session of the city clerk, who on the same day presented it to the defendant's common council, and that body received, filed, and referred the same. It The sole question in the case is whether this notice was a sufficient compliance with the statute for the purpose of enabling the plaintiff to bring and maintain the action. We think it was. Clearly the notice on its face is sufficient. It describes the street or avenue where the accident happened, the side of the avenue, and the particular locality as "about halfway between Schenck street and Robinson street." But the defendant gave evidence at the trial tending to show that the precise locality where the accident occurred was not halfway between the two streets mentioned that cross the avenue, but was from 80 to 100 feet by measurement from the center of the avenue. seems that this notice was sufficient to enable the defendant's engineer to pick out the place where the rotten plank was which caused the plaintiff's injury. The engineer does not seem to have had any trouble on that ground. It appears that the side of the avenue where the accident occurred was substantially a vacant lot, and if the plaintiff made a mistake in describing the place of the injury as halfway between two of the cross streets it would be rather too narrow a point upon which to determine the case. The purpose of the statute, obviously, was to enable the defendant to find the place where the defect was claimed to have been, in order to prepare for trial and in order to remedy it; and, as already observed, the city had no difficulty in finding it. The engineer measured from the spot to each of the crossstreets, and found that it was nearer to one of them than to the other by some 80 or 100 feet. I am not aware of any well-considered case which decides that such a defect in the notice is fatal to a recovery, and there are numerous cases that hold to the contrary. Werner v. City of Rochester, 77 Hun, 33, 28 N. Y. Supp. 226, affirmed 149 N. Y. 563, 44 N. E. 300; Masters v. City of Troy, 50 Hun, 485, 3 N. Y. Supp. 450; Murphy v. Village of Seneca Falls, 57 App. Div. 438, 67 N. Y. Supp. 1013; Sullivan V. City of Syracuse, 77 Hun, 440, 29 N. Y. Supp. 105; Cross v. City of Elmira, 86 Hun, 467, 33 N. Y. Supp. 947. There are numerous other cases upon the same point, but it is not important to cite them upon a question that would seem to be so plain. The learned court below made no question as to the sufficiency of the service of the notice, and it is unnecessary to deal at length with that question, although it is discussed upon the briefs of counsel. We think that both the notice and the service were a sufficient and substantial compliance with the provisions of the statute, and that the ruling at the trial nonsuiting the plaintiff was error. There is no question before us in regard to negligence, as that was not dealt with either at the trial or upon the appeal. The judgment must be reversed, and a new trial granted; costs to abide the event. CULLEN, C. J., and GRAY, BARTLETT, HAIGHT, VANN, and WERNER, JJ., con cur. Judgment reversed, etc. (190 Mass. 189) HASKELL v. BOSTON DIST. MESSENGER CO. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 4, 1906.) 1. MASTER AND SERVANT-LIABILITY OF MASTER FOR ACTS OF SERVANT. Where a messenger company furnished a messenger to plaintiff, who during the time of his employment by plaintiff was not under the control of the company, the company is not liable for a sum of money collected by the messenger which he failed to deliver to plaintiff, in the absence of any showing that the company was negligent in selecting the messenger. 2. CARRIERS-MESSENGER COMPANY. Where a bill for rent was intrusted to a messenger furnished by a messenger company, and the amount collected by the messenger, the company did not become a common carrier and insurer of the bill and the money. [Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 462-473.] 3. SAME-KNOWLEDGE OF MESSENGER COMPANY -CHARACTER OF EMPLOYMENT OF MESSENGER. The knowledge of a messenger company that messengers sent out by it were sometimes employed to carry money does not render the company a common carrier, where the company exercises no control over the messenger during his employment by a patron. Exceptions from Superior Court, Suffolk County; William Cushing Wait, Judge. Action by George B. Haskell against the Boston District Messenger Company. Judgment for defendant, and plaintiff excepts. Exceptions overruled. William A. Abbott and John E. Abbott, for plaintiff. Roger F. Sturgis, for defendant. KNOWLTON, C. J. The defendant is a corporation organized under the laws of New Hampshire for the purpose of "carrying on a general messenger business, leasing, operating, erecting, and maintaining wires and fixtures for call boxes, telegraphs, and other things relating to and useful in the receiving and transmitting and delivery of messages." For many years it has had a general office and branch offices in the city of Boston, and has been engaged in the business of furnishing messengers for hire. The ordinary method of doing the business has been for the company to send a messenger in response to a call, and to send with him a printed slip, with blank spaces for filling in the "time started," "name," "address," "messenger occupied" (time), "expenses" (paid), “total," "messenger