$575 reading the bill in the same way that he would read an untechnical document would have no doubt that the plaintiff meant to put her case as we have taken it. was entered until January 6, 1908, as we | tablished. We are of opinion that anyone have said. The circuit court intimated an opinion that the bill of intervention was defective for want of an allegation that Leary, at the time of his agreement, did not know the facts alleged in the principal bill to raise a trust for the government, and also that, so far as appears, it might be brought upon a supposed implied contract, whereas no such undertaking of indemnity would be implied by the law, citing United States v. Ryder, 110 U. S. 729, 28 L. ed. 308, 4 Sup. Ct. Rep. 196. But observing that the petition might be amended in these respects, it held that amendment would be unavailing, as the contract was against public policy and void. 163 Fed. 442. The circuit court of appeals, without deciding upon this last point, affirmed the decree on the above-mentioned ground that Leary's knowl-8 edge was not negatived, and also on that of laches, apparent and unexplained. 107 C. C. A. 27, 184 Fed. 433. The result is that the petitioner is denied her chance to be heard for want of amendments which the court that might have allowed them told her that it was no use to make, as it was going to decide against her, whatever she did. Even if the court would have allowed them, which is a speculation, it is holding a party to very technical rules to say that while one case was being dealt with below, he ought to have contemplated having to meet a different one above. But we need not consider that matter, as we are of opinion that the bill, without amendment, showed a sufficient right to intervene. The only matters that seem to us to need argument are the questions of public policy and laches. As to the former, the ground for declaring the contract invalid rests rather on tradition than on substantial realities of the present day. It is said that the bail contemplated by the Revised Statutes (§ 1014, U. S. Comp. Stat. 1901, p. 716) is a common-law bail, and that nothing should be done to diminish the interest of the bail in producing the body of his principal. But bail no longer is the mundium, although a trace of the old relation remains in the right to arrest. Rev. Stat. 1018.1 The distinction between bail and suretyship is pretty nearly forgotten. The interest to produce the body of the principal in court is impersonal and wholly pecuniary. If, as in this case, the bond was for $40,000, that sum was the measure of the interest on anybody's part, and it did not matter to the government what person ultimately felt the loss, so long as it had the obligation it was content to take. The law of New York recognizes the validity of contracts like the one alleged, and without considering whether the law of New York controls, we are content to say merely that the New York decisions strike us as founded in good sense. Maloney v. Nelson, 144 N. Y. 182, 189, 39 N. E. 82, s. c. 158 N. Y. 351, 355, 53 N. E. 31. As to laches, there is no legal presumption that the petitioner knew of this suit, and still less that she knew the position taken by Kellogg. He set up that the stock was taken as indemnity to himself for his promise to indemnify Leary, etc., and said nothing about the petitioner's claim. If that claim is well founded and she knew of this suit, it was not laches in her to assume that Kellogg would do his duty as her trustee. She might be bound by a decree against him, but before decree, on discovering his conduct, she fairly may ask a chance to protect herself. Moreover, as she disputed liability on the bond, she had an additional reason for not moving until the case against her had gone to judgment. See Anonymous, 11 Mod. 2. On the whole matter it seems to us that she was dealt with too technically. She presents a case which, unless read with an adverse mind, is a good one on its face, and whatever mis We lay on one side the suggestion that the intervention goes only upon an implied contract in its proper sense of an obligation raised by the law, irrespective of any real promise. That would seem to us a perverted interpretation of the words "upon the understanding and condition," even if the contract were only a general one to indemnify; but a contract that certain specific stock in the hands of a trustee should be held as security for a specific contingent claim could not exist unless it was express. It would be none the less express if it was conveyed by acts importing it than if it was stated in words. The point that Leary's knowledge ought to have been denied impresses us hardly more. The plaintiff has not the legal title, and is not claiming against an admitted prior equity as a purchaser withont notice. Her position is that she does not know whether the United