SARGENT Ii; HoME BENEFIT' ASS'N.
Counsel for plaintiff have' very fully reargued 'the 'latter question, claiming that it comes within the rule so often announced by the supreme court, that the jurisdiction _of the courts of the United States, and the right of citizens of otber states to sue therein for the recovery or protection of their claims, cannot be affected or impaired by the legislation of the state. The legislation in question is not intended to affect or impair the jurisdiction of the federal courts, nor to deny the right of citizens of other states to sue therein, nor to control, limit, or impair the rights and remedies of patentees, nor does it seek to deal with subjects beyond the legislative, control of the state. In creating the municipal corporations known as counties, the state legislature has declared 'them to be liable to be sued on contracts and for torts, but, as a protection to the property owners,qf the county, upon whom the burden falls, has ,enacted that llefore suit is brought upon an unliquidated claim, the same must be presented to, and a demand for payment be made of, the board of supetvisorB. The 'argument of for,plaintiff, if well founded, would in the conclusion that this provision of the statute is inapplicable t() claims held by citizens of other states, suable in the federal courts. I cannot such is the result of the authorities cited by counsel,' nor that such is the correct conclusion on principle. The purpose of the statutory enactment is a wise one. It simply requires that an opportunity for settlement shall be afforded the county before it is subjected'to the expenses of a suit upon unliq'uidated claims, of the very existence of· which the county officials may be wholly ignorant. "The sole que&tion is whether the courts of the United States will recognize and enforce, this provision of the state statute, enacted for the protection of the ties and their tax-payers. The argument of counsel has wholly failed to sbow any good reason why the courts of the United States should ignore this provision of the statute. Legislation of this cMracter no more af· fects the jurisdiction of the federal courts. or the rights of citizens of other states, than the legislation touching demand and notice of nonpayment of commercial paper; and many other subjects, in respect to which the federal courts adopt the statutory enactments as the rule to be followed by those courts. The dem urrer is therefore sustained.
IlO¥E BENEFIT ASS'N.
(Circuit Oourt, S.
York. 'May 22,'1888.)
In an action on a policy of life insurance iro'Illthe risks assumed <leath of assured "by his own hand or ach voluntary or involuntary, sa,\e or insane," it that the proofs of death signed by plaintiff contalOed , this question, 'Was the death caused by his own hands or acts?" The answer ,was, 'See statement of coroner's physician" Dr; J." That statement gave "the immediate cause of death" as "shock from penetrating shot wound 'of head. Mental aberration, superinduced by chronic heada<:ho;" and set out
INSURANCE-PROOF OF DEA'tH-,-ESTOPPEL BY :Al>MISSIONB.
tbatb.;e (Dr. .y.) could not say·further than that whether the assured came to his deatJ!." by his own hand" or not. After the testimony was all in, and th,ere was evidence th,at the statement of Dr. J. was based on hearsay, the company asked an instruction to the effect that plaintiff was estopped by the proofs .of.c;lElath to c<;JDtend for. any other cause of death. than suicide, and that!hebJlrdenw8s on plaintiff to show that death did not result from suicide. Held properly refused, the statements in the'proofs not working an estoppel, the company not' having been prejudiced thereby, and the whole charge upon the subje<;t haVing instructed thl;l jury to consider the proofs, and upon all the evidence to say what the exact truth was.
TheonlY..defense setup to an action on a policy excluding from the risks assumed . death of the assured by his own hand, sane or insane. II etc., was Plaintiff called the attorney who had mada the claim:and he testified to the delivery of the proofs of death, and as to the circumstances under which lie .presented to the comparty a paper purporting to be the coroner's inquest. Defendant then introduced its secretary, and he, having been allowed.to state his 'version of the conversation between the attorney and himself, was asked on cross-examination if he had not said in that conversation that,.!'·}f it depended upon.. him, ·the loss would be paid without delay." . Held, that question"relating l\s it did to t,he conversation. part of which had gone in, was releV'ant; plaintiff being entitled to all that had transpired.
