in. Under a complaint which alleged as the sole breach of the condition of the bond, the filing of a mechanic's lien, there would be force in the argument of counsel, but that is not this case, and we express no opinion upon this proposition.

In the fullings relied upon for a reversal, there was no error, and the judgment will be affirmed.

The CHIEF JUSTICE and GUNTER, J., concur.

Affirmed.

CHAPTER XX.

EMPLOYERS' LIABILITY BONDS.

a. Employers' Liability Bonds are construed as insurance policies.

CASHMAN v. LONDON GUARANTEE & ACCIDENT CO. 1905.

187 Mass. 188; 72 N. E. Rep. 957.

KNOWLTON, C. J. This case was submitted upon an agreed statement of facts and evidence, in which it was stipulated that if the defendant is entitled, as matter of law, to a judgment in its favor on the facts and evidence, judgment is to be so entered; otherwise judgment is to be entered for the plaintiff in a stated sum. Judgment having been entered for the plaintiff, the defendant appealed, and the question before us is whether there is anything in the facts and evidence to warrant a finding for the plaintiff.

The action is to recover upon a policy of insurance "against loss from common law or statutory liability for damages on account of bodily injuries, fatal or nonfatal, accidentally suffered within the period of this policy by any employee or employees of the assured, while on duty at the places and in the occupations mentioned in the schedule hereinafter given, and during the continuance of the work described in said schedule." The occupation of the plaintiffs mentioned in the schedule was that of stevedores and contractors. One of their employees, working as a stevedore, accidentally suffered an injury which quickly caused his death after conscious suffering. A suit was brought

against the plaintiffs, which was defended by this defendant, and a judgment was recovered, which these plaintiffs were obliged to pay. See Garant v. Cashman, 183 Mass. 13, 66 N. E. 599. The evidence in that case is a part of the agreed statement in this, and it shows that there was a liability of the plaintiffs for an accidental injury to one of their employees engaged in the business of a stevedore. On its face, the liability seems plainly to come within the terms of the policy, and to warrant a recovery in this action.

The ground of the liability of these plaintiffs in the former suit was a defect in their ways, works, and machinery provided for the use of their employees, a part of which was a runway, with an apron or platform attached to it by hinges, which when in use was lowered to a level with the runway, and held in place over the vessel that was being loaded, by hinges and chains. Along each side of the apron were posts and a rope, intended for the protection of the persons working upon it. One of these posts was found to be defective, and this defect was the cause of the injury to the plaintiff in the former suit. The present plaintiffs had entered into a contract with the coal company that owned the runway to keep it in repair so long as they conducted the business of unloading coal at that place. Their liability for the accident may have been founded on this contract, made in connection with their business as stevedores; and the defense in this suit is that such a contract, creating such a liability to employees, was so foreign to the business of stevedores as to take the liability out of the provisions of the policy of insurance.

In the first place, on the evidence, it may be doubtful whether, as matter of law, this runway was not a part of the ways, works, and machinery of the present plaintiffs, furnished to employees for their use in the business, such as to create a liability to them for its condition in the absence of such a contract to keep it in repair, and notwithstanding the ownership of the coal company. See Coffee v. New York, New Haven & Hartford Railroad Co., 155 Mass. 21-23, 28 N. E. 1128; Trask v. Old Colony Railroad Co., 156 Mass. 298-303, 31 N. E. 6; Hayes v. Philadelphia Coal Co., 150 Mass. 457, 23 N. E. 225; Spaulding v. Flynt Granite Co., 159 Mass. 587, 34 N. E. 1134. But if there would have been no liability to employees without the contract which made the present plaintiffs primarily responsible for the condition of the

runway, there is nothing in the evidence to show that such a contract might not properly be made in connection with the plaintiffs' business as stevedores. It seems to us incidental to the business in which they were engaged. They were, and had been for a number of years, under a contract to unload the coal coming to the coal company at this wharf. Certainly it cannot be said, as matter of law, that such a contract was so improper or unreasonable as to take their liability to their employees, on account of it, out of the general provisions of the policy. To have that effect, a contract must be such as to make the liability not the liability of a stevedore, within the meaning of the policy, but a separate and independent liability.

Judgment affirmed.

SOUTHERN RY. NEWS CO. v. FIDELITY & CASUALTY CO. 1904.