States has any equity or not, but that what-givings we may entertain, we are of opinion ever rights the United States may have are that she ought to be allowed to try to inferior to hers. She is not called on to al- prove it. In the circumstances it seems to lege Leary's ignorance of facts that she does us that the leave to intervene may be grantnot admit and that are not yet finally es-ed, subject to the condition that the evi 1 U. S. Comp. St. 1901, p. 719. dence already in shall be taken to be evidence against her, subject to her right to recall and cross-examine such witnesses for the government as she may be advised. Decree reversed. Mr. Justice McKenna and Mr. Justice Pitney dissent. TEXAS Mr. William L. Hall for plaintiff in error. Mr. S. P. Jones for defendant in error. Mr. Justice Holmes delivered the opinion of the court: This is an action for personal injuries done to the plaintiff, the defendant in error, Howell, while in the employ of the railway company. The plaintiff had a ver & PACIFIC RAILWAY COM- dict and judgment, subject to exceptions, PANY, Plff. in Err., (224 U. S. 577.) V. W. A. HOWELL. COURTS (382*) - SUPREME COURT-AP- 1. Plain error alone will justify the Federal Supreme Court in reversing a judgment of a circuit court of appeals in a personal-injury case which is brought to the Supreme Court solely on the ground that the defendant corporation has a charter from the United States. [Ed. Note.-For other cases, see Courts, Cent. STRUCTIONS. 2. No reversible error is committed in *581 and the judgment was affirmed without discussion by the circuit court of appeals. The material facts can be stated in a few words. The plaintiff was set to digging a hole for a post under a coal chute. While he was at work the defendant put other men to removing certain timbers and planks from the floor, 12 feet or so above him, without his knowledge, as he contends, and a piece of timber fell and struck the plaintiff on the head. The plaintiff now is suffering from tuberculosis of the spine, in consequence, as he says, of the blow. The defendant asked the court to direct a verdict, and also to instruct the jury that if the plaintiff knew that other servants were tearing up the floor above him, he took the risk; that if no harm would have resulted but for the negligence of those other servants the defendant was not liable; and that the plaintiff's present disease of the spine was too remote from the blow to be attributed to it as a result. The case was * left to the jury with instructions that if the injury was due to negligence of the defendant in sending men to work above the plaintiff, as a contributing cause, the [Ed. Note. For other cases, see Appeal and defendant was liable; but not if it was Error, Cent. Dig. 88 4212-4218; Dec. Dig. § 1062.] due only to the negligence of fellow servNEGLIGENCE (§_134*)—EVIDENCE-PROXI-ants in their way of performing their work. MATE CAUSE-DISEASE. The question also was left to the jury whether the disease was the direct consequence of the blow. leaving to the jury an action for personal injuries sustained by an employee from a falling timber, while he was digging a post hole under a coal chute and other employees were tearing up the floor above him, with instructions that if the injury was due to the negligence of the master in sending men to work above the employee, as a contributing cause, the master was liable, but not if the injury was due only to the negli gence of fellow servants in their way of performing their work. 3. A jury is warranted in finding that tuberculosis of the spine is the direct result of an injury from a falling timber, where there was ample evidence that the blow occasioned the development of the disease, though it was not discovered to be such for over a year. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 267-273; Dec. Dig. § 134.*] [No. 947.] The case was begun in the state court and was removed to the circuit court, and is brought here, solely on the ground that the plaintiff in error has a charter from the United States. But for that accident, which has no bearing upon the questions raised, the case would stop with the circuit court of appeals. Under such circum Submitted April 22, 1912. Decided May 13, stances we go no further than to inquire 1912. whether plain error is made out. Chicago N ERROR to the United States Circuit Junction R. Co. v. King, 222 U. S. 222, to review a judgment which affirmed a judg- See same case below, 191 Fed. 1006. 