the subject-matter was not, and could not be, questioned." Citing Mueller v. Nugent, 184 U. S. 15, 46 L. ed. 411, 22 Sup. Ct. Rep. 269; Smith v. McKay, 161 U. S. 355, 40 L. ed. 731, 16 Sup. Ct. L. H. WOODBURY and Vincent WoodRep. 490.



(See S. C. Reporter's ed. 357-360.) Commerce

Sup. Ct. 1908.]

limitation Carriers — published tariff of baggage liability transportation from adjacent foreign country. 2. The Carmack Amendment of June

It will be observed, therefore, that the Act of 1898 made jurisdiction depend upon an inquiry of fact, and neceslocal transportation as sarily jurisdiction was conferred to make part of interstate commerce. the inquiry, and pronounce judgment 1. Transportation of a passenger and according to its result. The case, there- baggage under an interstate ticket would fore, is not pertinent to, or authority be none the less interstate commerce beupon, the case at bar. The Act of June cause the transportation in question was only one stage of the journey, lying be25, 1910, which covers the present pro- tween two points in the same state. eeeding, is peremptory in its prohibition. [For other cases, see Commerce, I. b, in Digest It excludes, by § 4, insurance corporations from the benefits of voluntary bankruptcy, and by subdivision b prohibits them from being adjudged involuntary bankrupts. The effect of these provisions is that there is no statute of bankruptcy as to the excepted corporations, and necessarily there is no power in the district court to include them. In other words, the policy of the law is to leave the relation and remedies of "municipal, railroad, insurance, [356] or banking" corporations to their creditors and of their creditors to them, to other provisions of law. It is easy to see in what disorder a different

29, 1906, under which carriers may limit liability by published tariffs, must be deemed to apply to the baggage of a passenger carried on the outward trip under a ticket calling for transportation from Canada to Texas and return, in view of the declaration of the Act of February 4, 1887, § 1, that such act applies to any common carrier engaged in the transportation of passengers or property from any place in the United States to an adjacent foreign country, since the test of the application of the act is not the direction of

policy would result. We may use the movement, but the nature of the transfor illustration a municipal corpora-portation, as determined by the field of the tion. Its creditors may be carrier's operation.


prising, its officers acquiescent or indifferent; can, therefore, the allegations of the former and the default of the lat

[For other cases, see Carriers, II. a, 9; III. g, in Digest Sup. Ct. 1908.]

Note. On limitation of carrier's lia


ter confer jurisdiction on the district bility for passenger's baggage-see notes court to entertain a petition in bank-to Zetler v. Tonopah & G. R. Co. L.R.A. ruptcy against the corporation, and ren- 1916A, 1273; Wells v. Great Northern der a decree therein? And if not, why R. Co. 34 L.R.A. (N.S.) 818; and French not? If consent can confirm jurisdic- Merchants & M. Transp. Co. 19 tion, why not initially confer jurisdicL.R.A.(N.S.) 1006. tion? It is not necessary to point out On liability of carrier for baggage of the disorder that would hence result, passenger-see notes to Humphreys v. and the difficulties that the officers of a Perry, 37 L. ed. U. S. 587, and Hannibal bankrupt court would encounter in such & St. J. R. Co. v. Swift, 20 L. ed. U. S. situation. The legislative power thought Effect of Carmack Amendment upon care against the possibility of it was necessary, and in that care associated in-iting liability of a common carrier for state regulations as to stipulations limsurance corporations. For a court to ex- the loss of or damage to goods-see tend the act to corporations of either notes to Louisville & N. R. Co. v. Miller, kind is to enact a law, not to execute one. 50 L.R.A. (N.S.) 819, and Adams Exp. The first question concerns procedure Co. v. Croninger, 44 L.R.A. (N.S.) 257. only, and should be answered in the affirmative. First Nat. Bank v. Klug, supra; Re Loving, 224 U. S. 183, 56 L. ed. 725, 32 Sup. Ct. Rep. 446.

The second and third questions concern the merits, and are respectively answered in the affirmative and negative. So ordered.

As to whether stipulation exempting carrier from liability for passenger's baggage, or limiting the amount thereof, covers loss due to negligence-see notes to Gardiner v. New York C. & H. R. R. Co. 34 L.R.A.(N.S.) 826, and Tewes v. North German Lloyd S. S. Co. 8 L.R.A.(N.S.) 199.

[No. 100.]

Submitted November 15, 1920. Decided December 13, 1920.

