by the manner of its presentation. The To these assertions the insurance company form and issue of the policies and the fact opposed contentions of law and fact, not, of fire and loss by it are not in dispute. however, by any one pleading. The followThe controversy centers in the relation of aing are the facts it alleged, stated *narrativeparticular firm of insurance brokers, resid- ly: The insurance company is a Pennsyling at Tampa, Florida, to the insurance company and the lumber company, whether they were the agents of the former or of the latter under section 2765 of the Statutes of Florida and whether they could dispense with the requirement of a clause in the policies called the warranty clause. That clause, therefore, and section 2765 (and, we may say, also section 2777, the Supreme Court of the state taking it into account), become essential elements of decision, and we exhibit them immediately. Section 2765 is as follows: vania corporation authorized to write and issue policies on property outside of Pennsylvania. Lowry & Prince, as brokers of the lumber company, applied for it (the lumber company) to the insurance company for insurance upon the lumber company's property. Policies were issued, and upon subsequent application policies were continued to be issued, including those in suit. They were executed in Philadelphia and delivered to Lowry & Prince by mail. They each contained a warranty such as has been set out as to the existence of concurrent insurance with an approved and designated company doing business in Florida, the names of the companies being changed from time to time at Lowry & Prince's request, and finally the name of the American Central Insurance Company of St. Louis, Missouri, being inserted, the ground of the request being that they were the agents of that company and would know of any cancellations by it. Lowry & Prince were not agents of the insurance company nor author "Any person or firm in this state, who receives or receipts for any money on account of or for any contract of insurance made by him or them, or for such insurance company, association, firm or individual, aforesaid, or who receives or receipts for money from other persons to be transmitted to any such company, association, firm or individual, aforesaid, for a policy of insurance, or any renewal thereof, although such policy of insurance is not *signed by him or them, as agent or representative of such company, association, firm or individual, or who in any wise directly or indirectly makes or causes to be made, any contract of insurized "to represent it in any manner, shape ance for or on account of such insurance company, association, firm or individual, shall be deemed to all intents and purposes an agent or representative of such company, association, firm or individual." Section 2777 is as follows: "Any person who solicits insurance and procures applications therefor shall be held to be agent of the party issuing a policy upon such application, anything in the application or policy to the contrary notwithstanding." The warranty clause reads: "Warranted same gross rate terms and conditions as and to follow the American Central Ins. Co. of St. Louis, Mo., and that said company has, throughout the whole time of this policy, at least $5,000 on the identical subject matter and risk and in identically the same proportion on each separate part thereof; other wise, this policy shall be null and void." or form," but as agents of the lumber company transmitted to the insurance company at its main office in Philadelphia the original and subsequent applications for policies, and as such agents received by mail the policies and transmitted the amount of premiums to the company less the usual brokers' commissions. Besides statement of the above facts the rejoinder contained the following denials: That by issuing the policies to the lumber company it, the insurance company, was engaged in the transaction of business in the state of Florida; that the lumber company paid Lowry & Prince, for it, the insurance company, any premiums on the policies; that Lowry & Prince were its agents; that prior to the furnishing of the proofs of loss by the lumber company it, the insurance company, had any notice or The clause was not complied with. The knowledge that the Missouri company had lumber company carried concurrent insur- canceled its policies on the property insured ance, but not in the Missouri company. and did not carry $5,000 on the identical The omission and substitution, it is alleg-subject-matter and risk; or that it advised ed, were at the suggestion of Lowry & or consulted with Lowry & Prince as to the Prince of Tampa, Florida, who were the agents of the insurance company and who, as such agents, caused and procured the lumber company to renew its policies from time to time, and finally the company, at the suggestion of Lowry & Prince, substituted It will be observed that the rejoinder other policies for policies in the Missouri raised no question under the Constitution of company, with the knowledge of the insur- the United States. That was done by a deance company, such other companies being murrer to the replications of the lumber comequal in credit and responsibility to the Mis-pany and was expressed, in effect, as fol Bouri company. advisability of the risk or otherwise, except to the