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which is situated on the track of such railroad companies, it shall be the duty of the railroad companies to take charge of and receipt for such cotton in the same manner and on the same terms as they would receive and receipt for cotton when taken at its own depot or platform erected for such transactions; provided, however, that the shipper or the compress company shall, in such cases, assume the additional risk of insurance involved by such act of the railroad company."
livered the cotton receipts to the compress | railroad companies upon compress platform, company it was to compress the cotton, obtain the insurance, and give the policies to the agent of the railway company, and ship the cotton on the cars pointed out by the railway company's agent. There is no evidence that the compress company ever compressed cotton at the orders of the shipper, or charged him for the storage of the cotton on the platform. The compressing was in fact done by the compress company for the railway company, for its convenience, by its direction, and at its cost. While the cotton was being compressed the compress company was not under the control of the railway company in matters relating to the mode and manner of compressing, nor were the employees of the compress company under any control by the railway company, but the compress company followed the orders of the railway company when to compress and where to load the cotton after compressing.
This customary way of doing business was followed with regard to the cotton in question. It was received on the platform of the compress company from plaintiffs, and receipts given for it to them. These receipts were taken on September 17, 1900, to the agent of the railway company, who thereupon signed and delivered a bill of lading to plaintiffs, acknowledging the receipt of the cotton to be transported to Utica, New York, at named rates. The agent of the railway company then took these receipts which plaintiffs had handed to him, and delivered them to the compress company, and gave written instructions, signed by such agent, to the compress company on a form customarily used, and which ran thus: "I have this day issued on your compress receipts bill of lading to W. A. Arthur & Company for 50 bales of cotton (marks, number of bales, and total weight given). Domestic. Compress and ship the above cotton," as stated in directions. The compress company, when its own receipts were delivered to it by the railway company's agent, in accordance with its general custom, caused this cotton to be insured for the benefit of the defendant company and in the name of that company, and delivered the policies to the agent of the railway company, who forwarded them to division headquarters at Dallas, Texas. company paid for the insurance under the direction of the railway company.
The rule of the defendant was also put in evidence, and reads as follows:
"Rule Eleven. When cotton is tendered this company upon a compress platform which is situated on the track of this company, agent shall take charge of and receipt for such cotton in the same manner and on the same terms as he would receive and receipt for the cotton if tendered him at this company's depot platform or other places assigned by it for such transactions; provided, however, that the shipper or the compress company shall, in such cases, assume the additional risk of insurance involved by such act of this company."
Messrs. William H. Arnold, James K. Jones, and James K. Jones, Jr., for plaintiffs in error.
Messrs. David D. Duncan and John F. Dillon for defendant in error.
Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court:
The plaintiffs, in order to avoid the obstacle in the agreement in the third clause of the bill of lading, providing that defendant was not to be liable for damages to the cotton by fire, contend, as set up in the complaint, that the clause in the bill of lading was received under duress, and that it was unreasonable and without consideration. These contentions have been answered and overruled, upon much the same evidence, in the case of Cau v. Texas & P. R. Co. 194 U. S. 427, 48 L. ed. 1053, 24 Sup. Ct. Rep. 663, and need not be further discussed.
With the fire clause in force, it became necessary for the plaintiffs, in maintaining their action, to show that defendant had received the cotton, and that it was destroyed through the negligence of the defendant or its agents, as the exemption would not apply to a case of damage occurring through such negligence. Bank of Kentucky v. Adams Exp. Co. 93 U. S. 174, 23 L. ed. 872. We are of opinion, after carefully reading the record, that there was "Thirteenth. When cotton is tendered to evidence enough to be submitted to the jury
It was while the cotton was still on the platform, and not yet compressed, that it was burned.
The order adopted by the Texas state railroad commission, which was put in evidence, reads as follows:
upon the question of negligence in the care | sponsibility of due care by leaving the cotof the cotton while on the platform.
