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whaterer relating to risks, until the provisions of this act have been complied with on the part of the company or association, and there has been granted to said company or association, by the Commissioner, a certificate of authority, showing that the company or association is authorized to transact business in this state; and it shall be the duty of every such company or association, authorized to transact business in this state, to make report to the Commissioner in the month of January of each year, under oath of the president or secretary thereof, showing the entire amount of the premiums of every character and description received by said company or association in this state, during the year or fraction of a year ending with the thirtyfirst day of December preceding, whether said premiums were received in money or in the form of notes, credits or any other substitute for money, and pay into the state treasury a tax of three per centum upon said premiums; and the Commissioner shall not have power to grant a renewal of the certificate of said company or association until the tax aforesaid is paid into the state treasury.

"Sec. 11. Companies to which certificate of authority are issued, as provided in the preceding section, shall, from time to time, certify to the Commissioner the names of the agents appointed by them to solicit risks in this state; and no such agent shall transact business until he has procured from the Commissioner a certificate, showing that the company has complied with the requirements of the act, and that the person named in said certificate bas been duly appointed its agent."

“Sec. 14. That any person or persons, or corporation, receiving premiums or forwarding applications, or in any other way transacting business for any insurauce company or association not of this state, without having received authority agreeably to the provisions of this act, shall forfeit and pay to the commonwealth the sum of five hundred dollars for each month or fraction thereof during which such illegal business was transacted, and any company not of this state doing business without authority, shall forfeit a like sum for every month or fraction thereof, and be prohibited from doing business in this state until such fines are fully paid.”

The act of May 1, 1876 (P. L 53), which is a supplement to the act of April 4, 1873, provides:

"Sec. 47. Any person transacting business within this commonwealth as the agent of an insurance company of any other state or government, without a certificate of authority, as required by the act to do which this is a supplement, shall be guilty of a misdemeanor, and upon conviction thereof shall be sentenced to pay a fine of five hundred dollars, but this section shall not be held to prevent the Insurance Commissioner from pursuing the remedy or remedies provided in the act aforesaid. The person or persons on whose complaint such conviction is had, shall receive one half of the fines so paid, provided the insurance commissioner or his deputy is not the complainant.

"Sec. 48. The agent of any insurance company of any other state or goverrfment, which does not comply with the laws of this commonwealth, shall be personally liable on all contracts of insurance made by or through him, directly or indirectly, for or in behalf of any such company."

The act of April 26, 1887 (P. L. 61), amended section 14 of the act of April 4, 1873, so as to read:

"That any insurance company or association not of this state, doing business without authority agreeably to the provisions of this act, shall forfeit and pay to the commonwealth the sum of five hundred dollars for each month, or fraction thereof, during each month, on and after the passage of this act, which such illegal business was transacted, and be prohibited from doing business in this state until such fines are fully paid. And that any person or persons, or any agent, officer, or member of any corporation paying, or receiving or forwarding any premiums, applications for insurance, or in any manner securing, helping, or aiding in the placing of any insurance, or effecting any contracts of insurance upon property within this commonwealth, directly or indirectly, with any insurance company or association not of this


state, and which has not been authorized to do business in this state under the terms of this act, shall be guilty of a misdemeanor, and, on conviction thereof, shall be sentenced to a fine of not less than one hundred dollars nor more than one thousand dollars, and upon conviction of a second offence shall be sentenced to pay a like fine and undergo an imprisonment not exceeding one year, or either, in the discretion of the court.".

The first-mentioned of these acts is the earliest one regulating insurance by foreign companies which is now in force in Pennsylvania. It established "a distinct department * charged with the execution of the laws of this state in relation to insurance,” and it is evident that by it and the later acts it was purposed to create and perfect a general system of regulations and requirements respecting the transaction of business by foreign companies within the limits of the state, with the manifest object of affording protection to those taking insurance from such companies, either directly or through agents. But whom was it intended to protect? Presumably, of course, the citizens and the residents of Pennsylvania, or, at the utmost, such persons, also, as, being neither citizens nor residents of that state, might have insurable interests in property there situated. Waiving the question which has been argued as to the competency of any state to affect by such legislation persons and things not within its territorial boundaries, we are satisfied that in this instance no attempt to do so was made. The words "within this state," and "in this state," as they occur in sections 9, 10, and 11, p. 26, of the act of 1873, and the words "within this commonwealth,” as they occur in section 47, p. 66, of the act of 1876, and especially the provision of section 10 of the act of 1873 for reports for taxation, persuasively indicate, if they do not positively show, that this system of legislation was not intended to apply to such a case as this; and, finally, we have in the act of 1887 the phrase "any contracts of insurance upon property within this commonwealth," which, in our opinion, is tantamount to an express legislative definition of the intended scope of the whole series of statutes. And, as the section immediately involved is included in the series, it follows that the contracts upon which the agent is thereby made liable are such contracts of insurance as are upon property in the commonwealth of Pennsylvania, and no others.

