1131 FIDELITY & DEPOSIT CO. v. COURTNEY. 186 U. S. 342–364

N. W. 975, holding charge for cars originating on stub lines controlled by road, in addition to published tariff, is invalid.

Regulation by State or Railroad Commission of switching charge.
Note, Ann. Cas. 1914B, 368.

Miscellaneous. Cited in Stickney v. Interstate Commerce Commission, 164 Fed. 639, and Interstate Commerce Commission v. Stickney, 215, U. S. 104, 105, 54 L. Ed. 113, 114, 30 Sup. Ct. 66, both referring historically to principal case.

186 U. S. 342-364, 46 L. Ed. 1193, 22 Sup. Ct. 833, FIDELITY & DEPOSIT CO. v. COURTNEY.

Where it appears from record that error committed was not prejudicial, judgment cannot be disturbed.

Approved in Kanawha etc. Ry. Co. v. Kerse, 239 U. S. 582, 60 L. Ed., 451, 36 Sup. Ct. 176, holding error cured where jury negatived, by special finding, hypothesis on which requested instruction was based; Clark v. Erie R. Co., 230 Fed. 484, holding, under facts, submission of question of contributory negligence, if error, did not harm defendant.

Requirement in bond that notice of default be given "immediately" is satisfied by giving notice in reasonable time.

Approved in Empire State Surety Co. v. Northwest Lumber Co., 203 Fed. 420, 121 C. C. A. 527, Aetna Indemnity Co. v. J. R. Crowe Coal & Min. Co., 154 Fed. 549, 83 C. C. A. 431, and John B. Stevens & Co. v. Frankfort Marine etc. Ins. Co., 207 Fed. 761, 47 L. R. A. (N. S.) 1214, 125 C. C. A. 295, all applying rule to notice required by employer's liability policy; National Surety Co. v. Western Pac. Ry. Co., 200 Fed. 681, 119 C. C. A. 91, applying rule to indemnity policy; Fidelity & Casualty Co. v. Bank of Timmonsville, 139. Fed. 104, 71 C. C. A. 299, whether notice given on September 2, 1901, of default discovered on August 26, 1901, was "immediate" notice under fidelity bond properly left to jury; Fidelity & Deposit Co. of Maryland v. Robertson, 136 Ala. 412, 34 South. 944, holding notice to be given "immediately" of acts involving liability on surety's bond means within reasonable time; Bacigalupi v. Phoenix Bldg. etc. Co., 14 Cal. App. 641, 642, 112 Pac. 895, Thomason v. Keeney, 4 Ga. App. 721, 62 S. E. 470, Bross v. McNicholas, 66 Or. 47, Ann. Cas. 1915B, 1272, 133 Pac. 784, and George A. Hormel & Co. v. American Bonding Co., 112 Minn. 296, 33 L. R. A. (N. S.) 513, 128 N. W. 15, all applying rule to contractor's bond; Columbian Nat. Life Ins. Co. v. Miller, 140 Ga. 352, Ann. Cas. 1914D, 408, 78 S. E. 1082, applying rule to life policy.

Distinguished in McLendon v. Bromley, 3 Tenn. Civ. 501, holding surety on contractor's bond released by payment of moneys by owner after notice of contractor's failure to pay claims for labor and materials.

Mere knowledge of one or more directors of default of president of bank is not imputable to bank.

[blocks in formation]
[ocr errors]

Approved in McDermott v. Hayes, 197 Fed. 135, 116 C. C. A. 553, holding knowledge by officer of oral trust in favor of third person in property claimed by receiver of company not imputable to receiver; Aetna Indemnity Co. v. Farmers' Nat. Bank, 169 Fed. 741, 95 C. C. A. 169, holding indemnity bond of bank cashier not avoided, under facts, by knowledge of directors of conduct of cashier before issuing certificate required for issuance of bond; American Bonding Co. v. Spokane Bldg. etc. Co., 130 Fed. 740, 65 C. C. A. 121, knowledge of president of acts of defaulting secretary, not imputed to corporation without proof that officer's knowledge was communicated to it; Issaquah Coal Co. v. United States etc. Guaranty Co., 126 Fed. 93, 94, 61 C. C. A. 145, holding admissible in action against surety company on bond of assistant treasurer certificate of plaintiff's auditor where general manager knew of its execution; Aetna Indem. Co. v. Schroeder, 12 N. D. 117, 95 N. W. 438, knowledge of agent not presumed to be knowledge of principal when his interests are adverse to those of principal; Willoughby v. Fidelity etc. Co., 16 Okl. 556, 557, 561, 85 Pac. 716, 717, 718, upholding authority of assistant cashier to bind bank by statements concerning conduct of president, made to surety company on issuing bond; Kendrick-Roan Grain etc. Co. v. Weaver, 128 Tenn. 628, 163 S. W. 819, holding where bond issued for benefit of bank to insure against loss from fraudulent receipts to be issued by warehouse superintendent, failure of warehouse company to inform insurer of defaults did not avoid bond.

