241 U.S. MCREYNOLDS, J., dissenting. notice to show a compliance with such provision in an action brought against the initial carrier, we did not consider the question as presented for the first time in respondent's brief of any importance and did not even reply thereto in our oral argument. "Under section 9 of said contract the terms and conditions thereof inure to the benefit of the connecting carrier. Therefore, such notice should be given to some officer or station agent of such carrier at point of delivery when damages are claimed. "The importance of this is apparent when considered in connection with the Carmack Amendment to the Interstate Commerce Law." The only ground for reversal now seriously relied upon is that the Carmack Amendment (June 29, 1906, § 7, c. 3591, 34 Stat. 584, 593) made "the connecting carrier, and therefore its agents, the agents of the initial carrier,” and consequently the court below wrongly held, because no officer or station agent primarily employed by Northern Pacific Railway was shown to have been in Chicago, paragraph six was unreasonable and inoperative, and notice to a Burlington agent would not have been effective for any purpose. I fail to find that this point was definitely raised at any stage prior to the application for rehearing; and counsel for the railroad below seem to have been equally unsuccessful. If they had already wittingly relied upon it, they would hardly have burdened their argument for rehearing with an excuse for failure so to do. Former opinions imperatively demand that the foundation for our jurisdiction be laid in plain view and not around a corner where only an esoteric eye can detect it. Seaboard Air Line v. Duvall, 225 U. S. 477, 487. Second. "The bill of lading itself is an elaborate document, bearing on its face evidences of care and deliberation in the formation of the conditions of the liability of the companies issuing it. The language is chosen by the com MCREYNOLDS, J., dissenting. 241 U.S. panies for the purpose, among others, of limiting and diminishing their common law liabilities, and if there be any doubt arising from the language used as to its proper meaning or construction, the words should be construed most strongly against the companies, because their officers or agents prepared the instrument, and as the court is to interpret such language, it is, as stated by Mr. Justice Harlan, in delivering the opinion of the court in National Bank v. Insurance Co., 95 U. S. 673, 679: 'Both reasonable and just that its own words should be construed most strongly against itself."" Tex. & Pac. Ry. v. Reiss, 183 U. S. 621, 626. Apparently the bill under consideration followed a form adopted before passage of the Carmack Amendment or at least before this was adequately understood. It is dated "Belgrade, Montana, Station, January 2, 1912," purports to be an "agreement, made the day above stated between the Northern Pacific Railway Company, hereinafter called the 'Company,' and R. J. Wall, hereinafter called the 'Shipper,"" and contains, in addition to paragraphs 6 and 9 copied above, the following ones: Par. 7. "It is further agreed and provided that no suit or action to recover any damages for loss or injury to any of said stock, or for the recovery of any claim by virtue of this contract, shall be sustained by any court against said Company unless suit or action shall be commenced within sixty (60) days after the damage shall occur, and on any suit or action commenced against said Company after the expiration of said sixty (60) days, the lapse of time shall be taken and deemed conclusive evidence against the validity of said claim, any statute to the contrary notwithstanding." Par. 8. The "said Company shall not be liable for the non-delivery or loss of, nor for injuries suffered by any of the stock beyond the line of its own railroad." 241 U.S. MCREYNOLDS, J., dissenting. Commenting on paragraph 6, the Supreme Court of Montana said (50 Montana, 127): "If the paragraph above means anything, it required the shipper to give notice in writing to an officer or station agent of the Northern Pacific Company. Notice to an agent of the Burlington road would not have been effective for any purpose. The company mentioned in paragraph 6 is defined by the preamble to the contract to mean the 'Northern Pacific Railway Company.' Furthermore, if this provision is valid, it must be so construed as to serve some purpose. Its evident purpose was to enable the carrier to investigate the condition of the stock, and to that end the shipper was required to keep them separate until such investigation was made or a reasonable time therefor had elapsed. By the facts before us the reasonableness of the provision is to be tested. The contract is silent upon the question of service of the notice. If personal service was necessary, the shipper was required to hold the cattle at the Union Stock Yards until he could find an officer or station agent of the Northern Pacific Company. No particular officer or station agent is designated, and if this provision is to be taken literally, the shipper was required at his peril to assume the burden of finding some person who answered the description given. There is not a suggestion in the contract, in the pleadings or the proof, that the Northern Pacific Company had an officer or station agent at Chicago, or nearer than St. Paul, the eastern terminus of its road-more than 400 miles away. If service could have been made by mail, plaintiff would have been in no better position, though doubtless a letter written to the station agent at Belgrade, and mailed postpaid at Chicago, would have sufficed for a literal compliance with the terms of this provision. But in any event, plaintiff would have had to bear the burden of keeping his cattle on the cars or in the Stock Yards until the notice had been received and a reasonable time for inspection MCREYNOLDS, J., dissenting. 241 U. S. had elapsed. If the paragraph in question be construed to mean that a written notice mailed from Chicago to any station agent of the Northern Pacific Company, even the agent at Seattle, would suffice, it is senseless. If it is construed to mean that the shipper should travel from Chicago to St. Paul and make personal service of the notice upon an officer or station agent of the Northern Pacific Company, then it is unreasonable to the point of being unconscionable. Whether the company had an officer or station agent at Chicago-at a point where it has no road-upon whom service of this notice could have been made, was a matter peculiarly within its own knowledge, and for this reason the burden was upon it to make proof of such fact." Manifestly its language has given rise to a very grave doubt; therefore I think the contract should be construed most strongly against the company and with a view to preserve shipper's rights. The construction placed upon paragraph 6 by the state Supreme Court, when sitting within surroundings designed to stimulate clear thinking, is diametrically opposed to the one now adopted. In such circumstances it appears to me hardly reasonable to say that a stockman at a wayside Montana station was bound instantly to apprehend the true interpretation, notwithstanding any mental quickening which he may have received from a "rough wind" and a modest thermometer pointing to only "seven or eight degrees below zero." I am authorized to say that MR. JUSTICE MCKENNA concurs in this dissent for the second reason stated. 241 U.S. Opinion of the Court. GIDNEY v. CHAPPEL. ERROR TO THE SUPREME COURT OF THE STATE OF OKLAHOMA. No. 263. Submitted March 8, 1916.-Decided April 24, 1916. Sections 6509 and 6521, Mansfield's Digest of the General Laws of Arkansas dealing with appeals from the Probate to the Circuit Court, were not put in force in Indian Territory by the Act of May 2, 1890, c. 182, § 31, 26 Stat. 81, as they were inapplicable to conditions then existing in Indian Territory. Section 6525 upon being adopted and separated from conflicting provisions of the Civil Practice Act of Arkansas, assumed its normal place among the other laws with which it was adopted and was put in force by the Act of May 2, 1890. Quare whether § 6523 was adopted by the Act of 1890. 43 Oklahoma, 267, affirmed. THE facts, which involve the application and construction of statutes of the United States relating to the probate of wills in Indian Territory, are stated in the opinion.. Mr. William T. Hutchings for plaintiff in error. Mr. Napoleon B. Maxey and Mr. Charles F. Runyan for defendants in error. MR. JUSTICE VAN DEVANTER delivered the opinion of the court. This was a suit to set aside a will probated in common form and to avoid its probate. The suit was begun in the United States Court for the Indian Territory, wherein the will had been probated, and was transferred to an Oklahoma court when that State was admitted into the Union. The plaintiff ultimately prevailed and the Supreme Court |