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removal of a cause is in proper form, and the facts on which the application is founded are made to appear according to the requirement of the act, the party is entitled to a right to have the cause removed under the law of the United States, and the judge of the state court has no discretion to withhold the right. And when on application for the removal, it is shown that the case is one embraced by the act, and that the party has complied with the required conditions, it is the duty of the state court to proceed no further in the cause," and every step further taken in the case, whether in the same court or in an appellate court, is coram non judice, and of course nugatory. See also Kanouse v. Martin, 15 Howard 198. Submitting to the authority of the Act of Congress and of the decisions of the Supreme Court of the United States, I have no other discretion than to decide that the clerk of the Circuit Court of Dane county was not justified in withholding the transcript from the plaintiff, either under the prohibition of the court, or by reason of the appeal after acceptance of the surety, and the order of removal of the cause to this court.
I will dispose of the remaining positions of the defendant's counsel as if upon a motion to remand the cause to the Dane Circuit Court.
It is objected that all the defendants are not citizens of the state of Wisconsin. Levi B. Vilas and Esther G. Vilas, his wife, are the principal party defendants. They are the parties to the mortgage in suit. It is alleged that Martin T. Vilas, one of the defendants, is a citizen of the state of Vermont, and is the owner of the equity of redemption of the mortgaged premises. Thomas Reynolds and Leonard J. Farwell, the remaining defendants, are citizens of this state. It is set out in the petition for removal that the persons named as defendants, except Levi B. Vilas and wife, have been either personally served with process issued in the cause, or have voluntarily entered their appearance, and that all the defendants except Levi B. Vilas have by the rules and practice of the court confessed and admitted the plaintiff's cause of action, by not answering the complaint of plaintiff, as required by law and rules and practice of the court. The state court finds that in this action now pending there is a controversy between Jay Camiah Akerly, plaintiff, and Levi B. Vilas, one of the defendants. From this it would seem that the allegation of the petition that the complaint had been taken as confessed against all the
defendants except Levi B. Vilas is correct. The service and appearance of those defendants may possibly require them to appear and answer a new bill to be brought in this court, or in default of an answer to let the bill be taken as confessed against them. But whether such be the practice or not I need not now determine. At the final hearing a question may be raised whether a decree can be made irrespective of these defendants. At present they do not appear to be necessary parties. See Wood and Others v. Davis, 18 Howard 457.
Another objection to the removal of the cause to this court is, that the application was not made “before the final hearing or trial in the state court."
It appears from a report of the case in 21 Wisconsin Rep. 88, that the suit is for foreclosure of a mortgage given by Levi B. Vilas and wife to secure the payment of certain bonds. That the cause came on to be heard between the plaintiff and Vilas, the defendant, and a decree was rendered against the plaintiff, the court holding that the bonds and mortgage were invalid, from which decree the plaintiff appealed to the Supreme Court. And the defendant also appealed for alleged error of the court in striking out his counter claims and rejecting evidence in support of them. The Supreme Court decided that the bonds and mortgage were valid, and that one of the counter claims was improperly stricken out, and reversed the judgment of the Circuit Court on both appeals. The cause came on a second time to be tried before the Circuit Court, when a decree was rendered in favor of plaintiff, from which defendant Vilas appealed upon the ground of the rejection by the court of a certain counter claim set up in his answer. The Supreme Court reversed that judgment or decree, and remanded the cause to the Dane Circuit Court for further proceedings according to law. If the cause had been finally determined by either judgment of the Circuit Court, or by order of the Supreme Court, then the application for removal would not have been filed before the final hearing or trial.” But the last order of the Supreme Court reversing the judgment of the Circuit Court and remanding the cause to that court for further proceeding according to law, opened the whole case to litigation, the same as if no judgment had ever been rendered. The Supreme Court in effect ordered a venire facias de novo, which required the Circuit Court to hear the cause as if no hearing or trial had taken
place. The whole proceedings were in fieri when the petition for removal was presented to the Circuit Court. I am therefore of the opinion that the petition was presented before the final hearing or trial of the cause.
The motion of plaintiff is granted.
Superior Court of Massachusetts. Worcester.
GEORGE W. SAWYER v. UNITED STATES CASUALTY COMPANY.
The words "totally disabled from the prosecution of his usual employment," in an accident insurance policy, mean wholly disabled from doing substantially all kinds of his accustomed labor, to some extent. A disability that prevents his doing as much in a day's work as before is not total, but one that entirely prevents his doing certain portions of his accustomed work is total, though there are other portions that he is able to do.