Declaration and acts of agents. Note, 131 Am. St. Rep. 332.

In action on employee's indemnity bond, charge, in broad terms, that f jury found directors were careless in management of bank generally, they should find for defendant, is error.

Approved in Danvers Sav. Bank v. National Surety Co., 166 Fed. 676, 677, 92 C. C. A. 423, instructions in action on indemnity bond considered, and held not to explain effect of settlement between plaintiff and widow of deceased defaulter made after part only of defalcation discovered; Southern Surety Co. v. Tyler & Simpson Co., 30 Okl. 126, 120 Pac. 940, holding indemnity bond not avoided by reason of negligence of corporate officers in making examination of books; First Nat. Bank v. United States Fidelity etc. Co., 150 Wis. 610, 137 N. W. 745, holding mere negligence of officers of bank to examine books resulting in loss was not defense to action on bond, when not amounting to bad faith.

Effect of false representation of insured or validity of policy of
fidelity or guaranty insurance. Note, 8 Ann. Cas. 609.
Insurance-Effect of qualifying statements or warranties by words
to "best of my knowledge and belief" or words of like import.
Note, 43 L. R. A. (N. S.) 435.

Miscellaneous. Cited in Cherry v. Fidelity & Deposit Co., 205 U. S. 537, 51 L. Ed. 920, 27 Sup. Ct. 790, affirming judgment on authority of principal case.



186 U. S. 365-401

186 U. S. 365-380, 46 L. Ed. 1203, 22 Sup. Ct. 852, WARNER v. GODFREY.

Litigant cannot, after pressing demands for relief for years, and after they have been found to be unfounded, be allowed to amend so as to state entirely new cause of action.

Approved in Galesburg etc. Electric Ry. Co. v. Hart, 221 Fed. 13, 136 C. C. A. 533, holding amendment to conform to proofs was not departure; Healey Ice Mach. Co. v. Green, 184 Fed. 519, denying leave to file supplemental bill after decision to set up facts to make out different cause, when facts were known before filing prior bill; Elder v. Idaho-Washington Northern R. R. Co., 26 Idaho, 215, 141 Pac. 983, holding after appeal and order for new trial complaint could not be amended to set up allegation directly contradictory to original; Grand Central Min. Co. v. Mammoth Min. Co., 29 Utah, 596, 83 Pac. 685, offer to amend at close of trial without offer of further proof is properly rejected in absence of variance between pleadings and proof.


Statute of Louisiana empowering board of health to exclude healthy persons from infected locality applies to persons coming from outside State and is valid.

Approved in Wilmington Transp. Co. v. Railroad Commission, 236 U. S. 154, 59 L. Ed. 516, 35 Sup. Ct. 276, State may regulate interstate ferry charges, in absence of action by Congress; Patsone v. Pennsylvania, 232 U. S. 146, 58 L. Ed. 544, 34 Sup. Ct. 281, holding State statute prohibiting alien from killing game and making possession of firearms by them unlawful not void as violative of treaty with Italy; Simpson v. Shepard, 230 U. S. 406, 407, Ann. Cas. 1916A, 18, 48 L. R. A. (N. S.) 1151, 57 L. Ed. 1544, 1545, 33 Sup. Ct. 729, holding act to regulate commerce did not contemplate interference with power of States to prescribe rates for intrastate traffic; Moyer v. Peabody, 148 Fed. 876, upholding exercise of discretion by military officers as to arrest and detention where insurrection is declared; Armour & Co. v. City Council of Augusta, 134 Ga. 186, 27 L. R. A. (N. S.) 676, 67 S. E. 420, holding void ordinance imposing inspection charge on frozen meats brought from outside county into city; Southern Ry. Co. v. Railroad Commission, 179 Ind. 39, 100 N. E. 342, holding statute providing for grab-irons on cars not invalid as regulating interstate commerce, since it merely imposed additional penalty for omission covered by Federal statute; Ex parte McDonald, 49 Mont. 465, Ann. Cas. 1916A, 1166, L. R. A. 1915B, 988, 143 Pac. 950, holding where militia called out by Governor to put down insurrection, they may arrest rioters and hold them until insurrection put down; Commonwealth v. Breakwater Co., 214 Mass. 17, 100 N. E. 1038, holding statute for inspection of steam boilers in vessels applied to boiler on barge used for loading on tidewater.

Distinguished in Smith v. Lowe, 121 Fed. 757, 59 C. C. A. 185, holding State officers cannot, under Idaho Sheep Quarantine Act 1899, interfere with removal into State of healthy sheep.

Miscellaneous. Cited in Rixey v. Cox, 235 U. S. 688, 59 L. Ed. 426, 35 Sup. Ct. 204, dismissing for want of jurisdiction on authority of principal case.

186 U. S. 401-413, 46 L. Ed. 1219, 22 Sup. Ct. 866, CAPITAL CITY LIGHT & FUEL CO. v. TALLAHASSEE.

Corporation having franchise to operate public lighting plant in city cannot enjoin city from constructing its own plant, when franchise has remained unused for ten years.

