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Uniformed messengers furnished for the de- for each telegram he has delivered during livery of holiday goods.”

that time. Credit is sometimes allowed “American District Telegraph Company.

for the fee required for delivering notes, Uniformed messenger service. The best in packages, etc. No license has been issued the long run, the best in the short run.

to the defendants, nor has any bond been Messengers furnished for the delivery of given by either of them as required by the

ordinance. notes, invitations, packages, catalogues,

No claim is made by defendants' counsel samples, and advertising matter. Pull the call box or telephone the Western Union." that the charter of Portland did not em.

power the council of that municipality to “Notice: This company does not under regulate occupations and kindred matters take delivery of packages, notes, letters, within the city. It will be assumed, therecommunications, or the purchase or delivery fore, that such authority is expressly given of merchandise for hire. Its sole business or is granted by necessary implication. The is the furnishing of messengers at a stated power to regulate does not authorize an compensation for the time such messengers absolute prohibition of any legitimate busiare employed by patrons. The Western ness that may be pursued as of common Union Telegraph Company."

right. As a means of enforcing a reasonThe company installs in various places able regulation, however, power may be exof business in the city call boxes, by the use

ercised to exact a license to follow a parof which customers may secure messengers, ticular occupation, coupled with an accoma sufficient number of whom are always panying prohibition that, in the event of kept to accommodate patrons in delivering

a failure to pay the stipulated fee and to telegrams. The company also receives calls procure the requisite evidence of authority for messengers, who deliver packages, notes, to eonduct the business, pursuit thereof etc., within the city. In many instances will be unlawful. Dill Mun. Corp. 5th ed. when such calls are received the agents of $ 665. A textwriter, in distinguishing bethe company are not advised whether a mes

tween a tax and a license, observes: "It is senger is desired to bring to the office a

therefore conclusive that the general retelegraph message or to carry a private quirement of a license, for the pursuit of note or package to some other person in any business that is not dangerous to the Portland. When a sufficient number of mes

public, can only be justified as an exercise sengers are not in attendance at the com- of the power of taxation, or the requirement pany's office properly to transact the tele of the compensation for the enjoyment of a graphic business, a messenger is refused privilege or franchise." 1 Tiedeman State when called for any other purpose. When, & Federal Control of Persons & Property, however, messengers are available, they are sent in response to calls of every kind, and

The production of a revenue, however, is without information as to the service re

not conclusive evidence of an exercise of quired. Upon receiving a call the com

the power to tax, for a municipal corporapany's agent directs a messenger to go to tion may be authorized to issue licenses the locality indicated, where he is instruct which incidentally result in raising revenue. ed as to the place and manner of deliver- i Cooley, Const. Lim. 5th ed. 244.

As a reasonable exercise of a measure of ing a message or package, and thereupon the boy executes the order, performing the the police power and as an incident to the service required. Neither the company nor authority to demand a license fee as a conits agent is usually informed as to the condition precedent to the right to pursue an tents or value of the package delivered, or occupation in which members of the public the importance of the message handed over may be interested or whereby they may be to a messenger, other than a telegraphic affected, a municipal corporation, under a communication. In answering a call the grant of power to regulate, may also lawmessenger informs the patron what the fully require the licensee to execute to the charges will be for performing the service city a reasonable bond for the faithful perdemanded, and in most instances the boy formance of the service authorized, and to collects the prescribed fee, which is calcu- operate as indemnity for damages which lated upon the basis of 40 cents per hour individuals may sustain by reason of fraudfor deliveries made to persons within the ulent conduct of the business. Freund, Pol. city. Such fee, when thus received, is giv- Power, § 40; State v. Harrington, 68 Vt. en to the company's agent, who retains it, 622, 34 L.R.A. 100, 35 Atl. 515. The ordikeeping account thereof, and at the end of nance in question is reasonable in its terms, the month he pays the messenger who per- general in its application to all parties of formed the service 60 per cent of the sums the same class, consonant with the powers so received, and also gives the boy 2 cents and purposes of the city of Portland, con

p. 495.

sistent with the laws and policy of the part of its public employment, holds itstate, and is a proper exercise of the police self out as ready to engage in carrying from power enacted for the purpose of regulat place to place as directed, within the city ing, and not restraining, occupations. Ex of Portland, notes, small packages, etc., unparte Frank, 52 Cal. 606, 28 Am. Rep. dertaking to perform such service for hire 642.