extent that it did request information from them as to the subject-matter insured and as to the companies carrying insurance thereon. lows: (39 Sup.Ct.) "The legal predicate for the conclusion that Lowry & Prince were the agents of the defendant [the insurance company] rests upon section 2765 of the General Statutes of Florida." And, further, if the section be so construed it violates (a) the full faith and credit clause of the Constitution of the United States in that the state of Florida would thereby deny full faith and credit to the laws of the state of Pennsylvania, and, so construed, it violates (b) the privilege and immunities clause, the due process clause and the equal protection clause of the Fourteenth Amendment. a denial of due process or the equal protection of the law. The law of Florida, it is true, puts an element into the transactions of the parties to insurance and makes the person who solicits insurance and procures applications the agent of the party issuing the policy, and this against any provision in the policy to the contrary; and, even farther, the law makes the person who receives or receipts for money from the insured to be transmitted to the insurer the agent of the latter. *There is nothing unreasonable in the conditions; they regulate the transactions, do not prevent them, or even embarrass them by ambiguity. A company is informed what it may incur by underwriting insurance in the state, and it cannot assert surprise or Some other matters were set forth in the demurrer which we think are not material to mention. They only express what is expressed in other places, that Lowry & Prince were not the agents of the insurance com- ignorance-certainly the insurance company pany, but were and must be considered as agents of the lumber company, and alleged that the policies were Pennsylvania contracts, complied with the Pennsylvania law, and that to construe them as the lumber company contends they should be construed would be to deny that law full faith and credit. The ultimate question, then, is the relation in which the insurance brokers stood to the respective companies. The case would seem, therefore, not to be of broad compass, nor to justify the elaborateness of argument that has been addressed to it. We certainly do not consider a review of the many cases cited by the insurance company necessary to be made. ly, and to preclude an underwriter, after using the agency, from denying responsibility. in the present case cannot do so. It had knowledge or must be charged with knowledge of the law. It dealt through Lowry & Prince during a succession of years, permitted them to receive and receipt for premiums and transmit them to it, and consulted with them about the subject-matter and with what companies the risk was divided. It accepted the benefit of their action while premiums were being received and new policies were being issued. It is rather late to reject the consequence. Indeed, the attempt at rejection suggests the possibility of the occurrence of examples of like kind and may indicate the reason for the enactment of the law-suggests that its purpose was to preclude confusion and dispute as to the re[1, 2] The Florida law first demands at-lation of the broker to the parties respectivetention. It is explicit in its declaration. It was in existence when the policies were executed, and when the policies of which they are the successors were executed. There was, therefore, a course of conduct and transactions through a succession of years-not a single instance or an isolated one, as the insurance company contends, but a number of instances and all in relation. Nor does the case present an attempt of the Florida law to intrude itself into the state of Pennsylvania and control transactions there; it presents simply a Pennsylvania corporation having the permission of that state to underwrite policies on property outside of the state and the exercise of the right in Florida. And necessarily it had to be exercised in accordance with the laws of Florida. There was no law of Pennsylvania to the contrary-no law of Pennsylvania, would have power to the contrary. There is no foundation, therefore, for the contention that full faith was not given to a law of Pennsylvania, nor of a denial of a right to a citizen 1 of Pennsylvania, nor of 1A corporation is not a citizen within the meaning of the provision of the Constitution which secures the privileges and immunities of citizens against state legislation. Orient Ins. Co. v. Daggs, [3] These deductions are not contravened by the cases cited by the insurance company. Its basic proposition is that a state has no jurisdiction of persons or property beyond its borders or of contracts executed beyond its borders, and it invokes the proposition by the assertion that the policies were Pennsylvania contracts and being such were immune from regulation by Florida, and New York Ins. Co. v. Head, 234 U. S. 149, 34 Sup. Ct. 879, 58 L. Ed. 1259, is adduced as typical. In that case the principle was expressed that the laws of a state could not be extended beyond its confines, and it was concretely applied in the case to deny to the state of Missouri the right to extend its authority into the state of New York and there forbid a citizen of New Mexico and a citizen of New York from *making a loan agreement in New York simply because