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(45 S.Ct.)

Freeman, of Chicago, Ill., and Green & Palmer, master, with directions that he make special of Urbana, Ill., for appellees. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit denied.

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No. 3, original. The STATE OF NEW MEXICO, complainant, v. The STATE OF TEXAS. Dec. 2, 1924. See, also, 264 U. S. 574, 44 S. Ct. 404, 68 L. Ed. 856. Messrs. Frank W. Clancy, of Santa Fé, N. M., W. R. Reber, of Columbus, N. M., and T. B. Catron, of Santa Fé, N. M., for the State of New Mexico. Messrs. W. W. Turney, of El Paso, Tex., C. M. Cureton, of Austin, Tex., C. W. Taylor, of Corsicana Tex., and W. A. Keeling, of Mexia,

Tex., for the State of Texas. Mr. Thornton Hardie, of El Paso, Tex., amicus curiæ. Argument commenced by Mr. Frank W. Clancy for the complainant, continued by Mr. W. A. Keeling for the defendant, and concluded by Mr. Thornton Hardie in behalf of L. M. Crawford as amicus curiæ by special leave of court. Case ordered referred to a master for findings of facts to be reported to the court.

findings on all material questions of fact and report the same to the court with his recommendations respecting the decree to be entered. The master shall accord to the parties a full hearing on all questions in the cause, whether of fact or of law, and shall base his findings and recommendations on the entire record as heretofore made and printed, including the several documents and papers mentioned in the stipulations appearing in the record. When the master's report is received, the clerk shall have the same printed, and the cause shall then be set down for hearing before the court on the findings and recommendations of the master and such exceptions thereto as may be presented by either State.

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No. 295. F. A. COCKE, plaintiff in error, v. MORGAN'S LOUISIANA & TEXAS R. R. & S. S. CO. et al. Dec. 8, 1924. In error to the District Court of the United States for the Southern District of Mississippi. Mr. George Butler, of Jackson, Miss., for plaintiff in error.

PER CURIAM. Cause transferred to the United States Circuit Court of Appeals for the Fifth Circuit, upon authority of (1) act of September 14, 1922, c. 305, 42 Stat. 827 (Comp. St. Ann. Supp. 1923, § 1215a); Heitler V. United States, 260 U. S. 438, 439, 43 S. Ct. 185, 67 L. Ed. 338; (2) Toop v. Ulysses Land Co., 237 U. S. 580, 583, 35 S. Ct. 739, 59 L. Ed. 1127; Piedmont Power & Light Co. v. Graham, 253 U. S. 193, 195, 40 S. Ct. 453, 64 L. Ed. 855.

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No. 342. MAPLE FLOORING MANUFAC8 (266 U. S. 588) TURERS ASSOCIATION et al., appellants, v. The UNITED STATES of America. Dec. 2, No. 332. CRANBERRY CREEK COAL 1924. Motion of appellants that the perma- COMPANY, plaintiff in error, v. The COMnent injunction granted by the District Court MONWEALTH OF PENNSYLVANIA; of the United States for the Western District of Michigan in this cause be suspended until the determination of this appeal by this court, granted, on motion of Mr. E. R. Johnston for the appellant.

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No. 3, original. The STATE OF NEW MEXICO, complainant, v. The STATE OF TEXAS. Dec. 4, 1924. See, also, 45 S. Ct. 127. Messrs. Frank W. Clancy, of Santa Fé, N. M., W. R. Reber, of Columbus, N. M., and T. B. Catron, of Santa Fé, N. M., for the State of New Mexico. Messrs. W. W. Turney, of El Paso, Tex., C. M. Cureton, of Austin, Tex., and C. W. Taylor, of Corsicana, Tex., for the State of Texas. It is ordered that this cause be referred to Charles Warren, Esq., as a special

No. 333. ALLIANCE COAL MINING COMPANY, plaintiff in error, v.. The COMMONWEALTH OF PENNSYLVANIA;

No. 334. The LEHIGH COAL & NAVIGATION COMPANY, plaintiff in error, v. The COMMONWEALTH OF PENNSYLVANIA;

and

No. 335. PHILADELPHIA & READING COAL & IRON COMPANY, plaintiff in error, v.