32 Sup. Rep. 79. We nothing that requires us to reverse the judgment. It was open to the jury to find that the usual duty to take reasonable care to furnish a safe place to the plaintiff in his work remained. They well might be of opinion that the general nature of the things to be done gave no notice to the plaintiff that he was asked to take For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes *583 a necessary risk. At the same time, they were warranted in saying that if the defendant saw fit to do the work above and below at the same time, it did so with notice of the danger to those underneath, and took chances that could not be attributed wholly to the hand through which the harm happened. Even if Howell knew that repairs were going on overhead, that did not necessarily put him on an equality with his employer, and require a ruling that he took the risk. Kreight v. Westinghouse, C. K. & Co. 214 U. S. 249, 53 L. ed. 984, 29 Sup. Ct. Rep. 619. The plaintiff was injured on March 3, 1908. State of California to review a judgment N ERROR to the Supreme Court of the which affirmed a judgment of the Superior Court of Santa Barbara County, in that State, sustaining a title to land derived through a sheriff's sale under a mortgage foreclosure. Affirmed. See same case below, 152 Cal. 615, 93 Pac. 681. The facts are stated in the opinion. Messrs. Cyrus F. McNutt and William G. Griffith for plaintiffs in error. Mr. Alexander Lyall, in propria per sona, for defendants in error. *Mr. Justice McKenna delivered the opinion of the court: There was ample evidence that the blow occasioned the development of his disease, although it was not discovered to This writ of error is directed to a judgbe the Potts disease, as it is called, for ment of the supreme court of the state of over a year. But it is argued that if such California, sustaining the title of defenda disease is due to the presence of tubercu-ants in error to certain lands in that state, lar germs in a man's system before the accident, the defendant ought not to be required to pay more than it would to a normal man. On this point also we are of opinion that the jury were warranted in finding that the disease was the direct result of the injury, as they were required to, by the very conservative instructions to them, before holding the defendant to answer for it. Crane Elevator Co. v. Lippert, 11 C. C. A. 521, 24 U. S. App. 176, 63 Fed. 942; Spade v. Lynn & B. R. Co. 172 Mass. 488, 491, 43 L.R.A. 832, 70 Am. St. Rep. 298, 52 N. E. 747; Smith v. London & S. W. R. Co. L. R. 6 C. P. 14, 21, 40 L. J. C. P. N. S. 21, 23 L. T. N. S. 678, 19 Week. Rep. 230, 18 Eng. Rul. Cas. 726. derived through a sheriff's sale of the same upon suit for foreclosure of a mortgage. The suit was instituted and prosecuted against the administratrix of the estate of the father of plaintiffs in error, they not having been made parties nor giv en notice of the pendency of the suit. Judgment affirmed. (224 U. S. 558.) EDWARD QUIGLEY MCCAUGHEY and V. The facts, as stated in the opinion of the court, are as follows: "George McCaughey died intestate on March 1, 1890. The plaintiffs are his children and heirs at law. During his lifetime, on June 6, 1889, the deceased executed a mortgage on certain land to one H. J. Finger to secure a promissory note for $500, which was due and unpaid at the death of the decedent. After his death Susan McCaughey was duly appointed and qualified as administratrix of his estate. The note and mortgage were duly presented to the administratrix and were allowed by her and approved by the probate judge. In January, 1894, Finger commenced an action against the administratrix to foreclose the mortgage, but did not make plaintiffs parties to such action. Such proceedings were had that a judgment of foreclosure was regularly rendered, under which the land was duly sold by the sheriff on April 10, 1895, to defendant Lyall, who in due time received a sheriff's deed therefor. Several years afterwards this present action was brought by said heirs to have "it adjudicated that they are the owners of an undivided one half of the said land; that the claim of the defendants thereto be adjudged null and void; that plaintiffs recover the possession of the land, etc. A general demurrer to the complaint was interposed by the defendant Lyall and by other deSubmitted April 19, 1912. Decided May 13, fendants. The demurrers were sustained; and plaintiffs declining to amend, judgment ALEXANDER LYALL, H. J. Finger, Mae CONSTITUTIONAL LAW (§ 309*)-DUE PRO CESS OF LAW-PARTIES - FORECLOSURE SUIT-HEIRS OF MORTGAGOR. Construing Cal. Code Civ. Proc. § 1582, to mean that the heirs are not necessary parties to a suit against the administratrix to foreclose a mortgage executed by the decedent, does not deprive such heirs, without due process of law, of the title which Cal. Civ. Code, § 1384, casts upon them upon the death of their ancestor. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 929, 930; Dec. Dig. § 309.*] [No. 228.] 