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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 neg. purpose 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 ... without any reference to ful and careful,” it will then require the actual negligence or want of skill in the defendants to “protect and indemnify said miners.” He also says that "it will here be Youghiogheny River Coal Company from seen (referring to a quotation from a textany liability for any damage which may re- book] that the right of the surface owner sult to the surface of the tracts of land is delared to be a right to absolute support, overlying the coal land purchased by said and that when such a right exists it is coal company from said obligors and others, of no consequence with what degree of or to improvements thereon, by reason of skill and prudence the mine owner the

mining and taking away of lucts his operations.” And in Pringle v. the said coal.” Such an obligation would l'esta Coal Co. 172 Pa. 438, 33 Atl. 690, unquestionably protect the obligee from lia- this court recognizes the distinction, and bility in removing all the coal. That is says that the owner of the coal is remanifest, and must be conceded. If we in- sponsible for failing to support the sursert the omitted words in the condition, face, whether the injury results “from neg. how does it affect the obligors' liability? ligence in conducting his mining operaThis, we think, is apparent. It does not tions, or from failure to properly and suffiprevent the obligee company from remov- ciently support the surface.” The English ing all the coal, but simply imposes upon cases cited above also recognize the distincit the duty of care and skill in the mining tion between negligent and careless mining operations. By virtue of its deeds from operations and failure to leave sufficient coal the defendants, all the coal belongs to the in place to support the overlying surface. plaintiff company, as is conceded, and this The declaration in those cases laid the obligation indemnifies the company cause of action as having been "wrongfully, against the surface owner in removing all I carelessly, negligently, and improperly, and

con

as

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 defending 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 We are of opinion that the words "skilful liability for damage done to the surface in and careful mining,” used in the defend not giving the same support, the admission ants' obligation of February 29, 1892, re- is that the indemnity given and received by late to the manner of working the coal, and it was from liability for damages to the do not impose upon the plaintiff company, surface owner simply from the skilful and in operating the coal, the duty of leaving careful mining and taking away of coal. proper and sufficient supports for the sur. There is no agreement to indemnify it if the face. If, therefore, the plaintiff exercise surface should subside in consequence of care and skill in its mining operations, it the vendee's failure to furnish sufficient may mine and remove all the coal, and support. Though such an indemnity had the defendants must indemnify the com- been asked for, it was not given, and it is pany against any damage resulting from not reasonable to suppose it would have injury to the surface which it may be been given by the appellees if the appellant compelled to pay the surface owner.

had persisted in making it a condition of In explanation of the apparent delay in the sale. In the suit brought against it by handing down this opinion, the writer may R. G. Greenawalt, the surface owner, there be permitted to say that the case has been was a recovery against the appellant, and but recently assigned to him.

the averment of its cause of action against The assignments of error are sustained, the appellees is that he had recovered upon and the judgment is reversed with a pro- bis allegation and proof that it had not supcedendo.

ported his surface lands in its mining oper

ations. For what he recovered from it, it Brown, J., dissenting:

now seeks to recover from the appellees on The judgment below in favor of the de- what it terms the indemnity agreement. fendants was on their demurrer to the The situation to my mind is entirely free plaintiff's statement. When it was nego- from difficulty. Though appellant's avertiating with the appellees and two others, ment is that it had mined “in a careful and now deceased, for the purchase of certain skilful manner,” its distinct admission is coal lands, the ownership of the surface that the injuries sustained by Greenawalt was in third parties, and it "declined to were due entirely to its failure to support purchase unless it, the said Youghiogheny his surface. If, as the surface or upper River Coal Company, was properly pro- owner, he had sustained injury in connectected and indemnified from any liability tion with what may have been the appelfor damage which might result to the sur- lant's careful and skilful mining,-if, by face lands overlying said tract of coal, or way of illustration, an upper vein of coal to the improvements thereon, in the skilful belonging to him had been damaged in such and careful mining and taking away of said mining,—the right of the appellant to recov. coal without surface support.” Immedi- er from the appellees what it had been comately following this averment is one that pelled to pay him could not be questioned; the appellees,” to induce the said Youghi- but when the injuries sustained were due iogheny River Coal Company to purchase solely to its failure to observe the absolute said coal lands, stipulated with it that they duty owed by it to the surface owner, and would make and execute an agreement from the consequences of a disregard of in writing to well and truly protect and in which it had not been indemnified by the demnify it, the said Youghiogheny River appellees, though they had been asked for Coal Company, from any liability or dam- such indemnity, it is equally clear that age which might result to the surface land there is no liability from them to it. Its overlying the said tract of coal, or to the skilful mining is not involved in its claim improvements thereon, by reason of the skil. | as set forth in the statement of its cause ful and careful mining and taking away of of action. The owner of a mineral estate, said coal.” The agreement in writing sub-l in the absence of any agreement to the con