The COMMONWEALTH OF PENNSYLVANIA. Dec. 8, 1924. In error to the Supreme Court of the State of Pennsylvania. For opinion below, see 278 Pa. 338, 123 A. 315. Mr. William Clarke Mason, of Philadelphia, Pa., for plaintiffs in error. Mr. George W. Woodruff, of Philadelphia, Pa., for defendant in error.

PER CURIAM. Judgments affirmed with costs, upon the authority of Heisler v. Thom

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No. 353. The UNITED STATES, appellant, v. FIDELITY & DEPOSIT COMPANY OF

MARYLAND. Dec. 8, 1924. Appeal from the
Court of Claims. For opinion below, see 58
Ct. Cl. 723. The Attorney General, for the
United States. Messrs. Simon Lyon and R. B.
H. Lyon, both of Washington, D. C., for ap-
pellee.

PER CURIAM. Judgment affirmed, upon the authority of United States v. Hvoslef, 237 U. S. 1, 35 S. Ct. 459, 59 L. Ed. 813, Ann. Cas. 1916A, 286.

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No. 402. The PALMER BROTHERS COMPANY, appellant, v. D. E. WEAVER, Chief of Bureau, etc. Dec. 8, 1924. Appeal from the District Court of the United States for the Western District of Pennsylvania. For opinion below, see 3 F. (2d) 333. Mr. Edwin W. Smith, of Pittsburgh, Pa., for appellant.

PER CURIAM. Decree affirmed with costs, upon the authority of Chicago Great Western Railway Company et al. v. Kendall et al., decided November 17, 1924, 266 U. S. 94, 45 S. Ct. 55, 69 L. Ed. and last paragraph of opinion therein.

(266 U. S. 588)

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V. The

No. 423. GULF, COLORADO & SANTA FE
RAILWAY COMPANY, appellant,
TEXAS & PACIFIC RAILWAY COMPANY.
Dec. 8, 1924. Appeal from the District Court

of the United States for the Southern District
of Texas. For opinion below, see Lancaster v.

Gulf, C. & S. F. R. Co., 298 F. 488. Mr. Alexander Britton, of Washington, D. C., for appellant.

PER CURIAM. Cause transferred to the United States Circuit Court of Appeals for the Fifth Circuit, upon authority of act of September 14, 1922, c. 305, 42 Stat. 827 (Comp. St. Ann. Supp. 1923, § 1215a) Heitler v. United States, 260 U. S. 438, 439, 43 S. Ct. 185, 67 L. Ed. 338; Dayton-Goose Creek Ry. Co. v. United States et al., 263 U. S. 456, 478, 44 S. Ct. 169, 68 L. Ed. 38S; Railroad Commission v. Southern Pacific R. R. Co. et al., 264 U. S. 331, 344, 44 S. Ct. 376, 68 L. Ed. 713.

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No. 549. Thomas KANNELLOS, plaintiff in error, v. GREAT NORTHERN RAILWAY COMPANY. Dec. 8, 1924. In error to the Supreme Court of the State of Minnesota. For opinion below, see 196 N. W. 280. Mr. Frank L. Fawcett, of Milwaukee, Wis., for plaintiff in error.

