negligence, and not upon willfulness, as the ground of action," and that it was therefore unnecessary to express an opinion whether, upon the facts disclosed, the action could be maintained for a willful injury. Apparently for the purpose of raising that issue the declaration was amended by inserting the word "willful" to qualify the alleged negligence, so that as amended the charge is that the defendant's servants, with gross, reckless, wanton, and willful negligence, failed to reduce the speed of the engine, and to give any signal or warning to the deceased and his child of the approach of the train by which they were run down. Manifestly, the amendment did not affect the essential character of the charge. It is one thing to allege the willful or intentional infliction of an injury, and quite another to allege the willful doing or omitting to do something which caused, or contributed to the causing of, the injury. The defendant's servants, according to the amended averment, willfully (that is to say, knowingly and purposely) failed to reduce the speed, and to give to the deceased any signal or warning of the approach of the train; but it is not alleged or implied that there was in the mind of the engineer or fireman any intention to inflict injury, or any perception that the deceased and his son were not properly regardful of the situation, and would avoid harm, as they might easily have done, by stepping aside. "Willful or intentional injury," as we said before, "implies positive and aggressive conduct, and not the mere negligent omission of duty"; and the willful omission to do something which duty requires, it is equally clear, does not of itself imply an intention to injure, and such intention should not be imputed unless directly proven, or, under the circumstances, that result must have been perceived to be probable. In other words, as a matter of pleading, it is the same whether an act or an omission to act be alleged to have been negligent or intentional. If it be sought to charge a willful injury, the intention to inflict it must be directly and explicitly alleged. As a matter of proof, it may be enough to show negligence of such gross, wanton, or willful character as to justify the inference of an intention or willingness to injure. It is easy to suppose circumstances or conditions which, if they did not in the particular case justify an omission to retard the speed of a train, or to sound the whistle sooner than it was sounded, would exclude all suspicion of bad faith. The engineer in this instance might have seen the deceased upon the track 2,000 feet away, instead of 700 feet, as he testified; and, disregarding his testimony, the jury may have inferred that he ought to have seen, and did sooner see, the deceased upon the track. But, that conceded, there is no evidence whatever to justify an inference that he entertained any purpose or had any thought of harming the deceased or his boy. The affirmative testimony of a number of witnesses is that the alarm whistle was sounded when the engine was near 700 feet from the point of collision, and against that is the testimony of a single witness that she heard neither bell nor whistle. The affirmative testimony, it is clear, ought not to be considered as overborne by the negative; but, whether the truth in this respect was one way or the other, the case was, at most, one of negligence only, against one whose position as a trespasser made a right of action on that ground alone im

possible. That he was a trespasser upon the track of the defendant's road is conceded in the brief for the defendant in error. The trial proceeded throughout on that theory, and no question, it is admitted, was made upon the point; but it is insisted that the defendant's servants, notwithstanding the negligence of the deceased, could, after discovering the peril, have averted it by timely warning, or by slackening the speed of the train. On this point reference is made to Cahill v. Railway Co., 46 U. S. App. 85, 20 C. C. A. 184, 74 Fed. 285; Railroad Co. v. Morlay, 58 U. S. App. 526, 30 C. C. A. 6, 86 Fed. 240; Anderson v. Hopkins, 63 U. S. App. 533, 33 C. C. A. 346, 91 Fed. 77, and other cases, as overthrowing the doctrine that there can be no recovery for an injury to a person wrongfully upon a railroad track unless the injury was willful or intentional. The Cahill Case is plainly distinguishable; and the doctrine of the Anderson and Morlay Cases is manifestly not applicable here, because in this case the deceased and his son were not perceived by the engineer to be in a position of peril from which they were not likely to escape by their own exertions.

The only tangible proof of negligence which went to the jury was that the train by which the deceased was killed was running at the rate of fifty to sixty miles an hour, in violation of an ordinance of the town which forbade a speed exceeding ten miles an hour. The proof of that ordinance should have been withdrawn from the jury. It consisted of a copy of the ordinance, with a certificate of the town clerk attached, verifying the ordinance, and certifying that it was passed on July 7, 1877, and was duly published. This certificate was attached to the ordinance as found in a printed book of ordinances, which contained copies of other ordinances of the town of Venice; and it is claimed, on the statement of a witness, that a copy of that pamphlet was kept or preserved by the town board. The book, however, did not purport to be published by authority of the board of trustees or city council, and therefore was not admissible, under the statute, as evidence of the passage and publication of the ordinances found in it. Lindsay v. City of Chicago, 115 Ill. 120, 3 N. E. 443. And while, as shown by the opinion in that case, the certified copy of the ordinance was competent and prima facie evidence of the passage and publication of the ordinance, yet when it was shown, as it was, that in the original record there was no notation at the foot of the ordinance, of the fact or date of publication, upon which the clerk could have based his certificate, and further was shown by the testimony of the clerk, who made the certificate, that he knew nothing of the fact, and did not intend to certify to the publication of the ordinance, but signed the certificate as prepared and presented to him by counsel for the defendant in error, the force of the certificate in that respect was destroyed, and there remained no adequate proof of the publication of the ordinance. But, if the publication of the ordinance were conceded, its violation by the defendant was, at most, evidence of negligence only, and afforded no ground for recovery for injury to a trespasser. The train by which the intestate was killed was running on time, and at its usual speed, as for two years or more it had been run, and as, to the knowledge of the de

