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coal land" caused by mining and removing of it. If, however, by the careless use of the coal. This obligation indemnifies the explosives, or the negligent or unskilful use coal company against this liability, provided of any other means in mining the coal, the it exercises skill and care in mining and company's employees, regardless of the quantaking away the coal. Observing this single tity of coal they may remove or leave provision of the obligation, the defendants' in place, should break the surface, the deprotection permitted the coal company to fendants' obligation wil afford the obligee remove all the coal without leaving any no protection, and the company would be supports for the surface. It necessarily compelled to stand the loss. Hence it is follows that the skill and care required to manifest that the words "skilful and carebe exercised by the plaintiff in operating ful" in the obligation refer to the manner the coal referred to the manner of working or method of working the stratum or vein the vein conveyed to the plaintiff company. of coal, and not to the quantum of coal Any other construction would produce an which the owner may remove or leave in absurdity, and render the obligation nuga- place to support the surface. tory and impotent to carry out the manifest Our own cases, and also the English depurpose for which it was executed and de- cisions, recognize a distinction between a livered. The only protection the coal com- failure to support the surface and neglipany needed to enable it to mine all the coal gence in conducting the mining operations. was indemnity against injury resulting to In Horner v. Watson, 79 Pa. 242, 21 Am. Rep. the surface in removing the coal required 55, an action for not supporting the surface, for supports. If, therefore, skilful and whereby the plaintiff's mines adjoining careful mining" in the defendants' obliga- those of the defendants were flooded, the tion requires the coal company to leave in ruling of the trial court was affirmed by place coal sufficient to support the surface, this court in refusing to charge that the the instrument affords the company no pro- defendants were not liable if the jury found tection whatever against the only liability it the injuries were not occasioned by any could incur, which is to the surface owner, wanton or wilful acts and that the defendby removing the supports and thereby break- ants had conducted their mining operaing the surface. If, on the other hand, we tions according to the approved, established, give these words their usual and primary and customary course and practice of signification, keeping in view the manifest mining in the region, and without any negpurpose to be attained, the defendants' ob- ligence in the operation of mining. In ligation will supplement their deeds, and Carlin v. Chappel, 101 Pa. 348, 47 Am. Rep. place in the grantee the entire body of coal, 722, the late Chief Justice Green, deliverfreed and discharged from the only obstacle ing the opinion, referred to this ruling in or impediment in mining and removing it, the Horner Case, and recognized the same which is the duty of absolute support owed distinction, by saying that it was there to the surface owner. If we omit from the held that "the defendants would be responcondition of the obligation the words "skil-sible ful and careful," it will then require the defendants to "protect and indemnify said Youghiogheny River Coal Company from any liability for any damage which may result to the surface of the tracts of land overlying the coal land purchased by said coal company from said obligors and others, or to improvements thereon, by reason of the mining and taking away of the said coal." Such an obligation would unquestionably protect the obligee from liability in removing all the coal. That is manifest, and must be conceded. If we insert the omitted words in the condition, how does it affect the obligors' liability? This, we think, is apparent. It does not prevent the obligee company from removing all the coal, but simply imposes upon it the duty of care and skill in the mining operations. By virtue of its deeds from the defendants, all the coal belongs to the plaintiff company, as is conceded, and this obligation indemnifies the company as against the surface owner in removing all

without any reference to actual negligence or want of skill in the miners." He also says that "it will here be seen [referring to a quotation from a textbook] that the right of the surface owner is delared to be a right to absolute support, and that when such a right exists it is of no consequence with what degree of skill and prudence the mine owner conducts his operations." And in Pringle v. Vesta Coal Co. 172 Pa. 438, 33 Atl. 690, this court recognizes the distinction, and says that the owner of the coal is responsible for failing to support the surface, whether the injury results "from negligence in conducting his mining operations, or from failure to properly and sufficiently support the surface." The English cases cited above also recognize the distinction between negligent and careless mining operations and failure to leave sufficient coal in place to support the overlying surface. The declaration in those cases laid the cause of action as having been "wrongfully, carelessly, negligently, and improperly, and

