While it was in this condition suits were instituted in the federal court, one alleging insolvency and praying appointment of a receiver, and the other to foreclose, and a receiver was accordingly appointed before any was appointed by the state court. The jurisdiction of the federal court of the res was denied, the court saying:

"That actual seizure or possession is not essential, but that jurisdiction may be acquired by acts which according to established procedure, stand for dominion and in effect subject the property to judicial control."

[4] There is another principle enunciated by the courts and textwriters, namely, that where the controversy, is not the same, that is, where the issues in one suit are different from those involved in another, and the subject-matter is not identical, there can be no infringement of jurisdiction as between the courts maintaining cognizance of the cases. This, it is maintained, rests on the ground that in such a case there is no conflict of jurisdiction as to the question or cause. In such cases, the first acquisition of the possession of the res dominates the authority to retain the same. Empire Trust Co. v. Brooks, 232 Fed. 641, 146 C. C. A. 567; Compton v. Jesup, 68 Fed. 263, 283, 15 C. C. A. 397; De La Vergne Refrig. Mach. Co. v. Palmetto Brewing Co. (C. C.) 72 Fed. 579; Gluck & Becker on Receivers, supra. The application of the principle is very well enunciated by Simonton, Circuit Judge, in Machinery Co. v. Brewing Co., supra, as follows:

"In view, therefore, of the fact that the controversy in the suit in this court is entirely distinct from that in the state court, and that the scope and purpose of the proceedings in the state court are not those of the proceedings in this court, connected with the fact that the receiver heretofore appointed in the main cause is in actual, peaceable possession of the property, and that the complainant holds a legal lien on the property, entitling it to its possession through a receiver, the mortgagor being insolvent, and that this court has been asked by it not to exercise an act of discretion, but to give effect to a right secured to it by the Constitution and laws of the United States, the prayer of the petition cannot be granted; and it is so ordered."

These principles, in either aspect, we think determine the case against appellants. That the controversies involved by the two suits are not the same is perfectly manifest. It is a little difficult to say just what the purpose of the suit in the state court was. It is manifestly not a suit to wind out the business of the concern, dispose of its assets, and distribute its proceeds among those entitled thereto. On the other hand, it was evidently designed that the irrigation company. should be maintained as a going concern, and that the system which it had promoted should be repaired and completed. It is shown that the company had squandered its funds, which are denominated trust funds, to which the purchasers were entitled for the repair, maintenance, and upkeep of the system, and in this connection it is alleged that the plaintiffs in said action and others similarly situated "had by virtue of the premises and by operation of law and equity a first and prior lien and claim upon all of the assets of every kind, character, and description" of the irrigation company, and that the lien of the trust deed of the complainants in the foreclosure suit was inferior in rank to theirs. But there is not a semblance of a purpose shown to enforce such purchasers' liens as such. At most, the suit could be

construed only as one for the rehabilitation and reorganization of the irrigation company, and the readjustment of its affairs in that way so that the purchasers might reap the benefits of their purchases in pursuance of the original scheme for promoting and maintaining the irrigation system.

Now, it cannot be said that the suit in the state court is either an action in rem, suited to a disposal of the irrigation company's property, or one to enforce a lien, with the subjection of its property to the satisfaction thereof. Nor is it a suit to marshal assets for distribution among those entitled thereto, for such a thing was not contemplated. The only apparent object was that the affairs of the company might be administered for the time being under the supervision of the court for accomplishing the purposes of rehabilitation and reorganization. It is not such a suit that the full accomplishment of its purposes requires dominion and control over the res; so that, whether we apply the one principle or the other above ascertained, the trial court was right in maintaining possession of the res under its receivership.

We have not made mention of the bankruptcy matter, because it does not affect the result. The fact that a trustee in bankruptcy had been appointed and had taken possession of the res does not aid the complainants' possession in the foreclosure suit. It is only because the receiver in the federal court first obtained possession of the res that the court is entitled to maintain its jurisdiction respecting the same. Affirmed.

GREAT NORTHERN RY. CO. v. REID.

(Circuit Court of Appeals, Ninth Circuit. August 20, 1917. Rehearing Denied October 8, 1917.) No. 2896.

1. RELEASE 34-SCOPE-CONSTRUCTION.

A release for personal injuries resulting from an accident will not cover personal injuries not in contemplation of the parties and then unknown to each, despite the greatest generality in language.

Where claim for personal injuries is released on settlement, the release cannot be impeached or set aside for fraud or mistake, except upon clear and convincing proofs.

In a suit to set aside a release given for personal injuries, evidence held to establish that, while there was no fraud in procuring the release, complainant had incurred injuries which were unknown to either of the parties, when the settlement was made, and hence to that extent to require setting aside of the release.

4. RELEASE 16-VACATION-PARTIAL IMPEACHMENT,

A release of personal injuries may be partially impeached, as where the injured party suffered injuries which, at the time the release was executed, were unknown to both.

