(219 U. S. 41) PANAMA R. CO. v. BOSSE. (Submitted Jan. 31, 1919. Decided March 3, 1919.) No. 203. 1. Appeal and ERROR QUESTION OF FACT. a crowded thoroughfare in the Canal Zone. The suit was brought in the District Court of the Canal Zone. The defendant, the plaintiff in error, demurred to the declaration generally, and also demurred specifically to that part that claimed damages for pain. The demurrer was overruled *and there was a 1001(1)-REVIEW-trial, at which, after the evidence was in, Whether defendant's negligence was the immediate cause of the injury, depending on the view the jury might take of the facts, will not be considered; there being evidence justifying the verdict. 2. COMMON LAW 14-MASTER'S LIABILITY-INJURY TO THIRD PERSONS-RULE IN CANAL ZONE. the defendant requested the Court to direct a verdict in its favor and, failing that, to instruct the jury that the plaintiff could not recover for physical pain. The instructions were refused, the jury found a verdict for the plaintiff and the judgment was affirmed by the Circuit Court of Appeals. 239 Fed. 303, 152 C. C. A. 291, followed in Panama The rule of master's liability for negligence R. Co. v. Toppin (C. C. A.) 250 Fed. 989. of servant in the scope of his employment can [1] The main question in the case is whethbe applied to accident in the Canal Zone, in viewer the liability of master for servant familiar of change of population and sovereignty; Civ. to the common law can be applied to this Code Republic of Panama, arts. 2341, 2347, accident arising in the Canal Zone. Subordi2349, not being necessarily inconsistent with the nate to that is the one already indicated, common-law rule; the President's order of whether there can be a recovery for physiMarch 8, 1904, continuing the law then in force, cal pain. There is some slight attempt also being merely an embodiment of the rule that a to argue that the defendant's negligence was change of sovereignty does not put an end to existing private law; and the ratification of that not the immediate cause of the injury, but as order by Act Aug. 24, 1912, c. 390, not fasten- that depended upon the view that the jury ing on the zone a specific interpretation of the might take of the facts and as there was eviformer Civil Code, and not overthrowing the dence justifying the verdict, we shall confine principle previously announced by the Supreme ourselves to the two above-mentioned quesCourt of the Zone, that it would look to the tions of law. common law in the construction of the Columbia statutes. [2] By the Act of Congress of April 28, 1904, c. 1758, § 2, 33 Stat. 429, temporary 3. DAMAGES 32-PHYSICAL PAIN-CANAL powers of government over the Canal Zone ZONE. were vested in such persons and were to be Physical pain being a substantial and ap- exercised in such manner as the President preciable part of the wrong done, allowed for should direct. An executive order of the in the customary compensation which the peo- President addressed to the Secretary of War ple of the Canal Zone have been awarded in on March 8, 1904, directed that the power their native courts, was properly considered in of the Isthmian Commission should be exerfixing damages for personal injury from acci-cised under the Secretary's direction. The dent arising in Canal Zone. order contained this passage, "The laws of In Error to the United States Circuit Court the land, with which the inhabitants are of Appeals for the Fifth Circuit. Action by Theodore Bosse against the Panama Railroad Company. Judgment for plaintiff was affirmed by the Circuit Court of Appeals (239 Fed. 303, 152 C. C. A. 291), and defendant brings error. Affirmed. *Messrs. Frank Feuille, of Ancon, Canal Zone, and Jackson H. Ralston and William E. Richardson, both of Washington, D. C., for plaintiff in error. Messrs. Theodore C. Hinckley, of Panama, Canal Zone, and Joseph W. Bailey, of Washington, D. C., for defendant in error. familiar, and which were in force on Feb- "All laws, orders, regulations, and ordinances adopted and promulgated in the Canal Zone by order of the President for the government and Mr. Justice HOLMES delivered the opin- sanitation of the Canal Zone and the construcion of the Court. This is an action for personal injuries and consequent suffering alleged to have been caused, on July 3, 1916, by the Railroad Company's chauffeur's negligent driving of a motor omnibus at an excessive rate of speed in tion of the Panama Canal are hereby ratified and confirmed as valid and binding until Congress shall otherwise provide." On these facts it is argued that the defendant's liability is governed by the Civil Code alone as it would be construed in countries For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes where the civil law prevails and that so con- [ maintained in the Zone to the same extent strued the code does not sanction the application of the rule respondeat superior to the present case. But there are other facts to be taken into account before a decision can be reached. On December 5, 1912, acting under the authority of the before-mentioned Act of August 24, 1912, § 3 (Comp. St. § 10039), the President declared all the land