as a business, furnishing messengers at all It is contended that the messenger busi- times, except when they are otherwise enness, disclosed by the stipulated facts, as gaged in delivering telegraph messages, and, far as it relates to the delivery of notes, in respect to such packages as can reasonpackages, etc., is not conducted by the West. ably be transported by messengers, it is ern Union Telegraph Company; that its un

a common carrier and ordinarily liable to dertaking in this particular is to furnish the obligations imposed by the principles of messengers to its patrons, whose servants the common law upon such class of publicthey are for the time employed; that the service corporations. company's full duty is discharged when it It remains to be seen whether or not the exercises ordinary care in selecting the mes

messengers of the Western Union Telegraph sengers, and hence an error was committed Company when engaged in delivering notes, in rendering the judgment herein. "One

packages, etc., in response to calls, are its who employs messengers to deliver parcels,” servants or pro hac vice are the employees says a text writer, “is a common carrier as

of its patrons. to goods received for delivery in that way."

In Haskell v. Boston Dist. Messenger Co. 6 Cyc. 369. "A common carrier,” observes 190 Mast. 189, 2 L.R.A. (N.S.) 1091, 112 Mr. Justice Lord, in Thompson-Houston Am. St. Rep. 324, 76 N. E. 215, 5'Ann. Cas. Electric Co. v. Simon, 20 Or. 60, 63, 10 796, 19 Am. Neg. Rep. 289, the plaintiff L.R.A. 251, 23 Am. St. Rep. 86, 25 Pac. by means of a call box signaled the defend147, "is such because his duties partake of ant for a messenger, upon whose arrival a public character.” In White v. Postal there was delivered to him a receipted bill Teleg. & Cable Co. 25 App. D. C. 364, 367, for rent, amounting to $58.33, and he was 4 Ann. Cas. 767, which was an action to sent to collect that sum from a tenant. The recover money alleged to have been lost by messenger received the money, but failed to a messenger furnished by the defendant to return it, whereupon an action was insti. the plaintiff, the court, referring to such tuted to recover it; and was held that business, remarked : "In passing, it may a corporation supplying messenger boys to be said that in all the larger cities there be employed in ordinary messenger service are now companies engaged in this line of and controlled by those calling for them service, and undoubtedly they are in a cer- was not a common carrier, and that it per: tain sense and to a certain extent common formed its duty towards its customers by carriers."

exercising ordinary care in the selection In Gilman v. Postal Teleg. Co. 48 Misc. and employment of suitable persons as mes372, 373, 95 N. Y. Supp. 564, 565, the court, sengers, and, no special agreement having in speaking of the defendant, makes the been made with the company in regard to following assertion: "It is in evidence, the performance of such service, the patron, however, that it installs call boxes in hous- as the employer of the boy, could not rees, and sends messenger boys, in response to cover the loss from the corporation supply. calls, to carry out such errands as may be ing him, without showing negligence on its intrusted to them, and that this service part in selecting the boy as a messenger. frequently involves, to the knowledge of the

So, too, in Hirsch v. American Dist. Teleg. company, the carrying of parcels. So far as

Co. 112 App. Div. 265, 98 N. Y. Supp. 371, appears, this service is confined to the car.

a staff of messengers was maintained by rying of such small parcels as can be car

the defendant corporation, which furnished ried by hand by a lad, and it does not

boys to its patrons needing their services, appear that the defendant is equipped or prepared to carry more bulky merchandise. the charges therefor being based upon the To the extent, then, that it offers its serv.

time employed. The plaintiff notified the ices to the public as a carrier, that is, so

defendant's manager of one of its offices far as relates to small packages, the de- that he needed a boy, and accepted the lad fendant must, I think, be regarded as

offered, to whom he gave a package with common carrier and held to be responsible instructions to take it to a designated in that capacity.”

place and deliver it. The package was It is evident, we think, from the agreed never delivered, and, in an action to restatement of facts, that the Western Union cover the value thereof, it was ruled that Telegraph Company, in the exercise of alin furnishing such boy the company was




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not a common carrier, and that no contract OREGON SUPREME COURT. had been entered into between the plaintiff

(Department No. 1.) and the defendant so as to render it liable

GEORGE C. MOORE, Respt., for the failure of the boy to deliver the package.

