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necessary, and therefore will not serve any | application for the policy in suit was taken, useful purpose; for the present case can be determined upon its special facts, and upon grounds that did not exist in any of the others.

By the first section of an act of the legislature of Iowa approved March 31, 1880, entitled “An act relating to insurance and fire insurance companies," (Laws Iowa 1880, c. 211, p. 209,) it is provided that "any person who shall hereafter solicit insurance, or procure applications therefor, shall be held to be the soliciting agent of the insurance company or association issuing a policy on such application, or on a renewal thereof, anything in the application or policy to the contrary notwithstanding.'

The second section, among other things, requires all insurance companies or associations, upon the issue or renewal of any policy, to attach to the policy, or indorse thereon, a true copy of any application or representations of the assured, which, by the terms of the policy, are made a part thereof, or of the contract of insurance, or are referred to therein, or which may in any manner affect the validity of the policy. The third section relates only to policies of fire insurance. The last clause in the act is in these words: "All the provisions of this chapter shall apply to and govern all contracts and policies of insurance contemplated in this chapter, anything in the policy or contract to the contrary notwithstanding."

and therefore governs the present case. It dispenses with any inquiry as to whether the application or the policy, either expressly or by necessary implication, made Boak the agent of the assured in taking such application. By force of the statute, he was the agent of the company in soliciting and procuring the application. He could not, by any act of his, shake off the character of agent for the company. Nor could the company by any provision in the application or policy convert him into an agent of the assured. If it could, then the objectof the statute would be defeated. In his capacity as agent of the insurance company, he filled up the application,-something that he was not bound to do, but which service, if he chose to render it, was within the scope of his authority as agent. If it be said that, by reason of his signing the application, after it had been prepared, Stevens is to be held as having stipulated that the company should not be bound by his verbal statements and representations to its agent, he did not agree that the writing of the answers to questions contained in the application should be deemed wholly his act, and not, in any sense, the act of the company, by its authorized agent. His act in writing the answer, which is alleged to be untrue, was, under the circumstances, the act of the company. If he had applied in person, at the home office, for insurance, stating in response to the question as to other insurance the same facts communicated by him to Boak, and the company, by its principal officer, having authority in the premises, had then written the answer, "No other," telling the applicant that such was the proper answer to be made, it could not be doubted that the company would be estopped to say that insurance in cooperative societies was insurance of the kind to which the question referred, and about which it desired information before consummating the contract. The same result must follow where negotiations for insurance are had, under like circumstances, between the assured and one who in fact, and by force of the law of the state where such negotiations take place, is the agent of the company, and not, in any sense, an agent of the applicant.

"In Cook v. Association, 74 Iowa, 746, 748, 35 N. W. Rep. 500, where the question arose as to the scope of the above statute, the supreme court of Iowa said: “Considering the title of the act, and all of its provisions, it seems to us to be very clear that it applies in its first and second sections to all kinds of insurance. There can be no doubt that section one applies to any and all classes of insurance, whether life, fire, marine, insurance of live-stock, or any other kind of insurance; and the same may be said of the second section. To hold otherwise would, it seems to us, be inconsistent and repugnant to the title of the act. If all insurance was not contemplated, the title would have been, simply, An act relating to fire insurance companies.'" The object of this legislation is manifest. But if any doubt on the subject existed, it is re- It is true that among the "Provisions moved by the case of Insurance Co. v. Sha- and Requirements," printed on the back of ver, 76 Iowa, 282, 286, 41 N. W. Rep. 19, in the policy, is one to the effect that the conwhich it was said: "The purpose of the tract between the parties is completely set statute was to settle, as between the par- forth in the policy and in the application, ties to the contract of insurance, the rela- and "none of its terms can be modified nor tion of the agents through whom the nego- any forfeiture under it waived except by an tiations were conducted. Many insurance agreement in writing signed by the presicompanies provided in their applications dent or secretary of the company, whose and policies that the agent by whom the authority for this purpose will not be deleapplication was procured should be re- gated." But this condition permits-ingarded as the agent of the insured. Under deed, requires-the court to determine the that provision they were able to avail meaning of the terms embodied in the conthemselves, in many cases of loss, of de- tract between the parties. The purport ofa fenses which would not have been available the word "insurance" in the question, if the solicitor had been regarded as their "Has the said party any other insurance agent, and many cases of apparent hard-on his life?" is not so absolutely certain ship and injustice arose under its enforcement, and that is the evil which was intended to be remedied by the statute, and it ought to be so interpreted as to accomplish that result."

