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and to whom delivered, as well as a receipt from the person to whom the same was delivered; that the last-named book of interstate shipments was not open to public inspection at any time, except in response to legal process issued under the authority of any State or federal court, or to any officer or agent of the federal government, or of any State Or territory, in the exercise of his powers, or to any official or other duly authorized person seeking such information for the prosecution of persons charged with, or suspected of, crime, and that many competing dealers, by wholesale and retail, in intoxicating liquors, shipped their goods from places Without the state of Kentucky to persons at or in the city of Bowling Green. It was further stipulated that on the day in question E. H. Porter, a private citizen of Bowling Green, holding no official position, entered the local office of the Adams Express Company and requested of White, its agent, to be shown the record of interstate shipments of intoxicating liquors, above described, showing the shipments of liquors from places without the state of Kentucky consigned to persons at or in the city of Bowling Green, Ky.; that Porter's request was refused by White, as agent, and the record of interstate shipments was not shown to Porter; and that White, as agent at the time, expressly relied upon, and still relies upon, the provision of the act of Congress entitled “An act to regulate commerce,” approved February 4, 1887 (24 Stat. 379, c. 104), together with the amendment thereto, knoWn aS the Mann-Elkins Act, passed June 18, 1910, and entitled “An act to Create COmmerce court, and amending the act entitled ‘An act to regulate commerce, approved February 4, 1887, as theretofore amended, and for other purposes.” He relied particularly upon that provision of the Mann-Elkins Act which provides that it shall be unlawful for any common carrier, subject to the provisions thereof, or any agent of such carrier, knowingly to disclose to any person other than the shipper or consignee any information concerning the nature, kind, quality, destination, consignee, or routing of any property tendered or delivered to such carrier for interstate transportation, which inspection might be used to the detriment or prejudice of such shipper or consignee, or which might improperly disclose his business transactions to a competitor, under penalty of a fine of not more than $1,000. The Warrant was issued under the authority of section 3 of chapter 7 of the act of the Kentucky Legislature, approved March 9, 1914, which reads as follows:
“All railroad, express or other transportation companies within this state, within the state, or doing business within this state, are hereby required to keep at each local office in territory within which the sale of intoxicating liquors for beverage purposes is prohibited by any law, a separate book, in which shall be entered imme
diately upon receipt thereof, truthful statements |
of the amount and kind of liquor received, the name and address of the consignor, the name and address of the consignee, the purpose for which said liquor is intended to be used, as Stated upon the outside of the package containing such liquor; the date when received, the date when delivered, and by whom and to whom delivered; after which record shall be a blank space in which the consignee, by himself or his agent, shall be required to sign his true name before such liquors are delivered to such consignee or his agent, which book shall be open to public inspection at any time during the business hours of said company. Such book shall constitute prima facie evidence as to the facts therein stated, and be admissible as evidence in any court in this state. Any railroad, express or other transportation company, or any employé or agent thereof who fails, neglects, or refuses to comply with the provisions of this section, or who makes, or causes to be made any false entry in said book, shall be deemed guilty of a misdemeanor, and for each offense shall be punished by a fine of not less than fifty dollars, nor more than two hundred dollars, or imprisoned in the county jail not less than thirty days nor more than six months, or both such fine and imprisonment, in the discretion of the jury.” Acts 1914, p. 27; Carroll's Statutes 1915, § 2569b, subsec. 3.
The Mann-Elkins Law, passed June 18, 1910, as an amendment to the Interstate Commerce Act of 1887, provides in part as follows:
“It shall be unlawful for any common carrier subject to the provisions of this act, or any officer, agent or employé of such common carrier, or for any other person or corporation lawfully authorized by such common carrier to receive information therefrom, knowingly to disclose to or permit to be acquired by any person or corporation other than the shipper or consignee, without the consent of such shipper or consignee, any information, concerning the nature, kind, quantity, destination, consignee, or routing, of any property tendered or delivered to such common carrier for interstate transportation, which information may be used to the detriment or prejudice of such shipper or consignee, or which may disclose his business transactions to a competitor;” etc.
