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1083 FIDELITY MUT. LIFE ASSN. v. METTLER. 185 U. S. 308-336

McGuire v. Chicago etc. R. Co., 131 Iowa, 383, 33 L. R. A. (N. S.) 706, 108 N. W. 917, upholding statute making railroads liable for injuries to servant caused by negligence of fellow-servant, regardless of contract relating to such liability; Mier v. Phillips Fuel Co., 130 Iowa, 577, 107 N. W. 624, upholding Code, § 2485, making mine operator taking coal from adjoining lands liable for double damage; Vosburg v. Atchison etc. Ry. Co., 89 Kan. 124, 125, 127, 130 Pac. 671, 672, upholding statute allowing attorney's fee in action by shipper under statute to recover penalty for failure to furnish cars; State v. Fritz, 80 Kan. 169, 101 Pac. 1013, upholding statute for abatement as nuisance of places conducted in violation of liquor law and giving attorney's fees; Alliance etc. Ins. Co. v. Corbett, 69 Kan. 571, 77 Pac. 111, under Gen. Stats. 1901, § 3410, allowing reasonable sum for attorney's fee in action against insurance company, amount of fee is determined by court; Monteleone v. Seaboard Fire etc. Ins. Co., 126 La. 815, 52 South. 1035, upholding statute imposing penalty on fire insurance companies for failure to furnish insured with blanks for proof of loss; New York Life Ins. Co. v. Hardison, 199 Mass. 199, 127 Am. St. Rep. 478, 85 N. E. 413, upholding statute prescribing terms of life insurance policies; State ex rel. Sparks v. State Bank etc. Co., 31 Nev. 470, 103 Pac. 410, upholding statute providing for receivers for insolvent banking corporations only; Pyramid Land etc. Co. v. Pierce, 30 Nev. 248, 95 Pac. 213, upholding provision for attorney's fees for party recovering damages against one unlawfully grazing stock on his land; Boston Ice Co. v. Boston & Maine R. R. Co., 77 N. H. 13, Ann. Cas. 1914A, 1090, 45 L. R. A. (N. S.) 835, 86 Atl. 357, holding statute giving railroad company insurable interest in property along right of way and entitling it to benefit of insurance taken out by owner, is not void as abridging company's freedom to contract; Smith v. Wilkins, 164 N. C. 141, 80 S. E. 170, upholding statute taxing peddlers and itinerant dealers; Martin v. Oregon etc. Nav. Co., 58 Or. 211, 113 Pac. 21, upholding statute imposing treble damages and attorney's fees on railroads for failure to furnish cars; Seegers v. Seaboard etc. Ry. Co., 73 S. C. 78, 52 S. E. 800, upholding 24 Stats. at Large, § 2, p. 81, imposing penalty on carrier for failure to adjust claim for damage to property in its possession; Hamilton Nat. Bank v. Amster, 134 Tenn. 547, 184 S. W. 7, upholding statute regulating fraternal beneficiary associations; Continental etc. Ins. Co. v. Whitaker, 112 Tenn. 171, 173, 105 Am. St. Rep. 916, 64 L. R. A. 451, 79 S. W. 123, 124, upholding Acts 1901, p. 248, imposing penalty on insurance company refusing in bad faith to pay loss or on policy-holder bringing suit in bad faith; Ex parte Bradshaw, 70 Tex. Cr. 175, 159 S. W. 260, upholding ordinance forbidding display for sale on street within fire. limits, of any goods not produced on property controlled by vendor; State v. Fraternal Knights, 35 Wash. 345, 77 Pac. 503, upholding Laws 1901, c. 174, § 12, p. 362, requiring subsequently formed insurance associations to adopt mortuary assessment rate as high as that indicated in Fraternal Congress Mortality Table.

