North Pennsylvania R. Co. (Shaw v. Merchants' Nat. Bank) 101 U. S. 557, 25 L. ed. 892. When, in the interests of commerce, the Federal Uniform Bills of Lading Act extended to bills of lading certain characteristics of negotiable paper in order to protect a bona fide purchaser of such bills, it was deemed proper to afford also certain protection to the carrier. This was done, in part, by providing in § 9 that the carrier would be justified in making delivery to any person in possession of an order bill of lading, duly indorsed, with certain exceptions to be noted below.

Southern at Bindner's [543] request, terminated its relation as carrier; just as it would have done if, at his request, it had shunted the car onto a private industrial track, or had given the control of it to a truckman on the team tracks. Having brought the goods to the destination named in the bill of lading, the carrier's only duty under its contract was to make a delivery at that place; and it could make that delivery by turning the goods over to another carrier for further carriage. Compare Bracht v. San Antonio & A. Pass. R. Co. decided by this court January 3, 1921 [254 U. S. 489, ante, 366, 41 Sup. Ct. Rep. 150]; Seaboard Air-Line The shippers contend that Bindner was R. Co. v. Dixon, 140 Ga. 804, 79 S. E. not "a person in possession" of the bill, 1118; Melbourne v. Louisville & N. R. Co. because he held it as agent for Marshall 88 Ala. 443, 6 So. 762. The fact that, & Kelsey, and not on his own account. in forwarding the car, the Big Four used So far as the carrier is concerned, that the original waybill, striking out the fact is entirely immaterial. Under § 9 word "Louisville" under the "destina- it is physical possession of the bill which tion," and substituting "Dumesnil, Ky. is made a justification for delivery of the So. R. R.," is of no significance. The goods by the carrier. Under that section shipment from Louisville to Dumesnil it is immaterial in what capacity the perwas a wholly new transaction. In turning over the car for this new shipment, the railway made a disposal of it in assumed termination and discharge of its obligations, which was, in legal contemplation, a delivery. Whether it was a justifiable delivery and did indeed discharge its obligations we must next consider.

Second. Was the delivery at Bindner's order one which the carrier was justified in making under the provisions of 9 of the Federal Uniform Bills of Lading Act? Prior to the enactment of the Federal Uniform Bills of Lading Act, or of other applicable legislation, a carrier was not ordinarily relieved from liability to the consignor or owner for delivery of goods to a person not legally entitled to receive them, although such person was in possession of an order bill of lading, duly indorsed in blank, and surrendered it to the carrier at the time of delivery. Delivery was held not to be a justification, because the bill of lading, despite insertion therein of words of negotiability, did not become a negotiable instrument. Independently of statute (and, indeed, also under earlier state statutes) the [544] insertion of words of negotiability had merely the effect of enabling title to the goods to be transferred by transfer of the document. See Berkley v. Watling, 7 Ad. & El. 29, 112 Eng. Reprint, 382, 2 Nev. & P. 178, 6 L. J. K. B. N. S. 195. But one who did not have a valid title to the goods could not, by transfer of the bill of lading, give a good title to a bona fide holder. Shaw v.

son holds possession of the bill, and also whether he holds it lawfully or unlawfully, so long as the carrier has no notice of any infirmity of title. But the shippers' contention would not be advanced if it were held that the legal, not the physical, possession is determinative. For Bindner's request of the trackage clerk to have the car forwarded to Dumesnil was later ratified by Marshall & Kelsey. If his physical possession of the bill were deemed legally their possession of it, the physical delivery to him of the car would likewise be deemed legally a delivery of it to them, and, hence, satisfy in this respect the requirements of $9.

The only exception to the rule justifying the carrier in making delivery to one in possession of an order bill of [545] lading indorsed in blank, which is urged as applicable here, is where the carrier has information that the person in possession of the bill is not lawfully entitled to the goods. The shippers contend that the Big Four, when it made delivery of the car, had such information regarding Bindner. For this contention there is not the slightest basis in the evidence. The Big Four had no such information. Nor was there in the circumstances anything which should even have led it to doubt that Bindner was lawfully entitled to request that the car be shipped to Dumesnil.