This statute was in force at the time the

as, in an action upon the policy, to preclude proof as to what kind of life insurance the contracting parties had in mind when that question was answered. Such proof does not necessarily contradict the written contract. Consequently, the above clause,

printed on the back of the policy, is to be way in the city of Cleveland for the free Interpreted in the light of the statute, and passage and travel, at all times, of persons of the understanding reached between the on foot and with horses and vehicles, and assured and the company by its agent averring that, under the statutes of Ohio, when the application was completed, name- the duty rested upon the city to cause the ly, that the particular kind of insurance in- street to be kept open, in repair, and free quired about did not include insurance in from nuisances, alleged that the defendant, Co-operative societies. In view of the stat- on the 12th day of November, 1879, wrongute, and of that understanding, upon the fully placed, and permitted to be placed, faith of which the assured made his appli- large quantities of dirt, sand, rubbish, cation, paid the first premium, and ac- stones, boxes, and other materials for cepted the policy, the company is estopped, building purposes, in and across said street by every principle of justice, from saying at or near and before a building owned by that its question embraced insurance in co-one Rosenfield, and negligently and wrongoperative associations. The answer of "No fully suffered and permitted the same to exother," having been written by its own tend across and occupy more of the street agent, invested with authority to solicit than was reasonable or necessary, namely, and procure applications, to deliver poli- more than one-half of its width, and to recies, and, under certain limitations, to re- main and continue on the above day, and ceive premiums, should be held as properly during the night-time of that day, unpro-interpreting both the question and the an- tected and unguarded, without a sufficient. swer as to other insurance. The judgment number of lights, or in such a manner as is affirmed. to be distinctly seen by those using the (132 U. S. 295) street. It was further alleged that, in consequence of such carelessness, negligence, and improper conduct on the part of the city, the plaintiff, while lawfully passing in a buggy along Bank street, in the nightUnder Rev. St. Ohio, § 2640, relating to mu- time, was, by reason of said dirt, sand, nicipal corporations, and providing that the coun-rubbish, stones, boxes, and other materials cil shall have the care, supervision, and control of public highways, streets, etc., within the corporation, and shall cause the same to be kept open and in repair and free from nuisance, where a city has granted permits for the occupation of part of a street for the purpose of depositing building materials, requiring the locality to be indicated by proper lights during the night, its failure to exercise reasonable diligence in preventing such obstruction as may be dangerous to passers-by will render it liable for any damages that may be sustained by reason of the obstruction.

CITY OF CLEVELAND V. KING.1
(November 25, 1889.)

MUNICIPAL CORPORATIONS CONTROL OF STREETS

-DAMAGES CAUSED BY OBSTRUCTIONS.

In error to the circuit court of the United States for the northern district of Ohio.

This is an action to recover damages for personal injuries which the defendant in error, who was the plaintiff below, alleges were sustained by him in consequence of the failure of the city of Cleveland, by its officers and servants, to exercise due care in keeping one of its streets in proper and safe condition for use by the public. At the trial, the city objected to the introduction of any evidence in behalf of the plaintiff, on the ground that the petition did not state facts sufficient to constitute a cause of action. The objection was overruled, and the defendant excepted. When the evidence for the plaintiff was concluded, the defendant asked a peremptory instruction in its behalf. This motion was denied, and to that ruling of the court an exception was taken. After the whole evidence was closed, and the court had charged the jury, the defendant asked an instruction to the effect that there was not sufficient legal proof of negligence on the part of the city, its officers or agents, to entitle the plaintiff to recover. This request having been denied, an exception was taken to the ruling of the court. The case having been submitted to the jury, a verdict was returned for $10,000 against the city. Upon that verdict a judgment was rendered for the plaintiff. The petition, after referring to Bank street as a common public street and high1Affirming 28 Fed. Rep. 835.

in the street, overturned with great force, and violently thrown upon the street, whereby, and without fault or negligence upon his part, one of his legs was broken, and he was otherwise permanently injured and disabled.

