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listened to, together with the evident lack of sympathy displayed, without doubt augmented her sufferings. Such tortious acts following the assault upon her were a breach of the contract, and were properly considered by the jury in aggravation of damages. The La Gascogne (D. C.) 135 Fed. 577; The Willamette Valley (D. C.) 76 Fed. 838; Gillespie v. Brooklyn Heights R. R., supra.

The damages awarded by the jury were excessive, and would seem to indicate either a feeling of prejudice, or that the jury did not fully understand the instructions of the court pointing out that, however painful were the sufferings of libelant, she was not entitled to recover punitive damages. A careful consideration of the testimony upon the subject of the injuries sustained, and the subsequent acts of the master and the special officer in aggravation thereof, will not permit me to confirm the action of the jury in this regard. The evidence shows that the libelant was of the age of 51 years, and that, after the assault, she suffered from intermittent nervous attacks. She was not confined to her bed, nor did she deem it necessary to have medical attendance. Dr. Krauss, basing his testimony upon an examination of the libelant shortly before the trial, states that he discovered a marked exaggeration of the muscular reflexes of the body, which indicated a hypersensitive condition of the nervous system; but in other respects she seemed to him reasonably strong and healthy. He testified that her nervous condition was owing to the injuries complained of, and was "more or less permanent.”

In my judgment the amount of the recovery should be reduced to $5,000, a liberal reward; but, considering the pain and anguish of mind and body, together with the humiliation which the libelant suffered on account of the discourteous treatment of the ship's servants, it is, however, thought a just compensation for the injuries sustained.

(Circuit Court, W. D. Pennsylvania. February 27, 1907.)

No. 13.


Act Pa. April 4, 1868 (P. L. 58), which provides that, "wlien any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots, and premises of railroad property, or in or about any train or car therein or thereon, of which company such person is not an employé, the right of action and recovery in all such cases against the company shall be such only as would exist If such person were an employé, provided, that this section shall not apply to passengers," is applicable to the case of a conductor in the employ of a sleeping car company in charge of a car of such company forming part of a train of a railroad company, and who is injured or killed in a collision, and there can be no recovery therefor against the railroad company, where the collision was the result of the negligence of the de fendant's servants engaged in the operation of its trains. On Demurrer to Plaintiff's Statement. Thos. M. Marshall, Jr., A. O. Fording, and B. L. Sen, for plaintiff. Dalzell, Scott & Gordon, for defendant.

EWING, District Judge. This is an action brought by Charlotte Scott, a citizen of the state of Illinois, against the Pennsylvania Company, a corporation of the state of Pennsylvania, for the purpose of recovering damages, under the provisions of the Pennsylvania Statutes of 1851 and 1855, for the death of her husband, Charles F. Scott, while in the discharge of his duties as a Pullman car conductor on a train operated by the defendant company, in Pennsylvania, on March 3, 1905. The said Charles F. Scott left the plaintiff, his widow, and no children, surviving.

The statement sets forth that:

"On the said 3d day of March, 1905, said Charles F. Scott was riding in a certain train operated by the said defendant. Said Charles F. Scott was then and there in the employment of a certain corporation known as the Pullman Company, as a conductor collecting Pullman car fares and having charge for the said Pullman Company of certain cars belonging to that company (commonly known as Pullman cars), which cars were then and there being used by the defendant as a part of the said train for the transportation of its passengers. Said Charles F. Scott was then and there riding upon the said train by the permission and invitation of the defendant company for the purpose of performing on the said train bis duties as an employé of the Pullman Company. At the same time and on the same line of railroad the defendant company was engaged in the operation of a certain other train following that upon which said Charles F. Scott was riding, upon the same track. The defendant company, on or before the said 3d day of March, 1905, had established a complete system of modern block signals along the said railroad, the regular and customary use of which, if the said signals had been properly shown and properly heeded by the employés of the defendant company, would have prevented the said following train from coming within any block or section of road in which the said first train was running or standing. On the said 3d day of March, 1905, the said train first referred to was stopped by the defendant company at or near Clifton Station, in Pennsylvania, and, while the said train was there standing, the defendant company and its employés did with gross negligence and carelessness so conduct the operation of its said railroad as that the said following train, at a high rate of speed, ran into and struck with great force against the said first train, and thereby wrecked the said first train, and in so doing killed said Charles F. Scott."

The only cause of the accident that can be inferred from the plaintiff's statement is that it was the result of negligence on the part of either the signal men or the engineer of the following train, or both, and this is the theory upon which the argument on the demurrer was made.

