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of T. A. McIntyre & Company filed a peti-, to limit the exception in any such way, tion in bankruptcy in the United States It was an honest debtor, and not a malicious district court for the southern district of wrongdoer, that was to be discharged.” New York, and were afterwards adjudi. The circumstances disclosed suffice to show cated bankrupts.

a wilful and malicious injury to property “That thereafter the plaintiff in this ac- for which plaintiff in error became and retion proved his claim against the bankrupt mains liable to respond in damages. The estate without waiving any legal rights judgment below is affirmed. in this action or otherwise."

To deprive another of his property for. ever by deliberately disposing of it without

(242 U. S. 142) semblance of authority is certainly an in- CHESAPEAKE & OHIO RAILWAY COM. jury thereto within common acceptation of

PANY, Piff. in Err., the words. Bouvier's Law Dict., “Injury.”

L P. MCLAUGHLIN.

AUGHL And this we understand is not controverted; but the argument is that an examination

CARRIERS 218(10)—NOTICE OF CLAIMof our several Bankruptcy Acts and consid- EXCUSE FOR NONCOMPLIANCE. eration of purpose and history of the 1903 Failure to comply with the stipulation amendment will show Congress never intend-in a “uniform live-stock contract" under ed the words in question to include con- which an interstate shipment was made, version. We can find no sufficient reason that no claim for damages which may acfor such a narrow construction. And in- crue to the shipper under such contract stead of subserving the fundamental pur, sued for in any court by the shipper, un

shall be allowed or paid by the carrier, or poses of the statute, it would rather tend less claim for such loss or damage shall be to bring about unfortunate if not irrational made in writing, verified by the affidavit results. Why, for example, should a bank of the shipper or his agent, and delivered rupt who had stolen & watch escape pay- to the carrier's general claim agent, defeats ment of damages, but remain obligated for any recovery from the carrier because of one maliciously broken? To exclude from injury to the shipment, where there are no discharge the liability arising from such circumstances rendering such stipulation

invalid or excusing noncompliance. transactions as those involved in Crawford

[Ed. Note.-For other

Carriers, v. Burke, 195 U. S. 176, 49 L. ed. 147, 25 Cent. Dig. SS 674-696, 947; Dec. Dig. Cw218(10).j Sup. Ct. Rep. 9, and here presented, not improbably was a special purpose of the

(No. 100.) amendment. In Tinker v. Colwell, 193 U. S. 473, 485, Argued November 14, 1916. Decided De

cember 4, 1916. 487, 48 L. ed. 754, 759, 760, 24 Sup. Ct. Rep. 505, we said of original g 17 (2): “In

N ERROR to the Circuit Court of Poca. order to come within that meaning as a I

hontas County in the state of West Virjudgment for a wilful and malicious injury ginia to review a judgment against a carrier to person or property, it is not necessary for injuries to an interstate live-stock shipthat the cause of action be based upon ment. Reversed and remanded for further special malice, so that without it the action

proceedings. could not be maintained.” And further : “A

The facts are stated in the opinion. wilful disregard of what one knows to be

Messrs. F. B. Enslow and Herbert Fitzhis duty, an act which is against good

patrick for plaintiff in error. morals and wrongful in and of itself, and

No appearance for defendant in error. which necessarily causes injury and is done intentionally, may be said to be done wilful

Mr. Justice McReynolds delivered the ly and maliciously, so as to come within

opinion of the court: the exception. It is urged that the malice referred to in the exception is malice the railway company in the circuit court,

McLaughlin recovered judgment against towards the individual personally, such as Pocahontas county, West Virginia, for inis meant, for instance, in a statute for ma

juries to a horse which it transported from liciously injuring or destroying property, Lexington, Kentucky, and delivered to him or for malicious mischief, where mere in. at Seebert, West Virginia, February 17, tentional injury without special malice 1914. towards the individual has been held by

The shipment was under a "uniform livesome courts not to be sufficient. Com. v. stock contract” signed by both parties and Williams, 110 Mass. 401. We are not in- introduced in evidence by defendant in clined to place such a narrow construction error, which, among other things, provides: upon the language of the exception. We do “That no claim for damages which may

1 not think the language used was intended accrue to the said shipper under this con

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

tract shall be allowed or paid by the said beneficiaries in whose behalf the right of carrier or sued for in any court by the said action created by the original act is given, shipper, unless claim for such loss or dam- but that there shall be only one recovery age shall be made in writing, verified by

for the same injury. the affidavit of the said shipper or his agent Dig. 10.)