within the limits of the Canal Zone to be necessary for the construction, etc., of the Panama Canal and directed the Chairman of the Isthmian Commission to take possession of it, with provisions for the extinguishment of all adverse claims and titles. It is admitted by the plaintiff in error that the Canal Zone at the present time is peopled only by the employés of the Canal, the Panama Railroad, and the steamship lines and oil companies permitted to do business in the Zone under license. If it be true that the Civil Code would have been construed to exclude the defendant's liability in the present case if the Zone had remained within the jurisdiction of Columbia it does not follow that the liability is no greater as things stand now. The President's order continuing the law then in force was merely the embodiment of the rule that a change of sovereignty does not put an end to existing private law, and the ratification of that order by the Act of August 24, 1912, no more fastened upon the Zone a specific interpretation of the former Civil *Code than does a statute adopting the common law fasten upon a territory a specific doctrine of the English Courts. Wear v. Kansas, 245 U. S. 154, 157, 38 Sup. Ct. 55, 62 L. Ed. 214, Ann. Cas. 1918B, 586. Probably the general ratification did no more than to supply any power that by accident might have been wanting. Honolulu Rapid Transit & Land Co. v. Wilder, 211 U. S. 137, 142, 29 Sup. Ct. 44, 53 L. Ed. 121. In the matter of personal relations and duties of the kind now before us the supposed interpretation would not be a law with which the present "inhabitants are familiar," in the language of the President's order, but on the contrary an exotic imposition of a rule opposed to the common understanding of men. For whatever may be thought of the unqualified principle that a master must answer for the torts of his servant committed within the scope of his employment, probably there are few rules of the common law so familiar to all, educated and uneducated alike. As early as 1910 the Supreme Court of the Canal Zone announced that it would look to the common law in the construction of the Columbia statutes. Kung Ching Chong v. Wing Chong, 2 Canal Zone Sup. Ct. Rep. 25, 30, and following that announcement, in January, 1913, held that "at least so far as the empresarios of railroads are concerned" the liability of master for servant would be as recognized by the common law. Fitzpatrick v. Panama Railroad Co., 2 Canal Zone Sup. Ct. Rep. 111, 121, 128. The principle certainly was not overthrown by the Act of 1912. It is not necessary to dwell upon the drift toward the common law doctrine noticeable in some civil law jurisdictions at least, or to consider how far we should go if the language of the Civil Code were clearer than it is. It is enough that the language is not necessarily inconsistent with the common law rule. By article 2341, in the beforementioned translation: "He who shall have been guilty of an offense or fault, which has caused another damage, is obliged to repair it, without prejudice to the principal penalty which the law imposes. By article 2347: "Every person is liable not only for his own acts for the purpose of the indemnity of damage, but also for the acts of those who may be under his care," illustrating by the cases of father, tutor, husband, etc.' By article 2349: "Masters shall be responsible for the damage caused by their domestics or servants, on the occasion of a service rendered by the latter to the former; but they shall not be responsible if it be proved or appear that on such occasion the domestics or servants conducted themselves in an improper manner, which the masters had no means to foresee or prevent by the employthority; in such case all responsibility for the ment of ordinary care and the competent audamage shall fall upon said domestics or servants." The qualification in this last article may be taken to refer to acts outside the scope of the employment. It cannot refer to all torts, for that would empty the first part of meaning. A master must be taken to foresee that sooner or later a servant driving a motor will be likely to have a collision, which a jury may hold to have been due to his negligence, whatever care has been used in the employment of the man. We are satisfied that it' would be a sacrifice of substance to form if we should reverse a decision, the principle of which has been accepted by all the judges accustomed to deal with the locality, in deference to the possibility that a different interpretation might have been reached if the Civil Code had continued to regulate a native population and to be construed by native Courts. It may be that they would not have distinguished between a negligent act done in the performance of the master's business and a malicious one in which the servant went outside of the scope of that for which he was employed. But we are by no means sure that they would not have decided as we decide. At all events we are of opinion that the ruling was correct. As we do not rely for our conclu- | against the Chicago Great Western Railsion upon a *Columbia act specially concern-road