to be opened. She was removed to the plat- | plaintiff as a material averment; and it was form of the car, and then to a drug store. a material averment, one upon which the After remaining in the drug store for some right of recovery of plaintiff rested; and, time, she was removed to her home, at State unless the evidence fairly tended to establish and Thirty-Seventh streets, where, from her negligence on the part of the defendants, sickness, she was confined to her bed for plaintiff could not recover. But it is said some three weeks. The evidence tends to in the argument that innkeepers are prima show that she has never recovered from ber facie liable for losses which happen to the sickness. It also appeared that from eight goods of their guests, and, on the to nine hundred oyster stews were served in principle, restaurant keepers should be prima the restaurant during the noon hour. At the facie liable for injury resulting from unclose of plaintiff's evidence, the court, at the wholesome food furbished by them. The request of the defendants, instructed the jury law is well settled that the keepers of pubto return a verdict in favor of the delend- lic inns are required to safely keep the propants, and it is claimed that the court erred in erty of their guests, and in case such propgiving tbis instruction.

erty is lost the innkeeper can only relieve

bimself from liability by proving that the Mr. Edwin F. Abbott, for appellant: loss occurred without any fault on his part,

There is an implied warranty of the sound- or that the loss occurred through the fault ness and wholesomeness of provisions pre- of his gnest; and the burden of proof to expared for immediate consumption.

onerate the innkeeper is upon himself, for Wiedeman v. Keller, 58 Ill. App. 382; Hoover the reason that the law, in the first instance, v. Peters, 18 Mich. 51; Van Bracklin v. Fonda, will attribute the loss to his default. John12 Johas. 468, 7 Am. Dec. 339; Moses v. Mead, son v. Richardson, 17 III. 304, 63 Am. Dec. 369. 1 Denio. 388, 43 Am. Dec. 676; 5 Bacon, Abr. As respects the goods of a guest, which he 232; Divine v. McCormick, 50 Barb. 116. takes with him when he stops at an ion, the

Where the causes which produce the injury innkeeper is practically an insurer; and, where are under the management of the defendants, an action is brought to recover for goods lost, and, in the ordinary course of things, the in- the guest is only required to show the exjury would not have been suffered, the defend- istence of the relation of innkeeper and ants are prima facie liable.

guest, and the loss, to authorize a recovery. 16 Am. & Eng. Enc. Law, p. 449: Budd v. But as a food served at a restaurant, such United Carriage Co. 25 Or. 314, 27 L. R. A. as oysters, ice cream, and the like, we are 279; Scott v. London & St. K. Docks Co. 3 not aware that a similar rule establishing liaHurlst. & C. 596.

bility ever existed. There is no similarity On grounds of public policy innkeepers are between the two cases, and the principle that prima facie liable for losses which happen to governs one does not apply to the other. If ihe goods of guests. On the same principle, a person keeping a public restaurant fails and for the greater reason that life and health to exercise ordinary care in furnishing food are more valuable than property, restaurant to his patrons, and damages result, he would keepers should be prima facie held liable for in. be liable, if his business be conducted in a jury sustained by reason of their guests eating careless or negligent manner, and through improper food furnished by the inn-keeper. such negligent à patron is injured. But,

Metcalf v. Hess, 14 II. 129; Johnson v. where an action is brought to recover damRichardson, 17 I. 302, 63 Am. Dec. 369; 11 ages, the burden is upon the person bringing Am. & Eug. Enc. Law, p. 449.

the action to establish carelessness or negliMessrs. Duncan & Gilbert for appellees. gence.

Plaintiff claims that, having proved that Craig, J., delivered the opinion of the she ate the oyster broth at the defendants' court:

restaurant, and in consequence became sick, Whether the plaintiff became sick from eat- her case is made out, or at least the burden ing the oyster stew at the defendants' restau- of proof is shifted on the defendants. If rant was a question for the jury, and while this rule was adopted, the plaintiff would be the evidence produced by plaintiff that eight relieved from proving the most important or oine hundred persons were served with oys. element of her declaration, the negligence of ter stews at the same time and place, none of defendants, which is really the foundation whom became sick, would seem to be a strong of the action. This would, in effect, make circumstance lending to establish that the the restaurant keeper an insurer. Such a plaintiff's sickness was attributable to other rule is not correct in principle, nor has it causes, yet we are inclined to the opinion been sustained, so far as we are advised, by that, if plaintiff had made out her case in any respectable authority. Wiedeman v. Kel other respects, it would have been the duty ler, 58 Ill. App. 382,-a case cited by appel of the court to submit this question to the lant, was one where the plaintiff brought an jury. It will be observed that the plaintiff, action against a retail dealer in meats to re. in her declaration, averred that the defend cover damages resulting from eating pork conants, as restaurant keepers, served plaintiff taiping trichinæ, sold to him by the dealer. with oysters, and carelessly, negligently. In deciding the case the court held that and unskillfully, and through carelessness,' when a vendor of provisions has no notice did "deliver to the plaintiff, to be by her of, and cannot, by the exercise of reasonable eaten, an oyster stew that was pot good or or ordinary care, ascertain, the unwholesome wholesome, but deleterious, dangerous, and or unsound condition, there is no implied poisonous,” etc., whereby plaintiff became warranty of the soundness of provisions sick. This was, no doubt, regarded by the l not prepared or manufactured by such vendor. Here there is no pretense that the de- plaintiff called but one witness to prove pegfendants manufactured either the oysters or ligence or carelessness on the part of the the milk, the two ingredients of the oyster defendants, and, upon an examination of the stew, and, under the rule laid down in the case evidence of the witness, it will be found that cited, there could be no liability. Plaintiff has the evidence, when fairly considered, does cited Van Bracklin v. Fonda, 12 Johns. 467, 7 not tend to show that the defendants were Am. Dec. 339, as authority. But that was an guilty of any negligence or carelessness. action brought against a person for selling a As the plaintiff failed to introduce any eviquarter of beef as good and sound, when it dence tending to prove the most material was bad and unwholesome; but it was proved averment of her declaration, the instruction that the vendor knew when he sold the beef of the court to find for the defendants was that it was diseased, and, while the rule laid correct. down in that case is proper under the facts, The judgment of the Appellate Court will be it has no application to this case. Here the affirmed.


George D. ROSS

ceived, I promise to pay the Hawkeye InC.

surance Company, at their office in the city HAWKEYE INSURANCE COMPANY,

of Des Moines, Iowa, sixty dollars, with Appt.

interest at the rate of 8 per cent per an

num from date, being premium for insur(........Iowa........)

ance, under policy No. 192,542. And it is

hereby agreed that, if this note is not paid at 1. The unconstitutionality of a statute maturity. the whole amount of premium of

cannot be set up for the first time on appeal said policy shall be considered as earned and as a ground of attack on instructions which were payable, and the policy shall be null and void; given on other issues.

and the company shall not be liable for any 2. Notice by a registered letter, provided loss or damage that may occur to the property for by Laws 1880, chap. 210, $ 2 in case of notice insured while this note shall be overdue and precedent to forfeiture of insurance policies, is unpaid; and if this note remains unpaid for completed by due registration of the letter at the the period of sixty days after maturity, then I office from which it is to be sent.

agree to pay said company the further sum of 3. A letter is not registered, so as to com- 10 per cent on the amount due as fees for col.

plete service of notice by registered letter, where lecting the same. George D. Ross, such service is authorized, until it is numbered

P. O. Address, Harlan, as required by the postal laws and regulations,

County of Shelby, Iowa. although the postmaster bas received it properly addressed and given a receipt therefor. That said policy was made and accepted on

the conditions therein, one of which is to the (January 16, 1895.)

effect that a failure to pay said premium pote

at maturity shall immediately terminate all the District Court for Shelby County in and the company shall not in any case be liafavor of plaintiff in an action brought to re- ble for any loss or damage that may occur at cover the amount alleged to be due on a policy a time when any such note or notes, or any of fire insurance. Affirmed.