it modified a contract originally made in Missouri. The difference between that case and this is manifest, and the other cases relied on are not nearer in point. The Florida statute does not attempt to invade Pennsylvania and exercise control there. It stays strictly at home in this record and regulates the insurance company when it comes to the state to do business with the citizens of the state and their property. It is true the insurance company contends that its transactions were all isolated ones, not such as to constitute doing business in the state, and, besides, that it had no permission to be in the state and could not be presumed to be there against its laws; and, besides, again, its policies declared that they were to be effective in Pennsylvania. Cases are cited which are assumed to support these contentions. A review of them is unnecessary. The contentions confuse a simple situation and would withdraw from the jurisdiction of Florida transactions there and give them another theater and another control. In other words, would displace the law by the very things it precludes from such operation. [4] The challenging response of the insurance company is that to give the law that effect is to bring it under the condemnation of Mutual Life Ins. Co. v. Hilton-Green, 241 U. S. 613, 36 Sup. Ct. 676, 60 L. Ed. 1202. That case considered the Florida law, but did not deny its legality nor decide that the state could not make the local broker, if the designated conditions existed, the agent of an underwriter. It only decided that the knowledge of the agent of misrepresentation and fraud by the insured could not be imputed to the underwriter. It was naturally held that such imputation was a perversion of the rule which imputes an agent's knowledge to his principal and its underlying reason "that an innocent third party may properly presume the agent will perform his duty and report all facts which affect the principal's interest." To so extend the law would be a perversion of it, not a use to itmake it not a regulation but an oppression. The present case is not open to that condemnation. The lumber company was an "innocent third party" and could properly presume that Lowry & Prince would and did perform their duty and report to the insurance company their knowledge of the concurrent insurance that was carried on the property, and that the provision requiring it was equivalently complied with. there was no dereliction in the agents; the substituted security was not insufficient. If the power that was exercised had no binding effect on the insurance company it would be difficult to imagine what would have under the Florida statute. Nor can we yield And to the contention that to so construe it is "to raise special agents with limited authority into general agents." [5] The insurance company, however, insists that the policies constituted the contracts between it and the lumber company and that they were not subject to subsequent variation, and Lumber Underwriters v. Rife, 237 U. S. 605, 35 Sup. Ct. 717, 59 L. Ed. 1140, is cited. The case is not apposite. There was an attempt, in that case, to vary the written words of a contract by a concurrent parol agreement; in other words, and to quote those of the case, to establish "by parol proof that at the very moment the policy was delivered" one of its provisions was waived. It was not decided that there could not be a subsequent waiver of a provision of a policy nor that the convention of the parties could not be made subject to a law of the state. Finally the insurance company contends that the Florida law as aided by the decision of the Supreme Court of the state, gives "the agent of the insured unlimited authority to bind the insurer, and forbids inquiry into the facts, in violation of section 1 of the Fourteenth Amendment." Phases of the contention are covered by what we have said, and its main foundation that inquiry into the facts is forbidden *is not tenable. The facts were exhibited in the pleadings and they showed that the conditions for the application of the law existed. They showed insurance effected through the brokers, Lowry & Prince, their communication with the insurance company, their transmission of money to it, the payment of their commission by the company, and the consultation of the company with them as to the "subject-matter insured, and the companies carrying insurance thereon," to use the language of the rejoinder. [6] A motion to dismiss is made on the ground that the federal questions raised were not passed upon by the courts of the state, but that the courts rested their de cision on the fact that the contracts were made in Florida rather than in Pennsylvania. That, however, was a disputed proposition and the motion so far involved the merits of the case that we have considered, under such circumstances, justice would be better served by going into the merits. Beaumont v. Prieto, 249 U. S. 554, 39 Sup. Ct. 383, 63 L. Ed. 770. Judgment affirmed. (250 U. S. 76) (89 Sup.Ct.) FILLIPPON v. ALBION VEIN SLATE CO. (Argued March 18, 1919. Decided May 19, 1919.) No. 241. 1. TRIAL 312(3)-INSTRUCTIONS AFTER RETIREMENT OF JURY. Giving of supplementary instruction to the jury, after their retirement, in the absence of the parties and without affording them opportunity to be present or to make timely objection to the instruction, is error, notwithstanding opportunity afterwards given to except. 