as the money was not sent until a few days thereafter, the contract was not complied with on the defendant's part; but these claims are stale and technical, in view of the fact that the plaintiff expressly refrained from signing the deed because of the undercrossing matter, and for no other reason. This he testifies to positively himself. And in addition to this the plaintiff's letter of acceptance of the 15th of July is not conditioned upon the sending of the money and papers to the bank. It contains the statement simply that it will be a favor if they are sent there. It is also said that this letter is not a definite acceptance of the defendant's offer, because of the language "then when all be satisfaction," etc.; but this language clearly means that, if the deed contains the provision agreed upon as to the under-crossing, it will be all right. That was the sole and only thing which had before or then stood in the way of an amicable arrangement of the right of way matter, and this contract must at all times be read with this controlling thought in mind: and, when it is so read, in the light of the action of all parties, it is very clear that the defendant is raising every technical question possible to evade the performance of his deliberate written contract with the defendant. After this contract was entered into the defendant prepared a deed which contained the exact stipulation they had agreed upon, and this was a full compliance with the agreement between them upon the only mooted point, and in strict compliance with the acceptance of the plaintiff in his letter of the 15th of July.

We think there was a completed contract in this case, and that the defendant complied substantially with all the conditions it undertook to perform, and that the plaintiff should carry out the contract on his part by conveying to the defendant the right of way contracted for upon payment of the agreed price.

Plaintiff, who had formerly been a railroad employé, when passengers were carried on all trains, purchased a ticket, and was accepted by the conductor of a construction train as a passenger thereon, which was against defendant's orders, except on official permit, of which plaintiff had no notice. Plaintiff knew nothing about the construction train, except that he had ridden thereon before as a passenger, and that other passengers were on the train when he took it. Construction trains were not on defendant's passenger time tables, but two other freight trains were, and the train in question looked like an ordinary freight train, except that it carried only a single car. Held, that the conductor had such

an apparent authority to accept plaintiff as a passenger that such acceptance made him a passenger, and as such he could recover for injuries caused by defendant's negligence.

Appeal from district court, Muscatine county; P. B. Wolfe, Judge.

Action at law to recover damages for personal injuries sustained by plaintiff in a collision between trains on defendant's line of road. From a verdict and judgment for plaintiff, defendant appeals. Affirmed.

Carroll Wright, John I. Dille, and Carskadden & Burke, for appellant. E. M. Warner, for appellee.

DEEMER, J. There was evidence tending to show, and from which the jury may have found, that on the morning of November 18, 1898, an accident had occurred on defendant's line of road at Moscow, the first station west of Wilton; that one Roberts, who had charge of the construction train at Wilton, was directed to take his train and crew and go to the scene of the accident, to clear away the wreck; that pursuant to these orders Roberts made up a train, consisting of a locomotive and an ordinary freight caboose, similar in all respects to those in which defendant carried passengers on its freight trains, and placed the same on the main line of defendant's road. At this time what is known as defendant's "Fast Mail," which did not stop at Wilton, was due. Some precautions were taken against accident, but they were evidently not sufficient, for in a few minutes the fast mail came along at its usual high rate of speed, and, before the engineer thereof could stop it, it ran into the construction train, in the caboose of which were a number of men, including plaintiff, and as a result of the collision plaintiff received the injuries of which he complains. Plaintiff is an elderly man, and 25 or 30 years before the accident had been a railway employé, working at that occupation for 12 or more years. At the time of the collision he was a painter by trade. and was employed in painting two houses and a barn at Moscow. He had frequently ridden on this construction train, as had others, and on the morning in question asked Conductor Roberts for permission to ride on the train. His request was granted, and, having procured a ticket, he took his seat in the caboose with others, and was in this position when the accident occurred. At the time when plaintiff was engaged in railroading, passengers were carried on all trains; but he knew that at the time in question printed schedules were posted in depots, and given employés, permitting passengers to ride on certain trains, and forbidding them to ride on others; but he did not know what this schedule showed, and knew nothing about the construction train, except as he had ridden thereon before, as a passenger, had seen others do the same, and was permitted and directed by Conductor Roberts to

take the train, to get to his work at MosCow. As a matter of fact trainmen were not allowed to carry passengers on constructions trains, except when the passenger had a permit from the superintendent or train dispatcher, nor upon any freight trains except what were known as "Numbers 51 and 52." Defendant's negligence is practically conceded, and the only serious question made by defendant is that plaintiff was not a passenger when he received his injuries, and therefore cannot recover.

