"American District Telegraph Company. Uniformed messenger service. The best in the long run, the best in the short run. Messengers furnished for the delivery of notes, invitations, packages, catalogues, samples, and advertising matter. Pull the call box or telephone the Western Union." "Notice: This company does not undertake delivery of packages, notes, letters, communications, or the purchase or delivery of merchandise for hire. Its sole business is the furnishing of messengers at a stated compensation for the time such messengers are employed by patrons. The Western Union Telegraph Company."

The company installs in various places of business in the city call boxes, by the use of which customers may secure messengers, a sufficient number of whom are always kept to accommodate patrons in delivering telegrams. The company also receives calls for messengers, who deliver packages, notes, etc., within the city. In many instances when such calls are received the agents of the company are not advised whether a messenger is desired to bring to the office a telegraph message or to carry a private note or package to some other person in Portland. When a sufficient number of messengers are not in attendance at the company's office properly to transact the telegraphic business, a messenger is refused when called for any other purpose. When, however, messengers are available, they are sent in response to calls of every kind, and without information as to the service required. Upon receiving a call the company's agent directs a messenger to go to the locality indicated, where he is instructed as to the place and manner of delivering a message or package, and thereupon the boy executes the order, performing the service required. Neither the company nor its agent is usually informed as to the contents or value of the package delivered, or the importance of the message handed over to a messenger, other than a telegraphic communication. In answering a call the messenger informs the patron what the charges will be for performing the service demanded, and in most instances the boy collects the prescribed fee, which is calculated upon the basis of 40 cents per hour for deliveries made to persons within the city. Such fee, when thus received, is given to the company's agent, who retains it, keeping account thereof, and at the end of the month he pays the messenger who performed the service 60 per cent of the sums so received, and also gives the boy 2 cents

that time. Credit is sometimes allowed for the fee required for delivering notes, No license has been issued packages, etc. to the defendants, nor has any bond been given by either of them as required by the

ordinance.

No claim is made by defendants' counsel that the charter of Portland did not empower the council of that municipality to regulate occupations and kindred matters within the city. It will be assumed, therefore, that such authority is expressly given or is granted by necessary implication. The power to regulate does not authorize an absolute prohibition of any legitimate business that may be pursued as of common right. As a means of enforcing a reasonable regulation, however, power may be exercised to exact a license to follow a particular occupation, coupled with an accompanying prohibition that, in the event of a failure to pay the stipulated fee and to procure the requisite evidence of authority to conduct the business, pursuit thereof will be unlawful. Dill Mun. Corp. 5th ed. $665. A textwriter, in distinguishing between a tax and a license, observes: "It is therefore conclusive that the general requirement of a license, for the pursuit of any business that is not dangerous to the public, can only be justified as an exercise of the power of taxation, or the requirement of the compensation for the enjoyment of a 1 Tiedeman, State privilege or franchise." & Federal Control of Persons & Property, p. 495.

The production of a revenue, however, is not conclusive evidence of an exercise of the power to tax, for a municipal corporation may be authorized to issue licenses which incidentally result in raising revenue. Cooley, Const. Lim. 5th ed. 244.

As a reasonable exercise of a measure of the police power and as an incident to the authority to demand a license fee as a condition precedent to the right to pursue an occupation in which members of the public may be interested or whereby they may be affected, a municipal corporation, under a grant of power to regulate, may also lawfully require the licensee to execute to the city a reasonable bond for the faithful performance of the service authorized, and to operate as indemnity for damages which individuals may sustain by reason of fraudulent conduct of the business. Freund, Pol. Power, § 40; State v. Harrington, 68 Vt. 622, 34 L.R.A. 100, 35 Atl. 515. The ordinance in question is reasonable in its terms, general in its application to all parties of the same class, consonant with the powers and purposes of the city of Portland, con

sistent with the laws and policy of the state, and is a proper exercise of the police power enacted for the purpose of regulat ing, and not restraining, occupations. Ex parte Frank, 52 Cal. 606, 28 Am. Rep.

642.

