CHICAGO & E. I. R. CO. v. COLLINS PRODUCE CO. 1918) commerce. Accordingly, the judgment below must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. Mr. Justice CLARKE dissents. (249 U. S. 186). CHICAGO & E. I. R. CO. v. COLLINS (Submitted Jan. 16, 1919. 1919.) No. 138. 1. CARRIERS 228(1)—INTERSTATE SHIPMENT -BURDEN OF PROOF-LOSS ON CONNECTING LINE. Under the Carmack Amendment to the Interstate Commerce Act (Comp. St. §§ 8604a, 8604aa), in an action against initial carrier for loss of poultry occurring on connecting line, the burden of proof is not on the shipper to show that loss was "caused by" the connecting line, and not the military authorities in a flood district under martial law, which confiscated the poultry for benefit of sufferers. 2. APPEAL AND ERROR 882(8)-RECEPTION OF EVIDENCE-ESTOPPEL TO OBJECT-DEPO SITIONS. Where carrier, sued for loss of shipment, introduced in evidence deposition taken by plaintiff, it cannot be heard to say that deposition contained statements of its agents, which were inadmissible because of lack of evidence showing relation of agents to carrier. 3. APPEAL AND ERROR VERDICT. In the progress of transportation the car Decided March 3, arrived at Dayton, Ohio, on the morning of March 25th, and was there delayed by a flood caused by rains so unprecedented that on that date martial law was declared applicable to Dayton and the territory in which the car was held. The flood waters overflowed the rails on which the car stood, but did not reach the body of the car so as to affect the health of the poultry and access to and from it was readily maintained by the caretaker. 1094(2)-REVIEW Supreme Court will accept as conclusive verdict approved by two courts. 4. CARRIERS 219(5)—INTERSTATE SHIPMENT -SEIZURE BY MILITARY AUTHORITIES LIA BILITY. Seizure of shipment of poultry on connecting line, by military authorities in flood district under martial law, to relieve sufferers, if solely by reason of invitation of connecting line, when it could have delivered shipment by exercise of ordinary care, renders the initial carrier liable. In Error to the United States Circuit Court of Appeals for the Seventh Circuit. Action by the Collins Produce Company against the Chicago & Eastern Illinois Railroad Company. To review a judgment of the Circuit Court of Appeals (235 Fed. 857, 149 C. C. A. 169) affirming a judgment for plaintiff, defendant brings error. Affirmed. 189 Mr Justice CLARKE delivered the opinion of the Court. Messrs. Homer T. Dick, of Chicago, Ill., and Lindorf O. Whitnel, of East St. Louis, Ill., for plaintiff in error. Messrs. Charles Wham and Fred L. Wham, both of Centralia, Ill., for defendant in ror. On March 21, 1913, the plaintiff in error, the initial carrier, accepted a carload of live poultry from the de*fendant in error, the shipper, for transportation from Cypress, Illinois, to Newark, New Jersey, and issued the customary bill of lading, containing the provision that the carrier should not be liable for any loss or damage to the property "caused by the act of God or the authority of law." • ⭑189 On March 31st the state military authorities took possession of the car and distributed its contents to persons rendered destitute by the flood. That it was the duty of the carrier to transport the property to destination, if it could do so; that it could not overcome the flood or the action of the military authorities and that if the latter acted of their own volition the shipper could not recover; but that if the military authorities seized the consignment solely upon and by reason of the invitation of the railroad company, and if, but for this confiscation, the property or any part of it, in the exercise of ordinary care, could have been transported to its destination, then the defendant, the carrier, would be liable for the value of such part of it as the jury might find from the evidence could have reached its destination, to be determined by the invoice price at the point of shipment, less any deterioraer-tion caused by the delay solely incident to the flood. Suit against the carrier, based on the bill of lading, commenced in a state court, was removed to the appropriate District Court of the United States. On the trial of the case the shipper introduced evidence tending to prove that the confiscation was due to the solicitation of representatives of the carrier and to their false representation that the fowls were dying from lack of food and attention and had been or were about to be abandoned by the caretaker, but the railroad company denied this and introduced evidence tending to prove that there was no such solicitation or false representation and that the confiscation was rendered necessary by the exigencies of the situation and by the necessity for supplying food to the people rendered homeless by the flood. The trial court charged the jury: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes #192 The verdict was for the shipper and we are asked to review the judgment of the Circuit Court of Appeals affirming the judgment of the District Court entered upon that verdict. 