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We are of opinion that the words "skilful and careful mining," used in the defendants' obligation of February 29, 1892, relate to the manner of working the coal, and do not impose upon the plaintiff company. in operating the coal, the duty of leaving proper and sufficient supports for the surface. If, therefore, the plaintiff exercise care and skill in its mining operations, it may mine and remove all the coal, and the defendants must indemnify the company against any damage resulting from injury to the surface which it may be compelled to pay the surface owner.

without leaving any proper or sufficient | sequently given by the vendors was that they pillars or supports in that behalf." Lord would "well and truly protect and indemniCampbell in Humphries v. Brogden, in com- fy said Youghiogheny River Coal Company menting on Harris v. Ryding, says, in ad- from any liability for any damage which dition to the excerpt from his opinion quot- may result to the surface of the tracts of ed above: "The Barons, in the very com- land overlying the coal land purchased by prehensive and masterly judgments which said coal company from said obligors and they delivered seriatim, seem all to have others, or to improvements thereon, by thought that the reservation of the min- reason of the skilful and careful minerals would not have justified the defend- ing and taking away of the said coal." ant in depriving the surface of a complete It will at once be observed that, though support, however carefully he might have the averment of the appellant is that proceeded in removing them." it had insisted upon indemnity against liability for damage done to the surface in not giving. the same support, the admission is that the indemnity given and received by it was from liability for damages to the surface owner simply from the skilful and careful mining and taking away of coal. There is no agreement to indemnify it if the surface should subside in consequence of the vendee's failure to furnish sufficient support. Though such an indemnity had been asked for, it was not given, and it is not reasonable to suppose it would have been given by the appellees if the appellant had persisted in making it a condition of the sale. In the suit brought against it by R. G. Greenawalt, the surface owner, there was a recovery against the appellant, and the averment of its cause of action against the appellees is that he had recovered upon his allegation and proof that it had not supported his surface lands in its mining operations. For what he recovered from it, it now seeks to recover from the appellees on what it terms the indemnity agreement.

In explanation of the apparent delay in handing down this opinion, the writer may be permitted to say that the case has been but recently assigned to him.

The situation to my mind is entirely free from difficulty. Though appellant's averment is that it had mined "in a careful and skilful manner," its distinct admission is that the injuries sustained by Greenawalt were due entirely to its failure to support his surface. If, as the surface or upper owner, he had sustained injury in connection with what may have been the appellant's careful and skilful mining,-if, by way of illustration, an upper vein of coal belonging to him had been damaged in such mining, the right of the appellant to recov er from the appellees what it had been compelled to pay him could not be questioned; but when the injuries sustained were due solely to its failure to observe the absolute duty owed by it to the surface owner, and from the consequences of a disregard of which it had not been indemnified by the appellees, though they had been asked for such indemnity, it is equally clear that there is no liability from them to it. Its skilful mining is not involved in its claim as set forth in the statement of its cause of action. The owner of a mineral estate, in the absence of any agreement to the con

The assignments of error are sustained, and the judgment is reversed with a procedendo.

Brown, J., dissenting:

The judgment below in favor of the defendants was on their demurrer to the plaintiff's statement. When it was negotiating with the appellees and two others, now deceased, for the purchase of certain coal lands, the ownership of the surface was in third parties, and it "declined to purchase unless it, the said Youghiogheny River Coal Company, was properly protected and indemnified from any liability for damage which might result to the surface lands overlying said tract of coal, or to the improvements thereon, in the skilful and careful mining and taking away of said coal without surface support." Immediately following this averment is one that the appellees," to induce the said Youghiogheny River Coal Company to purchase said coal lands, stipulated with it that they would make and execute an agreement in writing to well and truly protect and indemnify it, the said Youghiogheny River Coal Company, from any liability or damage which might result to the surface land overlying the said tract of coal, or to the improvements thereon, by reason of the skilful and careful mining and taking away of said coal." The agreement in writing sub