The answer of the city put in issue all the material averments of the petition, and, in addition, alleged that if the plaintiff was injured it was due to his own negligence, and not because of any want of care on the part of the defendant.

At the trial the plaintiff was permitted, against the defendant's objection, to read in evidence two sections of certain ordinances of the city relating to the placing in the streets of material for building purposes. They are as follows:

Sec. 4. No person shall place or cause to be placed on any street, lane, alley, or public ground any material for building purposes without the written permission of the board of city improvements. Such permission shall specify the portion of the sidewalk and street to be used, and the period of said use, which shall not exceed two months, and in no case shall any person use more than one-half of the sidewalk and half of the street. The council may at any time revoke such license. At the expiration of the permission, or on the revocation of it, said person shall remove said material from the street."

"Sec. 14. Whenever any person or persons, whether contractor or proprietor, shall be engaged in the erection or repairing of any building or other structure whatever within the city, and shall cause or permit any building materials, rubbish, or other things to be placed on any public street, lane, alley, or sidewalk, or other place in the city where persons pass and repass; and whenever any person or persons who shall be engaged in constructing any sewer, or laying any gas, water, or other pipes or conductors, in or through any of the streets, lanes, alleys, highways.

The charge to the jury was very full, covering every possible aspect of the evidence, and sufficiently indicating the legal propositions which, in the judgment of the court below, were applicable to the case.

sidewalks, or other places in the city | where persons pass and repass, whether by appointment of the city or its agents, or as contractor,-it shall be the duty of all such persons to protect, with a sufficient number of lights, the materials, rub- Among other things, the court said: "The bish, goods, wares, and merchandise, plaintiff had the right to the use of the heaps, piles, excavation, or other things so street, in going from the hotel to the depot, caused or permitted by them to be or re- unobstructed and free from danger, but main in or at any of the places above men- subject, however, to such incidental, temtioned, and in such manner as to be dis-porary, or partial obstructions as are nectinctly seen by all passers-by, and to con-essarily occasioned in the building or repair tinue such lights from dusk until daylight of houses fronting upon the streets over during every night while any obstructions of the above-mentioned description are allowed to remain in or at such places; and every person who shall neglect the duty imposed by this section shall, in addition to the penalty imposed by this chapter, be liable for all damages to persons and property growing out of such neglect.”

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which he passed; but in using the street he must exercise reasonable and ordinary care to avoid obstructions, if any be found thereon. In the night-time he had the right to suppose, in the absence of signals of danger, that the street was not dangerously obstructed or dangerous to pass over; but in passing over it he must exercise ordinary care and prudence to avoid any dangerous obstructions, both in the observation of obstructions, their locality and character, and the speed used in passing along the street. If any obstructions attracted his attention, he should be more careful to avoid any others that might be in the street and near the same, or, if he knew that there were building materials located in the street in front of a new building, in driving along he must exercise reasonable care to avoid running upon any such obstructions. The city had a right to allow Rosenfeld to use a reasonable part of the street for the purpose of depositing therein building materials with which to erect his building, and the same could rightfully be used by Mr. Kostering, the builder or contractor, for that purpose."

