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session of the city clerk, who on the same was error. There is no question before us day presented it to the defendant's common in regard to negligence, as that was not council, and that body received, filed, and dealt with either at the trial or upon the apreferred the same.

peal. The sole question in the case is whether The judgment must be reversed, and a this notice was a sufficient compliance with new trial granted; costs to abide the event. the statute for the purpose of enabling the plaintiff to bring and maintain the action. CULLEN, C. J., and GRAY, BARTLETT, We think it was. Clearly the notice on its HAIGHT, VANN, and WERNER, JJ., conface is sufficient. It describes the street or cur. avenue where the accident happened, the side of the avenue, and the particular Judgment reversed, etc. locality as "about halfway between Schenck street and Robinson street.” But the defendant gave evidence at the trial tending

(190 Mass. 189) to show that the precise locality where the HASKELL V. BOSTON DIST. MESSENGER accident occurred was not halfway between

CO. the two streets mentioned that cross the ave (Supreme Judicial Court of Massachusetts. nue, but was from 80 to 100 feet by measure

Suffolk. Jan. 4, 1906.) ment from the center of the avenue. It 1. MASTER AND SERVANT- LIABILITY OF MASseems that this notice was sufficient to enable

TER FOR ACTS OF SERVANT.

Where a messenger company furnished a the defendant's engineer to pick out the

messenger to plaintiff, who during the time of place where the rotten plank was which his employment by plaintiff was not under the caused the plaintiff's injury. The engineer

control of the company, the company is not

liable for a sum of money collected by the mes. does not seem to have had any trouble on

senger which he failed to deliver to plaintiff, that ground. It appears that the side of the in the absence of any showing that the comavenue where the accident occurred was pany was negligent in selecting the messenger. substantially a vacant lot, and if the plain

2. CARBIERS-MESSENGER COMPANY.

Where a bill for rent was intrusted to a tiff made a mistake in describing the place of

messenger furnished by a messenger company, the injury as halfway between two of the

and the amount collected by the messenger, the cross streets it would be rather too narrow company did not become a common carrier and a point upon which to determine the case.

insurer of the bill and the money. The purpose of the statute, obviously, was to

(Ed. Note. For cases in point, see vol. 9,

Cent. Dig. Carriers, 88 462–473.] enable the defendant to find the place where

3. SAME-KNOWLEDGE OF MESSENGER COMPANY the defect was claimed to have been, in order

-CHARACTER OF EMPLOYMENT OF MESSENGER. to prepare for trial and in order to remedy The knowledge of a messenger company it; and, as already observed, the city had | that messengers sent out by it were sometimes no difficulty in finding it. The engineer

employed to carry money does not render the

company a common carrier, where the company measured from the spot to each of the cross

exercises no control over the messenger during streets, and found that it was nearer to one his employment by a patron. of them than to the other by some 80 or 100 feet. I am not aware of any well-considered

Exceptions from Superior Court, Suffolk case which decides that such a defect in the

County; William Cushing Wait, Judge. notice is fatal to a recovery, and there are

Action by George B. Haskell against the

Boston District Messenger Company. Judgnumerous cases that hold to the contrary. Werner v. City of Rochester, 77 Hun, 33,

ment for defendant, and plaintiff excepts. 28 N. Y. Supp. 226, affirmed 149 N. Y. 563,

Exceptions overruled. 44 N. E. 300; Masters v. City of Troy, 50 William A. Abbott and John E. Abbott, Hun, 485, 3 N. Y. Supp. 450; Murphy v. Vil. | for plaintiff. Roger F. Sturgis, for defendant. lage of Seneca Falls, 57 App. Div. 438, 67 x Y. Supp. 1013: Sullivan v. City of L KNOWLTON. C. J. The defendant is a Syracuse, 77 Hun, 440, 29 N. Y. Supp. 105; corporation organized under the laws of New Cross v. City of Elmira, 86 Hun, 467, 33 N. Y. | Hampshire for the purpose of "carrying on a Supp. 947. There are numerous other cases general messenger business, leasing, operatupon the same point, but it is not important ing, erecting, and maintaining wires and to cite them upon a question that would seem fixtures for call boxes, telegraphs, and other to be so plain.

