text:
    Ben Franklin Fire Insurance Company versus Flynn & Hamm.
    1. A clause in a policy of fire insurance requiring the insured in case of loss to furnish proofs thereof to the company as soon as possible' after the fire will be construed to mean that the insured must furnish said proofs within a reasonable time after the fire.
    2. Where in such case the insured furnishes said proofs within thirty days from the date of the fire, the delay will not be hold so unreasonable as to preclude the submission to the jury of the question whether of not the terms of the policy have been complied with.
    3. Where a fire insurance company propose to defend themselves from liability for a loss occurring under a policy issued by them on the ground of the breach of a collateral condition contained in the policy, said breach must be promptly taken advantage of — nothing else must be alleged as a reason for non-payment, and especially must not the insured be led astray by propositions of settlement on grounds other than that of the alleged breach of the condition.
    4. It is the duty of a fire insurance company, where proofs of loss are furnished to them in due time, to notify the insured of any formal defects which may be discovered therein and to have them corrected.
    5. A policy of fire insurance contained a clause requiring the insured to furnish, in case of loss, a statement to the company of all other insurances on the property, together with copies of the written parts of the policies, which statement was to be sworn to before the justice of the peace living nearest to the place where the property was situate. A loss having occurred under the policy, the insured forwarded to the company, together with proofs of loss, a statement containing the names of Ihe various other companies in which the property was insured, the numbers of the policies, the amount of each one, and an averment that the wricten parts of said policies were substantially the same as that of the company’s own policy. Said statement was sworn to before a notary living where insured resided, some five or six miles from the place of loss, and not before the justice of the peace living nearest to said place. A meeting of agents of the various companies who had issued policies on the property, was afterward convened, by whom the loss was adjusted. A copy of said adjustment was afterwards,,at the request of an agent of the particular company in question, furnished to him. The insured afterwards drew a draft on said company for the amount of his policy, which, however, was not accepted, the secretary stating that the loss was not yet due, and that there was some hitch in the adjustment. The insured afterwards drew a second similar draft, acceptance of which was for the same reason refused, the secretary offering, however, to compromise the claim on the same basis as that for which several other companies had compromised. Insured accepted this proposition, and subsequently blank proofs of loss were furnished to him with a request that he would send corrected proofs the same as those furnished to other companies. He subsequently demanded payment of the amount for which he had compromised, but was refused on the ground that his statement of insurances had not been such as was required by the terms of the policy. In an action subsequently brought by him against the company to recover the amount of the policy, Held, that there was sufficient evidence to warrant the court in submitting to the jury the question whether the company defendant had not by its actions waived a literal compliance with the terms of the policy.
    6. Semble, that the insured had substantially complied with the requirements of the policy in regard to the furnishing of a statement of other insurances, and that the court would have so held, had they been called upon so to do.
    7. While it is true, according to the strict rules of pleading, that if an allegation be made in the declaration, which though immaterial in the pleadings may be material on the trial, it must be proved as laid, yet this principle will not in our practice be very strictly applied.
    8. Although, therefore, the declaration in the case above stated, averred awaiverof the conditions of the policy in a manner different from that which the plaintiff offered to prove on the trial, Held, that this circumstance constituted no obstacle to tire admission of said offer of evidence.
    October 21st 1881. Before Sharswood, O. J., Merour, Gordon, Paxson, Sterrett and Green. JJ. Trunkey, J., absent.
    Error to the Court of Common Pleas of Clarion county: Of October and November Term 1881, No. 104.
    This was an action of covenant by John Plynn and G. S. Hamm, trading as Flynn & Hamm, against the Ben Franklin Insurance Co., of Allegheny,• Pa., upon two policies of fire insurance issued by said company to the plaintiffs, upon a stock, of general merchandise in the plaintiffs’ store in Turkey city, Clarion county. The policies were dated May 3rd 1878, and July 1st 1878, respectively, the-former for $750, the latter for $1000. The policies were alike in form, and contained, inter alia, the following condition :
    “ 9. Persons sustaining loss or damage by fire shall forthwith give notice of said loss to the company ; and as soon thereafter as possible, render a particular account of such loss, signed and sworn to by them, stating any and what other insurance has been made on the same property, giving copies of the written portion of all policies thereon, also the actual cash value of the property and their interest therein, for what purpose and by whom the building insured, or containing the property insured, and the several parts thereof, -were used at the time of their loss, when and how the fire originated ; and shall also produce a certificate under the hand and seal of a magistrate or notary public (nearest to the place of the fire, not concerned in the loss as a creditor or otherwise, nor related .to the assured), stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has without fraud sustained loss on the property insured to the amount which such magistrate or notary public shall certify.”
    Flynn & Hamm had at the same time additional insurance on the same stock of goods in nine other companies, to the amount of §11,250.
    Their store and stock of goods were destroyed by fire July 15th 1878. They “ forthwith ” gave notice of the fire and loss to the insurance company defendant, in accordance with the first clause of the above recited condition.
    On August-12th 1878, the plaintiffs forwarded to the company defendant formal proofs of loss, sworn to by the plaintiff, Hamm, before a notary public of Edenburg, Pa., — distant five to six miles from the place of the fire, — containing, inter alia, a schedule showing the actual cash value of the property insured, immediately preceding its destruction; also a schedule of the several companies in which the plaintiffs held additional insurance, the amounts of the policies, &c. These proofs of loss contained the following: “ The written portion of which policies are substantially the same as the Ben Franklin policy, aforementioned, as per schedule attached.” The defendant company received the proofs of loss on August 14th 1878.
    On the trial, before Jenks, P. J., the defendants claimed that the proofs of loss failed to comply with the requirements of the 9th condition of the policies, and were insufficient for the following reasons: because not rendered “ as soon as possi-, ble ” after the fire; because not sworn to before a magistrate or notary public, residing nearest the place of the fire, it being in evidence that a duly qualified magistrate resided at Turkey City; because the written portion of all policies in force were not copied at length in said proofs; and because of general want of particularity in detail. The plaintiffs, while not admitting that the proofs of loss were insufficient, offered the following evidence to show that the company had waived all proofs of loss, viz.: that in pursuance of notice to all the companies, a meeting was held in Emlenton on July 25 th 1878, for the purpose of adjusting the losses payable by the several companies, at which an adjustment of the loss was made; that one Simon Drum, an agent of the defendant company, visited the scene of the fire and came to • Etnlenton on the day of the meeting; that he was invited to attend said meeting, and promised to do so, but did not; but after the meeting he asked for and obtained a copy of the adjustment, which had been made; that in the early part of October 1878, the plaintiffs dre\v a draft on the defendant company in favor of Joseph Horn & Co. for $1339.18, being the proportion of the amount of loss due by the defendant company according to the adjustment made with the other companies ; that this draft was presented to the company by the book-keeper of Horn & Co., and acceptance was refused by the secretary on the ground “that the loss was not due and would not be for a month, and that there was some hitch in the adjustment of the loss,” but that no objection was then made to the proofs of loss ; that the plaintiffs thereupon, on October 10th 1878, drew other drafts on the company defendant in favor of Gr. W. Dilworth, who presented the same to the secretary of the company for acceptance or payment, which "was refused on the same ground as the former draft had been refused; but that on the second visit by Dilworth to Riddle, the secretary of the company defendant, the latter agreed to pay the loss upon the same basis as that for which other companies had compromised, which would reduce the claim to $1050; that this proposition was accepted by the plaintiffs, and then Dilworth called a third time with the policies and Riddle again declined payment, saying there was error in the proofs.
    This evidence was objected to principally on the ground of variance, the offers being to show a general waiver, while the declaration averred a special waiver in the following terms:
    ‘‘ And plaintiffs further say, that notice of loss, preliminary proofs, and all conditions in said policy to be performed and kept by plaintiffs, were waived, by defendant, to wit: On the seventeenth day of July, a. d. one thousand eight hundred and seventy-eight, said defendant denying all liability for said loss, and pretending said policy and risk had been cancelled and terminated previous to said loss, when in truth and in fact the same had not been cancelled or terminated, but was still in full force and obligatory on defendant.”
    Objection overruled; exception.
    The defendant put in evidence the following letter sent by the secretary of defendant company to the plaintiffs on or about the day of its date : — ■ i

