being. It was pointed out by witnesses in this case that there are features of the insurance business which render an association of the kind in question convenient and profitable to men engaged in the business, and that such an association may be conducted without in any particular violating the law. The fact that before the anti-trust laws were enacted insurance companies were banded in an association to maintain rates doubtless conduces to place any society they may now form under suspicion, especially at a period when the public mind is excited on the subject of trusts. But when there is a legitimate purpose for which they may organize, and when we are told by reputable witnesses that such was the purpose of this organization, and that there was no agreement to maintain rates we have no right to disregard the testimony or overweigh it with suspicion. I have given the evidence in this case a careful study, and am satisfied that on the main question of fact the decided preponderance is in favor of the respondents, and the finding should be that they are not guilty of the acts charged, and the judgment that they be discharged.

(Division 1.)

HAM RAILROAD COMPANY, Respt.,

v.

submit to that $50 fine was in writing, | terests. Such associations are not unusual, signed by all the members of the club. That nor necessarily injurious to the public wellis in contradiction of his own previous statement and that of the other witness just mentioned, to the effect that no agreement on that subject was reduced to writing for fear of the law. The evidence showed that the club had a secretary, whom it paid $75 a month. This secretary had been obtained by a committee sent by the club to Kansas City to consult Mr. Fetter on the subject, and was recommended by him as an efficient man for their business, he having been a clerk in Fetter's office. All policies written by the members and their daily reports were sent to the secretary, who examined them, and, if the policies were found correct, he forwarded them to the company; if anything wrong was discovered, either in the policies or reports, he sent them back to the agent for correction. The state's testimony tended to show that this was for the purpose of preventing any agent from cutting the rate. The testimony for respondents tended to show that the secretary was selected because of his skill in insurance business, and to aid the members in their technical work. All policies were sent to him for his judgment as to their being properly written. If there was anything wrong in the form of the policy, or in the description of the property, it was his duty to note the correction, and return it to the writer. When a number of policies were written by different agents on the same property, it was desirable that they KANSAS CITY, MEMPHIS, & BIRMINGshould all be what in technical language they call "concurrent;" that is, substantially in the same form. It was the secretary's SOUTHERN duty to see that such policies were concurrent, and, if one was found to be what they called "nonconcurrent," his duty was to note the difference, and return it to the writer for correction. This could be done only by having a common agent of this kind, or by the more inconvenient method of a meeting of all the agents interested. In a few instances, when he first began his office, the secretary noted on policies that they were written below the rate indicated in the Fetter book, which was the usual standard, and returned them to the writers for such action as they might see fit to take; but it was done as a mere suggestion; the secretary took no further action on it, and he soon discontinued doing so. That he had nothing to do with fixing or maintaining the rates. That he made inspections of risks, and, when changes in the property or occupancy occurred, he reported it to Mr. Fetter at Kansas City, who, if, in his opinion, the change required it, prepared for distribution to all his subscribers slips indicating a change in the rate of premium that should be made. The testimony of the president, secretary, and several members of the club was taken, and they all testify that there was no agreement to maintain rates. It is not every association of men engaged in the same business that is condemned by our antitrust statutes, even though the object of the association be to facilitate the conduct of their business and promote their mutual in

1.

2.

3.

RAILWAY NEWS COM-
PANY, Appt.

(........Mo.........)

A contract by which a news company indemnifles а railroad company against any loss sustained by reason of any injury to employees of the news company, who are carried by the railroad company, is not against public policy.

A finding of fact by the court in a case at law is conclusive on appeal.

The fact that the amount of a judgment was determined by agreement will not take the judgment out of the protection of a covenant to indemnify the defendant against liability upon the claim on which the judgment is taken, although it will reduce the judgment from conclusive to presumptive evidence of the liability.

(June 14, 1899.)

PPEAL by defendant from a judgment of the Circuit Court for Jackson County in favor of plaintiff in an action brought to recover upon a contract by defendant to indemnify plaintiff against liability for injuries to defendant's employees while on plaintiff's trains. Affirmed.

NOTE. For liability of carriers to postal clerks on trains, see Cleveland, C. C. & St. L. R. Co. v. Ketcham (Ind.) 19 L. R. A. 339, and

note.

For express messengers, newsboys, etc., as passengers, see note to Muldoon v. Seattle City R. Co. (Wash.) 22 L. R. A. on page 796.