He was also permitted, against the defendant's objection, to read in evidence two permits given by the city, through its board of improvements, one to E. Rosenfeld, dated July 16, 1879, and the other to Frank Kostering, dated September 19, 1879; each permit authorizing the person named therein to occupy one-half of the sidewalk and onethird in width of the street in front of the premises owned by Rosenfeld, during a period of 60 days from the date of the permit, for the purpose of placing building materials thereon, subject, however, to the provisions of the ordinance requiring that such material be protected with a sufficient number of lights, from dusk until daylight, during every day that the same shall remain," and to the condition that the person neglecting that duty should be liable to the penalty imposed by the ordinance, and Again: "The principal negligence comfor all damages to person or property grow-plained of by the plaintiff is that, being in ing out of such neglect. the night-time, no lights were placed at or There was evidence before the jury tend-near the materials, sufficient to warn him ing to show that when the plaintiff was of danger as he passed along the street. passing on Bank street about 7 o'clock in Having provided in the permits to Rosenthe evening of November 12, 1879, the buggy feld and Kostering, the contractor, that in in which he was riding ran against a mor- the night-time sufficient lights should be tar-box placed by Kostering in the street, placed by them at or near materials placed and used by him for purposes of building and remaining in the street to warn peron Rosenfeld's premises, and was over- sons passing along there of dangerous obturned, whereby he was thrown violently structions, the city had a right to suppose to the street, and seriously and permanent- such lights were so placed in the night-time. ly injured in his body. There was also evi- While it was the general duty of the city dence tending to show that the obstruc- to keep its streets in safe condition for the tions placed in the street by Kostering use of persons passing over the same and were not indicated by lights or signals, so liable for injuries caused by its neglect or as to give warning to persons passing in omission to keep them in repair and reavehicles; that a greater width of street was sonably safe, yet, in such a case, the basis occupied by these building materials than of the action being negligence, it is not was justified by the permits granted by the liable for an injury resulting from such negboard of improvements; and that the fail-ligence unless it had notice or knowledge ure of the plaintiff, and of the person driv- of the defect that caused the injury before ing the buggy in which he was riding, to see the mortar-box in time to avoid running against it was not due to any want of care upon the part of either, but to the absence of signals or lights upon the box.

There was evidence on behalf of the city tending to show that the plaintiff, and the person with whom he was riding, might, with reasonable diligence, have seen the mortar-box before the buggy came in contact with it; also that a proper light was placed on the mortar-box about dark of the evening when the accident in question occurred.

it was sustained; or, in the absence of express or direct notice, such notice or knowledge may be inferred from facts and circumstances showing that such want of proper lights to denote dangerous obstructions existed for a sufficient period of time, and in such a public and notorious manner, as that the officers representing the city, or those in the employment of the city for the purpose of removing obstructions in the city, in the exercise of ordinary care and diligence, ought to have known of such want of proper guards in the night-time.

"The city is not an insurer of the abso

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lute safety of persons passing along its | ples announced upon this general subject in streets in the night-time. It is only re- Barnes v. District of Columbia, 91 U.S. 540, quired to exercise ordinary care for such 547, said: "The statute (section 2640, Rev. safety, and in judging of what would be St.) gives to municipal corporations the ordinary care you are to take into account care, supervision, and control of all public the great number of streets and their mile- highways, etc., and requires that the same age contained in the city If the city, or shall be kept open, and in repair, and free the officers or employes representing it, had from nuisance. In effect, it is a requirement such notice or knowledge, direct or implied, that the corporation shall prevent all nuias I have stated, then it was its duty to sances therein, and when by allowing a see that proper lights in the night-time street to become so out of repair as to be were placed at or near the obstructions, dangerous the corporation itself maintains such as would be sufficient to warn persons a nuisance, and a suit to recover for injuof reasonable and ordinary prudence of the ries thereby occasioned is for damage arispresence of such obstructions, and, failing ing from a nuisance or 'for a nuisance.' to do so, it would be liable for injuries re- The statute does not give a remedy; it but sulting from such failure." enjoins the duty. And when a duty to A. T. Brinsmade, for plaintiff in error. keep streets in repair is enjoined on municRichard Bacon and E. K. Wilcox, for de-ipal corporations, either by a statute in the fendant in error. form now in force, or by a provision which authorizes them to pass ordinances for regulating streets and keeping them in repair, and gives power to levy taxes for that purpose, and presumably to obtain a fund By section 2640, Rev. St. Ohio, tit. “Mu- for satisfying claims for damages, a right nicipal Corporations," it is provided that of action for damages caused by such neg"the council shall have the care, supervis-lect arises by the common law." ion, and control of all public highways, streets, avenues, alleys, sidewalks, public grounds, and bridges within the corporation, and shall cause the same to be kept open and in repair, and free from nuisance." 1 Rev. St. Ohio, (Giaugue's Ed.) tit. 12, div. 8, c. 13, p. 600.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

