*552 are [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1089-1132; Dec. Dig. § 289.*] APPEAL AND ERROR (§ 1094*)-REVIEW OF 2. A verdict of the jury in an action for personal injuries, approved by the trial court and by the circuit court of appeals, settles the disputed questions of fact. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4324, 4338; Dec. Dig. S 1094.] [No. 31.] plied only to one particular company, and | man for the injury sustained by the giving not to other companies or corporations en-way of such rail under his weight. gaged in a like business in Kansas, and thereby denied to that company the equal protection of the laws. In the case under consideration there is no attempt arbitrarily to select one mine for inspection, but only to assume that mines which worked upon so small a scale as to require only five operatives would not be likely to need the careful inspection provided for the larger mines, where the workings were carried on upon a larger scale or at a greater depth from the surface, and where a much larger force would be necessary for their successful operation. It is quite evident that a mine which is operated by only five men could scarcely have passed the experimental stage, or that precautions necessary in the operation of coal mines of ordinary magnitude would be required in such cases. There was clearly reasonable foundation for a discrimination here." This language is equally apposite in the present case. There is no attempt at unjust or unreasonable discrimination. The law is alike applicable to all mines in the state employing more than ten men underground. It may be presumed to practically regulate the industry when conducted on any considerable scale. We cannot say that there was no reason for exempting from its provisions mines so small as to be in the experimental or formative state, and affecting but few men, and not requiring regulation in the interest of the public health, safety, or welfare. We cannot hold, therefore, that this law is so palpably in viola tion of the constitutional rights involved as to require us, in the exercise of the right of judicial review, to reverse the judgment of the supreme court of Arkansas, which has affirmed its validity. The judgment of that court is affirmed. Argued November 30, December 1, 1908. I N ERROR to the United States Circuit Court of Appeals for the Fifth Circuit to review a judgment which affirmed a judgment of the Circuit Court for the Western District of Texas in favor of plaintiff in an action for personal injuries, which was removed to the Circuit Court from the District Court of El Paso County in the state of Texas. Affirmed. Statement by Mr. Justice Brewer: Defendant in error, plaintiff below, was a brakeman in the employ of the railroad company, plaintiff in error, and on February 22, 1904, was injured while in the performance of his duties as brakeman. He brought suit for $25,000 in the district court of El Paso county, Texas, charging negligence on the part of the company. Subsequently he amended his petition by adding the allegation that the car, in getting onto which he was injured, was used in interstate shipment, and that the cause of the injury was a lack of hand holds and grab irons required by the safety appliance statute of the United States. Thereupon the railroad company removed the case to the circuit court of the United States for the western district of Texas. A trial was held in April, 1906, which resulted in a judgment for $6,000. This judgment was af Dissenting: Mr. Justice Brewer and Mr. firmed by the court of appeals, and from Justice Peckham. (211 U. S. 608) EL PASO & SOUTHWESTERN RAIL- V. H. D. VIZARD. that court brought here on error. Messrs. J. F. Woodson and Millard Patterson for plaintiff in error. Messrs. W. H. Robeson and George E. Wallace for defendant in error. *Mr. Justice Brewer delivered the opinion of the court: MASTER AND SERVANT (§ 289*)—INJURY TO which plaintiff was acting as brakeman was 1. Mounting a moving open water car directed to stop at Osborne and pick up a by placing one foot on the journal box water car. This water car was a flat car and catching hold of an iron hand rail with a tank on it, a temporary water car. running through standards on the side of the car and within easy reach is not, as a It had an iron hand rail on each side and upmatter of law, contributory negligence right posts, or standards, through which, which will defeat a recovery by a brake- near the top, the rail extended, one each end For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes *610 611 of which was supposed to be a nut to hold the rail in position. After the water car and another car on the siding had been coupled to the train, the conductor gave the signal to pull out, and, as it drew near the switch, the water car passed the plaintiff, then standing on the ground. He put his foot on the journal box, reached up, and caught hold of the rail near the rear end of the car. It slipped out of the standard, and he fell and was injured. It appears that there was no nut at that end of the hand rail, and the weight of the plaintiff pulled the rail out from the standard. One witness, who examined the car just before as well as after the injury, said that the end of the hand rail, where the nut ought to have been, was rusty, as though none had been there for some time. Another witness sup by the trial and appellate courts, settles the disputed questions of fact. Under these circumstances it does not seem necessary to notice in detail the several objections pointed out in the very elaborate argument of counsel for the railroad, company. A careful examination discloses no error in the proceedings. The plaintiff was injured, and the questions of his care and the company's negligence were fully and fairly submitted to the jury. The judgment