of her petition, asked that her petition be taken pro confesso. The court overruled this motion, and ordered respondent to file his answer to the intervener's petition "instanter." At the same time, the intervener moved the court to order the issues of the case to be tried by a jury. This the court declined to do, and ordered that the case be referred to a special master. On the 30th of January, 1900, the parties appeared before a special master, in pursuance of said order, and respondent, by his counsel, offered to file a plea of "not guilty," to which objection was made for the reason that it was not a pleading in accordance with the practice of the federal courts, in a case of this character, which was equitable in its form and character, and should be governed by the rules and practice in equity.

The special master did not pass upon this objection or admit the pleading, at that or any other time during the hearing before him. It was filed, however, on the 7th of April, 1900. At the commencement and close of respondent's testimony, an objection was made by the intervener to the introduction of any evidence on the part of the respondent, for the reason that no issue was made to which evidence could be adduced by him. This objection was overruled de bene esse, but neither the master nor the court below, at any time thereafter, passed upon these questions, although they were raised by the intervener in her exceptions to the master's report. Notwithstanding this imperfect state of the pleadings, the master proceeded to hear the case, and on the 7th of April, made his report, in which, after sundry findings of fact and conclusions of law, he recommended that the intervener's petition be dismissed. To this report, exceptions were filed by the intervener, and argued by counsel to the court below. On the 24th of November, 1900, a decree was entered by the court below, in favor of the respondent and dismissing the petition of the intervener.

Upon this statement of the proceedings had subsequent to the filing of her petition, the intervener, in addition to the grounds of recovery urged in her petition, makes the point "that a plea of 'not guilty' is not a sufficient answer in an equity case, to raise issues entitling the respondent to adduce evidence contradictory to that of complainant, except as to the amount of damages, where damages are claimed."

It is clear that the proceeding instituted by the intervener's petition was one in equity. It was addressed to the equity side of the court, in an equity suit there pending. The receiver of the railroad company, as the officer and hand of the court, had control and management of the said railroad, and possession of all its funds and assets. The intervener sought by her petition for an order upon the receiver, that he should recognize and pay out of these funds a claim for unliquidated damages, accruing on an alleged liability incurred by the said receiver in the operation and management of the road. Under the circumstances, we think the case was one of equitable cognizance, and should have been proceeded with in accordance with equity rules and practice, and that the petitioner was entitled that the respondent should either demur to the complaint of her petition, or should file an answer thereto, admitting or traversing every material allegation of the petition, and stating with sufficient particularity every

substantive defense. The plea of "not guilty," while appropriate to a trial at law, we think was inadmissible in the proceedings below. The plea was a nullity. No proper issue was raised thereby. We cannot say that she was not injured by the want of an answer-specific answer to the averments of her complaint. She was denied that which was the right of every complainant in a court of equity.

But though of opinion that the proceedings below in this respect were grossly irregular, we place our determination of the case upon its merits, and therefore turn to what seems to us the most serious charge of negligence made by the intervener. This is, that under the conditions which obtained along the respondent's tracks, on the night of the accident, it was his duty to give intervener's decedent, or those in charge of his train, notice thereof, and that his failure so to do was the proximate cause of the accident. It was undoubtedly the duty of the receiver to notify his employés of any unusual danger to which they might be exposed in the performance of the service in which they were engaged, of which he was informed and they were not, or of which the master was better informed than the servant could be. To give such notice to the employé, is the exercise of that proper and reasonable care for the safety of the servant, which the law imposes as a duty upon the master.

Recurring to the facts disclosed by a careful reading of the record, and as found by the master: It appears that it had been raining all through the day of March 22d, and that at its close a storm of unprecedented violence set in throughout the region in which that part of the railroad of respondent, with which we are here concerned, was operated. The chief dispatcher at New Castle Junction, 16 miles. east of Hazelton, had full information as to the character of the storm and the havoc it was creating on certain portions of the road, at 7:45 on the evening of the accident. At that time, he sent a dispatch to Hazelton, which in substance annulled train No. 5, being the Chicago Express, going west, which would have occupied the road between Hazelton and New Castle Junction about that time. This order was communicated to those in control of the first section of No. 94 fast freight. A notice was also given to the conductor and engineer of said first section, to run cautiously and look out for washouts at certain specified places between Hazelton and New Castle Junction. It is true that this notice did not include the point near Carbon station, at which the accident afterward happened. Section No. 1, as we have seen, left Hazelton at 8:02 in the evening, passed the point of the accident, some five or six miles west of Hazelton, in safety, and arrived at New Castle Junction at 8:45. Section No. 2 of the same train, and upon which was decedent, left Hazelton at 8:22, having received the notice that the Chicago Express had been annulled and that it had a clear track before it to New Castle Junction. As this was a fast freight, this notification gave it the right of way, and must necessarily have had the effect of measurably relieving the mind of the engineer from anxiety as to the speed of his train. There was no notice, however, given to the conductor or engineer, or any other person on the train, such as was given to those on the first section, warning them of possible dangers along the road result