2. APPEAL AND ERROR 1031(6)—HARMLESS ERROR-PRESUMPTION. Erroneous rulings, especially in instructions in jury trials, are presumptively injurious, and furnish ground for reversal unless it affirmatively appears that they were harmless. 3. COURTS 371(5) FEDERAL COURTS STATE LAWS AS RULES OF DECISION. Under Rev. St. § 721 (Comp. St. § 1538), a servant's injury case in federal court is governed by the law of the state where the injury occurred and the trial takes place, as it stood when the cause of action arose. 4. MASTER AND SERVANT 296(14)—INJURY -OBEYING ORDERS-INSTRUCTIONS. Instruction in case of a servant injured in pushing with his hand a wedge under a block of stone that he was guilty of contributory negligence if he, though ordered by the foreman to do so, did so appreciating the danger and having time to consider, when he was face to face with a situation that would make a reasonably prudent man disobey the order, and, in spite of the dangers known to him and apparent, omits a material element, under the Pennsylvania decisions, that the servant given positive orders to go on with the work, under perilous circumstances, may recover for injuries if the work was not inevitably and imminently dangerous. On Writ of Certiorari to the United States Circuit Court of Appeals for the Third Circuit. Action by Donatto Fillippon against the Albion Vein Slate Company. Judgment for defendant was affirmed by the Circuit Court of Appeals (242 Fed. 258, 155 C. C. A. 98), and plaintiff brings certiorari. Reversed and remanded. *Messrs. Calvin F. Smith and J. Willard Paff, both of Easton, Pa., for petitioner. Messrs. Ralph B. Evans and Frank P. Prichard, both of Philadelphia, Pa., for respondent. pany, a Pennsylvania corporation doing business in that state, to recover damages for personal injuries sustained by plaintiff while in the employ of defendant, due as alleged to the negligence of defendant's foreman or superintendent under whom plaintiff was working. The grounds of negligence alleged were the failure to furnish a reasonably safe place for the work, failure to warn plaintiff of latent dangers of the work and the dangerous method of doing it, and specifically that plaintiff was directed to do the work in a particular manner under orders and *instructions of defendant's foreman, to which plaintiff was bound to conform. There was a general plea of not guilty and a trial by jury. The evidence showed that the occurrence took place July 31, 1914, while plaintiff was at work in an open quarry under the direction of a foreman or superintendent and as one of a gang consisting of four quarrymen or blockmen besides plaintiff who assisted them as an ordinary laborer or "rubbish hand." It appeared that by the usual method of work, with which plaintiff was familiar, after a block of slate has been blasted out it is raised by crowbars and by wedges of wood or iron placed beneath it, in order that chains may be placed about it to which the hoisting tackle is made fast. In case the block is small the wedges are placed by the workman's hand; it not being necessary to insert them beyond the edge of the block. In case of large blocks, the wedges are put in by hand so far as this can be done without placing the hand beneath the block, and then a stick or the handle of a tool is employed in order to push the wedge farther in, the workman being thus protected from injury in case the stone should happen to slip or drop. Plaintiff's duty as rubbish hand was that of a general utility man, expected to do whatever the foreman or superintendent might direct. On the occasion in question a large block had been blasted out and was being raised in order that chains might be put about it. Plaintiff was assisting, and had in serted a wedge as far as he could push it without putting his hand beneath the stone, but it was necessary that the wedge should be pushed further in, and he, being afraid that if he did this with his hand the block might fall upon his arm, told the foreman or superintendent that he wanted to get something with which to push the wedge. Instead of consenting, the foreman ordered him to “go ahead, go ahead," and in obedience to this he put his right hand beneath the block, when with a sudden movement the Mr. Justice PITNEY delivered the opinion block came down on his arm and crushed it * of the Court. This case involves an important question of trial practice. It was an action brought by Fillippon, a citizen of Italy and a subject of the King of Italy, against the Slate Com so that amputation was necessary. The trial judge submitted the question of defendant's negligence and of plaintiff's contributory negligence to the jury, saying in his principal charge, among other things: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "When a man accepts employment, he assumes with it the ordinary risk incident to such employment, and if you find the circumstances or situation in which the plaintiff found himself at the time of the accident, or that his performance leading up to the injury was of ordinary occurrence, then you may conclude that he had assumed the risk of the accident that has befallen him, and he cannot recover; but on his part it is contended that the situation in which he found himself at the time when the slate