NEW TRUL-'-VERnlCT CONTRARY TO EVIDENCE.
The fact that the court would, if tbecause had been tried without a jury. have reached a different conclusion, is not sufficient gronnd by itself for setting a asidil as contrary to the evidence, and granting a new trial.
At I,aw. On motion for new trial. 'This is ,an action upon a policy of insurance for $5,000, dated Sepissued to Henrietta P. Sargent, the plaintiff, upon the tember 5, Hfeof Edward F. Hall, Jr., who was her brother. The policy was security for $5 ,000 loaned by the plaintiff to Hall. One of the conditions of the policy was as follows:· "Death of the mem bel' by his own hand or act, whether voluntary or .involuntary, sane or insane at the time, is a risk not assumed by the association under this contract." The only defense is that Hall committed suicide.. On the morning of October 19, 1886, he was found lying dead upon his bed in his room on the fourth floor of a· boarding-house in the city of New York, with a severe wound in his right temple, and near his hand a revolver with three chambers discharged.. A cry for help was heard. No shot was heard, although the door was open, and one' servant was on the same floor and another in the hall immediately below. Upon a stand in the room was a letter written by Hall to his physician in which he complained of a headache, which had grown in intensity uritil it had become "almost unbearable." This condition of his head is the only cause assigned to support the theory of suicide. On the other hand, it wasproved that Hall was a man of sanguine temperament, social in his habits and hopeful as to the future. As no one saw the which caused the death, it was submitted to the jury upon all the evidence to say whether Hall committed suicide, with the instruction that, if he did, the policy was void, even though at the time he was wholly bereft of reason. The proofs of death to the defendants and signed by the plaintiff contain this question., "Was the death of deceased caused by his own hand or acW" The answer was, "See statement of coroner's physician, Dr. Jenkills.". OJ:! the next page appears the statement of Dr. Jenkins. In re-
SARGENT t·. HOME BENEFIT ASS'N.
ply to the question, "State the immediate cause of death," he answers, "Shock from penetrating shot wound of head, (right temple.) Mental aberration, superinduced by chronic headache." In answer to a series of questions, one of which was, "Was the death of deceased caused or accelerated or aggravated by his own hand or acts?" Dr. Jenkins answered, "I examined the deceased only as coroner's physician, and therefore am unable to make any further statement than above, other than from the history. His mental condition was probably due to chronic headaches, which were caused either by chronic 7Tieningitis or tumor of brain." John S. Moulton, one of the attorneys for the plaintiff, was called ,to prove that he delivered the proofs of death to the company, and the circumstances in which he presented the paper purporting to be the coroner's inquest. His testimony 'was strictly confined to these points. SUbsequently the defendants called Andrew Brownell, the secretary. of the company, to state his version of the conversation, which did not vary materially from that given by Moulton. The defendants' counsel then 'asked; "What was the substance of the understanding between you as to the manner in which Mr. Hall met his death, 'if that was mentioned between you?" This being objected to by the'plaintiff, the court permitted the witness to state anything that took place during that canversation. Brownell answered: "That he met his death by his inflicting a pistol shot, and that we must have the coroner's verdict, which 'he said he would furriish in a few days." , The court then stated that unless this was said in the' conversation with John S. Moulton it would be stricken out. The witness stated that it was said during that conversation, land that Moulton had never withdrawn or contradicted the statement. Upon cross-examination of this witness, the plaintiff's counsel asked if certain. other things were not said during the conversation, and, among other things, if he,Brownell, did not say that, if it depended upon him, thE' loss would be paid without delay. This was objected to upon the sole ground that it was irrelevant. The objection was overruled, and the: defendants excepted. The jury found for the plaintiff. The defendants now move for a new trial. AU8tin G. Fox and JilranciB Ldwton, fOf the motion. ·08born E. Bright and Miron Winslow, contra.