detained" (minutes), "by" (name of person employing messenger). There were other blanks to be filled, to show where the messenger was sent, by whom the message was received, where the answer was delivered, and by whom it was received. An advertising pamphlet, issued by the defendant, gave the rates of charges for a messenger between specified points in all parts of Boston, and also rates by the hour. At the bottom of one of its pages was a printed statement: "We employ bright, intelligent boys, who are thoroughly experienced in messenger work." The rates stated are all without reference to the nature or importance of the work in which the particular messenger may be employed. The pamphlet contained numerous other advertising statements, all of which implied that the business done by the company was only in furnishing messengers for the service of others, except that at the bottom of one page there was this statement: "We deliver addressed circular work, bills, monthly statements, catalogs, calendars, etc. Get our prices." It also appeared that for several years, shortly before Christmas, the defendant had distributed a card, saying that it made a specialty of delivering Christmas presents. In carrying on its business, the defendant employed boys 15 or 16 years of age. The plaintiff signaled to the defendant for a messenger by means of a call box, and delivered to the messenger, sent in response to his call, a receipted bill for rent, amounting to $58.33, and sent him to a tenant to collect it. The messenger collected the money and failed to return it. The question is whether there was any evidence at the trial which would warrant the jury in finding for the plaintiff for the amount of this money which he seeks to recover. time, a servant of the employer, while he was still in the general service of the defendant. Linnehan v. Rollins, 137 Mass. 123, 50 Am. Dec. 287; Hasty v. Sears, 157 Mass. 123, 31 N. E. 759, 34 Am. St. Rep. 267; Samuelian v. American Tool and Machine Company, 168 Mass. 12, 46 N. E. 98; Delory v. Blodgett, 185 Mass. 126, 69 N. E. 1078, 64 L. R. A. 114, 102 Am. St. Rep. 328. It was shown that messengers had often been intrusted with money and property by those who called them. So far as appears, this was under the general arrangement already stated, which gave the defendant no knowledge nor any responsibility in regard to the way in which the messenger was used. The evidence tended to show that some of the agents of the company, and perhaps the general manager of the company, knew that sometimes messengers were so used. But this creates no liability for the money or property, so long as the messengers were furnished only to be used and controlled by the employer as he might choose. What is the implied contract or duty of the defendant growing out of this kind of business? Does the defendant become a common carrier and insurer of everything intrusted to the messengers? It seems quite plain that it does not. It impliedly contracts that the messengers whom it furnishes are suitable and proper persons for the performance of the ordinary duties of messengers, so far as the exercise of ordinary care in the selection and employment of them will enable it to procure such persons. Its duty is not very unlike that of a stable keeper, who furnishes a horse and carriage for the use of a hirer. Because, for the proper performance of their duties, these messengers should be worthy of confidence, ordinary care in the selection of them requires that investigation should be made and of all unfit persons from this employment, and to secure persons of such mental and moral qualifications as render them trustworthy. For a failure to take due precautions in these particulars, the defendant may be held liable, either for negligence or upon an implied contract, to any person who suffers loss from the misconduct of a messenger whom it has furnished. In the present case there was no evidence of negligence of the defendant in this particular. If, in the delivery of Christmas presents, or of bills, statements, catalogs, etc., the defendant becomes a common carrier, it is liable as such. But that can be only by an arrangement different from that made with this plaintiff. The plaintiff contends that the defendant | precautions be taken to insure the exclusion acted as a common carrier in receiving the bill and undertaking to bring back the money. We find nothing in the evidence tending to show this. It undertook to furnish messengers to be used by its employers in any way in which messengers could properly be employed. If special and peculiar service, was wanted, special arrangements were to be made for it. In the ordinary conduct of its business the defendant did not assume any control of the work in which the messengers were to be employed, and usually had no knowledge of it until after it was completed. Even then it had no knowledge of the nature of the message delivered, or the particulars of the service. The employer was left to direct the messenger, to determine what he should do and how he should do it, subject only to an implied understanding that he should not be called upon to render service of a different kind from that which can properly be performed by messengers. In this service the messenger became, for the The exceptions in regard to the exclusion