her neck, and she told him she did not want him to touch her, but gave no evidence that this person was a physician, or that there was any farther communication between them. There was no other evidence upon this subject in her direct examination, and this constituted no waiver of the privilege, because it did not recite or set forth any of the conversations with her or any of the information relative to her condition or her injury, which the physicians secured by virtue of their professional relation and the defendant sought to introduce by means of them. It is true that on her cross-examination the plaintiff testified that the person who attempted to examine her said he was a Union Pacific doctor, that another person came who said he was not a Union Pacific doctor, and she refused to permit him to make an examination, and he accompanied her to her home. But this testimony was not volunteered, and there was no recital of the information secured by the doctors in it, and consequently no waiver of her privilege.

Counsel have cited in support of their claim of waiver here the argument of Prof. Wigmore, in section 2389 of the third volume of his work on Evidence, that the law ought to be that the commencement of an action on account of a physical ailment or the voluntary testimony of the plaintiff to his physical condition is a waiver of his privilege to prevent his physicians from testifying concerning them. Suffice it to say that the learned author himself concedes, and the statutes of the states and the unvarying current of authority demonstrate, that the settled law of the land is otherwise. Williams v. Johnson, 112 Ind. 273, 13 N. E. 872; McConnell v. Osage, 80 Iowa, 293, 45 N. W. 550, 8 L. R. A. 778; Green v. Nebagamain, 113 Wis. 508, 89 N. W. 520, 521. The only other authority brought forward to sustain the waiver is Sovereign Camp of Woodmen of the World v. Grandon, 64 Neb. 39, 89 N. W. 448, a case in which the introduction by the plaintiff of a written statement by the physician of the condition of the patient was held to be a waiver of the privilege to object to his testimony to that condition, a proposition which is conceded, but which has no application to the facts of this case.

Two physicians went to the hospital and examined the plaintiff, and one of them testified that he came to the conclusion that she was suffering from traumatic hysteria. The other physician had testified in the case and was in court, but no foundation had been laid to impeach him. Counsel complain because the first doctor was not permitted to testify that the second concurred with him in his conclusion. The ruling was right. The proposed evidence was nothing but hearsay.

There was evidence at the trial that the plaintiff was suffering from traumatic ulcers of the stomach, which might not be relieved by medical treatment, and the defendant offered the evidence of experts that this disease might and probably would be relieved by a surgical operation, which consisted of making a new opening in the lower part of the stomach and in the bowel below it and securing the latter to the former, so that the contents of the former might pass through this opening and through the latter. Objections were interposed to this evidence, and a colloquy arose between counsel for the railroad company and the court relative to its admissibility, in which the court ex

152 F.-24

pressed the opinion and ruled that it was immaterial. In the course of the colloquy, the court said, among other things:

"I think, where a person is injured by the wrongful act of another, the law only says to them you must exercise proper care in the selection of a reputable physician, and when you do that you must be governed by his advice, follow his advice and prescriptions, and it is no defense to say that had the physician followed some other course, prescribed some other remedies, results would have been different. That is no defense. The layman that is injured is not a physician; and all he has to do is to exercise proper care in selecting a reputable one and follow his directions; and, if the directions are not proper, it is the fault of the one who caused the layman to act. If that is true up to this time, why is it not true as to the future? You come in with one person on the stand who says: 'If you will take so many bottles of Peruna, that will cure you.' Another one says: 'If you will submit to a surgical operation, that will cure you.' And another one says: 'Some Pink Pills, or something of that kind, will cure you.' Has a person got to jump around and try all those different experiments that might be suggested by the other side, or may they not rely upon the advice and direction of the competent physician whom they have selected themselves, and in whom they have every confidence?"

