Arizona New Mexico Railway Company v. Thomas Clark

• Decision Date: 11 January 1915
• Docket Number: No. 347,347
• Citation: 59 L.Ed. 415,235 U.S. 669,35 S.Ct. 210
• Parties: ARIZONA & NEW MEXICO RAILWAY COMPANY, Plff. in Err., v. THOMAS P. CLARK
• Court: U.S. Supreme Court

235 U.S. 669

35 S.Ct. 210

59 L.Ed. 415

ARIZONA & NEW MEXICO RAILWAY COMPANY, Plff. in Err.,

v THOMAS P. CLARK.

No. 347.

Argued and submitted December 1, 1914.

Decided January 11, 1915.

Messrs. John A. Garver and William C. McFarland for plaintiff in error.

[Argument of Counsel from pages 670-672 intentionally omitted] Mr. William M. Seabury for defendant in error.

Mr. Justice Pitney delivered the opinion of the court:

This action, brought by Clark against the railway company, was commenced in January, 1912, in the district court of the fifth judicial district of the then territory of Arizona. It was based upon the Federal employers' liability act of 1908 (35 Stat. at L. 65, chap. 149), as amended in 1910 (36 Stat. at L. 291, chap. 143, Comp. Stat. 1913, § 8662). The complaint alleged that while defendant was engaging in commerce between the territories of Arizona and New Mexico as a common carrier by railroad, and while plaintiff was employed by defendant in such commerce, he sustained certain personal injuries through the negligence of defendant and its employees, for which he claimed damages in the amount of $40,000. After the action was commenced, and on February 14, 1912, the territory of Arizona became a state, and the further proceedings (improperly, it is said), were conducted in the district court of the United States for the district of Arizona. In that court plaintiff filed a first and a second amended complaint, and defendant, having unavailingly moved to strike the latter from the files, upon grounds not necessary to be specified, answered upon the merits, without interposing any objection to the jurisdiction of the court. A trial by jury was had, resulting in a verdict and judgment for plaintiff, and this was removed by defendant's writ of error to the United States circuit court of appeals for the ninth circuit, where the judgment was affirmed (125 C. C. A. 305, 207 Fed. 817). The present writ of error was then sued out.

Two matters only require particular discussion. The enabling act of June 20, 1910, under which Arizona was admitted as a state (36 Stat. at L. 577, chap. 310, § 33), provided in effect that actions which, at the date of admission, were pending in the territorial courts (other than the supreme court), should be transferred to and proceed in the proper Federal court in cases where, if they had been begun within a state, the Federal court would have had exclusive original jurisdiction, and that where the cause of action was one of which the state and Federal courts would have concurrent jurisdiction, the action should be transferred to and proceed in the appropriate state court, but in this case might be transferred to the Federal court upon application of any party, to be made as nearly as might be in the manner provided for removal of causes from state to Federal courts.

The present action being one of which the Federal and state courts have concurrent jurisdiction, it is insisted that upon the commencement of statehood, it should have been transferred to the proper state court, subject to removal to the Federal court upon application made in due form for that purpose; that in fact the files and records in the territorial court were never transferred to the proper state court, or to any state court; and that a certain petition of plaintiff, which appears in the record, wherein he prayed for the removal of the cause from the state to the Federal court, was insufficient and inefficacious for the purpose, for want of compliance with certain of the requirements of the removal statute. It is further insisted that in the enabling act it was the intention of Congress to provide for the removal of actions from the state to the Federal courts only in case they might have been removed if the action had not been commenced until after the admission of the territory as a state; and that, under the express prohibition contained in the amendment of § 6 of the employers' liability act, passed April 5, 1910 (36 Stat. at L. 291, chap. 143, Comp. Stat. 1913, § 8662), shortly before the passage of the enabling act, and which declares that 'no case arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States' (re-enacted as § 28, Judicial Code [36 Stat. at L. 1094, chap. 231, Comp. Stat. 1913, § 1010]), actions of this character were not removable under the general provisions of § 33 of the enabling act.