COXE, J., (ajtcr stating the facts a8 above.) No valid'reason for setting aside the verdict as against the evidence is suggested. The fact that the court, if the· cause had been tried without a jury, would have reached 'a different conclusion, is not sufficient. The court is not permitted to substitute its opinion upon questions of faeHor that of the jury. They had the power to render this verdict, and there is no precedent for disturbing it. The principal question now argued relates to the declarations in the proofs of death. It is urged that because of these the plaintiff' is estopped from asserting that the death of Hall was caused otherwise than by suicide and tbat, in any event, the court should have held that the lJurden originally upon the defendants was, by the introduction of the proots, shifted fmm them to the plaktiff, and it then became her duty tosa'tisfy
the preponderance ,of. ,evidence that the aSl;lured died otherwise than by his own hand. It is thought that the defendants were not entitled to these rulings for the fQ110wing reasons: First. The defendants were in no way prejudiced by the st4tements and opini.ons in the proofs. 'fhere was therefore no esto'Ppel. Bliss, Ins. (2d Ed.) §265, and cases cited.. Second. When the request was made for an instruction to the jury that the introduction; of the proofs shifted the burden of proof, the all in; much mOJ;e full and complete than that upon which the based his opinion. The physician his knowledge, or lack of knowledge, himself, had been at the, time he,made his certificate, was fully disclosed. The proofs had then beeu-explained. Tpedefendullts might haveirested their defense upolllthepfoofs alone in whichevent,ussuming the defendants' construction of the physician's llliuguage to be correct, it is possible that they wouldhayeboon entitled to the instruction in question. But when, in ,cdnjunction 1Vith the proo:ijl, cametestitnony explaining them, and showJng that, the ,statements of the .physician were based on hearsay, and were merelyguess-ffilork'onhispart,:such:an instruction would have been erronOOWl.Third. The declarations in the proofs, construed together, do not, contain an admission that Hall committed suicide; They state the ,facts>jQr What at the time thedQctor supposed tl> be facts, and leave the ,defelldauta to draw their own inferences. It is true that the conclusion ofsuicide may be drawn from, thew, but, when it is sought to give them ,. :the force of aa admission tbat'the policy was void, they should be care! fwlyand strictly scrutinized·· The language used by the physician is not inponsistente with the theory of death by accident, especially in view of . ,.the,t'acttbat;. when asked the direct question whether Hall died by his O:\V:n declined, to answerit, and stated.his reasons therefor. A .man, while .da:l:ed .or delirious from pain, might meet a self-inflicted,. but wholly aecldental, death. .He might walk through a window supposing ,it a door, or drink a poisonous draught mistaking it for water; or :<liachatge a pistol inadvertently laelieving it to be some harmless instrument, or while holding it in hands rendered nerveless and inert by the presence of disease;c:and y,et,a: death so occasioned would not be within the terms of the clause in question, .and a statement of such facts can hardly be said to include an admission of suicide. Penfold v. Insurance 00., ,,85N. Y., 317.,., The proofs leave the manner of HllI1l's death very much ;wheretheevidenc.e of the trial.left it.-in doubt. The problem thus Jptesented it.-was the duty of the jury tosolve. Fourth. The charge as given upoo :this subject was a$ favorable to the defendants as the facts .:warranted. were told to consider the ,proofs, and upon all the eyidence to say what the exact truth was. put to the defendants'secretary,Brownell, upon crossexamination.. as to his willingness ;to pay the loss, was admitted because . was made during a conversation regarding which the witthe ness bad beEm -fully interrogated by the defendants' counsel. The plaintiff was therefore entitled to all that took. place at this interview. Alis broader than need be, the record shows concluthough the
"BAL'l'DfORE .t' O.R. CO.
sively that cpunsel and witness Were strictlyecrnfined to the cODYersation iJ;1 question, and il is not now pretended that,any other was referred to. Although the objection was properly overruled upon several grounds, it is unnecessary to consider them, as it is thought that the reason above stated is amply sufficient to justify the ruling. The other exceptions to 'which argument has been directed have been examined, but it is thought that no error is pointed out which would justify the court in setting aside the verdict. The bill of exceptions presents fairly every question necessary for a full determination of this controversy, and it would seem to be for the interest of both parties that it should be settled by the court of last resort with as little delay as possible. The motion is denied.