trary between him and the upper owner, do not mean to say that all the coal does owes a servitude to the superincumbent estate of sufficient support, and a failure to sufficiently support that estate is negligence. Jones v. Wagner, 66 Pa. 429, 5 Am. Rep. 385. The duty of furnishing sufficient support is an absolute ore, and the rule enforcing it is not only rigid, but has long been well known through many of our cases, one of the latest being Noonan v. Pardee, 200 Pa. 474, 55 L. R. A. 410, 86 Am. St. Rep. 722, 50 Atl. 255, in which our Brother Dean not only clearly, but forcefully, says: "Where there has been a horizontal division of the land, the owner of the subjacent estate, coal or other mineral, owes to the superincumbent owner a right of support. This is an absolute right arising out of the ownership of the surface. Good or bad mining in no way affects the responsibility; what the surface owner has a right to demand is sufficient support, even if, to that end, it be necessary to leave every pound of coal untouched under his land. Berwind V. Barnes, 13 W. N. C. 541; also the English case, Harris v. Ryding, 5 Mees. & W. 60, in which Baron Parke uses this language: 'I

not belong to the defendants, but they cannot get it without leaving sufficient support.' We have followed rigidly this rule, as thus tersely suggested, in all our decisions on the subject, and they have been many. Of course, defendant had a right to all the coal under this lot, but he had no right to take any of it if thereby necessarily the surface caved in. The measure of his enjoyment of his right must be determined by the measure of his absolute duty to the owner of the surface. So there is nothing gained by adducing evidence of good or bad mining, or by a discussion of that subject."

Sufficient support was not given to Greenawalt by the appellant, and, as the terms of the agreement to indemnify do not extend to its admitted negligence, no right of action to recover from the appellees is disclosed in its statement, and the judgment on the demurrer ought to be affirmed. I am utterly at a loss to understand how any other conclusion can follow an examination of the pleadings.

Dean, J., joins in this dissent.

NEBRASKA SUPREME COURT.

Michael Francis CLANCY, Plff. in Err.,

v.

George E. BARKER et al.

(..... Neb....... )

*1. In receiving a guest into his hotel, a hotel keeper impliedly undertakes that such guest shail be treated with due consideration for his comfort and safety.

*Headnotes by ALBERT, C. NOTE-Liability of innkeeper for injury to guest by servant.

2. A trespass committed upon the guest
in the hotel by a servant of the
proprietor, whether actively engaged in
the discharge of his duties at the time or not,
is a breach of such implied undertaking, for
which the proprietor is liable in damages.
3. It is not within the scope of the au-
thority of a hired manager of a hotel
to bind his employer by admissions concerning
such trespass after it had been committed.
4. When such admissions are made a
day after the trespass, and only remote-

the question.

was the general rule of law governing the liability of innkeepers before the decision in the Nebraska case, which had received the apThe cases which have considered the liabil-proval of every court which had ever decided ity of an innkeeper for an injury by his servant to a guest are very few. Though there are many loose statements in the books that the liability of an innkeeper for the safety and comfort of his uests is the same as that of a carrier, no court which has had the question before it for decision has extended the liability thus far, except in the Nebraska case of CLANCY V. BARKER, holding an innkeeper liable for an injury to a guest by the servant whether the latter was actively engaged in the discharge of his duties or not, such injury being held a breach of the innkeeper's implied contract that the guest shall be treated with due consideration for his safety and comfort. In a case brought in the Federal court to recover for this same injury this holding is disapproved of, and it is held that the limit of the liability of an innkeeper is the exercise of reasonable care for the safety, comfort, and entertainment of his guests. And this the court states

Before the decision of the Nebraska case it had been held, however, that an innkeeper must respond in damages for the malicious act of his servant in wantonly and ruthlessly assaulting a guest. Overstreet v. Moser, 88 Mo. App. 72. And there is nothing in the opinion to show that the court intended to limit this liability to an assault committed by the servant while engaged in the execution of his duty toward the master, though it was alleged in the argument of counsel that the servant was acting within the line of his duties, and that he was to use his judgment as to when it was necessary to expel people from the hotel, and what force should be used. In the statenrent it is also said that the evidence showed that the servant was a burly, strong man with a violent temper, and that this fact was known to the master, and one of the instructions in the lower court was to the effect that the jury must find

ly connected therewith, they are not admissible in evidence as a part of the res gesta. On Rehearing.