We need spend no time upon these questions, since there is no ground for denying the jurisdiction of the district court of the United States over the subject-matter, the objections urged are of such a nature that they might be waived, and the record shows that they were waived by the action of defendant in permitting the cause to proceed in the Federal court, and answering there upon the merits, without objection based upon the grounds now urged or any jurisdictional grounds. The action being one arising under a law of the United States, and the requisite amount being in controversy, the Federal district court had original jurisdiction under § 24, Judicial Code. The removal proceedings were in the nature of process to bring the parties before that court, and the voluntary appearance of the parties there was equivalent to a waiver of any formal defects in such proceedings. Mackay v. Uinta Development Co. 229 U. S. 173, 176, 57 L. ed. 1138, 1139, 33 Sup. Ct. Rep. 638. The case of United States v. Alamogordo Lumber Co. 121 C. C. A. 162, 202 Fed. 700, cited by plaintiff in error, is clearly distinguishable, for timely objection was there made.

The second matter requiring mention is the alleged error of the trial court in excluding the evidence of two physicians called by defendant for the purpose of testifying to the results of a personal examination of plaintiff shortly after he received the injuries for which damages were claimed. The trial court based the rulings upon an Arizona statute (Rev. Stat. 1901, § 2535, subdiv. 6), which reads as follows:

'6. A physician or surgeon cannot be examined, without the consent of his patient, as to any communication made by his patient with reference to any physical or supposed physical disease, or any knowledge obtained by personal examination of such patient: Provided, That if a person offer himself as a witness and voluntarily testify with reference to such communications, that is to be deemed a consent to the examination of such physician or attorney [sic].'

A material part of the injury complained of was the loss of the sight of plaintiff's left eye; and because this was set forth in the pleadings, and upon the trial plaintiff testified personally in regard to his injuries, mentioning the loss of sight and pain in the eye, and called as a witness a nurse who attended him after the accident, and who testified as to the condition of the eye, it is insisted that plaintiff in effect consented to the examination of the physicians with respect to his condition. The argument is that the statute was intended to protect persons in the confidential disclosures that may be necessary in regard to their physical condition, but was not intended to close the lips of physicians where the patient voluntarily publishes the facts to the world. In support of this, plaintiff in error cites two cases from the New York court of appeals,—Morris v. New York, O. & W. R. Co. 148 N. Y. 88, 51 Am. St. Rep. 675, 42 N. E. 410, and Capron v. Douglass, 193 N. Y. 11, 20 L.R.A.(N.S.) 1003, 85 N. E. 827. But the New York statute¹ is materially different from that of Arizona. The purpose of the latter enactment is very clearly expressed in its language. Without the consent of the patient, the physician's testimony is excluded with respect to two subjects: (a), any communication made by the patient with reference to any physical or supposed physical disease, and (b), any knowledge obtained by personal examination of such patient. And this privilege is waived, according to the terms of the proviso, only in the event that the patient offers himself as a witness and voluntarily testifies 'with reference to such communications.' We would have to ignore the plain meaning of the words in order to hold, as we are asked to do, that the testimony of other witnesses offered by the patient, or the testimony of the patient himself with reference to other matters than communications to the physician, or any averments contained in the pleadings, but not in the testimony, amount to a waiver of the privilege. The enactment contemplates that the physician receives in confidence what his patient tells him, and also what the physician learns by a personal examination of the patient. It contemplates that the patient may testify with reference to what was communicated by him to the physician, and in that event only it permits the physician to testify without the patient's consent.

The express object is to exclude the physician's testimony, at the patient's option, respecting knowledge gained at the bedside, in view of the very delicate and confidential nature of the relation between the parties. The statute recognizes that they do not stand on equal terms. The patient is more or less suffering from pain or...