrier contained provision that selling carrier was not responsible beyond its own line, and that accident occurred on part of through route operated by another railroad, and if there was no fault or negligence of initial carrier, causing or contributing to accident, verdict must be for such carrier, held properly refused.

8. Appeal and error 1050(1)-Plaintiff's testimony that doctor had stated plaintiff was suffering with traumatic conjunctivitis held not prejudicial error.

In action by passenger against railroad companies for injuries to eye, permitting plaintiff to testify that doctor stated that he was suffering with traumatic conjunctivitis, and to go to see another doctor, held not prejudicial error, in view of testimony of physicians.

9. Appeal and error 1050(1)-Where plain

10. Carriers 320(1)-Whether passenger sustained injury from broken window glass caused by railroad companies, and sustained recoverable pecuniary damages, held for jury.

In action by passenger for injuries alleged to have been sustained when outside screen on railroad car became loose and crashed against window, breaking glass, question whether plaintiff was injured as alleged, and whether each of defendant railroad companies was chargeable with fault causing or proximately contributing to injury, and whether plaintiff sustained recoverable pecuniary damages in consequence of injury, held for jury.

In Error to the District Court of the United States for the Eastern District of Louisiana; Louis H. Burns, Judge.

Action by Aaron A. B. Chatters against the Louisville & Nashville Railroad Company and another. Judgment for plaintiff (17 F. (2d) 305), and defendants bring error. Affirmed.

J. Blanc Monroe, Monte M. Lemann, and Walter J. Suthon, Jr., all of New Orleans, La., for plaintiff in error Southern Ry. Co.

George Denegre, Victor Leovy, Henry H. Chaffe, Harry McCall, and J. Hy Bruns, all of New Orleans, La., for plaintiff in error Louisville & N. R. Co.

George Piazza, of New Orleans, La., for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge. This was an action by the defendant in error, a citizen of Louisiana (herein referred to as the plaintiff), against the plaintiffs in error, the Louisville & Nashville Railroad Company, a Kentucky corporation (herein referred to as the L. & N.), and the Southern Railway Company, a Virginia corporation (herein referred to as the Southern), to recover damages for injuries sustained by plaintiff as the result of glass getting into his eyes through the breaking of a window in the railroad car in which, as a passenger, he was traveling on a through train called the Piedmont Limited

from New Orleans, La., to Washington, D. C., having a through coupon ticket, bought from the L. & N., calling for carriage over its line from New Orleans to Montgomery, Ala., over the line of the Atlanta & West Point Railroad Company from Montgomery to Atlanta, Ga., and over the line of the Southern from Atlanta to Washington. The injury occurred when the train was on the Southern's line, and about two hours before it reached Washington, as a result of an outside screen on one window of the car in which plaintiff was riding becoming detached on

one side, and crashing against and breaking the glass of another window. The Southern excepted to the court's jurisdiction on the ground stated below. The L. & N. set up the defense that it was not liable, because the injury occurred while the plaintiff was on the line of the Southern. Both defendants complain of rulings of the court on evidence, and in giving and refusing instructions to the jury.

[1-4] The Southern's exception to the court's jurisdiction was based on the ground that the cause of action made the basis of the suit does not arise out of any act occurring in Louisiana, or out of any business done in that state by the Southern, but arises out of an alleged accident occurring outside of LouisiThe following provision of the Louisiana statute which was in force when this suit was brought was relied on as the basis of the exception mentioned:

ana.

"The appointment of the agent or agents or officer upon whom service of process may be made shall be contained in a written power of attorney accompanied by a duly certified copy of the resolution of the board of directors of said corporation consenting and agreeing on the part of the said corporation that any lawful process against the same which is served upon the said agent or officer shall be a valid service upon said corporation -and that the authority shall continue in force and be maintained as long as any liability remains outstanding against said corporation growing out of or connected with the business done by said corporation in this state." Act No. 184 of 1924, § 2.

The language of this provision indicates a legislative intention to make the service on the designated agent of "any lawful process" a valid service on the corporation appointing such agent, whether the suit in which the process issued is or is not based on a cause of action arising in Louisiana. It seems that the purpose of the concluding clause of the provision was, not to restrict the agency so long as the corporation continues to do business in the state, but to continue the agency in force after the corporation ceases to do business in the state "as long as any liability remains outstanding against said corporation growing out of or connected with the business done by said corporation in this state."

But, whether that statute does or does not have the meaning contended for by counsel for the Southern, the court had jurisdiction of the suit, because it was between citizens of different states and involved the jurisdictional sum or value (Judicial Code, § 24 (1), 28 USCA § 41 (1), and the suit was subject

to be brought in the court below under the provision of section 51 of the judicial Code (28 USCA § 112), "where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant." Federal, and not state, statutes determine the jurisdiction of federal courts, and the district in which a suit within the jurisdiction of such court may be brought. Barrow Steamship Co. v. Kane, 170 U. S. 100, 18 S. Ct. 526, 42 L. Ed. 964. A federal court's jurisdiction of a suit, based on a transitory cause of action, brought by a citizen of the district in which the suit is brought against a corporation organized under the law of another state, is not dependent on the asserted cause of action being one which arose in the state in which the suit is brought or out of business transacted therein. The attaching of the federal court's jurisdiction in such a case is dependent upon the corporation sued doing business in the state in which the suit is brought and having there an agent upon whom process against it properly may be and is served.