This language leaves no room to doubt the liability of the city of Cleveland for the damages sustained by the plaintiff if it was guilty of the negligence charged in the petition, and if the plaintiff was not himself guilty of negligence that materially contributed to his injury. The fact that the permits to Rosenfeld and Kostering only authorized them to occupy one-half of the street for the purpose of depositing build

The city concedes that, if there was any liability at all on its part, the charge of the court correctly announced the principles of law applicable to the case. If the obstruc-ing materials thereon, and required them tion in question was on Bank street unnecessarily, or for an unreasonable length of time, or was there without proper lights or other guards to indicate its locality, and such condition of the street at the time the plaintiff was injured existed with the knowledge of the city, either actual or constructive, for a sufficient length of time to remedy it by the exercise of proper diligence, the liability of the city cannot be doubted, in view of the decisions of the supreme court of Ohio and of this court; unless, as contended by the defendant, the plaintiff, notwithstanding the negligence of the city in not keeping the street open and free from nuisance, could, by due care, have avoided the injuries he received.

In the case of Cardington v. Frederick, 21 N. E. Rep. 766, which will appear in 46 Ohio St., the supreme court of Ohio construed the above section in connection with section 5144, which, among other things, provides that an action for a nuisance shall abate by the death of either party That was an action against an incorporated village founded upon a petition alleging that a street used by the public was so unskillfully and negligently constructed and left by the defendant as to be in an unsafe condition, and allowed to become out of repair and obstructed by the rubbish and refuse of the village, so that it was highly dangerous, and that the plaintiff, while lawfully passing along the street, accidentally, and without fault on her part, was precipitated down an embankment, whereby she was greatly bruised and injured.

The court held the action to be one for a nuisance, and, in harmony with the princi

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to indicate the locality of such materials by proper lights, during the whole of every night that they were left in the street, did not relieve the city of the duty of exercising such reasonable diligence as the circumstances required, to prevent the street from being occupied by those parties in such a way as to endanger passers-by in their use of it in all proper ways. Whether that degree of diligence was exercised by the city, through its agents; whether its officers had such notice or knowledge of the use of Bank street, in the locality mentioned, by the parties to whom the above permits were granted, as was inconsistent with the safety of passers-by using it with due diligence; whether, in fact, the materials, and obstructions placed by Kostering on thes street were sufficiently indicated by signal* lights or otherwise, during the night-time; and whether the plaintiff was himself guilty of such negligence as contributed to his injury,-were questions fairly submitted to the jury, and are not open for consideration in this court.

The objection that the petition did not state facts constituting a good cause of action is not well taken. The allegations were broad enough to admit proof of such knowledge or notice upon the part of the city of the condition of Bank street as would fix its liability to the plaintiff. If the defendant desired a fuller statement of the cause of action, the proper course was to indicate its wishes by a motion to require the plaintiff to make more specific his allegations as to negligence.

The motion to exclude all evidence upon the part of the plaintiff and the motion for

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a verdict in behalf of the defendant were properly denied. The question of negligence, in all of its aspects, was peculiarly for the jury. As no error of law was committed at the trial, the judgment is affirmed.

(132 U. S. 282)

FRITTS et al. v. PALMER.

(November 25, 1889.)

FOREIGN CORPORATIONS-CONVEYANCES TO.

Const. Colo. art. 15, § 10, declares that no foreign corporation shall do business in the state without a known place of business, and agent in the state on whom process may be served. Gen. St. Colo. 1883, $$ 260-262, provide that, before any foreign corporation shall do business in the state, it shall file with certain officers a certificate of its place of business, and the name of its agent in the state; that "no foreign or domestic corporation established or maintained in any way for pecuniary profit of its stockholders or members shall purchase or hold real estate in this state, except as provided for in this act; " that every foreign corporation shall file with the secretary of state a copy of its charter, and of the law under which it was incorporated; and that failure to comply with the act "shall render each and every officer, agent, and stockholder of any such corporation jointly and severally liable on any and all contracts of such company made within the state during the time that such corporation is so in default." Held, that failure of a foreign corporation to comply with the conditions entitling it to do business in the state does not render a conveyance to it void, so that it may be attacked collaterally by a private person. MILLER, J., dissents.