ceased, it had been run for six weeks or more before the date of the accident. He probably had no knowledge of the ordinance, and certainly neither counted, nor had the right to count, upon the train being run in accordance with its requirement. The judgment below is reversed, and the cause remanded, with directions to grant a new trial.

LANGAN v. ÆTNA INS. CO. SAME v. SPRING GARDEN INS. CO. SAME V. GERMAN ALLIANCE INS. CO. SAME v. PALATINE INS. CO. (Circuit Court, N. D. Iowa, Cedar Rapids Division. January 20, 1900.) 1. FIRE INSURANCE-ELECTION TO REBUILD-PLEADING.

Where, there being a controversy between insured and the insurer whether the latter had lost its right to elect to rebuild, the former brought action for the money indemnity, and the insurer set up its election, and alleged its willingness to rebuild, and the court decided that it had not lost such right, and thereupon insured accepted the offer, the insurer cannot rescind its position assumed in such pleading, and deny all liability on its contract of insurance, because, pending the controversy, the cost of. the building has increased.

2. SAME-ACTION FOR MONEY INDEMNITY.

Though an insurer elects to rebuild, it having failed to do so insured may sue on the original contract for the money indemnity.

Actions at law on four policies of insurance issued by the abovenamed companies on same building. Jury waived, and cases heard together by the court.

R. C. Langan and Walsh Bros., for plaintiff.

Hayes & Schuyler and George Steere, for defendants.

SHIRAS, District Judge. The facts necessary to an understanding of the legal questions involved in these cases, briefly stated, are as follows:

The plaintiff, Daniel Langan, being the owner of a brick dwelling house situated in the city of Clinton, Iowa, obtained insurance against loss by fire in the defendant companies, the policy issued by the Etna Company being dated October 24, 1895; that in the Spring Garden Company being dated December 31, 1897; that in the German Alliance being dated January 1, 1898; and that in the Palatine Company on the 8th day of January 1898,-each of said policies being for the sum of $5,000. On the 23d day of January, 1898, at which time the four policies above named were in full force, a fire occurred, greatly injuring the building insured, and due notice thereof was given to the four insurance companies carrying risks upon the premises. Not being able to agree upon the amount of the loss, the parties in interest, as required by the terms of the policies, entered into a written agreement for the appointment of appraisers to ascertain the total loss, and award the amount each company would be liable for under its policy. The appraisers thus appointed fixed the total loss to the insured at the sum of $20,095, and awarded the amount for which each of the companies would be liable at the sum of $5,000; or, in other words, as the total loss exceeded in amount the aggregate of the policies, the sum chargeable against each company would be the full amount called for by the policy issued by it. The award of the appraisers was dated June 30, 1898, and on the 27th day of July the four insurance companies united in a written notice to the insured that they elected to repair and rebuild the destroyed dwelling. To this notice, and under date of August 4, 1898, the insured responded, in writing, denying the right of the companies to elect to