It is contended that the messenger business, disclosed by the stipulated facts, as far as it relates to the delivery of notes, packages, etc., is not conducted by the Western Union Telegraph Company; that its undertaking in this particular is to furnish messengers to its patrons, whose servants they are for the time employed; that the company's full duty is discharged when it exercises ordinary care in selecting the messengers, and hence an error was committed in rendering the judgment herein. "One who employs messengers to deliver parcels," says a text writer, "is a common carrier as to goods received for delivery in that way.” 6 Cyc. 369. "A common carrier," observes Mr. Justice Lord, in Thompson-Houston Electric Co. v. Simon, 20 Or. 60, 63, 10 L.R.A. 251, 23 Am. St. Rep. 86, 25 Pac. 147, "is such because his duties partake of a public character." In White v. Postal Teleg. & Cable Co. 25 App. D. C. 364, 367, 4 Ann. Cas. 767, which was an action to recover money alleged to have been lost by a messenger furnished by the defendant to the plaintiff, the court, referring to such business, remarked: "In passing, it may be said that in all the larger cities there are now companies engaged in this line of service, and undoubtedly they are in a certain sense and to a certain extent common carriers."

In Gilman v. Postal Teleg. Co. 48 Misc. 372, 373, 95 N. Y. Supp. 564, 565, the court, in speaking of the defendant, makes the following assertion: "It is in evidence, however, that it installs call boxes in houses, and sends messenger boys, in response to calls, to carry out such errands as may be intrusted to them, and that this service frequently involves, to the knowledge of the company, the carrying of parcels. So far as appears, this service is confined to the carrying of such small parcels as can be carried by hand by a lad, and it does not appear that the defendant is equipped or prepared to carry more bulky merchandise.

To the extent, then, that it offers its services to the public as a carrier, that is, so far as relates to small packages, the defendant must, I think, be regarded as a common carrier and held to be responsible in that capacity."

It is evident, we think, from the agreed statement of facts, that the Western Union Telegraph Company, in the exercise of a

part of its public employment, holds itself out as ready to engage in carrying from place to place as directed, within the city of Portland, notes, small packages, etc., undertaking to perform such service for hire as a business, furnishing messengers at all times, except when they are otherwise engaged in delivering telegraph messages, and, in respect to such packages as can reasonably be transported by messengers, it is a common carrier and ordinarily liable to the obligations imposed by the principles of the common law upon such class of publicservice corporations.

It remains to be seen whether or not the

messengers of the Western Union Telegraph Company when engaged in delivering notes, packages, etc., in response to calls, are its servants or pro hac vice are the employees of its patrons.

In Haskell v. Boston Dist. Messenger Co. 190 Mass. 189, 2 L.R.A. (N.S.) 1091, 112 Am. St. Rep. 324, 76 N. E. 215, 5'Ann. Cas. 796, 19 Am. Neg. Rep. 289, the plaintiff by means of a call box signaled the defendant for a messenger, upon whose arrival there was delivered to him a receipted bill for rent, amounting to $58.33, and he was sent to collect that sum from a tenant. The messenger received the money, but failed to return it, whereupon an action was insti tuted to recover it; and it was held that a corporation supplying messenger boys to be employed in ordinary messenger service and controlled by those calling for them was not a common carrier, and that it performed its duty towards its customers by exercising ordinary care in the selection and employment of suitable persons as messengers, and, no special agreement having been made with the company in regard to the performance of such service, the patron, as the employer of the boy, could not recover the loss from the corporation supplying him, without showing negligence on its part in selecting the boy as a messenger.

So, too, in Hirsch v. American Dist. Teleg. Co. 112 App. Div. 265, 98 N. Y. Supp. 371, a staff of messengers was maintained by the defendant corporation, which furnished boys to its patrons needing their services, the charges therefor being based upon the time employed. The plaintiff notified the defendant's manager of one of its offices that he needed a boy, and accepted the lad offered, to whom he gave a package with instructions to take it to a designated place and deliver it. The package was never delivered, and, in an action to recover the value thereof, it was ruled that in furnishing such boy the company was

46 N. W. 799; Fuller v. Locomotive Engineers' Mut. Life & Acci. Ins. Asso. 122 Mich. 548, 48 L.R.A. 86, 80 Am. St. Rep. 598, 81 N. W. 326.

Where a policy provides that an indemnity will be paid in case of the removal or severance of a member of the body, the loss of the use of a member is not such a loss as will entitle the assured to the indemnity.

Fuller v. Locomotive Engineers' Mut. Life & Acci. Ins. Asso. supra; Brotherhood of R. Trainmen v. Walsh, 89 Ohio St. 15, 103 N. E. 759.