That act further provides that any information Of the character above described may be obtained by any officer or agent of the government of the United States, or of any state, in response to any legal process, and imposes a penalty of not more than $1,000 for a violation thereof.
Unquestionably, the Mann-Elkins Act was designed for the protection of interstate commerce, and Was an extension of the original Interstate Commerce Act of 1887. Under the operation of the original act of 1887, it was found that great abuses existed, and to prevent those abuses and to protect shippers from the injury resulting from the improper acts of the common carrier in disclosing information as to the transactions of shippers to their competitors, the amendment above referred to Was enacted.
 The federal act, however, could apply. Only to interstate shipments; and, by its. terms, it does not pretend to control intraState Shipments. On the other hand, the Kentucky Statute of 1914, supra, under which this prosecution arose, applies to intrastate shipments, and could not affect in
terstate shipments, unless the federal law, approved March 1, 1913, known as the WebbKenyon Act, had the effect of withdrawing interstate shipments of liquor from the protection afforded to interstate shipments by the federal Constitution, and made them subject to the state laws. The Webb-Renyon Law reads as follows:
“An act divesting intoxicating liquors of their interstate character in certain cases.
“Be it enacted, etc., that the shipment or transportation, in any manner or by any means whatsoever, of any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one state, territory, or district of the United States, or place noncontiguous to but subject to the jurisdiction thereof, into any other state, territory, or district of the United States, or place noncontiguous to but subject to the jurisdiction thereof, or from any foreign country into any state, territory, or district of the United States, or place noncontiguous to but subject to the jurisdiction thereof, which said spirituous, vinous, malted, fermented, or other intoxicating liquor is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such state, territory, or district of the United States, or place noncontiguous to but subject to the jurisdiction thereof, is hereby prohibited.”
It Will be observed that by this express provision of the Webb-Kenyon Law only such interstate shipments are thereby prohibited as are “intended by any person interested therein, to be received, possessed, sold, or in any manner used, * * * in Violation of any law of such state.” The Webb-Renyon LaW puts beyond the protection afforded interstate commerce any intoxicating liquor shipped into the state to be sold or in any manner used in Violation of a law of this State. Palmer V. Express Co., 129 Tenn. 116, 165 S. W. 236; State v. Doe, 92 Kan. 212, 139 Pac. 1169; State v. Express Co., 164 Iowa, 112, 145 N. W. 451; United States v. Oregon-Washington R. & N. Co. (D. C.) 210 Fed. 378; Van Winkle V. State (Del.) 91 Atl. 385; Ex parte Peede (Tex. Cr. App.) 170 S. W. 749; Southern Express Co. v. State (Ala.) 66 South. 115; State of West Virginia V. Adams Express Co., 219 Fed. 802, 135 C. C. A. 464.
 Before the passage of the Webb-Renyon LaW all interState Shipments Were under the protection of the commerce clause of the federal Constitution, and they must so remain, except to the extent they have been taken Out Of that protection by the WebbKenyon Law; and, since that law specifies the character of the Shipment designed to be taken from under the protecting clause, to wit, liquors intended to be received, possessed, sold, or in any manner used in violation
of any law of a state, it was manifestly not.
the intention of Congress to remove this protection from any other character of shipment. The question, therefore, for decision in
toxicating liquors shipped from points outside of the state of Kentucky and received at Bowling Green, Ky., and concerning which the record in question was kept, were, by the operation of the Webb-Kenyon Law, divested of the protection afforded to interstate shipments by the federal Constitution. Obviously, such shipments are not divested of that protection, unless they are intended to be
| received, possessed, Sold, Or in Some manner ” The Weather was Warm, the Cent. Dig. §§ 1300–1302; Dec. Dig. Q:515.]
