Mut. L. Ins. Co. 200 Ill. 270, 65 N. E. 694; Harris v. Schrivener, Tex. Civ. App. -, 78 S. W. 705; Merchants' Ins. Co. v. Clapp, 11 Pick. 56; Hearne v. New England Mut. Ins. Co. 20 Wall. 488, 22 L. ed. 395; Home F. Ins. Co. v. Kuhlman, 58 Neb. 488, 76 Am. St. Rep. 111, 78 N. W. 936; St. Paul F. & M. Ins. Co. v. Coleman, 6 Dak. 458, 6 L.R.A. 87, 43 N. W. 693.

Mr. A. G. Moseley also for appellant. Messrs. Larkin E. Crouch, Litton Hickman, and Thomas H. Malone, appellee:

The defendant invokes the rule applicable to marine insurance, life insurance, and fire insurance, that, where a risk has once attached, even for a moment, the insured is not entitled to a return of any part of the premium paid.

This rule seems to have been first announced by Lord Mansfield in the case of Tyrie v. Fletcher, Cowp. pt. 2, p. 666, 14 Eng. Rul. Cas. 502. In that case a ship was insured for twelve months at a stipuforlated premium, but was captured by an enemy in about two months after sailing, and suit was brought against the insurer for a return of a proportionate part of the premium.

In cases of compensated suretyship, where the public official has died during the continuance of his term, the surety company is thereby discharged from any future liability, and a promise on its part to return the unearned premiums is implied in law. Bostick v. Maxey, 5 Sneed, 173; Frost, Guaranty Ins. 2d ed. § 153.

There was a contract implied in fact, whereby the defendant, for a valuable consideration, bound itself to return the unearned premiums.

Hill v. Childress, 10 Yerg. 514; Heffron v. Brown, 155 Ill. 322, 40 N. E. 583; Bixby v. Moor, 51 N. H. 402.

For,

Lord Mansfield said: "If that risk of the contract of indemnity has once commenced, there shall be no apportionment or return of premium afterwards. though the premium is estimated, and the risk depends upon the nature and length of the voyage, yet, if it has commenced, though it be only for twenty-four hours or less, the risk is run; the contract is for the whole entire risk, and no part of the consideration shall be returned. They might have insured from two months to twelve months, or in any less or greater

Green, J., delivered the opinion of the proportion, if they had thought proper so

court:

Peter W. Crouch was elected trustee of Davidson county at the August election in 1912. He was inducted into office in Sep- | tember, 1912, and gave bond in the sum of $1,000,000 to the state and county, to secure the faithful performance of his duties during his term, with the defendant company as surety on his bond. At the same time a contract was entered into between Mr. Crouch and the defendant company, whereby the latter agreed to become his surety for a premium of $4,000 per anThe first year's premium was paid in advance.

num.

Mr. Crouch died in February, 1913, about six months after he qualified as trustee. This suit was brought by his widow, as administratrix, to recover $2,000, or one half of the first annual premium paid to defend ant company as aforesaid.

A demurrer was interposed by the defendant, which was overruled by the chancellor, and defendant permitted to appeal. The first ground of demurrer makes the point that, when Mr. Crouch took charge of the office, the entire risk was assumed by the defendant and the entire premium earned under the contract; that the premium was not apportionable, and complainant was not entitled to a return of any part thereof, even though Mr. Crouch died when about one half of the year for which he was bounded remained.

to do; but the fact is that they have made
no division of time at all, but the contract
entered into is one entire contract from the
19th of August, 1776, to the 19th of August,
1777, which is the same as if it had ex-
pressly said:
'If you, the under-
writer, will insure me for twelve months,
I will give you the entire sum; but I will
not have any apportionment.' The ship
sails, and the underwriter runs the risk
for two months. No part of the premium
shall be returned."

This case has been universally followed, and the rule therein stated has been applied to life insurance, fire insurance, and casualty insurance contracts. May, Ins. § 567; Joyce, Ins. § 1420; Mutual L. Ins. Co. v. Kelly, 52 C. C. A. 154, 114 Fed. 268; Dickerson v. Northwestern Mut. L. Ins. Co. 200 Ill. 270, 65 N. E. 694; New York F. M. Ins. Co. v. Roberts, 4 Duer, 141; Waters v. Allen, 5 Hill, 421; Connecticut Mut. L. Ins. Co. v. Pyle, 44 Ohio St. 19, 58 Am. Rep. 781, 4 N. E. 465; Hoyt v. Gilman, 8 Mass. 336; Joshua Hendy Mach. Works v. American Steam Boiler Ins. Co. 86 Cal. 248, 21 Am. St. Rep. 33, 24 Pac. 1018; Blaeser v. Milwaukee Mechanics' Mut. Ins. Co. 37 Wis. 31, 19 Am. Rep. 747.