Where a policy provides that an indemnity will be paid in case of the loss of a member, and uses other words which intimate that the loss referred to must be injury, has been deprived of the use of the member. This was the construction adopted in the following cases: Supreme Ct. of Honor v. Turner, 99 Ill. App. 310; Theorell v. Supreme Ct. of Honor, 115 Ill. App. 313; Sisson v. Supreme Ct. of Honor, 104 Mo. App. 54, 78 S. W. 297; Gahagan v. Morrisey, 6 Pa. Dist. R. 135; Lord v. American Mut. Acci. Asso. 89 Wis. 19, 26 L.R.A. 741, 46 Am. St. Rep. 815, 61 N. W. 293; Sheanon v. Pacific Mut. L. Ins. Co. 77 Wis. 618, 9 L.R.A. 685, 20 Am. St. Rep. 151, 46 N. W. 799.

was

Under provisions in substance providing for indemnity in case of the loss of hands or feet, there was held to be a loss within the meaning of the provision where there an entire destruction of the use of both of a person's feet by paralysis caused by an accidental pistol wound in the back. Sheanon v. Pacific Mut. L. Ins. Co. 77 Wis. 618, 9 L.R.A. 685, 20 Am. St. Rep. 151, 46 N. W. 799.

And also where a load of gun shot passed through the palm of the insured's hand, tearing the muscles of the thumb and injuring the abductor muscles, and destroying all practical use of the hand for laboring purposes. Supreme Ct. of Honor v. Turner, 99 Ill. App. 310.

And in Gahagan v. Morrisey, 6 Pa. Dist. R. 135, where the insured had lost the use of a hand, although he was employed by the company for which he was working when insured in another line of work, it was held that under a provision that any member suffering "the loss of a hand at or above the wrist joint" should be considered totally disabled, the entire loss of the use of a hand might fairly be regarded as coming within the terms of the policy, and that it did not necessarily apply only to cases of an amputation of the hand.

In the following cases under provisions providing for indemnity in case of the loss of hands or feet, the question whether there had been a loss warranting a recovery was held for the jury:

-where there was evidence that a hand was crushed so that it was of no practical use, although the whole hand was not re

caused by the actual removal of that member, then a mere loss of the use of the member will not entitle the assured to the indemnity.

Stoner v. Yeomen of America, 160 Ill. App. 432; Mady v. Switchmen's Union, 116 Minn. 147, 133 N. W. 472; Chevaliers v. Shearer, 27 Ohio C. C. 509.

Messrs. Charles A. Hart and Charles E. McCulloch, for respondent:

Terms such as "removal of one hand at or above the wrist" and "severance of one entire hand" are to be construed according to the ordinary and fair meaning of the words used, and not in an accurately anatomical or technical sense.

Fuller, Acci. & Employer's Liability Ins. p. 352; Garcelon v. Commercial Travelers' moved, Sisson v. Supreme Ct. of Honor, 104 Mo. App. 54, 78 S. W. 297;

-where there was evidence that the insured while working at his trade as a carpenter fell and received injuries resulting in paralysis of his lower limbs so that he was unable to stand without support, although he was able to move about with crutches, Theorell v. Supreme Ct. of Honor. 115 Ill. App. 313.

Although the last two cases are not entirely clear upon the point, the question held to be for the jury was evidently whether such facts existed as would, under the construction placed upon the provisions of the policy by the court, justify a recovery, and not whether certain facts when found would authorize a recovery under the language of the policy as construed by the jury.

And in Lord v. American Mut. Acci. Asso. 89 Wis. 19, 26 L.R.A. 741, 46 Am. St. Rep. 815, 61 N. W. 293, under a policy providing for a certain indemnity in case of injuries resulting in the loss of one or both hands causing immediate total disability, it was held a question of fact for the jury whether an injury resulting in the tearing off of three fingers, and a part of the other, and cutting the hand, and destroying the joint of the thumb, was the loss of one hand causing immediate and total disability.

It has been held that a recovery for the loss of one hand cannot be had under a policy providing for an indemnity for the loss of one entire hand and one entire foot, or of two entire hands or two entire feet, since such policy provides for an indemnity in case of loss of two, and not of one, limb or part of two limbs. Gentry v. Standard Life & Acci. Ins. Co. 6 Ohio S. & C. P. Dec. 114.

In Stoner v. Yeomen of America, 160 Ill. App. 432, it was held that the insured had not suffered the "loss of a hand at or above the wrist" where he had lost his third and little finger, and injured the knuckle joint of the middle finger, but had at least half of the hand left, since it was held that he had not lost a hand at or above the wrist.