things relating to and useful in the receiving The learned court below made no question and transmitting and delivery of messages." as to the sufficiency of the service of the For many years it has had a general office notice, and it is unnecessary to deal at and branch offices in the city of Boston, and length with that question, although it is has been engaged in the business of furnishdiscussed upon the briefs of counsel. We ing messengers for hire. The ordinary meththink that both the notice and the service od of doing the business has been for the were a sufficient and substantial compliance company to send a messenger in response to with the provisions of the statute, and that a call, and to send with him a printed slip, the ruling at the trial nonsuiting the plaintiff with blank spaces for filling in the "time

started,” “name," "address," "messenger oc- , time, a servant of the employer, while be cupied” (time), "expenses" (paid), "total," was still in the general service of the defend“messenger detained" (minutes), "by” (name ant. Linnehan v. Rollins, 137 Mass. 123, of person employing messenger). There were 50 Am. Dec. 287; Hasty v. Sears, 157 Mass. other blanks to be filled, to show where the 123, 31 N. E. 759, 34 Am. St. Rep. 267; messenger was sent, by whom the message Samuelian V. American Tool and Machine was received, where the answer was deliver- Company, 168 Mass. 12, 46 N. E. 98; Delory ed, and by whom it was received. An ad- v. Blodgett, 185 Mass. 126, 69 N. E. 1078, 64 vertising pamphlet, issued by the defendant, L. R. A. 114, 102 Am. St. Rep. 328. It was gave the rates of charges for a messenger shown that messengers had often been inbetween specified points in all parts of Bos- trusted with money and property by those ton, and also rates by the hour. At the bot- who called them. So far as appears, this tom of one of its pages was a printed state was under the general arrangement already ment: “We employ bright, intelligent boys, stated, which gave the defendant no knowl. who are thoroughly experienced in messenger edge nor any responsibility in regard to the work.” The rates stated are all without way in which the messenger was used. The reference to the nature or importance of the evidence tended to show that some of the work in which the particular messenger may | agents of the company, and perhaps the be employed. The pamphlet contained nu general manager of the company, knew that merous other advertising statements, all of sometimes messengers were so used. But which implied that the business done by the this creates no liability for the money or company was only in furnishing messengers property, so long as the messengers were for the service of others, except that at the furnished only to be used and controlled by bottom of one page there was this statement: the employer as he might choose. “We deliver addressed circular work, bills, | What is the implied contract or duty of monthly statements, catalogs, calendars, etc. the defendant growing out of this kind of Get our prices." It also appeared that for business? Does the defendant become a comseveral years, shortly before Christmas, the mon carrier and insurer of everything indefendant had distributed a card, saying that trusted to the messengers? It seems quite it made a specialty of delivering Christmas plain that it does not. It impliedly conpresents. In carrying on its business, the tracts that the messengers whom it furnishes defendant employed boys 15 or 16 years of are suitable and proper persons for the perage. The plaintiff signaled to the defendant formance of the ordinary duties of mesfor a messenger by means of a call box, and sengers, so far as the exercise of ordinary delivered to the messenger, sent in response care in the selection and employment of to his call, a receipted bill for rent, amount them will enable it to procure such persons. ing to $58.33, and sent him to a tenant to | Its duty is not very unlike that of a stable collect it. The messenger collected the money keeper, who furnishes a horse and carriage and failed to return it. The question is for the use of a birer. Because, for the whether there was any evidence at the trial proper performance of their duties, these which would warrant the jury in finding for messengers should be worthy of confidence, the plaintiff for the amount of this money ordinary care in the selection of them rewhich he seeks to recover.