This rule, in fact, seems not to have been questioned in any American case, but has been accepted and applied by the courts as settled law.

This rule is said to be based on just and

equitable principles, for the insurer has, by taking upon himself the whole peril, become entitled to the whole premium, and, although the application of the rule may result in profit to the insurer, it is but a just compensation for the dangers or perils assumed. It has also been pointed out that the danger incurred may be greater in one moment than during the entire voyage, and it would be extremely difficult to fairly apportion the premium, if a recovery of any part thereof were permissible. Joyce, Ins. § 97.

All insurance, fire and life, as well as guaranty, is somewhat personal in its nature, resting to a great extent on the reputation and character of the insured, but all such contracts are essentially entire. It is impossible to say what part of the risk has been run, or how much of the consideration has been earned, at any particular time during the period of insurance. Even though, therefore, the completion of such a contract becomes impossible, there is no way to fix the value of the services rendered.

We think, therefore, the chancellor was in error in overruling the first ground of demurrer. It is impossible to apportion such a hazard, and, the whole risk having attached, there can be no return of any part of the premium, upon the facts so far stated.

It is difficult to see why this rule should not apply with equal vigor to fidelity insurance. Upon what fair basis can the premium, the consideration paid for undertaking the risk of fidelity, be apportioned? This hazard is proportioned to the fallibility of the subject of insurance, and its extent is measured by the amount of funds in his custody. Moral stamina is a varying quantity, even in the same person. It is influenced by many things. It is impossible to say at what time the temptation of an individual bonded is greatest and the greatest risk is being run by the surety. Likewise, the amount of money in the hands of the official or the employee fluctuates from day to day, and it is diffi-standing that a portion of this premium cult and often impossible to determine on what day the liability of the surety is greatest in extent.

Who can say how much of the surety's risk was run during any given period? How then can it be determined what part of the premium has been earned during any given period? A premium cannot be apportioned where a risk is unapportionable. Premium and risk are interdependent and inseparable. It being impossible to say what part of a risk has been run, it is likewise impossible to say what part of a premium is unearned,-what part should be returned.

The case before us illustrates the difficulty of attempting an apportionment of premiums in fidelity insurance, for it here appears that the great bulk of the funds passing through this official's hands were collected and disbursed by him on one month of the twelve for which he was bonded. That is to say, this surety's risk was greater in extent for this one month than during the remaining eleven months combined.

The bill contains other features which we have not commented upon, with reference to certain dealings between the complainant and the surety company after the death of Mr. Crouch. In these negotiations it is averred that Mrs. Crouch permitted the defendant to take charge of the trustee's office and obtain certain fees therefrom, after her husband's death, with the under

was to be returned to her. Some questions of estoppel and waiver are made by the bill which the demurrer does not reach. At any rate, the matters so alleged require an answer. The chancellor correctly so held, overruling other grounds of demurrer.

The case will therefore be remanded for answer and further proceedings, and the surety company will pay the costs of this appeal.

An argument is made on behalf of Mrs. Crouch in which it is urged that this contract of suretyship should be treated as a contract for personal services, which it became impossible to execute by reason of the death of one of the parties, and it is insisted that only so much of the considera-ley tion should be retained as might be recov ered on a quantum meruit.

Generally, as to operating automobile on highway without license, see notes to Dudv. Northampton Street R. Co. 23 L.R.A. (N.S.) 561; Hemming v. New Haven, 25 L.R.A. (N.S.) 734; Lindsay v. Cecchi, 35 L.R.A. (N.S.) 699; Atlantic Coast Line R.

of one injured by collision with the automo

PPEAL by defendant from an order of

bile, unless his conduct is such under all A the Circuit Court for Milwaukee Coun

withdrawal of issue from

2. Withdrawing from the jury the ques

tion whether or not defendant in an action

to recover damages for injuries inflicted by a moving automobile was exceeding the speed limit is ground for new trial at the instance of plaintiff, whose award of compensatory damages was small, even though he was found to be guilty of contributory negligence, since the withdrawal of such issue would deprive plaintiff of the benefit of evidence in support of it in determining the question of his negligence.

(April 13, 1915.)

Co. v. Wier, 41 L.R.A. (N.S.) 307; Conroy, v. Mather, 52 L.R.A. (N.S.) 801; and Armstead v. Lounsberry, ante, 628.