The decided cases on similar facts are apparently in some conflict, and the question has not heretofore received extended consideration by this court. It must be conceded, of course, that this train was not intended by defendant as a passenger train, and persons were not allowed to ride on it as such except under the conditions named. It does not appear, however, that plaintiff had notice of these conditions, and there is evidence which affirmatively shows that he did not. Construction or work trains do not ap pear on the time tables of the defendant company, but these tables did show that trains 51 and 52 were permitted to carry passengers. The train in question presented the appearance of an ordinary freight train which carried passengers, except that it was made up of an engine and the single car or caboose. Conductors, however, had the right to permit passengers to ride, even on construction trains, with the consent of the superintendent or train dispatcher. There was no rule of absolute exclusion from the train. We have a case, then, where there is no absolute prohibition of the train's carrying passengers; where the schedules posted in the ticket office did not show whether or not this particular train carried passengers; where the train in question not only carried plaintiff, but others, as passengers; where the conductor in charge of the train, and with apparent authority, at least, to determine who might ride thereon, permitted plaintiff to take a position in the caboose as a passenger; where the plaintiff did not know of any limitations on the conductor's authority, and where there was nothing about the train to indicate that it did not carry passengers the same as other freight trains of the defendant company; and where plaintiff did not in fact know of what was posted in the ticket office, but relied on the authority of the conductor to permit him to ride upon the train. In Fitzgibbon v. Railway Co., 108 Iowa, 614, 79 N. W. 477, where the facts were stronger against the plaintiff than in this case, we said, among other things: "Even if the train was not made up for the carriage of passengers in general, the defendant, through its conductor, had the right to accept such passengers; and if the conductor did accept the plaintiff as a passenger, he will be treated as such, in the absence of notice or knowledge on his part of any limitations upon the conductor's au

thority." A number of authorities were cited in support of this rule, which we think fairly sustain it, although it must be conceded that there is not entire harmony in the | adjudicated cases on this subject. We are now asked to modify that rule, or, at least, to limit its application; and in support of the argument a number of cases are cited, to some of which we will refer during the course of the opinion.

Taking it for granted that, as a matter of fact, the construction or work train was not intended for ordinary passengers, and that no one could ride on it as such without the consent of the train dispatcher or superintendent, and that plaintiff did not have this consent, we have to inquire whether or not the fact that plaintiff and others did ride on the train as passengers, and that plaintiff was authorized by the conductor in charge of this particular train on the occasion in question to ride thereon as a passenger, and that plaintiff did not know of any limitations on the authority of the conductor, made plaintiff a passenger on that train. The general rule with reference to the limitations upon the authority of an agent is well understood. A master is bound by the acts of his agent within the general scope of his authority; and while persons dealing with an agent are, as a general rule, bound to know the extent of his authority, yet they may reasonably take the visible and apparent interpretation of that authority by the principal himself as the true one, and as the one by which he chooses to be bound. It therefore follows that third persons, who have reasonably and in good faith relied upon the apparent authority of the agent, cannot be prejudiced by any limitations, of which they had no notice, and could not with reasonable diligence have ascertained. Mechem, Ag. § 279; Palmer v. Cheney, 35 Iowa, 281; City of Davenport v. Peoria Marine & Fire Ins. Co., 17 Iowa, 276. The conductor of the construction train had entire charge thereof, and in its management acted for and represented the defendant. He had apparent authority to say who should and who should not ride thereon. True, his instructions were limited, but the jury evidently found that plaintiff had no notice of these limitations. Of course the railway company had the right to use separate trains for freight and for passengers. but if it undertook to carry passengers on some of its freight trains, and a person about to board one, having no knowledge that it did not carry passengers, is authorized and permitted by the conductor in charge to do so, he is, we think, justified in presuming that such permission is within the scope of the agent's authority; and the person so boarding the train is not a trespasser, but a passenger. With these rules in mind we are the better prepared to consider the cases cited by defendant's counsel. In Eaton v. Railroad. 57 N. Y. 382, 15

