Error to District Court of Philadelphia the bill of lading the liability of the deCounty.

fendants for the plaintiff's loss is not limThis was an action on the case by El-ited to $20 per bbl.” This the court kins against the Empire Transportation declined, saying, "If there was a contract Company for the negligent loss of certain either express or implied that the defendgoods.

ants were not to be liable beyond $20 per One Nusbaum delivered to the defend-bbl., they are not liable beyond that. It ants at Peoria, Illinois, fifty barrels of if not necessary for you to find that the high wines, there worth $2,783.70, to be shippers should have said 'we won't hold carried to Philadelphia, receiving a bill of you for any more than $20 per bbl. 'not lading for these barrels containing the fol- necessary to use such words. The conlowing clause:

tract may be implied from all the circum“The rate of freight through is 50 cents stances and the acts of the parties, and per 100 lbs.. . . Received of A. Nusbaum various items of evidence, as from express 50 Bbls. H. Wines ...valuation $20 per words of the party himself, and if you bbl... And it is further agreed that the find such a contract from all the facts and amount of the loss or damage so accruing circumstances of the case, you should limit

Such an so far as it shall fall upon the carriers the liability to $20 per bbl. above described, shall be computed at the agreement to limit responsibility according value or cost of said goods or property at to value from the facts in evidence, if fairthe place and time of shipment under this ly deducible from them, may be, though bill of lading.

the shipper did not in express words tell The words italicized were written, the the carrier he would not be responsible. rest printed.

It may be implied from circumstances, a

course of business and regulations known This bill of lading was transferred to the plaintiff Elkins as collateral security bill of lading based on such a course of

to the shippers, and from acceptance of a for a draft of the shippers for $2,783.80, business it may be fairly inferred. You which was then accepted and paid by the should have no difficulty in this case. It plaintiff. The goods were nearly all de- is of no consequence what the plaintiffs stroyed by an accident while in transit. understood as to the limitation of the deIt appeared from a printed freight notice, fendant's responsibility; the question is offered in evidence by the defendants, that what the shippers understood, and if that they carry four classes of freight, for the limitation was the object of the company first class charging $1.60 per 100 pounds, in writing ‘valuation $20 per bbl.' on the for the second $1.20, for tne third 80 cents, bill of lading, and the shipper so underfor the fourth 50 cents, fourth class freight stood it, the company are not liable beto be taken at an agreed valuation not ex:

yond that limitation.” ceeding $20 per bbl. Defendants then

Verdict for the plaintiff for $955, being showed that the valuation of $20 per bbl. was inserted in the bill of lading in accor- the value of the goods destroyed at the dance with an understanding between the rate of $20 per barrel. To this judgment defendant and the shipper, that in case of the plaintiff took a writ of error. assigning loss the defendant should not be liable be- the admission of the evidence objected to, yond that amount. This evidence the

and the answers and charge of the court. plaintiff objected to. The plaintiff re Held, The valuation of $20 per barrel quested the court (Thayer, P. J.) to in- written into the blank of the printed bill struct the jury “That unler the legal of lading, together with the stipulated construction of the contract expressed in freight at 50 cents per 100 lbs., are con

trolling parts of the bill of lading, and give a bond in the sum of five hundred not controlled by the printed stipulation dollars in gold, conditioned to idemnify that the amount of the loss or damage all the counties, towns and cities of Calioccurring and falling on the carriers, shall fornia against liability for her support or be computed at the value or cost of the maintenance for two years. goods at the place and time of shipment. The statute of California, unlike those These facts, written into the printed bill, of New York and Louisiana, does not reexpress the true contract of the parties, quire a bond for all passengers landing and the $20 per bbl. must, therefore, be from a foreign country, but only for regarded as the value or cost fixed by the classes of passengers specifically described, parties in advance, as that is to be treated among which are “lewd and debauched as such, as of the time and place of ship-women,” to which class it is alleged plainment. This accords with the evidence tift belongs. that such freight, if left to be determined The plaintiff, with some twenty other in value at the time and place of ship- women, on the arrival of the steamer ment, would not be carried at less than Japan from China, was singled out by the $1.60 per 100 lbs. There was an ample Commissioner of Emigration, an officer of consideration, therefore, for the low valu- the State of California, as belonging to ation in the diminution of the freight as that class, and the master of the vessel restipulated, at 50 cents.

quired to give the bond prescribed by law Judgment affirmed.

before he permitted them to land. This Per curiam opinion.

he refused to do, and detained them on board. They sued out a writ of habeas

corpus, which by regular proceedings reCONSTITUTIONAL LAW.

sulted in their committal, by order of the U. S. SUPREME COURT.