1912. For other cases see same topic & NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes *562 *561 *563 was rendered for defendants." [152 Cal. | ham v. Ashley, 45 Cal. 485; Bayly v. Muehe, 616, 93 Pac. 681.] The judgment was affirmed by depart ment 2 of the supreme court, and a petition for rehearing in bank was denied. Thereupon the chief justice of the court granted this writ of error. The contention of plaintiffs in error is that the law cast upon them the title to the land upon the death of their intestate ancestor, and that such title could not be devested in a suit in which they were not parties. To sustain the contention, plaintiffs in error make, as we shall see, one part of the law of the state paramount to another part, certain decisions of the courts of the state paramount to other decisions, putting out of view that necessarily the co-ordination of the laws of the state and the accommodation of the decisions of its courts is the function and province of the tribunals of the state, legislative and judicial, respectively. 65 Cal. 345, 3 Pac. 467, 4 Pac. 486; Finger v. McCaughey, 119 Cal. 59, 51 Pac. 13, Dickey v. Gibson, 121 Cal. 276, 53 Pac. 704. This is conceded by plaintiffs in error, but they say that because § 1582 of the Code of Civil Procedure "is made the basis of the rule established by the supreme court of the state," they complain of it, and respectfully urge that it "is repugnant to the 14th Amendment of the Constitution of the United States, § 1." This is equiva lent to saying that the legislative power of the state, being the source of the rights and the remedies, has so dealt with one as to make the other repugnant to the Constitution of the United States; or, if the complaint be of the decisions, that the supreme court of the state cannot construe the laws of the state and make of them a consistent system of jurisprudence, accommodating rights and remedies. Both contentions are so clearly untenable that further discussion is unnecessary. Judgment affirmed. (224 U. S. 547.) AMERICAN RAILROAD COMPANY OF V. tor Birch. DEATH (§ 31*)-PARTIES-EMPLOYERS' LIA- TIVE. For their rights of property plaintiffs adduce § 1384 of the Civil Code of the state, which provides that "the property, both real and personal, of one who dies without disposing of it by will, passes to the heirs of the intestate, subject to the control of the probate court, and to the possession of any administrator appointed by that court, ANN ELIZABETH BIRCH and Ernest Vicfor the purposes of administration." And decisions of the supreme court are cited, holding, it is said, "that upon the death of the ancestor, the title to the real estate vests immediately in the heir." From the Code and the decisions it is deduced that the descent being cast at the instant of the death of ancestor, the "right of the heir is fixed by such positive law, and he becomes invested with the measure of title which that law has fixed, and cannot be devested of such title without due process of law." It is admitted that the heir takes subject to administration, but with that limitation only, it being contended further that "he holds precisely the title held by the ancestor." Section 1582 of the Code of Civil Procedure of the state is cited as defining the limitation. It provides that "actions for the recovery of any property, real or personal, or for the possession thereof, or to quiet title thereto, or to determine any adverse claim thereon, and all actions founded upon contracts, may be maintained Submitted April 24, 1912. Decided May 13, by and against executors and administrators in all cases in which the same might The widow and son of a deceased railway the action for damages given by the em employee cannot bring in their own names ployers' liability act of April 22, 1908 (35 Stat. at L. 65, chap. 149, U. S. Comp. Stat. Supp. 1911, p. 1322), § 2, "to his or her personal representative, for the benefit of the surviving widow or husband or children of such employee," especially in Porto Rico, where the distinction between heirs and personal representatives is recognized, and where there existed a local employers' liability act when the Federal statute was enacted, which gave a cause of action, if the conditions of liability existed, to the widow of the deceased, or to his children or dependent parents. Dig. 88 35-46; Dec. Dig. § 31.] [No. 224.] 1912. N ERROR to the District Court of the have been maintained by or against their Inited States for Porto Rico to review respective testators or intestates." The supreme court of the state in a num- a judgment in favor of plaintiffs in an acber of decisions has considered that sec- tion brought by the widow and son of a tion to mean that an heir is not a necessary deceased railway employee, under the emparty with the administrator. Cunning-'ployers' liability act. Reversed without *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes *552 *551 prejudice to such rights as the personal allegations against it of speed and failure representative may have. to inspect the wheels, alleged that they were inspected, and that no defects