Am. Rep. 513, the car in which plaintiff rode, on invitation of the conductor, was not such as the defendant company usually used for the carriage of passengers. It is described in the opinion as "a storeroom" used for carrying provisions; and there was no evidence that passengers either habitually or occasionally rode in the car. It also appeared that the defendant company made a complete division of its freight and passenger business; that no conductor had authority to carry passengers on freight trains; and that plaintiff had, or should have had, knowledge of this division of defendant's business. Moreover, the condition of the car was held to be such as to give notice that it was not intended for passengers. The court held on this state of facts that the conductor of the "coal train" did not have apparent authority to accept plaintiff as a passenger. The facts clearly distinguish that case from the one now before us. In Railroad Co. v. Barnes (Ind. Sup.) 36 N. E. 1092, the road had not been opened for public travel, and the court held the conductor could not open "an imperfect and incomplete road." In Powers v. Railroad Co., 153 Mass. 188, 26 N. E. 446, there was a complete division of defendant's business, and it was held that the conductor of a freight train did not have apparent authority to accept passengers thereon. Wilton v. Railroad Co., 107 Mass. 108, 9 Am. Rep. 11, cited in the Fitzgibbon Case, was approved and distinguished on the ground that the car on which plaintiff rode in that case was for the carriage of passengers, although, as a matter of fact, the driver of the car had no authority to accept him as a passenger. In Railway Co. v. Moore, 49 Tex. 31, 30 Am. Rep. 98, the defendant knew that passengers were not allowed on plaintiff's freight trains, and that conductors had no authority to accept him as such except on special conditions. There was also a complete division by the company of its freight and passenger business. In Cooper v. Railroad Co. (Ind. Sup.) 36 N. E. 272, the plaintiff went upon the train with the consent of the conductor to assist the brakeman. Neither the conductor nor the brakeman had authority to employ assistance. Plaintiff was manifestly upon the train by sufferance of the defendant's employés, and was not a passenger, nor was he accepted as such. In Smith v. Railroad Co., 124 Ind. 394, 24 N. E. 753, there was a complete separation of defendant's freight and passenger business; and it was not shown that plaintiff did not know when he went on the train that it did not carry passengers. Railroad Co. v. Lynch (Civ. App.) 28 S. W. 252, is another Texas case, wherein it appeared there was a complete division of freight and passenger business, and plaintiff was held to know that the conductor of a freight train had no authority to accept him as a passenger. Cook v. Navigation Co., 76 Tex. 353, 13 S. W. 475, 18

Am. St. Rep. 52, is a tugboat case, and Gulf Co. v. Dawkins, 77 Tex. 228, 13 S. W. 982; Hoar v. Railroad Co., 70 Me. 65, 35 Am. Rep. 299; Willis v. Railroad Co. (N. C.) 26 S. E. 784; and Railway Co. v. Bolling, 59 Ark. 395, 27 S. W. 492, 27 L. R. A. 190, 43 Am. St. Rep. 38,-are "hand car" cases. These appliances, as every one well knows, are not intended for the carriage of passengers or persons other than employés. Railway Co. v. Black, 87 Tex. 160, 27 S. W. 118, is another case where there was a complete separation between freight and passenger business, and Black was held to a knowledge of this fact. In that case it is said: "If, however, a railroad company permits its freight trains to carry passengers, then they are bound to such passengers to the same extent as if carried by their regular passenger trains, excepting such inconveniences and risks as are peculiarly incident to this means of transportation. Although a railroad company may not authorize the carriage of persons on its freight trains, or may prohibit it, yet if the servants carry passengers on such trains, to the knowledge of the company's officers authorized to make and enforce rules, or if they are carried to that extent that such officers, in a proper discharge of their duties, should know of the facts, and no effort is made to stop it, then a passenger is authorized to presume that it is permitted by the company, and will be protected as a passenger on such trains. But it cannot be said that a disobedience of orders can annul the order, except upon the principle that the officers, knowing of the violation, ratify it and waive the rule forbidding it. Whatever falls short of this will not serve to confer authority upon or enlarge the power of the agent." The other Texas cases to which defendant refers are all based on this distinction. Vide Railroad Co. v. White (Tex. Civ. App.) 34 S. W. 1042; Wilcox v. Railroad Co. (Tex. Civ. App.) 38 S. W. 379. In the last case plaintiff was riding on the footboard of the "switch engine" when injured. It is manifest from this review of the authorities that none of them are exactly in point, and that none call for a modification of the rule announced in the Fitzgibbon Case. Defendant had not made a complete separation of its freight and passenger business. It carried passengers on some of its freight trains, and in cars exactly similar in all respects to the one which plaintiff took. Plaintiff had no notice of any limitations on the conductor's authority, and the posted notices did not indicate that the train in question did not carry passengers. The conductor had the right to take passengers on this train, under certain conditions, but plaintiff had no notice of these conditions. He and others had frequently ridden on this train as a passenger, and we think, under all the circumstances, the conductor had the apparent right to aecept him as a passenger. These conclusious

