ments, without permitting the land to be taken for a public park, the plaintiffs would have sustained the same injury as that of which they now complain. The defendant would have been deprived of his right to the use of this land as a burial place without receiving compensation therefor. By the destruction of the condition of the deed the plaintiffs would have been deprived of their interest, a possibility of reverter. while the title to the property would have remained absolute in the grantee. If the property of the plaintiffs has been taken from them by the State, it has been taken by the act prohibiting the further use of this land as a place of burial. The provision permitting the city to take the land for public purposes after it had ceased to be a burial place, and could no longer be used for that purpose, did not affect the plaintiffs' rights. Forbidding the use of this property in a manner hurtful to the health and comfort of the community is not a taking of the plaintiffs' property for public use, within the meaning of the Constitution. It was a proper and valid exercise of the police power vested in the State, and if, as a necessary result of the act of the Legislature removing a public nuisance, the plaintiffs have been deprived of the right in question, they are not thereby entitled to a portion of the money in the defendant's hands. Raymond v. Fish, 51 Conn. 80; Dunham v. City of New Britain, 55 id. 378; State v. Wordin, 56 id. 216; Woodruff v. Railroad Co., 59 id. 63. The Superior Court committed no error in sustaining the defendant's demurrer to the complaint. The other judges concurred.

A complaint in an action for libel alleged that defendant, who with two others constituted a town board of school trustees, before whom plaintiff's application for employment as a teacher was pending, filed his written protest before such board, objecting to plaintiff's employment in "false, malicious and libellous language," viz.: "For claiming wages not due her, and making statements which, in my opinion, she knew to be false, in order to obtain them." Held, that the complaint was demurrable because it did not allege that the libellous words were uttered maliciously and without probable cause, since the word "malicious,' as used in the complaint, applied to the matter published, and not to the act of publishing.

W. R. Harrison, David E. Beem and Willis Hickam, for appellant.

Fowler & Pickens, for appellee.

DAVIS, J. This action was instituted by appellee against appellant upon a charge of libel and slander. The complaint is in three paragraphs. The first two are based upon charges of libel; the third upon a charge of slander. To the third paragraph the court below sustained a demurrer, and the cause was tried upon the first and second paragraphs of the amended complaint charging libel. The trial resulted in verdict and judgment in favor of appellee for $2,000.

The first question which is presented for our consideration arises on the ruling of the Circuit Court in overruling the demurrer of appellant to the first and second paragraphs of the complaint. Each of these paragraphs charges that prior to the commission of the grievances of which complaint is made, the appellee enjoyed a good name and reputation among her neighbors and all who knew her, and had never been suspected of dishonesty or of untruthfulness, nor had her moral character ever been called in question or sus

pected, and that for several years prior to June 21, 1889, appellee had been and was a school teacher, teaching school in the counties of Monroe and Owen, and in the graded schools of town of Gosport, Owen county, Indiana. That at said date she was applicant for a position as teacher in the graded school of said town of Gosport. That said James R. Henry, appellant herein, George T. Lee and Asahel Wampler constituted the board of school trustees of said town before whom her application for employment as teacher was pending. That when her said application came on to be heard and considered, said appellant filed his written protest before said board, objecting to and protesting against the employment of appellee by said board to teach in said schools, and in said protest uttered and published of and concerning appellee the following false, malicious and libellous language, as set out in the first paragraph of the complaint, to-wit: "Her (plaintiff meaning) character and conduct are not such as would give a right influence over her pupils;" and "for claiming wages not due her, and making statements which, in my opinion, she knew to be false, in order to obtain them;" and, as set out in the second paragraph of the complaint, the alleged libellous language is: "I, James R. Henry, submit the following as my protest against the employment of Mary R. Moberly as a teacher in the Gosport school: For claiming wages not due her, and making statements which, in my opinion, she knew to be false, in order to obtain them." After setting out by innuendo in proper connection to each set of words pleaded in the respective paragraph, each paragraph concludes by stating that she was employed by said board to teach in said school, and that, by reason of said libel, the license of appellee as a school teacher was revoked by the State superintendent of public instruction, and thereby she was prevented and prohibited from practicing her profession as a school teacher for one year, at which profession she could have earned the sum of $3 per day; and that by reason of said libel she has been injured in her good name and reputation-all to her damage in the sum of $1,000. No prayer for judgment is contained in either of these paragraphs. The sole and only publication of the libel alleged in the complaint consists of the protest made by appellant to his associates on the board of school trustees on the occasion when the question as to whether appellee should be employed by them as a teacher in the public schools of the town of Gosport was under consideration. The written statements which are made the basis of the action relate to matters which it was the province of the trustees to investigate and determine. There is no averment in the complaint that either of the said defamatory expressions was ever uttered or published by appellant, or any one else, on any other occasion. The reading of the complaint discloses that the allegations relative to the revocation of the license and the loss of employment were pleaded as matters going to the question of special damages, on account of the uttering of the libel by appellant to his associates in office, and did not have reference to any subsequent or different publication or utterance of the libel. It is not alleged in either paragraph of the complaint that the libel which constitutes the basis of the action was uttered or published by appellant maliciously or without probable cause. The only allegation bearing on this subject is that appellant, "in said protest, uttered and published of and concerning the plaintiff the following false, malicious and libellous language." There is no other averment in reference to the motives or intention of appellant. His good faith is not questioned in the complaint, except to such extent as may be predicated on the charge that the language was false and malicious. It is well understood that for the writing of a libel under circumstances of absolute privilege

