The facts are stated in the opinion.

dition of his employment by the express Northern District of Mississippi, encompany, that neither that company nor the joining the enforcement of a judgment. railway company shall, under any circum-Reversed. stances or in any case, be liable for any injury which he may receive while on the 136 C. C. A. 402, 220 Fed. 796; on secSee same case below, on first appeal, railway company's trains as such messenger, whether caused by the negligence of the rail ond appeal, 161 C. C. A. 161, 249 Fed. way company or otherwise, and that he willi 109. assume all and every risk incident to such | employment, from whatever cause arising, thereby assenting to the contractual arrangement between the two companies exempting the railway company from liability for such injuries, and obligating himself to the express company to refrain from asserting any liability against it or the railway company on account of any such injuries.

[For other cases, see Carriers, II. a, 8, in
Digest Sup. Ct. 1908.]
Injunction

against enforcement of

unconscionable judgment.

6. An express company with which an employee in charge of express matter transported by railway stipulated, as a condition of employment, to assume all risk of injuries incident to his employment, from whatever cause arising, is entitled to have such employee restrained from enforcing a judgment which, in violation of his agreement, he wrongfully sought and obtained against the railway company, which judgment, as between the two companies, the express company is bound to pay, and which was rendered in an action to which the express company was not a party, and wherein it could not be heard, the employee being financially irresponsible, so that if the judgment is collected, the express company, which has not been in any wise negli gent or at fault, will be remediless. [For other cases, see Injunction, I. i, 2, in Digest Sup. Ct. 1908.]

[No. 41.]

Argued December 19, 1919.

ΟΝ

cember 6, 1920.

Mr. Charles W. Stockton argued the cause, and, with Messrs. K. E. Stockton and Edward R. Whittingham, filed a brief for petitioner:

The Federal Employers' Liability Act does not apply to express companies.

Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 56 L. ed. 327, 38 L.R.A.(N.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875; United States v. Falk, 204 U. S. 143, 51 L. ed. 411, 27 Sup. Ct. Rep. 191; United States v. Cerecedo Hermanos y Compañia, 209 U. S. 337, 52 L. ed. 821, 28 Sup. Ct. Rep. 532; Latimer v. United States, 223 U. S. 501, 56 L. ed. 526, 32 Sup. Ct. Rep. 242; Bruce v. Tobin, 245 U. S. 18, 62 L. ed. 123, 38 Sup. Ct. Rep. 7; United States v. Morseman, 3 Inters. Com. Rep. 112, 42 Fed. 448; Southern Indiana Exp. Co. v. United States Exp. Co. 88 Fed. 659, s. c. 35 C. C. A. 172, 92 Fed. 1022.

The Employers' Liability Act, even if applicable to express companies, would not affect the contract in question.

Robinson v. Baltimore & O. R. Co. 237 U. S. 84, 59 L. ed. 849, 35 Sup. Ct. Rep. 491, 8 N. C. C. A. 1.

The contract in question is not Decided De- against public policy.

