Opinion of the Court.

By section 2640 of the Revised Statutes of Ohio, Title, Municipal Corporations, it is provided that "the council shall have the care, supervision 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. Stats. Ohio, Title XII, Div. 8, c. 13, Giauque's ed. 600.

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 obstruction 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. Fredericks, 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 unskilfully 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 principles announced upon this general

Opinion of the Court.

subject in Barnes v. District of Columbia, 91 U. S. 540, 547, said: "The statute (§ 2640, Rev. Stats.) gives to municipal corporations the care, supervision and control of all public highways, etc., and requires that the same shall be kept open, and in repair, and free from nuisance. In effect it is a requirement that the corporation shall prevent all nuisances therein; and by allowing a street to become so out of repair as to be dangerous, the corporation itself maintains a nuisance, and a suit to recover for injuries thereby occasioned is for damage arising from a nuisance or for a nuisance.' The statute does not give a remedy, it but enjoins the duty. And when a duty to keep streets in repair is enjoined on municipal corporations, either by a statute in the 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 for satisfying claims for damages, a right of action for damages caused by such neglect arises by the common law."

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 building materials thereon, and required them 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 the

Syllabus.

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 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 tricl, the judgment is affirmed.

CONTINENTAL LIFE INSURANCE COMPANY v.

CHAMBERLAIN.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF IOWA.

No. 100. Submitted November 13, 1889.- Decided November 25, 1889.

In Iowa it is provided by statute 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." Held, (1) That a person procuring an application for life insurance in that State became by the force of the statute the agent of the company in that act, and could not be converted into the agent of the assured by any provision in the application;

(2) That, if he filled up the application (which he was not bound to do) or made representations or gave advice as to the character of the answers to be given by the applicant, his acts in these respects were the acts of the insurer;

Opinion of the Court.

(3) That a "provision and requirement" (printed on the back of the policy issued on the application), that none of its terms could be modified or forfeitures waived except by an agreement in writing signed by the president or secretary, “whose authority for this purpose will not be delegated" did not change the relation established by the statute of Iowa between the solicitor and the insured.

THE case is stated in the opinion.

Mr. J. L. Carney, for plaintiff in error, cited: Jeffries v. Life Ins. Co., 22 Wall. 47; Aetna Life Ins. Co. v. France, 91 U. S. 510; Price v. Insurance Co., 17 Minnesota, 497; Kelsey v. Universal Life Ins. Co., 35 Connecticut, 225; Miles v. Conn. Mut. Life Ins. Co., 3 Gray, 580; Campbell v. N. E. Mut. Life Ins. Co., 98 Mass. 381; Miller v. Mut. Benefit Life Ins. Co., 31 Iowa, 216; Insurance Co. v. Wilkinson, 13 Wall. 222; Insurance Co. v. Mahone, 21 Wall. 152; N. Y. Life Ins. Co. v. Fletcher, 117 U. S. 519; Chase v. Hamilton Ins. Co., 20 N. Y. 53; Shawmut Ins. Co. v. Stevens, 9 Allen, 332; American Ins. Co. v. Neiberger, 74 Missouri, 167; Insurance Co. v. Mowry, 96 U. S. 544; Waynesboro Mutual Fire Ins. Co. v. Conover, 98 Penn. St. 384; Guernsey v. American Ins. Co., 17 Minnesota, 104; Catoir v. Am. Life Ins. & Trust Co., 4 Vroom (33 N. J. L.) 487; Walsh v. Hartford Ins. Co., 73 N. Y. 5; Van Allen v. Farmers' Joint Stock Ins. Co., 64 N. Y. 469.

Mr. D. D. Chase, for defendant in error, cited: Insurance Co. v. Wilkinson, 13 Wall. 222; N. Y. Life Ins. Co. v. Fletcher, 117 U. S. 519; Boetcher v. Hawkeye Ins. Co., 47 Iowa, 253; Miller v. Mutual Benefit Ins. Co., 31 Iowa, 216; Williams v. Insurance Co., 50 Iowa, 568; Walsh v. Aetna Life Ins. Co., 30 Iowa, 133; Insurance Co. v. Norton, 96 U. S. 234, 240.

MR. JUSTICE HARLAN delivered the opinion of the court.

This action is upon a policy of insurance on the life of Richard Stevens, the intestate of the defendant in error. There was a verdict and judgment against the insurance company.

The policy recites that "it is issued and accepted upon the

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Opinion of the Court.

condition that the provisions and requirements printed or written by the company upon the back of this policy are accepted by the assured as part of this contract as fully as if they were recited at length over the signatures hereto affixed." The signatures here referred to are those of the president and secretary of the company.

The application for insurance was taken in Iowa by one. Boak, a district agent of the company in certain named counties of the State, fourteen in number, having written authority "to prosecute the business of soliciting and procuring applications for life insurance policies within and throughout said territory."

Among the numerous questions propounded in the application was the following: "Has the said party [the applicant] any other insurance on his life; if so, where and for what amounts?" The answer, as it appears in the application, is: "No other." That answer, as were all the answers to questions propounded to the applicant, was written by the company's agent, Boak. In reference to the above question and answer, the latter testified: "I asked him [Stevens] the question if he had any other insurance, as printed in the application and as we ask every applicant, and he told me he had certain certificates of membership with certain coöperative societies, and he enumerated different ones, and said he did not know whether I would consider that insurance or not. I told him emphatically that I did not consider them insurance and we had considerable conversation about it. He wanted to know my authority for saying I did not consider them insurance. I gave him my authority - gave him my reasonsand he agreed with me that these coöperative societies were in no sense insurance companies, and in that light I answered the question 'No.' Q. Did you tell him at the time that the proper answer was 'No' after he had stated the facts? A. I did. Q. Who wrote the answer in there? A. I did.” The application also contained these clauses: "And it is hereby covenanted and agreed that the statements and representations contained in this application and declaration shall be the basis of and form part of the contract or policy of in