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liability to the plaintiff for such damage as he had sustained in consequence thereof." The case at bar is unlike that. While it is true that the message in this case was not transmitted to its destination, the defendant here has assumed the burden of proof, after the prima facie case of the plaintiffs, and by evidence, which is uncontradicted, has shown that the failure was caused by agencies over which it had no control, and for which it was not responsible. The dispatch, when received at the Chicago office during the night, was taken from the wire, and the relay copy was hung upon the stock-yards' hook, to be forwarded the following morning when the office at that place should open. This is all that could be done that night. By the terms of the company's stipulation or regulation to which the plaintiffs, by their signature thereto, either assented, or by which they must be held to be estopped, (Breese v. Telegraph Co., 48 N. Y 141, 142; Grinnell v. Telegraph Co., 113 Mass. 307,) aside from the void condition of which we have spoken, the message was not to be delivered earlier than the morning of the next ensuing business day. An earlier transmission in this case was impossible. Immediately prior to the time for forwarding the message over the line communicating with the stock-yards a fire suddenly broke out in the operating room, and before anything could be rescued the whole room was enveloped in flames, and this message destroyed. The origin of the fire, as we have stated, and as the evidence shows, was due to atmospheric conditions and influences over which the defendant company had no control. There were no improvements known or anywhere in use which could guard against the possibility of such an occurrence. If the company ought to have foreseen that such an accident might happen, or if such an occurrence could reasonably have been anticipated, and it could have been guarded against, then the omission to provide against it might be held to be actionable negligence. But the facts, as they appear in the case, rebut any negligence on this ground.. That it was likely to occur was only a possibility. The fire does not appear to have originated through any fault or negligence of the company or its employes, or through any imperfections in the chemicals, metals, machinery, or implements used by it, which, by any skill or knowledge reasonably attainable in the present state of telegraphy, could be guarded against. The facts proved bring the case within the decisions to which we have referred in another part of this opinion, and upon these facts and the law it is the opinion of the court that the plaintiff cannot prevail. Judgment for defendant.

PETERS, C. J., and WALTON, DANFORTH, VIRGIN, and LIBBEY, JJ., concurred.

(80 Me. 463)

WENTWORTH v. WYMAN.1

(Supreme Judicial Court of Maine. July 25, 1888.)

COSTS-REMEDIES-IN ACTION DISMISSED FOR WANT OF JURISDICTION.

One who is sued before a trial justice whose commission has expired, and on that account is denied a trial, his costs, or an appeal, can maintain an action to recover his costs.

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Exceptions from supreme judicial court, Waldo county.

Action to recover costs. The opinion states the facts. At the trial the presiding judge directed a nonsuit to be entered, to which ruling the plaintiff excepted.

J. H. Montgomery, for plaintiff. Geo. E. Johnson, for defendant.

WALTON, J. The question is whether one, who is sued before a trial justice after his commission has expired, and who, on that account, is denied a

'Reported by Leslie C. Cornish, Esq., of the Augusta bar.

v.15A.no.1-3

trial, denied his costs and denied an appeal, can maintain an action to recover his costs. We think he can. It is now well settled, although formerly held otherwise, that when an action fails for want of jurisdiction, the defendant is entitled to costs; and if he cannot recover them otherwise, he can maintain an action for them. The rule, as stated in Elder v. Manufacturing Co., 4 Gray, 201, is that where a writ is served, returned, and entered by the plaintiff, and the suit fails for want of jurisdiction in the justice to try it, the defendant is entitled to costs; that the defendant has a right to appear, and save his rights, and guard against even an erroneous judgment, and may rightfully be regarded as the prevailing party. And in Call v. Mitchell, 39 Me. 465, it was held that, although a magistrate has no jurisdiction, and a judgment by him would be a nullity, still the defendant is entitled to costs. And in Mann Holbrook, 20 Vt. 523, where the plaintiff sued out a writ returnable before a magistrate, and the defendant appeared, but no trial was had because the magistrate was absent, the plaintiff having neglected to notify him of the pendency of the action, it was held that the defendant could maintain an action to recover his costs. And in Shaw v. Reed, 16 Mass. 450, although it was held that an action of trespass for false imprisonment would not lie in such a case for the arrest of the defendant on the writ, it was also held that he would have a remedy by an action on the case, if the absence of the justice arose from the plaintiff's negligence. These authorities establish the principle that, in a proper case, an action may be maintained to recover costs. And we think this is such a case. The plaintiff was summoned to appear before a trial justice to answer in a civil suit. He did appear with his witnesses and his counsel. He was then denied a trial, denied his costs, and denied an appeal, because the defendant had carelessly brought his action before a justice whose commission had expired. The injury to the plaintiff was the same as if the justice had been absent. To him it could make no difference whether he lost his trial on account of the absence of the man or the absence of his authority. In either case, the injury to him would be the same; and for such an injury we think he could as clearly maintain an action in the one case as the other. And there is no hardship in making the wrong-doer responsible in the one case any more than in the other. He not only selects the time and place of trial, but he also selects the magistrate; and it is as clearly his duty to select a magistrate who is competent to try the action, as it is to notify the magistrate of the time and place appointed for the trial. For a neglect to perform his duty in the latter particular it has already been decided that an action may be maintained against him. And for a neglect to perform his duty in the former particular, we think he is equally liable. Exceptions sustained, nonsuit taken off, and a new trial granted.