Santa Fe, P. & P. R. Co. v. Grant Bros. Constr. Co. 228 U. S. 177, 57 N WRIT of Certiorari to the United L. ed. 787, 33 Sup. Ct. Rep. 474; BaltiStates Circuit Court of Appeals more & O. S. W. R. Co. v. Voigt, 176 for the Fifth Circuit to review a decree U. S. 498, 44 L. ed. 560, 20 Sup. Ct. which, on a second appeal, reversed, Rep. 385; McKay v. Louisville & N. R. with directions to dismiss the bill, a de- Co. 133 Tenn. 590, 182 S. W. 874; Percree of the District Court for the ry v. Philadelphia, B. & W. R. Co. 1 500; Hartwell v. Northern P. Exp. Co. L. ed. U. S. 465, and Chicago, M. & St. 3 L.R.A. 342; Richmond & D. R. Co. v. P. R. Co. v. Solan, 42 L. ed. U. S. 688. Payne, 6 L.R.A. 849; Adams Exp. Co. As to express messengers as passenv. Harris, 7 L.R.A. 214; Duntley v. Bos-gers-see note to Baltimore & O. S. W. ton & M. R. Co. 9 L.R.A. 452; Gulf, C. & S. F. R. Co. v. Gatewood, 10 L.R.A. On injunction against judgment for 419; Pacific Exp. Co. v. Foley, 12 matter arising subsequent to its rendiL.R.A. 799; Deming v. Merchants' Cot- tion-see note to Little Rock & Ft. S. ton-Press & Storage Co. 13 L.R.A. 518; R. Co. v. Wells, 30 L.R.A. 560. Ballou v. Earle, 14 L.R.A. 433; Little On general equitable jurisdiction in Rock & Ft. S. R. Co. v. Cravens, 18 regard to injunctions against judgments L.R.A. 527; Everett v. Norfolk & S. R.-see notes to Jarrett v. Goodnow, 32 Co. 1 L.R.A. (N.S.) 985; New Jersey L.R.A. 321, and Davis v. Tileston, 12 Steam Nav. Co. v. Merchants' Bank, 12 L. ed. U. S. 366.

R. Co. v. Voigt, 44 L. ed. U. S. 560.

Boyce, 399, 77 Atl. 725; Higgins v. Erie,
R. Co. 89 N. J. L. 629, 99 Atl. 98.

The court below had jurisdiction to enjoin the enforcement of the judgment secured by respondent in the state court. Marshall v. Holmes, 141 U. S. 589, 599, 35 L. ed. 870, 874, 12 Sup. Ct. Rep. 62; Marine Ins. Co. v. Hodgson, 7 Cranch, 332, 3 L. ed. 362; Terre Haute & I. R. Co. v. Peoria & P. U. R. Co. 82 Fed. 943; Payne v. Hook, 7 Wall. 425, 19 L. ed. 260; Barrow v. Hunton, 99 U. S. 80, 25 L. ed. 407; Hendrickson v. Hinckley, 17 How. 443, 15 L. ed. 123; Gaines v. Fuentes, 92 U. S. 10, 23 L. ed. 524; Dietzsch v. Huidekoper (Kern v. Huidekoper) 103 U. S. 494, 26 L. ed. 497; Rochester German Ins. Co. v. Schmidt, 126 Fed. 998; Donovan v. Wells, F. & Co. 22 L.R.A. (N.S.) 1250, 94 C. C. A. 609, 169 Fed. 363; Ex parte Cutting, 94 U. S. 14, 24 L. ed. 49; Indiana Southern R. Co. v. Liverpool, L. & G. Ins. Co. 109 U. S. 168, 27 L. ed. 895, 3 Sup. Ct. Rep. 108; Jones & Laughlins v. Sands, 25 C. C. A. 233, 51 U. S. App. 153, 79 Fed. 913; Credits Commutation Co. v. United States, 177 U. S. 311, 44 L. ed. 782, 20 Sup. Ct. Rep. 636.

The amendment to petitioner's original bill was properly allowed by the district court.

Mutual L. Ins. Co. v. Hill, 193 U. S. 553, 48 L. ed. 791, 24 Sup. Ct. Rep. 538; United States v. Lehigh Valley R. Co. 220 U. S. 257, 55 L. ed. 458, 31 Sup. Ct. Rep. 387; Hardin v. Boyd, 113 U. S. 756, 28 L. ed. 1141, 5 Sup. Ct. Rep. 771; Re Sanford Fork & Tool Co. 160 U. S. 247, 258, 40 L. ed. 414, 417, 16 Sup. Ct. Rep. 291; Re Potts, 166 U. S. 267, 41 L. ed. 995, 17 Sup. Ct. Rep. 520.

spondent, a joint employee of both, was injured by the negligence of the employees of the railroad company_while handling interstate commerce. In either event, the alleged contract is void, as violative of the above statute.