quires that investigation should be made and The plaintiff contends that the defendant precautions be taken to insure the exclusion acted as a common carrier in receiving the of all unfit persons from this employment, bill and undertaking to bring back the money. and to secure persons of such mental and We find nothing in the evidence tending to moral qualifications as render them trustsbow this. It undertook to furnish mes | worthy. For a failure to take due precausengers to be used by its employers in any tions in these particulars, the defendant may way in which messengers could properly be be held liable, either for negligence or upon · employed. If special and peculiar service, an implied contract, to any person who suf

was wanted, special arrangements were to be fers loss from the misconduct of a messenger made for it. In the ordinary conduct of its whom it has furnished. In the present case business the defendant did not assume any there was no evidence of negligence of the control of the work in which the messengers defendant in this particular. If, in the dewere to be employed, and usually had no livery of Christmas presents, or of bills, stateknowledge of it until after it was completed. ments, catalogs, etc., the defendant becomes Even then it had no knowledge of the nature a common carrier, it is liable as such. But of the message delivered, or the particulars that can be only by an arrangement different of the service. The employer was left to from that made with this plaintiff. direct the messenger, to determine what he The exceptions in regard to the exclusion should do and how he should do it, subject of evidence must be overruled. None of the only to an implied understanding that he testimony excluded had any tendency to show should not be called upon to render service that the defendant became liable as a comof a different kind from that which can mon carrier for money or property intrusted properly be performed by messengers. In to messengers under ordinary arrangements this service the messenger became, for the like that made with the plaintiff, Mere knowledge that employers sometimes intrust- , that the policy was issued in reliance thereon, ed money to them, without any contract other and would not otherwise have been issued. tban the usual one, under which the mes. The judge ruled that the evidence was not senger is furnished to be used by the em admissible under the policy, and directed a ployer in the ordinary way, would not make verdict for the plaintiff. He then reported the defendant liable for loss of money through the case, stating that the only question raised his dishonesty, unless there was a failure to is whether the evidence of such fraud is use proper care in the selection of the mes admissible in defense under such a policy. sengers.

This is not like the numerous cases in Exceptions overruled.

which the policy provides that it shall be incontestable for fraud after the expiration of

a specified time, which is not unreasonably (189 Mass. 555)

short. It has often been held that a proviREAGAN V. UNION MUT. LIFE INS. CO. sion of that kind is valid because it is in (Supreme Judicial Court of Massachusetts.

the nature of a limitation of the time within Bristol. Dec. 1, 1905.)

which the defendant may avoid the policy

for this cause. Such a provision is reason1. INSURANCE-LIFE POLICY-INCONTESTABILITY AFTER EXPIRATION OF SPECIFIED TIME

able and proper, as it gives the insured a VALIDITY OF PROVISION.

guaranty against possible expensive litigation A provision in a life policy, making it in to defeat his claim after the lapse of many contestable for fraud after the expiration of a

years, and at the same time gives the comspecified time, is valid and binding on the insurer.

pany time and an opportunity for investi(Ed. Note.--For cases in point, see vol. 28, gation to ascertain whether the contract Cent. Dig. Insurance, $ 1086.]

should remain in force. It is not against 2. SAME – INCONTESTABILITY FROM DATE OF public policy as tending to put fraud on a par POLICY.

with honesty. Wright v. Mutual Benefit Life A provision in a life policy making it incon

Association, 118 N. Y. 237, 23 N. E. 186, 6 testable for fraud from the date of the policy is invalid, and the insurer, in an action on the

L. R. A. 731, 16 Am. St. Rep. 749; Vetter v. policy, may rely on fraudulent representations Mass. Natl. Life Ass'n, 29 App. Div. 72, 51 prior to the issuance of the policy, notwith N. Y. Supp. 393; Clement v. New York Life standing that by the terms of the policy the

Insurance Company, 101 Tenn 22, 46 S. W. entire contract is contained in it and the application.

| 561, 42 L. R. A. 247, 70 Am. St. Rep. 650;

Goodwin v. Prudential Life Insurance ComReport from Superior Court, Bristol County.

pany, 97 Iowa, 234, 66 V. W. 157, 32 L. R. Action by Ellen Reagan against the Union

A. 473, 59 Am. St. Rep. 411; Kline v. NationMutual Life Insurance Company. Verdict

al Benefit Association, 111 Ind. 462, 11 N. E. for plaintiff, and case reported to the Su