      “ Allegheny, October 18th 1878.

      “ Messrs. Flynn <& Hamm,-, Pa. :

    “Dear Sirs: — Enclosed we hand you two blank proofs of loss, on which you will please send us corrected proofs of your loss at Turkey city, the same as furnished the other companies, and oblige,
    “Yours respectfully, G. D. Piddle, Sect.”
    The defendants presented, inter alia, the following points:
    3. The preliminary proofs or particular account of the loss as required by condition No. 9 of these policies to be furnished by the plaintiffs,.are conditions precedent to their right of recovery, and the determination of their sufficiency is for the court; and unless found by the court to be sufficient in this case, or their sufficiency expressly or impliedly waived by defendant, plaintiff cannot recover. Answer. We do not think the proofs of loss sufficiently specific, unless the jury find under the evidence, that the destruction of books, and bills, and goods was so great that the plaintiffs could not reasonably furnish one more full; but proof of loss.or the sufficiency thereof may be waived by the company. For further answer refer to plaintiffs' third, fourth and fifth points (repeated infra.).
    4. That the paper purporting to be a statement of their loss claimed in this case, dated August 12th 1878, is not such particular account of sucli loss, signed and sworn to by them, as is required by condition No. 9 attached to and made part of such policies. Answer. For answer to this point we refer to our answer to defendant’s third point, which reads as follows: “We do not think the proofs of loss sufficiently specific, unless the jury find under the evidence, that the destruction of books, and bills and goods was so great that plaintiffs could not reasonably furnish one more fulland for further answer refer to third and fourth of plaintiffs’ points (repeated infra).
    5. That to constitute a waiver of sufficiency of preliminary proofs, or the particular account of the loss.under condition No. 9, plaintiff must show some official act or declaration by the company prior to the expiration of the time within which such account is required to be furnished, dispensing with it — something from which the plaintiffs might reasonably infer that defendant did not mean to insist upon it; that such waiver never occurs unless intended by the company, or unless the act relied on ought in equity to estop company from denying it; mere silence is not enough; that after the expiration of the time for furnishing such account of loss under said condition, or after the actual furnishing of some account in this case, which if found to be insufficient, nothing but the express agreement of the company could revive or revivify the contract.