PER CURIAM. Dismissed for want of jurisdiction, upon the authority of section 237 of the Judicial Code as amended by the act of September 6, 1916, c. 448, § 2, 39 Stat. 726 (Comp. St. § 1214); Philadelphia & Reading Coal & Iron Co., 245 U. S. 162, 165, 166, 38 S. Ct. 58, 62 L. Ed. 221; Ireland v. Woods, 246 Stadelman v. Miner, 246 U. S. 544, 546, 38 S. U. S. 323, 328, 38 S. Ct. 319, 62 L. Ed. 745; Ct. 359, 62 L. Ed. 875; Chicago Great Western R. R. Co. v. Basham, 249 U. S. 164, 165, 39 S. Ct. 213, 63 L. Ed. 534; Citizens' Bank v. Opperman, 249 U. S. 448, 450, 39 S. Ct. 330, 63 L. Ed. 701; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 6, 40 S. Ct. 255, 64 L. Ed. 421.

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No. 744. Lyda FISHER et al., petitioners, V. The UNITED STATES of America. Dec. 8, 1924. For opinion below, see 2 F. (2d) 843. Mr. J. Raymond Gordon, of Charleston, W. Va., of Washington, D. C., and Mrs. Mabel Walker for petitioners. Mr. James M. Beck, Sol. Gen., Willebrandt, Asst. Atty. Gen., for the United

States. Petition for a writ of certiorari to

the United States Circuit Court of Appeals for

the Fourth Circuit denied.

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(266 U. S. 628)

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(266 U. S. 642) No. 708. James H. DE VEUVE et al., petitioners, v. BLACK ROCK POWER & IRRIOn petition for a writ of certiorari to the Dec. 11, 1924. United States Circuit Court of Appeals for the Ninth Circuit. Mr. Cornelius H. Hanford, of Seattle, Wash., for petitioners. Dismissed as to remaining petitioners James H. De Veuve and Mary C. DeVeuve, on motion of Mr. Dale A. Drain in that behalf.

No. 502. MILLER'S INDEMNITY UNDER-GATION COMPANY et al. WRITERS, plaintiff in error, v. Mrs. Nellie BOUDREAUX BRAUD, etc., et al. Dec. 8, 1924. For opinion below, see (Tex. Com. App.) 261 S. W. 137. Messrs. G. Bowdoin Craighill and Hannis Taylor, Jr., both of Washington, D. C., for plaintiff in error. Petition for a writ of certiorari herein denied.

(45 S.Ct.)

(266 U. S. 389)
ÆETNA LIFE INS. CO, et al. v. DUNKEN.

(Argued and Submitted Oct. 14, 1924. Decided Dec. 15, 1924.)

No. 62.

1. Courts 394 (12) Contention that application of statutes of one state to contract

claimed to be of another state violates full faith and credit clause held to give United States Supreme Court jurisdiction.

In action on life policy, judgment giving plaintiff statutory penalty and attorney's fees, under Rev. St. Tex. 1911, arts. 4746, 4950, as against defendants' contention that the contract was not a Texas contract, and that application of such statute thereto violated full faith and credit clause of the federal Constitution, held reviewable by United States Supreme Court on writ of error, under Judicial Code. § 237, as amended by Act Sept. 6, 1916 (U. S. Comp. St. § 1214); the constitutional question being substantial and not frivolous.

2. Appeal and error 1094(1)-Rule as to United States Supreme Court's review of state court's decision on question of fact stated.

State court's decision on question of fact ordinarily is not reviewable by United States Supreme Court, but such rule does not apply where a federal right has been denied as the result of a finding shown by the record to be without evidence to support it, and where conclusion of law as to a federal right and findings of fact are so intermingled as to make it necessary, in order to pass upon the federal question, to analyze the facts.

3. Insurance ~125(1), 602-Converted policy held not contract of state in which insured was living at time of conversion, but of state in which original policy was issued; policy not subject to Texas statute penalizing delay in payment.

Where policy issued in Tennessee provided for conversion into another form of policy bearing same date and issued at same age, on payment of difference between premiums paid and those required under converted policy, without re-examination, converted policy, issued to insured after his removal to Texas, did not become a Texas policy, subject to Rev. St. Tex. 1911, arts. 4746, 4950, 4972, providing for payment of 12 per cent. damages and reasonable attorney's fees on insurer's failure to pay amount of policy within certain time after demand.

