Argument for Plaintiffs in Error.

234 U.S.

relieve it from responsibility, its failure to secure that result and its payment to Hilsman of the amount upon the giving by him of indemnity, all substantially as alleged in the pleadings we have stated. The agreed facts contained this statement:

"It was not the purpose of the Insurance Company to contest or delay payment, and the payment to Hilsman was made under the circumstances above set out. It is not the purpose of this agreement to determine how far, if at all, the facts in respect to notice and good faith are material issues in this case, that being deemed a question of law, nor is this agreement to be construed as admitting as a matter of law that Hilsman had any right to said policies or their proceeds, or that said payment, or any part thereof, was rightfully made to him. It is, however, agreed as a fact that Hilsman has not been repaid said sum of $460.00, and the Insurance Company has not been repaid the amount of said loan, except as above stated, and that nothing has yet been paid to the plaintiff."

The Company as part of its case introduced certain statutes of the State of Georgia and decisions of the court of last resort of that State interpreting the same for the purpose of showing that Cohen had a right to sell and Hilsman to purchase in Georgia the insurance policies, although Hilsman had no insurable interest. in Cohen's life. In rebuttal the plaintiff introduced certain decisions of the court of last resort of Georgia deemed to establish the contrary result and also offered statutes of that State dealing with gambling transactions and the right to sue concerning the same. The trial court found the facts substantially as embodied in the statements referred to.

Mr. William J. Moroney for plaintiffs in error:

The Texas statute, as construed and applied in this case by the state court, is repugnant to the Fourteenth Amendment.

234 U.S.

Argument for Plaintiffs in Error.

The judgment of the state court denied full faith and credit to the statutes of Georgia that were pleaded and proved in defense of this suit, in violation of the full faith and credit provision of the Constitution of the United States.

In support of these contentions, see Rev. Stat. Texas, Art. 3071; Civil Code Georgia, §§ 2114, 2116, 3077; Atchison T. & S. F. Ry. Co. v. Sowers, 213 U. S. 55; Atlantic Coast Line Ry. Co. v. Wharton, 207 U. S. 328; Attorney General v. Lowrey, 199 U. S. 639; Bacon v. Texas, 163 U. S. 216; Beer v. Landman, 88 Texas, 450; Bolin v. St. Louis Ry. Co., 61 S. W. Rep. 444; Bridge Proprietors v. Hoboken Co., 1 Wall. 116; Cawthorne v. Perry, 76 Texas, 338; Cheeves v. Andres, 87 Texas, 287; Clark v. San Francisco, 124 U. S. 639; Collins v. Texas, 223 U. S. 288; Dartmouth College Case, 4 Wheat. 518; El Paso Ry. Co. v. Gutierrez, 215 U. S. 87; Estay v. Luther, 142 S. W. Rep. 649; Farmers' Ins. Co. v. Dobney, 188 U. S. 301; Fidelity Life Ins. Co. v. Mettler, 185 U. S. 308; Fidelity Life Ins. Co. v. Zapp, 160 S. W. Rep. 139; Furman v. Nichol, 8 Wall. 44; Ex parte Garland, 4 Wall. 333; Grigsby v. Russell, 222 U. S. 149; Gulf, C. & S. Fe Ry. Co. v. Dennis, 224 U. S. 503; Gulf, C. & S. Fe Ry. Co. v. Ellis, 165 U. S. 150; Illies v. Fitzgerald, 11 Texas, 429; Iowa Life Ins. Co. v. Lewis, 187 U. S. 264; Ludy v. Larson, 37 L. R. A. (N. S.) 907; Martin v. West, 224 U. S. 191; Murdock v. Memphis, 20 Wall. 590; Northwestern Life Ins. Co. v. McCue, 223 U. S. 234; Pacific Life Ins. Co. v. Williams, 79 Texas, 633; St. Louis Ry. Co. v. Wynne, 224 U. S. 354; Schofield v. Turner, 75 Texas, 324; Southwestern Ins. Co. v. Woods Nat'l Bank, 107 S. W. Rep. 114; Stanley v. Schwalby, 162 U. S. 255; Tilt v. Kelsey, 207 U. S. 42; Vandalia Ry. Co. v. Indiana, 207 U. S. 359; Washington Life Ins. Co. v. Gooding, 49 S. W. Rep. 123; Wilson v. Black Bird Creek Co., 2 Pet. 245; Yazoo &c. Co. v. Jackson Vinegar Co., 226 U. S. 217.

VOL. CCXXXIV-9

Argument for Defendant in Error.

234 U. S.

Mr. Wilmer S. Hunt, Mr. Sterling Myer and Mr. C. A. Teagle for defendant in error:

The Supreme Court will not consider questions not raised and passed on in the court below, nor consider other Federal questions than the one raised.

The assignment of the insurance policies was a Texas contract.

If the contract was a Georgia contract, yet if invalid under the laws of Texas, the law of comity between States does not require its enforcement by the Texas courts.

The contract of assignment was even void under the laws of Georgia.

Article 3071, Texas Rev. Stat., is constitutional.

There was no right of the insurance company to recover the $460.00 paid to Cohen by Hilsman

A general assignment raising a Federal question will not be considered.

On error from a state court, the Supreme Court will only consider the Federal question which gives it jurisdiction.