means that they are unprivileged, not employed under circumstances which excuse them." Odger Sland. & L. (2d Eng. ed.) 270; Townsh. Sland. & L. (4th ed.) 66. The use of the word in that sense is overcome by the statements of the facts and circumstances, which show there was an excuse in this: that the occasion for the uttering and publishing of the words in controversy was privileged. Ordinarily, all that the plaintiff in an action for libel is required to do is to allege and prove the publication of the libellous language by the defendant concerning him. If the defendant desires to show in his defense that the publication was either justified or privileged, he has the right to do so; but in this case appellee, as to the privilege, has given the appellant the benefit thereof in her complaint. It is an elementary rule of pleading that the defendant is not required to interpose a defense which appears on the face of the complaint. When facts constituting a defense are averred in the complaint, it is then incumbent on the pleader to allege the further facts which avoid the defense so stated. Without any averment of malice on the part of the appellant, and in the absence of facts which disclose the privilege, the complaint would undoubtedly have stated a good cause of action. It would not then have been incumbent on appellee, on the trial, primarily to prove express malice or malice in fact. If in his defense appellant had shown facts which, in the opinion of the court, disclosed that the libel was uttered and published on a privileged occasion, then the onus, under the authorities cited supra, would have devolved on appellee to prove actual malice on part of appellant.

We have carefully examined all of the authorities to which our attention has been called by counsel for the respective parties, and we have not found any case which is decisive of the question before us. The case is one of first impression, so far as the question of pleading is concerned. Inasmuch as appellee in her complaint has given appellant the benefit of the fact that the question was one of privilege, the vital question for our present consideration is whether this imposed on her the duty of overcoming such fact by alleging actual or express malice on the part of appellant. In her complaint appellee avers that appellant published the "malicious" language quoted. This expression, without explanation, would, as we have before observed, be equivalent to saying that he so published the words without sufficient excuse. In the same connection however, in the complaint, the facts are stated which disclose a legal excuse, unless he was prompted by express or actual malice. Inasmuch as she has stated these facts, it appears to us, on reason and analogy, that it was incumbent on her to allege that he acted maliciously. If he was in fact prompted by malicious motives, instead of a desire to discharge the duties of his office, in publishing the defamatory matter recited in his protest, he is, under the authorities, undoubtedly liable; but when appellee concedes, as she does in her complaint, the privilege under which appellant was acting, on the only occasion of which she complains, it is then incumbent on her to aver facts sufficient to negative the rights which accrue to him on account of such privilege. Whether the occasion was privileged is for the court, and on the facts pleaded the court cannot do otherwise than say that the occasion in question was one of qualified privilege. In such cases, where the privilege has been shown on the trial, the courts have invariably in numerous cases, some of which we have cited, and wherein there was no evidence tending to prove that the defendant acted maliciously or without probable cause, ordered a nonsuit, or instructed the jury to return a verdict for the defendant. Therefore, when the complaint discloses that the occasion was privileged, the allegation that the language was false and malicious is not sufficient, but in such case the complaint must further show that

the defendant acted maliciously in publishing it. In this case, in view of the averments contained in the complaint, to which reference has been made, the appellee should have further alleged either, in express terms, that appellant acted maliciously, or she should have averred facts which would have been the equivalent of such allegations.