ing from the storm then raging. As to this important fact, the finding of the master is as follows:

"It further appears that on the evening of the accident the conductor and engineer of the first section, as was the custom in such cases, had received notice to look out for slides on account of the amount of rain that had fallen at various places specified in the notice, to wit, at Himrod, at Struthers and at Sand Cut, but said notice did not specifically warn these employés on the first section to look out for obstructions at the place where the accident subsequently occurred. The conductor and engineer of the second section received no such notice, nor any notice at all."

It is urged by respondent, and his argument is accepted by the master, that as the notice given to the first section was to look out for washouts or dangers at certain specified points, and as these did not include the place of the accident, therefore, such a notice to the second section would have been unavailing to prevent the accident that afterwards occurred. It would seem obvious, however, that any notice of special dangers, such as that given to the first section, would have served as a caution to those in control of the train, and so impressed upon them the necessity of careful running of the train, as would have prevented the accident that actually occurred. The argument of respondent and the view taken by the master overlook the fact, that the charge of negligence here is, not that the precise notice given to section No. I was not given to section No. 2, but, that no notice of any kind calculated to warn or caution those in control of section No. 2 of special dangers resulting from the storm, was given to them. Under the circumstances, the neglect to give such warning was a culpable breach of the duty owed by the respondent to his servants engaged in running section No. 2. As we have already said, the storm was of unusual and extraordinary, if not unprecedented, violence, and that it had already wrought havoc and obstruction along the line of the road to be traversed by decedent, was known by those to whom the duty of watching and observing such conditions, and of caring for the safety of those exposed to their special dangers, was delegated. No valid excuse is interposed by respondent for the nonperformance of this duty. No custom dispensing with such a notice, or practice of omitting it, as to which its employés were informed, was attempted to be proved. On the contrary, the testimony of the respondent's dispatcher was to the effect that it was always expected that warning should be given in case of storms, even of those much less violent than that of the night in question. Besides, that there was necessity on this occasion for such a notice, even in the opinion of those in charge of the railroad, is evidenced by the fact that special warning was given to section No. 1, and that the chief dispatcher testified that he thought and believed that he had sent a notice to those in control of section No. 2.

It is intimated that as the engineer and conductor, and those on board the trains, were exposed to the storm, they knew of its violence and were thereby warned of its dangers. But this is not true, in the sense in which it must be true to relieve the respondent from liability; that is, in the sense that the peril was an obvious one, and those exposed to it were bound to observe it and guard themselves against it. The violence of the storm immediately around themselves,

did not necessarily give those on the train the information as to the results of that storm along the line of the railroad, which was possessed by the dispatcher who was in telegraphic communication with the whole line. It was the fact that the storm had produced and was producing landslides and washouts at various points, that constituted the ground for apprehension, and created the necessity for extraordinary care and caution. That the storm was of this character, could not be known by those in control of section 2, unless the information was conveyed to them by those who had received the telegraphic reports concerning the same. This, then, was not the case of a servant assuming the risk of a known and obvious peril.

We are compelled to the conclusion, therefore, that the neglect to give those in control of section No. 2 any notice whatever, which would serve to caution them against the results of this extraordinary storm, was a proximate cause of the accident, by which decedent came to his death, and was culpable negligence for which the respondent is liable. Such conclusion is strengthened by the fact which appears in the record, that after the first section had left Hazelton, but before the second section had left, the dispatcher was in possession of additional information as to the severity of the storm and the havoc caused by it. This fact serves to increase the burden of responsibility resting upon the respondent, with respect to notifying those on section No. 2 of the general dangerous condition of the road.