Supreme Court of the State, to the cusChy Lung, Plaintiff in Error, v. J. H. tody of the sheriff of the county and city Freeman, R. K. Piotrowski, Commission of San Francisco, to await the return of er of Emigration, and William McKibben, the Japan, which had left the port pendSheriff of the City and County of San ing the progress of the case ; the order Francisco, California.

being to remand them to that vessel Decided March, 1876.

on her return, to be removed from the A statute of a State which operates di- State.

rectly upon an immigrant by requir All of plaintiff's companions were reing the master, owner or consignee leased from the custody of the sheriff on a of a vessel bringing foreigners into writ of habeas corpus, issued by Mr. Jussuch State, to give an onerous bond tice Field, of this Court. But plaintiff

, by for the future protection of the

a writ of error brings the judgment of the State against the support of the passtager is in conflict with the Consti- Supreme Court of California to this Court, tution of the United States, and for the purpose of testing the constitutherefore null and void.

tionality of the act under which she is In error to the Supreme Court of the

held a prisoner. State of Calfornia.

The statute provides that the CommisThe plaintiff in error was a passenger sioner of Immigration is “ to satisfy him. on a vesce from China, being a subject of self whether or not any passenger who the Emperor of China, and is held a pris- shall arrive in the State by vessels from oner because the owner or master of the any foreign port or place (who is not a vessel who brought her over refused to citizen of the United States) is lunatic,

pauper in

idiotic, deaf, dumb, blind, crippled, or in fied by section 70, of the amendments of firm, and is not accompanied by relatives 1873–4.) who are able to support him, or is likely to

Held, The powers which the commisbecome a public charge, or has been a sioner is autorized to exercise under


other country, or is from this statute are such as to bring the Unisickness or disease, existing either at the ted States into conflict with foreign natime of sailing from the port of tions, and which can only belong to the departure or at the

time of his federal government. arrival in the State, a public charge,

If the right of the States to pass stator likely soon to become so, or is a convict- utes to protect themselves in regard to the ed criminal, or a lewd or debauched wo- criminal, the pauper, and the diseased man;" and no such person shall be per- foreigner landing within their borders exmitted to land from the vessel, unless the ists at all, it is limited to such laws as are master or owner or consignee shall give a absolutely necessary for that purpose, and separate bond in each case, conditioned to this mere police regulation cannot extend eave harmless every county, city and town so far as to prevent or obstruct other clasof the State against any expense incur- ses of persons from the right to hold perred for the relief, support or care of such sonal and commercial intercourse with the person, for two years thereafter.

people of the United States. The commissioner is authorized to The statute of California in this respect charge the sum of seventy-five cents for extends far beyond the necessity in which every examination of a passenger made by the right is founded, if it exists at all, and him, which sum he may collect of the invades the right of Congress to regulate master, owner, or consignor of the vessel commerce with foreign nations, and is, by'attachment. The bonds are to be pre- therefore, void. pared by the commissioner, and two sureties are required to each bond, and for pre

WARRANTY. DAMAGES. paring the bond the commissioner is allowed to charge and collect a fee of three dol- ENGLISH DECISIONS—COMMON PLEAS lars, and for each oath administered to a

DIVISION surety concerning his sufficiency as such, Smith v. Green. he may charge one dollar. It is expressly

Decided November 5, 1875. provided that there shall be a separate the defendant having sold a cow to bond for each passenger, that there shall

plaintiff, a farmer, with a warranty be two sureties on each bond, and that the

that she was free from foot and same sureties must not be on more than

mouth disease, and the plaintiff havone bond, and they must in all cases be re ing placed the cow with other sidents of the State.

whereby the latter became infected

with the disease and died, the deIf the ship master or owner prefers, he may commute for these bonds by paying fendant is liable for the entire loss. such a sum of money as the commissioner The first count of the declaration was may, in each case, think proper to exact for the breach of an alleged warranty that and after retaining twenty per cent. of the a cow sold by the defendant to the plaincommutation money for his services, the tiff was free from foot and mouth disease. commissioner is required once a month to The second alleged that the defendant deposit the balance with the Treasurer of falsely and fraudulently represented the the State. (See chapter I., Article VII., animal to be free from foot and mouth of the Political Code of California, as modi- ! disease, and the damage alleged was that

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the plaintiff, who was a farmer allowed known, that the diseased cow would be the cow to herd with other cows, some of placed with other cows; and that if they which took the disease, and (with the found that the defendant knew that in cow in question) died.

the ordinary course of his business, the The case was tried before Archibald, plaintiff would so place her, then the loss J. at the assizes at Manchester. Upon a of the other cows might fairly be conconflict of evidence, the jury found that sidered to be the natural and necessary the defendant had warranted the cow at consequence of the defendant's breach of the time of the sale to be free from foot warranty, and that they might assess the and mouth disease, but they negatived damages accordingly. the alleged false representation. It was