used in violation of a state law.  But all shipments of intoxicating liquors into Kentucky are not prohibited by law. It is not unlawful for one to buy, Where it is lawful to sell it, intoxicating liquor for his OWn use and bring it into Kentucky, or to have liquor so purchased in his possession, for such use. Adams Express Co. v. Commonwealth, 154 Ky. 471, 157 S. W. 908, 48 L. R. A. (N. S.) 342. In the Case last above cited We said: “The result of our views on the whole case is that whether a carrier of an interstate shipment of liquor subjects itself to punishment or not depends on the use to which the person to whom it delivers liquor intends to put it. If this use violates a law of the state, then the carrier may be punished; if it does not, the carrier has not committed any offense. A further result is that the guilt or innocence of the carrier becomes in each case a question of fact to be determined as are other disputed issues of fact under our law.” See, also, Adams Express Co. V. Commonwealth, 160 Ky. 66, 169 S. W. 603, and Adams Express Co. v. Kentucky, 238 U. S. 190, 35 Sup. Ct. 824, 59 L. Ed. 1267, decided June 14, 1915.  The protection of the commerce clause still attaches to all lawful interstate shipments of liquor; and, to bring the transaction involved in this controversy within the operation of the Webb-Kenyon Law, and divest it of the protection of the commerce clause of the Constitution, the Court Would have to presume, without proof, that the book which Porter requested to see contained a record of shipments of liquor intended to be received, possessed, Sold, or in some manner used in violation of the law of Kentucky. But, under well-established principles of law, the contrary presumption must prevail in the absence of proof, and there is no proof here as to the character of the shipment. The carrier must take notice of the use for which the liquor is intended, and if this use Will violate the law of the state at the place of delivery, it may refuse to accept the shipment, or, having received it, may refuse to deliver it. But, as above stated, in the abSence of proof upon the Subject, it must be presumed that the carrier did not violate the state law, and consequently that the record in question is a record of shipments of liquors for lawful purposes.  It follows, therefore, under the record before us, that the shipments in question must be treated as if they were lawful, and, consequently, fully invested with the proteccommerce clause of the Constitution, and that the agent Of the express company could not lawfully disclose to a private citizen any
information concerning said shipments, ex
cept with the consent of the consignor and the consignee. Judgment affirmed.
MASSACHUSETTS BONDING & INSURANCE CO. V. DUNCAN.
(Court of Appeals of Kentucky. Nov. 4, 1915.)
1. INSURANCE Q->646 – APPLICATION – ANSWERS–PRESUMPTION. Where an applicant for insurance makes categorical answers to the questions in the application, it will be presumed that such answers supply the company with all the information reGuired by it for determining the acceptance or rejection of the risk. [Ed. Note.—For other cases, see Insurance, # Dig. §§ 1555, 1645–1668; Dec. Dig. Q:
2. INSURANCE &291 – APPLICATION—LoCAL OR CONSTITUTIONAL DISEASE—VULNERABILITY-DISTINCTION. Where, in an application for insurance, there was no direct question as to family history, or whether applicant was afflicted with hemorrhagic diathesis, answers by applicant, whereby he represented that he did not then and had not had during the past year any local or constitutional disease, were not a material misrepresentation of fact, in the absence of any knowledge on his part that his tendency to bleed excessively was due to such diathesis, since his affliction, though congenital, Was a vulnerability, and not a disease. [Ed. Note.—For other cases, see Insurance, # Dig. §§ 681–690, 694–696; Dec. Dig. Q:
3. INSURANCE (3:668—APPLICATION-MENTAL AND PHYSICAI. CoMDITION.—ANSWER—QUESTION FOR JURY. Where, in answer to the question in an application for accident insurance, applicant said that he was in sound condition mentally and physically, he did not mean that he was as sound as the strongest, or even the average, man, since the question related only to his own condition, as measured by what it had been theretofore, and the question whether such answer was truthful on the part of applicant was for the jury. [Ed. Note.—For other cases, see Insurance, # Dig. §§ 1556, 1732–1770; Dec. Dig. Q:
4. INSURANCE C+665–SUIT BY BENEFICIARY
—SUFFICIENCY OF EVIDENCE.
Evidence, in an action by a beneficiary un
der an accident policy to recover for death of assured, held to sustain a finding that assured's answers to questions in the application were truthful.
[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1555, 1707–1728; Dec. Dig. Q: 665.]