OWENS 'It. BALTIMORE
«h'rC1Jit (Jourt, 8. D. Ohio, E. D. August 1,1888.)
!NSURANCE-'-MuTUAL BENEFIT SOCIETIES......l3Y·LAWS.:..-PUBLIC POLICY.
The bY'law of a railroad relief association reqniring its members to release the railroad company from any claim for damages before applying to the Il,Ssociation for relief, is not against public policy, as it sitnply puts a claimant to his election whether he will look to the railroad company or the relief as· sociationfor com pensation. A person is not estopped from claiming compensation from the railrpad company for an injury resulting from a collision by beenpreviodlily compensated by the relief association for the injury wJJ.icb he then untruth· fully allegedwas caused by malaria, jaundice, constipation, etc.· as the ranroad company and the association are separate corporations. and, while the former guaranty all contracts of the latter, yet the association funds were sufficient to meet all liabilities likely to arise. ' When plaintiff's injuries are Wholly caused by the defendant's negligElDce. but are aggravated by his own subsequent and independent acts, and the jU" apportion the damages, he is entitled to recover to the eliltent of the dam-age without his fault. but not for that portion caused by his subsequent aqta.
2. SAME-EsTOPPEL-IN P.US-PRIYITY.
NEGLIGENCE-AGGRAVATION OF INJURY.
A.t LaW. On motion for new trial. Jarnes W. OWen8 and J. A. F'/,ury, for plaintiff. Jas. H. CoUi'll8, for
, SAGE, J. The plaintiff sues for the recovery of damages by reason of injuries received in a collision of freight trains while a fireman in ployment of defendant, and resulting from the negligence of the defendant. A clettr case of negligence was made out, and, aside from the question which will be hereinafter n()ticed, the only contest upon thetrialwl18 " asto the amount of damages. The injuries .received by the plaintiff were at the time apparently slight. They did not prevent him from :a&>; sisting in p'lltting out ,a fire, which had started in the wreck ofthetrs.in;
nor from assisting in other ways about the train, nor from traveling thEl next day to his home, some 30 or 40 miles distant. He was thEm, as he testified, suffering pain from injuries received about the lower region of the ribs and .the shoulder blade, and extending to the spine. He consulted a who testified that he was at that time aware that there was danger of inflammation and of abscess of the liver, and that physical exertion would aggravate the injuries, lind increase the danger. He advised the plaintiff to abstain from labor. But the plaintiff, stating that he depended upon his labor for his living. declined the advice, and went to work; the testimony on behalf of the defendant being that he worked as a train fireman in defendant's eU1ploy 6! days in August and 26! days in September, counting a run of about 100 miles as a day's work. Then his health failed him) and he was obliged to quit work, and made application for benefits to the Baltimore & Ohio Relief Association, an orgapization chartered by the legislature of Maryland for the purpose of affording relief in case of accident, and in case of disability by illness, to the employes of the defendant; certaiqoflicers of th,e defendant company being ex officio directors 'of the 'relief association, and the president pro tern. of the defllndant company. being also ex officio president of the relief association. 'l'he charter of the relief association provides that the Baltimore Ohio OornPllny shall guaranty the ,performance of the conttacts mad.e by the relief association, and, under authority given to tpe railtoadcompany to extend, aid to the reliefassociation upon such terms as l'ailroad company should deem proper, the company provided, by way of permanent loan to the relief association, a guaranty fund of $100,000. One of the conditions of this guaranty, as expressed in a by-law of the association, was substantially as follows: That, inasmuch as it was no part of the scheme of the relief association that any of its members should obtain double ,henefits in case of an injury, whenever any such tclain1, was made agains,t the relief association, the claimant should first file a release of the railroad company from any claim for damage!!. , W,hen the application was made by the plaintiff to the association for benefits, it was, placed , not upon the ground that he was disabled, by reason of illjuries resulting from the collision, but upon the ground that he was disabled by illness resulting from malaria, (a word which seems to have a very wide, varied, and sometimes indefinite JI,Pplication,) from jaundice, and from constipation, and perhaps other causes. It was fortified by the certificate of the plaintiff's physician, who testifies that when he made it he knew that it was not true, but made it at the urgent request of the plaintiff and his wife, who both insisted that the claim should be tnade in that way. The applicaLion was honored, and the benefits under the clause or provision of the by-laws of the ass.ociation' relatirig to such cases were paid to and received by the plaintiff, 'to the amount of about $330. Upon the trial, the plaintiff claim'ed, and introduced testimony, including the testimony of his physician and -of other physicians, as parts , in support of his claim, that the injury received by him at the' collision was the cause of all the ailments and disabilities stated in 'the oertifica.te upon which he received
OWENS t1. BALTIMORE &: O. R. CO.