235 Fed. 857, 149 C. C. A. 169. The carrier argues that three errors each requiring reversal of the judgment appear in the record. [1] The first claim is that the court refused to rule, that by its terms, the Carmack Amendment (Act June 29, 1906, chap. 3591, sec. 7, pars. 11, 12, 34 Stat. 595 [Comp. St. §§ 8604a, 8604aa]) casts upon the shipper the burden of proving affirmatively that the loss which occurred on a connecting line was "caused by" the connecting carrier. But, assuming that the question is presented by the record, which is doubtful, Galveston, Harrisburg & San Antonio Ry. Co. v. Wallace, 223 U. S. 481, 491, 32 Sup. Ct. 205, 56 L. Ed. 516, rules that, under the act as construed in Atlantic Coast Line R. R. Co. v. Riverside Mills, 219 U. S. 186, 205, 206, 31 Sup. Ct. 164, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7, in such a case as we have here the liability of the initial carrier is as if the shipment had been between stations in different states, but both upon its own line, and this renders the contention untenable. Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, does not conflict with this conclusion, Cincinnati, New Orleans & Texas Pacific Railway Co. v. Rankin, 241 U. S. 319, 326, 36 Sup. Ct. 555, 60 L. Ed. 1022, L. R. A. 1917A, 265. [2] The second claim is that error was committed in the ad*mission of testimony of military officers that the confiscation of the property resulted from communications received by them by postal card and telephone from the agents and officials of the railway company respecting the condition of the poultry and that the caretaker had abandoned it, without evidence being required to identify the senders of such messages as officers or agents of the company. But this evidence, while taken in the form of depositions by the shipper, was introduced by the carrier. One who asks a court and jury to believe evidence which he introduces will not be heard to claim that, for technical reasons, it was not admissible. [3, 4] There remains only the contention that substantial error was committed by the Circuit Court of Appeals in approving as sound law the charge to the jury that if the military authorities seized the consignment of poultry solely upon and by reason of the invitation of the railroad company, and that if but for this confiscation the property, or any part of it, in the exercise of ordinary care, could have been transported to its destination, then the carrier would be liable, etc. The shipment was not lost by the "act of God," and the defense of the carrier on the facts was narrowed to the claim that it was prevented from performing its contract "by the authority of law"-by the appropriation by the military authorities. The verdict approved by two courts will be accepted by this court as a conclusive finding in favor of the shipper upon the questions of fact involved. The duties and liabilities of a common carrier have been so fully discussed by this court, notably in Railroad Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627, and in Bank of Kentucky v. Adams Express Co., 93 U. S. 174, 23 L. Ed. 872, that they need not be restated here. The common-law principle making the common carrier an insurer is justified by the purpose to prevent negligence or collusion between dishonest carriers or their servants and thieves or others, to the prejudice of the shipper, who is, of necessity, so remote from his property, when in transit, that proof of such collusion or negligence when existing, would be difficult if not impossible. Coggs v. Bernard, 2 Lord Raymond, 909; Riley v. Horne, 5 Bing. 217. The obligation to transport and to deliver is so exceptional and absolute in character that the relation of the carrier to the shipper was characterized in Railroad Co. v. Lockwood, supra, as so partaking of a fiduciary character as to require the utmost fairness and good faith on its part in dealing with the shipper and in the discharge of its duties to him, and so lately as American Express Co. v. Mullins, 212 U. S. 311, 29 Sup. Ct. 381, 53 L. Ed. 525, 15 Ann. Cas. 536, this court declared that if a carrier, by connivance or fraud, permitted a judgment to be rendered against it for property in its charge, such judgment could not be invoked as a bar to a suit by a shipper. These decisions, a few from many, illustrate the character of the relation of trust and confidence which must be sustained between a common carrier and a shipper. It rests at bottom upon a commercial necessity and public policy which would be largely defeated if the carrier were permitted by false representations, or by representations, which, though not intentionally false, were not known to be true, to procure the appropriation by military or other authority of property in its custody, as the jury found was done in this case, and thereby defeat its obligation to carry and deliver. These principles of law governing the relations between the carrier and the shipper, amply justified the charge of the trial court to the jury and the judgment of the Circuit Court of Appeals must be Affirmed. $193 May 18, 1917, c. 15, 40 Stat. 76 [Comp. St. 1918, §§ 2019a, 2019b, 2044a-2044k]), sustained in Selective Draft Law Cases, 245 U. S. 366, (Argued and Submitted Jan. 9, 1919. Decided 38 Sup. Ct. 159, 62 L. Ed. 349, L. R. A. 1918C, March 3, 1919.) No. 345. 