Burrow v. Kansas City, Ft. S. & M. R. Co.

• Decision Date: 27 February 1893
• Docket Number: 3,114.
• Citation: 54 F. 278
• Parties: BURROW v. KANSAS CITY, FT. S. & M.R. CO.
• Court: U.S. District Court — Western District of Tennessee

54 F. 278

BURROW v. KANSAS CITY, FT. S. & M.R. CO.

No. 3,114.

United States Circuit Court, W.D. Tennessee.

February 27, 1893

J. J Dupuy, for the motion.

Adams &amp Trimble, opposed.

HAMMOND J.:

This was an action at law against a foreign corporation for damages claimed by plaintiff from the defendant for negligently causing the death of her husband in Arkansas, and it resulted in a verdict in the defendant's favor with judgment for costs against the plaintiff and the surety on her $250 prosecution bond in the case. The only items involved in the motion are the fees of four of the defendant's witnesses. The case was continued two or three times at plaintiff's instance, and the witnesses attended at each term until the call of the case for trial. Under the practice of the court these witnesses proved on oath before the clerk their per diem and mileage fees as follows:

John Cocker, first term, 3 days, 487 miles .............		$ 53 20
G. L. Bowers, first term, 3 days, 287 miles ....	$33 20
Idem, second term, 2 days, 287 miles ............	31 70
	------	64 90
W. F. Caudle, first term, 3 days, 487 miles ....	$53 20
Idem, second term, 2 days, 487 miles ............	51 70
Idem, third term, 2 days, 226 miles .............	25 60
	------	130 50
J. P. Sullivan, first term, 3 days, 287 miles ..	$33 20
Idem, second term, 2 days, 287 miles ............	31 70
Idem, third term, 3 days, 287 miles .............	33 20
	------	98 10
		------
Total amount proven ................................		$346 70

These fees are computed at $1.50 per diem for attendance and five cents a mile for the distance traveled each way. Plaintiff, in her motion, prays that 'mileage be stricken out of the cost bill in this case,' and insists in argument that, if any mileage be allowed, it should only be for 100 miles on each trip of the witnesses, which would make these fees as follows:

John Cocker, one trip, 3 days, 100 miles ........	$ 14 50
G. L. Bowers, two trips, 5 days, 200 miles ........	27 50
W. F. Caudle, three trips, 7 days, 300 miles ......	40 50
J. P. Sullivan, three trips, 8 days, 300 miles ....	42 00
	------
	$124 50

The fees, as proven by these witnesses, have all been respectively assigned by them to the defendant, and it has paid them the following sums in consideration of such assignment and as a compensation for the time lost by them as witnesses in this case, viz.:

John Cocker the sum of .....	$17 31
G. L. Bowers the sum of .....	35 96
W. F. Caudle the sum of .....	75 50
J. P. Sullivan the sum of ...	29 41 --or $158 18

The defendant only claims in this behalf the amounts so actually expended by it in procuring the attendance of these witnesses, a sum considerably less than half the amount proven, and somewhat exceeding the taxation at 100 miles travel for each trip. None of these witnesses were subpoenaed, except Cocker, by the plaintiff, during the trial, while in voluntary attendance upon the court as a witness for defendant. Caudle and Bowers were not in fact examined as witnesses, the plaintiff's evidence being such as made their examination unnecessary; but they all attended the court in perfect good faith, and their attendance was procured 'at the instance and request of defendant's counsel, and for the purpose of testifying in behalf of defendant,' as the plaintiff alleges in her affidavit filed in support of this motion. The witness Cocker was an employ of the Pullman Palace Car Company, while Bowers and Sullivan were employes of the defendant railroad company, though Caudle was not.

HAMMOND J.,

(after stating the facts.) Costs in the federal courts include, among other items, 'the amount paid printers and witnesses,' (Rev. St. Sec. 984,) and defendant can therefore recover here only the amount actually paid by it to each of these witnesses, (O'Neil v. Railroad Co., 31 F. 663; Beckwith v. Easton, 4 Ben. 358; The Highlander, 19 How.Pr. 334.) And it cannot even recover the amount so paid if in any instance such amount exceed the legal fees due to the witness. Nor can these fees of the different witnesses be grouped together, in order to make the sum equal or exceed the entire amount paid to them all.