repair or rebuild the premises, claiming that the right secured by the policies to the companies to repair or rebuild could not be availed of after the lapse of 30 days from the reception of the notice of the fire; that by the act of the companies in agreeing to, and participating in, the appraisal of the damage to the property, the companies had elected to treat the policies as money contracts, and they could not afterwards change this election, and undertake to rebuild the premises; and the insured further notified the companies that they must make prompt payment in money of the sums awarded against them, or suits for recovery of the amounts would be brought against them. Thus the parties were at issue as to the construction of the terms of the policies, and thereupon, on or about the 30th day of December, 1898, these actions were brought against the several named insurance companies, in the district court of Clinton county, Iowa, from which court, on petition of the defendant in each case, they were removed into this court in the Cedar Rapids division. The defendant company in each case, in answer to the petition of plaintiff, set forth various matters with respect to the action of the appraisers upon which it was claimed that the appraisal of the damages was not valid and binding upon the company, and then averred that, under the terms of the policy, the company had the right to elect to repair and rebuild the premises; that it had exercised this right by giving written notice of the election to rebuild; and that the plaintiff had refused to permit the rebuilding of the injured property, and therefore could not maintain the action. In reply to the answer, the plaintiff made counter charges of bad faith on part of the appraiser selected by the company, averred the validity of the appraisal, and denied the right of the company to repair or rebuild, under the facts of the case. The defendant filed a motion to strike out parts of the reply, and at the September term, 1899, of the court at Cedar Rapids, the cases having been noted for trial at that term, the motion was argued and submitted to the court, it being claimed on behalf of the defendant that all matter averred in the reply touching the appraisal, and the action of the parties and the appraisers in connection therewith, was wholly immaterial, for the reason that the company, by the notice given under date of July 27, 1898, had secured the right to perform its contract by restoring the burned premises; that, by giving the notice, all objection to the appraisal had been waived, and the rights of the parties were to be determined by the construction of the clause in the policy which gave the right to repair or rebuild. Thereupon the court held that the ruling to be made on the motion to strike involved the more important question of the construction of the clause in the policy giving the election to the company to repair or rebuild the premises, and that it would be advisable to fully present this question to the court, and obtain a ruling thereon, before going to the jury on the questions involved; and thereupon counsel were heard upon the question, and, after consideration thereof, the court ruled that, under the language of the policies sued on, the companies had the right to elect to rebuild the premises, by giving notice of such election within 30 days after reception of the proofs of loss, and that this 30-day period did not begin to run until the proofs of loss had been completed by the appraisal of the amount of the damages,-the opinion of the court at length being found in 96 Fed. 705. It will be noticed that in the opinion given the court, in view of the doubt existing upon the proper construction of the terms of the policy, suggested that the question should be settled by an immediate appeal to the circuit court of appeals; but, after consultation, the counsel for plaintiff announced in open court that they would abide by the view taken by this court, and that all objections to the company rebuilding the premises were withdrawn. Thereupon counsel for the defendant companies asked for time within which to consult with their clients as to their further action in the premises, and to that end it was finally agreed between the parties, with the approval of the court, that the hearing should be postponed until the December term of the court at Dubuque. At that term of the court the defendants filed amended and substituted answers, in which are set forth the clause of the policies providing for the repairing and rebuilding the premises; the giving of the notice that the companies elected to rebuild; the written refusal of the . plaintiff to permit the premises to be rebuilt; and it is then averred that, during the time the plaintiff refused to permit the rebuilding of the premises, the

cost of the labor and material necessary to restore the premises had so increased that in September, 1899, and ever since, the expense to the companies of rebuilding would be about 33 per cent. greater than it would have been during the summer or fall of 1898. By consent of the parties, a jury trial was waived, and the cases were submitted to the court upon the law and the facts, and a finding of facts has been made in writing to the effect of the recitals herein set forth, and thus are presented the questions of law arising in the

cases.

The facts found, under the evidence and the pleadings of the defendant company in each case, show that when the fire occurred, in January, 1898, the plaintiff held a valid policy of insurance in each company for the sum of $5,000; that due notice of the happening of the fire was given to the companies; that, in order to ascertain the amount of the total loss caused by the fire, the parties, by mutual agreement, caused an appraisement to be made, and this appraisement fixed the total loss at $20,095, and the amount chargeable against such company at the sum of $5,000; that the completed proofs of loss, including the appraisement, were furnished to each company about June 30, 1898. These facts, which are not in dispute, show that, upon the completion of the proofs of loss, the plaintiff had established a valid right to indemnity from each one of the defendant companies, according to the terms of the several policies issued by them, respectively. It was then open to each of the companies to perform its contract of indemnity in one of two methods. It could pay the amount chargeable against it in cash, or it could restore the injured premises by repairing or rebuilding the same.

By the terms of the policy, the company had secured to itself a period of 30 days, after service of proofs of loss, within which it could determine upon the method of performance on its part. During this period of 30 days it had the right to elect whether it would undertake to perform its contract of indemnity by payment in money or by repairing or rebuilding the premises. If it elected to perform by payment in money, then the payment must be made in 60 days from service of the proofs of loss. If it elected to rebuild or repair, then it would be bound so to do within a reasonable time. The exercise on part of the company of the right of election between the two methods of furnishing indemnity to the insured is not, in any proper sense, a performance of the contract to furnish indemnity. To discharge the obligation assumed by the company, it must furnish the indemnity in one of the two agreed methods. The giving of the written notice of the election to rebuild the premises only secured to the companies the privilege of furnishing indemnity in that mode, but the making the election, and giving notice thereof to the insured, was not a performance of the contract of indemnity. To complete performance, the company must follow up the notice of its election by actually rebuilding the premises. If it does not do so, then it is bound to furnish the indemnity to which the insured is entitled by paying the amount of loss in money..

But it is contended on behalf of the defendants that the failure to rebuild is not chargeable to the companies, but has resulted from the action of the plaintiff in denying the right of rebuilding. The