Bank of Kentucky v. Adamis Exp. Co. 93 U. S. 174, 23 L. ed. 872; Baltimore & O. S. W. R. Co. v. Voigt, 176 U. S. 498, 44 L. ed. 560, 20 Sup. Ct. Rep. 385; Oliver v. Northern P. R. Co. 196 Fed. 436; Malloy v. Northern P. R. Co. 151 Fed. 1019; Hooper v. Wells, F. & Co. 27 Cal. 11, 85 Am. Dec. 211; Philadelphia, B. & W. R. Co. v. Schubert, 224 U. S. 603, 56 L. ed. 911, 32 Sup. Ct. Rep. 589, 1 N. C. C. A. 892; Meehan v. Valentine, 145 U. S. 611, 36 L. ed. 835, 12 Sup. Ct. Rep. 972; Ward v. Thompson, 22 How. 330, 16 L. ed. 249; Shumaker, Partnership, p. 2.

The decree heretofore by the circuit court of appeals on the first appeal of this case, reversing and remanding the cause, was a final decree on the merits of litigation; hence petitioner's sole remedy was by appeal by certiorari to the Supreme Court of the United States, or for the circuit court of appeals to have reserved a right for the petitioner to amend the bill. On reversal the district court was without authority in law or equity to permit the petitioner to amend the bill; especially is this so in view of the fact that the circuit court of appeals refused to permit an amendment, or to authorize the district court to allow an amendment, and petitioner took no appeal therefrom, as appears from a motion of petitioner and the decree of the circuit court of appeals thereon. The district court should have sustained the motion

of respondent, and dismissed the bill and dissolved the injunction.

Mr. Thomas Fite Paine argued the cause and filed a brief for respondent: The bill is without equity, for the Bostwick v. Brinkerhoff, 106 U. S. 3, reason that the messenger's agreement 27 L. ed. 73, 1 Sup. Ct. Rep. 15; Lodge upon which the relief in the bill is v. Twell, 135 U. S. 232, 34 L. ed. 153, prayed, is void and unenforceable, as 10 Sup. Ct. Rep. 745; Paducah v. East violative of the Act of Congress of Tennessee Teleph. Co. 229 U. S. 476, 57 April 22, 1908, §§ 1 and 5 thereof, and L. ed. 1286, 33 Sup. Ct. Rep. 816; 1 Fosamendments, for the reason that the ter, Fed. Pr. 576, § 1, note 17; Ameripetitioner was a common carrier by can Bell Teleph. Co. v. United States, railroad, handling interstate commerce, 15 C. C. A. 597, 33 U. S. App. 236, 68 at the time respondent was injured, Fed. 542; Post V. Beacon Vacuum and the respondent was injured while Pump & Electrical Co. 32 C. C. A. 155, hand ling interstate commerce, owing to 50 U. S. App. 407, 89 Fed. 1; The Abby the negligence of the agents or officers Dodge, 223 U. S. 166, 56 L. ed. 390, 32 or employees of petitioner, to wit, the Sup. Ct. Rep. 310; Re Sanford Fork & St. Louis & S. F. R. R. Co., or the peti- Tool Co. 160 U. S. 247, 40 L. ed. 414, tioner and the St. Louis & S. F. R. R. 16 Sup. Ct. Rep. 291; 3 Foster, Fed. Pr. Co. were partners or coproprietors en- 2136, 2137, 3155; Mackall v. Richards, gaged as common carriers by railroad, 116 U. S. 45, 29 L. ed. 558, 6 Sup. Ct. handling interstate commerce, and re- Rep. 234; Van Doren v. Pennsylvania

R. Co. 35 C. C. A. 282, 93 Fed. 272;, ceed with the case in the United States Preferred Acci. Ins. Co. v. Barker, 32 district court. The messenger's agree

The petitioner voluntarily sought the jurisdiction of the state of Mississippi circuit court, and, having been denied relief by that court, did not exhaust its remedy by appeal from that court to the supreme court of the state of Mississippi, and did not exhaust its remedies in the state court, to wit, the While the declaration said nothing more chancery court, and is therefore es- about the nature or terms of that contopped or has waived its rights to pro- ! tract, it is important here to have them in