620, 60 Am. Rep. 703; Murray v. State Mutupreme Judicial Court. Verdict set aside.

al Life Insurance Company, 22 R. 1. 524, James M. Morton, Jr., and R. A. Dean, for 48 Atl. 800, 53 L. R. A. 742; Royal Oircle v. plaintiff. Phillips & Fuller, for defendant Achterrath, 204 III. 549, 68 N. E. 492, 63

L. R. A. 452, 98 Am. St. Rep. 224. But this KNOWLTON, C. J. This is an action of | clause purports to make the policy inconcontract on a policy of life insurance issued testable for any cause from the date of isto the plaintiff's intestate. The defendant sue. We must assume that the defendant answered that the policy was obtained by issued the policy on the faith of the fraudufraud of the insured. The policy contains lent representations, without discovering the a clause as follows: "Incontestable. This pol fraud, or, so far as appears, having any opicy is incontestable from date of issue for | portunity to discover it before the contract any cause, except nonpayment of premiums." was made. It is true that it might have After having introduced proofs of her in- declined to issue a policy until it should take testate's death, and other evidence that made time to investigate the matters represented. a prima facie case, the plaintiff rested; her If it had postponed making the contract for counsel stating, as her contention, “that no a considerable time, and had investigated the question of health or fraud, such as is set subjects to which the representations related, up in the answer, is open to the defendant and had then issued a policy, inserting in it under this incontestable policy." The de la provision that, having made an examinafendant then offered to prove that the in- tion of the material matters stated by the sured made material false and fraudulent insured, it was so far convinced of the truth representations prior to the issuing of the of his statements that it would waive its policy, wbich would be sufficient to avoid it right afterwards to set up fraud as a defor fraud, which were made orally to the fense to the claim, a different question would medical examiner for the purpose of having have been presented. It might then appear him incorporate them in his report to the that the contract was not induced by reliance company, and which he did so incorporate; upon fraudulent representations, but by an that the insured was an insurance agent, investigation which the defendant conducted. and made these misrepresentations for the on which it relied. There is nothing to show purpose of securing this form of insurance that the policy was not issued immediately at the time and place stated in the policy; and upon the receipt by the company of the report containing the false statement. The company I There are various cases which forbid comwas not bound to postpone the making of panies to make contracts of life insurance the contract. It had a right to enter into it, that are against the policy of the law. In relying upon the report which was founded Ritter v. Mutual Life Insurance Company, on the false representations.

169 U. S. 139, 18 Sup. Ct. 300, 42 L. Ed. 693, We think the question intended to be pre it was held that a contract to insure one sented by the report of the judge is the same against suicide would be against public policy. as if the plaintiff's intestate had gone into

Mr. Justice Harlan, in the opinion, said: "A the home office of the defendant and had

contract, the tendency of which is to endanger made material representations as inducements

the public interests or injuriously affect the to the issuing of a policy, and the defendant's

public good, or which is subversive of sound manager had said: “I will give you a policy,

morality, ought never to receive the sanction relying on your representations. I do not

of a court of justice, or be made the foundaknow whether they are true or false; but,

tion of its judgment." An agreement to be however false and fraudulent they may be, the

bound by a contract which the parties are company will never avail itself of the fraud

making, in spite of subsequently discovered as a defense to a suit upon the policy”-and

fraud by which it was obtained, would be had then given him a policy containing this clause. Will the court enforce an agreement

subversive of sound morality. In Hatch, Ad

ministrator, v. Mutual Life Insurance Comnever to set up fraud in defense to a contract, when the contract is made in reliance

pany, 120 Mass. 550, 21 Am. Rep. 541, this upon material representations that may be

court held that there could be no recovery untrue or false? This question has been con

der a policy of life insurance when the insured sidered in its application to contracts of in

knowingly and voluntarily exposed her life by surance. In Wheelton v. Hardisty, 8 E. &

submitting to a criminal operation which B., 232–283, Lord Campbell interpreted a

proved fatal. For similar decisions, see Faunprovision that a contract should be indefen

tleroy's Case, 4 Bligh, N. S. 194, and Burt v. sible, as meaning indisputable, “subject to an

