The defendant in error was the plaintiff below, and sued the Manhattan Life Insurance Company, which we shall speak of as the company, on two policies on the life of Jacob Cohen in his own favor, written in 1893, in Texas, where Cohen resided, the company then doing business in that state through an agency. It was averred that although the company had admitted liability on the policies, it had not paid the loss, and was therefore responsible [234 U.S. 123, 124] not only for the sum due insured, with interest, but also for 12 per cent as statutory penalty or damages, and $1,000 attorneys' fees.
The answer denied liability to the plaintiff. It admitted issuing the policies, but averred that in 1907 the insured, Cohen, borrowed $875 on each, and pledged the policies as security, which loans were unpaid. It was averred that in July, 1907, Cohen sold to Hilsman, of Atlanta, Georgia, his interest in the policies, and executed assignments and orders on the company to deliver the policies to him on payment of the debts for which they were pledged. These documents were annexed to the answer. The origin and course of the negotiation which ultimated in the assignments were thus stated: Hilsman had an agent at San Antonio, Texas, where Cohen lived. The transactions 'were begun' and 'definitely agreed upon' between Cohen and the agent, 'the agreement being that Hilsman would pay Jacob Cohen $460 for his equity in said policies, whereupon Cohen wired Hilsman to send papers, and the following correspondence, by letter and telegram, passed between them.' Hilsman in answer to the first telegram from Cohen wrote, inclosing him assignments of the policy and necessary notices to the company, with directions for their execution, and asking, besides, for certain papers which he required to show Cohen's ownership free from the claims of other persons, the letter ending with the statement, 'Send all the papers that are herewith inclosed, duly executed, in a sealed envelop, with this draft attached (evidently the draft for the price), and upon arrival, if in good shape, we will duly honor.' Cohen replied by letter, explaining that he did not have particular papers which had been asked for, but had others which he thought were their equivalent, and proposing to execute the assignment and send these papers, the letter concluding with the statement, 'if this meets with your approval, please wire me upon receipt of this letter, and I [234 U.S. 123, 125] shall forward papers.' Hilsman answered by telegram favorably, and confirmed it by letter, saying that if the papers were sent, 'we will promptly honor the draft, provided the papers are in good shape.' On the day the telegram last referred to was received, Cohen transmitted the executed papers with the accompanying documents by mail, saying, 'I beg to inclose all documents . . . which I trust you will find correct, and will honor my draft for $460 attached to these documents.' The answer specifically alleges that the draft was sent from San Antonio for collection through a bank in that place, and as the answer states that the draft was attached to the papers, and this conformed to the instructions which we have seen were given by Hilsman to Cohen, the answer therefore in effect averred that the papers and draft were delivered to a bank in San Antonio, to be transmitted to Atlanta, the papers to be delivered to Hilsman if, after examination, he found the papers satisfactory and paid the draft. The answer then, in paragraph 8, contained the following averments:
It was averred that after the death of Cohen, both his executor and Hilsman, as owners of the policies, made demand upon the company for payment; that the company admitted liability to someone, and simply professed its [234 U.S. 123, 126] desire to have the matter as to who was owner of the policies settled so that it might make payment with safety. To reach this result it was alleged that an unsuccessful effort was made to have the parties agree to appear in a suit where, as to both of them, the company admitting liability, their rights might have been determined; and that failing in this respect, and being advised that under the law of Georgia, where the assignment to Hilsman was made, it was legal, and therefore his claim was valid, as the most expeditious way of clearing up the matter the company paid Hilsman, and took from him an indemnity bond. While admitting that before the assignment and at the time of its delivery Hilsman had no interest whatever in the life of Cohen, it was nevertheless averred that the assignment of the policies was valid ana authorized under the laws of the states of Georgia and New York. Averring, moreover, that all the acts of the company in the premises had been in good faith, and arose not from any desire to deny liability, but simply from an honest purpose to have it determined who owned the claims under the policy, it was asserted that there could be in no event any liability for interest by way of damages and for the attorneys' fees as prayed.
By leave the plaintiff amended his petition 'in replication and answer to . . . the answer of the defendant, Manhattan Life Insurance Company,' and asserted, among other things, that the assignments of the policies alleged in the answer were void upon two distinct grounds: (1) Because 'under and by virtue of the laws of the state of Texas, the state of New York, and the state of Georgia, and each of them, an assignment of a life insurance policy to a person without insurable interest in the life of the insured is invalid and not binding upon the assignor or his representative.' (2) Because 'said alleged assignments of the policies of insurance sued upon herein are invalid and not binding upon it, and were without legal consideration un- [234 U.S. 123, 127] der the laws of the state of Texas, the state of New York, and the state of Georgia, for this: that at the time that said assignments and each of them were made, executed, and delivered, that the said Jacob Cohen, J. H. Hilsman, and his said agent, were engaged in speculative transactions, and that said assignments and each of them were made as a part of and in connection with the said transactions in what is commonly called 'cotton futures,' the money being paid to and received and used by the said Jacob Cohen to speculate in future prices of cotton without its being contemplated that there would be actual delivery thereof, or bargain and sale; the said Hilsman and his agent being interested in the transaction, and the purpose of the transaction being at and before the time known to and by all the parties, which said purpose was carried into effect through the said agency, J. H. Hilsman and J. H. Hilsman, he being engaged at that time in the brokerage business; all of which said facts were well known to the defendant insurance company at and before the time that it paid the said policies to the said Hilsman, as in its said answer alleged and set forth.'
