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1920.

HARTFORD LIFE INS. CO. v. BLINCOE.

stitutional, and the decision of the supreme court of Missouri does not deprive the defendant of its property without due process of law.

Farmers' & M. Ins. Co. v. Dobney, 189 U. S. 301, 47 L. ed. 821, 23 Sup. Ct. Rep. 565; Supreme Ruling, F. M. C. v. Snyder, 227 U. S. 497, 57 L. ed. 611, 33 Sup. Ct. Rep. 292; Manhattan L. Ins. Co. v. Cohen, 234 U. S. 123, 58 L. ed. 1245, 34 Sup. Ct. Rep. 874; Fidelity Mut. Life Asso. v. Mettler, 185 U. S. 308, 46 L. ed. 922, 22 Sup. Ct. Rep. 662; Iowa L. Ins. Co. v. Lewis, 187 U. S. 335, 47 L. ed. 204, 23 Sup. Ct. Rep. 126; Williamson v. Liverpool & L. & G. Ins. Co. 72 C. C. A. 542, 141 Fed. 54, 5 Ann. Cas. 402; Barber v. Hartford L. Ins. Co. 269 Mo. 21, 187 S. W. 867; Keller v. Home L. Ins. Co. 198 Mo. 440, 95 S. W. 903.

Questions of fact are not reviewable by this court on a writ of error to a state court.

Western U. Teleg. Co. v. Call Pub. Co. 181 U. S. 92, 45 L. ed. 765, 21 Sup. Ct. Rep. 561; Keokuk & H. Bridge Co. v. Illinois, 175 U. S. 626, 44 L. ed. 299, 20 Sup. Ct. Rep. 205; Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96, 43 L. ed. 909, 19 Sup. Ct. Rep. 609; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581; Egan v. Hart, 165 U. S. 188, 41 L. ed. 680, 17 Sup. Ct. Rep. 300; Dower v. Richards, 151 U. S. 658, 38 L. ed. 305, 14 Sup. Ct. Rep. 452, 17 Mor. Min. Rep. 704.

Mr. Justice McKenna delivered the
opinion of the court:

This is the second writ of error in
The opinion upon the first
this case.
writ is reported in 245 U. S. 146, 62 L.
ed. 208, 38 Sup. Ct. Rep. 54. The suit
here is, as it was there, upon a certif-
icate of qualified life insurance, issued
to Frank Barber, and payable at his
death to his wife, the plaintiff, who has
since died, and her administratrix has
been substituted as defendant in error.
The defense here is, as it was there,
that Barber failed to pay the mortuary
assessment levied January 29, 1910,
known as quarterly call No. 126, and
that the failure voided the policy by

its terms.

In that case Mrs. Barber recovered
we reversed on the
judgment, which

ground that, in rendering it, the state
court disregarded a judgment of a Con-
necticut court, which had jurisdiction
of the subject-matter and the parties,
including Barber.

Upon the return of the case to the state court, a new [134] trial was had ment for Mrs. Barber. They were afthat resulted again in a verdict and judgfirmed by the supreme court of the state. 279 Mo. 318, 12 A.L.R. 758, 214 S. W. 207.

To that affirmance this writ of error is directed, and the question presented is, Did the supreme court proceed in consonance with our decision? The extent of our decision is, therefore, necessary to consider, and what it directed. The determination is in the issue that was presented and passed upon.

By reference to the report of the case (245 U. S. 146) it will be seen that the supreme court rested the judgment rement, and that the nonpayment of the viewed on the invalidity of the assessa forfeiture of the insurance: (1) Unlatter did not, upon two grounds, work der the condition of the funds of the company the assessment was for a largdeath losses; (2) the charter of the er amount than was necessary to pay company required all its affairs to be managed and controlled by a board of not less than seven directors, and that These rulings we held to be the assessment was not levied by the board. "in the teeth of the Connecticut adjudication which held that it was proper and reasonable for the company to hold and even collect in advance in order to was hence decided that the trial court, enable it to pay losses properly." It in rendering judgment against the Hartin affirming the judgment, did not give ford Company, and the supreme court, "full faith and credit to the Connecticut record." The reasons for the conclusion we need not repeat.

assessment.