Company. From a judgment of the ing the empresarios of railroads, we do not Supreme Court of Iowa, affirming judgment discuss a suggestion, made only, it is said, for plaintiff (178 Iowa, 998, 154 N. W. 1019, to show that the act is inapplicable, to the rehearing denied 157 N. W. 192), defendant effect that the charter of the Railroad Com- brings error; a second petition to rehear pany did not grant the power to operate the having been denied. Writ dismissed. omnibus line. The company was acting under the authority and direction of General Goethals and we do not understand that the defence of ultra vires is set up or could prevail. Messrs. George H. Carr, Fred P. Carr, and O. M. Brochett, all of Des Moines, Iowa, for plaintiff in error. Messrs. Thomas A. Cheshire and Howard fendant in error. *Mr. Justice PITNEY delivered the opinion of the Court. [3] In view of our conclusion upon the J. Clark, both of Des Moines, Iowa, for demain point but little need be said with re gard to allowing pain to be considered in fixing the damages. It cannot be said with certainty that the Supreme Court of the Zone was wrong in holding that under the Civil Code damages ought to be allowed for physical pain. Fitzpatrick v. Panama Railroad Co., 2 Canal Zone Sup. Ct. Rep. 111, 129, 130; McKenzie v. McClintic-Marshall Construction Co., 2 Canal Zone Sup. Ct. Rep. 181, 182. Physical pain being a substantial and appreciable part of the wrong done, allowed for in the customary compensation which the people of the Zone have been awarded in their native courts, it properly was allowed here. Judgment affirmed. (249 U. S. 164) CHICAGO GREAT WESTERN R. CO. v. BASHAM. [1] This is a writ of error directed to the court of last resort of a state since the taking effect of the Act of September 6, 1916, c. 448, 39 Stat. 726, by the second section of which section 237, Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1156 [Comp. St. § 1214]), was so amended that the revisory jurisdiction of this Court over the decisions of state courts, exercisable by writ of error, was confined to cases involving the validity of a treaty or statute of, or an authority exercised under the United States, the decision being against their validity, or involving the validity of a statute of, or an authority exercised under a state, on the ground of repugancy to the Constitution, treaties, or laws of the United States, the decision being in favor of their validity; and by which the final judgment or decree of a state court of last resort based upon a decision adverse (Submitted Dec. 19, 1918. Decided March 3, to a right or immunity claimed under the 1. COURTS 1919.). No. 111. 391(1)-CERTIORARI. Under Judicial Code, § 237, as amended by Act Sept. 6, 1916, § 2 (Comp. St. § 1214), allowing review in cases in which writ of error is not permissible by certiorari or otherwise, the words "or otherwise" add nothing of substance to the thought expressed by the new act. 2. COURTS 391(1)-STATE SUPREME COURT WRIT OF ERROR OR CERTIORARI SAVING CLAUSE. A judgment of the Iowa Supreme Court, by its subject-matter not reviewable on writ of error, within Judicial Code, § 237, as amended by Act Sept. 6, 1916, § 2 (Comp. St. § 1214), is not within section 7 of the act of 1916, which saved for six months right under existing law to review judgments entered before act took effect, where, though judgment was entered before act took effect, petition for rehearing was not decided until thereafter. Constitution or a statute of the United States, previously reviewable by writ of error, was (with other kinds specified) made reviewable only in case this court, in the exercise of its discretionary authority, should require, “by writ of certiorari or otherwise," that the judgment be certified to it for review. See Phila. & Reading C. & I. Co. v. Gilbert, 245 U. S. 162, 38 Sup. Ct. 58, 62 L. Ed. 221; Ireland v. Woods, 246 U. S. 323, 328, 38 Sup. Ct. 319, 62 L. Ed. 745. The words "or otherWise" add nothing of substance to the thought expressed by the new act. Huguley Mfg. Co. v. Galeton Cotton Mills, 184 U. S. 290, 295, 22 Sup. Ct. 452, 46 L. Ed. 546. [2] In the case before us the questions raised by the record and assignments. of error relate wholly to the alleged denial by the Supreme Court of Iowa of certain rights and immunities asserted by plaintiff in error under the Act of Congress approved April 22, 1908, commonly known as the Employers' In Error to the Supreme Court of the Liability Act (35 Stat. 65 c. 149 [Comp. St. State of Iowa. §§ 8657-8665]; Act April 5, 1910, 36 Stat. 291, c. 143). Hence, under the new system Action by L. W. Basham, administrator of established by the Act of 1916, the judgment the estate of John J. Spellman, deceased, is in the class *of those that are reviewable For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 165 *166 in this court not by writ of error but by of, and until then the judgment previously writ of certiorari. rendered cannot be regarded as a final judg case: "If it were not so a judgment of a state court susceptible of being reviewed by this court would, notwithstanding that duty, be open at the same time to the power of a