Guerini Stone Co. v. P. J. Carlin Construction Co.

9 P.R. Fed. 177

Opinion

HamiltoN, Judge,

delivered the following opinion:

This is a matter of costs brought np on appeal from the taxation by the clerk. There is a witness Follett who came from tbe States here to' attend the trial, and the clerk declined to tax up as costs his traveling expenses except for 100 miles, in other words denied the ocean travel, as I understand it, and it is necessary to decide the point for our guidance in the future. It seems that in the first circuit, of which we are now a part, Mr. Justice Story, as far back as 1842, decided that the traveling expenses should be included even where the witness comes from without the district. That was in the case of Prouty v. Draper, 2 Story, 199, Fed. Cas. No. 11,447. This has been affirmed several times. United States v. Sanborn, 28 Fed. 299; The Vernon, 36 Fed. 113; and other cases. The rule is not uniform in other circuits. The other circuits seem, to go on the idea that the costs must be limited to the court jurisdiction, that is to say, that the subpoena of the court will run for the district, and not exceeding 100 miles outside, and that therefore the costs should be limited to that number of miles. Of course the reasoning is very correct, but it has been held otherwise uniformly in the first circuit, and it seems to me that, as we are a part of the 1st circuit, I shall have to follow the decision of Justice Story. But that is not conclusive as to the amount to be allowed. Under a special statute governing Porto Pico, approved March 2, 1901, § 4, witnesses are allowed 15 cents a mile when traveling by stage and private conveyance and 10 cents when traveling by railroad, and the question comes up whether that would be applicable to these 3,000 miles of ocean travel. I do not think so. The wording of the statute seems confined to Porto Pico. It speaks of stage and pidvate conveyance. A steamship is neither a stage nor a private conveyance, and the 10 cents a mile applicable to railroads would not apply to steamships; so that it looks as if the statute for Porto Rico was not drawn so as to cover ocean travel. In that view of it, it would seem the correct rule to follow the Revised Statutes, § 978, Comp. Stat. 1913, § 1619, the general rule on the subject, which is 5 cents a mile. So the clerk will retas the costs as to this witness and allow 15 cents as to 100 miles, and outside of that 5 cents a mile going and coming.

2. There is another point brought up also in this case. It seems that Mr. Converse, who was president, or at all events a high officer, of the company in question, desired to have his expenses taxed up in the same way. He was not subpoenaed, but that would make no difference. The subpoena of this court could not run so far anyhow, so that could not be considered in connection with either of these two witnesses Pollett or Converse. But the question is whether Converse should receive anything. The decisions draw a distinction very properly between a corporation and an officer of a corporation who acts as a witness. The corporation is one thing, and the officer is a different person technically. The distinction, which seems to be correct on principle, is this: A corporation can have any of its officers, or any of its employees, as a witness, and the costs would be properly taxed up; but if the officer or the employee comes as a representative of the corporation, he is for the purposes of the ease, so far as getting here is concerned, the representative of the corporation. Tie is practically the corporation for the purposes of the trial and should not be allowed witness fees or traveling expenses. That is found in the case of American Diamond Drill Co. v. Sullivan Mach. Co. 32 Fed. 552, and is the exception mentioned in the case of Nead v. Millersburg Home Water Co. 79 Fed. 129. So the question in this case is, was Mr. Converse the representative of the company, or was he here simply as a witness ? He was here as the representative of the company. There can be no question about that. If there had been any question, it was settled by the fact that he appeared in court and was allowed to stay through the case and aid counsel as the representative of the company. He was not put under the rule like ordinary witnesses. So that the clerk will not allow the traveling expenses and other fees of this witness.

The taxation will be made in accordance with these views.