Where complainant, who was injured, did not know that he had incurred inguinal hernia, but thought that the only serious injury was to his For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

foot, his refusal, when examined by a physician, to remove his coat and exhibit a bruise on his arm and shoulder, does not estop him from impeaching his release on the ground that it did not include a release of claims for the hernia.

Appeal from the District Court of the United States for the Northern Division of the Eastern District of Washington; Frank H. Rudkin, Judge.

Suit by W. H. Reid against the Great Northern Railway Company. From a decree for complainant, defendant appeals. Affirmed.

The appellee herein, who was complainant below, was, on and prior to May 10, 1915, in the employ of the appellant, the Great Northern Railway Company, as a cook on one of its work trains. While the company was moving the car on which appellee was working about the switch, it was derailed, and he was thrown against the sink in the car. The top cover of the stove fell upon his right foot, and, withal, he received certain physical injuries. To recover damages for such injuries as he received, he instituted an action against the company. The company by its answer pleaded a release of liability executed by appellee. The release is in language following:

"Know all men by these presents, that in consideration of the sum of ten and no/100 dollars to me in hand paid by the Great Northern Railway Company, the receipt whereof is hereby acknowledged, have released, acquitted, and discharged, and do by these presents release, acquit, and discharge, said railway company, its successors and assigns, of and from any and all liability, causes of action, costs, charges, claims, or demands, of every name and nature, in any manner arising or growing out of, or to arise or grow out of, personal injuries received by me (W. J. Reid) at or near Geyser, in the state of Montana, on or about the 10th day of May, 1915, while acting as a cook, I met with an accident whereby I sustained personal injuries, or arising, or to arise, out of any and all personal injuries sustained by me at any time or place while in the employ of said railway company prior to the date of these presents. No promise of future employment has been made to me by said railway company as part consideration of this settlement and release, or otherwise."

The back of the release contains an indorsement in appellee's handwriting, namely:

"I have red within Releas before signing and fully understand that the sum of ten dollars is in full settlement of all claim of every kind.

"W. J. Reid."

In addition, appellee signed a voucher which contained substantially this provision:

"For and in consideration of any and all claims, past, present, and prospective, against the Great Northern Railway Company, arising or to grow out of personal injuries received by me at or near Geyser, Montana, on or about May 10, 1915, $10.00."

For the purpose of having the release canceled, this suit was instituted against the company. Among other things, it is alleged, in effect, that appellee suffered the following injuries: A double inguinal hernia, a broken arch of the right foot, a severe wrench of the back, a severe shock to the nervous system, and, as resulting from such injuries, a semi-paralyzed condition of both legs; that on the same day the claim agent of the company took appellee to the office of its physician and surgeon, who, upon a cursory examination of appellee, informed him that his injuries were slight, and amounted to nothing more than a nervous shock and a slightly sprained ankle and instep, that he would be entirely recovered in a day or two, and that the claim agent would give him $10, representing two or three days' work, and would hold open his position for him; that appellee accepted the $10 from the claim agent, for no other purpose than as pay for his time, and signed the papers in question. It is further alleged that, at the time of signing the papers, appellee was not aware that he had broken the arch of his right foot, or had suffered double inguinal hernia, or any other injury which might

cause any disability to his earning power, and that such or any injuries were never taken into consideration by him at the time of signing the documents in question, nor by the claim agent of the company.

on.

The appellee's testimony is quite brief. He says:

* *

right up to his what they was.

"The trucks ran off the rails, and practically mashed the biggest part of the dishes. The top of the stove fell across my foot, and it threw me up bodily against the sink, which was near the side of the car, and it hurt me. I got hurt on my foot, and I was shaken up completely, my nerves, nervous shock, and I have been sick practically ever since. Worked a little off and * They took me to the doctor's office in an automobile; examined my foot, bound it up, and told me I was badly shaken up, and said, 'You will be all right to work to-morrow, if necessary.' Just examined my foot, that was all. * * And after the doctor examined me the claim agent took me office. He asked me to sign some papers. I don't know I was too confused. I can't remember one thing I signed, or anything. Q. State what he said to you. A. Why, he said it was necessary to send these back to St. Paul. That is what he said to me. Q. Did he offer you any money? A. No; he said, 'You better take $10 for to get some liniment,' and something like that-$10 to get some liniment to rub on my feet. Q. Did he say anything to you about your working or anything? A. Yes; he did; said I could just stay around town two days and go back to work whenever I wanted to. I have stated everything that the doctor told me about my condition then. * I believed the statements made to me in regard to my condition by the doctor. * Q. When did you first know, Mr. Reid, that you had a double hernia? A. I don't know now. The next day; I didn't know what it was. I discovered something down there where it hurt. I had a very small rupture before on the right side, about the size of a marble. I had worn an elastic truss. Q. Had you ever been bothered with it? A. Never; part of the time I would leave it in bedwouldn't use it. When I went from Geyser to Great Falls, my foot was swollen up, so it hurt me, and I cut my shoe right up there. It swelled up a bit; bandaged it up. I went back to work that same day, because the doctor told me there was nothing the matter with me."