benefits as above stated from the association, and that by reason of tllat injury an abscess of the liver was occasioned; that he suffered from an attack of jaundice, and from stammering, the latter induced by the injury to his spine received at the time of the .collision; and that all these results were likely to be permanent, disabling him from labor, and probably shortening his life. Testimony of experts and others, controverting that offered by the plaintiff, was introduced by the defendant, and testimony tending to prove that the results shown were brought upon the plaintiff by his own imprudence in disregarding the advice of his physician, and working in August and September, as hereinbefore set forth. At the trial the jury were instructed with reference to their general verdict, and were also directed to answer in writing four questions proposed by the court. Those questions, with the answers, were as follows:
"(1) Were the injuries sustained by the plaintiff, to-wit, abscess of the liver, jaundice, and stammering, or any of them, caused by the collision of the freight trains of-the defendant on the 18th day of August, 1883, or did he bring them upon himself by performing the work of a fireman on the defendant's road between the 18th of August and the 1st of October, 188B? If the injuries sustained were caused partly by the collision, and partly by his performing work, thejury will so state. Answer. The injliriessustained are due partly to the collision, and partly to the work subsequently performed by the plaintiff. (2) What amount of damage did plaintiff suffer from said injuries? A. Seven thousand dollars. (B) If the jury finLl that the injury resulted in part from the collision and in part from the plaintiff's subsequently working as fireman, how much of the damage is attributable to the collision, and how much to the plaintiff's subsequent work as fireman? A. Thirty-five hundred dollars. (4) What amount of damages has the plaintiff sustained by reason of said collision, without taking into account jaundice, abscess of the liver, or stammering? A. Twenty dollars."