[Ed. Note.-For other cases, see Death, Dec. and delivered to the general claim agent of DEATH C82_DAMAGES-UNDER FEDERAL the said carrier at his office in Richmond, EMPLOYERS' LIABILITY ACT PERSONAL Virginia, within five days from the time LOSS AND CONSCIOUS SUFFERING. said stock is removed from said car or

2. Damages recoverable under the Act cars; and that if any loss or damages occur 143, Comp. Stat. 1913, § 8662), amending

of April 5, 1910 (36 Stat. at L. 291, chap. upon the line of a connecting carrier then the Employers' Liability Act of April 22, such carrier shall not be liable unless a 1908 (35 Stat. at L. 65, chap. 149), by proclaim shall be made in like manner and viding that any right of action given by delivered in like time to some proper officer that act to the person suffering injury shall, or agent of the carrier on whose line the survive to the personal representative for loss or injury occurs."

the benefit of the same beneficiaries in whose It conclusively appears that McLaughlin

behalf the right of action created by the did not present a verified claim to the car

original act is given, but that there shall rier's agent as provided by the contract. should be confined to the personal loss and

be only one recovery for the same injury, Upon its face the agreement seems to be suffering of the injured employee during the unobjectionable, and nothing in the record time intervening between the injury and tends to establish circumstances rendering the resulting death. it invalid, or excuse failure to comply there- [Ed. Note.-For other cases, see Death, Cent.

Dig. § 106; Dec. Dig. 82.) with. The court below erred in denying a seasonable request for a directed verdict;

(No. 107.) and its judgment must be reversed. Our recent opinions render unnecessary any fur. Submitted November 15, 1916. Decided ther discussion of the reasons for this con

December 1916. clusion, Northern P. R. Co. v. Wall, 241 U. S. 87, 60 L. ed. 905, 36 Sup. Ct. Rep.

N ERROR to the Supreme Court of the 493; Georgia, F. & A. R. Co. v. Blish Mill. Co. 241 U. S. 190, 60 L. ed. 948, 36 Sup.ment which affirmed a judgment of the Ct. Rep. 541; Cincinnati, N. 0. & T. P. District Court of Ramsey County, in that R. Co. v. Rankin, 241 U. S. 319, 60 L. ed. state, in favor of plaintiff in an action un1022, L.R.A. 1917A, 265, 36 Sup. Ct. Rep. der the Federal Employers' Liability Act. 555.

Reversed and remanded for further proReverse and remand for further proceed.ceedings. ings not inconsistent with this opinion. See same case below on appeal from order Reversed.

denying alternative for judgment or new trial, 127 Minn. 144, L.R.A.-, -, 149 N.

W. 14, 7 N. C. C. A, 154; on appeal from (242 U. S. 144)

judgment, 128 Minn. 537, 150 N. W. 1102. GREAT NORTHERN RAILWAY COM.

The facts are stated in the opinion.
PANY, Piff. in Err.,

Messrs. A. L. Janes and M. L. Country

man for plaintiff in error. CAPITAL TRUST COMPANY, as Adminis

Mr. Samuel A. Anderson for defendant trator of the Estate of William M. Ward, in error. Deceased.

V.

DEATH 10-DAMAGES-UNDER FEDERAL

Mr. Justice McReynolds delivered the EMPLOYERS' LIABILITY ACT - CONSCIOUS | opinion of the court: SUFFERING OF DECEASED.

While employed by the railway company 1. The fact that a railway employee, as a switchman, William M. Ward was acthough wholly unconscious, continued to breathe for perhaps ten minutes after re

cidentally killed, December 13, 1912; and ceiving a fatal injury, affords no basis for the administrator brought suit in a state an estimation or award of damages in addi- court under the Federal Employers' Liabiltion to the beneficiary's pecuniary loss, unity Act, as amended, for the benefit of his der the Act of April 5, 1910 (36 Stat. at father and mother, seeking to recover their L. 291, chap: 143, Comp; Stat. 1913, 8 pecuniary loss and also damages for the 8662), amending the Employers' Liability injuries suffered by him prior to death. Act of April 22, 1908 (35 Stat. at L. 65, Some evidence tended to show that, after chap. 149), by providing that any right of action given by that act to the person suf being run over by one or more cars, alfering injury shall survive to the personal though wholly unconscious, the deceased representative for the benefit of the same'continued to breathe for perhaps ten min.