As to reciprocal duty of operator of automobile and pedestrian to use care, see note to Deputy v. Kimmell, 51 L.R.A. (N.S.) 989, and notes there referred to.

As to duty and liability of operator of automobile with respect to horses encountered on the highway, see notes to Messer v. Bruening, 48 L.R.A.(N.S.) 946.

For notes as to rules of road governing vehicles, see Index to L.R.A. Notes, "Negligence," § 25.

This note does not deal with the question as to what amounts to contributory negligence on the part of a plaintiff injured by an automobile, but is concerned solely with the consideration whether a violation of law by the driver of an automobile will prevent him from taking advantage of the plaintiff's contributory negligence as a defense.

Little direct authority exists upon the question, but it seems clear that the mere violation of an ordinance by the operator of a car should not preclude him from setting up the contributory negligence of one suffering an injury by the operation of the machine as a defense.

In some cases it is impliedly recognized that a violation of an ordinance by a defendant in an action to recover for the negligent operation of his automobile will not preclude him from defending on the ground of the plaintiff's contributory negligence. Thus, in the following cases, brought to recover for an injury sustained by reason of the negligent operation of an automobile, in which it appeared that the defendant had violated an ordinance in operating his car, it seems to have been assumed that no recovery could be had if the plaintiff's negligence proximately contributed to this injury, there apparently having been no contention or suggestion that the defendant's act would allow the plaintiff to recover if he was guilty of contributory negligence: Grier v. Samuel, Del. 86 Atl. 209; Fox v. Barekman, 178 Ind. 572, 99 N. E. 989; Hartje v. Moxley, 235 Ill. 164, 85 N.

ty awarding plaintiff a new trial after a verdict in his favor for a less sum than de

manded, in an action brought to recover damages for loss of services of his minor son arising from injuries inflicted by an automobile alleged to have been negligently driven by defendant. Affirmed.

Statement by Siebecker, J.:

This is an action by Charles Ludke to recover for loss of services of his minor son, Herbert Ludke, who was injured by an automobile owned and driven by the defendant. The boy was thirteen years of age. The accident occurred June 8, 1913, upon Forrest Home avenue near the intersection

E. 216; Bouma v. Dubois, 169 Mich. 422, 135 N. W. 322; Kurtz v. Tourison, 241 Pa. 425, 88 Atl. 656; Posener v. Long, - Tex. Civ. App. -, 156 S. W. 591; Coughlin v. Weeks, 75 Wash. 568, 135 Pac. 649; Lloyd v. Calhoun, 78 Wash. 438, 139 Pac. 231.

And in Davis v. John Breuner Co. 167 Cal. 683, 140 Pac. 586, the mere fact that the defendant in an action to recover for personal injuries caused by an automobile was violating a speed ordinance, and therefore as a matter of law guilty of negligence, did not preclude the court from finding that the plaintiff's contributory negligence in heedlessly walking into the street was the efficient and proximate cause of the injuries suffered by him.

In Banks v. Braman, 188 Mass. 367, 74 N. E. 594, which was an action to recover for injuries received by being struck by an automobile alleged to have been run at an excessive speed, an instruction which laid down the principle that if the defendant ran his automobile with gross and wanton negligence, and with a reckless disregard of the rights of the plaintiff, the latter was not required to show an exercise of due care on his part in order to recover, was held insufficient, because the court failed to point out clearly the difference between ordinary negligence and gross negligence. With reference to the plaintiff's right to recover in cases involving wilful negligence, without showing an exercise of due care on his part, the court said: "The ground on which it is held that, when an act of the defendant shows an injury inflicted in this way, the plaintiff need introduce no affirmative evidence of due care, is that such a wrong is a cause so independent of previous conduct of the plaintiff, which, in a general sense, may fall short of due care, that this previous conduct cannot be considered a directly contributing cause of the injury, and, reference to such an injury, the plaintiff, without introducing evidence, is assumed to be in a position to claim his rights and to have compensation. So far as the cause of his injury is concerned, he is in the position of one who exercises due care." J. T. W.

of Fourteenth avenue, in the city of Milwaukee. It appears that a person riding in a passing automobile had lost his hat, and that the boy endeavored to recover it, and, while doing so, was struck and seriously injured by the automobile owned and driven by the defendant. The complaint alleges that defendant was negligent in that he was operating his car at a high and dangerous rate of speed; that he operated it recklessly; and that he endangered property and life and limb of people who might be upon the street, by such negli-waukee Trust Co. v. Milwaukee, 151 Wis. gent operation of the car.

