to the ground was caught by the lead and crushed between it and the track, receiving severe injuries.

Respondent recovered a verdict, and for the purpose of this appeal it is admitted that the injuries were occasioned by the negligence of a fellow servant, the man in charge of the movements of the car; and the only question is whether or not the men were engaged in what is called a "railroad hazard."

Appellant claims that the case is controlled by Johnson v. St. Paul & D. R. Co., 43 Minn. 222, 45 N. W. 156, 8 L. R. A. 419, and Jemming v. Great Northern Ry. Co., 96 Minn. 302, 104 N. W. 1079, 1 L. R. A. (N. S.) 696. In the Johnson case the railroad company employees were engaged in repairing a bridge, and the draw was left unfastened by the negligence of one of the crew, and was blown shut by the wind, thus causing injuries. The court held that the statute did not apply. In the Jemming case it was held that the crew of men, of which the plaintiff was one, were engaged in the independent work of operating a steam shovel in a gravel pit, and that the leading feature which removed the work from a railroad hazard was the fact that the engine was stationary, and that the track upon which it was located was portable, and not connected with the railway proper. But in the case before us appellant was engaged in constructing an extension of its railroad track. In the Jemming case the operation of the engine on the flat car in the gravel pit was not the operation of a car or engine upon railroad tracks. The effect was the same as though the gravel was loaded into wagons and hauled to the main track for repairing purposes.

In this case the pile driver apparatus was located on a car operated on the railroad tracks, back and forth as necessity required. True, the car was not moved by an independent locomotive; but it was operated by an engine located on the car itself. These features constituted those characteristic dangers, peculiarly connected with the operation of railroads, known as railroad hazards. Nichols v. Chicago, M. & St. P. Ry. Co., 60 Minn. 319, 62 N. W. 386; Blomquist v. Great Northern Ry. Co., 65 Minn. 69, 67 N. W. 804. There being no dispute about the facts, we think the trial court correctly applied the law, and that the case does not come within what are known as "border cases," where the question is in doubt, as, for instance, Anderson v. Great Northern Ry. Co., 74 Minn. 432, 77 N. W. 240; Kreuzer v. Great Northern Ry. Co., 83 Minn. 385, 86 N. W. 413; and Tay v. Willmar & S. F. Ry. Co., 100 Minn. 131, 110 N. W. 433. Affirmed.

STATE ex rel. ANTON SCHAEFER v. MINNESOTA TITLE INSURANCE & TRUST COMPANY.1

June 19, 1908.

Nos. 15,484, 15,485-(11, 12).

Title Insurance-Return of Premiums.

The holder of a policy of insurance issued by a real estate title insurance company is, upon a cancellation or annulment of the policy by a Judicial decree declaring the company insolvent and appointing a receiver to wind up its affairs, entitled to a return of a proportionate part of the premium paid therefor, measured by the time elapsing between the date of the policy and the date on which the company was so adjudged insolvent.

Same.

The policy holder is not entitled to the return of that part of the premium which the application for insurance stipulated might be retained by the company for its services in investigating the title insured.

In the above entitled action in the district court for Hennepin county William Bros Boiler & Manufacturing Company filed a claim for $45, for unearned premium on a title insurance policy. The facts were stipulated. The matter was tried before Frederick V. Brown, J., who made findings and ordered judgment in favor of claimant in the sum of $34.88. From this order, both parties appealed. Affirmed. Jay W. Crane, for claimant.

Belden, Jamison & Shearer, for defendant.

Almost the only point of contact of this case with other kinds of insurance is the idea of indemnity. It is like fire and accident and casualty insurance only in this idea of indemnity. It is totally unlike life insurance. But the most essential difference between this and all other forms of insurance is this: All other insurance is against a contingency or risk not now in being, but to happen, or which may happen in the future. Fire insurance insures against loss or damage by fire to happen; accident insurance insures against loss or injury by accident to happen; life insurance insures against death to happen; casualty insurance insures against loss or damage by injury to happen. Such policies only mature or become claims upon the happening of causes or facts operating in future alone. When such policies are issued, it is positively known that no claim exists which may be made at a future time, without the operation of a future act or cause. When such policies are issued, both contracting parties are interested in preventing by the exercise of the utmost care the intervention of any cause which may make the policy a claim. The policy says: "Neither assent nor assignment, nor anything contained in this policy shall be construed as insurance against defects or incumbrances created subsequent to the date hereof. No loss shall be recovered under this policy unless the action be commenced within one year after eviction or final judgment as herein stated; nor shall such recovery be had unless the insured and those claiming under him as aforesaid shall have been actually evicted under an adverse title not mentioned or referred to in the above Schedule B, or, unless there has been a final judgment upon a lien or incumbrance of claim of title not mentioned or referred to in said Schedule B, under which the title of the insured may be divested; and no liability shall exist or arise hereunder unless the insured shall have given notice of the action or proceeding in which such eviction or final judgment arises as provided in section 1 aforesaid." Then follows the basis of settlement in such cases, which is that of pure indemnity for loss or damage occasioned by the defects existing at the date of the policy.