The general verdict was in favor of the plaintiff for $3,520. The plaintiff moves for a judgment for $7,000, upon the special verdict in answer to the second question. The defendant moves for a new trial for the reasons-First, that the verdict and several findings by the jury are not supported by sufficient evidence, and are contrary to lawi second, that the damages are excessivei and, third, that the iri refusing to give to the jury the several charges asked by the defendant. The defendant ,also moves for judgment in its Javor upon the first tion and answer, notwithstanding the general verdict. This'motion is inconsistent with defendant's motion for a new trial, but it will be considered as an alternative motion. Upon the trial, questions were raised as to the effect of the tions made by the plaintiff in his application to the relief association for benefits. The defendant's contention was that the plaintiff ,was estopped by these representations, and by accepting the benefits paid him inreHance upon them, from claiming damages against the defendant. The plaintiff, on the other hand, contended that the provision in the bylaws of the association requiring, as a condition precedent, thefiHng of a release of the defendant from any claim for damages, was void, as
against ptlblic policy. Upon thesepl'opositions the court instructed the jury as follows, as appears from the stenographic report of the charge:
"It is. urged that that was an illegal arrangement; that the law does not permit an employer to stipulate for immunity from the damages which his employes may sustain by reason of his negligence. That, as a general proposition, gentlemen, is well stated. That is the law. But it does not apply to this case, for this reason: There is no stipulation that the membel'S of the relief association shall not be at liberty to sue the Baltimore & Ohio Railroad Company for damages resulting frOill accidents attributable to the negligence of that company. If there were, that, in my opinion, would be an illegal stipulation. It would be against pUblic policy. But the stipulation is, in effect, that when a member of the relief association, who is an employe of the Baltimore & Ohio Railroad Company. (and no one else can be a member,) sustains such injuries, he may make hie election to Sue the railroad company for damages. or, waiving that right, he may rely upon the benefits stipulated by the relief aBsociation. :Now, that is perfectly legitimate and proper, and can be no possible objection .to it.. I am unable to agree with counsel that .the by-law applies only incaaes ot accident unaccompanied by negligence. that a casualty resulting from negligence is not an accident. In a strict, technical sense that may be true, but it is noL true, in my opinion, in the sense in which the word is used in toe by-laws of the association, because there would be no occasion for the release of a claim for damages for injnries fr/illll an accident occurring, Without: the fault ur negllgence of the railroad company, inasmuch as in snch case no liability would. be incurred by, or could be enfurced against, the The manifest meaning of the bylilw·is that it applies to casea Where the employe might maintain an action for against the railroad It puts him to his election He can sue the railroad company, or take the benefits from the relief association. ,This isquite as legitimaLeas it is to settle claims of this character out of court by private negotiations, which is done constantly, and, if fairly done, nobody thinks. of OJ
With reference to the representation·s made by and· on behalf of the plaintiff upon· his applying to the relief association for benefits, the charge was as follows:
. "Now, it is insisted by the defendant that, inasmuch as those representawere made by the plaintilf, and s;upported by the certificate of his physithat he knew that they were untrue, and that he made them cian, who at the urgent r..quest of the plaintiff and his wife, both insisting that the claims Sholild by Illade in that way. that the plaintiff onghtto be estopped in this suit from asserting that his injul'iesresulted from the collision, and did not result from the causes to which he a.ttributed them in his application to the :association for relief. Gentlemen, r eannot give my assent to that proposition, for the reason that the Baltimor,e & Ohio B.aill'oad Company is one cor· poration, and the relief association is another corporation. and the two cor· poratiuns are as separate and dIstinct as two individuals. 'fhe benefits received by the plaintiff were paid by the association. and out of the funds Of the association, and not by the railroad company; and there is no privity to support an estoppel against thp. plaintiff and in favor of the railroad company. .Tj1e,railroad company was.nothing but a guarantor, and iUs laid down that a guarantor is not in priVity WIth bisprincipal for the purposes of an estoppel. Bigelow, Estop. 75. and cases pited. It is true that there was a.possibility that the railroad company, asgtiarantor, might be affected by the payment oithe benetits received by the plaintiff, amounting to about three hundred and thirty dollars. It waS· possible, because all tbll1gs are possible in
OWENS V. BAL'IUrORE & O. R. CO.