5. INSURANCE S->549 -AUTOPSY-INDEFINITE REQUEST-REFUSAL-EFFECT.
An accident policy provided that, in case of death, the company should have the right to make or participate in an autopsy upon the body of assured. Upon assured's death, the father telegraphed the company, informing them thereof, whereupon the company answered : * * * : *k djuster will be in Greenville immediately. Withhold burial, as autopsy may be necessary.
funeral notices had been distributed, and during the interval of 23% hours between the receipt of the telegram and the hour for the funeral no adjuster appeared, and the interment was had. Held, that the policy, was not rendered void by the failure to withhold burial, since there was no demand for an autopsy as provided by the policy, but simply a request to hold the body for an indefinite time. [Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1356; Dec. Dig. Q: 549.] 6. INSURANCE (3:3549—RIGHT OF INSURER TO AUTOPSY. Where the evidence, in a suit on an accident policy for death of assured, failed to show a reasonable probability that an autopsy held seven months after the accident would disclose whether assured died from accidental causes or disease, it was not error to overrule defendant's motion for exhumation and autopsy, since the motion was addressed to the discretion of the court, throwing upon the defendant the burden of showing with reasonable certainty that an autopsy would determine the cause of death. [Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1356; Dec. Dig. Q: 549.]
7. INSURANCE (3:549—GROUNDS FOR AUTOPSY —EVIDENCE–SUFFICIENCY. Evidence, in an action on an accident policy for death of assured, held not to show sufficient reason for ordering exhumation and autopsy seven months after death. [Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1356; Dec. Dig. (3:549.]
8. INSURANCE C:3549 – AUTOPSY-REQUESTINDIRECT REFUSAL – PROOFS IN LIEU-EFFECT. Where, in response to a request by the company’s claim examiner, the beneficiary under an accident policy did not directly refuse to allow exhumation of assured's body for autopsy, but suggested certain proofs in lieu thereof, the policy was not rendered void for refusal to comply with a provision securing to the company the right in case of death to make an autopsy upon the body of assured. [Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1356; Dec. Dig. 3-549.]
9. INSURANCE C+389 – ISSUANCE OF POLICY TO AGENT—WAIVER. Where an insurance company accepted an application from its own agent and issued a policy thereon, it waived any disadvantage which might arise from the want of a local representative to protect its rights under the policy. [Ed. Note:—For other cases, see Insurance, Cent. Dig. §§ 1028–1031; Dec. Dig. Q: 389.]
10. EVIDENCE Q->128–STATEMENTS TO PHYSICIA.N. A statement made by assured to a physician, called to attend him on the day of the injury from which he afterwards died, as to how he was injured, was competent evidence in an action by the beneficiary on an accident policy to recover for death of assured. [Ed. Note:—For other cases, see Eyidence, Cent. Dig. §§ 383–387; Dec. Dig. 3:128.]
11. INSURANCE (3:515 – ACCIDENT POLICYDEATH DUE TO STRAIN-AMOUNT RECOVERABLE. Where assured died within a few days as the result of an accident, a provision in an accident policy that, if assured was disabled by a strain, the company would pay assured $50 per month during disability, did not limit the recovery of beneficiary to $50; she being entitled to the indemnity provided for in case of death, though the death resulted from a strain.
IEd. Note—For other cases, see Insurance, Appeal from Circuit Court, Muhlenberg County.
Q->For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
Action by Kate R. Duncan against the Massachusetts Bonding & Insurance Company. From a judgment for the plaintiff, the defendant appeals. Affirmed.
E. B. Anderson, of Owensboro, and Fred Forcht, of Louisville, for appellant. W. P. Sandidge, of Owensboro, and T. J. Sparks, of Greenville, for appellee.
NUNN, J. On July 1, 1913, David W. Duncan made a written application for, and there was issued to him on that date, a policy of accident and disability insurance, which provided indemnity for loss of life or bodily injury from accidental means, and for disability and loss of time by disease. For accidental death the company agreed to pay $2,500 to Kate R. Duncan, mother of the aSSured, the appellee herein. On Thursday, August 28, 1913, David W. Duncan died as the result of an alleged accident Which happened On Saturday, August 23d. In an action. On the policy, Mrs. Duncan recovered judgment for $2,500; and appellant brings the case here for review, complaining Of many prejudicial errors Which it says the trial court committed.