      Answer. We cannot affirm this point as stated, and for answer refer to plaintiffs’ third, fourth and fifth points, which we now re-read and affirm, as follows:
    (3) “ If the defendant received notice as mentioned in second point, and the scene of the fire was visited by Simon Drum, a general agent of the company defendant, who was afterwards requested by one of the plaintiffs to meet with the adjusters and examine books and papers of plaintiffs, and after promising so to do, but did not; and furthermore, that defendant received proofs of loss and retained same until by the terms of the loss became payable, and in the meantime negotiated with the plaintiffs or their agents for a settlement, and afterwards demanded corrected proofs without stating wherein same were to be corrected, verbally demanding simply a reduction of the amount called for in said proofs, such facts are evidence to the jury from which they may find a waiver on part of the defendant of any part or portion of the preliminary proofs.”
    (4) “ If the jury find the facts as stated in the last point, such facts are evidence from which they may find a waiver of the requirement in the policy regarding the magistrate or notary public from whom a certificate should be obtained, and any defect therein, and also because of the absence of any objections to such preliminary proofs at the time of their reception, or within a reasonable time afterwards.”
    (5) “ If the jury find from the evidence that the defendant company, by its secretary or other executive officer, waived any portion or part of the requirements' of the policies regarding preliminary proofs or particular account, it would have the effect to strike the same out of the contract, and officers of the insurance company could not thereafter rightfully demand or require the plaintiffs to make new or additional proofs of loss supplying the requirement waived.”
    9. The interviews and conversations between Riddle, secretary of the company, and Dilworth and Thorn, third parties with no privity of interest, and occurring long after the expiration of that reasonable time within which plaintiffs were required to furnish complete proofs of loss under condition No. 9 of the policies, constitute no waiver, nor do they furnish evidence from which a waiver may be inferred by the jury, of the said conditions by the company. Answer — The conversations referred to in this point, are evidence which we think proper for the consideration of the jury; they must determine under all the evidence and the instructions given, whether there was or was not a waiver. .
    11. That plaintiffs have proved no express waiver, and have offered no sufficient evidence of an implied waiver by the company, of the sufficiency of the preliminary proof under the 9th condition of tlie policies, and therefore they cannot sustain this action.

      Answer. We decline to answer this point as requested. We refer the question to bo determined by the jury under all the evidence and the instructions we have given.
    Yerdict for the plaintiffs for $1875.42 and' judgment thereon. The defendant company took this writ of error, assigning for error, inter alia, the admission of the evidence objected to, the answers to defendant’s points, as above given, and the submission of the question of waiver to the jury.

      Boggs d¡ Weidner for the plaintiff in error.
    All the requirements of the ninth condition of the policy to be performed by the plaintiffs below were conditions precedent to their right of recovery: Commonwealth Ins. Co. v. Sennett, 5 Wright 161; Johnson v. Phoenix Ins. Co., 112 Mass. 49. The proofs of loss were insufficient under the ninth clause of the policy in several respects: they were not furnished until about thirty days after the fire, which was not “ as soon thereafter as possible ; ” they were not certified by a magistrate, or notary public nearest to the place of fire, although a duly qualified magistrate resided in the same town, but were sworn to before a notary public in another town five to six miles distant. In the absence of explanation, this isa fatal defect: Johnson v. Phoenix Ins. Co., 112 Mass. 49; Columbia Ins. Co. v. Lawrence, 2 Peters 33. They did not contain the written portions of the policies in the other companies.
    As to the alleged waiver of the ninth condition. The plaintiffs declared on a special waiver by the company on a particular day and for a particular cause. They offered no evidence in support of this averment, but made numerous offers of disconnected facts to prove a general waiver. Under the express terms of the policy, as well as by. the general rules of law, such evidence was inadmissible. In an action upon a contract such as that of insurance, thejprobata must agree with the allegata in all matters material to the issue, even though the latter need not have been specially averred in the pleadings: Thomas v. Mann, 4 Casey 520. Moreover, the facts constituting the alleged waiver, occurred after the policy had been "forfeited for non-production of proofs of loss in due time. In such case, evidence of waiver should be confined to the time within which the proofs should have been furnished. A waiver never occurs unless intended, or unless the act relied on ought in equity to estop the party from denying it, and in such case the proof must be clear and distinct : Diehl v. Adams Co. Ins. Co., 8 P. F. Smith 452 ; Wood on Ins. 702; Beatty v. Lycoming Ins. Co., 16 P. F. Smith 9 ; Decilver v. State Mutual Ins. Co., 2 Wr. 134; Lycoming Ins. Co. v. Updegraff, 4 Wr. 319, 323; Mueller v. South Side Fire Ins. Co., 6 Norr. 399.
    IF. A. Corbett, for the defendants in error.
    November 7th 1881.
   Mr. Justice Gordon

delivered the opinion of the Court

There is very little even of technical difficulty in this case, and nothing at all of which the plaintiff ought to complain, if it looked to the justness of its obligation rather than for some loophole of escape from a debt which in all honor and honesty it ought to pay. The evidence furnishes not the slightest intimation that the plaintiffs were guilty of any kind of fraud, either in intention or in fact. The loss occurred without fault or neglect on their part, and if there was any default in either the preliminary notice or statement of loss, it was of a character so technical that it could scarcely be avoided by any one not an expert. As to these, however, no exception is taken to the first; it is admitted that it was correct both in form and service; and as to the items of the other, the jury, under the instruction of the court, have found that they were as full and specific as they could be under the circumstances. But, inter alia, it is alleged that this statement' was not forwarded to the company’s office within the time required by the policy. The requisition is that it shall be furnished as soon as possible after the fire.

But, as we held in the case of the Home Insurance Co. v. Davis [ante, p. 280], this phrase must be taken to mean within a reasonable time after the loss. The required statement was forwarded within thirty' days from the date of the fire; we think a delay no greater than this not unreasonable, at least not so unreasonable as to require the question to be withdrawn from the jury and determined as a matter of law. The delay in the case cited was three months, yet under the circumstances, it was held that the submission of the question to the jury was proper.

But we have yet a couple of objections, still more technical in their character than the above, to dispose of.

1. It is required by the policy, that statement shall be made of any other insurance on the property and copies of the written parts of the policies set out in the proofs of loss. It is said that the latter part of this condition was not complied with. Taken literally this is true, but practically it is not true, for not only were the names of the several companies, the numbers of the policies and the amount by each one insured,- given, but in addition it was stated that the written parts of these several policies were substantially the same as that of the Ben Franklin.

2. It is objected that the affidavit to the statement was not made before, and the certifícate not made by, a justice of the ■ peace nearest the place of loss, but before and by a notary public some five or six miles distant therefrom.