state court to review and reverse." Andrews v. Virginian Ry. Co., 248 U. S. 272, 39 Sup. Ct. 101, 63 L. Ed. 236, decided January 7, 1919. By section 7 of the latter act it was provid-ment within the meaning of the act of Coned that the right of review under existing laws gress. We said recently in an analogous in respect of judgments entered before the act took effect (October 6, 1916) should remain unaffected for the period of six months thereafter, but at the end of that time should cease. The present writ of error was applied for within the six-months period-December 19, 1916-and the question whether our jurisdiction is properly invoked by this form of writ depends upon whether the judgment sought to be reviewed was "entered before this act takes effect" within the meaning of section 7. (249 U. S. 86) UNITED STATES v. DOREMUS. (Submitted Jan. 16, 1919. Decided March 3, It results that in the present case the judgment of the Supreme Court of Iowa did not become a "final judgment" until December 18, 1916, and by reason of the naThe action was brought against the rail-ture of the only federal questions raised in way company in a district court to recover the record it then was reviewable in this damages for the death of plaintiff's intes- court only by writ of certiorari, because of tate, and a trial by jury resulted in a verdict the above-cited provisions of the act of 1916. and judgment for the plaintiff. Defendant Writ of error dismissed. appealed to the Supreme Court of Iowa, and that court on November 26, 1915, delivered an opinion for affirmance (Basham v. Chicago G. W. Ry. Co., 178 Iowa, 998, 154 N. W. 1019), and judgment was entered accordingly. A petition for a rehearing was filed, which, after consideration, was overruled April 7, 1916 (Basham v. Chicago G. W. R. Co., 178 Iowa, 998, 157 N. W. 192), and a writ of procedendo was awarded. Thereafter a second petition for rehearing was filed, and, having been fully considered, was overruled on December 18, 1916, and judgment to that Harrison Narcotic Drug Act, § 2 (Comp. effect duly entered. The petition for allow- St. § 6287h), aiming to confine, by imposition ance of a writ of error from this court, pre- of penalties, sales of narcotic drugs to regissented on the following day to the Chief Jus-tered dealers, to those dispensing them as phytice of the Supreme Court of Iowa, averred sician and those coming to dealers with legitimate prescriptions of physicians, inserted in an that the final order and judgment affirming act specifically providing for the raising of revethe judgment of the district court was enter-nue, by excise tax on such dealers and others ed by the Supreme Court on the 18th day of December, 1916; and for review of this judgment a writ of error was prayed for and allowed. We think this was a correct statement of the effective date of the judgment sought to be reviewed. Section 237, Judicial Code, both before and since the amendment of September 6, 1916, permits of the review by this court only of the final judgment or decree of the highest state court in which a decision in the suit could be had. It is only a judgment marking the conclusion of the course of litigation in the courts of the state that is subjected to our review. Hence, whatever its form of finality, if a judgment be in fact subject to reconsideration and review by the state court of last resort through the medium of a petition for rehearing, and such a petition is presented to and entertained and considered by that court, we must take it that by the practice prevailing in the state the litigation is not brought to a conclusion until this petition is disposed 1919.) No. 367. POISONS 2-HARRISON NARCOTIC DRUG ACT-VALIDITY. named in section 1 (section 6287g), has such relation to facilitating the collection of the revenue as to be within the power of Congress under the authority given it by Const. art. 1, § 8, to impose excise taxes, and is not a mere attempt to exercise a power not delegated, the reserved police power of the states. The Chief Justice, Mr. Justice McKenna, Mr. Justice Van Devanter, and Mr. Justice McReznolds dissenting. In Error to the District Court of the United States for the Western District of Texas. C. T. Doremus was indicted for violating the Harrison Drug Act. Demurrer to indictment was sustained (246 Fed. 958), and the United States brings error. Reversed. Mr. Assistant Attorney General Porter and Mr. W. C. Herron, of Washington, D. C., for the United States. *Mr. Justice DAY delivered the opinion of the Court. Doremus was indicted for violating section For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 2 of the so-called Harrison Narcotic Drug Act. Act Dec. 17, 1914, c. 1, 38 Stat. 785 (6 U. S. Comp. Stat. 1916, § 6287g). Upon de murrer to the indictment the District Court held the section unconstitutional for the reason that it was not a revenue measure, and was an invasion of the police power reserved to the states. 