Arizona & New Mexico Ry. Co. v. Clark, 235 U.S. 669 (1915)

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Arizona & New Mexico Railway Company v. Clark

No. 347

Argued December 1, 1914
Decided January 11, 1915
235 U.S. 669

ERROR TO THE CIRCUIT COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

Where an action under the Employers’ Liability Act, of 1908 was pending in an inferior territorial court of Arizona prior to statehood, such action being one of which the federal and state courts have concurrent jurisdiction, the voluntary appearance of defendant in the federal court after statehood without interposing any objection to the jurisdiction of that court held to amount to a waiver of the objection (based upon § 33 of the Arizona Enabling Act) that, upon the commencement of statehood, the action should have been transferred to the proper state court, subject to removal to the federal court upon application made in due form for that purpose.

Under Rev.Stat. Arizona, § 2535, subd. 6, providing that a physician or surgeon cannot be examined without consent of his patient as to any communication made by the patient with reference to a disease or as to any knowledge obtained by personal examination of such patient unless such patient has offered himself as a witness and voluntarily testified in regard to such communications, evidence of physician respecting the results of a personal examination of plaintiff was in this case properly excluded because plaintiff had not testified with reference to communications made by him to the physician, although he had voluntarily testified with respect to his injuries and had introduced other evidence respecting them.

207 F. 817 affirmed.

The facts, which involve the construction of certain provisions of the Federal Employers’ Liability Acts of 1908 and 1910 and of the Arizona Enabling Act and of a statute of Arizona relating to the admission of evidence of physicians of the plaintiff in actions for personal injuries, are stated in the opinion.