The New York herald., 1873-11-21
UNITED STATES SUPREME COURT.
WASHINGTON, D. c., Nov. 20, 1873.

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WASHINGTON D. c., Nov. 20, 1873
No. 90. Union Pacific Railroad Company vs.
Fort-Error to the Circuit Court for Nebraska
This was an action to for personal injuries
alleged to have been sustained by the son OF the
defendant in error, by the loss OF an arm while
working in a machine shop OF the company by
reason OF its negligence. The allegation was that
the boy, a lad OF Is, was ordered by the superin-
tendent OF certain machinery to ascend by lad
der to a SHAFT for the purpose OF adjusting belt,
and that while performing this order which was
not within the boys contract OF service, the IN
jury was received. The defence was that the
superintendent and lad were fellow servants In the
employ OF the company. and that the injury was
received while in a common service, the superin-
tendent being careful ana sk1lul person. En0
Court instructed the jury that II the work which
the son was ordered to do was not within his con-
tract OF service, then the superintendent IN
ordering It, If within the scope OF his authority.
the act OF authority was wrongful and negligent,
the company would be liable for the damages
caused, and the principle that the master Is not
liable for the neglect OF O co-empoye IN the same
service has no application to the case. the ver-
oict, unuer ine uIecton oi Tue Court. was ior .no
plaintla IN The court below, and the company
bring the case here contending that there was no
liability in the case under well settled rules. The
rule, in the absence OF statutory authority, as
settled both in England and America, is that the
master is not liable to his servant for Injuries ac-
cruing to him by reason oil the negligence OF fell
low servant engaged in common employment,
except where the master has been guilty OF neg.
lgence in hiring an unskilful and careless SER
want or in continuing an unskilful hand after
ascertainng that he Is such, or when the master
has knowingly provided defective material or ma
ascertaning their defective character. A. J. Pop
pleton for plaintir in error; Redick Briggs for
defendant.
No 1O1 Star OF Hope vs. Church ct al.-AppeaI
rom the Circuit Court for Caifornia-The libel in
this case alleged the shipment by the Star Of Hope,
at New York, of nuts and shelled almonds, under
an agreement for storage in the after cabin, and
averred that they were actually stored IN the hod
in violation OF the contract, and became damaged
in consequence. An amended libel alleged GUS
tom to carry such goods in the cabin. Under
general denial in the answer two questions arose
was there contract t. carry in the StaterOom, ana
was there a custom, in the absence OF a contract,
to so carry such shipments2 The contract for stOr
age claimed was contained In the receipts attacneo
to the bills OF fading, and was not expressed in
those papers. Evidence OF the custom or the trade
tablIshed to the satisfaction OF the Court the de-
cree for the shippers. 1t is here mentioned
that the only contract binding the parties IS the
bill OF lading, and no such contract appearing in
the bill In this parole evidence OF custom could
not be admitted to vary them. The contract being
in writing that alone must govern, and there IS
nothing whatever in the point as TO the custom OF
carrying between decks. To entitIe TO such car
m raSe m III the s o as bonohue for anpe
liant; C. E Whitehead for appellee.
No. 102. Mercantile Mutual Insurance Company
VS.. Folson-Error to the Circuit Court for the
Southern District OF New York.-This was recov-
cry on policy Of marine insurance issued by tho
company upon the schooner B. r. Folsom when
about to depart on a voyage from Boston to Mon
tevideo and Buenos Ayres in January, 1869. Tho
decision below raises the following questions for
review w:-Does marine policy of insurance for one
year from certain date cover total loss OF the
vessel insured which occurs after such date, bus
before the delivery of the policy, where the latter
does not contain the words, "lost or not lost?" 6
1t the duty of the captain ana part owner to COM
municate by the quickest usual means Of c0mmu-
ncaton the loss or the vessel to the other owners.
and does the omission to do 80 render void policy
OF insurance issued alter such loss might by SUCH
means have been communicated May conceal
ment OF the fact be proved by the insurers as de-
fence under the plea OF on-Gssunapsn In an action
on the polcyg Is there presumption in such
O case In iavor OF the insured that he has
communicated to the insurer all the material
facts or that he is ignorant OF material TACT
him ? Is it error for Judge who tries cause
without a Jury under stipulations waving onel to
act OF March ), 1868 The first OF these questions
is undecided by any adludged case: J. =; Carter
for plaintiff in error; Q. A. seward ana Y. Ne
DaCosta Tor defendant.
No. lOs. Manhattan Life Insurance Company vs.
Franclsco-Error to the Circuit Court for Califor
nia--Tnis was an action on contract OF insur-
ance upon the life OF plaintiffs husband. No policy
was issued as the assured died "a hours after the
application was made, and before the policy could
be made out and delivered, OF acute hepatitis, az
testified to by his physician. The physician also tes-
titled that he had attended deceased fora consider
able time three or four years., and had OCCASION
aly prescribed for torpid liver, collie and indiges-
ton The company showed negative answers BY
deceased to several questions relating to the parts
affected by the diseases stated by his physicians,
which, as was claimed, amounted to q denial that
he suffered from any trouble in those parts.
evidence was then adduced by the plaintiff
to SHOW that her husband was seldom sick, and
then only for day or so at time, and tnat he was
regarded by his friends and acquan tances- as ono
OF them testiled--as healthy man. The Court
left the question to the jury to determine whether
there had been concealment and fraud practsed
by the deceased in making answer to the com.
panys questions, and the verdict was for the
plaintiff. 1t is here urged that there was error in
the refusal instruct the jury that the evidence
was not sufficient to entitle the plantin to ver-
dict, ana that other errors were committed IN the
company. Boyle & Barber and G. w. Kendall for
defendant