The fire was at Turkey city, and the notary public lived at Edenburgh, the place of Hamm’s residence, which circumstance accounts for his not complying literally with the prescribed condition. Were we called upon so to do, we might well say that both these conditions were substantially complied with, but as this whole matter was referred to the jury on the question of waiver, we are not required to pass upon a point of this kind. The counsel for the defence think the proofs of a waiver were not sufficient to warrant the court in so submitting them, but we are of a different opinion. These defects were at best, but formal, and we incline to the opinion expressed by Mr. Justice Siiarswood, in Beatty v. Insurance Co., 16 P. F. Smith 9, that it is the duty of the insurer,.where the proofs of loss are put into its possession in time, to notify the insured of any formal defects which may be discovered therein, and have them corrected. From this it would follow that where this is neglected such defects must be regarded as waived.

Beyond this, however, the testimony of Dilworth, Ellis and Thorn, was sufficient to establish a waiver of even more material defects. Where a forfeiture is to be worked by the breach of a collateral condition, such breach must be promptly taken advantage of; there must be nothing else alleged as a reason for non payment, and especially must not the assured be led astray by propositions of settlement on grounds other than that of the alleged breach of the condition. But this is exactly what was done in this case.

The objection to payment was the compromise made with the Howard and other companies, and Riddle, the secretary of the company, proposed to pay on a similar basis or rate, which proposition was promptly accepted by the plaintiffs, and it was not till after this acceptance that there was any allusion to the defects in the statement of loss.

Even Riddle’s letter of the 16th of October, enclosing blanks for corrected proofs, throws no light upon the defects of the former proofs but only directs attention to those furnished to other companies, a direction which evidently looks more to the amounts for which those companies settled than to any particularity of items. It is moreover remarkable that at no time was there any special defect in the statement pointed out, or request made to have such defect corrected. But we need not go into the particulars of this testimony; there was enough of it to submit to the jury, and in so submitting it the learned judge was fully sustained by the cases of Lycoming Mutual Ins. Co. v. Schollenberger, 8 Wr. 259; Inland Ins. Co. v. Stauffer, 9 Ca. 397, and Home Ins. Co. v. Davis, above cited.

Then we have an objection to the proofs offered to establish the waiver, for that the declaration alleges that waiver to have occurred in a manner different from that set forth in the offer of proof. But as the narr. without the special clause, the subject of controversy, would have sustained the 'offer, we may treat this part of it as surplusage.

We understand, indeed, that by the strict rules of pleading, if an allegation is made in the declaration which may be material in the trial, though immaterial in the pleadings, it must be proven as laid. But in our times the severe rules of pleading find but little encouragement, and even so far back as the case of Repsher v. Shane, 3 Teates 575, this doctrine of variance was not very strictly applied. In this case the suit was on a promise of indemnity against the recovery of damages from the plaintiff by a third person; in the declaration the amount of damages was laid at a certain sum, and on the trial the proof offerréd was of a different sum ; yet the variance was held not to be fatal, though certainly in a case of this kind, accurate proof of the damages sustained by the plaintiff was material. Following in the track of this case of Repsher v. Shane, many later cases have, like it, very much relaxed 'the strictness of the old doctrince of variance. Among these are Grubb v. The Mahoning Nav. Co., 2 Har. 302; Emerick v. Kroh, Id. 315, and Filson v. Dunbar, 2 Ca. 475. On the whole, therefore, we cannot say that even on this point the ruling of the cogrt below was wrong.

J udgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Poor District of Beaver Township versus Poor District of Rose Township.
    1. Where-a collector of taxes in settlement of liis duplicate pays a tax which he has not collected, without the knowledge and. contrary to the wish of the person against whom the same has been charged, this will not be deemed sufficient to give to said person a settlement under the Poor Law of June 13th 1886, § 9, clause 2 (Pamph. L. 542), with like effect as if he had himself paid the tax.
    2. In order to acquire a settlement in a given township under clause 3, of said section, a person must comply strictly with all the requirements thereof. He must therefore (1) take a lease of premises within the township (2) which premises must be of the yearly value of ten dollars, (3) he must dwell on said premises for one whole year, and (4) must pay the rent of the same.
    3. A. leased premises in a certain township worth more than ten dollars yearly, and dwelt thereon for-ten months, actually paying his rent; he then removed,ybut two months afterwards took possession of other premises in the same township, whereon he dwelt for two months. He neither took a lease of said last named premises nor did he pay any rent therefor. Held, that A.’s occupancy of the last named premises could not be tacked on to .his occupancy of the first named premises so as to make a continuous dwelling for one year within the township, and thus entitle A. to a setilement therein under the provisions of the Poor Law.
    - October 21st 1881. Before Sharswood C. J., Mekcur, Gordon, Paxson, Sterrett and Green, JJ. Trunkey, J., absent.
    Error to the Court of Quarter Sessions of Jefferson county: Of October and November Term 1881, No. 228.
    This writ of error was taken to a judgment of the said court, affirming an order made by two justices of the peace for the removal of Christina Herrick, a pauper, from the Poor District of Rose to that of Beaver township. The' facts of the case, and the questions presented by the assignments of error, are stated in the opinion of the court.

      Gordon (with him Corbet, Conrad & Mundorff, and White (& Scott), for the plaintiff in error.

      Jenks & Clark, for the defendant iu error.
    November 21st 1881.
   Mr. Justice Mercur

delivered the opinion of the Court,

The question presented by the first assignment is substantially this: In case the collector in settlement of his duplicate, pays a tax which he has not collected, does such payment give to the person charged with the tax, a settlement with like effect as if he himself had paid it?