For the purpose of the trial by the court without a jury a written statement of facts was agreed to by both parties in the form of petitioner's case, the case of the defendant company, and the reply of the petitioner. The statement of the plaintiff admitted the issue of the policies, the lending of the money by the company, and the pledging of the policies to secure it, the transfer or assignment by Cohen for the consideration we have stated, and under the circumstances which we have detailed, the gambling nature of the transaction being expressly stated in accordance with the averment of the answer of the company, and with the allegation of the amended pleading of the plaintiff, the death of Cohen, the claim of both parties on the insurance company, the effort of the company to secure a suit to which both the claimants should be parties in order to [234 U.S. 123, 128] 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:
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.
[234 U.S. 123, 130] Messrs. Wilmer S. Hunt, Sterling Myer, and C. A. Teagle for defendant in error.
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 attorneys' fees claimed.
To recapitulate, it suffices to say that the assignments of error made by the company in the court below for the [234 U.S. 123, 132] 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 14th 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 [234 U.S. 123, 133] had been stipulated, the court refused to sustain the following proposition which was insisted upon by the defendant company: 'When an insurance policy is assigned as part of a gaming transaction, the law will give no relief to either party, or to their heirs, executors, or assigns, regardless of all other questions, but will leave the parties where they have voluntarily placed themselves.' [-- Tex. Civ. App. --, 139 S. W. 58.] On the contrary, the court, relying upon the Texas law upon that subject, the Georgia law on the same subject, and the principles of general law applicable thereto, held that instead of leaving the assignment growing out of the gambling transaction enforceable in the hands of Hilsman, it would, in consequence of the illegality, strike down the whole transaction, and therefore leave the policy in the hands of Cohen, the insured, to whom it belonged before the assignment had been made. And for this reason also the court decided that the sum paid by Hilsman for the transfer need not be repaid by Cohen in order to recover. On the subject of the penalties the court, referring to the cases of Fidelity Mut. Life Asso. v. Mettler, 185 U.S. 308 , 46 L. ed. 922, 22 Sup. Ct. Rep. 662, and Farmers' & M. Ins. Co. v. Dobney, 189 U.S. 301 , 47 L. ed. 821, 23 Sup. Ct. Rep. 565, held that the statute under which they were imposed was not repugnant to the 14th Amendment, and said: 'The action of the insurance company in paying the money due on the policies was not, as in South-western Ins. Co. v. Woods Nat. Bank, -- Tex. Civ. App. --, 107 S. W. 119, an offer of the insurance company to pay to the one of the two real claimants when it should be determined who he was, but a voluntary payment to the rival claimant, who had no right whatever to the amount due on the policy. The company has indemnified itself against its act in paying the money due on the policy to one who was not entitled to receive it; now let it resort to its indemnity.'
At the threshold we must dispose of a motion to dismiss. It is apparent from the statement of the case that the only express assertion of Federal right had reference to [234 U.S. 123, 134] the statutory penalty and the attorney's fee. The assignments of error, however, assert violations of rights under the Constitution in many particulars, but more especially with reference to the action of the court in treating the sales of the policies as Texas contracts, and refusing to apply the Georgia law, which admittedly differed fundamentally from that of Texas. It is elementary that a Federal question may not be imported into a record for the first time by way of assignments of error made for the purposes of review by this court. Moreover, as a general rule, it is true that for the purposes of review by this court rights under the full faith and credit clause, 1, article 4 of the Constitution, come within that class which are required to be expressly set up and claimed in the court below. Johnson v. New York L. Ins. Co. 187 U.S. 491 , 47 L. ed. 273, 23 Sup. Ct. Rep. 194; El Paso & S. W. R. Co. v. Eichel, 226 U.S. 590, 597 , 57 S. L. ed. 369, 373, 33 Sup. Ct. Rep. 179; Chicago, I. & L. R. Co. v. Hackett, 228 U.S. 559, 565 , 57 S. L. ed. 966, 968, 33 Sup. Ct. Rep. 581. Let it be conceded, as we think it must be, where the record leaves no doubt that rights under the full faith and credit clause were essentially involved and were necessarily passed upon, there would be jurisdiction to review even although such rights had not been expressly asserted below ( see Tilt v. Kelsey, 207 U.S. 43, 51 , 52 S. L. ed. 95, 99, 28 Sup. Ct. Rep. 1 ); the right to review under such condition being in effect but a result of the elementary rule that it is irrelevant to inquire how and when a Federal question was raised in a court below when it appears that such question was actually considered and decided. But these concessions are irrelevant, even although it be further conceded that the ruling of the court below as to the necessity for an insurable interest, and its governing the case by the law of Texas instead of by the law of Georgia, bring this case within the doctrines just stated. We say this because of the existence of another and fundamental question which causes the concessions stated