opinion that he is not. The parties in this couri who had an interest in the property are not bound by the action of the state court in allowing this compensation to the receiver. In fact, the compensation which was due to the receiver for the services that he had performed came up as a question before the master appointed by this court,and the master made him a certain allowance for his services, which was sanctioned by this court in the order made, from which he took an appeal to the supreme court of the United States. He took possession of the property in December, 1873, and turned it over to the trustees on August 12, 1875. The master of this court allowed him $10,000 for his services as receiver, and after the property has come into, this court, and after this court has passed upon the compensa-' tion which should be allowed him, and that whole question has been determined, to allow him to go to the state court, re-instate the case of Kelly, and ask for and obtain the action of the state court as to his compensation, and then come into this court and request it to treat this as res adjudicata and binding in this court, under the circumstances, would certainly be carrying the principle further than any precedent. that I ever heard of would sanction. The object has been so obviously for the purpose of obtaining money 'from this court which he has once reluctantly and under compulsion paid under its order, that I cannot do .otherwise than dismiss the petition.
BREED V. THE CITY
(Circuit Court, S. D. OMo. - - , 1880.)
1. FIRE INSURANOE-OONTRAOTS-OONSTRUOTION. - Oontracts of insurance are to be construed as other contracts., All parts of the contract are to be taken together; they are to be liberally construed, and such meaning to be given to them as will carry out and effectuate to the fullest extent the intention of the parties, and no portion of it wilt receive such a construction as will tend to defeat the obvious general purpose of the parties entering into the contract. .
ORANE V. OITY INS. 00.
insura.nce provided that the same should be void "if the abOve-mentioned premises shall be occupied or used so as to increase the risk; .. '*' .. .. or if the risk be increased by erection of or occupation of neighboring buildings; or if by any means whatever within the control of the assured, without the consent of the company indorsed hereon." Held, that the terms "increase the risk," must be construed as meaning an essential increase of the risk. 3. SAME-SAME-SAlIIE. -Sucb policy also provided that "the in sured has permission to make alterations and repairs incidental to the business." HeZd, that this clause must be understood as embracing such alterations in relation to the carrying on of the business of the insured as would not essentiaLy and materially increase theliabUltyof the property to be by fire. 4. AGENcy-NoTICE.-After such policy had been issued and delivered by the regular agent. of the company, the company was not Chargeable with knowledge subsequently acquired by the insurance agent who placed the insurance in the company.
2. SAME-SAME-SAlIIE.-A policy
Hoadly, Johnson et Colston, for plaintiffs. Moulton, Johnson cf Levy, for defendant. SWING, D. J., (charging jury.) This action is brought by
the plaintiffs to recover the sum of $794.40 upon a policy of insurance issued by defendant to the plaintiffs on the ninth day of November, A. D. 1879, insuring plaintiffs against loss by fire upon a two-story brick house used by them as a manufactory of packing boxes, burial cases, etc., in Cincinnati, Ohio. The plaintiffs aver substantially the payment of the premium, the issuing of the policy of insurance, and damage by fire to the property to the amount of $794.40; that due notice and proof of loss were made; and that plaintiffs have kept and performed all their conditions of said policy, and pray judgment for $794.40. The defendant answers, substantially, that after the making and delivery of the policy it became null and void,· because by the terms of the policy it is provided that if the premises therein described shall be occupied or used so as to increase the risk, or if the risk be increased by any means Whatever, within the control of the assured, without the consent of. the company indorsed upon said policy, it should be void; that without the consent of the company so indorsed the plaintiff did increase the risk by the sinking of an artesian
well on said premises, in the sinking of which a vein of gas was struck, which, coming in contact with a gas jet near by, caused an explosion, and set fire to the building; that in the sinking of said well plaintiffs were engaged in an unusual and extraordinary undertaking, not customary or necessary to the business they were carrying on, and materially increased the risk and hazard of fire, in violation of the policy, and by which the policy became void. By reason whereof they deny liability upon said policy. The plaintiffs, by reply, deny generally the allegations of the answer, and allege that by the terms of the policy they had a right to make alterations and repairs incident to their business, which was that of manufacturers of undertakers' goods, heating apparatus, etc., and that the sinking of said artesian well was an alteration incident to said business, within the meaning of said policy. And, further, that the agent of the insurance company had full kn0wledge that the plaintiffs were boring said well, and made no objections thereto; and that the statement in the proof of lOlls that the well had reached 267 feet is not correct, but it should be 230. Three issues are presented by these pleadings. The first is raised by the answer of the defendant, and is substantially that the plaintiffs, without the consent of the defendant indorsed upon the policy, increased the risk by sinking an artesian well upon the premises insured, and that by the sinking of the well gas was struck, which, coming in contact with a gas jet, caused the burning of the building insured. The second is that the sinking of the well was embraced in the clause of the policy permitting alterations incident to the business; and the third is that the agent of the had notice of the sinking of the well while the work was progressing, and made no objection thereto. It may be said generally that contracts of insurance are t<> be construed at:' other contracts. And among the most im. portant rules for their construction is, that all parts of the contract are to be taken together; and they shall be liberally construedj and that 6uch meaning shall be given to them
ORANE V. OITY INS. CO.