Furthermore, this action, even if otherwise maintainable, was, we think, barred by the clause, which each of the policies contains, "that all claims under this policy shall be void unless prosecuted within twelve months from the date of the disaster.” The disaster here involved occurred in September, 1900, and the suit was begun on February 1, 1902. The terms of this provision were therefore met, and that it would be enforceable in favor of the companies themselves seems not to be denied, and we think is unquestionable. It is contended, however, that the defendant below was not entitled to benefit by it, because, as is argued, it is a “subsequent condition imposed upon the assured by the contract,” like the ordinary provision for proofs of loss, which it was said in McBride v. Rinard, 172 Pa. 543, 33 Atl. 750, need not, to consummate the agent's liability, be complied with by furnishing proofs of loss to the company. But we are not dealing with a condition affecting the agent's liability, but with a contractual limitation of the time within which his liability, assuming its unconditional existence, may be enforced, and the real and only question is whether this limitation is properly applicable to an action founded upon the forty-eighth section of the act of 1876. That section, as we have said, is a penal one, and the particular penalty it prescribes is not open to conjecture. distinctly specified. It is that the offending agent "shall be personally liable on all contracts of insurance made by or through him.” The contracts are not to be extinguished. They must continue in force, for otherwise there would be nothing of which liability on the contract could be predicated. If it was not intended that the agent would be liable precisely as if he had been a principal party to the contract, it would, we think, be difficult to perceive that any penalty whatever was designated. We need not question the correctness of the statement of the Supreme Court of Pennsylvania (McBride v. Rinard, supra) that it would be a mistake to assume “the liability of the agent to be no higher than that of sureties or guarantors for the foreign company which had violated the law." As was said by that court, “the moment the agent makes a contract for a foreign insurance company which has neglected to obtain the proper authority from the Insurance Commissioner to do business in this state, that is the inception of the agent's liability on the contract, which is consummated by the loss by fire. But the liability is “on the contract,” and therefore, though compliance with “every subsequent condition imposed upon the assured" may not be requisite to establish its existence, it ceases to be enforceable upon the expiration of the period contractually limited for its enforcement. The agreement for the limitation in this case, and the reasons upon which such agreements are founded, are quite as appropriate to an action against an agent as to a suit against a company, and it is not supposable that the Legislature designed that in this regard the assured should have, as against the former, a policy more favorable to himself than that which he had been content to accept from the latter.

The views we have expressed necessitate the conclusion that the judgment entered for the plaintiff below was erroneous. Therefore that judgment is reversed, and the cause will be remanded to the Circuit Court with direction to enter a judgment for the defendant notwithstanding the verdict.


(Circuit Court of Appeals, Second Circuit. April 14, 1904.)

No. 146.


An express messenger while riding in a railway car in the performance of the duties of his employment is not a passenger, nor does the railroad company occupy the relation of common carrier toward him, but of a private carrier only, and there is no public policy which forbids the par

from contracting for its exemption from liability for negligence in the carrying of such messenger; and a contract with the express company by which the messenger, as a condition of his employment, assumes all

1 1. Limitation of liability for injury to passengers, see note to Clark v. Geer, 32 C. C. A, 301.

risk of injury while so riding, and one between the express and railroad companies by which the former agrees to hold the latter indemnified against claims for injuries to its employés, whether arising from negli. gence or otherwise, are valid and effective to prevent a messenger injured in collision due to the negligence of railroad employés from recovering

therefor against the railroad company. 2. SAME-CONSTRUCTION OF CONTRACT OF EMPLOYMENT.