of evidence must be overruled. None of the testimony excluded had any tendency to show that the defendant became liable as a common carrier for money or property intrusted to messengers under ordinary arrangements like that made with the plaintiff. Mere A provision in a life policy making it incontestable for fraud from the date of the policy is invalid, and the insurer, in an action on the policy, may rely on fraudulent representations prior to the issuance of the policy, notwithstanding that by the terms of the policy the entire contract is contained in it and the application. Report from Superior Court, Bristol County. Action by Ellen Reagan against the Union Mutual Life Insurance Company. Verdict for plaintiff, and case reported to the Supreme Judicial Court. Verdict set aside. James M. Morton, Jr., and R. A. Dean, for plaintiff. Phillips & Fuller, for defendant. KNOWLTON, C. J. This is an action of contract on a policy of life insurance issued to the plaintiff's intestate. The defendant answered that the policy was obtained by fraud of the insured. The policy contains a clause as follows: "Incontestable. This policy is incontestable from date of issue for any cause, except nonpayment of premiums." After having introduced proofs of her intestate's death, and other evidence that made a prima facie case, the plaintiff rested; her counsel stating, as her contention, "that no question of health or fraud, such as is set up in the answer, is open to the defendant under this incontestable policy." The defendant then offered to prove that the insured made material false and fraudulent representations prior to the issuing of the policy, which would be sufficient to avoid it for fraud, which were made orally to the medical examiner for the purpose of having him incorporate them in his report to the company, and which he did so incorporate; that the insured was an insurance agent, and made these misrepresentations for the purpose of securing this form of insurance at the time and place stated in the policy; and that the policy was issued in reliance thereon, and would not otherwise have been issued. The judge ruled that the evidence was not admissible under the policy, and directed a verdict for the plaintiff. He then reported the case, stating that the only question raised is whether the evidence of such fraud is admissible in defense under such a policy. This is not like the numerous cases in which the policy provides that it shall be incontestable for fraud after the expiration of a specified time, which is not unreasonably short. It has often been held that a provision of that kind is valid because it is in the nature of a limitation of the time within which the defendant may avoid the policy for this cause. Such a provision is reasonable and proper, as it gives the insured a guaranty against possible expensive litigation to defeat his claim after the lapse of many years, and at the same time gives the company time and an opportunity for investigation to ascertain whether the contract should remain in force. It is not against public policy as tending to put fraud on a par with honesty. Wright v. Mutual Benefit Life Association, 118 N. Y. 237, 23 N. E. 186, 6 L. R. A. 731, 16 Am. St. Rep. 749; Vetter v. Mass. Natl. Life Ass'n, 29 App. Div. 72, 51 N. Y. Supp. 393; Clement v. New York Life Insurance Company, 101 Tenn. 22, 46 S. W. 561, 42 L. R. A. 247, 70 Am. St. Rep. 650; Goodwin v. Prudential Life Insurance Company, 97 Iowa, 234, 66 N. W. 157, 32 L. R. A. 473, 59 Am. St. Rep. 411; Kline v. National Benefit Association, 111 Ind. 462, 11 N. E. 620, 60 Am. Rep. 703; Murray v. State Mutual Life Insurance Company, 22 R. I. 524, 48 Atl. 800, 53 L. R. A. 742; Royal Circle v. Achterrath, 204 Ill. 549, 68 N. E. 492, 63 L. R. A. 452, 98 Am. St. Rep. 224. But this clause purports to make the policy incontestable for any cause from the date of issue. We must assume that the defendant issued the policy on the faith of the fraudulent representations, without discovering the fraud, or, so far as appears, having any opportunity to discover it before the contract was made. It is true that it might have declined to issue a policy until it should take time to investigate the matters represented. If it had postponed making the contract for a considerable time, and had investigated the subjects to which the representations related, and had then issued a policy, inserting in it a provision that, having made an examination of the material matters stated by the insured, it was so far convinced of the truth of his statements that it would waive its right afterwards to set up fraud as a defense to the claim, a different question would have been presented. It might then appear that the contract was not induced by reliance upon fraudulent representations, but by an investigation which the defendant conducted, on which it relied. There is nothing to show that the policy was not issued immediately upon the receipt by the company of the report containing the false statement. The company was not bound to postpone the making of the contract. It had a right to enter into it, relying upon the report which was founded on the false representations. We think the question intended to be presented by the report of the judge is the same as if the plaintiff's intestate had gone into the home office of