as will carry out and effectuate to the fullest extent the intention of the parties, and that no portion of it will receive sucb a construction as will tend to defeat the obvious general purpose of the parties entering into the contract. Applying these general principles to the constJ::uction of this contract generally, and to the particular clauses brought especially to our notice by the pleading, we may say the general object . and purpose of this contract was to secure the plaintiffs against loss by fire upon a certain-described property, then in use for particular purposes described in the policy,and that this insurance was effected by the insurance company upon said property upon the condition that the property and its use should not be essentially and materially changed; and applying the rules to the particular clause pleaded by the defendant, the language of which is: "If the above-mentioned premises shall be occupied or used so as to increase the risk; · · · or if the risk be increased by erection of or occupation of neighboring buildings; or if by any means whatever within the control of the assured, without the consent of the company indorsed hereon." If we give this clause its literal and restricted meaning. any use whatever of the premises by the defendant, by which the liability to fire was increased to any extent, would avoid the policy; but this would not be in accordance with the rules of construction we have laid down, and it could not be said that such was the sense in which the parties understood and used them at the time of the execution of the contract. We think, therefore, that the terms "increase the risk" must be construed as meaning an essential increase of the risk, and so applying the same rules of construction to the clause of the policy relied upon by the plaintiffs, to-wit: "The insured has permission to make alterations and repairs incidental to the business." If we give this clause its literal meaning it would be extended to embrace all alterations which the parties might desire to make connected with the carrying on of the business, . although it might increase, to an unlimited extent, the liability of the premises to be destroyed by fire; but such a construction would not be in accordance with the rules already v.3,no.l0-36
alluded to, and certainly could not have been the sense in which the parties understood them at the time. I think, therefore, that this clause mnst be understood as embracing such alterations in relation to the carrying on the business of the plaintiffs as would not essentially and materially increase the liability of the property to be destroyed ,by fire. If the jury find from the evidence that the sinking of the well was without the consent of the company, and materially and ess,entially increased the liability of the property in· sured to be burned, the policy would be avoided, and the defendant will be entitled to your verdict. But if the sink· ing of the well did not materially and essentially increase the liability of the property to be burned, it would not avoid the policy, although its effect may have been to render it in some degree more liable to be burned than it otherwise would have been. If you find from the evidence that, in the business in which these premises were used, a well would be beneficial, and such well as the plaintiff's sunk had, prior to and at the date of the policy, been sunk and in common use by establishments of the general character of the plaintiffs, and the sinking of such well did not essentially and materially increase the liability of the premises to be burned, the plaintiffs had the right to sink the well, and the sinking thereof would not avoid the policy. Upon the question raised by the reply, that the agent of the company, having knowledge of the digging of the well, and, making no objections, the assent of the company is to be presumed, I may say to you that, although Mr. Young, an insurance agent, placed the insurance in the defendant's company, and procured the regular agent of the company, Mr. Pollack, to issue the policy, after the issuing and delivery of the policy to the plaintiff, Mr. Young's relations to the com. pany ceased, and the company would not be chargeable with any knowledge of his acquired after that time in regard to the sinking of said well.
UNITED STATES 11. TA.YLOB.
UNITED STATES V. TA.YLOB.
(Oircuit Court, S. D. Illin0i8. July 7, 188ft.)
of MARCIl 1,1875, (18 ST. AT LARGE, 836.)-An indictment under the" Civil Rights Act" of March 1, 1875, (18 St. at Large, 336,) is insufficient, which does not allege the citizenship of the person injured by the violation of such statute.
James A. Connelly, Diet. Att'y, for the United States. Benj. S. Edwards, for defendant. DRUMMOND, C. J. This was an indictment against the defendant under what is called the "Civil Rights Act" of March 1, 1875, (18 St. at Large, 336.) The facts alleged in the indiQtment are that the defendant was the captain of the-steam-boat James Fiske, Junior, plying on the Ohio river, between Paducah and Cairo, for the publie conveyance of passengers, and for furnishing meals at a pub'lie table in the cabin of the steam-boat to all first-class passengers; and that, while the boat waEl on a trip between those ports, and a certain person by the name of E. A. McArthur, being a colored person, was on board as a first-class passenger, he was denied by the defendant, on account of his color, a seat at the table where the passengers took their meals. The indictment seems to be sufficient as to the allegations for the exclusion of the person of color from the table where other passengers had a right to sit and obtain their meals. It is put simply upon that ground, ("being a person of color,") and so far may, perhaps, be within the meaning of the civil rights statute. But the question is whether it is brought, by other necessary allegations, within the terms of the statute. It is to be observed that this, in some of its aspects, is a severe .statute in exercising control over the business of men. It is true that it must be something connected with what is called a public business or.a public right on the part of the person who is deprived of some privilege by another; but still--take the case of are common carriers passengerB and freight, but toa considerable extent the