instalment therein, or any part thereof, shall

be overdue and unpaid. Defendant avers Statement by Given, Ch. J.:

that on the 1st day of June, 1889, it served on Action to recover upon a policy of insurance the plaintiff a notice in writing, by inclosing against loss by fire. Plaintiff alleges that the it in a registered letter addressed to plaintiff at stroyed by fire on or about the 1st day of July, be due on the 1st day of July, 1889, demanding merchandise and fixtures insured were de Harlan, Iowa, the postoffice address named in

the policy, notifying him that said note would 1889. Defendant answered, admitting the policy, that the fire damaged some of the in- payment and stating that unless such pay. sured property, and denying that the fire oc ment is made within thirty days from service curred on the 1st day of July, 1889. That of this notice your policy will be suspended.” the policy sued on was issued in consideration The notice also called attention to the condiof a promissory note of the plaintiff in words tions in the policy and vote, stating that if the and figures as follows:

note was not paid when due the policy would

become suspended. Defendant alleged that $60.00. Des Moines, Iowa, April 1, 1889. the note fell due July 1, 1889, and, being overOn the 1st day of July, 1889, for value re- 'due and unpaid the policy was suspended, and

A y

NOTE.-The above decision as to when a letter is For illustrations of presumption from mailing registered so as to become a notice by registered papers, see Pennypacker v. Capital Ins. Co. (Iowa) letter is a novel one.

8 L. R. A. 236, and Marston v. Bigelow (Mass.) 5 L. For misdelivery of registered letter, see Joslyn v. R. A. 43. King (Neb.) 4 L. R. A. 457.

defendant was not liable thereon for the al- | Sparta, 77 Ill. 505; People v. Detroit, 28 Mich. leged loss. Plaintiff in reply denies that the 228, 15 Am. Rep. 202. defendant served said notice on him on the 1st This act applies only to insurance companies, day of June, 1889. A further issue was joined and has no reference to individual insurers, by amendment to the answer and reply that not incorporated or associated. They have all need not be noticed. The cause was tried to the rights which are circumscribed and limited a jury, and a verdict and judgment in favor by this act. of the plaintiff. Defendant appeals.

The pleadings and facts remaining un

changed, it follows conclusively that this apMr. George R. Sanderson, with Messrs. peal must be ruled by the law announced by D. O. Stuart and Charles McKenzie, for the court upon the first appeal. appellant:

Adams County v. Burlington & M. R. Co. 55 This law is unconstitutional within the in- Iowa, 94; Simplot v. Dubuque, 56 Iowa, 639; hibition of the 14th Amendment to the Consti- Minnesota Linseed Oil Co. v. Montague, 65 tution of the United States, wbich forbids any Iowa, 68; Drake v. Chicago, R. I. & P. R. Co. state to make or enforce any law which shall 70 Iowa, 59; Babcock v. Chicago & N.W. R. Co. abridge the privileges or immunities of citi. 72 Iowa, 197; Heffner v. Brownell, 75 Iowa, zens of the United States, or deprive any per- 342; Burlington, C. R. & N. R. Co. v. Dey, son of life, liberty, or property without due 89 Iowa, 13. process of law, or deny to any person within The insurance company must know when its jurisdiction the equal protection of the laws. service is effected in order that the calculation It also violates art. 1, ss 1 and 6, and art. 3, of short rates may be correct. Under the con$ 30, of our state Constitution.

struction placed upon this statute in the inThe appellant bas the right to frame its constructions complained of, it would be almost tract and to be bound only by the general laws impossible to compute short rates accurately. forbidding those immoral and illegal.