4. States 52, New, vol. 14A Key-No. Series-Application of statutes of one state to contract of other state held violative of full faith and credit clause.

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ance.

Conversion of policy into other form of insurance without re-examination, on payment of difference between premiums already paid and those required under converted policy, under provision entitling insured thereto, can be enforced in suit for specific performance.

In Error to the Court of Civil Appeals of the Third Supreme Judicial District of the State of Texas.

Action by Mrs. Pearl Stone Dunken, administratrix of the estate of W. J. Dunken, deceased, against the Etna Life Insurance Company and another. Judgment for plaintiff was affirmed by the Court of Civil Appeals of Texas (248 S. W. 165), and the defendants bring error. Reversed and re

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ance company or cor*poration doing business within this state shall be held to be a contract made and entered into under and by virtue of the laws of this state relating to insurance, and governed thereby, notwithstanding such policy or contract of insurance may provide that the contract was executed, and the premiums and policy (in case it becomes a demand) should be payable without this state, or at the home office of the company or corporation issuing the same." Article 4950, Rev. Civ. Stats. 1911.

The statute further provides that where loss occurs failure to make payment within 30 days after demand shall render the company liable to pay the holder of the policy in addition to the amount of loss twelve per cent. damages on the amount of such loss, together with reasonable attorney fees for the prosecution and collection thereof. Arti

cle 4746.

Application of Rev. St. Tex. 1911, art. 4746, providing for payment of 12 per cent. damages and reasonable attorney's fees by insurer, on failure to pay insurance within 30 days after demand therefor, to policy which These provisions, together with others, are constituted a contract of other state, held vio-declared to be conditions upon which foreign lative of full faith and credit clause of federal insurance companies shall be permitted to do Constitution. business within the state and any such corpo

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 45 S.CT.-9

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*393

Court of the state having dismissed an ap*pli-
cation for a writ of error for want of jurisdic-

tion, the writ of error here was issued to the

ration engaged in issuing insurance policies
within the state is deemed to have assented
thereto as a condition precedent to the right
to engage in such business. Article 4972.
The policy in question was issued under intermediate court. Randall v. Commission-
the following circumstances: On December 17, ers, 261 U. S. 252, 43 S. Ct. 252, 67 L. Ed. 637.
The judgment below is challenged upon
1910, H. D. Alexander, manager for the in-
surance company in the state of Tennessee, these grounds: (1) The policy as shown by
took the application of Dunken, then a resi- the undisputed evidence never became a com-
dent of Tennessee, for a seven-year term pol-pleted or binding contract; (2) it was a Ten-
icy. The policy was duly issued in Connecti-nessee or Connecticut contract, and, since un-
cut and delivered in Tennessee to Dunken.
By its terms, at the sole option of the in-
sured, upon any anniversary of its date,
without medical re-examination, it was con-
vertible, among other forms of insurance,
into a 20-payment life commercial policy,
bearing the same date and issued at the same
age, on payment of the difference between the
premiums already paid and those required

#392

under the converted policy. On February *19, 1916, the seven-year policy still being in force, Dunken, in the meantime having moved to Texas, exercised his option and applied to the company for a conversion "in accordance with the conditions" of that policy just stated. His application stipulated that the statements and answers in the original application for the seven-year term policy should be the basis of the new policy and form a

part of the same. The application was mailed to the Tennessee manager and by him for

warded to the home office of the company in

Connecticut. There the old policy was canceled, stamped "Surrendered; new number, 152,755; $10,000," and a 20 payment life commercial policy, bearing the new number and conforming to the express terms of the agreement in the original policy, was issued and forwarded to Alexander in Tennessee for delivery. Alexander sent the policy by mail to Dunken at Waco, Texas, together with a loan note and a form authorizing the company to deduct the 1916 premium from the proceeds of the loan to be signed by him and

der the laws of those states no penalty or
attorney's fee was recoverable, the Texas
statute, as construed and applied, violates
the contract impairment clause, the full faith
and credit clause, and the several clauses of
section 1 of the Fourteenth Amendment of the
federal Constitution; and (3) assuming it to
be a Texas contract, plaintiff having demand-
ed and sued for substantially more than she
recovered, the suit was rightfully defended

and the statute as construed and applied to
that situation violates the same provisions of
the federal Constitution.