PETERS, C. J., and DANFORTH, LIBBEY, EMERY, and HASKELL, JJ., concurred.

(80 Me. 396)

BRADBURY v. FIRE INS. Ass'N OF ENGLAND et al.1

(Supreme Judicial Court of Maine. June 12, 1888.)

INSURANCE-THE POLICY-PROPERTY EMBRACED.

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A policy on plaintiff's "frame stable building, occupied by assured as a hack, livery, and boarding stable," specifically described, and on "his carriages, sleighs, hacks, horses, harnesses, blankets, robes, and whips contained therein," does not cover plaintiff's hack, not in said stable, but in a repair shop one-eighth of a mile away, on another street in the same city, without the knowledge or consent of the insurer, for the temporary purpose of being repaired."

On report from supreme judicial court, Androscoggin county.

'Reported by Leslie C. Cornish, Esq., of the Augusta bar.

2 See note at end of case.

Assumpsit on policy of fire insurance.

Geo. C. & Chas. E. Wing, for plaintiff. N. & H. B. Cleaves, for defendants.

LIBBEY, J. These actions are on fire policies, and, being substantially alike, were tried together, and came to this court in one report. The first four policies insure a certain sum on the plaintiff's "frame stable and building, occupied by assured as a hack, livery, and boarding stable, situated on the north side of Court street, Auburn, Me.," and "$500 on his carriages, sleighs, hacks, hearses, harnesses, blankets, robes, and whips contained therein." The fifth does not insure the building, but insures $1,500 on the same kinds of personal property "stored in the private frame stable occupied by assured, and situated near east side of Main street, Auburn, Me." The loss claimed by the plaintiff is for damage by fire to a hack not in his stable named in the policies at the time of the damage, but in a repair shop of one Litchfield, on another street about one-eighth of a mile distant, where it had been removed the day before the fire, without the knowledge or consent of the defendant; and it is admitted that the board rate for insurance on Litchfield's repair shop and contents was 1 per cent. more than on the plaintiff's stable on Court street. The damage to the hack, by fire while at Litchfield's shop is admitted, and no question is made as to the sufficiency of the notices. The only contention between the parties is whether the insurance attached to and followed the plaintiff's carriages, hacks, etc., when removed from his stable to another place for repairs or some other temporary purpose, or was limited to such carriages only as were at or in the stable named at time of loss or damage. Upon this question there appears some conflict among the authorities. The general rule stated by text writers, and held by the general current of decided cases, is that the place where the personalty insured is kept is of the essence of the contract, as by that the character of the risk is largely determined, and the property is covered by the policy only while in the place described. 1 Wood, Ins. 110; Blodgett, Fire Ins. 22; Foundry v. Insurance Co., 1 Cilff. 300; Insurance Co. v Gusdorf, 43 Md. 506; Railroad Co. v. Insurance Co., 7 Gray, 64. The following cases are cited as establishing an exception to the general rule, and as sustaining the plaintiff's contention. Everett v. Insurance Co., 21 Minn. 76; Holbrook v. Insurance Co., 25 Minn. 229; McCluer v. Insurance Co., 43 Iowa, 349; Longueville v. Assurance Co., 51 Iowa, 553, 2 N W Rep. 394; Lyons v. Insurance Co., 13 R. I. 347. We think a careful examination of all these cases will show that the chattels insured are so described in the policy that they can be identified without reference to the building or place where they were kept; and the courts held that the words "contained in" a certain building, or kept in a certain building or place, was a part only of the description of the chattel; and if from its nature, character, or ordinary use the parties must have understood that it was to be out of the building or place a part of the time in ordinary use, the policy should be held to cover it while so out. This is going to the verge in construing the language used by the parties in a contract, when, ordinarily, it does not bear such meaning. But this case does not appear to us to be within the authority of those cases. The policies in suit do not insure a particular carriage or hack by any description by which it can be identified without reference to the stable. They do not insure all the plaintiff's carriages, hacks, etc., used in his livery business contained in the stable described. It cannot be held that they cover only such carriages, hacks, etc., as were contained in the building named at the date of the policies. From the nature of the plaintiff's business it must have been in the contemplation of the parties that the chattels named might be changed from time to time during the year; some sold, some worn out, some destroyed by accident, and others put in to take their places. The policies are similar to an insurance of a shop-keeper on his stock of goods in his shop, or of a railroad company

