...

did deprive these plaintiffs and each of them of the benefits of public confidence and social intercourse, and did greatly injure these plaintiffs and their business. .. That these plaintiffs by the wrongful acts of the defendants aforesaid, etc., have been damaged in the sum of $2,000." Respondents separately demurred to the complaint, upon the general ground of insufficiency. The demurrers having been sustained, and appellants electing to stand upon their complaint, and refusing to amend, judgment was given dismissing the action, from which they have appealed.

There are no allegations in the complaint alleging special damages, and it is the contention of the appellants that the writing is libelous per se. The rule is well settled in civil actions that where the language is unambiguous, the question of whether it constitutes libel becomes a question of law to be determined by the court. Donaghue v. Gaffy, 54 Conn. 257, 7 Atl. Rep. 552; Moore v. Francis, 121 N. Y. 199, 23 N. E. Rep. 1127; Townsh. Sland. & L. (4th Ed.), Sec. 286. It is equally well settled that the language used must be given its ordinary meaning, and "the plaintiff cannot, by innuendoes, extend the meaning beyond what the words justify in connection with the extrinsic facts; and when the innuendo is not justified by the antecedent facts referred to, so that without it the words are not actionable, a demurrer to the complaint will lie." 1 Boone, Code Pl. section 163. "The language is to be understood in the ordinary and most natural sense; and when the writing complained of is plain and unambiguous, the question in a civil action, whether it is a libel or not, is a question of law." Lacombe, Circuit Judge, in Morgan v. Halberstadt, 9C. C. A. 147, 60 Fed. Rep. 592. Interpreting the article in question in the light of the rule thus laid down, we think that the appellants' explanation of the meaning and effect of the article must be rejected. The article itself furnishes its own explanation of the meaning to be given to the word "hogs." That explanation and meaning is that they do "not believe in that kind of business (that is, 'in buying at home, and building up our own trade and town as much as possible,') and will not trade at home, but send to Seattle for supplies." This is certainly no reflection upon the character of their hotel, or the kind of accommodation or refreshment which it affords. The article does not charge or impute anything immoral or criminal, nor it is calcu. lated to expose the appellants to public hatred, contempt or ridicule, or to deprive them of the benefits of public confidence. Unquestionably, appellants had the legal right to trade in Seattle, or send there for supplies, if they deemed it to their advantage; and the publication is nothing more than "a hostile comment upon the manner in which the plaintiffs used, within the pale of the law," their right to trade where and with whom they pleased. Donaghue v. Gaffy, supra; Homer v. Engelhart, 117 Mass. 540. To accuse one of being deficient in some quality which the law does not require him as a good citizen to possess is not libelous per se. The public may disapprove of appellants' conduct in thus exercising the right to trade outside of the town where they reside; but the publication does not expose them to public hatred or contempt, in the sense or to the degree required by the law of libel.

ACCIDENT INSURANCE-EXTERNAL, VIOLENT AND ACCIDENTAL MEANS VOLUNTARY EXPOSURE TO DANGER.-Two courts have recently passed upon interesting questions per

taining to accident insurance. The Court of Appeals of Kentucky held, in American Accident Co. v. Carson, 36 S. W. Rep. 169, that a person who is unexpectedly shot by another, without cause or provocation, is injured by "external, violent, and accidental means, within a policy insuring against such injuries, and that where a policy insures against death or injury by external, violent, and accidental means, a provision that it shall not cover intentional "injuries" inflicted by the insured or any other person refers only to non-fatal injuries. In Fidelity & Casualty Co. v. Chambers, 24 S. E. Rep. 896, decided by the Supreme Court of Appeals of Virginia, it appeared that deceased was sitting on a bag on a railroad track at a highway crossing and near a curve; that he sat with his back to the curve, conversing with another person; that a train came suddenly around the curve, and on warning deceased started up, but, reaching to get his bag, was struck by the engine. The policy expressly provided that it did not cover injuries caused by "voluntary exposure to unnecessary danger." It was held that the act of deceased was not within the exception. In this case the court said in part:

The policy held by the deceased insured him "against bodily injuries sustained through external, violent and accidental means." That the insured came to his death "through external, violent and accidental means" is not questioned, and it only remains to be determined whether the evidence brings the case under the exception in the policy which provides that it does not cover injuries caused by "voluntary exposure to unnecessary danger." The words "voluntary exposure," as used in an accident insurance policy, imply conscious intentional exposure; something which one is willing to take the risk of. It must appear that the act, in order to come within the exception, was one which reasonable and ordinary prudence would pronounce dangerous, and that the accident was in consequence thereof. It is consequently not every act of negligence which will defeat a recovery under such a provision, and, in general, the question whether the conduct of the insured is such as to preclude a recovey is for the jury under all the circumstances of the case, and where there is a demurrer to evidence, as in this case, for the trial judge. 1 Am. & Eng. Enc. Law (2 Ed.), pp. 307, 308, and cases cited in notes 5, 6, p. 307, and notes 1, 2, p. 308. The only evidence upon this point is that of Fanny Hill (colored), a witness introduced by the defense. She says that she was talking to deceased in the county road where the railroad track crosses it. He was sitting on a bag and on the railroad track, with his back up the railroad. The train came down around the curve, when she hallowed to him, and he started off, but reached to get his bag, and as he reached to get it the engine struck him in the left side of the back. The train was coming so fast around.

the curve that it was as much as she could do to get out of the way herself. There is not the slightest evidence to show that the deceased knew that a train would be along at or near that time, nor that he had good reason to know it. The fact that he immediately got off the track when apprised that the train was coming, negatives the idea of conscious intentional exposure to danger. The most that can be made of this evidence is that the deceased, in thinking that he had time to get his bag off the railroad track, was simply mistaken. In the case of Insurance Co. v. Os. borne, 90 Ala. 201, 9 South. Rep. 869, the court held that a recovery may be had on a policy of insurance against accidental injuries, or death "effected through external, violent and accidental means," when the evidence shows that the insured, running rapidly from the post-office, fifty yards distant, to get the mail for the postmaster from a railroad train, which was fast approaching, and which did not stop at the station, attempted to check his speed on getting near the train, but stumbled and fell against the steam chest of the engine, receiving fatal injuries; although the insured was not in the employ of the postmaster and volunteered to get the mail from the train, and although they were exceptions contained in the policy against "intentional injuries" and "voluntary exposure to unnecessary danger." Summerville, J., in his opinion, says: "Exceptions of this kind are construed most strongly against the insurer and liberally in favor of the insured. This is now the settled rule for construing all kinds of insurance policies, rendered necessary especially in modern times to circumvent the ingenuity of insurance companies in so framing contracts of this kind as to make the exceptions unfairly devour the whole policy." The fact that a person insured against injury or death by accident was guilty of negligence which contributed to an injury received by him will not prevent a recovery on the policy. Schneider v. Insurance, 24 Wis. 28. It should be borne in mind that this is not a suit against the railroad company, where the question of contributory negligence would come in. If every negligent or careless act of the insured from which accident results without "conscious intentional exposure" on his part is to be made to serve as a defense to an action on the policy, policies of this character would become of little utility.

ANIMALS RUNNING AT LARGE.-In Elliott v. Kitchens, 20 South. Rep. 366, decided by the Supreme Court of Alabama, it was held that a colt three months old, following its dam, driven to a wagon through the streets is not "running at large" within an ordinance making it unlawful for a horse to run at large on the street. The court said in part:

In 12 Am. & Eng. Encyc. Law, 898, we find the following: "Running at large," imposing a penalty on one who suffers animals to run at large in public places, is used in the sense of strolling without restraint or confinement; as wandering, roving or rambling at will, unrestrained. Perhaps no abstract rule under the statute can be laid down applicable to every case, as to the nature, character and amount of restraint necessary to be exercised over a domestic animal when suffered to be on the highway incident to its use. But the restraint need not be entirely physical; it may depend much upon the training, habits and instincts of the animal in the particular case, and the