See

find ample support in the authorities. Dunn v. Railway Co., 58 Me. 187, 4 Am. Rep. 267; Lucas v. Railway Co., 33 Wis. 41, 14 Am. Rep. 735; Railroad Co. v. Hailey (Tenn. Sup.) 27 L. R. A. 549; Railroad Co. v. Brown, 123 Ill. 162, 14 N. E. 197, 5 Am. St. Rep. 510; Everett v. Railway Co., 9 Utah, 340, 34 Pac. 289; Wilton v. Railroad Co., 107 Mass. 108, 9 Am. Rep. 11; Railway Co. v. Caldwell, 74 Pa. 421; Creed v. Railroad Co., 86 Pa. 139. 27 Am. Rep. 693; Hanson v. Transportation Co., 38 La. Ann. 111, 58 Am. Rep. 162; McGee v. Railway Co., 92 Mo. 208, 4 S. W. 739, 1 Am. St. Rep. 706; Sherman v. Railroad Co., 72 Mo. 65, 37 Am. Rep. 423; Railroad Co. v. Wheeler, 35 Kan. 185, 10 Pac. 461; Railroad Co. v. Derby, 14 How. 468, 14 L. Ed. 502; Railroad Co. v. Muhling, 30 Ill. 9, 81 Am. Dec. 336; Railway Co. v. Doane, 115 Ind. 435, 17 N. E. 913, 1 L. R. A. 158, 7 Am. St. Rep. 451; Whitehead v. Railway Co. (Mo. Sup.) 11 S. W. 751, 6 L. R. A. 409; Jacobus v. Railway Co., 20 Minn. 125 (Gil. 110), 18 Am. Rep. 360; Rosenbaum v. Railroad Co., 38 Minn. 173, 36 N. W. 447, 8 Am. St. Rep. 653; Railroad Co. v. Frazer, 55 Kan. 582, 40 Pac. 923; Railroad Co. v. Yarbrough, 83 Ala. 238, 3 South. 447, 3 Am. St. Rep. 715; Edgerton v. Railroad Co., 39 N. Y. 227. Appellant insists, however, that the testimony shows, without conflict, that plaintiff knew the train did not carry passengers. This is evidently a mistake; for plaintiff testified in express terms that he knew nothing of the rules of the company, or of that train, except as the conductor in charge of it told him, and that he did not know that the conductor had no authority to carry passengers on that train. The instructions given by the trial judge were in harmony with the views herein expressed; and, as there is no error in the record, the judgment is affirmed.

QUINN v. PRUDENTIAL INS. CO. OF AMERICA.

(Supreme Court of Iowa. May 13, 1902.) LIBEL-DEFINITION-ACTIONABLE LANGUAGE -NOTICE OF TERMINATION OF AGENT'S AUTHORITY-LANGUAGE INNOCENT ON ITS FACE-EXTRINSIC FACTS-EVIDENCE-SUFFI

CIENCY-ADMISSIBILITY-JURY QUESTIONS.

1. Libel is the malicious defamation of a person made public by any printing, writing, effigy, or pictorial representation.