What has been recited will conduce to a right understanding of another suit, the decree in which we are now to review.

mind. The contract shows that it was in-, county, and before the case was brought tended to, and did, cover all express busi- to trial, the express company presented ness on and over the railroad company's to that court in that cause a petition road, both within and without the state of wherein it set out the contracts just Mississippi, for a specified period, in- described, and asked to be made a party cluding the day when Taylor was injured. defendant. [179] To this the railroad It gave to the express company the ex- company assented, but Taylor evidentclusive privilege of conducting an express ly objected and the petition was debusiness on and over the railroad, and nied. The railroad company, by its obligated the railroad company to refrain answer and evidence, sought to avail from conducting an express business. itself of the stipulation in the mesThere were provisions whereby the rail- senger's agreement, in connection with road company agreed, (a) to transport those in the other contract, but the by suitable cars, to be provided by it and court ruled against it, and Taylor obattached to its passenger trains, all ex- tained the judgment before mentioned. press matter of the express company, and the messengers accompanying the [178] same; (b) to light and warm the cars and equip them with necessary conveniences; and (c) to permit portions of its station houses to be used by the express company for the reception, safe-keeping, and delivery of express matter. And there were other provisions whereby the express company agreed, (a) to make stated payments-usually a percentage of the gross earnings for the facilities furnished and service rendered by the railroad company; (b) to assume all risks, losses, and damages to its own property, express matter, and valuable packages transported under the contract; (c) to assume all risk and damage to its agents and employees while engaged in its business on the trains or property of the railroad company; and (d) to indemnify and hold harmless the railroad company in respect of all claims for damages suffered by such agents and employees while so engaged.

There was also a contract between Taylor and the express company, spoken of as a messenger's agreement, wherein-following a recital that he had full knowledge of the service required and the conditions on which the railroad company would permit messengers to accompany express matter on its trains, and that with such knowledge he was desirous of becoming a messenger of the express company-it was stipulated, as a term or condition of his employment, that neither the express company nor the railroad company should, under any circumstances or in any case, be liable for any injury which he might receive while on the railroad company's trains as such messenger, whether caused by negligence of the railroad company or otherwise, and that he would assume all and every risk incident to such employment, from whatever cause arising.

Promptly after Taylor sued the railroad company in the circuit court of Monroe

The suit is in equity, and was brought by the express company against Taylor in the district court of the United States for the northern district of Mississippi. The Federal jurisdiction rests on diversity of citizenship,-the express company being a corporation and citizen of Colorado, and Taylor a citizen of Mississippi, residing in the northern district. The bill, with a supplement and amendment, proceeds on the theory that, in suing the railroad com、 pany and obtaining a judgment against it, which, as between that company and the express company, must be paid by the latter, as stipulated in their contract, Taylor not only violated the messenger's agreement, but perpetrated a legal fraud on the express company; that the judgment is therefore one which, in equity and good conscience, he has no right to enforce; that, if he be permitted to enforce it, the express company will be without any effective remedy, in that he has no property which can be reached by legal process (a fact which is both alleged and proved); and that the express company, which was not a party to that case, and has not been in any wise negligent or at fault, is, in equity and good conscience, entitled to have the messenger's agreement respected, and to demand that the claims embraced in the inequitable judgment be relinquished and the enforcement of the judgment enjoined. The prayer conforms to that theory, and is in substance that Taylor be required specifically to perform [180] and carry out the messenger's agreement, to execute a sufficient release of all claims on account of the injuries received, and to abstain from enforcing the judgment. General relief also is prayed.