sufficiency of the restraint is to be determined more from its effect upon, and controlling and restraining influence over the animal, than from its nature or kind. In a note the following quotation from Russell v. Cone (Vt. 604), is given: "Suppose a span of horses be so accustomed to be kept and driven together that, while the owner is riding one, the other will voluntarily follow as closely almost as if led by a halter. The owner, while taking them along the highway in this manner, could not be said to suffer the horse so voluntarily following its mate to run at large, in violation of the statute. The same may be said of a young suckling colt upon the highway, with no restraint other than instinct to follow its dam, which is being driven in a carriage on the highway." It was accordingly held that a horse accustomed to be ridden to a certain point by the owner, and then to return home alone, to a point where the owner's boy was waiting for him, and took care of him, was not "running at large," if his owner or his son kept so near that, owing to its training, it would not wander about the highway, but go directly home. A number of other authorities are quoted from in the notes, stating similar principles. Thus, a dog following his owner or engaged in the chase is not "running at large." The case of Smith v. Railroad Co., 58 Iowa, 622, 12 N. W. Rep. 619, is stated as follows: "A suckling colt, following its mother which was in the plaintiff's control, strayed, and was injured by defendant's train. Held, that the colt, under such circumstances, must be deemed to have been running at large." The fact that the colt was a suckling colt and its mother was in the control of the plaintiff, did not, we think, show that the colt was in control. It might perhaps, under ordinary circumstances, be expected to follow its mother; but there was nothing but its own inclina. tion to restrict its freedom and prevent it from straying, and we think that it must be deemed to have been running at large." If that case be regarded as sound, it is yet distinguishable from the present. There the colt, of its own volition, strayed away from its dam, and, when injured, was at large, under no restraint of instinct or otherwise. Here the facts were that the colt was following its dam, and the defendant's horse, loose upon the street, ran after it. The colt ran along directly in front of and by the side of its dam, and plaintiff kept the horse from it by throwing chips and trash at him which he picked up in the bed of the wagon until he drove up to the foundry and got out of the wagon, when the horse got in between the colt and its mother and chased it away, causing the mare to break away from the plaintiff's control and run, with the wagon, after the colt. There was not only the restraint of instinct actually in force at the time of the injury, but there was the physical presence of the owner, actually exerting control and protection over the colt. We are of the opinion that, under the facts of this case and the principles of law above stated, the colt was not "running at large," within the meaning of the plea and the ordinance upon which it relies.

PASSENGER AND FREIGHT ELEVATORS.

ELEVATORS AS CARRIERS.

While the limited number of cases upon the subject of elevators renders impossible a thorough discussion of their classification

vate carriers. There is no doubt that if as a matter of fact a freight elevator was erected for the purpose of serving the public or any considerable portion of the public it would in law be considered a common carrier of goods and be subject to liabilities as such. Of course as mere private carriers the operators of freight elevators are responsible for negligence resulting in injury to their employees or even strangers.

CONSTRUCTION OF ELEVATORS.

In the construction of elevators the utmost

prudence must be exercised to protect employees and passengers. Suitable materials must be used and competent workmen employed.

While the employment of a competent contractor is a fact indicating the exercise of due care by the owner in the construction of the elevator, it is not conclusive proof of due care for if it be further shown that the contractor, although competent was actually negligent in the construction of the elevator which was accepted by the owner, the owner is responsible for any resulting injury, not caused by contributory negligence." Even trespassers and licensees are entitled to protection against willful negligence in the construction of elevators. This was expressly decided in the case of Springer v. Byram, in which it was held that a newsboy

who had been forbidden to ride on the elevator could not recover damages for injuries received while on the elevator, unless he had been willfully injured. "In determining whether the owner exercised due diligence in making the elevator reasonably safe, the usage of others is not the sole criterion, and it cannot be concluded that, as a matter of law, due diligence has been employed because the elevator is such as is ordinarily used for like purposes by reasonably prudent men. In Goodsell v. Taylor, where the plaintiff was suing for an injury caused by the breaking of the cable in the defendant's elevator, the court said: "The question to what extent the apparent wear impaired the

9

+ Goodsell v. Taylor, 41 Minn. 209, 42 N. W. Rep.

strength of the cable might have been one for an expert, but as held in Mantel v. Chicago, etc., Ry. Co.,10 whether due care requires this or that to be done is not a question for expert testimony. Whether prudence required an examination of the cable was for the jury to determine, upon the facts and circumstances of the

case." Upon this point it is said in Webb on Elevators at § 14, that "in all cases except where the failure to exercise care is in violation of some statute, or willful or such reckless disregard for the personal safety of others as to amount to negligence per se the questions of fact arising in the case and the estimate of prudence are for the jury to determine. In accord with this general rule it was held proper for the case to go to the jury where the proof tended to show that the accident was due to the faulty construction of the machinery. McGongle v. Kane, 20 Colo. 292, 38 Pac. Rep. 367. Again, where the method of attaching the hoisting rope was defective and unsafe, Malone v. Hawley, 46 Cal. 409. And again, where a cable which had been used three or four years had worn some where it could have been seen if properly looked after. Goodsell v. Taylor, 41 Minn. 207, 42 N. W. Rep. 873." In all cases the owner must have either had knowledge or a reasonable opportunity to acquire knowledge of the de

fects in the elevator. Thus in Robinson v. Wright,12 the court said: "The sudden breaking or giving way of a piece of machinery, properly constructed, is not sufficient to justify the conclusion of negligence. Machinery well constructed, and apparently safe, and having been tested by use, often gives way from some hidden or unknown defect."