Approved in New York Electric Lines Co. v. Empire City Subway Co., 235 U. S. 193, 194, Ann. Cas. 1915A, 906, 59 L. Ed. 192, 35 Sup. Ct. 72, upholding ordinance revoking right to lay wires in street granted by prior ordinance and long unused; In re New York Electric Lines Co., 201 N. Y. 332, 94 N. E. 1059, upholding revocation of resolution permitting laying of underground conduits before it was used.

186 U. S. 413-422, 46 L. Ed. 1225, 22 Sup. Ct. 895, HOTEMA V. UNITED STATES.

Charges given in murder case, where defense of insanity made, on question of burden of proof, considered and held not to warrant reversal. Approved in Glover v. United States, 147 Fed. 433, 8 Ann. Cas. 1184, 77 C. C. A. 450, erroneous charge that defense of alibi must be proved by preponderance of evidence, not cured by further charge that defendant be given benefit of reasonable doubt; Adair v. State, 6 Okl. Cr. 293, 44 L. R. A. (N. S.) 119, 118 Pac. 420, reversing judgment of conviction for murder for error in instructions as to burden of proof, when defense raised issue to show reasonable doubt of sanity.

Presumption and burden of proof as to sanity in criminal cases.
Note, 44 L. R. A. (N. S.) 120, 124, 180.

Trial of insane person as former jeopardy. Note, 35 L. R. A. (N. S.)

Necessity that motive be proved in prosecution for murder. Note,
Ann. Cas. 19120 237.

Right to convict for several offenses growing out of same facts.
Note, 31 L. R. A. (N. S.) 720.

186 U. S. 423-429, 46 L. Ed. 1229, 22 Sup. Ct. 862, HAGAN V. SCOTTISH UNION & NATIONAL INSURANCE COMPANY.

If there be inconsistency between written and printed portions of contract, the written language will prevail.

Approved in Thomas v. Taggart, 209 U. S. 389, 52 L. Ed. 848, 28 Sup. Ct. 519, construing receipt; L'Engle v. Scottish Union etc. Ins. Co.,


FARMERS' ETC. CO. v. PENN P. G. CO. 186 U. S.434-458

48 Fla. 92, 111 Am. St. Rep. 74, 67 L. R. A. 581, 37 South. 466, upholding liberal interpretation of contract in favor of insured where indorsement slip attached changes terms as to other insurance; Starkweather v. Emerson Mfg. Co., 132 Iowa, 270, 109 N. W. 721, holding written and printed portions reconcilable.

Distinguished in Atlas Reduction Co. v. New Zealand Ins. Co., 138 Fed. 508, 9 L. R. A. (N. S.) 433, 71 C. C. A. 21, policy of fire insurance with "loss payable" indorsement "as interest may appear" avoided by chattel mortgage of insured.

Written matter as controlling printed matter in construction of contract. Note, Ann. Cas. 1913E, 961, 964.

By virtue of the language in policy of marine insurance, "on account of whom it may concern," person taking out policy need not have specific individual in mind; it may apply to any person to whom he may sell the insured interest in whole or in part.

Approved in Merchants & Miners' Transp. Co. v. Robinson-BaxterDisosway Transp. Co., 191 Fed. 774, 113 C. C. A. 427, determining effect of same term in policy procured by towing company on goods on tow; Kline Bros. & Co. v. Royal Ins. Co., 192 Fed. 383, policy construed to cover goods held in warehouse, owned by third person, by whom it was mortgaged, though policy provided that it should be void if mortgage made without insurer's consent; Munich Assur. Co. v. Dodwell & Co., 128 Fed. 414, 63 C. C. A. 152, holding marine policy insuring against general average "in name of all persons to whom subject matter may appertain" protects whole cargo; Bakhaus v. Caledonian Ins. Co., 112 Md. 693, 77 Atl. 317, holding conditions in fire policy as to ownership waived by rider making loss payable to assured "as interest may appear"; Symmers v. Carroll, 207 N. Y. 636, Ann. Cas. 1914C, 685, 47 L. R. A. (N. S.) 196, 101 N. E. 699, holding carrier could insure goods for benefit of owners.

Alienation by or to partner or joint owner as change in title or interest within condition in fire insurance policy. Note, Ann. Cas. 1916B, 955.

Formation of partnership or change in personnel of firm as affecting change of title or ownership within provision of policy. Note, 21 L. R. A. (N. S.) 445.

Miscellaneous. Cited in Scottish Union etc. Ins. Co. v. Encampment Smelting Co., 166 Fed. 235, 92 C. C. A. 139, to point that failure to make proof of loss was not excused by asserted waiver, not in writing, as required by policy, made by agent without authority thereto, whose act was not ratified.

186 U. S. 434-458, 46 L. Ed. 1234, 22 Sup. Ct. 842, FARMERS' LOAN & TRUST CO. v. PENN PLATE GLASS CO.

Purchaser of property subject to mortgage does not impliedly agree to indemnify grantor against liability on mortgage.

« ForrigeFortsett »