David W. Duncan was unmarried, 20 years Of age, and resided with his parents in Greenville. He was in partnership with his father under the firm name of D. J. Duncan & Son. They Were engaged in the insurance business, and were local agents for the appellant. It seems that as such agents they had the power, not Only to receive applications, but to isSue policies of insurance, and for this purpose they were supplied with the necessary blank forms. It appears that the assured Wrote On the same day With his own hand both the application and the insurance policy. These facts were fully and promptly TepOrted to and approved by the company. The policy was issued in consideration of the payment of a monthly premium of $1.50, and Was to COntinue in force for as many consecutive months as the assured might pay same. So far as payment of premiums is concerned, it is admitted that the policy was in force at the time referred to; but appellant claims that the policy is Void by reason of false and fraudulent anSWerS made in the application.
By the application, which was Written into and made a part Of the policy, the aSSured represented to the company: (1) That he Was in Sound Condition mentally and physically; (2) that he did not then have, and had not had during the past year, any local or constitutional disease. The COmpany refused to pay the policy, and this suit was filed by the beneficiary, Mrs. Duncan, in January, 1914. Among Other things, she alleged that, while the policy was in force, her son died from a bodily injury, effected directly and independently of all other causes by direct,
means. In the following language she explains how the assured received his injury: “The said David W. Duncan was upon said August 23, 1913, engaged in carrying two large water melons, one under each arm, and while engaged in carrying said melons over a rough stretch of ground, one of said melons slipped forward and caused an injury to his stomach and bowels to such an extent that an uncontrollable hemorrhage resulted therefrom, and from the effects of which the said David W. Duncan died.” At the following April term of court the parties Went into trial. During the course thereof appellee offered an amendment, which the court permitted to be filed over appellant's objection. The amendment is as folloWS: “The plaintiff, by leave of court, for amendment to her petition herein, and in order to conform to the proof, states that the accidental injury described in the original petition was caused, not by the slipping forward of the melon as alleged therein, but by the strain caused by the carrying of said melons, and the carrying of the melons over the rough or uneven ground. Over which he traveled while carTy1ng Same. Appellant then traversed the allegations of the amended petition, and affirmatively alleged that the policy provided that, if the assured should be disabled by a strain, the recovery therefor should be $50, and no more. These allegations were controverted of recOrd, but on the ground Of Surprise the trial Was Suspended, and the case continued to the September term, When it Was tried, With the result already stated. The following are the facts With reference to the death of the aSSured: On Saturday noon, August 23, 1913, five days before his death, he bought two water melons, weighing 40 pounds each, from a Wagon which stood in the Street in front of a neighbor’s house. Carrying one under each arm and against his abdomen, he started to his father's home, a distance of some 60 feet. He had to pass over a rough place and a perpendicular step-off, some 12 inches high. The aSSured told his physician that While So carrying these melons he slipped or fell. There was no one Who saw him all of the time he Was going home. The man Who Sold the melons, and Mrs. Martin also, saw him leave the wagon and go diagonally toward his father's front door. He placed the melons On the floor in the front hall and went immediately into his mother's room. She says he was nearly exhausted and breathing with difficulty. In a few moments he recovered Somewhat and left the room, going in the direction of a closet in the garden. In tWO Or three minutes his mother thought She heard his calls, and went hurriedly to the garden, and saw him holding himself up against a gate. His mother and Sister assisted him to walk through the yard to the back porch. He was so exhausted that they laid him down. Almost immediately he lost consciousneSS. The neighbors and a doctor he had been placed in bed. The doctor described his condition as one of collapse, with rapid pulse, difficult breathing, and abnormal temperature. He improved Somewhat during the afternoon, and was able to sit up a While. He spent a restless night, but, on Sunday was able to eat a light breakfast and dinner. In the afternoon, when he undertook, by his mother's assistance, to leave his bed, he fell to the floor in a faint. In about three hourS he began to throw up blood, and also passed a great deal of it from his bowels. The first blood thrown up was decayed, as if it had been retained in his Stomach a While; but after that the blood he threw