Rule refused. found that the animal was at the time Opinions by Coleridge, C. J., Brett and suffering under the disease in question, Grove, J. J. and communicated it to other cows belonging to the plaintiff, with which she LIABILITY. EVIDENCE. had, in the ordinary course of the plain- N. Y. SUPREME COURT, GENERAL TERM– tiff's business as a farmer been placed,

FIRST DEPARTMENT. and that she and several of them in con

John H. Rostern, respt., against Amizi sequence died. On behalf of the defend- Dodd, applt. ant, it was contended that, upon a mere

Decided March 6th, 1876. breach of warranty, he was not responsible for the loss of the other cows, though There is no implied liability on the he would have been so if he had been

part of an employer to care for an guilty of a false representation.

employee injured in his service. The

Judgment reversed on account of adlearned judge, however, in his summing

mitting, under objection, parol eviup, told the jury that, in estimating the dence of a writing without satisfacdamages, the plaintiff was entitled to re torily accounting for its non-produccover in respect of the breach of warranty.

tion. They might take into their consideration Appeal from judgment entered on rethe fact that the buyer was a farmer, and port of a referee in favor of plaintiff. that the seller knew, or must be taken to The complaint alleges that one Culver, have known, that the cow in question while in the employ of defendant, received would be placed with other cows, and that injuries, and that defendant promised to the consequences which had resulted pay plaintiff for board and services Culver might naturally be expected to happen. rendered while he was suffering from the The jury returned a verdict for the plain- injuries so received. Defendant was shown tiff, with £50 damages, and leave was re- to be general manager of Dodd's Express served to the defendant to move to reduce Company, in whose employ Culver was the damages to £8 if the court should be injured. There was a conflict of evidence of opinion that they ought to be con- as to the promise, delendant denying it. fined to the value of the cow sold.

Plaintiff proved the presentation of a bill

to defendant; plaintiff's witness swore Held, That it was no misdirection to that the amount of the bill was $174. tell the jury that in estimating the Defendant swore that the bill was for a damages to which the plaintiff was enti- less amount, and made out to “Dodd's tled for the breach of warranty, they Express,” and that he thought that the might take into their consideration the witness, who presented the bill, took it fact that the buyer was a farmer, and that away with him on his refusal to pay it.

Plaintiff's counsel asked the following the seller knew, or must be taken to have question :

“ Did that bill for $174 embrace the Motion for a new trial on verdict directusual current charges for such services ed for defendants. Exceptions to be and attendance by landlords of public heard in the first instance at General houses ?

Term. This was answered under objection and Action on a policy of life insurance on exception.

life of plaintiff's husband in favor of Held, That had Culver been in the em- plaintiff. Defence, fraudulent acts in obploy of the defendant, there is no implied taining the policy ; suppression of mateliability of an employer for care or services rial facts. Some of these facts were rendered an employee injured in his ser- proved by physicians who attended him vice. That the only ground on which professionally and obtained their knowldefendant could be held liable is that of edge in that way. This evidence was rean express promise, and it is doubtful ceived under objection. One question in whether the evidence would sustain a the application was whether during the finding of such promise; but without pass. last ten years he had had any sickness or ing on this, the judgment should be re. disease. He replied, “Nine years ago, an versed for error in admitting proof of the attack of typhoid fever.” In reply to the contents of the bill claimed to have been question, “Have you employed or conpresented, without producing it or satis- sulted any physician, &c. ? if so, give factorily accounting for its non-production. names,” he gave the name of only one.

Judgment reversed. New trial granted, It was shown by his own admissions that costs to abide the event.

he had, during the time designated, had Opinion by Davis, P. J; Brady and other serious sickness, and been under the Daniels, J.J., concurring.

care of other physicians.

Held, That it was error to admit the

testimony of physicians as to knowledge LIFE INSURANCE.

of diseases obtained in their professional N. Y. SUPREME COURT-GENERAL Term. capacity, and necessary to enable them to FIRST DEPARTMENT.


Held also, That the admissions of the Olive A. Dilleber v. the Home Life In

assured viz: letters written by him were surance Company.

admissible to show the false statements. Decided March 6, 1876.

Excluding the testimony of the physiTestimony of physicians as to know?- cians, it appears that he had a sickness

edge of diseases obtained in their that was important as affecting his insuraprofessional capacity, and necessary to enable them to prescribe, is inad bility, which he was bound to disclose. missible.

That the warranty is false, and the de

fendant absolved. Letters written by the assured are admissible to show false statements, or

Judgment affirmed. concealment of facts affecting his

Opinion by Brady, J.; L'avis, P. J., and insurability, which he was bound to Laniels, J., concurring. disclose.

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