Taylor challenged the bill by a demurrer, which was overruled, and after a hearing in due course the express company prevailed. On appeal to the circuit

court of appeals that decree was re-, other grounds in asking a reversal, but versed, and the suit remanded, because, in the court did not discuss the other that court's opinion, the bill did not show | grounds. All are pressed on our attenthat Taylor was not in the employ of the tion, and we take them up in what seems railroad company, or that he was solely in the natural order. the employ of the express company. 136 C. C. A. 402, 220 Fed. 796. After the mandate was received, Taylor, conceiving that the decision of the circuit court of appeals fully disposed of the merits and was final, requested the district court to enter a decree dismissing the bill, and the express company requested leave to amend the bill by correcting the defect pointed out by the circuit court of appeals. Taylor's request was denied and that of the express company was granted. The bill was accordingly amended so as to show that Taylor was not in the employ of the railroad company, but was on the train solely in virtue of his employment by the express company, and that, in his declaration in the action against the railroad company, he did not claim or allege any employment by that company, but, on the contrary, claimed and alleged that it permitted him to be on the train because he was accompanying the express matter as the express company's employee. Taylor then filed a new answer, and, on a further hearing, a decree for the express company was entered. By it the district court found that the allegations of the bill, with its supplement and amendment, were all true; declared that the institution of the action against the railroad company, and its prosecution to judgment, constituted a violation of the messenger's agreement and a legal fraud on the express company; directed Taylor to carry out and perform the messenger's [181] agreement, and to execute, within a fixed time, an appropriate instrument releasing the express company and the railroad company from all claims for dam. ages on account of his injuries, and enjoined him from collecting or attempting to collect the judgment against the railroad company. On a further appeal to the circuit court of appeals that decree was reversed, with directions to dismiss the bill. 161 C. C. A. 161, 249 Fed. 109. A writ of certiorari was then granted by this court.

On the second appeal the circuit court of appeals put its decision entirely on the ground that the express company was a "common carrier by railroad," within the meaning of the Employers' Liability Act of April 22, 1908, chap. 149, 35 Stat. at L. 65, Comp. Stat. § 8657, 8 Fed. Stat. Anno. 2d ed. p. 1208, and therefore, under § 5 of the act, the messenger's agree ment was void. Taylor advanced that and

1. It is urged that the decision of the circuit court of appeals on the first appeal was final, in that it disposed of all questions in the suit and left nothing open to the district court but to dismiss the bill. Had this been so, the circuit court of appeals on the second appeal hardly would have failed to enforce its prior decision. But that decision did not go as far as is claimed. It turned on the sufficiency of the bill, and on that alone. The district court had held the bill sufficient when challenged by a demurrer. The circuit court of appeals held it insufficient, and for that reason reversed the decree and remanded the suit. Had the district court taken that view when acting on the demurrer, it undoubtedly could, and probably would, have allowed an amendment curing the defect. Could it not equally allow the amendment after the circuit court of appeals pointed out the defect and remanded the suit? It, of course, was bound to give effect to the decision and [182] mandate of the circuit court of appeals; but that court did not order the bill dismissed, nor give any direction even impliedly making against the amendment. All that was disposed of was the matter of the sufficiency of the bill. And recognition of this is found in the last opinion of the circuit court of appeals, where it is said that the first reversal was "based upon the insufficiency of the pleadings." We think the decision on the first appeal was not final, and that the district court was left free, in the exercise of its discretion, to permit the amendment. Equity Rules, Nos. 19 and 28; Re Sanford Fork & Tool Co. 160 U. S. 247, 258, 259, 40 L. ed. 414, 417, 16 Sup. Ct. Rep. 291; Mutual L. Ins. Co. v. Hill, 193 U. S. 551, 553, 48 L. ed. 788, 791, 24 Sup. Ct. Rep. 538; Smith v. Adams, 130 U. S. 167, 177, 32 L. ed. 895, 899, 9 Sup. Ct. Rep. 566. It appears that, in denying a petition for a rehearing on the first appeal, the circuit court of appeals refused to direct the allowance of the amendment; but this signifies nothing more than that no occasion was perceived for controlling the district court's discretion in the matter.

2. Section 265, Judicial Code [36 Stat. at L. 1162, chap. 231, Comp. Stat. § 1242, 5 Fed. Stat. Anno. 2d ed. p. 959], formerly $ 720, Rev. Stat., provides that "the writ of injunction shall not be granted by any court of the United States to stay