The facts are stated in the opinion. The contract sued on, in so far as it is Messrs. Wallace & Wallace, for appel-relied on to protect or indemnify the plainlant: tiff against the penalty which is incurred The defendant is not liable on the con- under the laws of Alabama through its negtract sued on for the reason that the news-ligent and wrongful act, is against public boy was killed while acting as a lookout on policy and void. plaintiff's train, and while outside the line of his employment as news agent.

The engineer in charge of the train had authority, under the circumstances of the case, to call on the news agent for assist

ance.

Jones v. St. Louis S. W. R. Co. 125 Mo. 666, 26 L. R. A. 718; Voight v. Baltimore & O. S. W. R. Co. 79 Fed. Rep. 561; Starr v. Great Northern R. Co. 67 Minn. 18; Magoffin v. Missouri P. R. Co. 102 Mo. 540; Mellor v. Missouri P. R. Co. 105 Mo. 455, 10 L. R. A. 36; Louisville & N. R. Co. v. Kingman, 18 Ky. L. Rep. 82; Chamberlain

Sloan v. Central Iowa R. Co. 62 Iowa, 736; Church v. Chicago, M. & St. P. R. Co. 50 Minn. 220, 16 L. R. A. 861; Marks v. Roch-v. Pierson, 59 U. S. App. 55, 87 Fed. Rep. ester R. Co. 146 N. Y. 181; Georgia P. R. 420, 31 C. C. A. 157; Norfolk & W. R. Co. Co. v. Propst, 85 Ala. 203, 83 Ala. 525; v. Shott, 92 Va. 34; New York C. R. Co. v. Louisville & N. R. Co. v. Ginley, 100 Tenn. Lockwood, 17 Wall. 357, 21 L. ed. 627; 472; Newport News & M. Valley Co. v. Car- Maney v. Chicago, B. & Q. R. Co. 49 Ill. App. . roll, 17 Ky. L. Rep. 374; Pennsylvania Co. 105; Delanoy v. Robson, 5 Taunt. 605; Babv. Gallagher, 40 Ohio St. 637, 48 Am. Rep. cock v. Terry, 97 Mass. 482; James v. Hen689; Arkansas S. R. Co. v. Loughridge, 65 dree, 34 Ala. 488; Hayes v. Hayes, 8 La. Ark. 300; Terre Haute & I. R. Co. v. McMur- Ann. 468; Rintoul v. New York C. & H. R. ray, 98 Ind. 358, 49 Am. Rep. 752; Louis- R. Co. 17 Fed. Rep. 905; Willock v. Pennsylville, N. A. & C. R. Co. v. Smith, 121 Ind.vania R. Co. 166 Pa. 184, 27 L. R. A. 228; 353, 6 L. R. A. 320; Marquette & O. R. Co. v. Taft, 28 Mich. 289; Elliott, Railroads, § 302, pp. 408, 409.

Frost v. Plumb, 40 Conn. 111, 16 Am. Rep. 18; Hall v. Corcoran, 107 Mass. 253, 9 Am. Rep. 30; Welch v. Wesson, 6 Gray, 505; If it should be held that the employment Harrington v. Crawford, 136 Mo. 467, 35 of the newsboy by the engineer was unau-L. R. A. 477; Parsons v. Randolph, 21 Mo. thorized, the defendant is still not liable. The App. 353; Harrison v. McCluney, 32 Mo. contract of the news company was to save App. 481. the railroad harmless from actions for damages or injury to the employees of the news company. This case does not come within the limits of that contract. At the time of the injury the newsboy was not acting for the defendant nor in the line of his employ

ment.

When the servant either at the request of a third person or at his own volition, for his own purposes, undertakes to do anything not expressly or impliedly called for by the course of the business to be transacted by him, he is universally held to temporarily leave the master's employ.

Church v. Mansfield, 20 Conn. 284; Mali v. Lord, 39 N. Y. 381, 100 Am. Dec. 448; Wright v. Wilcox, 19 Wend. 343, 32 Am. Dec. 507; M'Manus v. Crickett, 1 East, 106; Bard v. Yohn, 26 Pa. 482; Lee v. Nelms, 57 Ga. 253; Rayner v. Mitchell, L. R. 2 C. P. Div. 357; Adams v. Cost, 62 Md. 264, 50 Am. Rep. 211; Cavanagh v. Dinsmore, 12 Hun, 465; Stevens v. Armstrong, 6 N. Y. 435; Brown v. Purviance, 2 Harr. & G. 316; Stone v. Hills, 45 Conn. 44, 29 Am. Rep. 635 People's Ice Co. v. Employers' Liability Assur. Corp. 161 Mass. 122.