N WRIT of Certiorari to the Court

Supreme Judicial District of the State
of Texas to review a judgment which
reversed a judgment of the District
Court of El Paso County, in that state,
enforcing a limitation of the liability
of a carrier for the loss of baggage, and
entered judgment for the full amount
of the loss. Reversed.
case below,
209 S. W. 432.
The facts are stated in the opinion.
Mr. T. J. Beall submitted the cause
for petitioner:

See same App.

Tex. Civ.

The shipment in question constituted interstate commerce.

Texas & P. R. Co. v. Interstate Com-
merce Commission, 162 U. S. 212,.40 L.
ed. 945, 5 Inters. Com. Rep. 405, 16 Sup.
Ct. Rep. 666; Boston & M. R. Co. v.
Hooker, 233 U. S. 97, 58 L. ed. 868,
L.R.A.1915B, 459, 34 Sup. Ct. Rep. 526,
Ann. Cas. 1915D, 593; Texas & N. O. R.
Co. v. Sabine Tram Co. 227 U. S. 111,
57 L. ed. 442, 33 Sup. Ct. Rep. 229;
Wabash, St. L. & P. R. Co. v. Illinois,
118 U. S. 557, 30 L. ed. 244, 1 Inters.
Com. Rep. 31, 7 Sup. Ct. Rep. 4; Coe v.
Errol, 116 U. S. 517, 29 L. ed. 715, 6
Sup. Ct. Rep. 475; Cutting v. Florida
R. & Nav. Co. 46 Fed. 641; Houston
Direct Nav. Co. v. Insurance Co. of
N. A. 89 Tex. 1, 30 L.R.A. 713, 59 Am.
St. Rep. 17, 32 S. W. 889; State v.
Gulf, C. & S. F. R. Co. Tex. Civ.
App. 44 S. W. 542; State v. Inter-
national & G. N. R. Co. Tex. Civ.
App. -, 71 S. W. 994; Gulf, C. & S. F.
R. Co. v. Fort Grain Co. Tex. Civ.
App. 72 S. W. 419.
Mr. Rufus B. Daniel submitted the
cause for respondents:

[ocr errors]

The transportation, by a common carrier or carriers, of a passenger from Timmins, Ontario, Canada, to El Paso, Texas, and return to Timmins, Ontario, Canada, upon a round-trip ticket purchased at Timmins, Ontario, Canada, is not such transportation as is included within the terms of § 1 of the Act to Regulate Commerce.

United States v. Philadelphia & R. R. Co. 188 Fed. 484; Re Heated Car Service Regulations, 50 Inters. Com. Rep. 623; Canales v. Galveston, H. & S. A. R. Co. 37 Inters. Com. Rep. 574; Seymour v. Morgan's L. & T. R. & S. S.

Co. 35 Inters. Com. Rep. 492; Mexican
Nat. R. Co. v. Ware, Tex. Civ. App.

60 S. W. 343; Drozinski v. Hamburg American Line, 193 Mo. App. 60, 181 S. W. 1164.

Mr. Justice Brandeis delivered the opinion of the court:

On March 14, 1917, Mrs. Woodbury Antonio Railway at San Antonio, [358] took the Galveston, Harrisburg, & San Texas, for El Paso, Texas, and checked her trunk, which she took with her. It was lost, and she sued the company in a state district court for the value of trunk and contents, which the jury found to be $500. Mrs. Woodbury was traveling on on a coupon ticket purchased at Timmins, Ontario, from a Canadian railroad, entitling her to travel over it and connecting lines, from Timmins to El Paso and return, apparently with stop-over privileges. When the trunk was lost she was on her journey out. She was not told when she purchased her ticket or when she checked her trunk that there was any limitation upon the amount of the carrier's liability. It did not appear whether the ticket purchased contained notice of any such limitation, nor did it appear what was the law of Canada in this respect. The company insisted that Mrs. Woodbury was on an interstate journey, and that, under the Act to Regulate Commerce, February 4, 1887, chap. 104, 24 Stat. at L. 379, Comp. Stat. § 8563, 4 Fed. Stat. Anno. 2d ed. p. 337, as amended, it was not liable for more than $100; since it had duly filed with the Interstate Commerce Commission and published a tariff limiting liability to that amount unless the passenger declared a higher value and paid excess charges, which Mrs. Woodbury had not done. She insisted that her transportation was not subject to the Act to Regulate Commerce, because it began in a foreign country; and that the liability was governed by the law of Canada, which should, in the absence of evidence, be assumed to be like the law of Texas, the forum; and that by the law of Texas the limitation of liability was invalid. The trial court held that she was entitled to recover only $100, and entered judgment for that amount. This judgment was reversed by the court of civil appeals, which entered judgment for Mrs. Woodbury in the sum of $500. App., 209 S. W. 432. here on writ of certiorari 63 L. ed. 1183, 39 Sup.