The duty of informing a servant of special or extraordinary risks connected with his service, is a primary duty of the master, and the delegation thereof to any inferior servant, cannot relieve him of the responsibility imposed upon him by law. Whether the servant, to whom such duty is delegated, be higher or lower in the scale of employment, makes no difference. By whomsoever performed, the duty is that of the master, and he is always responsible to the servant for its due performance.

This view of the case makes it unnecessary that we should consider the other charges of negligence contained in the petition, although one of them, touching the inadequate provision for carrying away the water accumulating from the hillside at the place of the accident, impresses us with its importance.

The decree of the court below is therefore reversed, with directions. to the said court to enter a decree in favor of the petitioner, and to assess her damages by reason of the premises by such mode as it shall determine.

(115 Fed. 481.)

GERMAN INS. CO. OF FREEPORT, ILL., v. DOWNMAN et al.

(Circuit Court of Appeals, Fifth Circuit. April 22, 1902.)

No. 1,093.

1. EQUITY-RETENTION OF JURISDICTION ACQUIRED-DETERMINATION OF ENTIRE CONTROVERSY.

A court of equity in which cross suits have been brought, one for the reformation of an insurance policy and to enforce payment of a loss thereunder, another for a cancellation of such policy, and a third to enjoin the further prosecution of an action at law thereon pending in 11. See Equity, vol. 19. Cent. Dig. § 104.

the same court, on the consolidation and trial of such suits together, including all questions at issue between the parties, has jurisdiction to determine all such issues, and to render judgment against the insurer on the policy for the loss.

2. INSURANCE-CONTRACT-EXECUTORY AGREEMENT TO INSURE.

The manager of a large lumber plant, previously uninsured, agreed on behalf of his principal to place insurance on certain of the properties, aggregating $70,000, with a firm of insurance agents representing a number of companies. The amount to be written on each of the designated properties was fixed, the premiums agreed to, and that the policies should be written to go into effect on the 1st day of the ensuing month, but the companies were not agreed upon, nor the amounts or specific properties which should be insured by any particular company. The manager requested that not more than $5,000 be placed in any one company, but the matter was left to the discretion of the agents; the policies when written, however, to be subject to approval by the manager or owner of the property. Held, that such agreement did not constitute a contract of insurance binding any of the companies in which policies were afterwards written, which became bound only when their policies had been delivered and accepted, and in accordance with their terms.

3. SAME-ACCEPTANCE OF POLICY.

The policies, 18 in number, were written, and included one for $15,000, covering a drying shed and contents, in defendant company, which at the time of the agreement the agents did not represent, but the agency for which they had in the meantime acquired. All were by their terms to take effect at 12 o'clock noon on the day designated. During the forenoon of that day, and before the policies had been delivered or accepted or the premium paid thereon, the drying house burned. The owner subsequently secured possession of the policies from the agents, as they claimed, by representing that none of the property covered by such policies had been injured by the fire, but refused to accept any of them except the one covering the drying house, on the ground that they were for too large amounts, although that was the largest, and only one other was for an amount exceeding $5,000. Held, that the acceptance of defendant's policy under such circumstances did not create a contract of insurance covering the loss, even conceding the claim of plaintiff that under the previous agreement by the agents the insurance should date from the first moment of the day specified.

Appeal from the Circuit Court of the United States for the Northern District of Texas.

During the month of April, 1898, William Cameron, the testator of the appellees, owned a large lumber manufacturing plant at Bowie. La., consisting in part of a sawmill and machinery; two patent dry kilns; two large dry-shed buildings, with elevated covered cooling platforms, with car tracks thereon connecting the dry kilns with the dry sheds; a large planer building and machinery, adjoining one of the sheds; a store building and contents; with a large stock of upper grades of lumber, such as finish, stored in the dry sheds, and a very large stock of common grades of lumber, which go to the yard without passing through the dry kilns,-the plant and accumulated stock amounting in value on April 12 and 16, 1898, to an aggregate of about $500,000, and on which during the whole of the month of April, 1898, the owner had no insurance. It does not appear whether any part of this large property had ever been insured, or whether the owner up to that time had carried the risk thereon himself. One T. Gordon Reddy, Jr., was then the general manager for the owner of all this property. At that time, and for some years previously, J. J. Craig was and had been engaged in business as a local insurance agent at New Iberia, 2. Commencement of insurance risk, see note to Insurance Co. v. Phillips, 41 C. C. A. 273.