In support of these contentions, see Acts Texas Legislature 1907, p. 172; 24 Am. & Eng. Ency. of Law, 1052; Armstrong v. Toler, 11 Wheat. 258; Arnott v. Coal Co., 23 Am. Rep. (N. Y.) 190; Association v. Mettler, 189 Ú. S. 150; Atlantic Coast Line v. Wharton, 207 U. S. 328; Beardsley v. Beardsley, 138 U. S. 262; Beer v. Landaman, 88 Texas, 450; Bigelow v. Benedict, 70 N. Y. 206; Cameron v. Barcus, 71 S. W. Rep. 423; Capitol City Dairy Co. v. Ohio, 183 U. S. 238; Cheeves v. Anders, 87 Texas, 291; Clark v. McDade, 165 U. S. 170; Cothran v. Telegraph Co., 83 Georgia, 25; Dewey v. Des Moines, 175 U. S. 193; Dugger v. Ins. Co., 81 S. W. Rep. 335; Embree v. McLean Co., 11 Tex. Civ. App. 493; Falkner v. Hyman, 142 Massachusetts, 53; Farmers Ins. Co. v. Dabney, 189 U. S. 301; Fletcher v. Williams, 66 S. W. Rep. 861; Fowler v. Bell, 90 Texas, 150; Furman v. Nichols, 8 Wall. 75; Georgia Code,

Arts. 3537, 3668, 3671; German Society v. Dormitzer, 192 U. S. 124; Green v. Van Buskirk, 7 Wall. 139; Hamblen v. Western Land Co., 147 U. S. 531; Hill v. Spear, 50 N. H. 253; Horner v. United States, 143 U. S. 570; Insurance Co. v. Bank, 107 S. W. Rep. 114; Insurance Co. v. Williams, 79 Texas, 633; Insurance Co. v. Hazelwood, 75 Texas, 351; Irvin v. Williams, 110 U. S. 508; Jones v. Aiken, 80 S. W. Rep. 285; Keokuk & H. B. Co. v. Illinois, 175 U. S. 193; Maxwell v. Newbold, 18 How. 511; McLaughlin v. Fowler, 154 U. S. 663; 1 Meechum on Sales, §§ 8430, 484; Messenger v. Mason, 10 Wall. 507; Murdock v. Memphis, 20 Wall. 590; Myrick v. Thompson, 99 U. S. 297; Norris v. Logan, 97 S. W. Rep. 20; Osborne v. Florida, 164 U. S. 650; Oscanyon v. Arms Co., 103 U. S. 261; Pope v. Hanke, 40 N. E. Rep. 842; Railway v. Dennis, 224 U. S. 503; Railway v. Wynne, 224 U. S. 354; Rev. Stat. Texas, Art. 3071; Schonfield v. Turner, 75 Texas, 329; Seligson v. Lewis, 63 Texas, 220; Storey v. Solomon, 71 N. Y. 422; Sweeney v. Ousley, 53 Kentucky, 413; Telegraph Co. v. Blanchard, 68 Georgia, 299; Tilt v. Kelsey, 207 U. S. 43; Tracey v. Talmage, 67 Am. Dec. (N. Y.) 132; Wheeless v. Myer, 12 S. W. Rep. 712; Wilson v. Namie, 102 U. S. 572; Wilton v. Ins. Co., 78 S. W. Rep. 403; Zipcey v. Thompson, 1 Gray (Mass.), 242.

MR. CHIEF JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.

Upon the pleadings which we have just stated and the facts stipulated, the trial court gave judgment for the plaintiff, Cohen, against the defendant company for the amount of the policies less the sums which had been loaned thereon by the Company with interest and with the statutory penalties and attorney's fees claimed.

To recapitulate, it suffices to say that the assignments of error made by the Company in the court below for the

purpose of the appeal by it taken but expressed the defenses resulting from its answer and the stipulated facts which we have stated. That is to say, reliance was placed (1) upon the proposition that in any event the recourse of the plaintiff was against Hilsman and not against the Company; (2) that the transfer of the policies to Hilsman was a Georgia contract and valid under the law of that State because the existence of insurable interest at the time of the transfer, although necessary under the Texas law, was not necessary under the Georgia law; (3) that as in any event the transaction out of which the assignment of the policies from Cohen to Hilsman grew was admittedly a gambling one, the court would not allow the executor of Cohen to derive any rights from assailing that transaction, but would leave the parties where their illegal contract had placed them, that is, let the assignment to Hilsman stand, and hence leave no right in Cohen, executor, to recover; (4) that the court erred in giving judgment for the statutory penalties and damages because under the circumstances stated the liability to pay them was not embraced by the statute under which they were imposed and that if the statute, as construed, imposed the damages and attorney's fee which were allowed, it was in violation of § 1, of the Fourteenth Amendment.

In an elaborate opinion the court disposed of all these contentions. It held that the suit need not be brought against Hilsman but that it could be brought directly against the Company. It decided that the contract of assignment was a Texas contract and for want of insurable interest in Hilsman was invalid under the laws of that State, although it was in substance admitted that it would have been valid, so far as the question of insurable interest was concerned, if it had been a Georgia contract. Coming to consider the fact that both parties had conceded that the transaction out of which the assignment of the policies grew was purely of a gambling nature and that that fact