Distinguished in American Surety Co. v. Shallenberger, 183 Fed. 638, State cannot prescribe rates to be charged by surety companies; Atkinson v. Woodmansee, 68 Kan. 74, 64 L. R. A. 325, 74 Pac. 641, Gen. Stats. 1901, § 2125, allowing plaintiff recovering judgment on mechanic's lien to recover attorney's fee is void; Central Glass Co. v. Niagara Fire Ins. Co., 131 La. 520, 59 South. 975, holding statutory provision for penalty for failure to pay fire loss did not apply to policy issued before statute enacted; dissenting opinion in McGuire v. Chicago etc. R. Co., 131 Iowa, 395, 33 L. R. A. (N. S.) 706, 108 N. W. 922, majority upholding statute abolishing fellow-servant rule as to railroads.

Constitutionality of statutes providing damages or penalty for refusal or failure of insurance company to pay loss. Notes, 5 Ann. Cas. 406; 14 Ann. Cas. 301, 302.

Validity of statutory provision for attorney's fee. Note, 17 L. R. A. (N. S.) 911, 912.

Inference of death may arise from disappearance under circumstances inconsistent with continuation of life.

Approved in Harvey v. Fidelity & Casualty Co., 200 Fed. 928, 119 C. C. A. 221, death by drowning established by circumstantial evidence; Northern Pac. Ry. Co. v. King, 181 Fed. 914, 104 C. C. A. 351, holding inference of death could not be drawn from accident and resulting amputation of leg; Groff v. Groff, 36 App. D. C. 564, circumstantial evidence of death held insufficient; Metropolitan Life Ins. Co. v. Lyons, 50 Ind. App. 540, 545, 98 N. E. 826, 828, holding death established by circumstantial evidence; New York Life Ins. Co. v. Rankin, 162 Fed. 107, 89 C. C. A. 103, arguendo.

While death may be presumed from absence only after seven years, this period during which presumption of life runs may be shortened by proof of circumstances of disappearance.

Approved in Folk v. United States, 233 Fed. 189, in absence of proof of death, persons whose names were on Creek roll of 1895 are presumed to be living seven years thereafter.

Facts sufficient to raise presumption of death from absence for less
than seven years. Note, Ann. Cas. 1916B, 72, 74.

Abridgment of time necessary to raise presumption of death. Note,
L. R. A. 1915B, 747.

Sufficiency of proofs of death under life insurance policy as ques-
tion of law or fact. Note, Ann. Cas. 1913B, 842.

Miscellaneous. Cited in Fidelity Mutual Life Ins. Co. v. Clark, 203 U. S. 72, 51 L. Ed. 95, 27 Sup. Ct. 19, referring historically to principal

case.

1085 NEW ORLEANS W. W. CO. v. LOUISIANA. 185 U. S. 336–354

185 U. S. 336-354, 46 L. Ed. 936, 22 Sup. Ct. 691, NEW ORLEANS WATERWORKS CO. v. LOUISIANA.

To warrant exercise of jurisdiction by Supreme Court over judgments of State court, there must be some fair ground for asserting existence of Federal question as otherwise writ of error will be dismissed, though claim of Federal question plainly is set up.

Approved in Berlin Iron Bridge Co. v. Brennan, 194 U. S. 630, 48 L. Ed. 1158, 24 Sup. Ct. 858, Brewster v. Cahill, 194 U. S. 629, 48 L. Ed. 1158, 24 Sup. Ct. S57, Hamburg-American S. S. Co. v. Lennan, 194 U. S. 628, 48 L. Ed. 1157, 24 Sup. Ct. 857, and Coventry v. Davis, 193 U. S. 669, 48 L. Ed. 840, 24 Sup. Ct. 855, all following rule; Smith v. Leavenworth, 235 U. S. 690, 59 L. Ed. 427, 35 Sup. Ct. 205, Anderson v. Inhabitants of the City of Bordentown, 223 U. S. 714, 56 L. Ed. 626, 32 Sup. Ct. 521, Baird v. Monroe, 207 U. S. 580, 52 L. Ed. 349, 28 Sup. Ct. 257, and Bradley v. Spokane etc. R. R. Co., 241 U. S. 639, 60 L. Ed. 1215, 36 Sup. Ct. 285, all dismissing for want of jurisdiction on authority of principal case; Consolidated Turnpike Co. v. Norfolk etc. Ry. Co., 228 U. S. 600, 57 L. Ed. 983, 33 Sup. Ct. 605, Deming v. Carlisle Packing Co., 226 U. S. 107, 57 L. Ed. 144, 33 Sup. Ct. 80, Missouri etc. Ry. Co. v. Olathe, 222 U. S. 190, 56 L. Ed. 159, 32 Sup. Ct. 47, Fisher v. Mayor etc. of New Orleans, 218 U. S. 440, 54 L. Ed. 1100, 31 Sup. Ct. 57, Delmar Jockey Club v. Missouri, 210 U. S. 335, 52 L. Ed. 1084, 28 Sup. Ct. 732, Sprague v. Betz, 207 U. S. 579, 52 L. Ed. 349, 28 Sup. Ct. 256, American R. R. Co. v. Castro, 204 U. S. 455, 51 L. Ed. 565, 27 Sup. Ct. 466, and Parker v. McLain, 237 U. S. 472, 59 L. Ed. 1053, 35 Sup. Ct. 632, all dismissing on ground that Federal question raised was frivolous; Harris v. Rosenberger, 145 Fed. 452, 13 L. R. A. (N. S.) 762, 76 C. C. A. 225, suit involving construction of Rev. Stats., §§ 3929, 4041, providing for issuance of fraud orders, is appealable to Circuit Court of Appeals.