[1] Defendant in error moves to dismiss

the writ of error or affirm the judgment of
the state court upon the ground that the as-
serted federal questions are so lacking in
substance as to be frivolous. This motion

must be denied. Other matters aside, the

contention that the contract is controlled by

the law of Tennessee or Connecticut-in

which event the Texas statute in respect of
penalty and attorney's fee as construed and
applied, is unconstitutional-clearly presents
a substantial question under the full faith
and credit clause of the Constitution. Royal
Arcanum v. Green, 237 U. S. 531, 540, 541, 35
S. Ct. 724, 59 L. Ed. 1089, L. R. A. 1916A, 771.
See, also, New York Life Ins. Co. v. Head,
234 U. S. 149, 159, 160, 34 S. Ct. 879, 58 L.
Ed. 1259. And the cause is properly here on
writ of error, under section 237 of the Judi-

cial Code, as amended September 6, 1916, c.

448, 39 Stat. 726 (Comp..St. § 1214). Kans.
City So. Ry. v. Road Imp. Dist. No. 6, 256 U.

S. 658, 41 S. Ct. 604, 65 L. Ed. 1151.

[2] First. Coming then to the merits, the first contention to be considered presents a

*394

returned. Dunken received these documents
in due course of mail and retained the policy,
but did not answer Alexander's letter, pay
the premiums or execute the loan papers. pure question of fact, which was decided
Three months later he died. In the letter against plaintiffs in error by the jury in re-
transmitting the policy Alexander fixed no sponse to specially submitted issues. Upon
time for the execution and return of the loan these issues the jury found that the new pol-
note and authority to deduct the 1916 pre-icy was delivered by an agent of the insur-
mium; nor did he suggest that the delivery ance company as a completed contract with
of the policy was in any way qualified.
There was no further correspondence or no-
tice of any kind from the company. It was
agreed that the demand required by article
4746 of the Texas statute, heretofore cited,
was made by defendant in error. Judgment
was rendered against the company for the
amount of the policy less certain offsets, to-
gether with the statutory penalty of 12 per
cent. and an attorney's fee of $3,000, which
judgment was duly affirmed by the Court of
Civil Appeals. 248 S. W. 165. The Supreme

the intention that it should become effective
and binding from the time of its receipt by
Dunken, and that such delivery as a complet-
ed contract was acquiesced in by an executive
officer of the company. This verdict met with
the concurrence of the trial court, and after
a full review of the evidence, of the appellate
court. The rule is settled that the decision
of a state court upon a question of fact or-
dinarily cannot be made the subject of in-
quiry here. See for example, Missouri, K.
& T. R. Co. v. Haber, 169 U. S. 613, 639, 18

(45 S. Ct.)

S. Ct. 488, 42 L. Ed. 878; Smiley v. Kansas,, ums, the company would grant a paid-up pol196 U. S. 447, 453, 454, 25 S. Ct. 289, 49 L. icy for a proportionate part of the original Ed. 546. To this general rule there are two amount of the policy, it was held that such equally well settled exceptions: paid-up policy when issued was not an independent contract. The court said:

“(1) Where a federal right has been denied as the result of a finding shown by the record to be without evidence to support it, and (2) where a conclusion of law as to a federal right and findings of fact are so intermingled as to make it necessary, in order to pass upon the federal question, to analyze the facts." Nor. Pac. Ry. v. North Dakota, 236 U. S. 585, 593, 35 S. Ct. 429, 432 (59 L. Ed. 735, L. R. A. 1917F, 1148, Ann. Cas. 1916A, 1), and cases cited.