Surely the law will not put upon a party the Butchers' Union S. H. & L. S. L. Co. v. Cres- risks incident to improper calculations when cent City L. S. L. & S. H. Co. 111 U. S. 746, the errors are attributable to the law itself. 28 L. ed. 585; Adam Smith, Wealth of Na- Time begins to run when the notice is tions, bk. 1, chap. 10; Com. v. Perry, 14 L. R. mailed. That is a fact, definite, easy of ascerA. 325, 155 Mass. 117; Godcharles v. Wigeman, tainment, about wbich no mistake is likely to 113 Pa. 431; State v. Loomis, 21 L. R. A. 789, occur, and proof of which is abundant, direct, 115 Mo. 307; State v. Goodwill, 6 L. R. A. 621, and satisfactory. 33 W. Va. 179; Millett v. People, 117 III. 294, But if service is dependent upon proof of 57 Am. Rep. 869; Frorer v. People, 16 L. R. A. when a certain number is affixed to the letter 492, 141 I11. 171; Ramsey v. People, 17 L. R. A. difficulties appear whicb, at times become al853, 142 Ill. 380; Bertholf v. O'Reilly, 74 N. Y. most insurmountable. 515, 30 Am. Rep. 325; Re Jacobs, 98 N. Y. 98, Ross v. Hawkeye Ins. Co. 83 Iowa, 586; Hol50 Am. Rep. 636; People v. Marx, 99 N. Y. 377, brook Bros. v. Mill Owner's Mut. Ins. Co. 86 52 Am. Rep. 34; Carew v. Rutherford, 106 Mass. Iowa, 255. 14, 8 Am. Rep. 287; U. S. Const, art. 14; Colo. Messrs. Smith & Cullison, for appellee: Const. art. 2, 25; Cooley, Const. Lim. 6th ed. The question of constitutionality is raised for 431; East Kingston v. Towle, 48 N. H. 65; San the first time in the supreme court. The court Mateo County v. Southern P. R. Co. 13 Fed. will not consider it. Rep. 145; Denver & R. G. R. Co. v. Outcalt, 2 Iowa Homestead Co. v. Duncomb, 51 Iowa, Colo. App. 395; Grares V. Northern P. R. 525; Garland v. Wholebau, 20 Iowa, 271; McCo. 5 Mont. 556, Am. Rep. 81; Dacres v. Gregor v. Gardner, 16 Iowa, 538; Goodnov v. Oregon R. & Nav. Co. 1 Wash. 525: Wadsworth Plumb, 67 Iowa, 661; Edwards v. Cosgro, 71 v. Union P. R. Co. 23 L. R. A. 812, 18 Colo. Iowa, 296. 600.

Before a letter can be “registered” it must While under its reserved power a state may be given to the postmaster for registration, and place additional burdens and restrictions upon when registered by him, and not before, is it the corporations of its creation, these must be ready for mailing as a registered letter-ready subject to the constitutional limitations and be for transmission through the mails. imposed by general and equal laws.

Holbrook Bros. v. Mill Oroners' Yut. Ins. Co. Braceville Coal Co. v. People, 22 L. R. A. 340, 86 Iowa, 255. 147 II. 06.

The articles of incorporation of the appel- Given, Ch. J., delivered the opinion of the lant constitute a contract between the cor-court: porators (Morawetz, Priv. Corp. (1047), and 1. The evidence shows without conflict that this contract cannot be altered, nor the the loss occurred on July 2, 1889, and the rights of the incorporations thereunder be court so instructed the jury. The premium taken away.

note fell due on July 1, 1889, and was unpaid Sinking Fund Cases, 99 U. S. 737-766, 25 L. at the time of the fire, wherefore appellant ed. 508–518; Ferguson v. Meredith, 68 U. S. claims that the policy was, by reason of said 1 Wall. 25, 17 L. ed. 604; Cook, Stock & condition therein, and in the note, and the Stockholders, 495; Taylor, Priv. Corp. 449, service of said note, suspended at the time of 450; Zabriskie v. Hackensack & N. Y. R. Co. the loss. Appellant's first contention in argu18 N. J. Eq. 178, 90 Am. Dec. 617; Cooley, ment is that SS 1, 2, chapter 210, Laws Const. Lim. 4th ed. p. 284; Hasbrouck v. Milwau. 1880, providing that such policies shall kee, 13 Wis. 42, 80 Am. Dec. 718; Marshall v. declared forfeited or suspended for nonpay. Silliman, 61 Il. 218; People v. Chicago, 51 Ill. ment of premium until after thirty days' potiče 17, 2 Am. Rep. 278; Cairo & St. L. R. Co. v. I is given, is unconstitutional. It is entirely clear from the record that this question was not registered on June 1. 1889. The court further raised in or presented to the district court. instructed that “under the laws, rules, and Appellant does not present the question either regulations of the postoffice department, after in the pleadings, motion for verdict, or in a receipt has been given therefor and the letter structions asked. On the former appeal, and has been numbered, the letter becomes regison both trials below, the defense that the pol- tered.” After reciting the undisputed facts, icy was suspended at the time of the loss was that the defendant had on June 1, 1889, degrounded on the alleged compliance with said livered the notice in question to the postmaster chapter 210.