Union Life Insurance Company, 187 U. S. 362, implied exception of personal fraud, which

23 Sup. Ct. 139, 47 L. Ed. 216. We have been will vitiate every contract." In Massachu referred to no decision which holds valid a setts Benevolent Life Association v. Robinson, provision that a policy of life insurance shall 104 Ga. 256, 30 S. E. 918, 42 L. R. A. 261, be incontestible for fraud from the day of the court said: “A policy providing gener its date. The only case that we have disally that it shall be indisputable from its covered in which there is any language lookdate, while silent on the subject of defend ing in that direction is Patterson v. Natural ing upon grounds originating in fraud, would Premium Life Insurance Company, 100 Wis. still be a valid contract. The waiver of the 118, 75 N. W. 980, 42 L. R. A. 253, 69 Am. right to defend on the ground of fraud not St. Rep. 899, and in that the ground of the being the subject of express stipulation, the decision, as we understand it, is that there law would imply that the insurer intended was no evidence on which to raise the questo reserve to himself the right to defend tion. upon that ground. If, however, the policy The plaintiff's contention that, because by stipulated that it should be incontestable

the terms of the policy the entire contract from its date and the insurer should not be

is contained in the policy and the applicaallowed any defense, whether originating in

tion, the defendant is precluded from showfraud or otherwise, or if it were clear from

ing fraud practiced as an inducement to the the terms of the contract that it was the in

making of the contract, is not well founded. tention of the parties that fraud should not

This defense does not rest upon any provision be a defense, then such a contract would be

of the contract, but upon the misconduct of void as being opposed to the policy of the

the plaintiff, whereby he obtained the conlaw.” In Welch v. Union Central Insurance Company, 108 Iowa, 224-230, 78 N. W.

tract. If we say that, in addition to the 853, 50 L. R. A. 774, substantially the same

expressed exception, the clause before us imdoctrine is clearly stated. To the same effect

pliedly excepts fraud, then the clause is not is Bliss on Ins. (1st Ed.) 8 247; Id. (2d Ed.) 88

applicable to this defense, and the evidence 254-257. All the cases in the first group of

should have been admitted. If we treat it the above citations discuss the incontestability

as intended to include fraud among the matof policies, after the lapse of a specified time, ters which cannot be set up in defense, and upon grounds that imply the existence of the this perhaps is its most probable meaning, same rule of law. The reasons for the en we are of opinion that this part of the proforcement of such a rule are particularly vision is against the policy of our law, and strong when one of the contracting parties is a therefore void. mutual insurance company, all the members According to the terms of the report, the of which share in the profits and losses. | entry must be: Verdict set aside.

(189 Mass. 551)

mitted to approach the passengers on the HAYNE v. UNION ST. RY. CO. carrier's premises, and the rules and regula(Supreme Judicial Court of Massachusetts. tions which govern the conduct of the carBristol. Dec. 1, 1905.)

rier's servants and others, while the con1. CARRIERS-INJURIES TO PASSENGERS—Mis tract for carriage is being performed. While CONDUCT OF SERVANTS.

the carrier does not guaranty perfection in A carrier is absolutely liable for injuries to

these particulars, he is under an obligation a passenger caused by the misconduct of its servants while engaged in the performance of

of implied contract, and consequent legal duthe contract of carriage.

ty, to use a very high degree of care to pre(Ed. Note.For cases in point, see vol. 9, vent injuries that might be caused by the Cent. Dig. Carriers, $ 1121.]

negligence or willful misconduct of others. 2. SAME-DIFFERENT CREws.