The defendant moved for judgment upon the verdict, which motion was denied. The plaintiff's motion to set aside the verdict and for a new trial was granted, and a new trial ordered. The court announced that the new trial was granted for the reasonable fact in the case. that the withdrawal of questions 2 and 3 from the special verdict and the consideration of the jury operated to the prejudice of plaintiff's legal rights. From such order this appeal is taken.

Messrs. Doerfler, Green, & Bender, for victed of negligent conduct which consists appellant:

Siebecker, J., delivered the opinion of | tion here is of the latter class. the court:

The ruling of the trial court presents the question whether or not the contributory negligence of a traveler upon a city street is available as a defense in an action for personal injury alleged to have been caused to such traveler by a person who negligently drives an automobile in excess of the legal speed limit. The trial court held that if a violation of § 1636-49, prescribing a speed limit of 15 miles per hour for running automobiles on city streets, resulted in personal injuries to a traveler on such streets, then the defense of contributory negligence of such injured traveler is not available in an action for recovery of damages for such injury. The court based the ruling upon the authority of the decisions in Pizzo v. Wiemann, 149 Wis. 235, 38 L.R.A.(N.S.) 678, 134 N. W. 899, Ann. Cas. 1913C, 803, 3 N. C. C. A. 149, and Pinoza v. Northern Chair Co. 152 Wis. 473, 140 N. W. 84, wherein it was held that "where the violation of a statute designed to protect persons against bodily injuries is made a criminal offense, such a violation should be classed with gross negligence, and for injuries resulting therefrom the guilty person should be held liable in a civil action, regardless of contributory negligence on the part of the person injured." (Headnote.)

It regu

lates the use of the streets for operating motor vehicles in incorporated villages and cities, and forbids operating or driving such vehicles in the streets of such villages and cities at a speed exceeding 15 miles per hour, and prescribes punishments for violations thereof. The law regulates the conduct of persons who are exercising the common right of using public highways as travelers, for the purpose of compelling greater care for the protection and safety of all travelers. The operation of motor vehicles on streets is as lawful a use thereof as that of any other traveler; and the object of the statute is to restrict this use to such ways as will lessen the dangers to travelers from high speed and other hazardous practices. Such regulations are not intended to abrogate the duties of travelers recognized by the common law for their mutual safety, and leaves them subject to its accepted rules of ordinary care and the duties that spring from their relations as travelers on a public highway. In the light of this relation and the duties arising therefrom, it may well be that a person operating a motor vehicle at a speed much less than that denounced by the statute, on a street crowded with men, women, and children, and thereby inflicting some personal injuries on another, would be guilty of wilfully injuring such person, while another operating such a vehicle slightly in excess of the statutory speed might do so under conditions and circumstances as to show that the care exercised, in the light of such conditions and circumstances, did not constitute a wanton and reckless disregard of the rights of another who suffered an injury by colliding with such motor vehicle. This court has held that a violation of the

commands of a statute of this class, causing personal injury to another, is not to be treated as a wilful injury, as matter of law. but that the fact of such violation is negligence per se, and that the defense of contributory negligence is not abrogated.

These cases dealt with statutes prohibiting the sale of firearms and the employ ment of minors under sixteen years of age in certain specified employments. The doctrine of these and similar cases is that the violation of these statutes is of such gravity that public policy requires, in the interest of protecting life and limb, that persons violating them be held to strict accountability for the consequences flowing therefrom, regardless of the fault of the injured person, and therefore the persons violating them, and thereby producing personal injuries to another, were to be treated as guilty of wilfully injuring another, as matter of law. Does this principle apply The case of Brown v. Chicago & N. W. in cases where a statute prohibits someR. Co. 109 Wis. 384, 85 N. W. 271, 9 Am. thing innocent in itself, but made unlaw- Neg. Rep. 403, wherein the alleged injury ful, and violation thereof penalized, to comwas claimed to be caused by the railroad pel a higher standard of care as regards company running its trains in excess of the person and property? Of this latter class speed fixed by law, is one of this class of are regulations penalizing persons for vioIt is therein stated that "the act lation of laws governing the duties to build was negligence per se, but not fire escapes to buildings; of railroads to necessarily actionable negligence. To congive warning of approaching trains at pub-stitute an actionable wrong, the conduct lic crossings in densely populated districts; forbidding the running of trains in excess of a limited speed over streets in incorporated villages and cities; the using of city streets as speedways for horses and vehicles; and similar laws. The law in ques

cases.

must be the proximate cause of an injury, without any want of ordinary care on the part of the injured person contributing thereto."

True, the punishment imposed by the statute here involved is more severe than