were The facts are stated in the opinion. Messrs. N. B. K. Pettingill and F. L. visible or could be ascertained. It also put Cornwell for plaintiff in error. in issue the allegations of the complaint in Mr. Willis Sweet for defendants in er- regard to Ernest Victor Birch. ror. *Mr. Justice McKenna delivered the opinion of the court: Action for damages for the death, through the alleged negligence of plaintiff in error, of the husband and father of defendants in error, who are, respectively, deceased's widow and son. The action was originally brought by Ann Elizabeth Birch. A demurrer was filed to the complaint, which was sustained in part, and the court directed counsel "to so amend the complaint as to show whether or not the plaintiff is the sole heir of the deceased, or, if she sues for the benefit of certain other heirs, then the complaint must specifically state the name of said other heirs, and state under what law the said action is brought." An amended complaint was filed, alleg ing that the deceased, Francisco Abraham Birch, was, when killed, at his post of duty as brakeman on a train of the railroad which was running through the city of Aguadilla at a high rate of speed, and contrary to an ordinance of the city, in consequence of which speed and a defect in one of the wheels of the car the body of the car left the tracks and was thrown to the ground, crushing the deceased beneath it, and thus causing instant death. It is alleged that a proper inspection of the wheels would have disclosed the defect in it, and, further, that if the train had been running within the limits of the requirements of the law, the train might and would have been stopped before the accident occurred. At the time of his death, it is alleged, that the deceased was forty-seven years of age, was receiving $42 per month, was a skilled and efficient railroad employee, and was in vigorous health and strength. And it is alleged that his death was caused without negligence on his part, and while he was in the faithful discharge of his duty. It is declared that the "action is based upon an act of Congress entitled, 'An Act Relating to the Liability of Commor Carriers by Railroad to Their Employees in Certain Cases,' approved April 22, 1908." [35 Stat. at L. 65, chap. 149, U. S. Comp. Stat. Supp. 1911, p. 1322.] It is alleged that Ernest Victor Birch was poor in health and frail in body, and was dependent upon deceased for support. Damages were prayed at $10,000. The railroad company denied the specific The answer alleged that no administra tion proceedings had been had on the estate of deceased, and that neither of the plaintiffs has been declared his heir, as required by law. It is also alleged that Ernest Victor Birch was over the age of twenty-one years, and that deceased was under no legal obligation to support him. The case was tried to a jury upon evidence conflicting upon certain of the issues. There was no conflict as to the circumstances of the accident, the death of Birch in the line of duty, and that the accident was caused by a broken wheel, and that the train was not equipped with air brakes, but only with the ordinary hand brakes. There was conflict as to the speed of the train and as to whether the engineer in charge of the locomotive could see signals to stop, or whether he disregarded them. The instructions of the court, so far as material, will be noticed presently in considering the assignments of error. These assignments are: (1) The court erred in overruling the demurrer; (2) in denying the motion to dismiss the action and direct verdict on the ground that it had not been brought by the personal representative of the deceased, as required by the statute upon which it was based; (3) in holding that the heirs could sue in their own names; (4) in refusing to give the fol lowing: "That the court instruct the jury that the Federal act with regard to safety appliances has no application to the question at bar." And (5) in refusing to instruct the jury as follows: "That they [the plaintiffs in action] are entitled to recover the actual compensation that they would have received if he [the deceased] had not been killed, and that would be limited to the purchase of an annuity for his recognized period of life." These assignments are reducible to three propositions, to wit: (1) the capacity of plaintiffs to sue, (2) the application of the safety-appliance law, and (3) the measure of damages. Their discussion requires a consideration of the employers' liability law, as the amended complaint is based on that law. Section 2 of the act provides as follaws: "That every common carrier by railroad in the territories, the District of Columbia, the Panama canal zone, or other possessions of the United States, shall be liable in damages to any person suffering injury while he is-employed by such carrier in any of said *553 |