[ocr errors]

Tex. Civ. The case came (250 U. S. 637, Ct. Rep. 493).

The only question before us is the amount of damages recoverable.

portation by rail to an adjacent foreign country is, at least ordinarily, engaged The test of the If Mrs. Woodbury's journey had start- in transportation also from that country ed in New York [359] instead of across to the United States. the border in Canada, the provision in application of the act is not the directhe published tariff would clearly have tion of the movement, but [360] the limited the liability of the carrier to nature of the transportation as deter$100. For her journey would have been mined by the field of the carrier's This is the construction interstate, although the particular stage operation. International of it on which the trunk was lost lay placed upon the act by the Interstate wholly within the state of Texas. Com- Commerce Commission. pare Texas & N. O. R. Co. v. Sabine Paper Co. v. Delaware & H. Co. 33 Tram Co. 227 U. S. 111, 57 L. ed. Inters. Com. Rep. 270, 273, citing Texas And the & P. R. Co. v. Interstate Commerce 442, 33 Sup. Ct. Rep. 229. Carmack Amendment [June 29, 1906, Commission, 162 U. S. 197, 40 L. ed. 34 Stat. at L. 595, chap. 3591, § 7, Comp. Stat. §§ 8604, 8604aa, 4 Fed. Stat. Anno. 2d ed. p. 499] under which carriers may limit liability by published tariff applies to the baggage of a passenger carried in interstate commerce (Boston & M. R. Co. v. Hooker, 233 U. S. 97, 58 L. ed. 868, L.R.A.1915B, 450, 34 Sup. Ct. Rep. 526, Ann. Cas. 1915D, 593), although it does not deal with liability for personal injuries suffered by the passenger (Chicago, R. I. & P. R. Co. v. Maucher, 248 U. S. 359, 63 L. ed. 294, 39 Sup. Ct. Rep. 108). The subsequent legislation, the Cummins Amendment, Act of March 4, 1915, chap. 176, 38 Stat. at L. 1196, as amended by the Act of August 9, 1916, chap. 301, 39 Stat. at L. 441, Comp. Stat. § 8592, Fed. Stat. Anno. Supp. 1918, p. 387, has not altered the rule regarding liability for baggage.

But counsel for Mrs. Woodbury insists that, solely because her journey originated in Canada, the provisions of the Act to Regulate Commerce do not apply. The contention is that § 1 of the Act of 1887 does not apply to the transportation of passengers from a foreign country to a point in the United States. The first To this there are two answers. is that the transportation here in question is not that of a passenger, but of property. Boston & M. R. Co. v. Hook

er, supra.

The second is that the act

940, 5 Inters. Com. Rep. 405, 16 Sup.
Ct. Rep. 666. It is in harmony with
that placed upon the words of § 1
of the Harter Act, February 13, 1893,
chap. 105, 27 Stat. 445, Comp. Stat. §
8029, 6 Fed. Stat. Anno. 2d ed. 371:
"Any vessel transporting merchandise or
property from or between ports of the
United States and foreign ports," which,
in Knott v. Botany Worsted Mills, 179
U. S. 69, 75, 45 L. ed. 90, 94, 21 Sup.
Ct. Rep. 30, were construed to include
vessels bringing cargoes from foreign
ports to the United States. There is a
later clause in § 1 which deals specifical-
ly with the transportation of property
to or from foreign countries; but cases
arising under that clause are not applica-
ble here. That clause applies where the
foreign country is not adjacent to the
United States.

The cases which hold that the act does not govern shipments from a foreign country in bond through the United States to another place in a foreign country, whether adjacent or not, are also not in point. Compare United States v. Philadelphia & R. R. Co. 188 Fed. 484; Re Bills of Lading, 52 Inters. Com. Rep. 671, 726-729; Canales v. Galveston, H. & S. A. R. Co. 37 Inters. Com. Rep. 573.