1. COURTS 385(5)-SUPREME COURT-DIBECT REVIEW OF DISTRICT COURT. 361, Ann. Cas. 1918B, 856. He was tried in the District Court of the United States for the District of Minnesota, found guilty by the jury, and sentenced. See 245 Fed. 604. Thirty-one exceptions were taken to rulings of the trial judge. Instead of seeking review by the Circuit Court of Appeals under section 128 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1133 [Comp. St. § 1120]), the case is brought here under section 238 (Comp. St. § 1215). [1] Review by this court on direct writ of error is invoked on the ground that the construction or application of the federal Constitution was drawn in question. Thirty of the rulings excepted to below are assigned as errors here. If any one of them involves a constitutional question which is substantial, or was such when the defendant sued out his writ of error, we have jurisdiction to review all the questions raised and it is our duty to determine *them, so far as necessary to afford redress, even if we should conclude that the constitutional question was correctly decided below. Williamson v. United States, 207 U. S. 425, 432, 434, 28 Sup. Ct. 163, 52 L. Ed. 278; Goldman v. United States, 245 U. S. 474, 476, 38 Sup. Ct. 166, 62 L. Ed. 410. But mere reference to a provision of the federal Constitution, or the mere assertion of a claim under it, does not authorize this court to review a criminal proceeding; and it is our duty to decline jurisdiction unless the writ of error presents a constitutional question substantial in character and properly raised below. EqU. S. 308, 311, 23 Sup. Ct. 123, 47 L. Ed. uitable Life Assurance Society v. Brown, 187 190; Goodrich v. Ferris, 214 U. S. 71, 79, 29 Sup. Ct. 580, 53 L. Ed. 914; Hendricks v. United States, 223 U. S. 178, 184, 32 Sup. Ct. 313, 56 L. Ed. 394; Manhattan Life Ins. * Messrs. Seymour Stedman, of Chicago, Ill., and T. E. Latimer, of Minneapolis, Minn., for plaintiff in error. Mr. John Lord O'Brian, of Buffalo, N. Y., Co. v. Cohen, 234 U. S. 123, 34 Sup. Ct. 874, for the United States. 58 L. Ed. 1245; Brolan v. United States, 236 ion of the Court. Mr. Justice BRANDEIS delivered the opin- U. S. 216, 218, 35 Sup. Ct. 285, 59 L. Ed. 544; United Surety Co. v. American Fruit Co., 238 U. S. 140, 142, 35 Sup. Ct. 828, 59 L. Ed. 1238. (249 U. S. 182) SUGARMAN v. UNITED STATES. While, if any of the rulings excepted to and assigned as error involves a constitutional question, substantial, or so when writ was sued out, the Supreme Court, on direct error to the District Court, invoked on the ground that the construction or application of the federal Constitution was drawn in question, may review all questions raised, and must determine them, so far as necessary to afford relief, even if it be concluded that the constitutional question was correctly decided below, yet mere reference to a provision of the Constitution, or mere assertion of a claim under it, does not authorize any review of a conviction, and jurisdiction must be declined, unless the writ presents such substantial question properly raised below. 2. CRIMINAL LAW 829(3) TRIAL-REQUESTED INSTRUCTIONS-GIVING SUBSTANCE -ABRIDGING FREEDOM OF SPEECH. The substance of requested instructions as to the provision of the Constitution against abridging freedom of speech held clearly embodied in the charge given. 3. CRIMINAL LAW 834(2) QUESTED INSTRUCTIONS STANCE. TRIAL-RE- GIVING The exact language of requested instructions need not be adopted, but it is enough that they are or have already been given in substance. In Error to the District Court of the United States for the District of Minnesota. Abraham L. Sugarman was convicted of violation of the Espionage Act (245 Fed. 604), and brings error. Dismissed. The Espionage Act (Act June 15, 1917, c. 30, tit. 1, § 3, 40 Stat. 217, 219 [Comp. St. 1918, 10212c]) provides that: "Whoever, when the United States is at war, * shall wilfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces * shall be pun of the United States * ished." Of the 31 exceptions taken below only two refer in any way to the federal Constitution. These two are for refusal to give the following instructions: provides that Congress shall make no law abridg(a) "The Constitution of the United States ing the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances. This right has been deemed so essential and necessary to free institutions and a free people that it has been incorporated in substance in the Constitutions of all the states of the Union. These constitutional provisions referred to are For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Sugarman was charged with having violated this section on July 24, 1917, by words spoken in an address made at a Socialist meeting which was attended by many registrants under the Selective Service Act (Act not abrogated, they are not less in force now | bition against court to dismiss, for want of jurisbecause