to be immaterial. Both parties, as we have seen, wholly independent of the existence of an in- [234 U.S. 123, 135] surable interest, affirmed the illegality of the transaction out of which the assignments of the policies grew because of the alleged gambling nature of the transaction, and the admitted facts without dispute established that situation. There being thus an admission by both parties, and no dispute concerning the illegality of the transaction, and a difference only as to the consequences to arise from such illegality, it follows that the case reduces itself to a consideration of that subject. But, on coming to its consideration, it is plain that no question concerning the full faith and credit clause was involved in any contention made below by the plaintiff in error in that regard, since the rights deduced from the admitted illegality of the transaction were placed solely on considerations of the local law of the state of Texas and of the state of Georgia, deemed to be applicable to such condition of things, or upon what was deemed to be the controlling principles of general law on the subject. Indeed, so absolutely is this the case that, as we have seen, the company itself insisted on the illegality and based rights upon it. And it was only on behalf of the defendant in error that considerations involving the full faith and credit clause were suggested as controlling the results in consequence of the admitted illegality of the transaction as a gambling one. A condition which is illustrated by the fact that the reply petition of the plaintiff, while accepting and reiterating the averment of illegality made in the answer of the defendant company, in addition specially alleged that the illegality resulting from the gambling transaction caused the assignment of the policies to be void under the law of New York, where the company was organized, and under the law of Texas, as well as under the law of Georgia. And it was for this reason that the proof which was offered as to the statute law of Georgia on the subject of gambling transactions and the decision or decisions of that state, which it was deemed made the statute applicable, were tendered on behalf of the plaintiff, [234 U.S. 123, 136] and not by the defendant company. It would be indeed anomalous when the parties had both relied upon the illegality of the transaction upon grounds wholly independent of any Federal right, and the case had been decided upon that ground, which, in and of itself, is sufficient to sustain the action of the court below, to permit one of the parties, because of his dissatisfaction with the application of such principles, to assert the existence of jurisdiction because the case rested on a Federal issue. It becomes, hence, obvious that the assignments of error outside of the one referring to the repugnancy to the 14th Amendment of the statute imposing damages and penalties affords not the slightest pretext for the exercise of jurisdiction, and they therefore may be put out of view.
Coming to consider the latter subject, it may not be doubted that the nonrepugnancy of the assailed statute to the Constitution of the United States has been directly determined by this court in the cases upon which the lower court based its ruling. Fidelity Mut. Life Asso. v. Mettler, 185 U.S. 308 , 46 L. ed. 922, 22 Sup. Ct. Rep. 662; Farmers' & M. Ins. Co. v. Dobney, 189 U.S. 301 , 47 L. ed. 821, 23 Sup. Ct. Rep. 565. But it is said that, as previously upheld, the statute, as construed by the state court, contemplated a liability for the penalties or damages and attorneys' fees only in case there was a wilful refusal to pay, and therefore those decisions have no application here, since the statute, as applied in this case, enforces a liability against the company in spite of its action in the utmost good faith, taken solely for the purpose of determining to whom it must pay the sum due, liability as to which was frankly conceded. But the deduction simply disregards the basis upon which the court below rested its conclusion, and invites us upon a conception of injustice to commit a wrong by reviewing a matter of purely local concern which is not within our cognizance. We say this because clearly the court below rested its conclusion as to liability for the penalty and damages not upon the construction of the [234 U.S. 123, 137] statute suggested, but upon the premise that the payment to Hilsman by the insurance company of the sum of the policies under the circumstances stated was a payment which took it out of the category of a mere stakeholder seeking to discharge his duty in good faith, and placed it in the position of a person espousing the cause of one as against the other, and thereby subjecting himself to the legal consequences arising from such action. And the considerations which we have stated also dispose of the contention concerning the wrong which it was insisted was done in declaring the assignment of the policies void because of the gambling nature of the contract, and yet permitting the assignor to hold on to the price paid for such assignment. That question was involved in and controlled by the court's ruling concerning the illegal nature of the transaction and the principles applicable thereto, and therefore it is beyond our competency to review.
As the repugnancy of the statute concerning the damages and attorney's fee was the only semblance of ground for invoking our jurisdiction, and as that ground was conclusively established to be without merit when the writ of error was sued out, it follows that there is nothing upon which to base jurisdiction, and the writ of error must be dismissed.
Dismissed for want of jurisdiction.