†5. The relation of master and servant does not render the master liable for

the torts of the servant, unless connected with his duties as such servant or within the scope of his employment.

6. It is the duty of a hotel keeper to protect his guests while in his hotel against the assaults of employees who assist

in the conduct of the hotel and in the care

and accommodation of the guests. If damages result from such assault, the hotel keeper is liable therefor.

(Barnes, J., dissents.)

(February 4, 1904.)

Ε' RROR to the District Court for Douglas County to review a judgment in favor of defendants in an action brought to recover damages for injuries to plaintiff's son for which defendants were alleged to be responsible. Reversed except as to defendant Bar

ker.

The facts are stated in the opinion.

Rehearing headnotes by SEDGWICK, J.

for the plaintiff if they believed that he went to the hotel as a guest, and that the servant, while acting as the agent or employee of the innkeeper, and in the execution of the duties which he had been employed to perform, made the assault upon the plaintiff. Taking all the facts into consideration, it may be that the court intended to limit its decision to cases where the wrongful act was committed while the servant was engaged in the performance of his duties; but the language of the opinion is broad enough to cover cases where an innkeeper is attempted to be held liable for acts of his servants outside the scope of their duties.

In Rommel v. Schambacher, 120 Pa. 579, 6 Am. St. Rep. 732, 11 Atl. 779, there is a dictum that where one enters a saloon or tavern open for the entertainment of the public the proprietor is bound to see that he is properly protected from the assaults or insults, as well of those who are in his employ, as of the drunken and malicious men whom he may choose to harbor. The declaration in this case charged a liability of the defendant as a tavern keeper to the plaintiff as his guest, but the wrongful act was committed not by a servant, but by another guest, and the facts of the case are such as to render it of no value on the question which is the subject of this note.

In Dickson v. Waldron, 135 Ind. 507, 24 L. R. A. 483, 41 Am. St. Rep. 440, 34 N. E. 506, 35 N. E. 1, it is also said, obiter, that common carriers, innkeepers, and others who invite the public to become their patrons and guests, owe a special duty to those who may accept such invitations; and that such patrons and guests have a right to ask that they shall be protected from injury while present on such invitation, and particularly that they shall not suffer wrong from the agents and servants of those who have invited them.

In Wade v. Thayer, 40 Cal. 578, it is held that an innkeeper is liable for the actual damage suffered by a guest through an assault com

Mr. John O. Yeiser, for plaintiff in

error:

Innkeepers, common carriers, and similar institutions are governed by the same principles of law.

Craker v. Chicago & N. W. R. Co. 36 Wis. 671, 17 Am. Rep. 504; Bass v. Chicago & N. W. R. Co. 36 Wis. 459, 17 Am. Rep. 495; Mastad v. Swedish Brethren, 83 Minn. 42, 53 L. R. A. 803, 85 Am. St. Rep. 446, 85 N. W. 913; Dickson v. Waldron, 135 Ind. 507, 24 L. R. A. 483, 41 Am. St. Rep. 440, 34 N. E. 510, 35 N. E. 1; Norcross v. Norcross. 53 Me. 169; Pinkerton v. Woodward, 33 Cal. 585, 91 Am. Dec. 657; Com. v. Power, 7 Met. 601, 41 Am. Dec. 465; Russell v. Fagan, 7 Houst. (Del.) 396, 8 Atl. 258; Hulett v. Swift, 42 Barb. 254; Pullman Palace Car Co. v. Lowe, 28 Neb. 239, 6 L. R. A. S09, 26 Am. St. Rep. 325, 44 N. W. 226.

Common carriers innkeepers, and such public hosts are liable to their guests for misconduct of their servants, resulting in personal injury or abuse of such persons, who are entitled to special care and attention.

mitted upon him by servants in the performance of their duties as servants, even though the master was not present and in no manner consented to, or aided in, the assault; but that he is not liable for their wanton and malicious acts committed without his consent or approval.