246 Fed. 958. The case is here under the Criminal Appeals Act March 2, 1907, c. 2564, 34 Stat. 1246 (Comp. St. § 1704). There are ten counts in the indictment. The first two were treated by the court below as sufficient to raise the constitutional question decided. The first count in substance charges that: Doremus, a physician, duly registered, and who had paid the tax required by the first section of the act, did unlawfully, fraudulently, and knowingly sell and give away and distribute to one Ameris a certain quantity of heroin, to wit, five hundred onesixth grain tablets of heroin, a derivative of opium, the sale not being in pursuance of a written order on a form issued on the blank furnished for that purpose by the Commis sioner of Internal Revenue. The second count charges in substance that: Doremus did unlawfully and knowingly sell, dispense and distribute to one Ameris five hundred one-sixth grain tablets of heroin not in the course of the regular professional practice of Doremus and not for the treatment of any disease from which Ameris was suffering but as was well known by Doremus, Ameris was addicted to the use of the drug as a habit, being a person popularly known as a "dope fiend," and that Doremus did sell, dispense, and distribute the drug, heroin, to Ameris for the purpose of gratifying his appetite for the drug as an habitual user thereof. issued in blank for that purpose by the Commissioner of Internal Revenue. Every person who shall accept any such order, and in pursuance thereof shall sell, barter, exchange, or give away any of the aforesaid drugs, shall preserve such order for a period of two years in such a way as to be readily accessible to inspection by any officer, agent, or employee of the Treasury Department duly authorized for that purpose, and the state, territorial, district, municipal, and insular officials named in section five of this act. Every person who shall give an order as herein provided to any other person for any of the aforesaid drugs shall, at or before the time of giving such order, make or to be issued in blank for that purpose by the cause to be made a duplicate thereof on a form Commissioner of Internal Revenue, and in case of the acceptance of such order, shall preserve such duplicate for a period of two years in such a way as to be readily accessible to inspection by the officers, agents, employees, and officials hereinbefore mentioned. Nothing contained in this section shall apply "(a) To the dispensing or distribution of any of the aforesaid drugs to a patient by a physician, dentist, or venterinary surgeon regularly registered under this act in the course of his professional practice only: Provided, that such physician, dentist, or veterinary surgeon shall keep a record of all such drugs dispensed or distributed, showing the amount dispensed or distributed, the date and the *name and address of the patient to whom such drugs are dispensed or distributed, except such as may be dispensed or distributed to a patient upon whom such physician, dentist or veterinary surgeon shall personally attend; and such record shall be kept for a period of two years from the date of dispensing or distributing such drugs, subject to inspection, as provided in this act. "(b) To the sale, dispensing, or distribution of any of the aforesaid drugs by a dealer to a consumer under and in pursuance of a written prescription issued by a physician, dentist, or veterinary surgeon registered under this act: Provided, however, that such prescription shall be dated as of the day on which signed and shall be signed by the physician, dentist, or veterinary provided further, that such dealer shall preserve such prescription for a period of two years from the day on which such prescription is filled in such a way as to be readily accessible to inspection by the officers, agents, employees, and officials hereinbefore mentioned." Section 1 of the act (section 6287g) requires persons who produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away opium or cocoa leaves or any compound, manufacture, salt, derivative or preparation thereof, to register with the col-surgeon who shall have issued the same: And lector of internal revenue of the district his name or style, place of business, and place or places where such business is to be carried on. At the time of such registry every person who produces, imports, manufactures, compounds, deals in, dispenses, sells, distributes, or gives away any of the said drugs It is made unlawful for any person to obis required to pay to the collector a special tain the drugs by means of the order forms tax of $1 per annum. It is made unlawful for any purpose other than the use, sale or for any person required to register *under the distribution thereof by him in the conduct of terms of the act to produce, import, manufac- a lawful business in said drugs, or the legitture, compound, deal in, dispense, sell, dis-imate practice of his profession. tribute, or give away any of the said drugs It is apparent that the section makes sales without having registered and paid the special tax provided in the act. Section 2 (section 6287h) provides in part: "It shall be unlawful for any person to sell, barter, exchange, or give away any of the aforesaid drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be of these drugs unlawful except to persons *92 |