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Distinguished in In re Luken, 216 Fed. 891, 133 C. C. A. 94, holding claimant's right to hold goods of bankrupt seized under distress warrant prior to bankruptcy depended on time lien was secured and was not so void of color as to justify summary determination by bankruptcy court; State v. Cowan, 146 Mo. App. 658, 124 S. W. 587, rule of Supreme Court of United States that where constitutional question is raised, which has been decided, court does not retain jurisdiction, does not apply to State Supreme Court; Mathew v. Wabash Ry. Co., 115 Mo. App. 480, 81 S. W. 648, in action for injury to passenger, State court's judgment is reviewable by Federal Supreme Court where defendant claims passenger assumes increased risk due to use of patent couplers made necessary by act of Congress.

What adjudications of State courts reviewable in Federal Supreme
Court. Note, 62 L. R. A. 520, 527, 528, 530, 531, 542.

Forfeiture of corporate charter for violation of its terms by State decree on quo warranto involves no Federal question,

Approved in Weltmer v. Bishop, 191 U. S. 561, 48 L. Ed. 302, 24 Sup. Ct. 848; Gates v. Parmly, 191 U. S. 557, 48 L. Ed. 301, 24 Sup. Ct. 843, and Northern Cent. Ry. Co. v. Hering, 186 U. S. 481, 46 L. Ed. 1259, 22 Sup. Ct. 944, all reaffirming rule; Sawyer v. Piper, 189 U. S. 157, 47 L. Ed. 759, 23 Sup. Ct. 634, holding claim that right under Federal Constitution would be denied by foreclosure decree unless leave to file supplementary answer granted confers no Federal jurisdiction; Equitable Life Assur. Society v. Brown, 187 U. S. 311, 314, 47 L. Ed. 192, 193, 23 Sup. Ct. 124, holding writ of error to Hawaiian Supreme Court will be dismissed where only Federal question involved has been decided by Supreme Court in accordance with Hawaiian court; Iowa v. Rood, 187 U. S. 92, 47 L. Ed. 90, 23 Sup. Ct. 51, holding State decision adverse to State's claim to deeds of lakes meandered by national government, based upon general law, presents no Federal question; Amick v. Ellis, 53 W. Va. 422, 44 S. E. 257, holding unacknowledged contract of sale of wife's land by her and her husband cannot be specifically enforced.

Distinguished in Swafford v. Templeton, 185 U. S. 493, 46 L. Ed. 1008, 22 Sup. Ct. 785, holding Circuit Court has jurisdiction of suit against State election officers for depriving plaintiff of right to vote for representative in Congress.

State has power to forfeit charter of corporation for misuse or nonuse of its privileges.

