One Nusbaum delivered to the defendants at Peoria, Illinois, fifty barrels of high wines, there worth $2,783.70, to be carried to Philadelphia, receiving a bill of lading for these barrels containing the following clause: "The rate of freight through is 50 cents per 100 lbs.... Received of A. Nusbaum 50 Bbls. H. Wines... valuation $20 per bbl...And it is further agreed that the amount of the loss or damage so accruing so far as it shall fall upon the carriers above described, shall be computed at the value or cost of said goods or property at the place and time of shipment under this bill of lading." Error to District Court of Philadelphia the bill of lading the liability of the deCounty. fendants for the plaintiff's loss is not limThis was an action on the case by El-ited to $20 per bbl." This the court kins against the Empire Transportation declined, saying, "If there was a contract Company for the negligent loss of certain either express or implied that the defendgoods. ants were not to be liable beyond $20 per bbl., they are not liable beyond that. It if not necessary for you to find that the shippers should have said 'we won't hold you for any more than $20 per bbl.' not necessary to use such words. The contract may be implied from all the circumstances and the acts of the parties, and various items of evidence, as from express words of the party himself, and if you find such a contract from all the facts and circumstances of the case, you should limit the liability to $20 per bbl. Such an agreement to limit responsibility according to value from the tacts in evidence, if fairly deducible from them, may be, though the shipper did not in express words tell the carrier he would not be responsible. It may be implied from circumstances, a to the shippers, and from acceptance of a course of business and regulations known. bill of lading based on such a course of business it may be fairly inferred. You should have no difficulty in this case. It understood as to the limitation of the deis of no consequence what the plaintiffs fendant's responsibility; the question is what the shippers understood, and if that limitation was the object of the company in writing 'valuation $20 per bbl.' on the bill of lading, and the shipper so understood it, the company are not liable beyond that limitation." The words italicized were written, the rest printed. This bill of lading was transferred to the plaintiff Elkins as collateral security for a draft of the shippers for $2,783.80, which was then accepted and paid by the plaintiff. The goods were nearly all destroyed by an accident while in transit. It appeared from a printed freight notice, offered in evidence by the defendants, that they carry four classes of freight, for the first class charging $1.60 per 100 pounds, for the second $1.20, for the third 80 cents, for the fourth 50 cents, fourth class freight to be taken at an agreed valuation not exceeding $20 per bbl. Defendants then showed that the valuation of $20 per bbl. was inserted in the bill of lading in accordance with an understanding between the defendant and the shipper, that in case of loss the defendant should not be liable beyond that amount. This evidence the plaintiff objected to. The plaintiff requested the court (Thayer, P. J.) to instruct the jury "That unler the legal construction of the contract expressed in Verdict for the plaintiff for $955, being the value of the goods destroyed at the rate of $20 per barrel. To this judgment the plaintiff took a writ of error. assigning the admission of the evidence objected to, and the answers and charge of the court. Held, The valuation of $20 per barrel written into the blank of the printed bill of lading, together with the stipulated freight at 50 cents per 100 lbs., are con trolling parts of the bill of lading, and give a bond in the sum of five hundred dollars in gold, conditioned to idemnify all the counties, towns and cities of California against liability for her support or maintenance for two years. not controlled by the printed stipulation that the amount of the loss or damage occurring and falling on the carriers, shall be computed at the value or cost of the goods at the place and time of shipment. These facts, written into the printed bill, express the true contract of the parties, and the $20 per bbl. must, therefore, be regarded as the value or cost fixed by the parties in advance, as that is to be treated as such, as of the time and place of shipment. This accords with the evidence that such freight, if left to be determined in value at the time and place of shipment, would not be carried at less than $1.60 per 100 lbs. There was an ample consideration, therefore, for the low valuation in the diminution of the freight as stipulated, at 50 cents. Judgment affirmed. Per curiam opinion. The statute of California, unlike those of New York and Louisiana, does not require a bond for all passengers landing from a foreign country, but only for classes of passengers specifically described, among which are "lewd and debauched women," to which class it is alleged plaintiff belongs. The plaintiff, with some twenty other women, on the arrival of the steamer Japan from China, was singled out by the Commissioner of Emigration, an officer of the State of California, as belonging to that class, and the master of the vessel required to give the bond prescribed by law before he permitted them to land. This he refused to do, and detained them on board. They sued out a writ of habeas corpus, which by regular proceedings resulted in their committal, by order of the Supreme Court of the State, to the custody of the