With this ruling the supreme court was confronted upon its reconsideration of the case, and the freedom of decision that remained to it, and resolved And that it was at liberty that we had left untouched any consideration of the elements constituting the serted by the company to have been imto decide, and decided, that a tax, asposed by the laws of Missouri, had been sessment, and that, therefore, the assess[135] unlawfully included in the asment was void, and its nonpayment did not work a forfeiture of Barber's insurance.

pany

To the contention of the comthat such holding was precluded by our opinion, it was replied that the matter presented purely a question arising under the laws of the state, and that ment to adjudicate to the contrary." this court "did not intend by its judg

551

The decision of the court that the Hartford Company was not subject to the tax that it had included in its assessment was not new. It was a repetition of the ruling made in Northwestern Masonic Aid Asso. v. Waddill, 138 Mo. 628, 40 S. W. 648, in 1897, and should have been known to the Hartford Life Insurance Company at the time it made the assessment and mortuary call. The ruling has been again repeated in Young v. Hartford L. Ins. Co. 277 Mo. 694, 211 S. W. 1, and upon the authority of those cases the court decided that the tax was not applicable to companies doing business on the assessment plan, and that on that plan the Hartford Company was doing business.

The Hartford Company contests the latter ruling, and, as dependent upon it, the other ruling, that is, that the company was not subject to the tax, and asserts besides that the effect of the inclusion of the tax in the assessment was presented to this court on the former writ of error, and whether it was authorized by the Connecticut decree, and that the answers were in the affirmative. In other words, passed upon the power to make and the elements that made the assessment. Counsel say: "This court could not have held that this assessment was authorized by the Connecticut decree, and at the same time hold that it was void because it included the 15 cents' tax." To sustain this view of the case the opinion is quoted as follows: "It is obvious from the evidence that this assessment was levied in the usual way adopted by [136] the company and tacitly sanctioned by the Connecticut judgment."

be said of any question that was decided is that it became the law of the case, and, as such, binding on the supreme court of the state, and to what extent binding is explained in Messenger v. Anderson, 225 U. S. 436, 56 L. ed. 1152, 32 Sup. Ct. Rep. 739. Certainly omissions do not constitute a part of a decision and become the law of the case, nor does a contention of counsel not responded to. The element of taxes in the assessment was not considered by the supreme court, and in this court the Connecticut judgment and its effect were the prominent and determining factors. The question of the inclusion of the tax was not discussed or even referred to. The only question considered was the powers given to the directors of the company by the Connecticut charter, and the effect that was to be assigned to the Connecticut judgment as that of a court having jurisdiction to decide what powers the charter conferred or required. It is hardly necessary to say that the tax law of Missouri was no part of the [137] charter. It was a condition the company encountered and became subject to in Missouri.

It was urged, it is true, in the brief of counsel, that the assessment "was void because it included money for taxes erroneously claimed to be enacted [exacted] under the laws of Missouri." No notice, however, was taken of the contention and no influence given to it or to the effect it asserted. If it made any impression at all, it was obviously as a state question, dependent upon the state statutes, upon which we would naturally not anticipate the state courts, the case necessarily going back to them.

Nor may we judge of the action of the supreme court of the state upon the tax because of its size, nor yield to the contention of the company that it, the company, had not accepted the assessment plan of insurance, but was doing business on the premium plan, and, therefore, subject to the tax which it had included in the assessment. These are state questions, and are not within our power to review.

Counsel, however, admits that the question of the inclusion of the tax was not discussed, but insists that "the question was in the record, was necessarily involved, and was presented." And invokes the presumption that whatever was within the issue was decided. In other words, that the case was conclusive not only of all that was decided, but of all that might have been decided. From our statement of the issues it is manifest that the quotation from the opinion has other explanation than It is further contended by the Hartcounsel's, and we need not dwell upon ford Company that the supreme court the presumption invoked or the extent permitted the recovery of damages and of its application in a proper case. The attorneys' fees under the provisions of question of the effect of a judgment as a statute of the state, although there a bar or estoppel against the prosecution was no evidence in support thereof exof a second action upon the same claim cept the delay in payment of the claim or demand, or its effect upon a partic- for insurance, notwithstanding, it is ular issue or question in some other case, further said, the company "had preis not here involved. The most that canvailed on every issue that had thereto

fore been presented," and that by this action the company was deprived of its property without due process of law, in violation of the 14th Amendment of the Constitution of the United States.