had dropped, and that, although since that time the elevator had been in constant use without accident, it would at times get out of the guides when not heavily loaded. The unexplained breaking of a clamp, to which was attached the ropes holding the elevator, was the cause of the accident. In this case it was held that the plaintiff was properly nonsuited.14

Wells.-While

an

Unguarded Elevator elevator well is in course of construction it can only be safely guarded with difficulty, and persons approaching it must exercise care commensurate with the apparent danger, or they will, if injured, be considered guilty of such contributory negligence as will bar their right to recover damages. 15 Thus, in the case just cited, the court in passing upon the facts, said: "The men were at work upon the hoist. The evidence is uncontradicted that it was impossible to guard the hole while the men were at work. The fact of the men working on the hoist was present to the plaintiff's mind because it was while observing them that he went into the hole. There is no evidence at all from which it could be reasonably held that the hole was not guarded as far as it was practicable under the circumstances. Assume a case of a hole being cut in the floor for the purpose of putting in a hoist, an while the men were at work upon the hole a man looking at them should carelessly walk into it. Could it be said that such hole should have been securely guarded against him? It would be securely guarded as far as practicable. In other words, would it have been practicable to have guarded the hole while the men were at work cutting it out and placing in the hoist? Must not one keep away from such a place, or if he go to it, take the risk of being there?" The right to construct elevators opening upon or very near to streets has been questioned. "At common law, occupiers of land were entitled to make excavations therein even of a dangerous character, and near to public highways. In all the States where this common law rule has not been repealed by statute the builders of elevators with openings upon or near streets incur no liability to passersby or trespassers who turn in and receive in14 Lawson v. Merrall, 69 Hun, 278. 23 N. Y. S. Rep. 560.

15 Headford v. The McClary Mfg. Co., 23 Ontario Rep. 335.

juries.

Where this rule prevails, the occupier of land becomes responsible to another injured thereon only where that other has been either expressly or impliedly invited to enter. ''16

Railings, etc.-While passenger elevators are generally so constructed as to be enclosed it has been held that freight elevators need not be sheathed. But the weight of reason and the indirect tendency of authority is to the effect that freight elevators should be guarded by a substantial railing in proper position, if not by a more effective enclosure.18 few of the States special statutes require that elevators be so protected and of course a failure to perform such statutory requirements, is negligence per se.19

In a

Safety Appliances.-There have been no decisions holding that the omission from elevators of safety appliances is negligence per se. In some of the States their use is required by statute. Where the want of such appliances is the cause of injury it must be shown that the plaintiff did not know, or was under no obligations to know, of their absence. In Hansen v. Schneider,20 where an employee of the defendant was injured while riding on a freight elevator, the court said: "This elevator had not been supplied with a safety clutch, which was described to be a bolt or ball connected with a heavy spring kept in tension by a rope, which when slack or broken permitted the spring to shoot the bolt into the slides in the side posts on which the elevator is guided, locking it firmly and immovably there. And it was for the want of this appliance that the defendants were prosecuted to recover indemnity for the injuries. But the defendants were not shown to have been aware of the fact that the elevator had not been "rovided with this or any other clutch. And the premises had not been so long in their possession or subject to their inspection, as to subject them to the charge of negligence for not ascertaining that this was its condition." It is well settled that the owners of elevators are under no ob

16 Webb on Elevators, § 16; citing McIntire v. Roberts, 149 Mass. 450, 4 L. R. A. 19; and Whittaker's Smith on Neg. (2d Ed.), p. 80.

17 Hoekmann v. Moss Engraving Co., 23 N. Y. S. Rep. 787, 4 Misc. Rep. 160.

18 McCormick Harvesting Mach. Co. v. Burandt, 136 Ill. 170, 26 N. E. Rep. 588.

19 Whittaker's Smith on Neg., p. 55.

20 58 Hun, 60, 11 N. Y. S. Rep. 347.