Concluding, therefore, that there was a delivery, that it was made to a person in possession of the bill of lading, properly indorsed, and that it was made in

good faith, the important question re- Although there is a conflict of language mains: Does such a delivery exonerate in the cases in which a shipper sues a the carrier upon suit by the shipper carrier for delivery of goods without rewhen it failed to require surrender of the quiring a surrender of the bill of lading, bill of lading as provided in that instru- there appears to be no conflict of prinment? In our opinion there is no exon- ciple or in decision. Where the failure eration where loss to shipper or subse- to require the presentation and surrender quent purchaser of the bill results from of the bill is the cause of the shipper such a failure; but where the loss suffered losing his goods, a delivery without reis not the result of the failure to take up quiring it constitutes a conversion. Babthe bill, mere failure to take it up does bitt v. Grand Trunk Western R. Co. 285 not defeat the exoneration. Ill. 267, 120 N. E. 803; Turnbull v. Michigan C. R. Co. 183 Mich. 213, 150 N. W. 132; Judson v. Minneapolis & St. L. R. Co. 131 Minn. 5, 154 N. W. 506; see First Nat. Bank v. Oregon-Washington R. & Nav. Co. 25 Idaho, 58, 136 Pac. 798; compare Georgia, F. & A. R. Co. v. Blish Mill. Co. 241 U. S. 190, 60 L. ed. 948, 36 Sup. Ct. Rep. 541. But [547] where delivery is made to a person who has the bill, or who has authority from the holder of it, and the cause

The plaintiffs seek to establish the carrier's liability for its failure to take up the bill on two theories,-first, that they are bona fide purchasers of the bill left outstanding; and second, that, as shippers and owners, their goods were converted by a delivery in violation of the terms of the bill of lading. But the shippers cannot claim the protection of § 11 of the act as bona fide purchasers of the bill, as those words are understood in the law, even if, in taking back the draft and] of the shipper's loss is not the failure the bill of lading from the bank, they can be deemed purchasers within the meaning of the act. They took back the bill of lading after the events here in question, with full knowledge of them, and because of them. The purchaser whom the act protects is he who is entitled to assume that the carrier has [546] not delivered the goods, and will not thereafter deliver them except to a person who holds the bill of lading. The purpose of §§ 10, 11, and 12 is to give bills of lading attributes of commercial paper. Here the plaintiffs were not buying commercial paper, but a lawsuit.

There is nothing in the act which imposes upon the carrier a specific duty to the shipper to take up the bill of lading. Under 8 the carrier is not obliged to make delivery except upon production and surrender of the bill of lading; but it is not prohibited from doing so. If, instead of insisting upon the production and surrender of the bill, it chooses to deliver in reliance upon the assurance that the deliveree has it, so far as the duty to the shipper is concerned, the only risk it runs is that the person who says that he has the bill may not have it. If such proves to be the case, the carrier is liable for conversion, and must, of course, indemnify the shipper for any loss which results. Such liability arises not from the statute, but from the obligation which the carrier assumes under the bill of lading.

Does a delivery without compliance with the surrender clause of the bill of lading render the carrier liable for conversion under the facts shown here?

to require surrender of the bill, but the improper acquisition of it by the delivéree, or his improper subsequent conduct, the mere technical failure to require presentation and surrender of the bill will not make the delivery a conversion. Chicago Packing & Provision Co. v. Savannah, F. & W. R. Co. 103 Ga. 140, 40 L.R.A. 367, 29 S. E. 698; Famous Mfg. Co. v. Chicago & N. W. R. Co. 166 Iowa, 361, 147 N. W. 754; Nelson Grain Co. v. Ann Arbor R. Co. 174 Mich. 80, 140 N. W. 486; St. Louis Southwestern R. Co. v. Gilbreath, Tex. Civ. App. -, 144 S. W. 1051. In the Chicago Packing & Provision Co. Case, supra, the court said: "The loss in the present case was not occasioned by the failure of the railway to require the production and surrender of the bills of lading, but by the faithlessness of Hobbs & Tucker to their principal." Similarly, in the case before us, the failure of the carrier to require production and surrender of the bill of lading did not cause the loss. The same loss would have resulted if the bill had been presented and surrendered. The real cause of the loss was the wrongful surrender of the bill of lading by the Indianapolis bank to Marshall & Kelsey, by means of which the car was taken to Camp Taylor and the shipper deprived of the Louisville market. Nor did the failure to take up the bill enable the buyer to throw back the loss upon the shippers. The shippers deliberately assumed the loss by their voluntary act in taking back the draft and the bill of lading which they had sold to the Grand Rapids bank. Doubtless

J. W. French & Company's relations with Marshall & Kelsey and with the

[No. 337.]