Section 848 of the Revised Statutes, prescribing the fees of witnesses in the federal courts, is as follows:

'For each day's attendance in court, or before any officer pursuant to law, one dollar and fifty cents, and five cents a mile for going from his place of residence to the place of trial or hearing and five cents a mile for returning.'

This provision is compiled from section 3 of the act of congress approved February 26, 1853, (10 St. at Large, p. 167,) the punctuation in the revision as quoted following that of the original act as published. The statutory provision relating to the issuance of subpoenas is the following:

'Subpoenas for witnesses who are required to attend a court of the United States, in any district, may run into any other district: provided, that in civil causes the witnesses living out of the district in which the court is held do not live at a greater distance than one hundred miles from the place of holding the same. ' Rev. St. U.S. Sec. 876.

Under this provision defendant could not have procured the issuance and legal service of process of subpoena to procure the attendance of these witnesses on the trial of the case if they resided out of the state, and more than 100 miles from the place of holding court. And, even though they lived within the reach of process under the statute, if they were material witnesses for the defendant upon the trial of the issues involved in the suit, and their voluntary attendance was procured, without subpoena, in entire good faith on the part of defendant, through its counsel, of which there cannot be the slightest doubt, it would seem to be wholly immaterial to the plaintiff whether they were actually subpoenaed or not. The only office of the writ is to procure the attendance of the witnesses, and good faith is no less required in procuring their attendance by means of compulsory process than voluntarily. A party will no more be allowed to multiply costs unnecessarily by the procurement under process of immaterial witnesses or material ones in numbers largely in excess of the reasonable requirements of a case, than without process. Here these witnesses, no matter where their residences, might have been served with subpoena upon their arrival at the court, and, had writs issued for that purpose, plaintiff would now be liable to pay as costs the fees accruing thereunder in addition to what she must pay as it is; for by far the better opinion and the weight of authority are that the service of subpoena upon their arrival at the court, and, had writs issued for that purpose, plaintiff would now be liable to pay as costs the fees accruing thereunder in addition to what she must pay as it is; for by far the better opinion and the weight of authority are that the service of subpoena upon a witness is not a prerequisite to his right to fees from the party in whose behalf he in good faith attends the court, nor to the consequent liability of the losing party for the costs of such fees when paid by his adversary. U.S. v. Sanborn, 28 F. 299; Cahn v. Monroe, 29 F. 675; Anderson v. Moe, 1 Abb. (U.S.) 299; U.S. v. Williams, 1 Cranch, C.C. 178; Cummings v. Akron, etc., Co., 6 Blatchf. 509; Dennis v. Eddy, 12 Blatchf. 195; The Syracuse, 36 F. 830; In re Williams, 37 F. 325; The Vernon, 36 F. 113; Eastman v. Sherry, 37 F. 844. And such has always been the practice in this district, as an examination of the records of the court show. Nor does it make any difference whether he was sworn or not, provided always, of course, that his attendance was procured by the party to the suit in good faith, and that his testimony was deemed material to the issues involved. Clark v. American Dock & Imp. Co., 25 F. 641; Hathaway v. Roach, 2 Woodb. & M. 63.

The first question here, then, is one of fact as to the residence of these witnesses. They know where they reside, and have sworn to the facts before the clerk, and upon their oaths have proven the number of miles traveled by them respectively from their places of residence in Missouri to Memphis, Tenn where the court is held in which the case was tried. Opposed to this is the affidavit of plaintiff that 'she is informed and believes' that the witness Cocker is 'a resident and citizen of the county of Shelby, and city of Memphis, and that he made his home in Memphis,' running as a Pullman car porter between here and Springfield, Mo., and did not come to Memphis as a witness to testify on the trial, but, being here, simply remained at defendant's request. Counsel for defendant makes oath in this regard that said witness 'made his home and headquarters at Kansas City, Mo.,' and 'that his attendance was procured at Memphis upon application to the superintendent of the Pullman Palace Car Company at Kansas City; and that said Cocker was sent here from Kansas City to Memphis for the purpose of testifying. ' The...