trary between him and the upper owner, , do not mean to say that all the coal does owes a servitude to the superincumbent es not belong to the defendants, but they cannot tate of sufficient support, and a failure to get it without leaving sufficient support.' sufficiently support that estate is negligence. We have followed rigidly this rule, as thus Jones v. Wagner, 66 Pa. 429, 5 Am. Rep. tersely suggested, in all our decisions on 385. The duty of furnishing sufficient sup- the subject, and they have been many. Of port is an absolute orre, and the rule enfor. course, defendant had a right to all the coal cing it is not only rigid, but has long been under this lot, but he had no right to take well known through many of our cases, one any of it if thereby necessarily the surface of the latest being Noonan v. Pardee, 200 caved in. The measure of his enjoyment Pa. 474, 55 L. R. A. 410, 86 Am. St. Rep. of his right must be determined by the 722, 50 Atl. 255, in which our Brother Dean measure of his absolute duty to the owner not only clearly, but forcefully, says: “Where of the surface. So there is nothing gained there has been a horizontal division of the by adducing evidence of good or bad minland, the owner of the subjacent estate, ing, or by a discussion of that subject.” coal or other mineral, owes to the superin Sufficient support was not given to Greencumbent owner a right of support. This awalt by the appellant, and, as the terms is an absolute right arising out of the own- of the agreement to indemnify do not exership of the surface. Good or bad mining tend to its admitted negligence, no right of in no way affects the responsibility; what action to recover from the appellees is disthe surface owner has a right to demand closed in its statement, and the judgment is sufficient support, even if, to that end, on the demurrer ought to be affirmed. I it be necessary to leave every pound of coal am utterly at a loss to understand how any untouched under his land. Berwind v. other conclusion can follow an examination Barnes, 13 W. N. C. 541; also the English of the pleadings. case, Harris v. Ryding, 5 Mees. & W. 60, in which Baron Parke uses this language: 'I Dean, J., joins in this dissent.

NEBRASKA SUPREME COURT.

Michael Francis CLANCY, Piff. in Err., 2. A trespass committed upon the guest

in the hotel by a servant of the

proprietor, whether actively engaged in George E. BARKER et al.

the discharge of his duties at the time or not,

is a breach of such implied undertaking, for (.. Neb.........)

which the proprietor is liable in damages.

3. It is not within the scope of the au* 1. In receiving a guest into his hotel,

thority of a hired manager of a hotel a hotel keeper impliedly undertakes that such

to bind his employer by admissions concerning guest shail be treated with due consideration

such trespass after it had been committed. for his comfort and safety.

4. When such admissions are made a *Ileadnotes by ALBERT, C.

day after the trespass, and only remote. NOTE.---Liability of innkeeper for injury to was the general rule of law governing the guest by sertant.

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 ser the question. vant to a guest are very few. Though there Before the decision of the Nebraska case it are many loose statements in the books that had been held, however, that an innkeeper must the liability of an innkeeper for the safety and respond in damages for the malicious act of his comfort of his guests is the same as that of a servant in wantonly and ruthlessly assaulting carrier, no court which has had the question a guest. Overstreet v. Moser, 88 Mo. App. 72. before it for decision has extended the liability And there is nothing in the opinion to show thus far, except in the Nebraska case of that the court intended to limit this liability to CLANCY v. BARKER, holding an innkeeper liable an assault committed by the servant while enfor an injury to a guest by the servant whether gaged in the execution of his duty toward the the latter was actively engaged in the dis master, though it was alleged in the argument charge of his duties or not, such injury being of counsel that the servant was acting within held a breach of the innkeeper's implied con the line of his duties, and that he was to use tract that the guest shall be treated with due his judgment as to when it was necessary to consideration for his safety and comfort. In expel people from the hotel, and what force a case brought in the Federal court to recover should be used. In the statenrent it is also said for this same injury this holding is disapproved that the evidence showed that the servant was of, and it is held that the limit of the liability a burly, strong man with a violent temper, of an innkeeper is the exercise of reasonable and that this fact was known to the master, care for the safety, comfort, and entertain and one of the instructions in the lower court ment of his guests.