Grand Rapids bank, and the relations of Argued December 8, 1920.

the latter with the Indianapolis bank, made this course advisable. But it is

uary 17, 1921.

Decided Jan

clear that they were under no duty to do NWRIT of Certiorari to the United

so, since the tortious act of the bank's agent for collection had occasioned the damage. Having assumed [548] the loss of their own volition, they should not be permitted to pass it on to the carrier merely because of its technical failure to take up the bill of lading. The delivery was made to one in possession of the bill of lading, who could, and doubtless would, have surrendered it, had he not been prevented by distance from doing so. To hold a carrier liable under such circumstances would seriously interfere with the convenience and the practice of business.


Mr. Justice Holmes did not take part in the consideration and decision of this





(See S. C. Reporter's ed. 548-551.)

Error to district court

below tion

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jurisdiction exclusive Federal jurisdic

crime on Indian reservation. The contention that a Federal dis

the Ninth Circuit to review a judgment
States Circuit Court of Appeals for
which dismissed, for want of jurisdic-
tion, a writ of error to the District
Court for the District of Idaho, Northern
Division, to review a conviction for the
murder of one Indian by another within
the limits of an Indian reservation. Re-
versed and remanded for further pro-
C. C. A. -,

See same case below,
264 Fed. 295.

The facts are stated in the opinion. Mr. William B. McFarland argued the cause, and, with Mr. Robert Early McFarland, filed a brief for petitioner.

Mr. William C. Herron argued the cause, and, with Solicitor General Frierson and Assistant Attorney General Stewart, filed a brief for respondent.

Mr. Justice Brandeis delivered the opinion of the court:

Louie, an Indian, was indicted under § 273 of the Penal Code in the district court of the United States for the district of Idaho, northern division, for the murder of another Indian within the limits of the Coeur d'Alene Reservation. A motion to dismiss for want of jurisdiction was overruled, and the defendant was tried and convicted. By motion in trict court was without jurisdiction of a arrest of judgment, he objected in terms criminal prosecution for the murder of one to the jurisdiction of the court over the Indian by another within the limits of an Indian reservation because, before the time person of defendant and over the crime of the alleged crime, the accused had been charged, on the ground that before the declared competent, and the land on which time of the alleged crime he had been dethe crime was alleged to have been com-clared competent, and the land on which mitted had been allotted and deeded to him the crime was alleged to have been comin fee simple, raises a question not of the mitted had been allotted and deeded to jurisdiction of the court, but of the juris-him in fee simple. diction of the United States, and hence States v. Celestine, 215 U. S: 278, 54 L. Compare United ed. 195, 30 Sup. Ct. Rep. 93. This motion also was overruled; the defendant was sentenced; and the case was taken on writ of error to the United States circuit court of appeals for the ninth circuit. That court, one judge dissenting, dismissed the writ of error for want of jurisdiction, on the ground that, since the sole question presented was whether the district court had jurisdiction, its deeision could be reviewed only by direct writ of error from this court to the district court. See United States v. Jahn, 155 U. S. 109, 114, 115, 39 L. ed. 87, 90. 15 Sup. Ct. Rep. 39; compare Raton

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Water Works Co. v. Raton, 249 U. S. 552, 63 L. ed. 768, 39 Sup. Ct. Rep. 384. The dissenting judge was of opinion that the circuit court of appeals had jurisdiction of the writ of error, because an additional error relating to the merits had been assigned there, although not raised below, C. C. A., 264 Fed. 295. [550] A writ of certiorari was granted by this court. 253 U. S. 482, 64 L. ed. 1024, 40 Sup. Ct. Rep. 587.