Decedent was a volunteer who assumed a position of danger at the request of one of defendant's employees, and was one to whom the company owed no duty, and the railroad company was not liable for his death. Everhart v. Terre Haute & I. R. Co. 78 Ind. 292, 41 Am. Rep. 567; Flower v. Pennsylvania R. Co. 69 Pa. 210, 8 Am. Rep. 251; Welch v. Maine C. R. Co. 86 Me. 552, 25 L. R. A. 658; Georgia P. R. Co. v. Propst, 85 Ala. 203; Union P. R. Co. v. Nichols, 8 Kan. 505, 12 Am. Rep. 475; Texas & N. 0. R. Co. v. Skinner, 4 Tex. Civ. App. 661.

Messrs. Pratt, Dana, & Black, for respondent:

The contract made no attempt to limit liability as a common carrier, as appears for at least two reasons:

First, in making this contract plaintiff was not contracting as a common carrier. It was contracting as a private carrier, or bailee for hire, because, as a matter of accommodation to defendant and at the latter's request, it agreed by the contract to allow a business to be carried on upon its trains which it was not bound to consent to as a common carrier.

New York C. R. Co. v. Lockwood, 17 Wall. 357, 21 L. ed. 627; Hutchinson, Carr. §§ 44, 73, 77, 111.

Having the right to refuse to perform the services requested by defendant, plaintiff had the right to contract for their performance as a private carrier, and to impose such conditions as it saw fit.

4 Elliott, Railroads, 2173; New York C. R. Co. v. Lockwood, 17 Wall. 357, 21 L. ed. 627; Chicago, M. & St. P. R. Co. v. Wallace, 24 U. S. App. 589, 66 Fed. Rep. 506, 14 C. C. A. 257, 30 L. R. A. 161; Piedmont Mfg. Co. v. Columbia & G.. R. Co. 19 S. C. 353; Coup v. Wabash, St. L. & P. R. Co. 56 Mich. 111, 56 Am. Rep. 374; Robertson v. Old Colony R. Co. 156 Mass. 525; Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 129 U. S. 440, 32 L. ed. 791; Louisville, N. A. & C. R. Co. v. Keefer, 146 Ind. 21, 38 L. R. A. 93; Bates v. Old Colony R. Co. 147 Mass. 265; Hosmer v. Old Colony R. Co. 156 Mass. 507; Hartford F. Ins. Co. v. Chicago, M. & St. P. R. Co. 36 U. S. App. 152, 70 Fed. Rep. 201, 17 C. C. A. 62, 30 L. R. A. 193; Stephens v. Southern P. Co. 109 Cal. 86, 29 L. R. A. 751;

The case was tried by the court without a jury, the court finding the facts to be as fol

Brewer v. New York, L. E. & W. R. Co. 124 | ond covenant aforesaid, in which the plainN. Y. 59, 11 L. R. A. 483; Kenney v. New tiff recovered judgment in the circuit court York C. & H. R. R. Co. 125 N. Y. 422. of Jackson county for the sum of $5,000, and Second, the contract was not against pub- the defendant appeals. lic policy and not an improper one, because it was merely a contract of indemnity and insurance, by which plaintiff provided ad-lows: ditional means and security for meeting the common-carrier obligations which might be imposed upon it in carrying out the terms of the agreement with defendant.

"(1) Plaintiff is a railroad corporation owning and operating at the times mentioned in the amended petition a line of railway in the states of Tennessee, Mississippi, and Alabama; and defendant is and was at the same times a corporation organized and existing under the laws of Kentucky, and having an office for the transaction of its usual and customary business in Jackson county, Missouri, and at such times was encals, and merchandise on railroad trains throughout the country, through agents and servants commonly and generally known as 'newsboys,' and in conducting such business it was usual and necessary for such agents and servants to pass back and forth from car to car on the trains while the latter were in motion.

Phoenix Ins. Co. v. Erie & W. Transp. Co. 117 U. S. 324, 29 L. ed. 879; California Ins. Co. v. Union Compress Co. 133 U. S. 387, 33 L. ed. 730; American Casualty Ins. Co.'s Case, 82 Md. 535; Boston & A. R. Co. v. Mercantile Trust & D. Co. 38 L. R. A. 97; Trenton Pass. R. Co. v. Guarantors' Liabili-gaged in selling newspapers, books, periodity Indemnity Co. 60 N. J. L, 246, 44 L. R. A. 213; Donald v. Chicago, B. & Q. R. Co. 93 Iowa, 284, 33 L. R. A. 492; Johnson v. Philadelphia & R. R. Co. 163 Pa. 127; Pittsburg, C. C. & St. L. R. Co. v. Cox, 55 Ohio St. 497, 35 L. R. A. 507; Shaver v. Pennsylvania Co. 71 Fed. Rep. 931.