For other cases see same topic & KEY-NUMRER in all Key-Numbered Digests & Indexes

the car.

utes. Testimony of other witnesses sup-, health, his ability to work, his earning capacported a claim that there was no apprecia. ity, and the amount he usually earned, at ble continuation of life. Judgment upon the time he was injured, and the length of an unapportioned verdict, in favor of the time he would probably have lived had he administrator, was affirmed by the state not been injured, using your best judgment supreme court, October, 1914. The railway under all the circumstances in arriving at company duly excepted to the following what would be a fair compensation for his portions of the charge:

loss." “Did Ward's injuries kill him instantly? In St. Louis, I. M. & S. R. Co. v. Craft, If he was killed instantly, one rule of dam- 237 U. S. 648, 655, 658, 59 L. ed. 1160, 1162, ages applies, while if he lived some time 1163, 35 Sup. Ct. Rep. 704, 9 N. C. C. A. 754 after he was injured, another rule of dam- (June 1, 1915) we held that, under the ages would apply. There is some evidence Employers' Liability Act, as amended in that he lived a few minutes after receiving 1910, 36 Stat. at L. 291, chap. 143, Comp. his injuries; there is other evidence that Stat. 1913, § 8662, the administrator of a he was dead when taken out from under fatally injured employee might recover the

If you should find that Ward died beneficiary's pecuniary loss and also for from his injuries without living an ap- pain and suffering endured by deceased bepreciable length of time, then the plaintiff tween the moment of injury and final dis. could only recover, if at all, what would solution. We were careful, however, to say, have been the pecuniary value of Ward's (655) “But to avoid any misapprehension life to his father and mother had he lived. it is well to observe that the case is close

And in that connection it would be to the border line, for such pain and sufproper for you to consider his health, his fering as are substantially contemporaneous disposition to contribute to the support of with death or mere incidents to it, as also his parents, the evidence of what he custom- the short periods of insensibility which arily earned, his earning capacity, the sometimes intervene between fatal injuries amount he was in the babit of giving to his and death, afford no basis for a separate parents, his age, his condition in life, the estimation or award of damages under length of time he probably would have lived statutes like that which is controlling here." had not this accident happened, and the ex. And, referring to the two separate grounds pectancy of the life of the father and moth- of recovery-(658) "Although originating er, and the reasonable expectancy of the in the same wrongful act or neglect, the parents in respect to benefits, if any, from two claims are quite distinct, no part of the services of their son;

either being embraced in the other. One is “In case you find that Ward did not die for the wrong to the injured person, and is instantly from his injuries, but that he confined to his personal loss and suffering lived some appreciable length of time after before he died, while the other is for the the accident, then you would come to an. wrong to the beneficiaries, and is confined other question in the case.

to their pecuniary loss through his death. "Under the law of the United States it One begins where the other ends, and a reis provided that any right of action given covery upon both in the same action is not by the act of Congress in reference to in- a double recovery for a single wrong, but juries of this kind under such circumstances, a single recovery for a double wrong." that the right of action shall survive to the The present record presents the very cir. personal representatives of the deceased for cumstances which we declared afforded no the benefit of his parents, if there is no basis for an estimation or award of damsurviving widow and children. And if you ages in addition to the beneficiary's pecuni. should find from the evidence that Ward ary loss. And although apparently not did not die instantly from his injuries, but challenged in the state supreme court, and that he lived some little time after he was therefore not now to be relied on as ground injured, then, under the law, the plaintiff for reversal (Harding v. Illinois, 196 U. S. would be entitled to recover damages in the 78, 87, 88, 49 L. ed. 394, 397, 398, 25 Sup. same amount that Ward, the deceased, would Ct. Rep. 176), in view of a possible new have been entitled to recover had he brought trial, it seems proper to point out that the the action in his lifetime. That is, you method approved by the trial court for estican award such damages as, in your judg. mating damages where the deceased's cause ment, would be a full, fair, and reasonable of action does survive conflicts with the compensation for the loss sustained by rule sanctioned by us in the Craft Case. Ward, the deceased, by reason of the in- The judgment below is reversed and the juries he received.

And in that cause remanded for further proceedings not connection, it would be proper for you to inconsistent with this opinion. consider his age, his habits of industry, his Reversed.

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(212 U. S. 148) NEW RIVER RAILROAD COMPANY, PLF. in ley, and Robert J. Cary for plaintif in er

. S. , S. Err.,

ror. V.

Messrs. Justin D. Bowersock and MARY EDNA BEAHAM.

Robert B. Fizzell for defendant in error. CARRIERS C39742-MEASURE OF RIGHTS AND LIABILITIES-INTERSTATE BAGGAGE.

Mr. Justice McReynolds delivered the 1. The rights and liabilities of an interstate passenger and the carrier in case of opinion of the court: a loss of baggage depend upon Federal legis.