at Des Moines, properly addressed and stamped The constitutionality of said act is first for registry, and procured from him a proper questioned in the assignment of errors. Ap- receipt therefor, the court instructed as folpellant concedes that this question was not lows: "The only question for you to deterpresented to the district court, but insists that mine, as to this defense is as to whether the it may be presented in this court for the first registry was completed by assigning to said time as reasons why the instructions com letter its number and indorsing the same on plained of are not correct. The instructions the letter. All other things necessary to a were given upon the issues claimed by the par: complete registration of said letter on June 1, ties, and upon which they tried and submiited 1889, are shown by the uncontroverted evithe case, and they will not be heard to insist dence. You must determine from the eviupon any different issues on appeal. In law dence whether its registry number was in. actions, this court sits as a court of review dorsed on said letter, June 1, 1889, or not." only, and will not consider questions that On the former appeal we were not called upon were not presented to the trial court. Iowa to decide, and did not decide, what constituted Homestead Co. v. Duncombe, 51 Iowa, 525; the registration of a letter. The instructions Garland v. Wholebau, 20 lowa, 271; McGregor are in harmony with the laws, rules, and regu. v. Gardner, 16 Iowa, 538; Goodnow v. Plumb, lations of the postoffice department as shown 67 Iowa, 661; Edwards v. Cosgro, 71 Iowa, 296; in the evidence. It is true that, under the auLacerty v. Woodward, 16 Iowa, 5; Lower v. thority of $ 1052 of the Postal Laws and Lorer, 46 Iowa, 525; Hoyt v. Hoyt, 68 Iowa, Regulations, the postmaster at Des Moines was 703; Benjamin v. Shea, 83 Iowa, 392.

using other than standard registration forms." 2. On the former appeal (83 Iowa, 586), the Instead of the slip receipt provided for by question presented was upon an instruction to postal laws and regulations, receipts were given the effect that the service of the notice by to appellant, and to certain other companies, registered letter was not completed “until, by for letters deposited for registration, in a sepadue course of mail) for registered matter, it rate book for each company. This related should be received at the office of its destina solely to the manner of receipting for the lettion.” This court beld that the service of such ters, and did not in any way change tbe rea notice is completed when the letter is prop. quirements as to registration. Section 1056 of erly addressed and registered at the postoffice. said Laws, Rules, and Regulations is as follows: It was not held, as claimed by appellant, "After a receipt has been given, therefore, and “that the notice was served when the letter the matter has been numbered as prescribed in was mailed.” Section 2 of said chapter 210 the preceding sections, the letter or parcel be. provides that such notice may be served by comes registered and must be guarded with registered letter, addressed to the assured at the utmost care. We have seen that service his postoffice address named in or on said pol- of such notice by registered letter is not comicy. This court said that “in such a case the plete until the letter, properly addressed, is service is complete when the acts specified as registered, and that it is not registered until constituting the service are done." Register- numbered as required. The question whether ing the letter is one of the acts specified, and this letter was registered on the 1st day of is necessary to constitute a complete service. July, 1889, was submitted to the jury, and it Appellant insists, and correctly so, that the found, as under the evidence it was warranted ruling on the former appeal is the law of this in doing, that the letter was not registered uncase. The learned district judge, so viewing til after that day. the law and the former opinion of this court, The judgment of the District Court is afinstructed the jury that registration of the let-firmed. ter was necessary to a completed service, and submitted the question whether said letter was Petition for rehearing denied. 34 L. R. A.





John S. ZEILER, Appt.,

Haruood, 32 Md. 478, 3 Am. Rep. 161; Green

v. Weller, 32 Miss. 686. CENTRAL RAILWAY COMPANY, Im- Messrs. Thomas G. Hayes and Thomas pleaded, etc.