of war, and they are as vital during war diction, libel filed in such court while boat was as during times of peace, and as binding upon in hands of marshal and subsequent to requisiyou now as though we were at peace." tion of Shipping Board, established by Act Sept. 7, 1916, and acting under authority of Act June 15, 1917 and President's executive order of July 11, 1917, though with consent of libelants and counsel for board, no appearance being entered for vessel, boat was used for war purposes with captain as special deputy marshal. (b) "This provision of our Constitution will not justify or warrant advocating a violation of law. A man may freely speak and write and petition, but he is responsible for the consequences of what he may say, write or publish; and if what he says and publishes has a natural tendency to produce a violation of law, that is to impel the persons *addressed to violate the law, and the person using the language intends that it should produce a violation of law, then the person using such language is subject to punishment and this is not inconsistent with the right and protection guaranteed by the Constitution of the United States and of this state." While the trial judge refused to give these specific instructions, his charge to the jury included the following passage: "Now, considerable has also been said in this case about freedom of speech. The Constitution of the United States provides that Congress shall make no law abridging the freedom of speech. This provision of the Constitution is of course in force in times of war as well as in times of peace. But 'freedom of speech' does not mean that a man may say whatever he pleases without the possibility of being called to account for it. A man has a right to honestly discuss a measure or a law, and to honestly criticize it. But no man may advise another to disobey the law, or to obstruct its execution, without making himself liable to be called to account therefor." [2, 3] This passage in the charge clearly embodied the substance of the two requests made by the defendant. The judge was not obliged to adopt the exact language of the instructions requested; Holt v. United States, 218 U. S. 245, 253, 31 Sup. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138; nor was he obliged to repeat the instructions already given in substance. Compare Bennett V. United States, 227 U. S. 333, 339, 33 Sup. Ct. 288, 57 L. Ed. 531. As no substantial constitutional question was presented by the defendant, this court is without jurisdiction to review the other errors assigned. Dismissed for want of jurisdiction. (249 U. S. 115) In re WHITNEY S. S. CORPORATION. (Argued Dec. 9, 1918. Decided March 3, 1919.) No. 25, Original. PARTIES ENTITLED TO RELIEF-ATTACHMENT OF VESSEL-REQUISITION BY SHIPPING BOard. PROHIBITION 15 On Petition for a Writ of Prohibition. Petition for writ of prohibition by the Whitney Steamship Corporation, to be directed to the District Court for Eastern District of New York. Petition dismissed. See, also, 250 U. S. 39 Sup. Ct. 5, 63 L. Ed. Owner of vessel in hands of United States marshal by valid attachment in rem issuing out of the District Court, no bond or release being given, had no standing to procure writ of prohi - Mr. Alexander S. Bacon, of New York City, for petitioner. Mr. Peter S. Carter, of New York City, for respondent. *116 *Mr. Justice PITNEY delivered the opinion of the Court. Petitioner, a corporation of the state of New York, is the owner of the Steamship H. M. Whitney, her engines, etc., which vessel, on April 18, 1918, while in petitioner's possession, was attached by the United States marshal for the Eastern district of New York in an action in rem brought by the Patent Vulcanite Roofing Company in the District Court of the United States for that district. On April 27, 1918, while the vessel was in the possession of the deputy marshal under the process in that action, the United States Shipping Board established by act of September 7, 1916 (39 Stat. 728, c. 451), acting under authority of the act of June 15, 1917 (40 Stat. 182, c. 29), and the President's Executive Order of July 11, 1917,1 in*structed one Smith as its agent to 1 EXECUTIVE ORDER. By virtue of authority vested in me in the section entitled "Emergency Shipping Fund" of an act of Congress entitled "An act making appropriations to supply urgent deficiencies in appropriations for the military and naval establishments on account of war expenses for the fiscal year ending June thirtieth, nineteen hundred and seventeen, and for other purposes," approved June 15, 1917, I hereby direct that the United States Shipping Board Emergency Fleet Corporation shall have and exercise all power and authority vested in me in said section of said act, in so far as applicable to and in furtherance of the construction of vessels, the purchase or requisitioning of vessels in process of construction, whether on the ways or already launched, or of contracts for the construction of such vessels, and the completion thereof, and all power and authority applicable to and in furtherance of the production, purchase, and