When a person seeks to establish a settlement by the payment of taxes the Act of 1836 requires he “ shall be charged with and pay his proportion of any public taxes or levies for two years successively.” As it was held in Butler v. Sugar-loaf, 6 Barr 262, that payment of rent by a surety was payment by the lessee so as to give a settlement to the latter, it is therefore claimed that payment of a tax by the collector should give a settlement to the person charged with the tax. We think the cases differ widely. In the former a contract relation was created between all the parties at the execution of the lease. The lessee and his surety assumed an obligation at the same lime to pay the same debt. That was, if the former did not pay, tlio latter would. The lessee was to pay through another if he did not do it personally. It was therefore held a payment by the surety was in law a payment by the lessee. It was a payment of the rent according to the agreement under which the tenancy was created. It was paid to the lessor by one of the two persons who agreed to pay him. The payment was in fulfilment of the agreement and to discharge the claim of the lessor against the lessee and his surety. It was" not a voluntary payment.

In the present case the payment by the collector was voluntary, so far as Hetrick, who was charged with the tax, was concerned. He made no agreement with the collector for its payment. It was not only paid without his request, and without his knowledge, but apparently for one of the two years, contrary to his wishes. The evidence is that in the fall of 1872 Hetrick said to the collector he would not pay any taxes. The contention is in regard to the payment of taxes for 1872 and 1873. The collector made a general payment of all the taxes mentioned in his duplicates for those years, and the small tax against Hetrick, not having been exonerated, was covered by this payment. It was in no sense such a payment by Hetrick, who appears to have had no property, as the statute requires, to give him a settlement. The second assignment falls with the first.

The third assignment is that the court erred in not finding certain facts therein specified. The court certified all the evidence relating thereto. It is claimed that this evidence proves a settlement under the clause of the Act which declares one may be gained in a district “ by any person who shall bona fide take a lease of any real estate of the yearly value of .$10, and shall dwell upon the same for one whole year, and pay the said rent.”

Thus four distinct things are necessary. He must take a lease ; the premises leased must be of the yearly value of $10 ; he must dwell thereon for one whole year, and pay the said rent. Nothing less than a compliance with all of these requirements satisfies the statute. Each of them was questioned. The plaintiff in error seeks to establish them by the arrangement under which Hetrick occupied a house in Rose township. In November 1871, he entered into a written agreement by which he was to clear and fence eleven acres of land, at a specified sum per acre, and the job was to be finished some time in September following. About the same time there was a verbal arrangement between them by which Smathers was to furnish lumber for Hetrick to build a small house in which he might live while doing the work. Smathers furnished the lumber, and either Hetrick by himself, or jointly with his son, built the house and occupied it while at work at the job. Iietrick moved out of the house and left it about September 1st following, and the job was completed on or before September 15th.

The evidence did show the annual .rental of this house was of the yearly value of $10, and that the labor of Hetrick in building it may have exceeded that sum ; but it signally failed to show that he dwelt therein for one whole year. An attempt is made to fill out the year by showing he afterwards dwelt in another house of Smathers, in the same township. It does appear that some two months after he moved out of the former house, he did enter into and occupy for some time a log house of Smathers, in the same township; but this he did without any arrangement with the owner, and without his permission. He took -no lease and paid no rent therefor. . On no principle can such an occupancy be tacked to the occupancy of the other house to make a full year. It was not a continuous dwelling for one year in the township, nor was the occupancy of the last house under either an express or implied lease. Hence the case of Allegheny City v. Allegheny Township, 2.Harris 138, does not apply. There the pauper had resided one continuous year in the city of Allegheny, although in different houses, yet in each under a contract to pay rent, and in the aggregate did pay more than $10 rent'. He ivas all the time dwelling in some house under a stipulated rental. The whole evidence shows Hetrick was not in any view of the case, under a rental more than ten months, and beyond that he was merely a trespasser. Hence the third assignment is not sustained.

The fourth assignment has no merit, and was not pressed. The learned judge committed no error in affirming the order of removal.

Judgment affirmed.