And this the court states was to the effect that the jury must find

error:

ly connected therewith, they are not admis Mr. John O. Yeiser, for plaintiff in sible in evidence as a part of the res gesta. On Rehearing.

Innkeepers, common carriers, and similar 15. The relation of master and servant institutions are governed by the same prin

does not render the master liable for ciples of law. the torts of the servant, unless connected

Craker v. Chicago & N. W. R. Co. 36 Wis. with his duties as such servant or within the scope of his employment.

671, 17 Am. Rep. 504; Bass v. Chicago & 6. It is the duty of a hotel keeper to

N. W. R. Co. 36 Wis. 459, 17 Am. Rep. 495; protect his guests while in his hotel Mastad v. Swedish Brethren, 83 Minn. 42, against the assaults of employees who assist 53 L. R. A. 803, 85 Am. St. Rep. 446, 85 N. in the conduct of the hotel and in the care

W. 913; Dickson v. Waldron, 135 Ind. 507, and accommodation of the guests. If damages 24 L. R. A. 483, 41 Am. St. Rep. 440, 34 N. result from such assault, the hotel keeper is liable therefor.

E. 510, 35 N. E. l; Norcross v. Norcross,

53 Me. 169; Pinkerton v. Woodward, 33 (Barnes, J., dissents.)

Cal. 585, 91 Am. Dec. 657; Com. v. Power, (February 4, 1904.)

ī Met. 601, 41 Am. Dec. 465; Russell v.

Fagan, 7 Houst. (Del. ) 396, 8 Atl. 258; RROR to the District Court for Douglas Hulett v.

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Swift, 42 Barb. 254; Pullman PalCounty to review a judgment in favor of

ace Car Co. v. Lowe, 28 Neb. 239, 6 L. R. A. defendants in an action brought to recover so9, 26 Am. St. Rep. 325, 44 N. W. 226. damages for injuries to plaintiff's son for

Common carriers innkeepers, and such which defendants were alleged to be respon- public hosts are liable to their guests for sible. Reversed except as to defendant Bar- misconduct of their servants, resulting in ker.

personal injury or abuse of such persons, The facts are stated in the opinion.

who are entitled to special care and atten¡Rehearing headrotes by SEDGWICK, J.

tion.

for the plaintiff if they believed that he went mitted upon him by servants in the performance to the hotel as a guest, and that the servant, of their duties as servants, even though the while acting as the agent or employee of the master was not present and in no manner coninnkeeper, and in the execution of the duties sented to, or aided in, the assault ; but that which he had been employed to perform, made he is not liable for their wanton and malicious the assault upon the plaintiff. Taking all the acts committed without his consent or approval. facts into consideration, it may be that the So, an innkeeper is not responsible for a court intended to limit its decision to cases malicious assault upon a guest while seated at where the wrongful act was committed while the dining table, by a dining-room waiter, the servant was engaged in the performance where the master was not negligent either in of his duties; but the language of the opinion employing or retaining the waiter in his is broad enough to cover cases where an inn service. Rahmel v. Lehndorff, 142 Cal. 681, keeper is attempted to be held liable for acts 65 L. R. A. 88, 100 Am. St. Rep. 154, 70 of his servants outside the scope of their duties. Pac. 659. It is said in this case that an inn

In Rommel v. Schambacher, 120 Pa. 579, 6 keeper is no doubt guilty of negligence if he adAm. St. Rep. 732, 11 Atl. 779, there is a mits to his hotel, or permits to remain there, dictum that where one enters a saloon or tavern whether as guest or servant, a person of known open for the entertainment of the public the violent and disorderly propensities, who will proprietor is bound to see that he is properly probably assault or otherwise maltreat his protected from the assaults or insults, as well guest, and that for the consequence of such of those who are in his employ, as of the negligence he may be liable in damages ; but drunken and malicious men whom he may that the plain ground of his liability in such choose to harbor. The declaration in this case case would be his negligence in harboring percharged a liability of the defendant as a tavern sons dangerous to the peace and comfort of keeper to the plaintiff as his guest, but the those persons for whose comfort he is bound wrongful act was committed not by a servant, to provide. but by another guest, and the facts of the And an innkeeper is not liable to a guest for case are such as to render it of no valu on the

an assauit committed upon him by a servant, question which is the subject of this note. which is the result of a personal altercation