ÆTNA LIFE INSURANCE COMPANY, We do not assent to the doctrine an

Appt. nounced in these cases that a company which, for the purpose of despatching a part


146 Pac. 151.) of its business, maintains messengers, whom it sends out upon call to its patrons, is Insurance accident loss of hand

construction, not in any sense a common carrier. Whether or not, without a statute or an ordinance dental loss of hand by removal at or above

A policy providing compensation for acciimposing a duty upon such company to se. the wrist covers an accident requiring the cure a license and to execute a bond to in- removal of all the bones of the fingers at demnify its patrons, a recovery can be had the wrist, leaving only flesh enough to profor a loss occasioned by the failure of its tect the bones remaining and the thumb in

a stiffened and useless condition. messengers safely to deliver notes, packages, etc., received by him, is not necessary to

(February 16, 1915.) inquire. The ordinance involved permits persons, firms, and corporations engaged in


PPEAL by defendant from a judgment delivering messages or merchandise as

of the Circuit Court for Multnomah part of their business to pursue their re- County in plaintiff's favor in an action spective occupations without the necessity brought to recover the amount alleged to be of procuring a license or being obliged to due

accident insurance policy.

Affirmed. execute a bond. Pursuant to such provision of the municipal law, the Western Union

The facts are stated in the opinion.

Messrs. Snow & McCamant and MacTelegraph Company could undoubtedly deliver to its patrons in the city of Portland Cormac Snow, for appellant:

The loss of the use of a hand may be held telegraphic messages



to be the loss of a hand within the meaning wires. If the company, either directly or of a policy which provides for indemnity in indirectly, engage in the delivery of notes, case of "the loss of a hand.” packages, etc., for others, it must first

Sheanon v. Pacific Mut. L. Ins. Co. 77 secure a license and execute the bond re-Wis. 618, 9 L.R.A. 685, 20 Am. St. Rep. 151, quired. The object of the enactment was to impose that duty.

Note. - Accident insurance: extent of The installation of call boxes in offices

loss or mutilation contemplated by and places of business for the accommoda

provision as to loss or removal of

bodily member or part thereof. tion of its patrons, the collection of the fee for the messenger service, and the re

As to what constitutes total disability tention of 40 per cent thereof, the adver- see notes to Turner v.

within meaning of accident or health policy,

Fidelity & C. Co. tisements that were issued to secure patron-, 38 L.R.A. 529; Keith v. Chicago, B. & Q. R.

that the company evidently Co. 23 L.R.A.(N.S.) 352; Industrial Mut. obtained a very fair share of the compensa. Indemnity Co. v. Hawkins, 29 L.R.A.(N.S.) tion paid for the service rendered.

635; and Brotherhood of Locomotive FireThis being in the nature of a criminal men & Enginemen v. Aday, 34 L.R.A. (N.S.)

126. action, the evidence must prove a violation

As to liability for indemnity against of the provision of the ordinance by a pre total disability which results from an injury ponderance only, and such proof need not for which an independent indemnity is probe direct. It may consist of a reasonable vided, see note to Anderson v. Ætna L. inference which the trial court was author. Ins. Co. 28 L.R.A. (N.S.) 730. ized to deduce from a consideration of the Under provisions against loss of hands or entire circumstances developed by the stip

feet, generally. ulated facts. When viewed in this light,

It has been a common contention of init is believed that the company, notwith

surers that a recovery could not be had standing its published disclaimer, under- under accident policies insuring generally took the delivery of packages, notes, etc., against the “loss” of hands or feet, where for hire; and, such being the case, the there has been no amputation or severance judgment be affirmed, and it is so ordered from the body of the injured member. The

courts, however, have as a rule refused to Burnett, McBride, and Benson, JJ., have held that under them a recovery may

give such meaning to these provisions, and

age show

be had if the insured, by reason of his


46 N. W. 799; Fuller v. Locomotive Engi- , caused by the actual removal of that memneers' Mut. Life & Acci. Ins. Asso. 122 Mich. ber, then a mere loss of the use of the mem548, 48 L.R.A. 86, 80 Am. St. Rep. 598, 81 ber will not entitle the assured to the inX W. 326.

demnity. Where a policy provides that an in- Stoner v. Yeomen of America, 160 Ill. demnity will be paid in case of the removal | App. 432; Mady v. Switchmen's Union, 116 or severance of a member of the body, the Minn. 147, 133 N. W. 472; Chevaliers v. loss of the use of a member is not such a Shearer, 27 Ohio C. C. 509. loss as will entitle the assured to the in- Messrs. Charles A. Hart and Charles demnity.