The burden rests upon the party claiming that a contract is against public policy to make it plainly and obviously clear that it is contrary to such policy.

"(2) On December 28, 1889, plaintiff and defendant entered into a written contract, a copy of which is set forth in the amended petition filed herein, on the 22d day of FebRep.ruary, 1896.

Hartford F. Ins. Co. v. Chicago, M. & St. P. R. Co. 36 U. S. App. 152, 70 Fed. 207, 17 C. C. A. 62, 30 L. R. A. 193.

Brace, P. J., delivered the opinion of the

court:

"(3) That pursuant to the terms of said contract said plaintiff throughout the year 1890 received and carried upon its trains the agents, employees, and merchandise of said On the 28th of December, 1889, the plain- afforded such agents and employees facilidefendant placed thereon by the latter, and tiff and defendant entered into a written con- ties for selling and offering for sale such tract by which the plaintiff, for and in con- merchandise; that among such agents and sideration of the sum of $1,500, and of the employees of said defendant was one George covenants of the defendant therein contained, W. Davis, who, in the course of his employgranted to said news company the privilege ment, and acting as agent for defendant, did, of selling upon its regular passenger trains during the year beginning January, 1890, tiff's station of Birmingham, Alabama, unon the 21st day of October, 1890, at plain"periodicals, newspapers, books, confections, der the provisions of said contract, enter fruits, cigars, cakes, pies, and sandwiches," and go upon one of plaintiff's passenger under certain conditions and regulations trains with the merchandise furnished him therein set out; said contract containing, by said defendant, and for the purpose of among others the following covenants upon the part of the defendant, to wit: "And, in selling the same thereon; that on the same consideration of the foregoing grant and the day, while said train was moving over plaintiff's said road between said Birmingham and privileges therein specified, said news com- the station of Ensley, and while in said state pany releases said railroad company from of Alabama, it came in collision with anany right of action, claim, or demand which other train on plaintiff's road, and in consemay accrue to it by reason of the loss of any quence thereof said George W. Davis while of its property while being transmitted on any of the trains of the railroad company employee of said defendant as aforesaid reso on said passenger train as an agent and under the terms of this contract, and fur- ceived injuries from which he subsequently ther agrees, for such consideration, to indied. Such collision occurred and such demnify said railroad company and save it death was caused by the negligence of plainharmless from all claims, demands, dama- tiff's employees in the operation of such ges, actions, costs, and charges to which the railroad company may be subject, or which train, and the personal representatives of it may have to pay, by reason of any injury Davis were thereby damaged in the sum of to any person or property, or loss of life or property, suffered or sustained by any agent or employee of the news company while in, upon, or about any of the stations, platforms, cars, or other premises of the railroad company, whether such injuries or loss arise from the negligence of the employees of said railroad company or otherwise." This is an action for damages for a breach of the sec

$5,000.

"(4) By the laws of Alabama in force at the time, the plaintiff became and was liable to the personal representative of such Davis for such damages as were occasioned by the negligence aforesaid. Section 2589 of volume 1 of the Civil Code of Alabama of 1886, then in force, provided as follows: '2589(2641, 2642, 2643). Action for Wrongful

Act, Omission, or Negligence Causing Death. | W. Davis, deceased, filed in the city court A personal representative may maintain an of Birmingham, Alabama (a court of compeaction and recover such damages as the jury tent jurisdiction under the laws of Alabamay assess for the wrongful act, omission, ma), a suit against this plaintiff for $20,000 or negligence of any person or persons or damages for the death of George W. Davis corporations, his or their servants or through the negligence of this plaintiff's agents, whereby the death of his testa- employees. Process was served on this plaintor or intestate was caused, if the testator tiff as required by the laws of Alabama, and or intestate could have maintained an action this plaintiff, as defendant therein, entered for such wrongful act, omission, or negli- its appearance to said suit. A jury was duly gence, if it had not caused death; such ac-impaneled in said cause, and on the 18th tion shall not abate by the death of the de- day of September, 1891, rendered a verdict fendant, but may be revived against his per- for the administrator, assessing the damages sonal representative, and may be main- at $5,000, for which amount said court on tained though there has not been prosecu- the 18th day of September, 1891, rendered tion or conviction or acquittal of the defend- judgment in favor of the said administrator ant for such wrongful act or omission or and against this plaintiff for $5,000, which negligence, and the damages recovered are judgment this plaintiff on the 18th day of not subject to the payment of the debts or September, 1891, paid to said Eugene S. liabilities of the testator or intestate, but Smith, administrator of said Davis. must be distributed according to the statute of distributions. Such action must be brought within two years from and after the death of the testator or intestate.'