Approved in New York Electric Lines Co. v. Empire City Subway Co., 235 U. S. 195, Ann. Cas. 1915A, 906, 59 L. Ed. 193, 35 Sup. Ct. 72, holding city could revoke long unused franchise to lay wires in streets; Calder v. Michigan, 218 U. S. 599, 600, 54 L. Ed. 1168, 31 Sup. Ct. 122, holding corporation could not affect power of repeal reserved in charter by making of contracts; Cosmopolitan Club v. Virginia, 208 U. S. 384, 52 L. Ed. 539, 28 Sup. Ct. 394, upholding judgment of forfeiture of charter of club for violation of liquor laws; Consolidated Rendering Co. v. Vermont, 207 U. S. 552, 12 Ann. Cas. 658, 52 L. Ed. 335, 28 Sup. Ct. 178, State may require corporations doing business therein to produce, before tribunals, books and papers kept in State; State v. Central Lumber Co., 24 S. D. 167, 42 L. R. A. (N. S.) 804, 123 N. W. 515, upholding statute imposing criminal and civil penalties on corporations for unfair discrimination; dissenting opinion in City of Owensboro v. Cumberland Tel. & Tel. Co., 230 U. S. 80, 57 L. Ed. 1399, 33 Sup. Ct. 988, majority holding void ordinance requiring telephone company to clear streets of poles and wires placed there under prior ordinance.

Impairment of contract must come from enforcement of subsequent

statute.

Approved in Oshkosh Waterworks v. Oshkosh, 187 U. S. 446, 47 L. Ed. 253, 23 Sup. Ct. 237, holding obligation of contract of August

1087

NOTES ON U. S. REPORTS.

185 U. S. 354-372

31, 1891, could not be impaired by revised charter which went into operation on March 23, 1891.

Distinguished in State v. Smith, 177 Mo. 96, 75 S. W. 632, holding right to appeal to State Supreme Court where constitutionality of ordinance was expressly raised was not defeated by prior decision by appellate court against statute.

In quo warranto, bondholders are not parties.

Distinguished in Farmers' Loan etc. Co. v. Meridian Water Works Co., 139 Fed. 666, mortgagee of water company with franchise as security is not deprived of security by decree annulling franchise in suit begun after mortgage where mortgagee not party.

Forgetfulness of facts as ground of admission of former testimony of witness. Note, Ann. Cas. 1914C, 576.

185 U. S. 354-363, 46 L. Ed. 945, 22 Sup. Ct. 676, WOODWORTH v. NORTHWESTERN MUTUAL LIFE INS. CO.

Circuit Court has power to enter summary judgment against sureties on supersedeas bond after affirmance of decree appealed from.

Approved in Perry v. Tacoma Mill Co., 152 Fed. 120, 81 C. C. A. 333, following rule; Egan v. Chicago etc. Ry. Co., 163 Fed. 351, holding Circuit Court had power, in conformity with State statute, to enter summary judgment against surety on supersedeas bond.

Obligee of bond superseding order confirming sale and directing execution of deed and delivery of possession is entitled, after affirmance on appeal, to recover as damages rents and profits during time purchaser is kept out of possession.

Approved in Brown v. Northwestern Mut. Life Ins. Co., 119 Fed. 149, 55 C. C. A. 654, holding obligee in bond superseding order confirming sale of realty and directing immediate execution of deed may recover rents and profits during appeal; United States Fidelity etc. Co. v. Rieck, 76 Neb. 304, 107 N. W. 391, surety on waste bond superseding order of confirmation of sale on foreclosure is not liable to mortgagee or purchaser at sale for taxes assessed pending final confirmation; Cropper v. Brown, 76 N. J. Eq. 419, 420, 139 Am. St. Rep. 770, 74 Atl. 993, holding purchaser at judicial sale acquired rights as of time of acceptance of bid and loss by destruction of building thereafter fell on him.

185 U. S. 364–372, 46 L. Ed. 949, 22 Sup. Ct. 673, TRAVELERS' INS. CO. V. CONNECTICUT.

No unconstitutional discrimination against nonresident stockholders in domestic corporations is made by Connecticut act of 1897, providing for assessment of such stock at its market value, with no deduction on account of realty held by corporation, though such deduction in assessing resident stockholders, is made by another statute.

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