This rule prevails generally in the American The conductor of one of defendant's cars in sport threw a dead hen at the motorman of

courts. Simmons V. New Bedford, etc., the car on which plaintiff was riding. The Steamboat Company, 97 Mass. 361, 93 Am. hen missed the motorman, struck the window Dec. 99; Bryant v. Rich, 106 Mass. 180, 8 Am. of the car near where plaintiff was sitting, and

Rep. 311; New Jersey Steamboat Company v. injured her. Held, that the fact that the conductor was a member of the crew of another

Brockett, 121 U. S. 637, 7 Sup. Ct. 1039, 30 car than that in which plaintiff was riding L. Ed. 1049; Goddard v. Grand Trunk Raildid not exempt defendant from liability for such way Company, 57 Me. 202, 2 Am. Rep. 39; injuries.

Stewart v. Brooklyn & Crosstown Railroad Exceptions from Superior Court, Bristol

Company, 90 N. Y. 588, 43 Am. Rep. 185;

| Dwinelle v. New York Central & Hudson County; Lloyd E. White, Judge.

River Railroad Company, 120 N. Y. 117, 24 Action by Lila D. Hayne against the

N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. Union Street Railway Company. A verdict

611; Haver v. Central Railroad Company, 62 was rendered in favor of defendant, and

N. J. Law, 282–284, 41 Atl. 916, 43 L. R. A. plaintiff brings exceptions. Sustained.

84, 72 Am. St. Rep. 647; Chicago & Eastern Gay & Keen, for plaintiff. Oliver Pres- |

Illinois Railroad v. Flexman, 103 Ill. 546-550, cott, Jr., and John H. Clifford, for defendant. 42 Am. Rep. 33; Fick v. Chicago & North

western Railroad Company, 68 Wis. 469, 32 KNOWLTON, C. J. The plaintiff was a N. W. 527, 60 Am. Rep. 878; Indianapolis passenger on the defendant's street car, and Union Railway ompany v. Cooper, 6 Ind. was riding near the front window, on a seat App. 202, 33 N. E. 219; Terre Haute & in the corner of the car. The car entered | Indiana Railroad Company V. Jackson, 81 upon a turnout to pass two other cars, Ind. 19. In the application of the rule to going in the opposite direction, which were injuries caused by servants of the carrier waiting there for the plaintiff's car to go while engaged in the performance of his conby. The conductor of one of these cars, who tract of carriage, it is held that he is liable had picked up a dead hen on the beach near absolutely for their misconduct. This part the road, threw the hen in sport at the of the rule was discussed particularly in motorman on the car on which the plaintiff Bryant v. Rich, ubi supra, as the more gen. was riding. He missed the motorman, and eral doctrine was discussed in Simmons v. his missile struck the window, broke the New Bedford, Vineyard & Nantucket Steamglass, and thereby injured the plaintiff. This boat Company, 97 Mass. 316, 13 Am. Dec. 99. suit is brought to recover compensation for Under the authorities, it is plain that, if the injury.

the wrongful act which caused the injury We will assume in favor of the defendant in the present case had been done by tne that there was no evidence to warrant a find- conductor or motorman of the car on which ing that the conductor who threw the hen the plaintiff was riding, the defendant would was acting within the scope of his employ. | be liable. The only question upon which ment, and therefore, under the rules of law there is ground for any doubt is whether applicable to the ordinary relations of master the rule applies to an injury done by a servand servant, the defendant would not be ant who was engaged in the same general liable for the servant's act. But the plain service, but was employed upon another car, tiff invokes a special rule applicable to com and was not charged directly and primarily mon carriers. A common carrier of passen with any duty to provide for the safety of gers impliedly agrees to exercise the utmost the plaintiff. We are of opinion that the care and diligence, consistent with the proper liability of the defendant is the same as if management of his business, to protect his the conductor who threw the hen had been passengers from injury through the miscon in charge of the plaintiff's car. The rule of duct of other persons, while he is performing liability in such cases is made absolute. The his contract for their transportation. They reason for the rule applies as well when necessarily submit themselves in a large de the servant is employed upon another car gree to his care and control, and he under- as when he is working on the car upon which takes to provide for their safety in all those the injury occurs. If one of the reasons particulars which ougbt to be under his di- | for the liability is that the servant, through rection and management. Among these, to a his relation to his master, owes a duty to certain extent, are the kind of persons per- | protect the passenger from injuries by others,

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