In error to the circuit court of the United States for the district of Colorado.

L.C. Rockwell, for plaintiffs in error. Jos. Shippen, for defendant in error.

trolling mining property, both real and personal, in the state of Colorado, and of conducting a mining business therewith. This deed was duly recorded in the proper local office on the 25th of June, 1877. Before the purchase from Groshon the company was engaged in the prosecution of its mining business at and near Central City, where it established an office.

On the day of the execution of Groshon's deed, the company made to Ezra D. Fritts its three promissory notes, aggregating $30,000, which were intended to be used and were used in part payment of the price of the property conveyed to it; and, in order to secure the payment of the notes, it executed to Thatcher, as trustee, a deed of trust upon the property, except the Clipper lode, conditioned that on default in the payment of either of the notes, or the interest thereon, the trustee might sell and dispose of the said mining property. That deed of trust was duly recorded on the 26th of June, 1877.

On the 5th of January, 1878, default having occurred in the payment of the notes, the deed of trust was foreclosed under the power of sale contained in it, and on that day Thatcher executed, acknowledged, and delivered his deed for all said real estate and mining property (except the Clipper lode) to Fritts. That deed was duly recorded January 7, 1878.

The defendants claimed title and possession by virtue of divers mesne conveyances, in due form, from the company and its assigns under the above deed of trust, for all of the property, excepting the Clipper lode, which has never been conveyed by it.

office of the clerk and recorder of the county where the property is situated notice, according to law, of the bringing of this suit, and the object thereof.

This is an action in the nature of eject- On the 13th of April, 1878, Groshon exement to recover the possession of certain cuted, acknowledged, and delivered his deed real property in Gilpin county, Colo., name- of quitclaim of all the real estate and minly, the North Comstock, Grand View, ing property in the complaint described to Clipper, and Comstock lodes, and a build-Samuel S. Porter. That deed was delivered ing lot in Central City, in the same coun- to Porter on the 20th of May, 1878, but has ty, together with the dwelling-house there- never been recorded. The latter, by his deed on, the fce and possession of all which of quitclaim, executed May 20, 1878, conproperty were claimed by the plaintiff, the veyed to defendant Palmer. The latter deed present defendant in error. The defendants was delivered to the grantee on the 25th of admitted their possession of the premises May, 1878, but it remains unrecorded. Aftdescribed in the complaint, except the Clip-erwards, June 28, 1879, Palmer filed in the per lode, and alleged their ownership and right of possession of the other property. They distinctly disclaimed all interest in the Clipper lode, and denied that they were or had ever been in possession of it. A trial The Comstock Mining Company, at the by jury was waived in writing by the par- time of its purchase from Groshon, had not, ties, and the case was heard on an agreed nor has it since that time, complied or atstatement of facts, upon which the court tempted to comply with section 10, art. 15, was asked to declare the law and enter of the constitution of Colorado, nor with judgment accordingly. Judgment was ren-sections 23, 24, c. 19, of the General Laws of dered in favor of the plaintiff for the posses- that state, otherwise known as sections sion of all the property described in the 260, 261, c. 19, Gen. St. Colo. 1883, prescribcomplaint, including the Clipper lode. The ing the terms and conditions upon which question to be determined is whether the foreign corporations may do business in judgment is supported by the agreed facts. that state. These facts are, in substance, as follows: A copy of the incorporation laws of MisThe common source of title is William Gro- souri, under which this company was orshon, who, on the 16th of June, 1877, at ganized, was, at the time of its organizaCentral City, in the state of Colorado, con- tion, on file in the office of the secretary of veyed, with warranty, all the property de- state of Colorado, but was not filed by it. scribed in the complaint, to the Comstock Its articles of incorporation were filed in Mining Company, a corporation organized the office of the clerk and recorder for Gilpin under the laws of Missouri for the purpose county, where its business interests were of carrying on mining business, and with located, on August 10, 1877, and a copy of the object, expressed in its articles of incor- the incorporation laws of Missouri, under poration, of purchasing, owning, and con-which the company was organized, waż

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