sheriff of the county and city of San Francisco, to await the return of the Japan, which had left the port pending the progress of the case; the order being to remand them to that vessel on her return, to be removed from the State. A statute of a State which operates directly upon an immigrant by requir- All of plaintiff's companions were reing the master, owner or consignee leased from the custody of the sheriff on a of a vessel bringing foreigners into writ of habeas corpus, issued by Mr. Jussuch State, to give an onerous bond tice Field, of this Court. But plaintiff, by for the future protection of the a writ of error brings the judgment of the State against the support of the passinger is in conflict with the Consti- Supreme Court of California to this Court, tution of the United States, and for the purpose of testing the constitutherefore null and void. tionality of the act under which she is held a prisoner. In error to the Supreme Court of the State of Calfornia. The plaintiff in error was a passenger on a vessel from China, being a subject of the Emperor of China, and is held a prisoner because the owner or master of the vessel who brought her over refused to The statute provides that the Commissioner of Immigration is "to satisfy himself whether or not any passenger who shall arrive in the State by vessels from any foreign port or place (who is not a citizen of the United States) is lunatic, idiotic, deaf, dumb, blind, crippled, or in fied by section 70, of the amendments of firm, and is not accompanied by relatives 1873-4.) who are able to support him, or is likely to become a public charge, or has been a other country, or is from sickness or disease, existing either at the pauper in any Held, The powers which the commissioner is autorized to exercise under this statute are such as to bring the United States into conflict with foreign na time of sailing from the port of tions, and which can only belong to the departure or at the time of his his federal go vernment. arrival in the State, a public charge, If the right of the States to pass stator likely soon to become so, or is a convict-utes to protect themselves in regard to the ed criminal, or a lewd or debauched wo- criminal, the pauper, and the diseased man;" and no such person shall be per- foreigner landing within their borders exmitted to land from the vessel, unless the ists at all, it is limited to such laws as are master or owner or consignee shall give a absolutely necessary for that purpose, and separate bond in each case, conditioned to this mere police regulation cannot extend save harmless every county, city and town so far as to prevent or obstruct other clasof the State against any expense incur- ses of persons from the right to hold perred for the relief, support or care of such sonal and commercial intercourse with the person, for two years thereafter. people of the United States. The commissioner is authorized to charge the sum of seventy-five cents for every examination of a passenger made by him, which sum he may collect of the master, owner, or consignor of the vessel by attachment. The bonds are to be prepared by the commissioner, and two sureties are required to each bond, and for preparing the bond the commissioner is allowed to charge and collect a fee of three dollars, and for each oath administered to a surety concerning his sufficiency as such, he may charge one dollar. It is expressly provided that there shall be a separate bond for each passenger, that there shall be two sureties on each bond, and that the same sureties must not be on more than one bond, and they must in all cases be residents of the State. If the ship master or owner prefers, he may commute for these bonds by paying such a sum of money as the commissioner may, in each case, think proper to exact and after retaining twenty per cent. of the commutation money for his services, the commissioner is required once a month to deposit the balance with the Treasurer of the State. (See chapter I., Article VII., of the Political Code of California, as modi The statute of California in this respect extends far beyond the necessity in which the right is founded, if it exists at all, and invades the right of Congress to regulate commerce with foreign nations, and is, therefore, void. WARRANTY. DAMAGES. ENGLISH DECISIONS-COMMON PLEAS Smith v. Green. Decided November 5, 1875. The defendant having sold a cow to plaintiff, a farmer, with a warranty that she was free from foot and mouth disease, and the plaintiff having placed the cow with other cows, whereby the latter became infected with the disease and died, the defendant is liable for the entire loss. The first count of the declaration was for the breach of an alleged warranty that a cow sold by the defendant to the plaintiff was free from foot and mouth disease. The second alleged that the defendant falsely and fraudulently represented the animal to be free from foot and mouth disease, and the damage alleged was that the plaintiff, who was a farmer allowed known, that the diseased cow would be the cow to herd with other cows, some of placed with other cows; and that if they which took the disease, and (with the found that the defendant knew that in cow in question) died. the ordinary course of his business, the plaintiff would so place her, then the loss of the other cows might fairly be considered to be the natural and necessary consequence of the defendant's breach of warranty, and that they might assess the damages accordingly. Rule refused. The case was tried before Archibald, J. at the assizes at Manchester. Upon a conflict of evidence, the jury found that