At its New York city station, in Septemlation, the agreement between the parties, ber, 1910, Miss Beaham purchased of plainand common-law principles, as accepted and tiff in error a first-class ticket over its own enforced in Federal tribunals.

and connecting lines, on the face of which [Ed. Note.-For other cases,

Carriers, Cent. Dig. $$ 1519-1528; Dec. Dig. 39714.)

was printed : "Issued by the New York

Central & Hudson River Railroad. Good EVIDENCE 69-PRESUMPTION CARRIER'S COMPLIANCE WITH LAW.

for one passage of the class indicated on 2. An interstate railway carrier is en coupons attached to Kansas City, Missouri, titled to the presumption that it is con- when stamped and sold by an agent holding ducting its business lawfully.

written authority as prescribed by law, [Ed. Note.-For other

Evidence, and presented with coupons attached. SubCent, Dig. $ 90; Dec. Dig. 69.] CARRIERS 405(3), 40S(4) EVIDENCE

ject to the following contract: . . 5. SUFFICIENCY-LIMITATION OF CARRIER's Baggage liability is limited to wearing apLIABILITY-Loss of BAGGAGE.

parel not to exceed one hundred (100) dol3. Acceptance and use by an interstate lars in value for a whole ticket and fifty passenger of a railway ticket which pur- (50) dollars for a half ticket unless a ported to limit baggage liability to a speci- greater value is declared by the owner, and fied sum unless a greater value should be declared and excess charges paid suffice to excess charge thereon paid at the time of establish an agreement prima facie valid, taking passage.” limiting the carrier's liability in this re- Immediately after purchasing the ticket spect, and the mere failure of the passenger she presented it at the baggage department; to read the ticket could not overcome the her trunk was received for transportation; presumption of assent.

and she accepted a check or receipt there(Ed. Note.--For

see Carriers, cent. Dis. 1548, 1549, 1562-1567 Dec. Dig. for upon which were the words: "See con405(3), 408(4).)

ditions on back. Value not stated." On APPEAL AND ERROR Om837(11)-ERROR TO the back this was printed: "Notice to

STATE COURT
Right — INTERSTATE CARRIER'S LIMITA- passengers. Baggage consists of a passen-
TION OF BAGGAGE LIABILITY.

ger's personal wearing apparel and liability 4. Insufficiency or defective certifica- is limited to $100 (except a greater or less tion of a carrier's applicable tariff schedules amount is provided in tariffs) on full fare on file with the Interstate Commerce Com-| ticket, unless a greater value is declared by mission, which were admitted in evidence owner at time of checking and payment is by the trial court, could not justify a state made therefor.” appellate court in arbitrarily disregarding such schedules when passing upon the ques.

The trunk and contents having been lost, tion whether or not the carrier had limited she sued plaintiff in error for their full its liability for the baggage of an intervalue in the circuit court, Jackson county, state passenger to a specified sum unless Missouri. Admitting responsibility for a greater value is, declared and excess $100, the company claimed exemption from charges paid.

any larger recovery because of limitations [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 99 3275, 3277 ; Dec. Dig. Come specified in the ticket and impliedly as837(11).]

sented to when it was accepted and used; [No. 118.]

and also because of the same limitations Argued November 16, 1916. Decided Decem-embodied in its tariff schedules filed with ber 4, 1916.

the Interstate Commerce Commission.

A jury being waived, the cause was tried N ERROR to the Kansas City Court of ApI peaks Pool Peta Sita kemur amisit u court ret Alphys by a judgment allirming a judgment of the Cir- ticket and check were shown, and nothing cuit Court of Jackson County, in that state, in the evidence indicated any purpose to for the recovery from a carrier of the full deceive or mislead the purchaser, or invalue of lost interstate baggage, notwith-ability on her part to appreciate the prostanding a limitation of such liability in visions in question; she disclaimed having the ticket and in the carrier's published read them, and denied their validity under tariffs to the declared value. Reversed and general principles of law. Counsel for the remanded for further proceedings.

railroad offered in evidence copies of its The facts are stated in the opinion. tariff schedules on file with the Interstate

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

other cases,

Commerce Commission, certified by the 263, 46 L. cd. 190, 22 Sup. Ct. Rep. 102; chairman of that body. These contained Fonseca v. Cunard S. S. Co. 153 Mass. 553, clauses limiting liability for baggage to 12 L.R.A. 340; 25 Am. St. Rep. 660, 27 N. E. $100 unless greater value was declared 665. and paid for; and they were admitted not- In order to determine the liability aswithstanding an objection to mode of their sumed for baggage it was proper to consider authentication.

