Some authorities treat decisions of the highest state court as equally binding with state statutes ; Stewart v. Morris, 89 Fed. 290, 32 C. C. A. 203 ; see Nashua Savings Bank v. Anglo-American L. M. & A. Co., 189 U. S. 221, 23 Sup. Ct. 517, 47 L. Ed. 782 ; but these cases are based upon dicta or are cases deal ing solely with statutory rules of evidence ; see Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. 724, 28 L. Ed. 1117. The federal courts have not considered the state decisions as control ling in the consideration of questions of evi dence on appeal ; New Jersey S. B. Co. v. Brockett, 121 U. S. 637, 7 Sup. Ct. 1039, 30 L. Ed. 1049. It is said in Chicago & N. W. Ry. Co. v. Kendall, 167 Fed. 62, 93 C. C. A. 422, 16 Ann. Cas. 560, that the point whether state decisions touching a general common law rule of evidence are binding upon the federal court has never been directly decided, but many cases are enumerated as to matters in which the question arises of the scope of the rule that the federal courts are bound by the state law and practice. The decision of the highest court of Massachusetts upon the construction of the Sunday law was held binding; Bucher v. R. Co., 125 U. S. 555, 8 Sup. Ct. 974, 31 L. Ed. 795 ; as was also pro visions of the New York Civil Code, that a physician should not be allowed to disclose as a witness any information which he ac quired in a professional capacity ; Connecti cut Mut. L. Ins. Co. v. Union Trust Co., 112 U. S. 250, 5 Sup. Ct. 119, 28 L. Ed. 708.
A New York statute permitting a party to be examined by his adversary as a witness at any time previous to the trial of an action at law is not binding because in conflict with the method a proof provided in the United States ; Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. 724, 28 L. Ed. 1117 ; nor is the question whether the engineer and fireman of a loco motive were fellow servants ; Baltimore & 0. R. Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772 ; where it was said: "The question as to what is a matter of local, and what of general law, and the ex tent to which in the latter this court should follow the decisions of the state courts, has been often presented. The unvarying rule is, that in matters of the latter class this court, while leaning towards an agreement with the views of the state courts, always exercises an independent judgment ; and as unvarying has been the course of decision, that the question of the responsibility of a railroad corporation for injuries caused to or by its servants is one of general law. In the case of Swift v. Ty son, 16 Pet. (U. S.) 1 [10 L. Ed. 865], the first proposition was considered at length. On page 18 it is thus stated: 'But admitting the doctrine to be fully settled in New York, it remains to be considered whether it is ob ligatory upon this court if it differs from the principles established in the general commer cial law. It is observable that the courts of New York do not found their decisions upon this point upon any local statute, or positive, fixed, or ancient local usage, but they deduce the doctrine from the general principles of commercial law. It is, however, contended that the thirty-fourth section of the Judici ary Act of 1789, c. 20, furnishes a rule obliga tory upon this court to follow the decisions of the state tribunals in all cases to which they apply. That section provides "that the
laws of the several states, except where the Constitution, treaties, or statutes of the Unit ed States shall otherwise require or provide, shall be regarded as rules of decision, in trials at common law, in the courts of the United States, in cases where they apply." In order to maintain the argument, it is es sential, therefore, to hold that the word "laws," in this section, includes within the scope of its meaning the decisions of the lo cal tribunals. In the ordinary use of lan guage it will hardly be contended that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are, and are not, of themselves, laws. They are often re-examined, reversed, and qualified by the courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect. The laws of a state are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, br long-estab lished local customs having the force of laws. In all the various cases Which have hitherto come before us for decision, this court has uniformly supposed that the true interpreta tion of the thirty-fourth section limited its application to state laws strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character.' " Baltimore & 0. R. Co. v. Baugh, 149 U. S. 370, 13 Sup. Ct. 914, 37 L. Ed. 772.
So the supreme court has said: "The laws of the several states with respect to evidence within the meaning of this section (721) ap ply not only to the statutes but to the deci sions of their highest courts." Nashua Say. Bk. v. Anglo-American L. M. & A. Co., 189 U. S. 221, 23 Sup. Ct. 517, 47 L. Ed. 782. The opinion of the circuit court of appeals in Chicago & N. W. Ry. Co. v. Kendall, 167 Fed. 62, 67, 93 C. C. A. 422, 16 Ann. Cas. 560, stated : "The question is not otherwise con sidered in the case and the decisions cited to support the statement all involved statutes of the states in which the actions arose. The language just quoted was not necessary to the determination of the question before the court." And it has been held in the cir cuit court of appeals upon careful consider ation that "the decisions of the courts of a state construing the common law rules of evidence are not obligatory on the federal courts." Union Pac. Ry. Co. v. Yates, 79 Fed. 584, 25 C. C. A. 103, 40 L. R. A. 553 ; contra, Stewart v. Morris, 89 Fed. 290, 32 C. C. A. 203. The whole subject is very thor oughly discussed with a copious citation of authorities in the opinion of the circuit court of appeals in Chicago & N. W. Ey. Co. v. Kendall, 167 Fed. 62, 93 C. C. A. 422, 16 Ann. Cas. 560; where it is argued that common law rules of evidence are the creation of the courts rather than'"laws" within § 721, and that, in the absence of statutes, federal courts should be independent in this respect.