In Dickson v. Waldron, 135 Ind. 507, 24 or quarrel between the servant and the guest, L. R. A. 483, 41 Am. St. Rep. 440, 34 N. E. and is not done in carrying out the master's 506. 35 N. E. 1, it is also said, obiter, that business, nor by his consent, and is not raticommon carriers, innkeepers, and others who fied by him after its occurrence, Curtis v. Din. invite the public to become their patrons and neen, 4 Dak. 245, 30 N. W. 148. guests, owe a special duty to those who may In Calye's Case, 8 Coke, 32a, 336, it is said accept such invitations; and that such patrons that if a guest be beaten in the inn, the innand guests have a right to ask that they shall keeper shall not answer for it; and this statebe protected from injury while present on such ment has been frequently cited as authority for invitation, and particularly that they shall not holding that an innkeeper is not liable for an suffer wrong from the agents and servants of assault committed upon a guest by a servant. those who have invited them.

But the statement is a mere dictum, the case In Wade v. Thayer, 40 Cal. 578, it is held not involving the question of liability for that an innkeeper is liable for the actual dam- personal injury to a guest at all. age suffered by a guest through an assault com

F. H. L.

Russell v. Fagan, 7 Houst. (Del.) 392, 8, R. A. 483, 41 Am. St. Rep. 440, 34 N. E. Atl. 258; Mason v. Thompson, 9 Pick. 283, 510, 35 N. E. 1. 20 Am. Dec. 471; Pinkerton v. Woodward, Also proprietors of saloons as taverns or 33 Cal. 557, 91 Am. Dec. 657; St. Louis, A. & inns. C. R. Co. v. Dalby, 19 Ill. 367.

Rommel v. Schambacher, 120 Pa. 579, The identical reasons exist for holding a 6 Am. St. Rep. 732, 11 Atl. 779; Mastad hotel keeper liable for such conduct which v. Swedish Brethren, 83 Minn. 42, 53 L. R. are assigned for holding common carriers A. 803, 85 Am. St. Rep. 446, 85 N. W. 913. and other public servants liable to the same Also proprietors of stores, express comextent. Innkeepers, like the other various panies, and such public places. hosts are under a common-law contract of Swinarton v. LeBoutillier, 7 Misc. 640, hospitality. This contract guarantees that 28 N. Y. Supp. 53; Mallach v. Ridley, 24 the innkeeper will do all in his power to Abb. N. C. 181, 9 N. Y. Supp. 922; Richprevent any harm, injury, or insult from berger v. American Exp. Co. 73 Miss. 170, befalling his guests from any fellow guest or 31 L. R. A. 390, 55 Am. St. Rep. 522, 18 stranger, and absolutely guarantees that he So. 922; 111ssouri P. R. Co. v. Divinney and his servants will not themselves mistreat (Kan.) 69 Pac. 352. them.

Also innkeepers. It would be ridiculous to say that the inn. Overstreet v. Moser, 88 Mo. App. 72; keeper would be liable if his servants saw a Tousey v. Roberts, 21 Jones & S. 446; guest being mistreated and injured in the Wade v. Thayer, 40 Cal. 578; Gilbert v. inn, and did not prevent it, being able to do Hoffman, 66 Iowa, 206, 55 Am. Rep. 263, so, and yet to say that the servants charged 23 N. W. 632; Weeks v. McNulty, 101 Tenn. with this duty on behalf of the innkeeper | 499, 43 L. R. A. 185, 70 Am. St. Rep. 693, could themselves do what they could not suf- 48 S. W. 809. fer a third person to do.