E. McCulloch, for respondent: Fuller v. Locomotive Engineers' Mut. Life Terms such as "removal of one hand at & Acci. Ins. Asso. supra; Brotherhood of R. or above the wrist” and “severance of one Trainmen v. Walsh, 89 Ohio St. 15, 103 entire hand” are to be construed according V. E. 759.

to the ordinary and fair meaning of the Where a policy provides that an indemni- words used, and not in an accurately anty will be paid in case of the loss of a atomical or technical sense. member, and uses other words which inti Fuller, Acci. & Employer's Liability Ins. mate that the loss referred to must be' p. 352; Garcelon v, Commercial Travelers' injury, has been deprived of the use of the moved, Sisson v. Supreme Ct. of Honor, 104 member. This was the construction adopted Mo. App. 54, 78 S. W. 297 ; in the following cases: Supreme Ct. of —where there was evidence that the inHonor v. Turner, 99 Ill. App. 310; Theorell sured while working at his trade as a car. V. Supreme Ct. of Honor, 115 Ill. App. 313; penter fell and received injuries resulting Sisson v. Supreme Ct. of Honor, 104 Mo. in paralysis of his lower limbs so that he App. 54, 78 S. W. 297; Gahagan v. Mor- was unable to stand without support, alrisey, 6 Pa. Dist. R. 135; Lord v. American though he was able to move about with Mut. Acci. Asso. 89 Wis. 19, 26 L.R.A. 741, crutches, Theorell v. Supreme Ct. of Honor, 46 Am. St. Rep. 815, 61 N. W. 293; Shea- 115 Ill. App. 313. non v. Pacific Mut. L. Ins. Co. 77 Wis. 618, Although the last two cases are not en9 L.R.A. 685, 20 Am. St. Rep. 151, 46 N. W. tirely clear upon the point, the question 799.

held" to be for the jury was evidently C'nder provisions in substance providing whether such facts existed as would, under for indemnity in case of the loss of hands the construction placed upon the provisions or feet, there was held to be a loss within of the policy by the court, justify a rethe meaning of the provision where there covery, and not whether certain facts when was an entire destruction of the use of found would authorize a recovery under the both of a person's feet by paralysis caused language of the policy as construed by the by an accidental pistol wound in the back. jury. Sheanon v. Pacific Mut. L, Ins. Co. 77 Wis. And in Lord v. American Mut. Acci, Asso. 618, 9 L.R.A. 685, 20 Am. St. Rep. 151, 46 89 Wis. 19, 26 L.R.A. 741, 46 Am. St. Rep. N. W. 799.

815, 61 N. W. 293, under a policy providing And also where a load of gun shot passed for a certain indemnity in case of injuries through the palm of the insured's hand, resulting in the loss of one or both hands tearing the muscles of the thumb and causing immediate total disability, it was injuring the abductor muscles, and destroy- held a question of fact for the jury whether ing all practical use of the hand for labor- an injury resulting in the tearing off of ing purposes. Supreme Ct. of Honor v. three fingers, and a part of the other, and Turner, 99 Ill. App. 310.

cutting the hand, and destroying the joint And in Gahagan v. Morrisey, 6 Pa. Dist. of the thumb, was the loss of one hand R. 135, where the insured had lost the use causing immediate and total disability. of a hand, although he was employed by the It has been held that a recovery for the company for which he was working when loss of one hand cannot be had under a insured in another line of work, it was policy providing for an indemnity for the held that under a provision that any mem- loss of one entire hand and one entire foot, ber suffering "the loss of a hand at or or of two entire hands or two entire feet, above the wrist joint” should be considered since such policy provides for an indemnity totally disabled, the entire loss of the use in case of loss of two, and not of one, limb of a hand might fairly be regarded as or part of two limbs. Gentry v. Standard coming within the terms of the policy, and Life & Acci. Ins. Co. 6 Ohio S. & C. P. Dec. that it did not necessarily apply only to 114. cases of an amputation of the hand.

In Stoner v. Yeomen of America. 160 III. In the following cases under provisions App. 432, it was held that the insured had providing for indemnity in case of the loss not suffered the “loss of a hand at or above of hands or feet, the question whether there the wrist” where he had lost his third and had been a loss warranting a recovery was little finger, and injured the knuckle joint held for the jury:

of the middle finger, but had at least half -where there was evidence that a hand of the hand left, since it was held that he was crushed so that it was of no practical had not lost a hand at or above the wrist. use, although the whole hand was not re- In Stevers v. People's Mut. Acci. Ins.


& Eastern Acci. Asso. 184 Mass. 8, 100 Am., Travelers' Ins. Co. 88 Hun, 94, 34 N. Y. St. Rep. 540, 67 N. E. 868; Sneck v. Travel. Supp. 545; American Surety Co. v. Pauly, ers' Ins. Co. 88 Hun, 94, 34 N. Y. Supp. 170 U. S. 133, 42 L. ed. 977, 18 Sup. Ct. Rep. 545, affirmed in 156 N. Y. 669, 50 N. E. 552; Grand Rapids Electric Light & P. Co. 1122; Sheanon v. Pacific Mut. L. Ins. Co. v. Fidelity & C. Co. 111 Mich. 148, 69 N. 77 Wis. 618, 9 L.R.A. 685, 20 Am. St. Rep. W. 249; Darrow v. Family Fund Soc. 116 151, 46 N. W. 799; Herman v. Merchants' N. Y. 537, 6 L.R.A. 495, 15 Am. St. Rep. Ins. Co. 81 N. Y. 184, 37 Am. Rep. 488. 430, 22 N. E. 1093.