of the Court of Appeals is affirmed. (211 U. S. 603) SOUTHERN REALTY INVESTMENT COMPANY, Plff. in Err., V. NANCY WALKER. DICTION-DIVERSE CITIZENSHIP-COLLU- An action brought by a South Dakota corporation against a citizen of Georgia, in Federal circuit court sitting in the latter March 3, 1875 (18 Stat. at L. 470, 472, state, will be dismissed under the act of chap. 137, U. S. Comp. Stat. 1901, pp. 508, 511), § 5, as collusive, where such corporation is merely the agent of Georgia attorneys, who brought it into existence as a corporation that individual citizens of Georgia having controversies with other individual citizens of that state might, in their disin order to create cases apparently within cretion, have the use of its corporate name the jurisdiction of the Federal court. ported him as to the rusty condition of COURTS (§ 316*)—Federal COURTS-JURISthe end of the rail immediately after the accident. There was testimony that plaintiff followed a common way of getting onto such a water car. Indeed, on an open, moving car, a hand rail running through stand-a ards on the side, and within easy reach, would naturally suggest doing just what the plaintiff did. It certainly could not be declared, as a matter of law, negligence. On the part of the defendant there was testimony that this car had a hand hold on the standard at the front end of the car, such as is required by the statute of the United States, that the company had an experienced inspector, who stated that he had inspected the car the day before the injury, found one nut gone, and replaced it, and that the car otherwise was in good condition. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 862; Dec. Dig. 316. *] This outline of the testimony is all that Argued December 7, 8, 1908. Decided Januis sufficient, although there was quite a volume on both sides of the matters referred ary 4, 1909. N ERROR to the Circuit Court of the of Georgia to review a judgment dismissing, The facts are stated in the opinion. Messrs. Alex. C. King and King, Spalding, & Little for plaintiff in error. Mr. Olin J. Wimberly for defendant in error. to. The court charged the jury as to the *For other cases see same topic & § NUMBER in *Mr. Justice Harlan delivered the opin This action of ejectment was brought in the circuit court of the United States for the southern district of Georgia to recover a tract of land in that state. The plaintiff, the Southern Realty Investment Company, sued as a corporation of South Dakota, while the defendant is a citizen of Georgia. The articles of incorporation filed by the company in South Dakota stated that the Dec. & Am. Digs. 1907 to date, & Rep'r Indexes *604 *605 purpose for which the corporation was | ing the removal of causes from state courts. formed was to buy, sell, or lease real estate; By that act (§5) it was provided, among open up farm lands and operate farms; carry other things, that if, at any time after a suit on any business which may be deemed ad- is commenced in a circuit court of the United vantageous in connection with farming op- States, it shall appear to the satisfaction of erations; borrow and lend money on such the court "that such suit does not really and security as may be deemed advisable; make substantially involve a dispute or controversy and furnish abstracts of title to lands; guar- properly within the jurisdiction of said cirantee titles of lands; buy, sell, or discount cuit court, or that the parties to said suit notes, accounts, mortgages, bonds, judgments, have been improperly or collusively made or executions, and commercial paper of any joined, either as plaintiffs or defendants, for kind; issue bonds and secure the same by the purpose of creating a case cognizable or mortgage or conveyance of property, real or removable under this act, the said circuit personal, and sell, pledge, or hypothecate court shall proceed no further therein, but such bonds; derive compensation and profit shall dismiss the suit or remand it to the from such transactions; and generally to do court from which it was removed, as jusany and everything needful to the carrying tice may require," etc. 18 Stat. at L 470, on of such business transactions. 472, U. S. Comp. Stat. 1901, pp. 508, 511. The case was tried on a plea to the jurisdiction of the circuit court of the United States. At the trial of the plea to the jurisdiction, the plaintiff submitted various requests for instructions to the jury, but each of those requests was denied, the plaintiff duly excepting to the action of the court. One of the requests in effect called for a peremptory finding for the plaintiff; for the court was asked to say to the jury that no fact was disclosed that authorized the jury to find that the suit was not one of which the cir cognizance. The court charged the jury, and to one part of the charge the defendant took an exception. The verdict of the jury sustained the plea, and thereupon the court dismissed the suit as one that did not really and substantially involve a dispute or controversy within the jurisdiction of the court, and as one that was collusive within the meaning of the act of Congress. A bill of exceptions was taken which embodied all the evidence introduced by each side at the trial. In that plea it was averred that although the petition alleged diversity of citizenship, the suit was not, in fact, one of that character, but one in which the parties have been improperly made for the purpose only of creating a case of which the circuit court of the United States could take cognizance; that the Southern Realty Investment Com-cuit court of the United States could take pany was incorporated and organized, under the laws of South Dakota, at the instance of two named Georgia lawyers, in order that it might, under their direction, prosecute suits in the United States court that