Even under the principle of master and Common carriers are under this liability. servant, defendants are liable for the inju

Drinelle v. New York C. & H. R. R. Co. ries of which complaint is made. 120 N. Y. 122, 8 L. R. A. 224, 17 Am. St. Rep. Evans v. Davidson, 53 Md. 248, 36 Am. 611, 24 N. E. 319; Pittsburgh, Ft. W. & C. Rep. 400; Ellegard v. Ackland, 43 Minn. R. Co. v. Hinds, 53 Pa. 515, 91 Am. Dec. 352, 45 N. W. 715; Gilmartin v. New York, 224; Goddard v. Grand Trunk R. Co. 57 Me. 55 Barb. 245; Baxter v. Chicago, R. I. E 214, 2 Am. Rep. 39; Jeffersonville R. Co. P. R. Co. 87 lowa, 495, 54 N. W. 350; v. Rogers, 38 Ind. 126, 10 Am. Rep. 103: Heenrich v. Pullman Palace Car Co. 20 Fed. Chamberlain v. Chandler, 3 Mason, 245, Fed. 100, Dickson v. Waldron, 135 Ind. 507, 24 Cas. No. 2,575; Pendleton v. Kinsley, 3 L. R. A. 483, 41 Am. St. Rep. 440, 34 N. E. Cliff. 417, Fed. Cas. No. 10,922; Bryant v.

510, 35 N. E. 1; Goff v. Great Northern R. Rich, 106 Mass. 188, 8 Am. Rep. 311; Chi Co. 3 El. & El. 673.

The real question is, Was the person incago & E. R. Co. v. Flexman, 103 Ill. 549, 42 Am. Rep. 33; Fick v. Chicago & N. w.flicting the injury a servant, subject to conR. Co. 68 Wis

. 471, 60 Am. Rep. 878, 32 N. trol, and intending to serve his master, inW. 527; Milwaukee & M. R. Co. v. Finney,

stead of acting for himself?

St. Louis, I. M. & S. R. Co. v. Hackett, 10 Wis. 388. Weed v. Panama R. Co. 17 N. Y. 364, 72 Am. Dec. 474; Terre Haute

58 Ark. 388, 41 Am. St. Rep. 105, 24 S. W. & I. R. Co. v. Jackson, 81 Ind. 21; Spohn Co. 47 Minn. 16:3, 49 N. W. 694; Garretzen

881; Gunderson v. Northwestern Elevator v. Missouri P. R. Co. 87 Mo. 74; Nieto v.

v. Duenckel, 50 Mo. 107, 11 Am. Rep. 405; Clark, 1 Cliff. 145, Fed. Cas. No. 10,262; Hardegg v. Willards, 12 Misc. 18, 33 N. Y. Stewart v. Brooklyn & C. T. R. Co. 90 N. Supp. 25; Mckinley v. Chicago & N. W. R. Y. 592, 43 Am. Rep. 185; St. Louis, A. & Co. 44 Iowa, 318, 24 Am. Rep. 748; Toledo, C. R. Co. v. Dalby, 19 III. 370; Mallach v. II. & W. R. Co. v. Harmon, 47 Ill. 298, 95 Ridley, 24 Abb. N. C. 182, 9 N. Y. Supp. 922. Am. Dec. 489; Philadelphia & R. R. Co. v. Also sleeping car compinies.

Derby, 14 How. 486, 14 L. ed. 509; NorthPullman Palace Car Co. v. Love, 28 Neb. cestern R. Co. v. Hack, 66 ll. 238; Colien 239, 6 L. R. A. 809, 26 Am. St. Rep. 325, v. Dry Dock, E. B. & B. R. Co. 69 N. Y, 170; 44 N. W. 226; Campbell v. Pullman Palace Bryant v. Rich, 106 Mass. 128, 8 Am. Rep. Car Co. 42 Fed. 485; Williams v. Pullman | 311; Missouri, K. & T. R. Co. v. Edioards Palace Car Co. 40 La. Ann. 421, 8 Am. St. (Tex. Civ. App.) 67 S. W. 891; Dupre v. Rep. 538, 4 So. 85; Heenrich v. Pullman Childs, 52 App. Div. 308, 65 N. Y. Supp. Palace Car Co. 20 Fed. 164; Nevin v. Pull- 179; Fowler v. Holmes, 24 N. Y. S. R. man Palace Car Co. 106 Ill. 230, 46 Am. / 299, 3 N. Y. Supp. 816; Noblesville & E. Rep. 688.

Gravel Road Co. v. Gause, 76 Ind. 142, 40 Also proprietors of theaters and shows. Am. Rep. 224. Dickson v. Waldron, 135 Ind. 507, 24 L. With the evidence showing that the porter

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