author: Hr. Justice Gordon

text:
    Oil City Gas Company versus Robinson.
    A municipality in constructing a sewer in one of its streets disturbed and broke the pipe of a gas company, laid some three or four feet distant, from which pipe gas had leaked both prior to and during the construction of the sewer. Complaints had been made to the gas company, but the leaks had not been stopped. The city engineer, under whose supervision the sewer was being constructed, knowing of its condition and of the leakage from the adjacent pipe, entered with a light. An explosion of gas which had penetrated thereto occurred, and the engineer was seriously injured. In an action by him against the gas company to recover damages for his injuries : Held, that the negligence of the company in failing to repair the leaks was the proximate, not the remote cause of the accident, and that the fact, that the city contractor in building the sewer had disturbed and broken the pipe had no effect to shift the cause. Held, further, that the defendant was responsible for whatever consequences might in the nature of things occur from its neglect, although those consequences were such as could not by any ordinary prudence have been, anticipated; that the accident occurring in this case was one of such consequences, and hence that defendant was responsible therefor. Held, however, that if the plaintiff by his own negligence had occasioned the defect in the gas pipe, his suit might thereby be defeated on the ground of contributory negligence. Held, further, that the plaintiff was bound to a knowledge of the probable consequences of the facts of which he was cognizant, and to exercise that ordinary prudence which the circumstances required. Hence, if it was probable that the gas escaping from the leak would find its way into the sower in quantities sufficient to cause an explosion, the plaintiff, being a civil engineer, and knowing what he did, of the condition of the sewer and leakage of the adjacent pipe, ought to have anticipated the result of his act in entering the sewer with a light, and was guilty of such contributory negligence as to preclude his recovery.
    October 22d 1881.
    Before Sharswood, C. J., Mercur,' Gordon, Paxson, Sterrett, and Green, JJ. Trunkey, J., absent.
    Error to the Court of Common Pleas of Vencmgo county : Of October and November Term 1881, No. 78.
    Case, by H. B. Eobinson against the Oil City Gas Co., to recover damages for personal injuries alleged to have been caused by the negligence of the defendant company, a corporation chartered under the laws of Pennsylvania with the right to occupy the streets of Oil City with gas pipes.
    On tiie trial, before Taylor, P. J., the following facts appeared : The plaintiff, the city engineer of Oil City, on October 2d 1878, entered a sewer just completed under his official and professional supervision, with a lighted lantern in his hand, whereupon an explosion of gas, which had leaked from neighboring pipes of the defendant occurred, by which plaintiff was injured. The works of the gas company were erected in 1876 under a contract with the city, whereby the city was to have the right, if necessary, in constructing sewers or for other jourposes, to remove any portion of the gas mains, with the least possible injury to the company, and in return was bound, without delay, to rejoin and repair the breaks thus unavoidably made. In 1878 the city constructed the sewer in which the explosion occurred, in a street in part of which a gas main had been laid. The excavation for the sewer crossed under the gas main obliquely at a distance of three or four feet, and its effect was to remove entirely the solid foundation on which the gas main rested at the point of crossing, and to weaken and disturb it for some distance from that point. After the explosion the gas main was found to be broken off at the point of crossing.
    Prior to, and during the construction of the sewer, the leakage of gas was plainly perceptible in the vicinity, and there were numerous complaints to the defendant. Search was made by the defendant for leaks, but none were found until after the explosion, or, if there were, nothing was done to remedy the trouble. Plaintiff at the time of entering the sewer with his lantern was fully informed as to the condition thereof, and knew that gas was escaping from the neighboring pipes of defendant.
    The court affirmed the plaintiff’s first four points, which were to the effect that the defendant, having failed to repair the pipes after due notice of leakage, was guilty of negligence.

      Plaintiff also presented the following points :
    O. In order to defeat a recovery on the ground of contributory negligence, the jury must find that the plaintiff failed to take ordinary care, which is that degree of care which persons of ordinary care and prudence are accustomed to use and employ under the same or similar circumstances, in order to conduct the enterprise in which they are engaged to a safe and successful termination, having due regard to the objects to be accomplished. Plaintiff was not bound to anticipate culpable negligence on the part of the gas company, nor, knowing of such negligence, was he bound to anticipate all the perils to which he might possibly be exposed by such negligence, nor even to refrain absolutely from pursuing his necessary business on account of risks to which he might be exposed by the gas company’s fault. Some risks are taken by the most prudent men, and the plaintiff is not debarred from recovery for his injury if he adopted the - course which most prudent men would fake in similar circumstances. Answer. Affirmed.
    6. Even if the jury are of opinion that the break occurred in consequence of building the sewer, and that the injury occurred from such break, this will not debar the plaintiff from recovering, unless they also find from the evidence such break was the result of negligence of plaintiff, or his agent or employé, in the construction of the sewer. Answer. Affirmed.
    Defendant requested the court to charge as follows:
    1. A party is answerable only for the natural and probable consequences of his acts or omissions — such consequences as might be foreseen by ordinary forecast-=-and is not answerable for results which, are extraordinary, and not likely to be foreseen. Answer. Affirmed; but in judging of what would be ordinary forecast and prudence, the subject matter with which the parties are dealing must be taken into consideration, and if it be of a dangerous or hazardous character, the care which is required is such as a man of ordinary prudence would use in providing against accidents in the use of such material.
    2. If it was natural and reasonable to apprehend that gas escaping from leaks or breaks in defendant’s mains would find its way into the sewer in such quantity as to be liable to produce an explosion when a light should be brought in contract therewith, and if the plaintiff knew, as he has testified, that gas was escaping from leaks or breaks in defendant’s mains, and knew the condition of the sewer, and that it was probable that such gas would find its way into the sewer in quantity aforesaid, then to enter the sewer with a lighted lantern was such contributory negligence on plaintiff’s part as would prevent a recovery in this action. Answer. Under the facts in evidence we decliue to affirm, this point, but submit the question of contributory negligence to the jury.
    5. If the defendant’s main was broken in consequence of anything done or improperly omitted in the construction of the sewer, and the plaintiff, as city engineer, had full control over and direction of the work of constructing the sewer, the defendant is not answerable to the plaintiff for any consequences of the escape of gas from the break. Answer. This point as made answered in the negative.
    Verdict for plaintiff for $8,000 and judgment thereon. Defendant thereupon took this writ, assigning for error, inter alia, the affirmance of plaintiff’s points and the answers to defendant’s points above cited.

      G. Heydrick., for plaintiff in error. —
    The test of responsibility is to be found, not in the solution of the question put to the jury in the charge, “ was the defendant guilty of negligence, and was the plaintiff free from fault which contributed to his injury % ” but in the answer to the question, are the consequences natural and proximate, and such as might be foreseen by ordinary forecast ? In determining the responsibility the true rule is that the injury must be the probable consequence of the negligence, in accordance with the maxim, causa próxima, non remota, spectatmr: Morrison v. Davis & Co., 8 Harris 175; Penna. R. R. Co. v. Herr, 12 Smith 353; Greenleaf on Evidence § 256; McGrew v. Stone, 3 Smith 43 G ; Hoag v. R. R. Co., 4 Norris 293.
    There was wanting affirmative proof of an antecedent probability that the leakage would produce disastrous results, and without sneli proof plaintiff could not recover: Allen v. "Willard, 7 Smith 374; Cotton v. Wood, 98 E. C. L. 568; Ham-mack v. White, 11 C. B. (N. S.) 588.