the defendant had warranted the cow at the time of the sale to be free from foot and mouth disease, but they negatived the alleged false representation. It was found that the animal was at the time Opinions by Coleridge, C. J., Brett and suffering under the disease in question, Grove, J. J. and communicated it to other cows belonging to the plaintiff, with which she LIABILITY. EVIDENCE. FIRST DEPARTMENT. John H. Rostern, respt., against Amizi Dodd, applt. had, in the ordinary course of the plain- N. Y. SUPREME COURT, GENERAL TERMtiff's business as a farmer been placed, and that she and several of them in conOn behalf of the defendsequence died. ant, it was contended that, upon a mere breach of warranty, he was not responsible for the loss of the other cows, though he would have been so if he had been Decided March 6th, 1876. There is no implied liability on the part of an employer to care for an Judgment reversed on account of ademployee injured in his service. mitting, under objection, parol evidence of a writing without satisfactorily accounting for its non-produc tion. Appeal from judgment entered on report of a referee in favor of plaintiff. guilty of a false representation. The learned judge, however, in his summing up, told the jury that, in estimating the damages, the plaintiff was entitled to recover in respect of the breach of warranty. They might take into their consideration. the fact that the buyer was a farmer, and that the seller knew, or must be taken to The complaint alleges that one Culver, have known, that the cow in question while in the employ of defendant, received would be placed with other cows, and that injuries, and that defendant promised to the consequences which had resulted pay plaintiff for board and services Culver might naturally be expected to happen. rendered while he was suffering from the The jury returned a verdict for the plain- injuries so received. Defendant was shown tiff, with £50 damages, and leave was re- to be general manager of Dodd's Express served to the defendant to move to reduce Company, in whose employ Culver was the damages to £8 if the court should be injured. There was a conflict of evidence of opinion that they ought to be con- as to the promise, defendant denying it. Plaintiff proved the presentation of a bill fined to the value of the cow sold. to defendant; plaintiff's witness swore Held, That it was no misdirection to that the amount of the bill was $174. tell the jury that in estimating the damages to which the plaintiff was entitled for the breach of warranty, they might take into their consideration the fact that the buyer was a farmer, and that the seller knew, or must be taken to have Defendant swore that the bill was for a less amount, and made out to "Dodd's Express," and that he thought that the witness, who presented the bill, took it away with him on his refusal to pay it. Plaintiff's counsel asked the following question : Motion for a new trial on verdict direct "Did that bill for $174 embrace the usual current charges for such services ed for defendants. Exceptions to be and attendance by landlords of public heard in the first instance at General houses ?" Term. This was answered under objection and exception. Action on a policy of life insurance on life of plaintiff's husband in favor of Held, That had Culver been in the em- plaintiff. Defence, fraudulent acts in obploy of the defendant, there is no implied taining the policy; suppression of mateliability of an employer for care or services rial facts. Some of these facts were rendered an employee injured in his ser- proved by physicians who attended him. vice. That the only ground on which professionally and obtained their knowldefendant could be held liable is that of edge in that way. This evidence was rean express promise, and it is doubtful ceived under objection. One question in whether the evidence would sustain a the application was whether during the finding of such promise; but without pass- last ten years he had had any sickness or ing on this, the judgment should be re- disease. He replied, "Nine years ago, an versed for error in admitting proof of the attack of typhoid fever." In reply to the contents of the bill claimed to have been question, "Have you employed or conpresented, without producing it or satis- sulted any physician, &c.? if so, give factorily accounting for its non-production. names," he gave the name of only one. Judgment reversed. New trial granted, It was shown by his own admissions that costs to abide the event. he had, during the time designated, had Opinion by Davis, P. J; Brady and other serious sickness, and been under the Daniels, J.J., concurring. care of other physicians. LIFE INSURANCE. Held, That it was error to admit the testimony of physicians as to knowledge of diseases obtained in their professional N. Y. SUPREME COURT-GENERAL TERM. capacity, and necessary to enable them to Held also, That the admissions of the assured viz: letters written by him were admissible to show the false statements. Excluding the testimony of the physi Testimony of physicians as to knowl-cians, it appears that he had a sickness edge of diseases obtained in their that was important as affecting his insuraprofessional capacity, and necessary bility, which he was bound to disclose. to enable them to prescribe, is inadmissible. That the warranty is false, and the defendant absolved. Letters written by the assured are admissible to show false statements, or concealment of facts affecting his insurability, which he was bound to disclose. Judgment affirmed. Opinion by Brady, J.; Davis, P. J., and Daniels, J., concurring. |