We have no occasion to consider the question on which the circuit court of appeals divided. The motions made by defendant in the district court raised a question not of the jurisdiction of that court, but of the jurisdiction of the United States. The contention was, in essence, that, by reason of the facts set forth in the motions, the defendant was, in respect to the acts complained of, subject to the laws of the state of Idaho, and not to the laws of the United States. In other words, that he did not violate the laws of the United States. Compare United States v. Kiya, 126 Fed. 879, 880. Section 328 of the Penal Code provides that an Indian committing murder on another Indian "within the boundaries of any state and within the limits of any Indian reservation shall be subject to the same penalties as are all other persons committing" the same crime "within the exclusive jurisdiction of the United States." United States v. Kagama, 118 U. S. 375, 30 L. ed. 228, 6 Sup. Ct. Rep. 1109; Donnelly v. United States, 228 Ü. S. 243, 269, 270, 57 L. ed. 820, 831, 832, 33 Sup. Ct. Rep. 449, Ann. Cas. 1913E, 710. The defendant, in effect, denied that the killing was, in the statutory sense, within the Reservation.

If this

the district court did not raise a question properly of the jurisdiction of the court, but went to the merits, there was no basis for a direct writ of error from this court. Provonost v. United States, 232 U. S. 487, 58 L. ed. 696, 34 Sup. Ct. Rep. 391; Lamar v. United States, 240 U. S. 60, 65, 60 L. ed. 526, 528, 36 Sup. Ct. Rep. 255. He properly sought review in the circuit court of appeals. In United States v. Celestine, 215 U. S. 278, 54 L. ed. 195, 30 Sup. Ct. Rep. 93, and United States v. Pelican, 232 U. S. 442, 58 L. ed. 676, 34 Sup. Ct. Rep. 396, where the defense was similar to that presented here, and in United States v. Sutton and United States v. Soldana, supra, the cases came to this court by direct writ of error to the district court under the Criminal Appeals Act of March 2, 1907, chap. 2564, 34 Stat. at L. 1246, Comp. Stat. § 1704, 6 Fed. Stat. Anno. 2d ed. p. 149. Hallowell v. United States, 221 U. S. 317, 55 L. ed. 750, 31 Sup. Ct. Rep. 587, where a similar question was involved, came here on certificate. In Clairmont v. United States, 225 U. S. 551, 554, 56 L. ed. 1201, 1202, 32 Sup. Ct. Rep. 787, it was inadvertently assumed without discussion that the question involved was one of the jurisdiction of the district court.

The judgment of the Circuit Court of Appeals is reversed, and the case remanded to that court for further proceedings in conformity with this opinion. Reversed.

The CHIEF JUSTICE took no part in the decision of this case.

was true, an essential element of the [552] PANAMA RAILROAD COMPANY, crime against the United States was lacking; as much so as if it had been estab

Plff. in Err.,


lished in United States v. Sutton, 215 U. NOEL PIGOTT, a Minor, by His Guardian


ad Litem, George Morrell.

(See S. C. Reporter's ed. 552–554.)

question for jury foreign

1. A railway company sued for damRepublic of Panama does not get less than for personal injuries received in the it is entitled to when the court, in view of

S. 291, 54 L. ed. 200, 30 Sup. Ct. Rep. 116, or in United States v. Soldana, 246 U. S. 530, 62 L. ed. 870, 38 Sup. Ct. Rep. 357, that the region into which liquor was introduced not Indian Trial was country. law. That the district court for Idaho had jurisdiction to determine whether the locus in quo was a part of the Reservation was not questioned. By § 78 of the Judicial Code the whole state of Idaho is comprised within the district Note. On the province of court and of Idaho; by paragraph 2d of § 24, dis-jury in determining the question of neglitrict courts have original jurisdiction of all crimes and offenses cognizable under the authority of the United States; and the defendant was arrested within the district of Idaho.