Later in the trial all objections to this evidence were withdrawn, i was received, the court charged the jury that testimony had been introduced to show that plaintiff's future health could be restored by the surgical operation, and that, if her health could be thus restored. it was proper and competent for them to take into consideration the reasonable probability of such restoration in measuring her damages from future suffering and expense, and whether or not, considering both the rights of the plaintiff and the defendant, she should be required to submit to such an operation in view of the danger to life therefrom which had been disclosed by the evidence. No complaint is made of the charge upon this subject because it is in accord with the theory of the defendant. Nor was there any reversible error in the ruling of the court that the evidence was inadmissible, because this, if it existed, was extracted by the subsequent admission of the testimony and the favorable charge of the court. But counsel insist that the remarks of the court during the discussion of the admissibility of this evidence, especially those which placed the surgical operation in the same category with Peruna and Pink Pills, so belittled this branch of their defense that they were deprived of a fair and impartial trial. But the record does not appear to us to sustain this contention. These remarks were made upon an objection which was rightly sustained to this irrelevant question: "What surgical operations, doctor, are performed in cases of this character?" They were made, it is true, in a discussion of the general admissibility of evidence that the plaintiff's disease might be cured by a surgical operation; but they were made before that evidence had been introduced and for the legitimate purpose of informing counsel who proposed it of the reasons why it appeared to the court that it was incompetent, to the end that if possible they might overcome these reasons by more cogent ones in support of its admissibility, a task which they seem to have performed to the terror, if not to the satisfaction, of opposing counsel. Though these remarks were heard by the jury, they were not addressed to them, but to the counsel for the company. They were not intended to, and did not, instruct the jury of the weight

and effect of the testimony relative to the surgical operation which was actuallly introduced, because that evidence had not been developed. The charge of the court at the close of the trial upon this subject was their instruction and guide, and counsel concede that there was no mistake or error in that. There is a locus penitentiæ for court as well as for counsel in the trial of a lawsuit. If, in the admission or rejection of evidence, or in the discussion of questions of law or the effect of facts in the course of the trial, it falls into errors or mistakes which it discovers before the case is submitted to the jury, it may generally reverse its rulings, correct its errors, and so charge the jury that no injury will result to the parties, and that the jury will deliberate and decide according to the law and the evidence. A careful examination of the record has convinced that the court below perfectly accomplished this result in this case. The jury were not, they could not have been, misled. They knew that the remarks of the judge in the colloquy with counsel were not for their guidance, and that his charge to them at the close of the trial was, and they undoubtedly followed the latter. Besides, there was no error of law in the ruling at the close of the colloquy, and the only mistake was in the comment of the court upon the issues of fact, all of which were subsequently submitted to the jury under proper instructions, and the opinion of the trial court upon matters of fact which are ultimately properly submitted to the jury for their decision is not reviewable error in the national courts so long as no rule of law is incorrectly stated. Lesser Cotton Co. v. St. Louis, I. M. & S. R. Co., 52 C. C. A. 95, 104, 114 Fed. 133, 142; Lovejoy v. U. S., 128 U. S. 171, 173, 9 Sup. Ct. 57, 32 L. Ed. 389; Rucker v. Wheeler, 127 U. S. 85, 93, 8 Sup. Ct. 1142, 32 L. Ed. 102; Railroad Co. v. Putnam, 118 U. S. 545, 553, 7 Sup. Ct. 1, 30 L. Ed. 257; Railroad Co. v. Vickers, 122 U. S. 360, 7 Sup. Ct. 1216, 30 L. Ed. 1161; U. S. v. Philadelphia & R. Co., 123 U. S. 113, 114, 8 Sup. Ct. 77, 31 L. Ed. 138.

Certain portions of the charge which relate exclusively to the facts. of the case have been assigned as error, because the court failed to state the claim and evidence of the defendant to the effect that the plaintiff was not thrown from her seat in the car as she testified, and because the court declared that there was no material controversy as to the manner of the accident. There was no error here (1) because these portions of the instructions treated of issues of fact which were ultimately submitted to the jury for their decision, (2) because in another part of the charge the court stated that the defendant claimed that the plaintiff was neither thrown from her seat in the car nor across the car, and did not sustain the injuries she claims, and (3) because the manner of the accident was the collision of the engine with the car in which the plaintiff was riding, and about this there was no controversy.

The court instructed the jury that in assessing the damages which the plaintiff had sustained they might consider her age, the probable duration of her life, and the effect of her injury upon her ability to earn money; that, if they found that her injury was caused by the accident, and that it would destroy or decrease her ability to earn money in the future, they should award her such sum as would, in