I. Elliott for the other appellees.

Page, J., delivered the opinion of the

court: 1. The indefinite postponement of the The appellant contends that the ordinance consideration of an ordinance Ito au- mentioned in the bill of complaint is null and thorize a certain company to lay rail. void, because (1) it did not pass the first branch way tracks in specified streets does not pre- in conformity with law, because it was put vent the subsequent passage at the same session upon its passage before it had been read twice of another ordinance granting the same company upon two separate days, as required by the the right to lay tracks on streets many of which ninth joint standing rule, then in full force are the same as were named in the prior ordi- and unsuspended; and (2) it did not pass either dance, but containing new provisions as to the branch legally because the question as to auconnection of the new tracks with an existing thorizing the Central Railway Company to exsystem, and various other provisions for a more tend its railway "over almost all of the

streets though a rule of procedure prohibits action dur-named in the ordinance” had been indefinitely ing the session on the "same subject" after a postponed in the second branch at the same

question has been indefinitely postponed. session of the council, and, under the twentieth 2. The two thirds of the members of a be again considered at such session, by amend

joint standing rule, the same subject could not branch of a municipal government, which are required by a rule of procedure in or- ment or otherwise. These propositions involve der to dispense with one of the regular readings the consideration of two questions: First, were of a proposed ordinance, need not be two thirds the rules of procedure violated as stated ? And, of all the members of the body, but only two second, if they were, did such violation, under thirds of the members voting, if they are not less all the circumstances of the case, operate to than a majority, and the majority constitutes a render the ordinance null and void? quorum

It is contended that the indefinite postpone(November 19, 1896.)

ment of the question as to authorizing it (the

Central Railway Company] to extend its rail. Circuit Court of Baltimore City dismiss- ordinance (mentioned in the bill], including ing a bill filed to restrain defendants from per- Wolf street,” precluded the possibility, under mitting the tracks of the defendant railway the rules, of passing the ordinance under concompany to be laid on certain streets in the sideration. The facts are these: On the 18th city of Baltimore. Affirmed.

of May, 1896, the joint standing committee reThe facts are stated in the opinion.

ported favorably, to the second branch, two Messrs. John N. Steele, John E. ordinances,-one entitled “An ordinance to Semmes, and Francis K. Carey for ap- authorize the Central Railway Company to lay pellant.

its tracks on Wolf street. Aliceapna street, and Messrs. T. Wallis Blakistone and certain other streets in the city of Baltimore" George Blakistone, for appellee Central|(this will be hereafter referred to as the "Wolf Railway Company:

street ordinance"); the other, “An ordinance If a vote of two thirds of the members pres. to authorize the Central Railway Company to eot is, in the eye of the law, to be considered as lay its tracks on E. Lexington street in the city the vote of two thirds of the members of the of Baltimore” (this will be referred to as the branch, of course the motion was carried. “Lexington street ordinance"). On the same

Morton v. Comptroller General, 4 S. C. N. S. day both were read and laid over, under the 462, 463.

rule. On the 25th of May the Wolf street ordiIt is not necessary to the validity of an ordinance was put upon its second reading. After nance, or an act of the legislature, that the several amendments were offered and voted on, rules of parliamentary law, nor even the special it was moved and adopted that "the further rules of the body which enacts them, should be consideration of the report and ordinance be strictly followed.

indefinitely postponed.” On the 8th of June Smith, Elementary Law, S 81, p. 68; 1 the Lexington street ordinance, having passed Whart. Ev. 3d ed. $ 290; Com. v. Lancaster, its second reading, came up again, the question 5 Watts, 155; McDonald v. State, 80 Wis. 411; then being upon its passage; and it was Kilgore v. Magee, 85 Pa. 412; Harwood v. Went- amended by striking out all of the ordinance, worth, 162 U. S. 562, 40 L. ed. 1073; St. Louis as reported by the committee, after the words & S. F. R. Co. v. Gill, 54 Ark, 105, 11 L. R. at the end of the first section, and inserting A. 452; McGraw v. Whitson, 69 Iowa, 348; those provisions which the appellant contends Speer v. Allegheny & M. Pl. Road Co. 22 Pa. 378; are in fact the same subject as the Wolf street Fouke v. Fleming, 13 Md. 413; Annapolis v. I ordinance. The rule alleged to have been


NOTE.-The above decision on the effect of an in-, upon a vote, see Lawrence v. Ingersoll (Tenn.) 6 L. definite postponement of an ordinance seems to R. A. 308, and note; also State, Walden, v. Vanosbe a novel one.

dal (Ind.) 15 L. R. A. 832. As to the number necessary to carry a ineasure

« ForrigeFortsett »