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Opinion of the Court.

sons alike under the same conditions and circumstances, and that any fact which produces an inequality of condition and a change of circumstances justifies an inequality of charge. These traffic acts do not appear to be as comprehensive as our own, and may justify contracts which with us would be obnoxious to the long and short haul clause of the act, or would be open to the charge of unjust discrimination. But so far as relates to the question of “undue preference,” it may be presumed that Congress, in adopting the language of the English act, had in mind the constructions given to these words by the English courts, and intended to incorporate them into the statute. McDonald v. Hovey, 110 U. S. 619.

There is nothing in the objection that party-rate tickets afford facilities for speculation and that they would be used by ticket brokers or “scalpers” for the purpose of evading the law. The party-rate ticket, as it appears in this case, is a single ticket covering the transportation of ten or more persons, and would be much less available in the hands of a ticket broker than an ordinary single ticket, since it could only be disposed of to a person who would be willing to pay two-thirds of the regular fare for that number of people. It is possible to conceive that party-rate tickets may, by a reduction of the number for whom they may be issued, be made the pretext for evading the law, and for the purpose of cutting rates, but should such be the case, the courts would have no difficulty in discovering the purpose for which they were issued, and apply. ing the proper remedy.

Upon the whole, we are of the opinion that party-rate tickets, as used by the defendant, are not open to the objections found by the Interstate Commerce Commission, and are not in violation of the act to regulate commerce, and the decree of the court below is, therefore,

Affirmed.

Statement of the Case.

MUTUAL LIFE INSURANCE COMPANY v. HILLMON.

MUTU AL LIFE INSURANCE COMPANY v. HILLMON.

NEW YORK LIFE INSURANCE COMPANY v. HILL

MON.

CONNECTICUT MUTUAL LIFE INSURANCE COM

PANY v. HILLMON.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE

DISTRICT OF KANSAS.

Nos. 181, 182, 183, 184. Argued March 2, 3, 1892. - Decided May 16, 1892.

Under Rev. Stat, § 921, a court of the United States may order actions

against several insurers of the same life, in which the defence is the

same, to be consolidated for trial, against their objection. The consolidation for trial, under Rev. Stat. & 921, of actions against several

defendants, does not impair the right of each to three peremptory chal.

lenges under $ 819. The intention of a person, when material, may be proved by contempora

neous declarations in his letters, written under circumstances precluding

a suspicion of misrepresentation. Upon the question whether a person left a certain place with a certain other

person, letters written and mailed by him at that place to his family, shortly before the time when other evidence tends to show that he left the place, and stating his intention to leave it with that person, are competent evidence of such intention.

On July 13, 1880, Sallie E. Hillmon, a citizen of Kansas, brought an action against the Mutual Life Insurance Company, a corporation of New York, on a policy of insurance, dated December 10, 1878, on the life of her husband, John W. Hillmon, in the sum of $10,000, payable to her within sixty days after notice and proof of his death. On the same day the plaintiff brought two other actions, the one against the New York Life Insurance Company, a corporation of New York, on two similar policies of life insurance, dated respectively November 30, 1878, and December 10, 1878, for the sum of

Statement of the Case.

$5000 each; and the other against the Connecticut Mutual Life Insurance Company, a corporation of Connecticut, on a similar policy, dated March 4, 1879, for the sum of $3000.

In each case, the declaration alleged that Hillmon died on March 17, 1879, during the continuance of the policy, but that the defendant, though duly notified of the fact, had refused to pay the amount of the policy, or any part thereof; and the answer denied the death of Hillmon, and alleged that he, together with John H. Brown and divers other persons, on or before November 30, 1878, conspiring to defraud the defendant, procured the issue of all the policies, and afterwards, in March and April, 1879, falsely pretended and represented that IIillmon was dead, and that a dead body which they had pro cured was his, whereas in reality he was alive and in hiding.

On June 14, 1882, the following order was entered in the three cases: “It appearing to the court that the above-entitled actions are of like nature and relative to the same question, and to avoid unnecessary cost and delay, and that it is reasonable to do so, it is ordered by the court that said actions be, and the same are hereby, consolidated for trial.” To this order the defendants excepted.