This leaves the questions whether there was a delivery of the cotton to the railway company, and whether the compress company, at the time of the fire, was the agent of the railway company as to that cotton. Upon the evidence in this case, was there a delivery? The evidence showed that the cotton was not delivered on the platform by the plaintiffs for the purpose of being compressed for them by the compress company. The order to compress was subsequently given by the railway company. That company had no other place for the delivery of the cotton to it than at this platform, but, as there were three companies with tracks at the platform, with either one of which the shipper might contract for the transportation of the cotton, it cannot be held that there was, at the time of the delivery of the cotton at the platform, a delivery to the defendant, especially as the compress company itself acknowledged the receipt of the cotton. But when these receipts were handed by the plaintiffs to the defendant's agent, who took them and issued a bill of lading to the plaintiffs, the constructive possession and the entire control of the cotton passed to the defendant. It could then, if so minded, have taken the cotton and loaded it on cars and taken it away without having had it compressed. It was, however, compressed by its own order, given in writing to the compress company, and for its own convenience, and at its own cost, and the insurance was obtained by its direction by the compress company, in the name of the defendant and for its benefit, and such policies were delivered to the defendant and sent by its agent to Dallas. Most probably the cost of compression and insurance was paid by the plaintiffs in the rate paid by them for the transportation of the cotton, as that cost was one of the factors which may be supposed to have entered into the rate of freight charged by the defendant; but the total sum paid for transportation by plaintiffs left the matter with defendant to compress and insure if it saw fit, which it probably would think fit to do in all cases, as an ordinary business precaution. The fact that in getting the cotton compressed the railway chose to have it done by an independent contractor, over whose acts it had no control while the cotton was being compressed, and the fact that it would order the compress company, after compressing, to load the cotton on cars selected by defendant's agent, did not in any way affect the fact that the cotton had been received by the railway company, and that it was thereafter subject to its full control. The defendant could not devest itself of the re
ton to be compressed and loaded by the compress company. The latter company
was, while so acting, the agent of the defendant, chosen by it, and, as such, the defendant was responsible for any lack of proper care of the cotton by the compress company. Bank of Kentucky v. Adams Exp. Co. supra.
It is urged that the case cited does not cover the facts herein, because in the reported case the attempt was to secure the immunity of the defendant express company from the consequences of the negligence of the railroad in doing the very thing that the express company had agreed to do, viz., transport the money; while in the case before us the negligence of the compress company (assuming there was such) was not in transporting the cotton, which the railway company had agreed to do, but in caring for it while awaiting compression. We see no difference, in fact, which would lead to a different result.
The compression was done for the convenience of the railroad company, after the company had received the cotton, and before the actual transportation had commenced. In order to enable it the more conveniently to do the work of transportation it cannot devest itself of its obligation to exercise due care while the cotton is in the control of the compress company, although the latter is an independent contractor, and not under the immediate control of the railway company while doing the work of compression in its behalf. There would be no justice in such holding, and we are clear it would violate the general rule that the carrier, after the freight has been received by it, must be regarded as liable, at least, for the negligence of its own servants, and also for that of the servants of an independent contractor, employed by it to do work upon the freight for its own convenience and at its own cost.
In California Ins. Co. v. Union Compress Co. 133 U. S. 387, 33 L. ed. 730, 10 Sup. Ct. Rep. 365, the question was simply as to the liability of the insurance company on a policy of insurance against fire, issued by it to the Union Compress Company upon cotton in the possession of the compress company for compression, and which belonged to divers other parties. The policy insured the cotton for the plaintiff while "in bales, their own or held by them in trust or on commission." The defense was that, as the compress company did not own the cotton, and the beneficiaries under the policy were its owners, that no interest of any carrier was covered by the policy. The court held that the railway companies were beneficiaries under the policy, because they
had an insurable interest in the cotton, and | ance company endeavoring to collect from to that extent were its owners, and that the defendant what it had paid to the ownit was held in trust for them by the plain-ers of the cotton. In that case the cotton, tiff. The railway company had issued bills which had been destroyed by fire, was in of lading upon the surrender of the receipts the possession of the compress company, and of the compress company. It was held that the railway company had never given any where the original depositors of the cotton bill of lading for it. The insurance comhad surrendered to the railroad companies panies had issued policies upon and dethe receipts which they had taken from the livered them to the owners of the cotton, compress company, that those companies be- and when the cotton had been destroyed by came substituted in the relation to the com- fire the companies paid the losses and press company which before had been held claimed that the railway company was liaby the depositors of the cotton; that the ble under the contract which the company railroad companies thus became the bene- had made with the compress company to ficiaries of the trust so far as the compress receive the cotton and transport it over its company was concerned, because they thus railroad across the Arkansas river to the became the persons to whom that company press of the compress company in Argenta, owed the duty of bailment, and the persons a distance of a mile and a half. The insurentitled to demand possession of the prop- ance companies insisted that, by the failure erty from the plaintiff. The policy also con- of the railway company, under its contract tained a provision that it should be void if with the compress company, to transport there were any change in the possession of this cotton as fast as it came in, the amount the insured property, and the defendants of the cotton became so great as to coninsisted that there was such a change, caused stitute a public nuisance, as it was piled by the signing of the bill of lading by the up in the compress company's warehouse railway companies in return for the receipts and overflowed into the adjoining streets. given by the compress company upon the This court held that, as there had been no deposit of the cotton with the latter com- bills of lading issued by the railway company, although no actual change had taken pany for the cotton which had been deplace, and the cotton still remained in the stroyed, the failure of the railway company custody of the compress company. It was, to furnish sufficient transportation for the however, held that the railway companies, cotton to the compress company, while it in acquiring the receipts of the compress may have been a breach of the contract becompany and issuing bills of lading for the tween the railway company and the comcotton, took only constructive possession of press company, yet such breach created no it, and the plaintiff retained actual physical liability in contract or tort to the owners possession of it, and did not lose any ele- or insurers of the cotton or to any other ment of possession necessary to give it the person. The court, at page 237, L. ed. at right to effect the insurance for its own page 158, Sup. Ct. Rep. at page 558, said: benefit and as bailee or agent for the pro- "This cotton, certainly, was in the exclusive tection of the railway companies, although possession and control of the compress com-' the railroad companies' was the right to pany. The railway company had not asultimate possession, which passed to them sumed the liability of a common carrier, or by the original deposit of the cotton re- even of a warehouseman, with regard to it; ceipts given by the plaintiff. had given no bills of lading for it; had no custody or control of it and no possession. of it, actual or constructive, and had no hand in placing or keeping it where it was."