"(10) As a matter of fact the verdict and judgment for $5,000 were entered by and with the consent of the parties, though the proof of this fact was received over the ob"(5) That the true construction of said jection of the plaintiff that such proof was statute, as decided by the supreme court of incompetent and immaterial. As a matter Alabama, which is the court of last resort of fact, there had been negotiations to comin that state, is and was that a person enti- promise the case pending in Walker county, tled to recovery at all thereunder may re- Alabama, and $5,000 was the best settlement cover any amount which a jury may see fit that could be made, and was a reasonable to allow; there being no limit fixed by law sum to be allowed for the damages; and so to the amount of the verdict which a jury it was decided between plaintiff and said may render in an action under said statute. administrator, after long negotiations, that "(6) George W. Davis received his injuries there should be a settlement for that amount, on the 21st day of October, 1890, and died and pursuant thereto it was agreed to distherefrom on the 29th day of November, miss the case in Walker county, and insti1890; and his administrator instituted a tute a new suit in the city court of Birmingsuit in the city court of Birmingham, Ala-ham, Alabama, in which the jury should bama, on February 2, 1891, against plaintiff for $50,000 damages for such injuries received, as claimed, through the negligence of the plaintiff. Plaintiff herein was duly served with process in such suit, which was, on the 18th day of June, 1891, dismissed.

assess the damages at $5,000, and the court rendered judgment therefor. This was all done in good faith, and was a reasonable settlement.

"(11) This plaintiff did hire doctors and incur expenses for medical treatment and "(7) After the death of George W. Davis, hospital care of George W. Davis while he and on the 2d day of February, 1891, the was suffering from his injuries, and paid probate court of Jefferson county, Alabama therefor $430.85, which was a reasonable (a court, having under the laws of Alabasum to pay therefor. It also hired an unma, full jurisdiction), appointed Eugene S. dertaker to prepare his body for burial and Smith as the administrator of said Davis; furnish a coffin therefor, and paid such unand under the laws of Alabama said admin-dertaker $80, which was a reasonable sum to istrator became and was the personal repre-pay therefor. But the court refused to alsentative of said Davis, and entitled to have low plaintiff for that money so expended as and recover the damages authorized by the aforesaid, to which refusal of the court the laws of Alabama for the death of said Da- plaintiff excepted. vis through the negligence of the employees of plaintiff.

"(8) On the 19th day of June, 1891, Eugene S. Smith, administrator of George W. Davis, deceased, instituted in the circuit court of Walker county, Alabama (a court of competent jurisdiction under the laws of Alabama), a suit against plaintiff for $50,000 damages for the death of said Davis through the negligence of the plaintiff's employees. The plaintiff herein, as defendant therein, was duly summoned with process in accordance with the laws of Alabama. On the 16th day of February, 1892, said suit was dismissed.

"(12) This plaintiff on October 8, 1891, demanded of this defendant the $5,000 on account of the payment of the judgment aforesaid, and also said sum of $510.85, and this defendant refused to pay either of said. sums.

"(13) Upon the 21st day of February, 1891, this plaintiff notified this defendant of the pendency of said suit of said administrator in the city court, and was called upon by this plaintiff to defend the same or settle the claim, but refused to have anything to do with the defense of the case or settlement of the claim, and thereafter, and prior to the rendition of the judgment of the city court "(9) On the 18th day of September, 1891, of Birmingham in the last case, this defendEugene S. Smith, as administrator of Georgeant was fully notified of the pendency of the

case in Walker county, the negotiations for | this contention is made from the standpoint a settlement, and that the case would be set-of the deceased news agent, and his relation tled for $5,000; and defendant made no ob- to the railroad company, and is predicated jection to the amount, but said that it was on the well-settled principle that a common a reasonable sum, and the only objection carrier cannot by contract limit its liability made by this defendant to the settlement to a passenger for the negligence of its servwas that it could not take any part in the ants." It may be conceded that the news defense or settlement, because it was insured agent in this case was a passenger on the by some insurance company which had the train in which he lost his life, and that the company could not, by a contract such as this, relieve itself of its duty to him as a common carrier of passengers, or of its liability to him for the negligence of its serv