The exception under consideration is not based on the fact that the Southern was not

doing business in Louisiana when the cause of action asserted arose and when the suit was brought, or on the person on whom the process in this suit against the Southern was served not being an agent of the Southern authorized to receive service of process against it to Louisiana. The exception alleged that the Southern was doing business in Louisiana, and had appointed an agent for the service of process within that state. That pleading raised no question as to the effectiveness of the service of process against the Southern, if the suit, so far as the Southern is concerned, is one within the court's jurisdiction. The cause of action asserted being transitory in its nature, the court's jurisdiction being founded only on the fact that the action is between citizens of different states, and the plaintiff being a resident of the district in which the suit was brought, the suit was subject to be brought in that district. Decisions on the subjects of what constitutes such doing of business by a corporation in a state other than that of its domicile as to make the corporation suable in such state, and of what constitutes an effective service of process against the corporation in such a suit, are not pertinent to the question raised by the exception under consideration. We are of opinion that the court did not err in overruling that exception.

[5] The Southern complains of the action of the court with reference to a suggestion, made upon the overruling of the above considered exception, that the Southern was entitled to plead vagueness. Upon the making of that suggestion, the court stated, "Exception overruled," and gave the defendants 10 days to answer the petition on the merits. It seems that the court treated the suggestion as an exception to the petition on the ground of vagueness, and overruled that exception. In argument it was suggested that the petition was vague, in that it alleged that plaintiff purchased the described ticket "on or about the 26th day of January, 1925," and boarded the train on which he traveled on the day following the purchase of the ticket. Vagueness in no other respect was attributed to the petition.

Even if the petition properly could be considered to be subject to objection on the ground of vagueness, the record negatives the conclusion that the Southern was harmed by the ruling in question. While the petition indicated a lack of certainty on the part of the pleader as to the exact date of the injury alleged, it informed the defendants of the approximate date of the glass-breaking incident mentioned. It was disclosed in the * trial that, from the time the suit was brought the Southern had at hand means of knowing the exact time of the occurrence of the incident described in the petition. Its train conductor and other employees testified that such an incident occurred in the early morning of January 28, 1925, and it was admitted that plaintiff was in the car in which that incident occurred. It is apparent that the Southern was not prejudiced or misled by the petition's lack of definiteness as to the exact time the alleged injury to plaintiff was sustained, and that the judgment is not subject to be reversed because of the last-mentioned ruling.

[6,7] The ground of the L. & N.'s abovementioned defense is disclosed in the following requested charge, which sets out a provision of the ticket on which plaintiff was traveling:

"I charge you that, if you find that the ticket sold by the defendant Louisville & Nashville Railroad Company, as initial carrier, to the plaintiff, Aaron A. B. Chatters, contained the following provision: 'In selling this ticket and checking baggage thereon, the selling carrier acts only as agent and is not responsible beyond its own line' or substantially that language, and if you find that the accident complained of occurred on a part of the through route operated by a railroad

other than the Louisville & Nashville Railroad Company, and if you find that there was no fault or negligence of the Louisville & Nashville Railroad Company, causing or contributing to the said accident, then and in that event your verdict should be in favor of the Louisville & Nashville Railroad Company, and against the plaintiff, in so far as said Louisville & Nashville Company is concerned."

Undisputed evidence showed the following: The Piedmont Limited is a through train, run between New Orleans and Washington, consisting of cars furnished by the several railroad companies over whose lines the train runs; the coach in which plaintiff traveled being furnished by the Southern. Under the arrangement for the operation of that train the L. & N. cleaned, repaired, and inspected that coach, as well as other cars in the train, prior to its departure from New Orleans. The screen which caused the accident was fastened by means of two hinges on one side and a thumbscrew on the other side. Prior to the train's departure from New Orleans the window screens were opened by the L. & N.'s employees at New Orleans in order to clean the windows, the thumbscrews being removed for that purpose, and the screens were closed after the windows were cleaned, and the cars in the train were inspected by L. & N. employees after the screens had been opened and closed, and prior to the departure of the train. The L. & N. undertook to repair any defects disclosed while the cars were in its charge at New Orleans, the expense of such repairs to cars contributed by the Southern being chargeable against the Southern. Other inspections were made at several points passed by the train on its journey from New Orleans to Washington; such inspections, so far as they concerned the thumbscrews used to hold the screens in place, consisting in employees looking at the screens and their fastenings as they walked past the windows, the screens or the thumbscrews used to hold them in place not being touched, if nothing wrong or out of repair was disclosed by looking at them. Under the arrangement for the operation of the Piedmont Limited the L. & N. undertook the task of cleaning the windows of the car in which plaintiff traveled, and of replacing and refastening the screens on those windows in preparation for the journey from New Orleans to Washington. The L. & N. was liable for the injury complained of, if its negligent failure properly to perform that task caused or proxi mately contributed to that injury.

Under the charge given by the court, the