      Podd <& Lee, for defendant in error. —
    It is not the law that men are responsible for their negligence only to the extent of the injuries which they knew would l’esult from it: City of Pittsburgh v. Grier, 10 Harris 54. Consequences are proximate in the legal sense if there be an intermediate agency which ought to have been foreseen ; and it is in reference to such intervening causes only that the question arises whether the consequence was such as might have been foreseen by the wrong doer as likely to flow from his act. There being no facts in dispute, it was the court’s right and duty to say that this was a natural and probable result: Raydure v. Knight, 2 W. N. C. 713.
    It was for the jury to say, whether, under all the circumstances, the plaintiff acted as a man of ordinary caution and prudence; if he did so act, he is not to be charged with contribulory negligence. Tlie party who exposes another to clanger, and the party so exposed, are not bound to equal degrees of vigilance: P. & Iv. 11. 11. Co. v. Hendrickson, 30 Smith 182; Humphreys v. Armstrong County, 6 Smith 204; City of Erie v. Scliwingle, 10 Harris 384; Pero v. 1!. II. Co., 22 N. Y. 214; Cook v. Champlaiu Traus’n Co., 1 Denio 91; Johnson v. Belden, 47 N. Y. 130; Shearman & Iiedfield on Negligence, § 336 et seq.; Id. § 25 et seq.
   Hr. Justice Gordon

delivered the opinion of the court, November 7th 1881.

There is but a single one of the rulings of the court, in the ease before us, with which we are inclined to find fault; as to the rest we regard the exceptions to them as not well taken. These are mainly to the instructions of the court as to tlie responsibility of the company for the results arising from the escaping gas. It is contended that the company’s neglect in not repairing its pipe was, at most, hut the remote and not the proximate cause of the accident. But to this proposition we cannot assent.

The gas pipe and sewer were in tlie immediate vicinity of each other; in tlie former there was a defect, and from it the gas, not merely by absorption, or by gravity, but also by pressure, found its way into the sewer. This certainly resulted from tlie defendant’s negligence, because but for the defective pipe there could have been no escape of tlie gas; and if this was not the proximate cause where, we ask, was the intervening one by which the consequences of the accident are to be shifted from the defendant to some other person or thing % That the city contractor, in building the sewer, disturbed the pipe, and so caused the break, has no effect to shift the cause, for it still remains that that was the escaping gas; neither does it excuse the company if, knowing the defect, it neglected to make the necessary repairs. So even if the plaintiff by his own negligence occasioned the defect, that would not make the cause less direct, though his suit might thereby be defeated on tlie ground of contributory negligence. Tlie result, then, was the direct effect of the cause stated, and the remaining question was one of negligence. In this, as in what precedes it, I, of coarse, speak only as of those facts which the jury have found from the evidence of tlie ease, and not as of results flowing from admitted facts. The whole of the evidence is for the jury, and from it a second panel may come to a very different conclusion, as to the facts, from that arrived at by the one which rendered the verdict in this case.

But again, it is said the company is not liable for this accident because the penetration of the gas into the sewer was not a reasonable probability. But, to meet the defendant on its own grounds, what is there unreasonable about the probability of gas being forced from a broken pipe through three or four feet of loose earth into an adjacent sewer ? Gras permeates iron, and why not earth and brick ? The company was responsible for what might, in the nature of things occur from its neglect, and its responsibility was not limited by what its officers may have thought to be improbable or even impossible.

But the plaintiff was also bound to the exercise of a reasonable care for his own safety. He was a civil engineer and may be presumed to have had some knowledge of the dangerous nature of illuminating gas, of its power to penetrate the earth and the materials composing the sewer, and of its exjfiosive character when mixed in certain quantities with common air. He certainly did know, for he so testifies, that the gas was escaping and saturating the adjacent earth, hence, it seems to us that he ought to have been upon his gaurd. We cannot apply one rule to the company and another to the defendant, or vary the rule as concerning negligence except in this ; the defendant was bound for the consequences of its neglect though those consequences were not, and could not, by any ordinary prudence, have been anticipated; whilst the plaintiff was bound only to a knowledge of the probable consequences of the facts of which he was cognizant, and to that ordinary prudence which the circumstances required. If it was probable that the gas escaping from the leak would find its way into the sewer in quantities sufficient to produce an explosion, he ought to have anticipated the result, and not have entered the sewer with a lighted lamp. If he did so under,the conditions stated, he was guilty of such contributory negligence as ought to have prevented his recovery.

It follows, from this, that the court should have affirmed the defendant’s second point without qualification, and for not having so done we reverse the judgment and order a new venire.


author: Mr. Justice Paxson

text:
    County of Armstrong versus Coleman to use.
    1. The Act of Assembly of May 35th 1878 (P. L. 147), providing that all outstanding orders drawn by the military boards prior to the, passage of the Act of April 15th 1873 (P. L. 74), shall be paid by the respective counties out of the general county funds, is a valid and constitutional exercise of legislative power.
    3. The Act. of April 7th 1870 (P. L. 63), provided for .the imposition of a militia tax in each county, to be laid per capita on such persons as were liable to military duty, but who failed to perform it. Out of the fnnd thus raised each county treasurer was authorized to pay the orders drawn by the county military board. The Act of April 15th 1873 (P. L. 74), repealed the clause imposing the per capita tax, but without making provision for the payment of orders outstanding at that time. The Act of May 25lli 1878 (P. L. 147), provided that said orders should be paid by tlie respective counties out of the general county funds. Held, that said last named act was valid and constitutional.
    October 24th 1881.
    Before Siiarswood, O. J., Mercur, Gordon, Paxson, Stkerett and Green, JJ. Tbunkey, J., absent.
    Error to the Common Pleas of Armstrong county: Of October and November Term 1881, No. 31.
    This was an action of debt by Jacob Coleman to the use of Solomon Coleman, against the county of Armstrong, upon an order drawn by the military board of said county upon the treasurer thereof, in favor of Jacob Coleman, for the sum of 8336, being payment in full for a militia company commanded by said Coleman, from October 1st 1870 to April 1st 1871. The order was indorsed by Jacob Coleman to tlie use of plaintiff, and had upon it an acknowledgment of the receipt of §100 on account. The .action was brought in pursuance of the Act of May 25th 1878 (P. L. 147), which provides that all outstanding orders, such as the one in suit, shall bo paid by the respective counties out of the several county funds.
    On the trial, before Neale, P. J., the plaintiff put the order in evidence, and proved a demand of the amount thereof of the comity treasurer in December 1878, and also his refusal to honor the same.
    The defendant requested the court to charge as follows :
    1st. Under the whole evidence the plaintiff cannot recover. Refused.