block was suspended or lifted by the men was of an extraordinary character, that the plaintiff when about to place the iron wedge found the stone or block large, and threatening danger, as he believed, whereupon he was suddenly and hastily summoned and directed to act by the foreman, whereupon he had but little or no time to judge of his own safety, and yielding to the judgment of his superior he acted. Now, if you find the facts as contended for by the plaintiff, I will ask you to say whether he was guilty of contributory negligence under the circumstances. Could he have protected or saved himself by the use or exercise of ordinary care? If he is to blame in part, or has in any manner contributed to his injury, he is not entitled to your verdict. The rule in negligence cases is that, while the defendant is held to exercise due and reasonable care under the circumstances, the plaintiff is also held to exercise the same degree of care, and if he does not do so, he cannot recover. Of course, if the master gives positive orders to go on with the work, under perilous circumstances, the servant may recover for an injury thus incurred, if the work was not inevitably or imminently dangerous. If the danger was imminent that faced the plaintiff, and he in the face of it did the thing that he knew, as a reasonably careful man, under the circumstances, was dangerous, he is guilty of contributory negligence and cannot recover." The bill of exceptions shows that after the trial judge had completed his instructions and the jury had retired for deliberation, and while they were deliberating, the jury sent to the judge the following written inquiry: "Whether the plaintiff in pushing the wedge beneath the block of slate with his hand, having full knowledge of the risk involved, thereby became guilty of contributory negligence, even though told by Foreman Davis to 'push it under.'" To which the trial judge replied by sending the following written instruction to the jury room, in the absence of the parties and their counsel, without their consent, and without calling the jury in open court: "If he was told to put it under as stated by the plaintiff and he did so, fully appreciating at the time the danger attending and having sufficient time to consider, when he was face to face with a situation that would have made a reasonably prudent man to disobey the orders of the foreman, notwithstanding, and he went ahead in spite of the dangers known to him and apparent, he is guilty of contributory negligence." To this action of the court plaintiff excepted at the first opportunity upon grounds that raise two questions: (a) Whether it was erroneous to give this supplementary instruction in the absence of the parties and without calling the jury in open court; and (b) whether the instruction so given was erro neous. The jury having returned a verdict in favor of defendant, and a motion for a new trial having been denied, the resulting judgment was brought under the review of the Circuit Court of Appeals and there affirmed. Fillipon v. Albion Vein Slate Co., 242 Fed. 258, 155 C. C. A. 98. Thereupon this writ of certiorari was allowed. [1] *We entertain no doubt that the orderly conduct of a trial by jury, essential to the proper protection of the right to be heard, entitles the parties who attend for the purpose to be present in person or by counsel at all proceedings from the time the jury is impaneled until it is discharged after rendering the verdict. Where a jury has retired to consider of their verdict, and supplementary instructions are required, either because asked for by the jury or for other reasons, they ought to be given either in the presence of counsel or after notice and an opportunity to be present; and written instructions ought not to be sent to the jury without notice to counsel and an opportunity to object. Under ordinary circumstances, and wherever practicable, the jury ought to be recalled to the courtroom, where counsel are entitled to anticipate, and bound to presume, in the absence of notice to the contrary, that all proceedings in the trial will be had. In this case the trial court erred in giving a supplementary instruction to the jury in the absence of the parties and without affording them an opportunity either to be present or to make timely objection to the instruction. Stewart v. Wyoming Ranche Co., 128 U. S. 389, 390, 9 Sup. Ct. 101, 32 L. Ed. 439; Aerheart v. St. Louis, I. M. & S. Ry. Co., 99 Fed. 907, 910, 40 C. C. A. 171; Yates v. Whyel Coke Co., 221 Fed. 603, 608, 137 C. C. A. 327; and many decisions of the state courts collated in 17 L. R. A. (N. S.) 609; note to State of North Dakota v. Murphy, 17 N. D. 48, 115 N. W. 84, 16 Ann. Cas. 1133. See The Circuit Court of Appeals considered that the jury had asked a plain question in writing concerning a matter of law, and the judge had answered it in writing plainly and accurately, and were of the opinion that since nothing else had occurred-the question and answer having been preserved of record and counsel having been promptly notified of what had taken place and given the opportunity of excepting to the substance of the instruction and to the manner of giving it-no harm had been done, and none *was probable to arise under like circumstances, and hence affirmed the judgment. It is not correct, however, to regard the *81 |