So, an innkeeper is not responsible for a malicious assault upon a guest while seated at the dining table, by a dining-room waiter, where the master was not negligent either in employing or retaining the waiter in his service. Rahmel v. Lehndorff, 142 Cal. 681, 65 L. R. A. 88, 100 Am. St. Rep. 154, 76 Pac. 659. It is said in this case that an innkeeper is no doubt guilty of negligence if he admits to his hotel, or permits to remain there, whether as guest or servant, a person of known violent and disorderly propensities, who will probably assault or otherwise maltreat his guest, and that for the consequence of such negligence he may be liable in damages; but that the plain ground of his liability in such case would be his negligence in harboring persons dangerous to the peace and comfort of those persons for whose comfort he is bound to provide.

And an innkeeper is not liable to a guest for an assault committed upon him by a servant, which is the result of a personal altercation or quarrel between the servant and the guest, and is not done in carrying out the master's business, nor by his consent, and is not ratified by him after its occurrence. Curtis v. Din. neen, 4 Dak. 245, 30 N. W. 148.

In Calye's Case, 8 Coke, 32a, 33b, it is said that if a guest be beaten in the inn, the innkeeper shall not answer for it; and this statement has been frequently cited as authority for holding that an innkeeper is not liable for an assault committed upon a guest by a servant. But the statement is a mere dictum, the case not involving the question of liability for personal injury to a guest at all.

F. H. L.

510, 35 N. E. 1.

Russell v. Fagan, 7 Houst. (Del.) 392. S| R. A. 483, 41 Am. St. Rep. 440, 34 N. E. Atl. 258; Mason v. Thompson, 9 Pick. 283, 20 Am. Dec. 471; Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657; St. Louis, A. & C. R. Co. v. Dalby, 19 Ill. 367.

Also proprietors of saloons as taverns or inns.

The identical reasons exist for holding a hotel keeper liable for such conduct which are assigned for holding common carriers and other public servants liable to the same extent. Innkeepers, like the other variou hosts are under a common-law contract of hospitality. This contract guarantees that the innkeeper will do all in his power to prevent any harm, injury, or insult from befalling his guests from any fellow guest or stranger, and absolutely guarantees that he and his servants will not themselves mistreat them.

It would be ridiculous to say that the innkeeper would be liable if his servants saw a guest being mistreated and injured in the inn, and did not prevent it, being able to do so, and yet to say that the servants charged with this duty on behalf of the innkeeper could themselves do what they could not suffer a third person to do.

Common carriers are under this liability. Duinelle v. New York C. & H. R. R. Co. 120 N. Y. 122, 8 L. R. A. 224, 17 Am. St. Rep. 611, 24 N. E. 319; Pittsburgh, Ft. W. & C. R. Co. v. Hinds, 53 Pa. 515, 91 Am. Dec. 224; Goddard v. Grand Trunk R. Co. 57 Me. 214, 2 Am. Rep. 39; Jeffersonville R. Co. v. Rogers, 38 Ind. 126, 10 Am. Rep. 103: Chamberlain v. Chandler, 3 Mason, 245, Fed. Cas. No. 2,575; Pendleton v. Kinsley, 3 Cliff. 417, Fed. Cas. No. 10,922; Bryant v. Rich, 106 Mass. 188, 8 Am. Rep. 311; Chicago & E. R. Co. v. Flexman, 103 Ill. 548,

42 Am. Rep. 33; Fick v. Chicago & N. W.
R. Co. 68 Wis. 471, 60 Am. Rep. 878, 32 N.
W. 527; Milwaukee & M. R. Co. v. Finney.
10 Wis. 388 Weed v. Panama R. Co. 17

N. Y. 364, 72 Am. Dec. 474: Terre Haute
& I. R. Co. v. Jackson, 81 Ind. 21; Spohn
v. Missouri P. R. Co. 87 Mo. 74; Nieto v.
Clark, 1 Cliff. 145, Fed. Cas. No. 10.232;
Stewart v. Brooklyn & C. T. R. Co. 90 N.
Y. 592, 43 Am. Rep. 185; St. Louis, A. &
C. R. Co. v. Dalby, 19 Ill. 370; allach v.
Ridley, 24 Abb. N. C. 182, 9 N. Y. Supp. 922.

Also sleeping car companies.