2. For a written article to be defamatory, it must, when given its ordinary meaning, impute to the person assailed some act or attribute tending to expose him to public hatred, contempt, or ridicule, or to deprive him of the benefits of public confidence and social intercourse, or, if the language is innocent on its face, it must be shown by extrinsic facts to have been intended to convey, and to have in fact conveyed, to its readers, a defamatory meaning as defined.

3. Code, § 3592, providing that, in actions for libel, it shall not be necessary to state any extrinsic facts to show the application of the defamatory matter to plaintiff, or to show that such matter was defamatory, but shall be suf

ficient to state the defamatory sense in which such matter was published about plaintiff, does not relieve a plaintiff in an action based on language seemingly harmless from the necessity of showing the relations of the parties, or surrounding circumstances which will justify the jury in giving such language a defamatory meaning.

4. The publication complained of was a notice to the public that plaintiff was no longer employed by defendant as an insurance agent, and had not been so employed for a year, and that defendant's policy holders must not pay plaintiff any premiums, but must pay them to defendant's authorized agents. The evidence showed that plaintiff had been employed by defendant and had resigned, but failed to show any reason for ill feeling between the parties, or that plaintiff, after his resignation, ever assumed to collect any of defendant's premiums, or that defendant intended by such notice to charge plaintiff with any such act. Held that, the language itself not being libelous, the evidence was insufficient to sustain a verdict for plaintiff.

5. There being nothing ambiguous or uncertain in the publication complained of, either by itself, or in the light of the evidence, testimony of a witness who had simply read such publication that he understood it to mean that plaintiff had been wrongfully representing himself as defendant's agent was inadmissible.

6. Where, in an action for libel, any doubt exists as to the meaning of the publication complained of, so that extrinsic evidence is needed to determine whether it is actionable, the question is for the jury, under proper instructions.

Appeal from district court, Dubuque county; Fred O'Donnell, Judge.

Appeal from judgment for damages on account of an alleged libel. The facts are more particularly stated in the opinion. Reversed.

Andrew P. Gibbs, for appellant. George A. Barnes, for appellee.

WEAVER, J. The plaintiff's petition is stated in five counts, each based on an alleged libel. In each count the matter alleged by way of colloquium or inducement, the form of the alleged libel, and the innuendoes thereto attached, are stated in the following form, varied only by the name and date of the newspaper in which the publication was made: "That the defendant is a corporation organized under the laws of the state of New Jersey, and has a branch office in the building known as the 'Security Building,' in the city of Dubuque, Iowa, and, at the time of the happening of the grievances hereinafter complained of, one D. Zimmerman was the superintendent of said branch office; that the business of said defendant is that of insuring the lives of individuals. Plaintiff further says that, at and before the time of the happening of the grievances hereinafter complained of, he was also engaged in the insurance business, and occupied rooms in the same building as defendant. Plaintiff further says that he has always sustained a good character, and been reputed and accepted in the community to be a person of good name, fame, and credit, and never suspected of having been guilty of fraud, or the

crime of obtaining money under false pretenses, yet said defendant, well knowing the premises, and maliciously intending to injure the said plaintiff, and to expose him to public hatred, contempt, and ridicule, and to deprive him of the benefits of public confidence, and to bring him into public scandal and disgrace among his neighbors, did on the 9th day of November, 1898, falsely, wickedly, and maliciously publish and cause to be published of and concerning the said plaintiff, in the Dubuque Daily Telegraph, a newspaper of general circulation in the city of Dubuque, Iowa, a certain false, scandalous, and malicious libel, as follows: 'Notice. I herewith inform the public that Pat Quinn, Jr.' (meaning plaintiff), 'formerly an agent for me, is no longer employed in any capacity by the Prudential Insurance Co. Nor has he been for the past year. Our policy holders are hereby notified not to pay him any premiums' (meaning thereby that this plaintiff had been collecting premiums from the pol icy holders of defendant since he ceased to be in its employ), 'but to pay to my authorized agents, or at my office. D. Zimmerman, Supt., Security Building."" This is followed in each instance by other allegations of injury alleged to have been sustained by reason of such libelous publication. By an amendment filed at a later date it is alleged that Zimmerman, in publishing the notice complained of, acted with authority from the defendant, and that, after the publication, plaintiff notified defendant of the same, and that defendant impliedly ratified and approved Zimmerman's act. The defendant demurred to each count of the petition on the ground that the language of the publication complained of is not libelous. This demurrer being overruled, the defendant excepted, but answered and went to trial, which resulted in a verdict for plaintiff for $500. Many errors are assigned, but we do not find it necessary to consider them all.