did not really and substantially involve disputes or controversies within its jurisdiction, but controversies really and substantially be tween citizens of Georgia; that the only business the company has is to prosecute suits in the United States courts, *in its name, for those attorneys and other citizens of Georgia, to recover lands and mesne profits, of which suits those courts cannot properly take cognizance; and that the present suit against citizens of Georgia has been brought, in the name of the South Dakota corporation, for the use and benefit of certain other citizens of Georgia (the real and substantial plaintiffs in interest), for the purpose of conferring an apparent jurisdiction on the circuit court of the United States. The defendant's prayer was that the court should take no further cognizance of the action, but should dismiss it as one not really and substantially involving a dispute or controversy properly within the jurisdiction of the court, and one in which the parties to the suit had been improperly and collusively made for the purpose of creating a case cognizable in said court. We will not extend this opinion by setting out the evidence at large. Except in its special facts and circumstances this case does not differ from cases heretofore determined under the judiciary act of 1875. There was evidence leading to the conclusion that the Southern Realty Investment Company was brought into existence as a corporation only that its name might be used in having controversies that were really between citizens of Georgia determined in the Federal, rather than in the state, court. It did not have, nor was it expected to have, as a corporation, any will of its own or any real interest in the property that stood or was placed in its name. It was completely dominated by the two Georgia attorneys who secured its incorporation under the laws The plea to the jurisdiction was based on of South Dakota through the agency of a the act of Congress of March 3d, 1875, chap. South Dakota lawyer, who, in a letter to 137, determining the jurisdiction of the cir- one of the Georgia attorneys, claimed that cuit court of the United States, and regulat-his office had, within three years, secured 909. 209. 608 Mr. Justice Brewer dissents. (211 U. S. 627) DECATUR MORGAN and Jennie G. Morgan, Plffs. in Err., V. nine hundred and eighty-five (985) charters and Miller & Lux v. East Side Canal & Ir under the laws of that state for nonresidents, rig. Co. 211 U. S. 293, 53 L. ed. —, 29 Sup. and part of whose business was to "furnish" Ct. Rep. 111. The case is one in which it South Dakota incorporators, when necessary. was the duty of the court, under the act of In short, the plaintiff company was and is 1875, not to proceed. No error of law was merely the agent of the Georgia attorneys, committed at the trial to the substantial who brought it into existence as a corpora- prejudice of the plaintiff. The charge to the tion that individual citizens of Georgia, jury fairly covered the issue made by the having controversies with other individual plea, and was not liable to any valid obcitizens of that state, might, in their discre- jection. The judgment must be affirmed. tion, have the use of its corporate name in It is so ordered. order to create cases apparently within the jurisdiction of the Federal court. It had, it is true, a president and a board of directors, all of whom were citizens of Georgia, two of the five directors being the Georgia attorneys, and one being the female stenographer of such attorneys,—but the president and a majority of the directors were the holders each of only one share of donated stock, and recognized it to be their duty to represent the Georgia attorneys and to obey, as they did obey, their will implicitly. The company, in respect of all its business, was the agent of those attorneys to do their bidding. Its president testified that he did not know for what purpose the company was really organized, or that it had ever done any business except "as to the bringing of these suits," or that it had any money. Its place of business in Georgia was in the office of the Georgia attorneys. Its pretended place of business in South Dakota was in what is called a domiciliary office, Argued December 9, 10, 1908. Decided Janmaintained by the attorney in that state who procured its charter. In the latter office there could have been found, no doubt, a desk and a chair or two, but no business. The company's president never knew of its doing any business in South Dakota. As a corporation the Southern Realty Investment Company must be deemed a mere sham. It has, in fact, no property or money really its own, and it was not intended by those who organized it that it should become the real owner of any property of its own in South Dakota or elsewhere. It is, as already stated, simply a corporation whose name may be used by individuals when they desire, for their personal benefit, to create a case technically cognizable in the Federal court. Those individuals, using the name of a corporation for the benefit of themselves and their clients, citizens of Georgia, seem to be the real parties in interest in every transaction carried on in the name of the corporation. The present case is controlled by the decisions of this court in Williams v. Nottawa, 104 U. S. 209, 211, 26 L. ed. 719, 720; Morris v. Gilmer, 129 U. S. 315, 328, 32 L. ed. 690, 694, 9 Sup. Ct. Rep. 289; Lehigh Min. & Mfg. Co. v. Kelly, 160 U. S. 329, 336, 40 L. ed. 445, 447, 16 Sup. Ct. Rep. 307, et seq., *For other cases see same topic & § NUMBER in CHARLES H. ADAMS, Frank W. Adams, COURTS (§ 388*)-SUPREME COURT-JURIS- The jurisdictional amount necessary to sustain a writ of error from the Federal Supreme Court to the court of appeals of the District of Columbia, to review a decree denying probate to a will of personalty, is not involved where the total amount of the legacies to those interested in having the will admitted to probate is less than $5,000. [Ed. Note.