Pullman Palace Car Co. v. Lowe, 28 Neb. 239, 6 L. R. A. 809, 26 Am. St. Rep. 325, 44 N. W. 226; Campbell v. Pullman Palace Car Co. 42 Fed. 485; Williams v. Pullman Palace Car Co. 40 La. Ann. 421, 8 Am. St. Rep. 538, 4 So. 85; Hecnrich v. Pullman Palace Car Co. 20 Fed. 104; Nevin v. Pullman Palace Car Co. 106 Ill. 230, 46 Am. Rep. 688.

Also proprietors of theaters and shows.
Dickson v. Waldron, 135 Ind. 507, 24 L.

Rommel v. Schambacher, 120 Pa. 579, 6 Am. St. Rep. 732, 11 Atl. 779; Mastad v. Swedish Brethren, 83 Minn. 42, 53 L. R. A. 803, 85 Am. St. Rep. 446, 85 N. W. 913. Also proprietors of stores, express companies, and such public places.

Swinarton v. Le Boutillier, 7 Misc. 640, 28 N. Y. Supp. 53; Mallach v. Ridley, 24 Abb. N. C. 181, 9 N. Y. Supp. 922; Richberger v. American Exp. Co. 73 Miss. 170, 31 L. R. A. 390, 55 Am. St. Rep. 522, 18 So. 922; Missouri P. R. Co. v. Divinney (Kan.) 69 Pac. 352.

Also innkeepers.

Overstreet v. Moser, SS Mo. App. 72; Tousey v. Roberts, 21 Jones & S. 446; Wade v. Thayer, 40 Cal. 578; Gilbert v. Hoffman, 66 Iowa, 206, 55 Am. Rep. 263, 23 N. W. 632; Weeks v. McNulty, 101 Tenn. 499, 43 L. R. A. 185, 70 Am. St. Rep. 693, 48 S. W. 809.

Even under the principle of master and servant, defendants are liable for the injuries of which complaint is made.

Evans v. Davidson, 53 Md. 248, 36 Am. Rep. 400; Ellegard v. Ackland, 43 Minn. 352, 45 N. W. 715; Gilmartin v. New York, 55 Barb. 245; Baxter v. Chicago, R. I. & P. R. Co. 87 Iowa, 495, 54 N. W. 350; Heenrich v. Pullman Palace Car Co. 20 Fed. 100, Dickson v. Waldron, 135 Ind. 507, 24 L. R. A. 483, 41 Am. St. Rep. 440, 34 N. E. 510, 35 N. E. 1; Goff v. Great Northern R. Co. 3 El. & El. 673.

The real question is, Was the person inflicting the injury a servant, subject to control, and intending to serve his master, in

stead of acting for himself?

St. Louis, I. M. & S. R. Co. v. Hackett, 881; Gunderson v. Northwestern Elevator 58 Ark. 388, 41 Am. St. Rep. 105, 24 S. W. Co. 47 Minn. 163, 49 N. W. 694; Garretzen v. Duenckel, 50 Mo. 107, 11 Am. Rep. 405; Hardegg v. Willards, 12 Misc. 18, 33 N. Y. Supp. 25; McKinley v. Chicago & N. W. R. Co. 44 Iowa, 318, 24 Am. Rep. 748; Toledo, W. & W. R. Co. v. Harmon, 47 Ill. 298, 95 Am. Dec. 489; Philadelphia & R. R. Co. v. Derby, 14 How. 486, 14 L. ed. 509; Northwestern R. Co. v. Hack, 66 111. 238; Cohen v. Dry Dock, E. B. & B. R. Co. 69 N. Y. 170; Bryant v. Rich, 106 Mass. 18, 8 Am. Rep. 311; Missouri, K. & T. R. Co. v. Edwards (Tex. Civ. App.) 67 S. W. 891; Dupre v. Childs, 52 App. Div. 308, 65 N. Y. Supp. 179; Fowler v. Holmes, 24 N. Y. S. R. 299, 3 N. Y. Supp. 816; Noblesville & E. Gravel Road Co. v. Gause, 76 Ind. 142, 40 Am. Rep. 224.

With the evidence showing that the porter

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