1. Is the verdict supported by sufficient evidence? Briefly defined, libel is the malicious defamation of a person, made public by any printing, writing, effigy, or pictorial representation. For a written or printed article to be defamatory, the language of the document must be such that, when given its natural and ordinary meaning, it imputes to the person thus assailed some act or attribute or character which tends to expose him to public hatred, contempt, or ridicule, or to deprive him of the benefits of public confidence and social intercourse; or if the language, upon its face, does not bear such injurious significance, then there must be shown extrinsic facts and circumstances by which it is made to appear that the writing, though innocent and unobjectionable in form, is intended to convey and does convey to its readers a defamatory meaning, as above defined. The manner of pleading a charge of slander or libel has been much simplified by our Code (section 3592), which renders it unnec

essary to set out any extrinsic facts for the purpose of showing the application of the defamatory matter to the plaintiff, and makes it sufficient to state the defamatory sense in which the language was used, and that the same was spoken or published concerning the plaintiff. This, in effect, renders unnecessary any statement in the pleadings of the matter formerly called the "inducement" or "colloquium," but preserves, in effect, the innuendo, which explains the words spoken or written, and annexes them to their proper meaning. Bloss v. Tobey, 2 Pick. 320; Bathrick v. Tribune Co., 50 Mich. 629, 16 N. W. 172, 45 Am. Rep. 63. Where the language is of itself plainly defamatory, no innuendo is required, for the words speak for themselves. It is properly employed only where the alleged slanderous words are ambiguous or of doubtful signification, or where, by reason of extrinsic facts and circumstances, the words express a covert or unusual meaning. Over v. Schiffling, 102 Ind. 191, 26 N. E. 91; Richmond v. Post, 69 Minn. 457, 72 N. W. 704; Com. v. Morgan, 107 Mass. 199; Mason v. Mason, 4 N. H. 113; Belknap v. Ball, 83 Mich. 583, 47 N. W. 674, 11 L. R. A. 72, 21 Am. St. Rep. 622; Kinyon v. Palmer, 18 Iowa, 377; Hess v. Fockler, 25 Iowa, 9. On the other hand, if the words are not in any proper sense ambiguous or doubtful, and, in their ordinary and proper signification, convey no defamatory meaning, it is a rule of nearly universal acceptance that such meaning can neither be enlarged nor restricted by innuendo. McLaughlin v. Fisher, 136 III. 111, 24 N. E. 60; Lewis v. Soule, 3 Mich. 514; Camp v. Martin, 23 Conn. 92; McFadin v. David, 78 Ind. 445, 41 Am. Rep. 587; Frank v. Dunning, 38 Wis. 270; Simons v. Burnham, 102 Mich. 189, 60 N. W. 476; Shaffer v. Kintzer, 2 Am. Dec. 488; Pelton v. Ward, 3 Caines, 73, 2 Am. Dec. 251; Van Vechten v. Hopkins, 5 Johns. 211, 4 Am. Dec. 339. Under this rule, and under the law as recognized and followed in every other state to which our attention has been called, the language of the publication of which complaint is here made is not libelous, nor can it be made libelous by innuendo. Whether our statute already cited has the effect to modify this principle, or restrict its application in this state, it is unnecessary for us now to decide. It is plain, however, that, if the statute exempts the plaintiff from the necessity of pleading the specific facts and circumstances by which language otherwise harmless is shown to be defamatory, it does not exempt him from proving them upon the trial. For instance, it would be manifestly improper for the plaintiff to allege and prove the publication of an article which, when fairly construed, has no defamatory meaning, and then make his case by putting witnesses on the stand to swear that they understood it in a defamatory sense. He must in such case, it seems to us, show extrinsic facts or circumstances in the past or present relations