their judgment, compensate her for the decreased or destroyed ability to earn money in the future, due allowance being made for the uncertainties and contingencies which inhere in such matters; that they should allow her (1) the amount she had incurred for medical attendance and nurse hire, (2) such amount as would reasonably compensate her for the pain and suffering she had sustained, (3) the amount she had lost on account of her inability to labor caused by the accident, (4) future nurse hire and medical attendance and compensation for future suffering. A single exception, which did not specify any reason for its being, was taken to this portion of the charge, and counsel now insist that it was erroneous, because it left the jury to assess the plaintiff's compensation for future loss of earning power by a multiplication of her daily earning capacity by the working days in her expectancy of life; but no such rule was declared or suggested by the instruction, no request was made for a rule more definite than that given by the court, and no exception was taken which subjects any part of the instruction upon the measure of damages to review. There are many declarations of law in this part of the charge which are not only correct, but unquestioned, and a general exception which specifies no ground to a charge or a portion of a charge which contains many propositions of law is futile if any of the propositions it declares are sound, because it gives no notice to the trial court of the ground upon which the exception is based, and hence no opportunity to correct an inadvertent error in its statement of the law. Price v. Pankhurst, 53 Fed. 312, 3 C. C. A. 551; Lincoln v. Claflin, 7 Wall. (U. S.) 132, 19 L. Ed. 106; Cooper v. Schlesinger, 111 U. S. 148, 4 Sup. Ct. 360, 28 L. Ed. 382.

The alleged errors in the trial of this case which were assigned by the railroad company did not exist, and the judgment below must be affirmed.

It is so ordered.

KURTZ V. BROWN.

(Circuit Court of Appeals, Third Circuit. February 4, 1906.)

No. 21.

DISCOVERY-BILL OF DISCOVERY-DEFENSES.

Where an assessment has been duly ordered by a court on the shares of stock of an insolvent corporation which were not fully paid up, the receiver for the corporation, having a right of action at law against an owner of such shares to recover the assessment thereon, may maintain a bill of discovery against a broker who bought such shares for an undisclosed principal, and at the latter's instance had them transferred into the name of an irresponsible person for the purpose of concealing the real ownership, to compel him to disclose such ownership.

[Ed. Note. For cases in point, see Cent. Dig. vol. 16, Discovery, 9.]

Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.

See 134 Fed. 663.

R. M. Schick, for appellant.

Reynolds D. Brown, for appellee.

Before DALLAS, GRAY, and BUFFINGTON, Circuit Judges.

BUFFINGTON, Circuit Judge. This is an appeal from the Circuit Court for the Eastern District of Pennsylvania. In that court, Brown, the receiver of the American Alkali Company, filed a bill against Kurtz and Magee, to discover the names of the owners of certain stocks registered by Kurtz in the name of Magee, and against which persons complainant proposed to bring suits at law to recover unpaid assessments thereon. To this bill Kurtz demurred. This demurrer was overruled, and the case heard on bill and answer. Magee, the other respondent, did not appear or answer. A decree was entered directing respondents to make the discovery prayed for. From such decree Kurtz appealed.

From the bill it appears the American Alkali Company was a manufacturing corporation created by the state of New Jersey. It had 480,000 shares of common stock, full paid, and 120,000 shares preferred stock. Certificates for the preferred stock were issued, "$10 per share being paid on account of the par value of $50 by the original subscribers thereto, and the balance of $40 per share remained unpaid and subject to call." The company becoming insolvent, Brown and one Budd, since deceased, were duly appointed receivers thereof by the Circuit Court for the District of New Jersey and also in ancillary proceedings by the Circuit Court for the Eastern District of Pennsylvania. By order of the first-named court an assessment was levied by the receiver on September 19, 1905, on the holders of the said preferred stock of $2.50 per share, for the purpose of paying the debts of the company and the expenses of the receivership. On said date 3,700 shares of said preferred stock were registered in the name of Magee, one of the respondents. The bill then alleges:

"That said Henry G. Magee is not and never was the real owner of the said 3,500 shares of the preferred stock of said American Alkali Company, or any of them, but that they were purchased by the said W. Wesley Kurtz, trading as W. W. Kurtz & Company, for the purpose of concealing the names of the real owners thereof. That W. Wesley Kurtz was, on November 17, 1900, engaged in the business of buying and selling stock in the Philadelphia Stock Exchange, and 3,700 shares of American Alkali Company's preferred stock had been bought by him for clients of his, and it was for their benefit that with the consent of the said Magee he directed the agents of the American Alkali Company to issue the new certificates on November 17, 1900, in the name of said Magee. That your orator is advised that the person or persons for whose account the said 3,700 shares were purchased and placed in the name of Henry G. Magee are personally liable for the amount of said assessment."

It is conceded by counsel that unless the ruling of this court in Brown v. McDonald, 133 Fed, 897, 67 C. C. A. 59, 68 L. R. A. 462, is reversed, the decree entered below must be affirmed, and that this appeal was taken that this court might review and overrule that case. In view of the earnest and able contention of counsel, we have considered the questions involved anew; but this examination has deepened our conviction that the decision in Brown v. McDonald, as an