To this statement the defendant filed a demurrer, alleging substantially two grounds: First, that plaintiff, as a citizen of the state of Illinois, is not entitled to recover for the injuries alleged to have resulted to her as set forth in her said statement; and, second, that the case is clearly brought within the provisions of the statute of Pennsylvania of April 4, 1868 (P. L. 58), which provides:

"That when any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots, and premises of railroad property or in or about any train or car therein or thereon, of which company such person is not an employé, the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employé, provided, that this section shall not apply to passengers."

By reason of the view taken of the second ground of demurrer, it is unnecessary to dwell at length upon the first, consequently no opinion is expressed thereon.

Plaintiff's counsel frankly admits in his brief that whether the plaintiff's statement sets forth such negligence as constitutes a cause of action must be determined in the light of the act of April 4, 1868, and that in this case the court must deem for the purpose that decedent was on the pay roll of defendant and under its orders, but engaged in collecting special fares, etc. Also, that "this puts decedent in the like relation to the train and to the operation of the road as a baggageman, or any other employé whose work is inside.”

Under these circumstances, however much may be said pro and con regarding the justice of the provisions of said act of 1868, in all cases to which it has been applied, I do not see how, under the decisions in those cases, it is possible to distinguish this from the case of a baggagemaster, or a porter, or a mail clerk, all of whom have been held to be within the provisions of that act. Unquestionably, the conductor of a Pullman car assumes as part of the risk of his employment the danger of injury from negligence on the part of those operating the train upon which he must travel in the discharge of his duties, and if that be the case, and, while not in the employ of the railroad company directly, he is yet brought within the category of such employés, it must be concluded that, like them, he is without remedy when injured in consequence of the neglect of the employés of said company.

It might be interesting, but could serve no good purpose that I can now see, to call attention to the various cases, both in the courts of this state and the federal courts, where this principle of the assumption of risk. by employés and the validity of the provisions of said act of 1868 are examined and determined. It is sufficient to say that no case has been cited by counsel for the plaintiff, and I have been able to discover none, which casts, in my opinion, any doubt upon the application of that principle and of the act of 1868 to the admitted facts in this case.

Consequently, I am constrained to sustain the demurrer on that ground.

(District Court, E. D. Pennsylvania. March 8, 1907.)

No. 2,252.

The priority of a landlord's lien given by a state statute for rent in arrears at the time proceedings in bankruptcy were begun, while preserved by Bankr. Act July 1, 1898, $ 64, cl. “b" (5) c. 541, 30 Stat. 563 (U. S. Comp. St. 1901, p. 3448), giving priority to debts owing to any person who by the laws of the state is entitled to priority, does not entitle such landlord's claim to priority over all other claims whatever, but only over those not

specified in such section as being higher in right.
In Bankruptcy.
J. Frank Staley, for petitioner,
Henry N. Wessel, for creditors.

J. B. MCPHERSON, District Judge. This is a claim by a landlord to be paid in full for rent accrued at the date of filing the petition, before any other payments are made out of the fund. The facts appear in the following report of the referee, David W. Amram, Esq.:

"The petitioner was landlord of premises 236 Chestnut street, occupied by the Consumers' Coffee Company, bankrupt. On May 15, 1905, three months rent, amounting to $750, was due to him. On May 18, 1905 petition in bankruptcy was filed against the Consumers' Coffee Company, the tenant. A receiver was appointed, who, acting under order of the District Court, continued the business of the bankrupt for about one year. On April 9, 1906, an adjudication in bankruptcy was entered, and the matter referred to me as referee. On May 1, 1906, at an adjourned first meeting of creditors, at which the landlord was represented, the receiver filed a petition, praying for leave to sell the assets of the bankrupt estate, upon the said premises, 236 Chestnut street, at private sale, for the sum of $700. After due notice to creditors the said petition was considered at an adjourned first meeting of creditors, held May 15, 1906, at which the landlord was represented, and, no one objecting, approved and an order made by me, authorizing the trustee to sell in accordance with the prayer of the petition. On the same date, to wit, May 15, 1906, the landlord filed several proofs of debt, among thein a proof for his said claim of $750, for rent due May 15, 1905.