The defendant company issued two forms of policy, a mortgagee form, not necessary to be considered here, and an owner's policy by which the company agreed: "That it will, for the period of twenty five years from the date hereof, indemnify, keep harmless and insure Wm. Bros Boiler & Manufacturing Company, and all persons claiming the estate and interest hereinafter mentioned under them by descent or will, from all loss or damage not exceeding $7,000, which the said insured shall, during said period of twenty five years, sustain by reason of defects of the title of the insured to the real estate or interest described in Schedule A hereto annexed, or by reason of liens or incumbrances affecting the same at the date hereof, excepting only such as are set forth in Schedule B; subject to the conditions and stipulations hereto annexed and together with said schedules made a part of this policy." Schedule A, above referred to, states description of property to be insured. Schedule B states the conditions and things not insured against, as follows: (1) All interest or title of present occupants of said premises or any part thereof, whether possessory or otherwise; (2) taxes and assessments not yet payable; (3) rights of way for street and alley purposes; (4) variation of lines and deficiency in quantity of ground. (5) Statutory liens, if any, hereafter filed. The above constitute the most ordinary defects in titles. What, then, are insured against? Principally these: (1) Mortgage incumbrances filed and unfiled; (2) outstanding, unrecorded contracts or deeds; (3) forged instruments in chain of title; (4) invalid instruments in chain of title made by minors or insane persons; (5) instruments in chain of title purporting to be executed by single persons as grantors who were at the time married.

The answer states (admitted to be true) that since the organization of the company, April, 1886, to the date of the receivership, 19,538 policies, aggregating $40,520,746.75 of insurance, have been issued on titles; that during that time the annual loss from defects insured against has been less than $270, or less than $5,670 in the twenty one years, or .00014 per cent., which is almost a negligible quantity. So much for the experience and status of this, the oldest title insurance company in the west, and the only one anywhere, so far as our research has been able to find, in which the questions at bar have come before a court for determination.

No claim is made by plaintiff of any "defect of title," or "any liens or incumbrances affecting the same" at the date of the policy, which are the only two things insured against. It claims only the right to the return of the unearned premium and to be considered a creditor of the estate to that extent. This is claimed because it is averred that the policy constituted a continuing contract of insurance for its en

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tire term of twenty five years, and that only a small part of the term of insurance has expired; that the receivership operated to cancel the policy (and all policies) by which claimant has been deprived of the protection of the insurance for the remainder of the twenty five years. But while the two risks insured against are defects of title, and liens or incumbrances, it is neither their existence nor their discovery that makes the company liable on its policy. It is "loss or damage which the insured shall, during said period of twenty five years, sustain" by reason thereof, which creates the liability. An adverse claim, which would prevail if asserted, could create no liability on a policy whether known or not known, if never asserted. Two things, then, must exist or occur before an action on the policy could be maintained: (1) A defect or incumbrance; (2) loss or damage resulting therefrom. Neither have occurred in this case, and therefore no damage can be awarded based upon the two risks insured against in the policy.

If "loss or damage" has been sustained by claimant, it must be for breach of contract-not on the policy. It must be because claimant bought and paid for, for twenty five years, a continuing contract of indemnity against loss or damage resulting from said "defects of title" or "incumbrances" on title, and because the defendant company has by the receivership disabled itself from full performance. But continuing indemnity means nothing more than this: If defects of title, or incumbrances on title existed at the date of the policy, which within twenty five years result in loss or damage, the company becomes liable. Defects or incumbrances might have existed, without damage or loss result, no liability. Damage or loss might have occurred without any defects or incumbrances-result, no liability. If, then, in this particular case an absolutely clear title could be establishedone without "defect" or "incumbrance," insured against, the defendant's contract would not have been broken in fact. It would thus be possible to remove in court an essential element, which, by the policy, must exist and precede loss or damage, before a recovery could be had on the policy. So, too, in such case there could be no recovery for breach of contract, as for unearned premium, because the premium would then have been all earned at the issuance of the policy. Whether under the stipulation that the company will, at its own