THE TRAVELLERS INS. CO. v. THE WILD RIVER LUMBER CO., 83 F. 977

BROWN, District Judge. Whether the contract of insurance was contained solely in the policy, or in the policy and application together, does not appear to us a vital question.

By the policy the lumber company was insured against loss from liability to every person who” should, during a stated period, “sustain accidental bodily injuries under circumstances which shall impose upon the insured a common-law or statutory liability therefor.” Conceding, for the purposes of the case, that there should be taken from the application, and incorporated into the contract, the following language: “It is understood that in the conduct of a portion of their business the assured employ a railroad, owned by themselves, and used only for their own lumbering purposes,” and that the contract insures for accidents upon the railroad only when it is used for lumbering purposes, this limitation or exception does not avail the plaintiff in error.

The company’s lumbering operations were carried on upon lands owned by it, and it had mills and dwellings for workmen, in ■a region not otherwise inhabited. It also had, in connection with its mills and the dwellings mentioned, a shop or store, where it kept, .and sold .to its agents and workmen, such groceries and other supplies as were required for such a population as was there found. These mills and other buildings were remote from any other settlement, and could not be reached by any public road or highway.

The company constructed and operated upon its own land, and primarily for use in its business, a railway, by the use of which logs were transported to the mills, and manufactured lumber from the mills to the Grand Trunk Railway, at a point some 31, miles distant. Over the same railroad, needed supplies for operations, and stock or merchandise for the shop above mentioned, were transported, as then* was occasion for so doing.

The company’s agents and workmen, and persons having business at the mills, or with the shop, including insurance agents and commercial runners and others, also were carried, from time to time, over said railroad, both ways. From soon* of the persons so carried over its railroad, the company demanded and collected pay for the transportation.

We are of the opinion that the transportation upon the company’s private railroad of two commercial travelers, who had come to the premises of the lumber company to transact business with the company, and to make sales, and to take orders for supplying the shop of the lamber company, was a use of the railroad within the scox»e of the company’s “own lumbering purposes.” The fact that the travelers paid a sum of money for a special conveyance is immaterial, since the railroad was used by them and by the lumber company in direct connection with the business of the company.

Nor can we say that the undertaking of the company or its servants to carry the two travelers upon a locomotive was such a fraud upon the insurer as to preclude the insured from recovering. The defendant in error is a lumbering company, with a railroad for lumbering purposes, and its equipment and modi* of running its road naturally differ from those of a common carrier.

As the circumstances are peculiar, this court cannot apply to this case common knowledge as to ordinary train service on ordinary railroads; and the record discloses no such finding of facts, bearing upon this question, as to justify us in finding error in the rulings thereon by the circuit court. Upon the record before us, it appears that the method of conveyance was assented Lo l>y the passengers and by the company. There is no evidence of bad faith, or of wanton and willful disregard of the safety of the travelers.

The lumber company, for the improper performance of its undertaking, became subject to a common-law liability to the injured men, and is entitled to indemnity from its insurer by the contract of insurance, even if this contract contains the limitation for which the plaintiff in error contends. These conclusions render it unnecessary to consider other errors assigned, since it necessarily follows that they could not have prejudiced the plaintiff in error. Judgment of the circuit court affirmed, with interest, and the costs of this court for the defendant in error.