In support of its contention the company cites § 7068 of the Revised Stat utes of Missouri, which, it is said, authorizes such recovery only "if it appear from the evidence that such company [insurance company] has vexatiously refused to pay" loss under a policy, and no evidence was offered on either trial to show the existence of the condition prescribed by the statute. The immediate [138] answer to the contention is that what the statute prescribed was for the courts of the state to determine, and their construction is not open to our review, though we might consider its application to the circumstances of the case to be rather hard. And it would, we think, be extreme to hold that the statute or its construction is a violation of the 14th Amendment.

Judgment affirmed.

Mr. Justice Holmes, Mr. Justice Van Devanter, and Mr. Justice McReynolds dissent.

Assistant Attorney General Stewart argued the cause, and, with Special Assistant to the Attorney General Pagan and Mr. W. C. Herron, filed a brief for plaintiff in error:

The acts of defendant constituted an endeavor to influence a juror.

Com. v. Kennedy, 170 Mass. 18, 48 N. E. 770; 1 Bishop, New Crim. Law, § 435; People v. Murray, 14 Cal. 159; United States v. Stephens, 12 Fed. 52; Com. v. Peaslee, 177 Mass. 267, 59 N. E. 55; Stephen's Dig. Crim. Law, chap. 5, art. 49; Laitwood's Case (1910) 4 Crim. App. Cas. 248; White's Case (1910) 4 Crim. App. Cas. 257; Robinson's Case (1915) 11 Crim. App. Cas. 124.

An offer to bribe a juror in a pending cause is an endeavor to influence him.

State v. Carpenter, 20 Vt. 9; Walsh v. People, 65 Ill. 58, 16 Am. Rep. 569; Com. v. Murray, 135 Mass. 530; Rex v. Vaughan, 4 Burr. 2494, 98 Eng. Reprint, 308; 3 Co. Inst. 147; Light's Case (1915) 11 Crim. App. Cas. 111.

Mr. Otto Christensen argued the cause and filed a brief for defendant in error:

The bare representation to a third person to act for this defendant in ascertaining the juror's attitude toward certain defendants, and not accepted, by the most strained construction could be

UNITED STATES OF AMERICA, Plff. in interpreted only, and this we seriously

Err.,

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question, to be preparation for an endeavor or attempt to influence the juror, but falls far short of an actual endeavor to do so.

1 Bouvier's Law Dict. (1897 ed.), p. 190; People v. Murray, 14 Cal. 159; United States v. Stephens, 12 Fed. 52; Hicks v. Com. 86 Va. 223, 19 Am. St. Rep. 891, 9 S. E. 1024; Groves v. State, 116 Ga. 516, 59 L.R.A. 598, 42 S. E. 755, 14 Am. Crim. Rep. 42; People v. Youngs, 122 Mich. 292, 47 L.R.A. 108, 81 N. W. 114; State v. Hurley, 79 Vt. 29, 6 L.R.A. (N.S.) 804, 118 Am. St. Rep. 934, 64 Atl. 78; Patrick v. People, 132 Ill. 529, 24 N. E. 619; Com. v. Kennedy, 170 Mass. 22, 48 N. E. 770.

Mr. Justice McKenna delivered the Decided Feb- opinion of the court:

N ERROR to the District Court of the United States for the Northern District of Illinois to review a judgment which sustained a demurrer to an indictment charging an endeavor to corrupt a juror. Reversed and remanded for further proceedings.

The facts are stated in the opinion.