Since the transportation here in question was subject to the Act to Regulate Commerce, both carrier and passenger were bound by the provisions of the published tariffs. As these limited the recovery for baggage carried to $100, in the absence of a declaration of higher value and the payment of an engaged charge, and as no such declaration was made and excess charge paid, that sum only was recoverable. Reversed.

does apply to the transportation of both
passengers and property from an adja-
cent foreign country, such as Canada.
Section 1 declares that the act applies to
"any common carrier
in the transportation of passengers or
from any place in
the United States to an adjacent foreign
country." A carrier engaged in trans-
65 L. ed.



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impairing contract obligations due process law equal protection of the laws workmen's compensation forbidding insurance against liability.

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2. A ruling of a state industrial comN ERROR to the Supreme Court of the State of Ohio to review a judgmission, justified or demanded by a change in the state law, by which the commission, ment which affirmed a judgment of the revoking its previous discretionary action, Court of Appeals of Franklin County, declares that no employers shall be per- in that state, which, on appeal from the mitted to pay or furnish directly to injured Court of Common Pleas, sustained deemployees or to the dependents of killed murrers to the petition and answer and employees the compensation and benefits cross petition in a suit to enjoin the provided for in the state Workmen's Com State Industrial Commission from enpensation Law if such employers, by contract or otherwise, shall provide for the forcing its ruling prohibiting employers insurance of the payment by them of such from making direct compensation under compensation and benefits, or shall indem- the state Workmen's Compensation Act nify themselves against loss sustained by if such employers, by contract or otherthe direct payment thereof, does not uncon-wise, have provided for the insurance Note. On the general subject of Generally, as to what laws are void writs of error from the United States as impairing obligation of contractsSupreme Court to state courts-see see notes to Franklin County Grammar notes to Martin v. Hunter, 4 L. ed. U. School v. Bailey, 10 L.R.A. 405; Bullard S. 97; Hamblin v. Western Land Co. v. Northern P. R. Co. 11 L.R.A. 246; 37 L. ed. U. S. 267; Re Buchanan, 39 Henderson v. Soldiers & S. Monument L. ed. U. S. 884; and Kipley v. Illinois, Comrs. 13 L.R.A. 169; and Fletcher v. Peck, 3 L. ed. U. S. 162.

42 L. ed. U. S. 998.

On what adjudications of state courts! can be brought up for review in the Supreme Court of the United States by writ of error to those courts-see note to Apex Transp. Co. v. Garbade, 62

L.R.A. 513.

On error to state courts in cases presenting questions of impairment of contract obligations-see note to Osborne v. Clark, 51 L. ed. U. S. 619.

On error to state courts in cases in

volving questions of due process of law -see note to Burt v. Smith, 51 L. ed. U. S. 121.

On right of Federal Supreme Court to review questions not involved in the record-see note to Missouri ex rel. Hill v. Dockery, 63 L.R.A. 571.

Change of remedy generally as impairing the obligation of contract-see notes to Best v. Baumgardner, 1 L.R.A. 356; Phinney v. Phinney, 4 L.R.A. 348, and Louisiana ex rel. Ranger v. New Orleans, 26 L. ed. U. S. 132.

As to constitutionality of workmen's statutes-see notes to Hunter v. Colfax compensation and industrial insurance Consol. Co. L.R.A.1917D, 51, and Jensen v. Southern P. Co. L.R.A.1916A, 40.

As to constitutionality of compulsory industrial insurance-see note to State ex rel. Davis-Smith Co. v. Clausen, 37 L.R.A. (N.S.) 466.

As to the validity of class legislation, generally-see notes to State v. Goodwill, 6 L.R.A. 621, and State v. Loomis, 21 L.R.A. 789.

of the payment of such compensation, or have indemnified themselves against loss sustained by direct payment. Affirmed.

See same case below, 99 Ohio St. 120, 124 N. E. 54.

The facts are stated in the opinion.

Messrs. Judson Harmon and Arthur I. Vorys argued the cause and filed a brief for plaintiffs in error:

(2) Liability insurance is not inimical to public policy.

American Casualty Ins. Co's Case (Boston & A. R. Co. v. Mercantile Trust & D. Co.) 82 Md. 535, 38 L.R.A. 97, 34 Atl. 778; Kansas City, M. & B. R. Co. v. Southern R. News Co. 151 Mo. 373, 45 L.R.A. 380, 74 Am. St. Rep. 545, 52 S. W. 205; Breeden v. Frankford M. Acci. & Plate Glass Ins. Co. 220 Mo. 327, 119 N. E. 576; Stone v. Old Colony Street R. Co. 212 Mass. 459, 99 N. E. 218; Rumford Falls Co. v. Fidelity & C. Co. 92 Me. 574, 43 Atl. 503; Hoadley v. Purifoy, 107 Ala. 276, 30 L.R.A. 351, 18 So. 220.

