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. of the amount and kind of liquor received, the name and address of the consignor, the name which said liquor is intended to be used, as statand address of the consignee, the purpose for ed 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 conpublic inspection at any time during the busisignee or his agent, which book shall be open to ness hours of said company. Such book shall constitute prima facie evidence as to the facts in any court in this state. Any railroad, extherein stated, and be admissible as evidence press 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 It was further stipulated that on the day guilty of a misdemeanor, and for each offense in question E. H. Porter, a private citizen of shall be punished by a fine of not less than fifty Bowling Green, holding no official position, imprisoned in the county jail not less than thirdollars, nor more than two hundred dollars, or entered the local office of the Adams Express ty days nor more than six months, or both such Company and requested of White, its agent, fine and imprisonment, in the discretion of the to be shown the record of interstate ship-jury." Acts 1914, p. 27; Carroll's Statutes ments of intoxicating liquors, above describ- 1915, § 2569b, subsec. 3. ed, 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: 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 cer, agent or employé of such common carrier, subject to the provisions of this act, or any offior for any other person or corporation lawfully authorized by such common carrier to receive information therefrom, knowingly to disclose to poration other than the shipper or consignee, or permit to be acquired by any person or corwithout the consent of such shipper or consignee, any information concerning the nature, ing of any property tendered or delivered to kind, quantity, destination, consignee, or routsuch 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. formation of the character above described That act further provides that any inmay be obtained by any officer or agent of the government of the United States, or of and imposes a penalty of not more than any state, in response to any legal process, $1,000 for a violation thereof. designed for the protection of interstate Unquestionably, the Mann-Elkins Act was commerce, and was an extension of the Under the operation of the original act of original Interstate Commerce Act of 1887. 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. [1] The federal act, however, could apply"All railroad, express or other transportation companies within this state, within the state, or only to interstate shipments; and, by its doing business within this state, are hereby re- terms, it does not pretend to control intraquired to keep at each local office in territory state shipments. within which the sale of intoxicating liquors for Kentucky Statute of 1914, supra, under On the other hand, the beverage purposes is prohibited by any law, a separate book, in which shall be entered imme- which this prosecution arose, applies to indiately upon receipt thereof, truthful statements trastate shipments, and could not affect in terstate shipments, unless the federal law, toxicating liquors shipped from points outapproved 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-Kenyon Law reads as follows: "An act divesting intoxicating liquors of their * 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-Kenyon 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. side 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 used in violation of a state law. [3] 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 carto be determined as are other disputed issues of rier becomes in each case a question of fact 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. [4] 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 ship [2] Before the passage of the Webb-Kenyon 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 Webb-ment, or, having received it, may refuse to Kenyon 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 ship ment. The question, therefore, for decision in 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. [5] 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 protec commerce 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, except with the consent of the consignor and the consignee. Judgment affirmed. funeral notices had been distributed, and during the interval of 22 hours between the receipt no adjuster appeared, and the interment was of the telegram and the hour for the funeral 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. 549.] MASSACHUSETTS BONDING & INSUR- 6. INSURANCE 549-RIGHT OF INSURER TO ANCE CO. v. DUNCAN. AUTOPSY. Where the evidence, in a suit on an acci (Court of Appeals of Kentucky. Nov. 4, 1915.) dent policy for death of assured, failed to show a reasonable probability that an autopsy held 1. INSURANCE 646 APPLICATION - ANseven months after the accident would disclose SWERS PRESUMPTION. whether assured died from accidental causes or Where an applicant for insurance makes disease, it was not error to overrule defendant's categorical answers to the questions in the ap-motion for exhumation and autopsy, since the plication, it will be presumed that such answers mction was addressed to the discretion of the supply the company with all the information re- court, throwing upon the defendant the burden quired by it for determining the acceptance or of showing with reasonable certainty that an rejection of the risk. autopsy would determine the cause of death. [Ed. Note.-For other cases, see Insurance, [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1555, 1645-1668; Dec. Dig. Cent. Dig. § 1356; Dec. Dig. 549.] 646.] 2. INSURANCE 291-APPLICATION-LOCAL OR CONSTITUTIONAL DISEASE-VULNERABILITY-DISTINCTION. Where, in an application for insurance, there was no direct question as to family his tory, 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. 7. INSURANCE 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. 