[551] Since defendant's motions in

gence-see notes to Roux v. Blodgett & D. Lumber Co. 13 L.R.A. 728: Emry v. Raleigh & G. R. Co. 15 L.R.A. 332; Fitch v. Creighton, 16 L. ed. U. S. 596; and Northern P. R. Co. v. Egeland, 41 L. ed. U. S. 82.

contradictory testimony from lawyers on
the two sides, leaves to the jury the ques-
tions whether, under the law of Panama
the exercise by the railway company of due
care in the selection of its employees re
lieves it from liability in damages for in-
juries resulting from the negligence of such
employees, and whether, under such law,
damages for physical pain are recoverable.
[For other cases, see Trial, VI. c, in Digest
Sup. Ct. 1908.]
2. It is for the jury to decide whether
proper care required a railway company to
have a flagman or gate at a much frequented
street crossing, the view of which was par-
tially obstructed by a hedge, and to have
a lookout when an engine is backing a car
over the crossing, and to give warning by
bell or whistle.


question for jury

[For other cases, see Trial, VI. c, 21, in Digest

Sup. Ct. 1908.]

[blocks in formation]

casioned by negligence of another, absence of this degree of negligence on his part must be made to appear to authorize a recovery.

Wendell v. New York C. & H. R. R. Co. 91 N. Y. 424.

The assumption that the boy was sui juris implies that he had sufficient mental and physical capacity to be chargeable with the exercise of some degree of care and prudence, and to be responsible for the consequences of some degree of negligence; but doubtless, owing to his tender years, a lesser degree of care was required of him than one of mature age.

Wendell v. New York C. & H. R. R. Co. 91 N. Y. 426; Miles v. Atlantic, M. & O. R. Co. 4 Hughes, 172, Fed. Cas. No. 9,544.

When it appears that, if proper precautions were taken, they could not have failed to prove effectual, the court has no right to assume, especially in face of all the oral testimony, that such precautions were taken.

Northern P. R. Co. v. Freeman, 174 U. S. 379, 383, 43 L. ed. 1014, 1016, 19 Sup. Ct. Rep. 763.

Noel Pigott should not be permitted to make close calculations to determine

Submitted January 13, 1921. Decided Jan- whether he could safely pass in front of

uary 24, 1921.

IN ERROR to the United States Circuit Court of Appeals for the Fifth Circuit to review a judgment which affirmed a judgment of the District Court of the Canal Zone, in favor of plaintiff in a personal-injury action. Affirmed.

See same case below, 168 C. C. A. 183, 256 Fed. 837.

The facts are stated in the opinion.
Mr. Frank Feuille submitted the cause

for plaintiff in error. Mr. Walter F.

Van Dame was on the brief:

In many cases recovery has been denied notwithstanding the injured person, in view of his age and lack of discretion, was not chargeable with contributory negligence, because the injury resulted from an unavoidable accident, and actionable negligence on the part of the

defendant was not shown.

Schoonover v. Baltimore & O. R. Co. L.R.A.1917F, 10, 11, note.

Although from an infant, if sui juris, a less degree of care is required than from a person of mature age, yet he is chargeable with some degree of care and prudence in approaching a known danger, and is responsible for the consequences of some degree of negligence; and in an action for injuries to him, oc

the approaching car, and, when the experiment failed, charge the consequences of his mistake upon the plaintiff in error. Belton v. Baxter, 54 N. Y. 246, 13 Am. Rep. 578.

When the plaintiff complains of wrongs to himself, the defendant has a right to insist that he should not have been the heedless instrument of his own injury.

Hatfield v. Roper, 21 Wend. 620, 34 Am. Dec. 273, 12 Am. Neg. Cas. 293.

Whenever it affirmatively appears that the injury was occasioned by the fault of the party injured, or where there is an entire absence of evidence showing that he is free from fault, he cannot re


Wendell v. New York C. & H. R. R. Co. 91 N. Y. 426.

A statute of New Jersey which provides that any person injured by an engine or car while walking, standing, or playing on any railroad shall be deemed to have contributed to the injuries sustained, and shall not recover from the company, applies to a boy less than seven years old.

Erie R. Co. v. Hilt, 247 U. S. 97, 62 L. ed. 1003, 38 Sup. Ct. Rep. 435, 18 N. C. C. A. 556.

Under the common law the plaintiff in

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