In Stevers v. People's Mut. Acci. Ins.

& Eastern Acci. Asso. 184 Mass. 8, 100 Am. St. Rep. 540, 67 N. E. 868; Sneck v. Travelers' Ins. Co. 88 Hun, 94, 34 N. Y. Supp. 545, affirmed in 156 N. Y. 669, 50 N. E. 1122; Sheanon v. Pacific Mut. L. Ins. Co. 77 Wis. 618, 9 L.R.A. 685, 20 Am. St. Rep. 151, 46 N. W. 799; Herman v. Merchants' Ins. Co. 81 N. Y. 184, 37 Am. Rep. 488.

If the language of the policy is fairly and reasonably susceptible of two constructions -one favorable to the assured and the other to the defendant-the one is to be adopted which is the most favorable to the assured.

Fenton v. Fidelity & C. Co. 36 Or. 283, 48 L.R.A. 770, 56 Pac. 1096; Sneck V.

Travelers' Ins. Co. 88 Hun, 94, 34 N. Y. Supp. 545; American Surety Co. v. Pauly, 170 U. S. 133, 42 L. ed. 977, 18 Sup. Ct. Rep. 552; Grand Rapids Electric Light & P. Co. v. Fidelity & C. Co. 111 Mich. 148, 69 N. W. 249; Darrow v. Family Fund Soc. 116 N. Y. 537, 6 L.R.A. 495, 15 Am. St. Rep. 430, 22 N. E. 1093.

An insurance contract is to be interpreted according to its true character and purpose, and in the sense in which the insured had reason to suppose it was understood.

Hoffman v. Ætna F. Ins. Co. 32 N. Y. 413, 88 Am. Dec. 337; Sneck v. Travelers' Ins. Co. 88 Hun, 94, 34 N. Y. Supp. 545.

In a policy which undertakes to pay for

In Fidelity & C. Co. v. Hart, 142 Ky. 25, 133 S. W. 996, where an accident policy provided that if the insured should contract any disease which should result, independently of all causes, in permanent paralysis, whereby the insured should entirely lose the use of both hands or both feet or of one hand and one foot, and on the account of either of the conditions be permanently unable to engage in any work or occupation for wages or profit, a specified indemnity should be paid upon the filing of satisfactory proof of the continuance for fiftytwo consecutive weeks of such paralysis; and it was further provided in another clause that written notice as early as might be reasonably possible must be given of disability for which a claim was to be made with full particulars, and that affirmative preliminary proofs of paralysis must be furnished within fourteen months from the date of the beginning of paralysis. The insured in the case claimed to recover because of the entire loss of the use of his left hand and foot caused by a stroke of paralysis. It was held that, in order to recover indemnity, the paralysis must have deprived the insured of the capacity to labor so as to earn wages for fifty-two consecutive weeks, but that it need not have been a total paralysis of the limbs at the beginning, but it was only necessary that within fiftytwo weeks of its beginning it should have resulted in such total paralysis, and that this condition should have been permanent. Provisions for indemnity in case of loss by means of physical separation, severance, or amputation.

In view of the court's refusal to construe provisions such as those considered in the

Thus, under a policy providing that any member of a benefit association who should suffer the amputation or severance of an entire hand at or above the wrist joint should be considered totally and permanently disabled, but not otherwise, it has been held that no recovery can be had where a member receives an injury which necessitates the amputation of his thumb, and crushed and injured the hand from above the wrist joint so that he was permanently unable to use it to perform any manual service whatever. Brotherhood of R. Trainmen v. Walsh, 89 Ohio St. 15, 103 N. E. 759.

Under a policy providing for indemnity for total disability by "suffering, by means of a physical separation, the loss of four fingers of one hand at or above the third joint providing the above amputations occur" it has been held that there could be no recovery where an insured receives an injury resulting in the amputation of the second, third, and fourth fingers above the third joint, and injuring the bone in the palm of the hand connecting with the first finger, and causing that finger to be deflected somewhat from its normal line, and a loss of about one half the power and efficiency of the finger, since such injury does not come within the language of the provision, as the insured's first finger and thumb remained attached to the hand. Mady v. Switchmen's Union, 116 Minn. 147, 133 N. W. 472.

And it has been held that the amputation of a person's foot so as to leave all of the the foot, and possibly a part of the ball of heel and substantially all of the hollow of the foot, does not give any right to the full amount of insurance on the ground that all the use of the foot is lost, under a by-law of a mutual benefit association providing