-For other cases, see Courts, Dec. Dig. 388.*] [No. 50.] uary 11, 1909. I ERROR of Columbia to review a See same case below, 29 App. D. C. 198. error. Messrs. J. J. Darlington and Herbert S. Giesy for defendants in error. *Mr. Justice McKenna delivered the opinion of the court: This writ of error brings up for review the judgment of the court of appeals of the District of Columbia, confirming the judgment of the probate court, entered upon a verdict of a jury upon issues framed under a caveat filed against a paper writing alleged to be the last will and testament of Julia M. Adams. The will was presented for probate by Decatur Morgan, who was named therein as executor, and who, with his wife, Jennie G. Morgan, were the principal legatees therein. Defendants in error, who were respectively nephews and nieces Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 829. 629. of the deceased, filed a caveat against the | upon the ground that the question in the probate of the will, alleging the incapacity case was whether an estate valued at $9,000 of the deceased to make a will, and also alleging undue influence and fraud and coercion exercised upon her by the Morgans and other persons. An answer was filed denying the allegations of the caveat, and the following issues were framed for submission to the jury: (1) Was the written paper propounded as the last will and testament of the deceased executed in due form of law? (2) Was the testatrix, at the time of executing the will, of sound and disposing mind? (3) Was it procured by the undue influence of Decatur Morgan or Jennie G. Morgan, or other person or persons? (4) Was it procured by fraud or coercion of either of the Morgans, or other person or persons. should pass, as provided in the alleged will, which, in effect, excluded the next of kin, or in the mode provided by the law of the domicil of the decedent for the transmission of an intestate estate. The purpose of the case therefore was, it was said, not to seek an allotment to them of their interests, but an adjudication that the alleged will was invalid, and that that contention was advanced by virtue of a claim of common title in the next of kin of the decedent in the corpus of the estate, derived from the alleged law of the domicil of the deceased. In other words, it was held in such case that where parties seek a recovery under the same title and for a common and undivided interest, the sum sought to be recovA jury was impaneled to try the issues, ered, not the share of each individual claimand the questions in the case turn upon cer- ant, constitutes the matter in dispute. tain instructions given by the court upon | And for this see Shields v. Thomas, 17 How. the second or third issues. The other two, 3, 15 L. ed. 93, and New Orleans & P. R. that is, the first and fourth issues, were with- Co. v. Parker, 143 U. S. 51, 52, 36 L. ed. 68, drawn by defendants in error. The verdict 69, 12 Sup. Ct. Rep. 364. of the jury was adverse to the plaintiffs in error on the two issues submitted. Judgment was in due course entered, denying the probate of the will, which judgment was affirmed by the court of appeals. 29 App. D. C. 198. A question is presented as to the right of plaintiffs in error to bring the case to this court. Defendants in error contend the amount in dispute is less than the necessary amount to confer jurisdiction. The total value of the estate is $7,394.50, only *$4,144.50 of which are bequeathed to the Morgans; the balance of the estate goes to defendants in error, except $250, bequeathed to the Epiphany church. The mater in dispute, it is hence contended, is nearly $1,000 less than the jurisdictional amount. The The case at bar is distinctly different. The legacies to the plaintiffs in error, of course, depend upon the validity of the will. That constituted their common title, but the sum of their interest is only $4,144.50, which is less than the amount necessary to give jurisdiction to this court; nor would the necessary amount be reached if the legacy to the Epiphany church be added. Writ of error dismissed. (211 U. S. 612) MISSOURI PACIFIC RAILWAY COM- V. LARABEE FLOUR MILLS COMPANY, a CARRIERS (§ 198*)—DISCRIMINATION-DU- 1. A common carrier is bound to treat all shippers alike, and can be compelled to do so by mandamus or other proper writ, irrespective of legislative action or special mandate from any commission or other administrative board. A similar question came up in Overby v. Gordon, 177 U. S. 214, 44 L. ed. 741, 20 Sup. Ct. Rep. 603. The case was a contest of a will. plaintiffs in error in this court offered its probate on the ground that the testator was a resident of Georgia when he made the will, not of the District of Columbia, and that his personal estate passed under the laws of Georgia to plaintiffs in error, who were next of kin of the testator. They were unsuccessful in the court below and then brought the case here, and a motion was made to dismiss, because the interests of plaintiffs in error were several, and each interest less than $5,000, and that, there- the Interstate Commerce Commission of 2. The mere delegation by Congress to fore, the matter in dispute was less than certain national powers over interstate comthat sum, and this court had no jurisdiction. merce is not the equivalent of the specifie The motion was denied, this court answer-action by Congress in respect to the particuing that the value of the estate was the lar matters involved, which prevents a state matter in dispute. This, however, was put from making regulations conducive to the [Ed. Note.-For other cases, see Carriers, Cent. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes *630 |