financial affairs, that claims against the aSl;lociatiotrshonld exhaust its own funds,. and compel it to·draw upon the guarallty fnnd; but no such contingency arose, the when it paid those!;lenefits, had in its treasury, as is disclbsed by the evidence, over half a million dollars, made up by the contributions and assessments paid by its members. The railroad company was not, therefore, directly involved, and the possibility that it might be uitimately involved was and is so remote that you need not consider it. ·The court holds that there is no estoppel in this case." The jury were also charged that they ought to take into account the statement made by plaintiff and by his physician in support of his application for )?el1efits, in weighing their evidence as witnesses in this and, taking into account their explanations, also determine what credit to give to their evidence. The court reaffirms these rulings, and they dispose of the points made upon theniotion, excepting those relating to the findings by the Jury that the plaintiff aggravated his injuries by his own acts subsequent to the colli\3ion.The finding by the jury, in answer'to the third question, that the subsequent ailments of the plaintiff, to-wit, abscess of the liver, ,and stammering. resulted in part from the collision, and in that the damage was capable of apportionment, $3,500 of the subsequent damage being attributable to the collision, and the same amount. to his working as fireman after the collision,-was, in the opinion of the court; fairly:derivable from theevi· dy nce.,Thegel1eral rule is stated in 2 Thomp. 'Neg. 1162, to be "that is never looked to in of but whenever it is shown to exist, itis a complete bar to the action. To this there is obviously this exception: if the injury produced by the . plaintiff's negligence is capable of a distinct separation and apportion· I1lent fr()m tJ1at produced by the defendant's negligence, it should be excludedby thejury in estimating the damages, and they may assess againet the d"cfandant those damages which followed separately from his act. The rule, stated another way, is that the person injured is not en; titled to recover for any enhancement of damages produced by his own want of care." This statement of the law must, however, be taken with a proper understanding. Where the negligence of the plaintiff contrib· utes to the original cause 'of the injury it is fatal to his claim for dam· ages, unless it appears that the defendant, notwithstanding the plaintiff's · negligence; might have avoided the cause of the injury I and failed to do so. In this cause, the finding of the jury WIl.'3, in substance, that the ·injury sustained by the plaintiff resulted solely from the negligence of the defendant. (and in this the testimony was altogether and overwhelm. irlgly in favor of their finding,) but that it was subsequently. by acts of the plaintiff entirely distinct and separate from the causa causans, aggravated. In other words, the jury found that the damages resulting solely from the collision were, immediately, $20, and subsequently by development of the injuries then received, $3,500 additional; and further, that . the plaintiff, by his own acts subsequent to and entirely disconnected from the coUision,aggravated those injuries to his damage in the additional sum of $3,500. And the jury, by their general verdict, said that
the defendant was liable for the damages sustained by the plaintiff at the time of the collision and caused thereby, arid those resulting subsequently therefrom, but not for any aggravation by his own acts of those injuries and the damages resulting from such aggravation. Now, turning to section 19 of Beach on Contributory Negligence, we find a statement of thelaw exactly in point: "When the subsequent negligence of the plaintiff contributes. not to cause, but to aggravate, the injury, it will not, as has been hitherto suggested, avail the defendant as a defense, for the obvious reason that howsoever much it may have increased the damage, it did not cause the injury, and the defendant's negligence did cause it, which is the ground of his chargeability." In support of this statement of the law, see Gould v. McKenna, 86 Pa. St. 297; Secord v. Railroad Co., 5 McCrary, 515; Sil18 v. Brown, 9 Car. & P. 601; and Gree:nland v. Chaplin, 5 Exch. 243, 247. In Gree:nland v. Ohaplin, POLLOCK, C. B., said: '''£he man who is guilty of a wrong, who thereby produces mischief to another, has no right to say: 'Part of that mischief would not have arisen if you had not yourself aggravated the injury which my negligence caused;' and whenever the injury produced by the plaintiff's negligence is capable of a distinct separation, an apportionment must be made, and the defendant held liable only for stich part of the total damage as his negligence produced. It So, again,in Shear. & R. Neg. §. 35: "Where, the plaintiff by his own fault aggravates his injury. and increases the extent of his damage. but has not actually contributed to the whole injury which he has suffered, he is entitled to recover to the extent of the damage which he has suffered without his fault, but not for that portion of the damage to which he has thus contributed. " To same point, Sherman v. Iron Works Co., 2 Allen, 524 j Wright v. Railroad Co., 20 Iowa, 195. And in Cooley, Torts, 683, find the following: "It is no answer to an action that the injured party subseqnent to the injury was guilty of negligence which aggravated it. The negligence that will constitute a defense·must have occurred in producing the injury It is nevertheless the duty of the party inj ured to take care that the damage shall be as light as possible. ", Citing Plummer v. Association. 67 Me. 363; Willmot v. Howard, l:I9 Vt. 447; and Hathorn v. Richmond, 48 Vt. 557. In Saunders v.Railway, 98 E. C. L. 887. the person injured had disregarded the advi'ceof his physicians to abstain from business for two years, and had because of such disobedience become permanently incapacitated from doing business, whereas, if he had rested, he would probably have regained his health. The court refused to disturb a verdict in his favor for compensatory damages. Theswauthoritiesare clear and.:to the point. They correctly state the la.w applicable: to this case. The defendant's objection that the general verdict of the jury is not sustained by the ,evidence is not well founded. The evidence was conflicting, as it generally is when experts are called to testify, and the case was peculiarly one to be left to tre jury to decide. Upon the evidence the court would not be warranted in setting aside the verdict apportionirigthe damage. The plaintiff's motion for judgment for $7,000, and
the defendant's motion for a new trial, and for judgment notwithstanding the verdict, are overruled. Judgment will be entered upon the general verdict for the plaintiff for $3,520, with interest from the first day of the trial term.