the defendant and had made material representations as inducements to the issuing of a policy, and the defendant's manager had said: "I will give you a policy, relying on your representations. I do not know whether they are true or false; but, however false and fraudulent they may be, the company will never avail itself of the fraud as a defense to a suit upon the policy”—and had then given him a policy containing this clause. Will the court enforce an agreement never to set up fraud in defense to a contract, when the contract is made in reliance upon material representations that may be true or false? This question has been considered in its application to contracts of insurance. In Wheelton v. Hardisty, 8 E. & B., 232-283, Lord Campbell interpreted a provision that a contract should be indefensible, as meaning indisputable, “subject to an implied exception of personal fraud, which will vitiate every contract." In Massachusetts Benevolent Life Association v. Robinson, 104 Ga. 256, 30 S. E. 918, 42 L. R. A. 261, the court said: "A policy providing generally that it shall be indisputable from its date, while silent on the subject of defending upon grounds originating in fraud, would still be a valid contract. The waiver of the right to defend on the ground of fraud not being the subject of express stipulation, the law would imply that the insurer intended to reserve to himself the right to defend upon that ground. If, however, the policy stipulated that it should be incontestable from its date and the insurer should not be allowed any defense, whether originating in fraud or otherwise, or if it were clear from the terms of the contract that it was the intention of the parties that fraud should not be a defense, then such a contract would be void as being opposed to the policy of the law." In Welch v. Union Central Insurance Company, 108 Iowa, 224-230, 78 N. W. 853, 50 L. R. A. 774, substantially the same doctrine is clearly stated. To the same effect is Bliss on Ins. (1st Ed.) § 247; Id. (2d Ed.) §§ 254-255. All the cases in the first group of the above citations discuss the incontestability of policies, after the lapse of a specified time, upon grounds that imply the existence of the same rule of law. The reasons for the enforcement of such a rule are particularly strong when one of the contracting parties is a mutual insurance company, all the members of which share in the profits and losses. There are various cases which forbid companies to make contracts of life insurance that are against the policy of the law. In Ritter v. Mutual Life Insurance Company, 169 U. S. 139, 18 Sup. Ct. 300, 42 L. Ed. 693, it was held that a contract to insure one against suicide would be against public policy. Mr. Justice Harlan, in the opinion, said: “A contract, the tendency of which is to endanger the public interests or injuriously affect the public good, or which is subversive of sound morality, ought never to receive the sanction of a court of justice, or be made the foundation of its judgment." An agreement to be bound by a contract which the parties are making, in spite of subsequently discovered fraud by which it was obtained, would be subversive of sound morality. In Hatch, Administrator, v. Mutual Life Insurance Company, 120 Mass. 550, 21 Am. Rep. 541, this court held that there could be no recovery under a policy of life insurance when the insured knowingly and voluntarily exposed her life by submitting to a criminal operation which proved fatal. For similar decisions, see Fauntleroy's Case, 4 Bligh, N. S. 194, and Burt v. Union Life Insurance Company, 187 U. S. 362, 23 Sup. Ct. 139, 47 L. Ed. 216. We have been referred to no decision which holds valid a provision that a policy of life insurance shall be incontestible for fraud from the day of its date. The only case that we have discovered in which there is any language looking in that direction is Patterson v. Natural Premium Life Insurance Company, 100 Wis. 118, 75 N. W. 980, 42 L. R. A. 253, 69 Am. St. Rep. 899, and in that the ground of the decision, as we understand it, is that there was no evidence on which to raise the question. The plaintiff's contention that, because by the terms of the policy the entire contract is contained in the policy and the application, the defendant is precluded from showing fraud practiced as an inducement to the making of the contract, is not well founded. This defense does not rest upon any provision of the contract, but upon the misconduct of the plaintiff, whereby he obtained the contract. If we say that, in addition to the expressed exception, the clause before us impliedly excepts fraud, then the clause is not applicable to this defense, and the evidence should have been admitted. If we treat it as intended to include fraud among the matters which cannot be set up in defense, and this perhaps is its most probable meaning, we are of opinion that this part of the provision is against the policy of our law, and therefore void. According to the terms of the report, the entry must be: Verdict set aside. (189 Mass. 551) HAYNE v. UNION ST. RY. CO. (Supreme Judicial Court of Massachusetts. Bristol. Dec. 1, 1905.) 1. CARRIERS-INJURIES TO PASSENGERS-MISCONDUCT OF SERVANTS. A carrier is absolutely liable for injuries to a passenger caused by the misconduct of its servants while engaged in the performance of the contract of carriage. [Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 1121.] 