On February 29, 1888, after two trials at which the jury had disagreed, the three cases came on for trial, under the order of consolidation. Each of the defendants moved that the order be set aside, and each case tried separately. But the court overruled the motion, and directed that, pursuant to that order, the cases should be tried as one cause; and to this each defendant excepted.

At the empanelling of the jury, each defendant claimed the right to challenge peremptorily three jurors. But the court ruled that, the cases having been consolidated, the defendants were entitled to three peremptory challenges only; and, after each defendant had peremptorily challenged one juror, ruled that none of the defendants could so challenge any other jurors : and to these rulings each defendant excepted.

At the trial the plaintiff introduced evidence tending to show that on or about March 5, 1879, Hillmon and Brown left Wichita in the State of Kansas, and travelled together through

Statement of the Case.

a

Southern Kansas in search of a site for a cattle ranch ; that on the night of March 18, while they were in camp at a place called Crooked Creek, Hillmon was killed by the accidental discharge of a gun; that Brown at once notified persons living in the neighborhood; and that the body was thereupon taken to a neighboring town, where, after an inquest, it was buried. The defendants introduced evidence tending to show that, the body found in the camp at Crooked Creek on the night of March 18 was not the body of Hillion, but was the body of one Frederick Adolph Walters. Upon the question whose body this was, there was much conflicting evidence, including photographs and descriptions of the corpse, and of the marks and scars upon it, and testimony to its likeness to Hillmon and to Walters.

The defendants introduced testimony that Walters left his home at Fort Madison in the State of Iowa in March, 1878, and was afterwards in Kansas in 1878, and in January and February, 1879 ; that during that time his family frequently received letters from him, the last of which was written from Wichita; and that he had not been heard from since March, 1879. The defendants also offered the following evidence:

Elizabeth Rieffenach testified that she was a sister of Frederick Adolph Walters, and lived at Fort Madison ; and thereupon, as shown by the bill of exceptions, the following proceedings took place:

“Witness further testified that she had received a letter written from Wichita, Kansas, about the 4th or 5th day of March, 1879, by her brother Frederick Adolph; that the letter was dated at Wichita, and was in the handwriting of her brother; that she had searched for the letter, but could not find the same, it being lost; that she remembered and could state the contents of the letter.

* Thereupon the defendants' counsel asked the question : ‘State the contents of that letter.' To which the plaintiff objected, on the ground that the same is incompetent, irrelevant, and hearsay. The objection was sustained, and the defendants duly excepted. The following is the letter as stated by witness:

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Statement of the Case.

“ Wichita, Kansas, “ March 4th or 5th or 3d or 4th I don't know 1879. “Dear sister and all: I now in my usual style drop you a few lines to let you know that I expect to leave Wichita on or about March the 5th, with a certain Mr. Hillmon, a sheeptrader, for Colorado or parts unknown to me. I expect to see the country now. News are of no interest to you, as you are not acquainted here. I will close with compliments to all inquiring friends. Love to all.

“I am truly your brother,

FRED. ADOLPH WALTERS."

Alvina D. Kasten testified that she was twenty-one years of age and resided in Fort Madison; that she was engaged to be inarried to Frederick Adolph Walters; that she last saw him on March 24, 1878, at Fort Madison ; that he left there at that time, and had not returned; that she corresponded regularly with him, and received a letter about every two weeks until March 3, 1879, which was the last time she received a letter from him; that this letter was dated at Wichita, March 1, 1879, and was addressed to her at Fort Madison, and the envelope was postmarked “Wichita, Kansas, March 2, 1879;” and that she had never heard from or seen him since that time.

The defendants put in evidence the envelope with the postmark and address; and thereupon offered to read the letter in evidence. The plaintiff objected to the reading of the letter, the court sustained the objection, and the defendants excepted.

This letter was dated “Wichita, March 1, 1879,” was signed by Walters, and began as follows:

“Dearest Alvina: Your kind and ever welcome letter was received yesterday afternoon about an hour before I left Emporia. I will stay here until the fore part of next week, and then will leave here to see a part of the country that I never expected to see when I left home, as I am going with a man by the name of Hillmon, who intends to start a sheep ranch, and as he promised me more wages than I could make at anything else I concluded to take it, for a while at least,

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