Henkel v. Chicago, St Ry Co

• Decision Date: 15 February 1932
• Docket Number: No. 387,387
• Citation: 76 L.Ed. 386,284 U.S. 444,52 S.Ct. 223
• Parties: HENKEL v. CHICAGO, ST. P., M. & O. RY. CO
• Court: U.S. Supreme Court

284 U.S. 444

52 S.Ct. 223

76 L.Ed. 386

HENKEL

v CHICAGO, ST. P., M. & O. RY. CO.

No. 387.

Argued Jan. 21, 1932.

Decided Feb. 15, 1932.

Messrs. Everett Sanders, of Chicago, Ill., and Frederick M. Miner, of Minneapolis, Minn., for Henkel, administratrix.

Mr. William T. Faricy, of St. Paul, Minn., for Chicago, St. P., M. & O. Ry. Co.

Mr. Chief Justice HUGHES delivered the opinion of the Court.

This action was brought in the federal District Court for the District of Minnesota under the Federal Employers' Liability Act (45 USCA §§ 51-59) to recover damages for the death of the plaintiff's intestate. Upon obtaining a verdict, the plaintiff asked for an order allowing fees for expert witnesses who had testified at the trial. The application was made under the following provision of the Minnesota statutes (Mason's Minn. St. 1927, § 7009): 'Expert witnesses-The judge of any court of record, before whom any witness is summoned or sworn and examined as an expert in any profession or calling, may, in his discretion, allow such fees or compensation as in his judgment may be just and reasonable.'

Under this statute it appears to be the practice of the state courts of Minnesota to allow reasonable fees of expert witnesses, which are included in the taxable costs and become part of the judgment. The allowance is in the discretion of the trial court. Farmer v. Stillwater Water Company, 86 Minn. 59, 90 N. W. 10; Melander v. County of Freeborn, 170 Minn. 378, 381, 212 N. W. 590, 591.

The District Court denied the application for want of power under the federal statutes. The Circuit Court of Appeals, having the judgment before it on appeal, has certified to this court the following question: 'Has a United States District Court power and authority to allow expert witness fees, and to include the same as part of the taxable costs in a law case, said United States District Court being for and sitting in a State the Courts of which are by a state statute authorized, in their discretion, to allow expert witness fees, and the practice and usage in said state courts being to make such allowances and to include the same in the taxable costs, but there being no such usage and practice in said United States District Court?'

The Judiciary Act of September 24, 1789, c. 20, 1 Stat. 73, contained references to costs, but no fee bill. By the Process Act of September 29, 1789, c. 21, 1 Stat. 93, it was provided that the 'rates of fees * * * in the circuit and district courts, in suits at common law,' should be the same as were 'used or allowed' in state courts. This was a temporary act (Act May 26, 1790, 1 Stat. 123, Act Feb. 18, 1791, 1 Stat. 191) but, under it and later legislation of a similar sort, the federal system was put in operation. It thus became 'the practical usage by the courts of the United States to conform to the state laws as to costs, when no express provision has been made and is in force by any act of congress in relation to any particular item, or when no general rule of court exists on this subject.' Mr. Justice Woodbury in Hathaway v. Roach, 2 Woodb. & M. 63, 67, Fed. Cas. No. 6,213; Mr. Justice Nelson in Costs in Civil Cases, 1 Blatchf. 652, Fed. Cas. No. 18,284; The Baltimore, 8 Wall. 377, 390-392, 19 L. Ed. 463; Ex parte Peterson, 253 U. S. 300, 316, 40 S. Ct. 543, 64 L. Ed. 919. But when the Congress has prescribed the amount to be allowed as costs, its enactment controls. The Baltimore, supra.

Specific provision as to the amounts payable and taxable as witness fees was made by the Congress as early as the Act of February 28, 1799, c. 19, § 6, 1 Stat. 624, 626. See, also, Act of February 26, 1853, c. 80, § 3, 10 Stat. 161, 167, Rev. St. § 848 (28 USCA § 601). The statute now applicable is the Act of April 26, 1926, c. 183, 44 Stat. 323. U. S. Code tit. 28, § 600a to 600d (28 USCA §§ 600a to 600d).¹ Under these provisions, additional amounts paid as compensation, or fees, to expert witnesses cannot be allowed or taxed as costs in cases in the federal courts. The William Branfoot (C. C. A.) 52 F. 390, 395; In re Carolina Cooperage Company (D. C.) 96 F. 604, 605; Bone v. Walsh Construction Company (D. C.) 235 F. 901, 903, 904; Cheatham Electric Company v. Transit Development Company (C. C. A.) 261 F. 792, 796.

The appellant, seeking the application of the statute of Minnesota, invokes the rule that 'the laws of the sev- eral states, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.' U. S. Code tit. 28, § 725 (28 USCA § 725). But this provision, by its terms, is inapplicable, as the Congress has definitely prescribed its own requirement with respect to the fees of witnesses. The Congress has dealt with the subject comprehensively, and has made no exception of the fees of expert witnesses. Its legislation must be deemed controlling, and excludes the application in the federal courts of any different state practice. Sanborn v. United States, 135 U. S. 271, 282, 283, 10 S. Ct. 812, 34 L. Ed. 112; Northern Pacific Railway Company v. Washington, 222 U. S. 370, 32 S. Ct. 160, 56 L. Ed. 237; Second Employers' Liability Cases, 223 U. S. 1, 55, 32 S. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Missouri Pacific Railroad Company v. Porter, 273 U. S. 341, 346, 47 S. Ct. 383, 71 L. Ed. 672; Lindgren v. United States, 281 U. S. 38, 45, 50 S. Ct. 207, 74 L. Ed. 686.

In Ex parte Peterson, supra, the question related to the fees of an auditor appointed by the court, and as the court had power to appoint him, and there was no statute or rule of c...