26 Ky. Law Rep. 1217; 83 S. W. Rep. 620.

O'REAR, J. The appellant, the Southern Railway News Company, is a corporation engaged in the sale and supplying of books, newspapers, periodicals, refreshments, and other articles and goods on railways, stages, steamboats, and other conveyances in the United States, and along the lines or ways of same. The appellee, the Fidelity & Casualty Company of New York, is a corporation engaged in the issuing of policies of insurance, insuring employers against liability for injuries to persons in their employment.

On February 11, 1890, appellee issued to appellant an employer's liability insurance policy, in consideration of $150 premium, insuring the news company for one year against injuries to its employees, for which it might become liable in damages, subject to the limitation that its liability should not be more than $5,000 in respect to an accident which would cause the death or injury of any one person. If any legal proceedings should be taken against the insured to enforce a claim for indemnity for such injuries, the insurer engaged at its own cost and expense to have the absolute conduct and control of defending the same throughout in the name and on behalf of the

insured; but, if the insurer should offer to pay the insured the fuil amount insured, then it should not be bound to defend the case, nor be bound for any costs and expenses which the insured might incur in defending it. It is also agreed that, upon the occurrence of an accident in respect of which claim might arise, notice thereof should be immediately given to the insurer at its office in New York, and appellant should furnish full information in relation to it. The period covered by the policy, it was agreed, was fixed on the assumption that the amount of the estimated yearly pay roll to the employees of the insured would not exceed $30,000, and the premium paid was based on that amount. "Therefore as soon as the said amount of wages shall have been paid, this policy shall terminate as if the said period had expired, unless it shall have been continued for a further period by the payment and acceptance of a further premium in respect thereof." The insurer's officers were granted the right at any reasonable hour to inspect the books of the insured, so far as they related to the wages paid to its employees. The seventh clause of the agreement reads thus: "The company shall not be liable to a suit in any court for the recovery of a claim under this policy, unless the same is commenced within two years after the accident, which is the cause of action, has occurred."

On December 28, 1889, about two months previous to the date of the above-named policy, appellant entered into a written contract with the Kansas City, Memphis & Birmingham Railroad Company, by which the railroad company, in consideration of a stipulated sum, granted to the news company the privilege of selling upon its regular passenger trains during the year beginning January, 1890, periodicals, newspapers, books, etc., under certain conditions and regulations therein set out, including the following: "In consideration of the foregoing grant and the privileges therein specified, said news company releases said railroad company from any right of action, claim, or demand which may accrue to it by reason of the loss of any of its property while being transmitted on any of the trains of the railroad company under the terms of the contract, and further agrees, for such consideration, to indemnify said railroad company and save it harmless from all claims, demands, damages, actions, costs, and charges to which the railroad company may be subject, or which it may have to pay, by reason of any injury 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."

Under that contract the railroad company carried the news company's agents upon its trains, including one George W. Davis, who in the course of his employment as news agent of appellant, on October 21, 1890, at the company's station at Birmingham, Ala., sustained a fatal injury from one of its trains, and he lingered some weeks before he died. Appellant promptly notified appellee of the fact, and called upon it to take such steps as it deemed proper under the policy to protect itself. The administrator sued the railroad company in a court of Alabama having jurisdiction of the matter, and recovered a verdict and judgment for $5,000 and his costs, which the railroad company paid. Neither appellee nor appellant defended that suit. The railroad company on October 14, 1891, demanded payment of the news company of the $5,000 and the further sum of $528.85, which the railroad company had paid for hospital expenses, and doctor's services rendered to Davis. The news company failing to pay, the railroad company sued it in the circuit court of Jackson county, in the state of Missouri, which suit resulted in a judgment in favor of the railroad company for $5,528.85. The news company contested its liability under the contract, and its defense was disallowed. The judgment of the circuit court of Jackson county was affirmed on appeal to the Supreme Court of Missouri on June 14, 1899. The case, which is reported may be found in 52 S. W. 205, 45 L. R. A. 330, 74 Am. St. Rep. 545.

On November 18, 1899, appellant filed his petition in equity in the Jefferson circuit court of this state against appellee, in which petition it substantially set forth and pleaded the facts above stated, and prayed judgment against appellee for the sum of $7,609.57, with interest from July 27, 1899, which was the aggregate of the judgment paid to the railroad company, and the further sum of $1,560.19, with interest, being the costs incurred by the news company in defending the action. The defenses interposed to this action were: First, the special contract of limitation, contained in the seventh