See, also, Truax v. Corrigan, 257 U. S. 312,

324, 325, 42 S. Ct. 124, 66 L. Ed. 254, 27 A. L. R. 375.

"It was simply a continuation of the original contract under the option which gave the holder thereof the right, after two or more annual premiums had been paid, to cease paying the annual premiums and take a paid-up policy in exchange for the first one. It was a change in the mere form of the contract expressly provided for by its own terms. It is true that the first policy, the original evidence of the con

*396

tract between the insured and the com*pany, was 'surrendered to the company and canceled'

when the paid-up policy was issued, but this was simply a part of, and in compliance with, the terms of the original contract. The contract was continued as it provided that it might be, in the form of a paid-up policy, such as was accepted by the defendant. It was not a modification, but a fulfillment of the original contract."

This case comes within the general rule and not within either of the exceptions. The fact decided is that the policy sued up on was delivered as a completed and binding contract. The federal question presented arises from the ruling of the court that The facts were held to justify an opposite the Texas and not the Tennessee statute con- conclusion in Gans v. Etna Life Ins. Co., 214 trols this contract. The asserted federal N. Y. 326, 108 N. E. 443, L. R. A. 1915F, 703. right was not denied as a result of the find-There the original policy contained a proviing of fact; nor are the conclusion in respect of the federal right and the finding interdependent or so intermingled as to cause it to be necessary to consider the latter in order to pass upon the former. That the contract was effective is a fact equally consistent with the determination of the federal question either

way.

#395

*Second. The argument that the policy was not a Texas contract proceeds upon two grounds: (a) That the converted policy became effective, if it ever did, when it was mailed by the company's agent in Tennessee; (b) that the original policy was clearly a Tennessee or Connecticut contract, and the converted policy, being executed under the optional privilege granted by the original contract and in exact compliance with its terms, is a subsidiary and not an independent agreement, and the rights and obligations of the parties are controlled by the law of the orig

inal contract.

sion to the effect that if the insured should commit suicide within one year from the date thereof the policy should be void. It allowed, among other options, an exchange for another policy bearing the same date upon payment of a sum equal to the difference between the premiums actually paid and those which would have been earned by the substituted policy. The substituted policy, however, bore the date of its issue and by its terms the date hereof." It was contended that, since suicide provision ran for "one year from the the assured might have exercised his option so as to have made the date of the original policy the date of the substituted policy, the to that effect. But the court replied that, the option actually exercised should be construed parties having agreed that the date of the new policy should be that of its issue and so made it, and the premium payable being adapted to the kind of policy selected and to the then insuring age of the assured, it must be held to be an independent contract to be construed without reference to the options

not exercised.

[3] We proceed at once to the consideration of the second ground, since if that is well founded it will be unnecessary to consider the Under different circumstances the same first. Whether a subsequent contract made question came before the Supreme Court of in pursuance of the provisions of an earlier Tennessee, in Silliman v. International Life one is to be regarded as separate, detached Ins. Co., 131 Tenn. 303, 174 S. W. 1131, L. R. and independent, or as a continuation and in A, 1915F, 707. There a five-year term policy effect the same, is a matter not always free provided that the insured might at any prefrom difficulty. The question as applied to mium date exchange it for any form of polsubstituted policies of insurance has not icy then in use at the premium fixed by his heretofore arisen in this court and apparent-age at the time of the exchange or at the age ly has seldom arisen in the state courts. In Dannhauser v. Wallenstein, 169 N. Y. 199, in the original policy by paying the *difference 208, 62 N. E. 160, 162, where a 10-payment life policy provided that after the payment of two or more equal premiums, notwithstanding default in payment of subsequent premi

#397

in premiums, etc. The policy contained a provision to the effect that in case of suicide within one year from its date the company should be liable only for the amount of the

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