PETERS, (two cases.)
(Oircuit Oourt, E. D. Virginia.
UNITED STATES DISTRICT ATTORNEy-COMPENSATION-SERVICES TO RECEIVER OF NATIONAL BANK: .
Under Rev. St. U. S. § 380, providing that "all suits and aris· ing under the provisions of law governing national banking- associatIOns, in which the United States or any of its officers or agents shall be parties, shall be conducted by the district attorneys of the several districts. under the direc· tion and supervision of the solicitor of the treasury," it is the duty of such distriCt attorney to act as counsel for the receiver of an insolvent national bank. such receiver being a United States officer, appointed by the comptrol· ler of the currency; and the appointment of special counsel by such receiver, though sanctioned by the comptroller, does not affect such district attorney's right to compensation for services as such counsel, in suits to which such reo ceiver was 'a party, it appearing that he was ready and offered to perform the same, and did perform them in so far as the opposition of the receiver al· lowed,-no want of skill, diligence, or industry being imputed to him, Such section does not require a district attorney to wait until actually in· structed by the solicitor of the treasury to enter upon the duties of counsel to such receiver, but, if the solicitor fails to give directions. he may neverthe· less enter npon the discharge of such duties. and recover compensation there· for from the receiver. Under Rev. St. U. S. § 823, fixing the compensation which shall be allowed and taxed in favor of attorneys in the United States courts, bnt providing that nothing therein shall be construed to prohibit attorneys from charging their clients other. than the government such reasonable compensation for their services in addition to the taxable costs as may be in accordance with general usage, or may be agreed upon; and section 5238, requiring all expenses of the administration of an insolvent national bank to be paid out of the assets of the bank,-the compensation of tile district attorney in such suits is not lim· ited to the fees prescribed by law in suits to which the United States is a party; but the United States not being a party to or interested in such suits. and the district attorney's compensation therein not being audited by any of the treasury officers to whose supervision his accounts as district attorney are subjected, he is entitled to the usual compensation for such services, the same to be paid out of the assets of the bank. Hev. St. U. S. § 299. directing that accounts of district attorneys for services rendered in cases in which the United States are interested, though not It formal party to the record. and in which officers of the United States are sued for acts committed or omitted in the legal discharge of their official duties, shall be settled at the treasury, and that the fees allowed shall be assimilated to those allowed in cases in which the United States is an actual and formal party, does not apply to such suits, the United States not being a party thereto or intere.sted therein, and counsel fees not being required to be paid from the public treasury. nOT does it affect the right of the district attorney to recover a reasonable compensation for senices therein beyond the fees allowed by law.
Petitions by J. C. Gibson, United States attorney for the Eastern district of Virginia, against William H. Peters, receiver of the Ex.change Nav.35F.no,lO-46