"It is alleged by the petitioner that before the above-mentioned private sale of the assets, he gave notice to the receiver that he had a lien on the fixtures at said premises, 236 Chestnut street, for the rent due prior to the filing of the petition in bankruptcy, and directed him to hold the fixtures or to earmark the fund arising from the sale of the same. The receiver having failed to file an account, the landlord filed a petition for citation on the receiver to show cause why he should not forthwith file his account. An order was made thereon, and, in compliance therewith, the receiver filed his account on October 12, 1906. At a special meeting of creditors, called for the purpose of auditing said account, held October 25, 1906, the receiver did not appear, and the landlord, through his attorney, prayed for an order on the receiver to appear at a subsequent meeting with his books and records, which order was made and a certified copy thereof served on the receiver by the landlord. At an adjourned special meeting, held November 1, 1906, the re ceiver appeared, the landlord was present and represented, and an examination of the receiver was commenced by Henry N. Wessel, Esq., acting for the creditors. Before the examination was concluded the attorney for the landlord made a formal oral application of record for the payment of the $700, arising from the sale of the fixtures at 236 Chestnut street, and further proceedings in the matter and examination of the receiver were discontinued, pending the consideration of this application. On November 23d the landlord filed a formal petition, praying for an order on the receiver to pay over to him the said sum of $700; the reasons alleged by the landlord for this demand are that he had a lien on the fixtures in said premises at the time of the bankruptcy, and that, as these fixtures were the same as the ones subsequently sold by the receiver, the receiver sold them subject to his landlord's lien, and that therefore he was entitled to the entire proceeds of the sale thereof inasmuch as his claim for rent exceeded the amount realized.

“It appears from the receiver's account that the total assets in his hands, as of the date of the filing of his account, were $807.98, in which sum are included the $700 received from the sale of the fixtures at 236 Chestnut street. His liabilities, as of the date of the filing of his account, contracted by him while conducting the business under order of court, appear to be $5,086.48. The examination of the receiver was commenced by the attorney acting on behalf of the creditors, for the purpose of ascertaining the manner in which the receiver conducted the business, and for the purpose of making proper inquiry as to the reason for this extraordinary condition of the receiver's account. The liability of the receiver to the claimants set forth in his account has not yet been formally established, nor has the amount of the expenses of

the administration been fixed; nevertheless the landlord insists that he is entitled to immediate payment of the amount of rent due to him before the expenses of administration or the debts contracted by the receiver, either in preserving the assets or conducting the business, can be paid.

"The landlord is a creditor, entitled to priority of payment under section 64b (5), Act July 1, 1898, c. 541, 30 Stat. 563 (U. S. Comp. St. 1901, p. 3448). He has proven his debt in proper form, and after other debts entitled to priority of payment, as set forth in the said section of the act, have been paid, bis claim will be entitled to payment before any of the unsecured creditors of the bankrupt. He alleges, however, that he is not merely a creditor, but that he had a lien on the assets of the bankrupt estate, which lien is preserved and recognized by the bankruptcy law. Section 67 of the act (30 Stat. 564 (U. S. Comp. St. 1901, p. 3449]), sets forth the law with regard to liens on property of the bankrupt estate. I am not aware of any decision which justifies the view of tbe landlord, but merely by virtue of the contract of lease he is & lien claimant, in the sense in which the term is used in the act. On the contrary, the decisions are to the effect that the landlord is merely a creditor, who must prove his debt, but who is entitled to priority of payment in the . bankruptcy proceedings if such priority is given to him under the laws of the state. I cannot agree with the position taken by the landlord that he has bigher rights to the fund in the hands of the receiver than the creditors of the receiver, and that bis claim is entitled to payment before the expenses of administration, or any of the other debts which have priority under the first four clauses of section 64b of the bankruptcy law.

"Apart from this view of the matter, I have very serious doubts as to whether the landlord, assuming that he had a lien, has not waived it by reason of his consent to the receiver's possession of the assets (which be claims 28 subject to his lien] for upwards of a year, and bis failure to make any effort to have his rights as lien claimant established. "The petition is dismissed.”

In my opinion the learned referee was right in dismissing the landlord's petition. Even if a lien, properly so called, exists under the Pennsylvania statute for the rent in arrear at the time when the proceedings in bankruptcy were begun, the statute cannot override the act of Congress. While the priority of the landlord's claim is undoubtedly preserved by clause "b" (5) of section 64, this priority is not over all other claims whatever, but only over those that are not specified in the section as being even higher in right. The order of distributing the assets of a bankrupt having thus been expressly laid down by Congress, that order must be followed by a federal court.

Moreover, I incline to doubt whether clause “d” of section 67 can be properly construed to include a landlord's lien under the Pennsylvania statute. This is the only clause that can be held to support the petitioner's contention, and it is certainly a matter for serious consideration whether a lien that exists, if at all, only by operation at law, falls within the class of “liens given or accepted in good faith, etc.” Such a lien is neither "given" nor "accepted"; it exists without action by either the landlord or the tenant, and depends for its being whclly upon the statute.

The construction could not be said to do violence to the ordinary meaning of the clause, which held that a tenant did not "give" such a lien, nor did the landlord "accept" it. But even if it be conceded for present purposes that clause "d" includes the lien in question, it must be read in connection with clauses “a” and “b” of section 64, and must be so construed as to harmonize therewith, if harmony can be reached by a fair construction. Taking both clauses together, therefore, I

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