on its rolling stock on its road,-constantly changing. In such cases the property insured can be ascertained only from the place of business named. Lyons v. Insurance Co., 13 R. I. 347; Foundry v. Insurance Co., 1 Cliff. 300; Ring v. Assurance Co., (Mass.) 14 N. E. Rep. 525. The policies insure such of the plaintiff's carriages, hacks, etc., as are contained in his stable at the time of loss. We can see no other way of identifying the property covered by the policies. It cannot be that the policies should be so construed that they will cover a hack once put into the stable, and then taken out, wherever it may be. The language of the contract is not apt to embrace such a risk. The risk might thus be increased twofold or threefold, and still, if the contract must be construed as covering it, it is not a forfeiture of the policy for an increase of the risk. It is simply the risk contemplated by the parties. Railroud Co. v. Insurance Co., 7 Gray, 66.

The view we take of the first four policies makes it unnecessary to consider whether the terms of the fifth policy should receive a construction more strongly against the plaintiff. They are certainly no more favorable to him. The actions are not sustained. Judgment for the defendants in each action.

PETERS, C. J., and WALTON, VIRGIN, FOSTER, and HASKELL, JJ., concurred.

NOTE.

The

INSURANCE-CONDITIONS OF POLICY-PROPERTY "CONTAINED" IN HOUSE. In Longueville v. Assurance Co., (Iowa,) 2 N W. Rep. 394, which was an action upon a policy of insurance of household furniture, wearing apparel, etc., "all contained in the two-story frame dwelling," and which is cited in the opinion in the principal case, the court says: "The words contained in the two-story frame dwelling, etc., are words of description of the property insured, including the place of deposit when not in ordinary use. character of the property insured must be considered in determining the true construction of the policy;" and it was held that the insurers were liable on the policy for damage by fire to the wearing apparel, while being worn, although away from the house. In Wildey v. Insurance Co., (Mich.) 18 N. V Rep. 212, the question for decision was whether property insured as "personal farm property in buildings and on farm," continued covered by the insurance when used and placed in a build.ng remote from a farm, and in a place of custody which could not legally be insured by the company, and it was held, on this latter ground in the negative, CAMPBELL, J., saying: "If the company had more general powers, the case might appear very differently." The same point was decided in Wilson v. Insurance Co., (Mich.) 19 N. W Rep. 28.

Where a policy of fire insurance in one clause insures household goods, etc., "all contained" in a certain dwelling-house, and in another clause insures "horses, buggies, hay," etc., the insured cannot recover for loss of the household goods by burning of the barn into which they had been removed on account of a previous fire in the dwelling-house. English v. Insurance Co., (Mich.) 21 N. W. Rep. 340. But in Noyes v. Insurance Co., (Wis.) 25 N. W Rep. 419, it was held that the owner of an article of wearing apparel might recover for the loss thereof, when it was burned in a store, where it was properly sent to be repaired, under a policy describing it and the other property insured as "all contained in a frame dwelling-house." Where a poncy insures live-stock "on the property described, in the places herein set forth, and not elsewhere," and a mare was at that time in a certain barn, but was removed to a new barn, 300 feet from the old, which was destroyed by fire, the words defining the location of the live-stock are descriptive only, and the company is liable for the mare burned in the new barn. De Graff v. Insurance Co., (Minn.) 38 N. W. Rep. 696.