Review of an indictment in two counts for violation of § 135 of the Criminal Code of the United States, which provides as follows:

"Whoever corruptly, or by threats or force, or by any threatening letter or communication, shall endeavor to influence, intimidate, or impede any witness, in any court of the United States or before any United States commissioner or

jurors sitting at the trial of said case unless they knew such petit jurors would favor their acquittal; by means of which request and statement said L. C. Russell conveyed to Lucy Russell, and endeavored to convey to said William D. [142] Russell, an offer to pay money to said William D. Russell in return for his favoring such acquittal;

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Defendant demurred to the indictment on the ground that it did not appear therefrom by any sufficient averment or recital of "jurisdictional facts that any cause involving any issuance of fact triable by a jury was, at the time in said indictment mentioned, pending in the district court of the United States, or any other court, whereby the above-named United States district court does or could acquire jurisdiction in the premises."

officer acting as such commissioner, or any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or officer acting as such commissioner, in the discharge of his duty, or who corruptly or by threats or force, or by any threatening letter or communication, shall influence, obstruct, or impede, or endeavor to influence, obstruct, or impede, the due administration of justice therein, shall be fined not more than one thousand dollars, or imprisoned not more than one year, or both." [35 Stat. at L. 1113, chap. 321, Comp. Stat. § 10,305, 7 Fed. Stat. Anno. 2d ed. p. 688.] [141] The government does not press the case on count two. It is only necessary, therefore, to consider count one. It charges defendant with unlawfully and corruptly endeavoring to influence The enumeration of the deficiencies one William D. Russell, who, he well of the indictment may be summarized knew, was a petit juror in the court, in as follows: It did not appear that Wilthe discharge of his, the juror's, duty, and liam D. Russell possessed the qualificawho he knew had been summoned as a tions to act as a juror; or had been duly petit juror on April 3, 1918, at which and regularly drawn and summoned; or time the trial of William D. Haywood had been examined and accepted as a and others was to begin. The manner juror at the array; it cannot be ascerof the execution of the violation of the tained at what time and place the alleged section, the indictment details as fol- conversation was had; or at what time lows: "Endeavoring to ascertain in ad- Lucy Russell received the impression of vance of the examination of said Wil- the meaning of the conversation; or that liam D. Russell in said court as to his she had access to her husband, or had qualifications to sit as a petit juror at opportunity, or could have communicatsaid trial whether said William D. Rus-ed the conversation to him; or that desell was favorably inclined towards said fendant knew she had such opportunity; William D. Haywood and his codefend- or that William D. Russell was a juror ants, and corruptly to induce said Wil-in any particular case. liam D. Russell to favor the acquittal of said William D. Haywood and his codefendants in case he should be selected as a petit juror at said trial, said L. C. Russell, on said April 1, 1918, called at the home of said William D. Russell at No. 604 West Thirty-first street, in said city of Chicago, and engaged Lucy Russell, wife of said William D. Russell, in a conversation, in the course of which said L. C. Russell told said Lucy Russell that he represented said William D. Haywood and his codefendants, and requested her to question her husband as to his attitude towards said William D. Haywood and his codefendants in the matter of the charges contained in said indictment, and report the result of such questioning to him, the said L. C. Russell, because, as said L. C. Russell then and there stated to said Lucy Russell, they (meaning said William D. Haywood and his codefendants) did not want to pay money to any of the petit

The demurrer was sustained and the indictment dismissed. This writ of error was then allowed.

Necessarily, the first impression of the case is that defendant had some purpose in his approach to Lucy Russell and in the proposition he made to her. What was it, and how far did he execute it? Counsel admits that defendant's purpose was to "find out what his [W. D. Russell's] attitude was towards the defendants to be tried." And that this (we are stating the effect of counsel's contention) was only in preparation of a sinister purpose; that the defendants in the case did not wish to undertake, or, to use the language of the indictment, did [143] not "want to pay money to any of the petit jurors sitting at the trial of said case unless they knew such petit jurors would favor their acquittal." And this, counsel says, "only amounted to a solicitation of a third person who did not accept or act in fur

1920.