up and that which passed from his bowels was fresh. This continued until his death. On the following Thursday. Dr. Koontz, who was first called, did not obtain full details of what had happened, and did not then realize the gravity of the case. When he grew worse the next day, Dr. Slayden was called also. Each of these doctors had for a long time practiced in and Were acquainted With the medical history of the family. Being now convinced that there was an internal hemorrhage, they endeavored to find out the place and cause. In answer to their inquiries, the aSSured Said to Dr. Slayden that while he was carrying the Water melons he slipped or fell, Dr. Slayden did not remember which, and received a strain where the melons pressed against his abdomen, and he at once become ill. Briefly stated, the reasons given by the company for resisting payment are that Duncan’s death was not due to any personal injury effected by accidental means; that he was the Victim of a Spontaneous hemorrhage; that at the time the application was made, and for many years theretofore, in fact, all of his life, the assured was in bad health, and in an unsound physical condition, and Suffering from a dangerous Constitutional disease, technically knoWn as hemophilia, that is, he was what is commonly known as a “bleeder”; that this disease culminated in a Spontaneous hemorrhage, and Was the Sole cause of his death. The peculiar characteristic or Symptom of a “bleeder” is that in the event of an injury, causing a wound in the flesh, internal or external, there immediately results a persistent flow of blood, causing Weakness and exhaustion, difficult to arrest, and Which, if not stopped, will result in death. We understand from the evidence that in Such cases, as distinguished from normal persons, the Walls of the blood VesSels may be thinner; but usually it is a blood condition, whereby it does not coagulate and automatically stop the flow. [1, 2] The assured made categorical answers to every question set forth in the application. We must assume that such anSWers, if true, Supplied to the company all the information needed or required by it in order to determine whether it would accept the risk and iSSue the policy or continue it
family history, and he was not asked if he Was a hemophiliac, or a “bleeder,” or if a slight wound subjected him to copious or persistent bleeding; nor was he asked if his physical condition was normal as compared to other people. The question propounded Was Whether he was in Sound physical condition. He answered that he was, and further represented that he was in good health, and to the question, if within a year past he had a constitutional disease, he said, “No.” We are satisfied from the evidence that in carrying the Water melons over the rough place he slipped or stumbled, and the Strain or pressure thus made against the stomach ruptured a blood vessel. We think it was also made clear that the young man Was a “bleeder.” The proof ShoWS this to be an inherited characteristic. From the medical testimony it seems that the Symptoms are more pronounced in the male line, although, as a rule, it is inherited directly from the mother. His maternal grandfather was a “bleeder,” and his mother was to some extent. Between 2 and 3 years before the application, three teeth Were extracted, and his gum bled at one place for several days, and he Was indisposed for a Week. When he WaS 10 or 12 years of age he had a nasal hemorrhage which lasted for several days. Two or three other instances were shown by the evidence where from slight Wounds there was a profuse flow of blood, and in this, as Well as the instances already referred to, medical Services were availed of, if not required, to Staunch the flow. Some of the text-writers say that in such cases there have been instances of Spontaneous bleeding; but, with one exception, all of the doctors testified that there must be a cause for Such bleeding, although the cause may not be asCertained. In every case there must be a ruptured blood vessel; therefore there must be Something to rupture it, and When Spontaneous hemorrhage is assigned as a cause of death it signifies that the cause of the rupture is not known. The physicians all testified, having in mind his tendency to bleed, that in their Opinion an internal hemorrhage would be produced in the aSSured if he carried the two melons in the manner described. It is also clear from the evidence that the company Would not have issued or carried the policy, had it known that the assured was a “bleeder.” The assured, of course, must have known that in the instances referred to he had bled perSistently; but it is not ShOWn that he knew the significance of it. In other Words, he did not know he had an inherited Condition of Vein Walls or of blood that would probably continue through life, and always Subject him to dangerous bleeding whenever any blood vessel, however slight, was ruptured. On this branch of the case we believe the question comes down to whether the condition described was equiva
in force. No inquiries were made about his lent to a disease. If so, there was a material