(3) Contracts indemnifying employers are not inimical to public welfare, and the legislature cannot prohibit such contracts.

The legislature has the power to compel all employers to contribute to the state workmen's compensation fund, or it may provide the conditions upon which employers may pay into the state fund, and the conditions upon which they may pay compensation directly to employees; but the desire of an employer who elects to pay compensation directly, to indemnify himself, cannot Adams v. Tanner, 244 U. S. 590, 61 be made the sole basis of a legislative L. ed. 1336, L.R.A.1917F, 1163, 37 Sup. classification of employers, distinguish- Ct. Rep. 662, Ann. Cas. 1917D, 973; ing them as ineligible to pay compensa- Allgeyer v. Louisiana, 165 U. S. 578, tion directly. Such basis of classifica- 41 L. ed. 832, 17 Sup. Ct. Rep. 427; tion is not related to the purpose of Dobbins v. Los Angeles, 195 U. S. 223, the constitutional amendment and the Workmen's Compensation Law.

Adams v. Tanner, 244 U. S. 590, 61 L. ed. 1336, L.R.A.1917F, 1163, 37 Sup. Ct. Rep. 662, Ann. Cas. 1917D, 973; State ex rel. Turner v. United States Fidelity & G. Co. 96 Ohio St. 250, 117 N. E. 232; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 41 L. ed. 666, 17 Sup. Ct. Rep. 255; Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549, 55 L. ed. 328, 31 Sup. Ct. Rep. 259; Chicago v Netcher, 183 Ill. 104, 48 L.R.A. 261, 75 Am. St. Rep. 93, 55 N. E. 707; Truax v. Raich, 239 U. S. 33, 60 L. ed. 131, L.R.A.1916D, 545, 36 Sup. Ct. Rep. 7, Ann. Cas. 1917B, 283; Ives v. South Buffalo R. Co. 201 N. Y. 271, 34 L.R.A. (N.S.) 162, 94 N. E. 431, Ann. Cas. 1912B, 156; Chenoweth v. State Medical Examiners, 57 Colo. 74, 51 L.R.A. (N.S.) 958, 141 Pac. 132, Ann. Cas. 1915D, 1188; Byers v. Merdian Printing Co. 84 Ohio St. 408, 38 L.R.A. (N.S.) 913, 95 N. E. 917; Dunahoo v. Huber, 185 Iowa, 753, 171 N. W. 123.

The legislature has no power to prohibit employers from insuring or indem nifying themselves against their liability to employees.

(1) Insurance has no power inimical to public policy.

Phoenix Ins. Co. v. Erie & W. Transp. Co. 117 U. S. 312, 29 L. ed. 873, 6 Sup. Ct. Rep. 750, 1176; Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup.

Ct. Rep. 427.

47 L. ed. 169, 25 Sup. Ct. Rep. 18; Yee Gee v. San Francisco, 235 Fed. 757; German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 58 L. ed. 1011, L.R.A.1915C, 1189, 34 Sup. Ct. Rep. 612; Chenoweth v. State Medical Examiners, 57 Colo. 74, 51 L.R.A. (N.S.) 958, 141 Pac. 132, Ann. Cas. 1915D, 1188; Wilson v. New, 243 U. S. 347, 61 L. ed. 773, L.R.A.1917E, 938, 37 Sup. Ct. Rep. 298, Ann. Cas. 1918A, 1024.

Assuming, for the purpose of this branch of the argument only, that the state fund "insures" the compensation due to employees from employers, and that the law may give the state fund a monopoly of such insurance, and deny the right to issue such insurance to all others, still the state cannot abrogate existing insurance, valid when it was issued.

Bedford v. Eastern Bldg. & L. Asso. 181 U. S. 227, 45 L. ed. 834, 21 Sup. Ct. Rep. 597; American Bldg. & L. Asso. V. Rainbolt, 48 Neb. 434, 67 N. W. 493; McNamara v. Keene, 49 Misc. 452, 98 Asso. v. Meyers-Abel Co. 12 Ariz. 48, N. Y. Supp. 860; Industrial Bldg. & L.

95 Pac. 115.

And the state cannot take away the right of the employer to procure other insurance by making contracts of insurance in the other states, or by any other means over which the state has no control.

Stone v. Old Colony Street R. Co. 212 Mass. 459, 99 N. E. 218; New York L. Ins. Co. v. Dodge, 246 U. S. 357, 62 L.

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