applicable tariff schedules on file with the The circuit court held no agreement limit- Interstate Commerce Commission; and the ing liability resulted from acceptance and carrier had a Federal right not only to a use of ticket and check, and that, “even fair opportunity to put these in evidence, if the local and interstate tariffs of excess but also that, when before the court, they baggage rates introduced in evidence were should be given due consideration. Southfiled with the Interstate Commerce Commis- ern Exp. Co. v. Byers, 240 U. S. 614, 60 sion of the United States, and properly L. ed. 827, L.R.A.1917A, 197, 36 Sup. Ct. posted as required by the Interstate Com. Rep. 410; Kansas City Southern R. Co. v. merce Act, still plaintiff would be entitled Jones, 241 U. S. 181, 60 L. ed. 943, 36 Sup. to recover the reasonable value of her trunk Ct. Rep. 513. After their admission in eviand the reasonable value of the articles of dence by the trial court the schedules could baggage contained therein, unless she ex. not be disregarded arbitrarily without deny. pressly assented to the provisions of said ing the railroad's Federal right; and we tariffs limiting the liability of the defend think they were so treated by the court of ant to $100 for loss of baggage unless a appeals. We are cited to no decision of greater value should be declared and paid the supreme court of Missouri recognizing for.” A judgment for $1,771.52 was affirmed any settled rule of practice there which by the Kansas City court of appeals. It required such action, and the unjust conheld that Boston & M. R. Co. v. Hooker, 233 sequences of it are apparent. Assuming, U. S. 97, 58 L. ed. 808, L.R.A.1915B, 450, without deciding, the correctness of its 34 Sup. Ct. Rep. 526, Ann. Cas. 19150, opinion that the schedules as certified were 593, would necessitate a reversal but for inadmissible and improperly received, neverthe fact that the record contained no com- theless the court should not have destroyed petent evidence to show a schedule on file the carrier's opportunity to protect itself with the Commission specifying liability by introducing other evidence upon a new for baggage; "the Federal statute provides trial. that copies of tariff rates on file with that Reverse and remand for further proceed. Commission shall be received in evidence, ings not inconsistent with this opinion. if certified by the secretary, under the seal Reversed. of the Commission,” and certification by the chairman is insufficient. It therefore

Mr. Justice Pitney dissents. wholly disregarded the copies in the record and treated the cause as though they had not been introduced.

(242 U. S. 128) The transactions in question related to

GEORGE W. STEWART, Piff. in Err., interstate commerce; consequent rights and liabilities depend upon acts of Congress,

CHARLES H. RAMSAY. agreement between the parties, and commonlaw principles accepted and enforced in

COURTS C385(4)-APPEAL FROM DIsFederal courts. And the carrier is entitled

TRICT COURT-JURISDICTION BELOW. to the presumption that its business is be

1. The jurisdiction of a Federal dising conducted lawfully. Southern Exp. Co. trict court as a Federal Court is so involved v. Byers, 240 U. S. 612, 614, 60 L. ed. 825, as to sustain a direct writ of error from the 827, L.R.A.1917A, 197, 36 Sup. Ct. Rep. 410; Federal Supreme Court under the Judicial Cincinnati, N. 0. & T. P. R. Co. v. Rankin, Stat. 1157 (Comp. St. 1913, § 1215) in an

Code, § 238, Act March 3, 1911, c. 231, 36 241 U. S. 319, 326, 60 L. ed. 1022, 1025, order quashing a summons issued out of that L.R.A.1917A, 265, 36 Sup. Ct. Rep. 555. court, directed to a nonresident, because it

In the circumstances disclosed, accept- was served while he was returning from the ance and use of the ticket sufficed to estab- which he was a party plaintiff.

court room after testifying in a case in lish an agreement prima facie valid which

[Ed. Note.-For other cases, see Courts, Cent. limited the carrier's liability. Mere failure Dig. $$ 1022, 1031; Dec. Dig, w385(4); Appeal

and Error, Cent. Dig. § 3302.] by the passenger to read matter plainly

PROCESS 119 WRIT AND PROCESS placed before her could not overcome the

SERVICE ON NONRESIDENT-PRIVILEGE. presumption of assent. New York C. & H.

2. Suitors, as well as witnesses, coming R. R. Co. v. Fraloff, 100 U. S. 24, 27, 25 from another state or jurisdiction, are exL. ed. 531, 533; The Kensington, 183 U. s.'empt from the service of civil process while

Om For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

v.

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