The question of whether there had been a change of possession within the meaning of that expression as used in the insurance policy is entirely different from that of whether immediate control of the cotton passed to the railway company by virtue of the delivery of the bill of lading in this case, so as to render the company liable for any neglect by it or its agent in regard to the subsequent care of the cotton. the case at bar, not only was there a constructive possession by the railway company, but that company assumed full control of the cotton, and gave directions to the compress company what to do with it.
In St. Louis, I. M. & S. R. Co. v. Commercial Union Ins. Co. 139 U. S. 223, 35 L. ed. 154, 11 Sup. Ct. Rep. 554, the question was also in regard to insurance, the insur
In speaking of the issuing of bills of lading by the railway company for certain other cotton and what effect it had upon the rights of the parties, in the case then under consideration, the court said, page 238, L. ed. page 159, Sup. Ct. Rep. page 558:
"There is nothing else in the case which has any tendency to show that the railway company had or exercised any control or custody of the cotton, or of the place where it was kept by the compress company, before it was put upon the cars by that company. The railway company evidently neither considered itself, nor was considered by the compress company, as having assumed any responsibility for the care or
custody of the cotton, until it had been in-, lading issued under the circumstances of sured in its behalf and loaded upon its cars. this case. We think the argument is not The evidence warranted, if it did not re- sound. The rule of the Texas commission quire, the inference that the bills of lad- applies to a case when the cotton is tening were issued merely for the convenience dered to the railway company, although at of all parties, and with no intention of mak- the time it is upon the compress company's ing any change in the actual or the legal platform. Now, if the railway company did custody of the cotton until it was so loaded." not regard the presentation of these reSuch is not the case here. ceipts as in fact a tender to the railway company of the cotton in question, or if it were not a valid tender of the cotton, it could have refused to sign the bill of lading. The same may be said of rule 11 of the company itself. The company evidently regarded the cotton as tendered them, and issued the bill in acknowledgment of the fact of such tender.
In Missouri P. R. Co. v. McFadden, 154 U. S. 155, 38 L. ed. 944, 14 Sup. Ct. Rep. 990, the case was decided upon the facts therein stated, which were that it was understood both by the carrier and the shipper that the cotton was not to be delivered at the time the bills of lading were issued, the cotton at that time being in the hands of the compress company, which compress company was the agent of the shipper, it being the intention of the parties at the time the bills of lading were issued that the cotton should remain in the hands of the compress company, the agent of the shipper, for the purpose of being compressed. These allegations were made in the answer of the company, which was excepted to, and their truth was therefore admitted. The trial court had, nevertheless, held the company liable for the loss of the cotton. This court said (page 160, L. ed. page 946, Sup. Ct. Rep. page 991): "The case presents the simple question of whether a carrier is liable on a bill of lading for property which, at the time of the signing of the bill, remained in the hands of the shipper for the purpose of being compressed for the shipper's account, and was destroyed by fire before the delivery to the carrier had been consummated." The court held that, under such circumstances, there was no liability on the part of the common carrier, because it had never had the cotton delivered to it, the issuing of the bill of lading being subject to the intention of the parties, and the cotton remaining in the hands of the compress company as agent of the shipper. The facts in the case at bar are totally
We think the evidence in this case made out a delivery to and acceptance by the railway company of the cotton in question, and that the compress company had the actual custody of the cotton as the agent of the railway company, and the question of whether the persons in whose custody it was at the time of the fire were guilty of negligence was a question which should have been submitted to the jury.
The judgment of the Circuit Court of Appeals and that of the Circuit Court should be reversed and the case remanded to the Circuit Court with directions to set aside the verdict and to grant a new trial.
VICENTE SERRA and Maria Obleno, Plffs. in Err.,
Constitutional law-due process of law on criminal appeal-Bill of Rights in Philippine Islands.