2. SAME DIFFERENT CREWS. The conductor of one of defendant's cars in sport threw a dead hen at the motorman of the car on which plaintiff was riding. The hen missed the motorman, struck the window of the car near where plaintiff was sitting, and injured her. Held, that the fact that the conductor was a member of the crew of another car than that in which plaintiff was riding did not exempt defendant from liability for such injuries. Exceptions from Superior Court, Bristol County; Lloyd E. White, Judge. Action by Lila D. Hayne against the Union Street Railway Company. A verdict was rendered in favor of defendant, and plaintiff brings exceptions. Sustained. Gay & Keen, for plaintiff. Oliver Prescott, Jr., and John H. Clifford, for defendant. KNOWLTON, C. J. The plaintiff was a passenger on the defendant's street car, and was riding near the front window, on a seat in the corner of the car. The car entered upon a turnout to pass two other cars, going in the opposite direction, which were waiting there for the plaintiff's car to go by. The conductor of one of these cars, who had picked up a dead hen on the beach near the road, threw the hen in sport at the motorman on the car on which the plaintiff | was riding. He missed the motorman, and his missile struck the window, broke the glass, and thereby injured the plaintiff. This suit is brought to recover compensation for the injury. We will assume in favor of the defendant that there was no evidence to warrant a finding that the conductor who threw the hen was acting within the scope of his employment, and therefore, under the rules of law applicable to the ordinary relations of master and servant, the defendant would not be liable for the servant's act. But the plaintiff invokes a special rule applicable to common carriers. A common carrier of passengers impliedly agrees to exercise the utmost care and diligence, consistent with the proper management of his business, to protect his passengers from injury through the misconduct of other persons, while he is performing his contract for their transportation. They necessarily submit themselves in a large degree to his care and control, and he undertakes to provide for their safety in all those particulars which ought to be under his direction and management. Among these, to a certain extent, are the kind of persons per mitted to approach the passengers on the carrier's premises, and the rules and regulations which govern the conduct of the carrier's servants and others, while the contract for carriage is being performed. While the carrier does not guaranty perfection in these particulars, he is under an obligation of implied contract, and consequent legal duty, to use a very high degree of care to prevent injuries that might be caused by the negligence or willful misconduct of others. This rule prevails generally in the American courts. Simmons V. New Bedford, etc., Steamboat Company, 97 Mass. 361, 93 Am. Dec. 99; Bryant v. Rich, 106 Mass. 180, 8 Am. Rep. 311; New Jersey Steamboat Company v. Brockett, 121 U. S. 637, 7 Sup. Ct. 1039, 30 L. Ed. 1049; Goddard v. Grand Trunk Railway Company, 57 Me. 202, 2 Am. Rep. 39; Stewart v. Brooklyn & Crosstown Railroad Company, 90 N. Y. 588, 43 Am. Rep. 185; Dwinelle v. New York Central & Hudson River Railroad Company, 120 N. Y. 117, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611; Haver v. Central Railroad Company, 62 N. J. Law, 282-284, 41 Atl. 916, 43 L. R. A. 84, 72 Am. St. Rep. 647; Chicago & Eastern Illinois Railroad v. Flexman, 103 Ill. 546-550, 42 Am. Rep. 33; Fick v. Chicago & Northwestern Railroad Company, 68 Wis. 469, 32 N. W. 527, 60 Am. Rep. 878; Indianapolis Union Railway Company v. Cooper, 6 Ind. App. 202, 33 N. E. 219; Terre Haute & Indiana Railroad Company v. Jackson, 81 Ind. 19. In the application of the rule to injuries caused by servants of the carrier while engaged in the performance of his contract of carriage, it is held that he is liable absolutely for their misconduct. This part of the rule was discussed particularly in Bryant v. Rich, ubi supra, as the more general doctrine was discussed in Simmons v. New Bedford, Vineyard & Nantucket Steamboat Company, 97 Mass. 316, 13 Am. Dec. 99. Under the authorities, it is plain that, if the wrongful act which caused the injury in the present case had been done by the conductor or motorman of the car on which the plaintiff was riding, the defendant would be liable. The only question upon which there is ground for any doubt is whether the rule applies to an injury done by a servant who was engaged in the same general service, but was employed upon another car, and was not charged directly and primarily with any duty to provide for the safety of the plaintiff. We are of opinion that the liability of the defendant is the same as if the conductor who threw the hen had been in charge of the plaintiff's car. The rule of liability in such cases is made absolute. The reason for the rule applies as well when the servant is employed upon another car as when he is working on the car upon which the injury occurs. If one of the reasons for the liability is that the servant, through his relation to his master, owes a duty to protect the passenger from injuries by others, |