549.] [Ed. Note. For other cases, see Insurance, Cent. Dig. § 1356; Dec. Dig. 8. INSURANCE 549- 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 lien thereof, [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 681-690, 694-696; Dec. Dig. the policy was not rendered void for refusal to 291.] 3. INSURANCE 668-APPLICATION-MENTAL AND PHYSICAL CONDITION-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. comply with a provision securing to the com- 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. 389.] [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1556, 1732-1770; Dec. Dig. 10. EVIDENCE 668.] 4. INSURANCE 665–SUIT BY BENEFICIARY -SUFFICIENCY OF EVIDENCE. Evidence, in an action by a beneficiary under 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. CIAN. 128-STATEMENTS TO PHYSI 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 Evidence, Cent. Dig. §§ 383-387; Dec. Dig. 128.] [Ed. Note.-For other cases, see Insurance. C'ent. Dig. §§ 1555, 1707-1728; Dec. Dig. 11. INSURANCE 515- ACCIDENT POLICY665.] 5. INSURANCE 549-AUTOPSY-INDEFINITE REQUEST-REFUSAL-EFFECT. DEATH DUE TO STRAIN-AMOUNT RECOVER- Where assured died within a few days as An accident policy provided that, in case the result of an accident, a provision in an acof death, the company should have the right to cident policy that, if assured was disabled by make or participate in an autopsy upon the a strain, the company would pay assured $50 body of assured. Upon assured's death, the per month during disability, did not limit the father telegraphed the company, informing them recovery of beneficiary to $50; she being entithereof, whereupon the company answered: tled to the indemnity provided for in case of * Adjuster will be in Greenville im- death, though the death resulted from a strain. mediately. Withhold burial, as autopsy may [Ed. Note.-For other cases, see Insurance, be necessary." The weather was warm, the Cent. Dig. §§ 1300-1302; Dec. Dig. 15.] Appeal from Circuit Court, Muhlenberg | means. County. 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. 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 engaged in carrying said melons over a rough water melons, one under each arm, and while stretch of ground, one of said melons slipped and bowels to such an extent that an unconforward and caused an injury to his stomach. trollable hemorrhage resulted therefrom, and from the effects of which the said David W. Duncan died." lows: At the following April term of court the NUNN, J. On July 1, 1913, David W. Dun- parties went into trial. During the course can made a written application for, and there thereof appellee offered an amendment, which was issued to him on that date, a policy of the court permitted to be filed over appelaccident and disability insurance, which pro-lant's objection. The amendment is as folvided 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. "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 carrying 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. 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 The following are the facts with reference seems that as such agents they had the pow- to the death of the assured: On Saturday er, not only to receive applications, but to is- noon, August 23, 1913, five days before his sue policies of insurance, and for this pur- death, he bought two water melons, weighpose they were supplied with the necessary ing 40 pounds each, from a wagon which blank forms. It appears that the assured stood in the street in front of a neighbor's wrote on the same day with his own hand house. Carrying one under each arm and both the application and the insurance pol- against his abdomen, he started to his faicy. These facts were fully and promptly ther's home, a distance of some 60 feet. He reported to and approved by the company. had to pass over a rough place and a perpenThe policy was issued in consideration of the dicular step-off, some 12 inches high. The payment of a monthly premium of $1.50, and assured told his physician that while so carwas to continue in force for as many consecu- rying these melons he slipped or fell. There tive months as the assured might pay same. was no one who saw him all of the time he So far as payment of premiums is concern- was going home. The man who sold the meled, it is admitted that the policy was in force ons, and Mrs. Martin also, saw him leave at the time referred to; but appellant claims the wagon and go diagonally toward his fathat the policy is void by reason of false and ther's front door. He placed the melons on fraudulent answers made in the application. the floor in the front hall and went immediBy the application, which was written into ately into his mother's room. She says he and made a part of the policy, the assured was nearly exhausted and breathing with represented to the company: (1) That he difficulty. In a few moments he recovered was in sound condition mentally and physi- somewhat and left the room, going in the dically; (2) that he did not then have, and had rection of a closet in the garden. In two not had during the past year, any local or or three minutes his mother thought she constitutional disease. The company refused heard his calls, and went hurriedly to the to pay the policy, and this suit was filed by garden, and saw him holding himself up the beneficiary, Mrs. Duncan, in January, against a gate. His mother and sister as1914. Among other things, she alleged that, sisted him to walk through the yard to the while the policy was in force, her son died back porch. He was so exhausted that they from a bodily injury, effected directly and laid him down. Almost immediately he lost independently of all other causes by direct, consciousness. The neighbors and a doctor 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." he had been placed in bed. The doctor de- | family history, and he was not asked if he scribed 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 awhile. 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 in force. No inquiries were made about his 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 equívalent to a disease. If so, there was a material |