The refusal of the supreme court of the Philippine Islands, on an appeal in a criminal case, to entertain an objection to the sufficiency of the complaint, because such objection was not raised before final judgment in the trial court, does not amount
to a conviction of the accused without informing them of the nature and character of the offense charged, or to a conviction without due process of law, in violation of the Bill of Rights enacted by Congress for 1902 (32 Stat. at L. 691, 692, chap. 1369, U. the Philippine Islands in the act of July 1, S. Comp. Stat. Supp. 1905, p. 391), although that court, on appeal, has power to re-examine both the law and the facts, where, as a necessary consequence of the facts found, the testimony offered at the trial, without objection or exception in any form, established every ingredient of the crime.
Stress was laid in the argument before us upon the fact that, under the 13th rule of the Texas railroad commission, the defendant was bound to sign the bill of lading when the receipts of the compress company were presented to the railway company, and that, therefore, the defendant cannot be held to have become liable by virtue of the delivery of the bill of lading in question upon such a purely arbitrary order. It is also urged that the 11th rule of the defendant, which is set up in the foregoing statement, and which is to the same effect as the order of the railroad commission, was adopted simply pursuant to that order, and, there- Submitted fore, no liability attaches from the bill of
February 1, 1907. Decided
N ERROR to the Supreme Court of the Philippine Islands to review a judgment which affirmed, with a modification of the sentence imposed, a conviction of the crime of adultery in the Court of First Instance of Albay, Eighth Judicial District. Affirmed.
The facts are stated in the opinion. Messrs. Aldis B. Browne, Alexander Britton, and Maurice Kelly for plaintiffs in er
No appearance for defendant in error.
adultery, as defined by the articles of the Penal Code already referred to, were shown to have been committed. The accused were sentenced to pay one half of the costs and to imprisonment for two years, four months, and one day. The record does not disclose that any objection was taken to the sufficiency of the complaint before the trial. Indeed, it does not appear that, by objection in any form, directly or indirectly, was any question raised in the trial court concerning the sufficiency of the complaint. An appeal was taken to the supreme court of
Mr. Justice White delivered the opinion of the Philippine Islands. In that court error the court:
Articles 433 and 434, found in chapter 1 of title 9 of the Penal Code of the Philippine Islands, define and punish the crime of adultery. The articles referred to are in the margin.†
was assigned on the ground, first, that "the complaint, is null and void because it lacks the essential requisite provided by law;" and, second and third, because it did not appear from the proof that guilt had been established beyond a reasonable doubt. The conviction was affirmed. The assignment of error which was based on the contention. that the conviction was erroneous because the complaint did not sufficiently state the essential ingredients of the offense charged was thus disposed of by the court in its opinion: "The objections to the complaint,
It is conceded at bar that, under the Philippine law, the offense of adultery, as defined by the articles in question, is classed as a private offense, and must be prosecuted, not on information by the public prosecutor, but by complaint on behalf of an injured party. In the court of first instance of Albay, eighth judicial district, Philippine Is-based upon an insufficient statement of the lands, Adriano Mortiga, the defendant in error, as the husband of Maria Obleno, filed a complaint charging her with adultery committed with Vicente Serra, the other plaintiff in error, who was also charged. The complaint is in the margin.‡
The defendants were arraigned, pleaded not guilty, were tried by the court without a jury, and were convicted. The court stated its reasons in a written opinion, analyzing the testimony, and pointing out that all the essential ingredients of the crime of
Art. 433. Adultery shall be punished, with the penalty of prisión correccional in its medium and maximum degrees.
facts constituting the offense, cannot be considered here, because they were not presented in the court below. United States v. Sarabia, 3 Off. Gaz. No. 29."
The assignments based on the insufficiency of the proof to show guilt beyond a reasonable doubt were disposed of by an analysis of the evidence, which the court deemed led to the conclusion that all the statutory elements of the crime were proven beyond a reasonable doubt. An application for a rehearing, styled an exception, was made, Maria Obleno, accuses Vicente Serra and the said Maria Obleno of the crime of adultery, committed as follows:
Adultery is committed by the married. That on or about the year 1899, and up woman who lies with a man not her hus- to the present time, the accused, being both band, and by him who lies with her know- married, maliciously, criminally, and illeing that she is married, although the mar-gally lived as husband and wife, and conriage be afterwards declared void.
Art. 434. No penalty shall be imposed for the crime of adultery except upon the complaint of the aggrieved husband.
The latter can enter a complaint against both guilty parties, if alive, and never, if he has consented to the adultery or pardoned either of the culprits.
The United States of America, Philippine Islands, Eighth Judicial District:
In the Court of First Instance of Albay. The United States and Macario Mercades, in Behalf of Adriano Mortiga,
Vicente Serra and Maria Obleno. The undersigned, a practising attorney, in behalf of Adriano Mortiga, the husband of
tinued living together up to the present
Albay, February 24, 1904.
Sworn and subscribed to before me this 24th day of February, 1904.
(Signed) F. Samson, Clerk.