LOWER VEIN COAL CO. v. INDUSTRIAL BOARD.

to be preparation [italics counsel's] for an endeavor' or 'attempt' to influence the juror, but falls far short of an actual

the laws clauses of the Federal Constitutherance of such solicitation," and "could | due process of law and equal protection of tion, enact a general workmen's compenbe interpreted only sation law applicable to all employees, and make it compulsory as to one hazardous employment (coal mining) and elective as to all others, except railway employees engaged in train service, who are excluded. [For other

endeavor to do so."

Counsel enters into quite a discussion, with citation of cases, of the distinction between preparation for an attempt and the attempt itself, and charges that there is

wide difference between them. We think, however, that neither the contention nor the cases are pertinent The to the section under review and upon which the indictment was based. word of the section is "endeavor," and by using it the section got rid of the technicalities which might be urged as besetting the word "attempt," and it describes any effort or essay to do or accomplish the evil purpose that the section was enacted to prevent.

cases,

see Constitutional

Law,
IV. a, 5, a; IV. b, 7, a, in Digest Sup. Ct.
1908.]
Constitutional law
of the laws
workmen's compensation act.

equal protection classification

state

state

2. The inclusion within the terms of employees of coal mining companies, whetha state workmen's compensation act of all business or not, does not render repugnant er engaged in the hazardous part of the to the due process of law and equal protection of the laws clauses of the Federal Constitution the classification made by that act, which makes it compulsory as to all coal mining companies, while as to all other Criminal-private business enterprises within the state, who are excluded, it is purely optional. Constitutional Law, see cases, except railway employees in train service, [For other IV. a, 5, a; IV. b, 7, a, in Digest Sup. Ct. 1908.1 discrimination erty rights Constitutional law-protection of propworkmen's compensation act. 3. The Indiana Workmen's Compensation Law, which is made compulsory upon coal mining companies with respect to all their employees, whether engaged in the hazardous part of the business or not, while as to all other private business enterprises engaged in train service, who are excluded, within the state, except railway employees provisions of the state Bill of Rights, that it is purely optional, does not violate the no man's property or particular services shall be taken without just compensation, en-nor, except in the case of the state, without compensation first assessed and tendered, and that there shall be no grant of privileges to any citizen or class of citizens that Constitutional Law, see cases, [For other IV. a, 5, a; IV. b, 7, a, in Digest Sup. Ct. shall not belong to all citizens. 1908.] Note.-As

ity does not get rid of its evil quality
by the precautions it takes against con-
sequences, personal or pecuniary. It is
a somewhat novel excuse to urge that
Russell's action was not criminal be-
cause he was cautious enough to con-
sider its cost and be sure of its success.
The section, however, is not directed at
success in corrupting a juror, but at the
"endeavor" to do so. Experimental ap-
proaches to the corruption of a juror
are the "endeavor" of the section. Guilt
is incurred by the trial,-success may
aggravate, it is not a condition of it.
The indictment charges that defend-
ant knew that William D. Russell was a

petit juror, in the discharge of his duty
as such juror, and, therefore, an
deavor to corruptly influence him was
within the section, though he was not
State v. Wood-
yet selected or sworn.
son, 43 [144] La. Ann. 905, 9 So. 903.
The court, hence, erred in sustaining the
demurrer and dismissing the indictment.
Judgment reversed and cause remand-
ed for further proceedings in conform-workmen's compensation and industrial
ity with this opinion.

to constitutionality of

insurance statutes, generally-see notes to Ives v. South Buffalo R. Co. 34 L.R.A. (N.S.) 162; State ex rel. Davis-Smith Co. v. Clauson, 37 L.R.A. (N.S.) 466; Jensen v. Southern P. Co. L.R.A.1916A,

LOWER VEIN COAL COMPANY, Appt., 409; and Hunter v. Colfax Consol. Coal

V.

INDUSTRIAL BOARD OF INDIANA et al.

(See S. C. Reporter's ed. 144–151.)

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equal protection state classification

workmen's compensation act.

Co. L.R.A.1917D, 51.

As to construction and effect of workmen's compensation statutes-see note to Linnane v. Etna Brewing Co. L.R.A. 1917D, 80.

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

1. A state may, consistently with the L.R.A. 789.

555

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