See, also, as to conditions against removal, and as to the location of the property insured, in policies of insurance of live-stock, Boright v. Insurance Co., (Minn.) 25 N. W. Rep. 796; Insurance Co. v. Haws, (Pa.) 11 Atl. Rep. 107; Haws v. Association, (Pa.) 7 Atl. Rep. 159.

(80 Me. 430)

STATE BOSTON & M. R. Co.1

(Supreme Judicial Court of Mainz. June 19, 1888.)

1. RAILROAD COMPANIES-LIABILITY FOR NEGLIGENCE-ACCIDENTS AT CROSSINGS. Deceased, with two associates, was riding in a wagon towards a railroad crossing, at about 10 o'clock in the evening of a starlight night,-one of the associates owning and driving the team, and carrying the other two gratuitously as a neigh

1 Reported by Leslie C. Cornish, Esq., of the Augusta bar.

borly kindness,-when a locomotive whistle was heard by them. They expressed doubt among themselves whether the train was on the road they were to cross, or on another road farther away running in the same direction, and continued driving slowly, intent upon the noise of the train. They could not see the train on account of the buildings and bushes between them and it. The bell was not heard by them. As they approached nearer, they saw the gates at the crossing wide open and no person in attendance upon them, although they had been accustomed to seeing the gates in operation and a flag-man there. For several years the practice of the road had been to keep a flag-man in attendance at the crossing, but, unknown to these persons, he usually left the place at about 7 in the evening for the night. The train was the night Pullman from Boston going east, which for most of the time for many years had not run upon this road, but had run upon the other road of the same company before spoken of. The train was running through a compact portion of a city at an unlawful rate of speed for such place, and at the rate of 25 miles an hour or more when the collision occurred. Held, that a verdict for the plaintiff might be upheld.1 2. SAME-GATES-VOLUNTARY ESTABLISHMENT-LIABILITY.

The voluntary establishment of gates at a crossing by the railroad company is evidence of their necessity, and, being advertised to travelers, it is evidence of negligence if they are not properly attended and maintained.

3. NEGLIGENCE-Imputed Negligence-DRIVER AND PASSENGER.

The doctrine which imputes to a passenger the negligence of a driver over whom the passenger exercises no influence or control is not accepted in Maine."

On report from supreme judicial court, York county.

Indictment under the statute for the instautaneous death of William M. Benjamin, alleged to have been caused by the defendant's negligence. After the plaintiff's evidence was out, the case was reported to the law court, with the stipulation that the plaintiff should recover, if the facts would in any event authorize a jury to find a verdict in its favor

Horace H. Burbank, Co. Atty., for the State. F. Chadbourne, for defendant.

Geo. C. Yeaton and Benj.

PETERS, C. J. After the plaintiff's evidence was out in this case, it was agreed by the parties that if such evidence be, in the opinion of the full court, sufficient to authorize a jury in any event to find for the plaintiff, a judgment may be entered against the defendants for the sum of $5,000. Allowing to the plaintiff, under this stipulation, the benefit of the most favorable view which the evidence is legally susceptible of, it may be considered that the following facts are proved: The deceased, William M. Benjamin, for whose death the action is instituted in the name of the state, and two other men, of the names of Burnie and Hooper, the latter owning and driving the team, were sitting in an open, one-seated wagon, and approaching at a moderate gait, or “very slowly," a level crossing of defendant's railroad over the highway in Biddeford. It was at about 10 o'clock on a starlight night in November, 1886. The railroad and town road intersect at about a right angle. The three were persons of middle age, with physical faculties unimpaired, sober and intelligent, and were returning home from a lodge meeting of somé kind over a road familiar to all of them When within about 350 feet of the crossing, a locomotive whistle was heard, but no bell was heard by them at any time. The bell was heard by others at the moment when the locomotive was passing the crossing, the train at the time running at a rate of not less than 25 miles an hour through a compact portion of the city of Biddeford. When the whistle was heard, Burnie called Hooper's attention to it, and Hooper said he did not know which road it was on, meaning whether on the Boston & Maine or Eastern Railroad. Burnie replied that he could not tell from the sound which road it was on. The deceased said nothing, and nothing more was said by either of them. The team moved on without stopping, and

1See note at end of case.

On the subject of the doctrine of imputed negligence, see Brannen v. Railroad Co., (Ind.) 17 N. E. Rep. 202, and cases cited in note; Kyne v. Railroad Co., Del.) 14 Atl. Rep. 922.

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