Counsel for appellant also urge that "the complaint is also fatally defective for the other reason that it is not shown in either paragraph that the publication complained of was not made upon probable cause. This is as essential as that it must have been maliciously uttered, for the very facts pleaded created the presumption that it was made upon probable cause. A publication only becomes privileged in law when the facts and circumstances surrounding its utterance give rise to the presumption that it was made without malice and upon probable cause, or when it should be held so as a matter of public policy. The law can only presume that it was without malice upon the hypothesis that it was made upon probable cause." There is force in the argument, as applied to privileged communications. Some of the authorities we have cited use the language "maliciously and without probable cause." These cases indicate that it is incumbent on the plaintiff, in an action for libel, arising out of a publication made on a privileged occasion, to establish that the defendant acted both with actual malice and without probable cause. Actual or express malice is however, in the cases we have examined, generally made the controlling question. When there has been no malice in this class of cases the courts have held that there was no liability. It has been urged that it is only where the defendant acts in good faith, in the discharge of a sense of duty, on au occasion which would justify it, in the belief that his statement is true, which belief must be predicated on reasonable grounds, that he can invoke the privilege as a complete defense; and therefore it is insisted, when the privilege is shown, the burden is cast on the plaintiff to negative the presumption which the privilege raises in behalf of the defendant. In this connection it is proper to say there may be cases in which, notwithstanding actual malice, there is probable cause for the publication by one person of what proves to be false and defamatory words concerning another. If the last suggestion is correct, actual malice would not necessarily, in all such cases, be the controlling question. The query naturally therefore arises whether, in order to constitute actionable libel on account of a publication which is shown on the face of the complaint to have been made only on a privileged occasion, it requires, among other necessary averments, (1) that the publication was false and malicious; (2) that it was prompted by actual malice on the part of the author; (3) that it was made without probable cause. What we have said in reference to the question of probable cause has been in the nature of suggestions, as the decision thereof is not necessary to the determination of this appeal. Counsel for appellee have pressed upon our consideration many cases decided by our own Supreme Court in which the averments are similar to those relied on in this case. The complaints in those cases were sustained, although there was no allegation therein of actual or express malice. The decisions in the cases referred to are correct, but they do not apply to this case. What we have heretofore said fully disposes of this contention. It did not appear in any of those cases, so far as we have been able to discover, on the face of the complaint, that the libellous language was published on a privileged occasion. Our conclusion is that for the reasons stated, the court below erred in overruling the demurrer to each paragraph of the complaint. Judgment reversed, with instructions to sustain demurrer to complaint, with leave to amend, and for further proceedings not inconsistent with this opinion.

INSURANCE - FIRE - EXPLOSION.

ILLINOIS SUPREME COURT, JANUARY 19, 1893. HEUER V. NORTHWESTERN NATIONAL INSURANCE CO.* Where an insurance policy provides that the insurer shall not be liable for loss caused by "explosion of any kind, unless fire ensues, and then for the loss or damage by fire only," no liability exists for damage done by an explosion produced by the ignition of a match in a room filled with illuminating gas.

Rubens & Mott, for appellant.

Tatham & Webster, for appellee.

MAGRUDER, J. This is an action of assumpsit, begun on March 5, 1890, in the Superior Court of Cook county, by the appellant against the appellee company, upon an insurance policy issued by said company on July 8, 1889, insuring a stock of jewelry and fixtures belonging to the plaintiff, and contained in the threestory brick building known as "No. 426 Milwaukee avenue," in Chicago. The plea was non-assumpsit. By agreement a jury was waived, and the cause was submitted to the court for trial, without a jury, upon an agreed state of facts. The court refused to hold, as law applicable to the case, four propositions submitted by the plaintiff. The finding and judgment were in favor of the defendant, and the judgment of the trial court has been affirmed by the Appellate Court, whence the case is brought here by appeal.