A contract by which an express messenger, as a condition of his employment, assumes all risk of personal injury while riding on any transportation line, and agrees to release and indemnify the company or any transportation company with which it may contract from any claim which might be made on account of any such injury, must be construed to apply to an injury resulting from negligence of a railroad company in whose car he is riding in the course of his employment, since, not being a passenger while so riding, no claim could be made against the company except

on the ground of negligence. 3. SAME

An express messenger riding in a railway car in the discharge of the duties of his employment is chargeable with notice of the contract under

which he is being transported by the railroad company. In Error to the Circuit Court of the United States for the Western District of New York.

E. C. Aiken, for plaintiff in error.
James McC. Mitchell, for defendant in error.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

WALLACE, Circuit Judge. This is a writ of error by the plaintiff in the court below to review a judgment for the defendant. Upon the trial the court directed the jury to render a verdict for the defendant. The assignments of error challenge the correctness of that ruling.

The action was brought to recover damages for personal injuries sustained by the plaintiff. At the time of the accident in which he was injured he was in the employment of the United States Express Company as a messenger, and was engaged in the duties of such employment in an express car on one of the defendant's trains. The accident was caused by a collision between that train and a switching engine of the defendant, owing to the negligence of the employés of the defendant in charge of the switching engine. The contract of employment between the plaintiff and the United States Express Company contained the following provision:

"I understand that I may be required to render services for the company on or about the railroad, stage and steamboat lines used by the company for forwarding property, and that such employment is hazardous; I assume the risk of accident and injury to myself arising out of such employment, and release and indemnify the United States Express Company, and the corporations or persons owning or operating said transportation lines, from any or all claims that I or my executors or administrators might make, arising out of any such accidents or injuries that may happen to me while so employed.”

By a contract between the United States Express Company and the defendant, in force at the time the plaintiff entered upon his employment and at the time of the accident, it was provided that the defendant should not be or become liable or responsible to any person for any damage or injury happening to or sustained by any employé, servant, or agent of the express company while acting for the express company in or about its business, whether such injury should have been occasioned by or through the negligence, omission, or default of the railroad company, or otherwise, “it being distinctly understood and agreed that the express company hereby assumes and undertakes to pay and indemnify the railroad company for and against all and every claim and demand for loss and injury of any nature to life, person or property arising from the performance of this contract."

The trial judge ruled that, in view of the contracts between the plaintiff and the express company, and the express company and the defendant, the defendant was not liable. It is quite unnecessary to refer to the numerous decisions in the state courts on similar or analogous cases. The case of Baltimore & Ohio Railway Company v. Voigt, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560, is decisive, and is controlling as authority in this court. In that case Voigt had made a contract with the express company by which, as a condition of his employment as an express messenger, he agreed to assume the risk of all accidents and injuries that he might sustain in the course of his employment by negligence or otherwise, and to indemnify and hold the express company harmless for all claims that might be made against it arising from any claim or recovery on his part for the damages sustained by him by reason of any injury whatever resulting from negligence or otherwise, and to release to the company operating the transportation line upon which he might be injured all claims, demands, and causes of action arising out of any such injury, and to ratify all agreements made by the express company with any transportation line, in which the express company had agreed or might agree that its employés should have no cause of action for injuries sustained in the course of their employment upon the line of the transportation company. The express company had made a contract with the Baltimore & Ohio Railway Company substantially like that between the express company and the defendant in the present case. While in an express car upon one of the trains of the railroad company, engaged in performing his duties as express messenger, Voigt was injured by a collision between the train to which his car was attached and another train of the railroad, caused by the negligence of the employés of the railroad company. The court held that Voigt, occupying the express car as a messenger in charge of express matter, in pursuance of the contract between the companies, was not a passenger; that he was not constrained to enter into the contract whereby the railroad company was exonerated from liability to him; and that such a contract did not contravene public policy. The case was presented to the court upon a certificate of a division of opinion between the judges in the court below, and although, in answering the questions certified, it was not necessary for the court to decide whether the railroad company was liable to Voigt under the circumstances, the answer necessarily enforced that conclusion. The opinion proceeds upon the reasoning that Voigt's only right to be on the train of the railroad company was that created by the terms of his contract with the express company; that the railroad company did not assume towards him the obligations of a common carrier to a passenger, but only assumed those of a private carrier; and

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