This was an action upon a policy of insurance against injury by accident, containing the following clause:-“ If the said assured shall sustain any personal injury which shall not be fatal, but which shall absolutely and totally disable him from the prosecution of his usual employment, then, on satisfactory proof of such injury, compensation shall be paid him at the rate of ten dollars per week so long as he shall be totally disabled as aforesaid in consequence of such injury; provided, however, that, for any single accident, such compensation shall not be extended over a period exceeding twenty-six weeks.”
The plaintiff claimed compensation for the full period, and the defendants denied his right to recover at all.
The plaintiff, who was a farmer, was in his barn unloading his wagon of corn in the stalk, and hanging the corn upon the beams. He was standing about fourteen feet from the floor upon a plank, which rested on the rounds of two ladders leaning against the hay piled in bays on each side of the barn floor. While reaching up to arrange the corn, one of the ladders slipped on the hay, and the plaintiff fell to the barn floor, striking his back against the corner of the wagon. For some days he suffered great pain, being confined to his bed for three days and to the house for about a week, and was unable to do any work for about a month, though he could ride without inconvenience in an easy carriage. He then and constantly afterwards tried to do what he could of the farm work. He could milk a little and do some light work in the barn, but could not at any time that winter carry a pail of milk into the house; nor water nor take care of his cattle. He testified against the objection of the defendants, that after the twenty-six weeks had expired on March 6th 1868, he was unable to hold the plough or to mow for more than half an hour, and could not pitch hay, though he could rake a little. He could however drive a horse and do slowly and with difficulty light work which did not require lifting. From the time of his accident until the beginning of March, 1868, he kept an extra man, chiefly to do work about the house and barn which he testified he previously did himself and would otherwise have done himself. In the last part of November he, on one occasion, in the absence of his hired man, helped his boy to load a small horse wagon with light boards, but was obliged to sit down to rest once or twice during the loading, and to take nearly three hours in doing one hour's work. During January, he two or three times sat for an hour or two on a horse sled and drove a pair of horses breaking out roads, but all the work he did caused him pain, and, though before his accident he was accustomed to work hard and all day long with his men, he could not, for a period considerably longer than twentysix weeks after the injury, do half-a-day's work at any time.
Edwin H. Abbott, for plaintiff, cited Hooper v. The Accidental Death Insurance Company, 5 Hurl. and Norm. 545, and asked the court to rule that if the plaintiff was wholly disabled from prosecuting his usual employment as he usually prosecuted it, and was wholly incapable of doing what he usually did before he was hurt, then he was absolutely and totally disabled, within the meaning of this policy, from the prosecution of his usual employment, and was entitled to recover compensation for the period during which he continued to be so disabled; and that whether or not the plaintiff could do some small portion of his usual work, was immaterial and did not affect his right to compensation for the time during which he was wholly incapable of doing his ordinary and usual work as he usually did it.
Thomas H. Russell, for defendant, asked the court to instruct the jury that if the plaintiff was able to go about his farm; to
ride; to superintend the work; to buy and sell ; to drive a pair of horses in team breaking out roads in snow; and was able to transact generally the business of his farm or mill (if those were his usual employments), then he was not totally and absolutely disabled within the meaning of the policy.
REED, J., declined to give either instruction in the terms prayed for, and charged the jury that, if the plaintiff has met with such an accident as is described in the policy, he is entitled to recover, at the rate agreed on in the policy, for such time as by reason of such accident he is rendered wholly unable to do his accustomed labor; that is, to do substantially all kinds of his accustomed labor to some extent. When you find on an examination of the evidence that the plaintiff was able to do substantially all kinds of his accustomed work, though with less facility and to a less extent than before his injury, then his right to recover ceases. The mere fact that a man cannot do a whole day's work, or that by a day's work he cannot accomplish so much as before the accident, is not sufficient to entitle him to recover, but he must satisfy you that for a time, by reason of his accident, he is deprived of the power to do to any extent substantially all the kinds of labor which constitute his usual employments. For such time he can recover, and no longer.
For instance, if a farmer accustomed to perform all the kinds of labor usually done by farmers should meet with such an accident, and the result should be that he was left able only to milk his cows, but unable to do the other usual farm work, while that state of things continued he would be entitled to recover. So in case of a merchant; if his accident confined him to his house, although he might thus be able to make out his bills or post his books, yet, if he were unable to do the other work ordinarily done by merchants of his class, and such work as he was accustomed before to do, for such time he would be entitled to recover.
The phrase substantially all kinds of labor has been used in these instructions. By that such a case as this is intended to be covered: If you find that at a certain time the plaintiff was able to do all such work to some extent as he ordinarily was accustomed to do, then his right to recover ceases, although you may find he was still unable to perform some kinds of extraordinary labor which before the accident he sometimes did.