The policy is for insurance against loss or damage by fire, and contains the following provision: “This company shall not be liable, by virtue of this policy, * * *for any loss or damage by fire caused by means of an earthquake; nor of an invasion, insurrection, riot, civil commotion, or military or usurped *** power; nor for any loss caused by the explosion of gunpowder nor any explosive substance, nor by lightning or explosion of any kind, unless fire ensues, and then for the loss or damage by fire only." By the agreed statement of facts it is stipulated that on September 13, 1889, at 7 o'clock in the morning, an explosion took place in the basement of said building, by which the damage to the insured property occurred; that the explosion was produced by the lighting of a match in the basement, which was then filled with illuminating gas; "that the damage was a damage by the explosion produced in this manner, but was not a damage produced by the burning of the property insured; that the illuminating gas was accidentally ignited by the flame from said lighted match, and burned, and instantaneously produced this explosion; that the ignition of the match and gas in the basement was immediately followed by a loud report and explosion; that the explosion, so caused, caused the falling of the floor of the store, and the damage to the goods; that there was no damage to the goods by the actual burning of them.

The question presented by the refusal of plaintiff's propositions is whether the loss sustained, under the circumstances thus detailed, was a loss by fire within the meaning of the policy. It is conceded that no fire ensued from the explosion, and that the goods were not burned by fire, but were damaged by the falling of the floor, which was produced by the explosion. If therefore the loss was in any sense the result of fire, such fire could only have been the flame of the match, which came in contact with the illuminating gas. the loss to be attributed to the explosion, or to the lighting of the match, which preceded the explosion? If it is attributable to the explosion, the loss is not covered by the policy, and the company cannot be held liable. The exemption clause provided that "this company shall not be liable for any loss caused 33 N. E. Rep. 411.

* * #

Is

by * * * explosion of any kind, unless fire ensues." The use of the expression, "explosion of any kind," contemplates the existence of more than one kind of explosion. Without undertaking to make an accurate classification, we deem it sufficient to say that one kind of explosion is that which is produced by the "ignition and combustion of the agent of explosion," as where a lighted match is applied to a keg of gunpowder, and another kind of explosion is that which does not involve "iguition and combustion of the agent of explosion," as where steam, or any other substance, acts by expansion, without combustion. Scripture v. Insurance Co., 10 Cush. 356. The exemption clause is broad enough to embrace both kinds of explosion. As the present case, where it appears that a lighted match was applied to the illuminating gas confined in the basement of a building, furnished an instance of the first kind of explosion above specified, it manifestly comes within the terms of the exemption.

66

It is a well-settled principle in the law of insurance that the proximate, and not the remote, cause of the loss must be regarded in order to ascertain whether the loss is covered by the policy or not. • In jure non remota causa, sed proxima spectatur." Lord Bacon says: "It were infinite for the law to judge the causes of causes, and their impulsions one of another. Therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree." Everett v. London Assurance, 19 C. B. (N. S.) 126. Where a lighted match is applied to a keg of gunpowder, or to illuminating gas confined in a room, and an explosion thereby occurs which causes damage, but is not followed by combustion, the explosion is the proximate cause of the injury, and the lighted match is only the remote cause. In such case, fire does not reach the property injured, but the concussion resulting from the explosion damages it. Here the goods insured were not brought in contact with the fire produced by the lighting of the match, but with the explosive power of a fireless concussion, which caused the floor of the store in which they were situated to fall, and thereby occasioned the injury.

In Everett v. London Assurance, 19 C. B. (N. S.) 126, a powder magazine, more than half a mile distant from the house insured, ignited and exploded, shattering the windows and window frames, and damaging the structure generally by the atmospheric concussion caused by the explosion, but not burning, heating or scorching any part of the premises; and it was there held that "it would be going into the causes of causes to say that this was an injury caused by fire to the property insured;" that the expression, "loss or damage occasioned by fire," was to be construed as ordinary people would construe it; and that those words

mean loss or damage either by ignition of the article consumed or by ignition of a part of the premises where the article is." In Caballero v. Insurance Co... 15 La. Ann. 217, where a fire broke out in a building about two hundred feet distant, causing the explosion of gunpowder, which, by the concussion of the air, injured the building insured against fire, it was held that such a loss could not have been within the reasonable intendment of the parties, and was not covered by the policy.

In Briggs v. Insurance Co., 53 N. Y. 446, where the policy insured certain machinery in a mill against loss by fire, and contained a provision like the one in the case at bar, exempting the company from liability "for loss caused by * * * explosions of any kind unless fire ensues, and then for the loss or damage by fire only." vapors from the works in the mill where the business of rectifying spirits was carried on came in contact with a burning lamp in the mill, left there by persons repairing the machinery, causing an instantaneous explosion, which blew off the roof of the build