If the language of the policy is fairly and An insurance contract is to be interpreted reasonably susceptible of two constructions according to its true character and purpose, -one favorable to the assured and the other and in the sense in which the insured had to the defendant--the one is to be adopted reason to suppose it was understood. which is the most favorable to the as- Hoffman v. Ætna F. Ins. Co. 32 N. Y. 413, sured.

88 Am. Dec. 337; Sneck v. Travelers’ Ins. Fenton v. Fidelity & C. Co. 36 Or. 283, Co. 88 Hun, 94, 34 N. Y. Supp. 545. 48 L.R.A. 770, 56 Pac, 1096; Sneck In a policy which undertakes to pay for Asso. 150 Pa. 132, 16 L.R.A. 446, 24 Atl. , preceding subdivision as precluding a recov662, under an accident policy excluding ery unless there had been a severance or liability for injuries resulting directly or amputation of the hand or foot, the insurers indirectly from disease, and insuring have in some policies inserted express proagainst disablement by “the loss of one visions whereby they have sought to limit hand or foot,” it was held that no recovery their liability to injuries resulting in a could be had where the insured's foot was physical separation, severance, or amputanot injured, but, by reason of an injury to tion of hands or feet. In their endeavor to his back, he was able to use it only when thus limit their liability they have been he wore a plaster jacket, which prevented reasonably successful. the injury to his back affecting the use of Thus, under a policy providing that any his foot.

member of a benefit association who should In Fidelity & C. Co. v. Hart, 142 Ky. 25, suffer the amputation or severance of an 133 S. W. 996, where an accident policy entire hand at or above the wrist joint provided that if the insured should contract should be considered totally and permanentany disease which should result, independ, ly disabled, but not otherwise, it has been ently of all causes, in permanent paralysis, held that no recovery can be had where a whereby the insured should entirely lose the member receives an injury which necessiuse of both hands or both feet or of one tates the amputation of his thumb, and hand and one foot, and on the account of crushed and injured the hand from above either of the conditions be permanently un. the wrist joint so that he was permanently able to engage in any work or occupation unable to use it to perform any manual for wages or profit, a specified indemnity service whatever. Brotherhood of R. Trainshould be paid upon the filing of satis- men v. Walsh, 89 Ohio St. 15, 103 N. E. factory proof of the continuance for fifty- 759. two consecutive weeks of such paralysis; Under a policy providing for indemnity and it was further provided in another for total disability by "suffering, by means clause that written notice as early as might of a physical separation, the loss of four be reasonably possible must be given of fingers of one hand at or above the third disability for which a claim was to be made joint

providing the above ampuwith full particulars, and that affirmative tations occur” it has been held that there preliminary proofs of paralysis must be could be no recovery where an insured refurnished within fourteen months from the ceives an injury resulting in the amputation date of the beginning of paralysis. The of the second, third, and fourth fingers insured in the case claimed to recover be above the third joint, and injuring the bone cause of the entire loss of the use of his in the palm of the hand connecting with left hand and foot caused by a stroke of the first finger, and causing that finger to paralysis. It was held that, in order to be deflected somewhat from its normal line, recover indemnity, the paralysis must have and a loss of about one half the power and deprived the insured of the capacity to labor efficiency of the finger, since such injury so as to earn wages for fifty-two consecutive does not come within the language of the weeks, but that it need not have been a provision, as the insured's first finger and total paralysis of the limbs at the beginning, thumb remained attached to the hand. but it was only necessary that within fifty- Mady v. Switchmen's Union, 116 Minn. 147, two weeks of its beginning it should have 133 N. W. 472. resulted in such total paralysis, and that And it has been held that the amputation this condition should have been permanent. of a person's foot so as to leave all of the Provisions for indemnity in case of loss by the foot, and possibly a part of the ball of

heel and substantially all of the hollow of means of physical separation, severance, the foot, does not give any right to the full or amputation.

amount of insurance on the ground that all In view of the court's refusal to construe the use of the foot is lost, under a by-law provisions such as those considered in the l of a mutual benefit association providing

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