requisitioning of materials for ship construction. And I do further direct that the United States Shipping Board shall have and exercise all power and authority vested in me in said section of said act, in so far as applicable to and in furtherance of the taking over of title or possession, by purchase For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes #118 to this court were denied upon the ground that the claimant had no standing to attack the validity of the attachment. Thereafter this court granted leave for the filing of a petition for a writ of prohibition, and made an order upon the judges of the district court to show cause why such writ should not issue. Return was made by the judge who had acted in the proceedings above mentioned, and, the matter having been argued here by counsel for the petitioner and by counsel for the Crane Company, the question for decision is whether the prohibition ought to be issued, or the order to show cause discharged. take possession of the steamer in behalf off diction as the basis of a direct appeal the United States. This Smith did pro forma on April 29, but without dispossessing the marshal or his deputy. On May 16, Theodore A. Crane's Sons Company filed its libel in rem against the steamer in the same court, and under process in this suit the marshal, who already had her in custody, again attached the vessel. Afterwards, and on May 29, the Shipping Board, by its counsel, appeared before the court, stated that the use of the vessel was needed by the government for war purposes, that the marshal was still in custody by virtue of the writs of attachment in the two suits referred to, and that the board did not desire to raise an issue over the possession of the property as between two departments of the government, and moved the court to direct the marshal to release her. No appearance having been entered in behalf of the ship, the court heard proctors for the libelants and counsel for the Shipping Board, and on motion of the latter, with consent of the former, made an order entitled in the two causes directing that the marshal be permitted to appoint the master of the ship as a special deputy United States marshal, that this deputy remain in possession of the vessel in behalf of the marshal, that the vessel, in his custody, be turned over to the Shipping Board for purposes connected with the war, the special deputy marshal or his substitutes to remain always in possession, and that the vessel be returned to the custody of the marshal upon being released from requisition by the Shipping Board. *Thereafter the present petitioner, claimant of the vessel, appeared specially by counsel and moved the District Court to quash the attachment in the Crane suit and dismiss the libel on the ground of want of jurisdiction. These motions, after argument, were overruled; and at a subsequent date motions for a rehearing and for a certificate of juris or requisition, of constructed vessels, or parts there of, or charters therein; and the operation, management and disposition of such vessels, and of all other vessels heretofore or hereafter acquired by the United States. The powers herein delegated to the United States Shipping Board may, in the discretion of said Board, be exercised directly by the said Board or by it through the United States Shipping Board Emergency Fleet Corporation, or through any other corporation organized by it for such purpose. Woodrow Wilson. The White House, 11 July, 1917. 39 SUP.Cr.-13 The validity of the attachment in the suit of the Vulcanite Company and the continued possession of the marshal or his deputy under that process are not in controversy. No bond was given or deposit made for release of the vessel pursuant to section 941, Rev.. St. (Comp. St. § 1567), or the admiralty rules of this court or of the District Court. Hence the vessel remained, for all purposes of the action in the custody of the court. The requisition of the Shipping Board extended merely to the use of the ship for war purposes, and did not in fact take her out of. the custody of the court. So far as any interest of the petitioner was concerned, there was nothing to prevent the vessel from being subjected to attachment under process in the Crane Company suit; and as she actually was subjected to that process by the action of the marshal, the jurisdiction of the court in that suit was complete, and the owner's only recourse was to enter appearance therein, with or without giving a bond or making, a deposit. *If the custody of the ship by the officer of the court was inconsistent with the purposes of the Executive, acting through the Shipping Board, this was not a matter of which petitioner could take advantage. The application of the board through its counsel for an order permitting the vessel to be put at the service of the government for war purposes while still remaining in the custody of the marshal for the purposes of the court's jurisdiction, consented to by the only other parties who had a standing in court, was a sufficient warrant for the order made. Order to show cause discharged and petition dismissed. |