As to the writing, he says he just looked it over; that he could not read very well, and just signed it as it was written, and that it was not read to him. On cross-examination, he testified that he had had a hernia on the right side for three years before the accident, and told how he came by it. As to the hernia on the left side, he said it did not bother him much-it was only a small one.

Dr. Downs, who examined appellee on February 26, 1916, states that Reid was suffering from a right and left inguinal hernia; was in a very nervous condition, and very poorly nourished; had a slight swelling in the right foot, which he found to be a flatfoot. The hernia on the right side was the larger one; the one on the left not so large-about the size of a walnut. The arch on his foot was flattened out and broken down. This condition generally prevailed as to his left foot.

Dr. Longeway, the company's physician, testified that he examined appellee on the day of the accident; that appellee told him he had a bruise about the shoulder and arm; that he examined his foot, and found that it was injured and bruised, and the ankle slightly sprained-and continued as follows: "He was walking on it; walked on it to the office. I asked him about his arm, and he said that didn't amount to anything. I asked him to take off his coat, and he said that didn't amount to anything; his injuries were not bad and he wouldn't take off his coat and let me examine it. He said that he would be all right; he was just bruised about the right arm and shoulder. Consequently he didn't take off his coat, and I didn't examine his arm. He said it didn't amount to anything and would be all right. I bandaged his foot and told him to stay around two or three days and let me watch him. 'No,' he said, it is all right.' He wanted to get right back to work, and he left my office, and that was the last I ever saw of him. His right foot then was practically the same as it is now, except it was more swollen around the ankle at that time than it is now. He had a pretty flat foot.

*

*

He didn't at that time complain to me about any hernia, or any other injury than these that I have testified to. I didn't make any statement to him that he could go right back to work; that his injuries were slight. * I believed he would be all right in a few days."

P. B. Foley, the claim agent, testified that, after appellee had been to the doctor's office, Burton brought him into his office, and then as follows: "I asked him, 'Did the doctor look you over?' He said, 'Yes. sir.' I said, 'What did he tell you?' 'He said my ankle was sprained a little; said he thought it would be all right in a little while, and advised me to stay around a few days.' 'Well,' I said, 'I think you better do that.' I said, 'I think you better stay around here a few days and have the doctor attend you.' He says: 'No; I am anxious to get back to the job. I will be all right; it is a little sprain; I will be all right; I want to get back on the job.' I says, 'All right; suit yourself.' Then I said, 'Well, what do you want us to do for you?' He hesitated a little while, and he says: 'I don't know. I will only lose this day.' Then I says, 'Well, I would like to know what you want us to do for you in settlement, that is in the line of settlement. He says, 'Well, how will $10 do?' 'Well,' I says, 'if that is what you want,' I says, 'it is all right.'" The release and other papers were then made out and signed. Burton corroborates this statement.

Dr. H. P. Marshall, who made a recent examination, found appellee suffering from arteriosclerosis, double inguinal hernia, and double flatfoot.

Charles S. Albert and Thomas Balmer, both of Spokane, Wash., for appellant.

N. E. Nuzum and R. W. Nuzum, both of Spokane, Wash., Harold N. Nuzum, of Los Angeles, Cal., and Arthur H. Steake, of Spokane, Wash., for appellee.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District Judge.

WOLVERTON, District Judge. [1] The question presented for decision is whether the release should be canceled for fraud or mistake. The release itself is as broad as it could be made, acquitting the company of all liability arising on account of the injuries received by appellee, whether then appearing or growing out of the same by development in the future, or arising or to arise out of any and all personal injuries sustained at any time or place while in the employ of the railway company prior to the date of the release. In such a release, however, the general language will be held not to include a particular injury, then unknown to both parties, of a character so serious as clearly to indicate that, if it had been known, the release would not have been signed. This was the conclusion reached in Lumley v. Wabash R. Co. (C. C. A. 6th Circuit) 76 Fed. 66, 22 C. C. A. 60. See, also, Tatman v. Philadelphia, B. & W. R. Co. (Del. Ch.) 85 Atl. 716.

[2, 3] From the testimony, it is perfectly apparent that there was no fraud whatever attending the transaction of giving the release. Considerable concern was manifested by the claim agent that the affair should be speedily closed, but the appellee suffered no disadvantage by reason thereof. The appellee had come to Great Falls, a distance of 40 miles, of his own accord, with a view to getting relief of some sort from the company for his injuries. Having met Burton, he was taken to the office of the company's physician, and, after examination, repaired to the claim agent's office, where the release was