    2nd. Under the facts in this case, and the order in suit, the Act of Assembly, entitled An Act to provide for the payment of existing orders drawn by tbe military boards of tlie several counties of tbe Commonwealth, approved the 25th day of May 1878, can have no effect to entitle the plaintiff to recover, and tlie verdict of the jury should be for the defendant. Refused.

    The court directed' a verdict for plaintiff, subject to the opinion of the court on the point of law reserved, whether the Act of Assembly is constitutional or not, and whether the law can be enforced.
    Verdict for the plaintiff in the sum of §375.94, being the amount of the order unpaid, with interest thereon from the date thereof.
    The C->nrt subsequently entered judgment for tlie plaintiff on tbe reserved point, whereupon defendant took this writ, assigning for error the refusal of defendant’s points, the entry of judgment for plaintiff on the reserved point, and the allowing of interest on plaintiff’s order before demand made.

      E. 8. Golden, for plaintiff in error. —
    The Act of May 25th 1878 is unconstitutional, in that it seeks to create a liability against counties where none previously existed, and where there was neither moral nor legal obligation resting on the county to pay. That there was, prior to the passage of this act, no obligation resting on a county to pay orders similar to that in suit is settled by County of Wyoming v. Bardwell, 3 Norris 104. The legislature could not create such a obligation: Shewell Keen, 2 Wliart. 332; Hartle v. Long, 5 Barr 491.

      M. F. Leason (with whom was J. Gilpin), for the defendant-in error.-
    — The presumption is always in favor of the constitutionality of Acts of Assembly: Speer v. School Directors of Blairsville, 14 Wr. 158. The inhabitants of the county had certainly derived benefit from the establishment of the militia company, and there was accordingly a moral obligation on their part to pay therefor. This is sufficient to sustain the constitutionality of the tax: Sharpless v. Mayor of Phila., 9 Harris 148; Commonwealth v. Maxwell, 3 Casey 456; Weister v. Hade, 2 P. E. Smith 477; Lycoming v. Union, 3 Harris 170; Stebbins v. Co. of Crawford, 11 Norris 289.
   Mr. Justice Paxson

delivered the opinion of the court, November 14th 1881.

We are in no doubt as to the constitutionality of the Act of Assembly, approved May 25th 1878, entitled “ An act to provide for the payment of existing orders drawn by the military boards of the several counties of this Commonwealth.” P. L. 147. The object of the act is so fully set forth in the preamble that I give it entire: Whereas, Previous to the act, approved the 15th day of April 1873, entitled ‘ A further supplement to the Act of 4th May'-1864, entitled £ An Act for the organization, discipline and regulation of the militia of the Commonwealth of Pennsylvania,’ the military boards of the several counties of this Commonwealth had power to draw their orders on the county treasurer of the proper county in payment of the necessary expenses of the military organizations of the county; and whereas, by the then existing laws provisions were made for the payment of orders so drawn; and whereas, by the 9th section of said Act of 15th of April 1873 all means for the payment of such orders was repealed ; and whereas, on the said 15th of April 1873, and prior thereto, there were in existence in several of the counties of this Commonwealth outstanding orders drawn by the military boards aforesaid, which, in good faith, should be paid, therefore;” the act then provides that all such outstanding orders shall be paid by the respective counties out of the general county funds.

At the time the order which is the subject of the present controversy was drawn it was the duty of the county treasurer to have paid it out of a special fund raised by the militia tax, which was laid per capita on those persons who were liable to military duty but who failed to perform it. See sections 4 and 5 of the Act of 7th April 1870. The Act of loth April 1873 repealed the per capita tax, and thus destroyed the fund out of which the orders had theretofore been paid. Next in order of time came the decision of this court in Wyoming County v. Bardwell, 3 Norris 104 (decided in 1877), in which it was held that the county was not liable for the payment of such orders. This was followed by the Act of 1878, above referred to, which was plainly intended to furnish a remedy in lieu of the one which had been taken away by the Act of 1873. The difference between the remedies is this: The Act of 1870 imposed the liability upon a portion only of the citizens of the county, while the Act of 1878 imposed it upon the entire body of the county. The services of this military company had been performed, and the liability incurred before the repealing act of 1873 was passed. It was the duty of the county treasurer then to have paid it; not, indeed, out of the general county funds, but out of the particular fund before referred to. The act of 1878 cannot therefore be said to impose a new debt or obligation upon the county which it did not owe. Nor is the change of remedy open to criticism. It merely Ibid the burden upon all the citizens of the county instead of upon a few. The Act of 1878 was an exercise of the taxing power of the Commonwealth, and is not obnoxious to any constitutional provision.

It follows from what has been said that the rulings of the learned judge of the court below were entirely accurate, and his judgment therefore must be Affirmed.


author: Mr. Justice Sterrett

text:
    William Roddy’s Appeal.
    1. An assignee for the benefit of creditors, who had filed his account and had the same confirmed, made application to have the confirmation taken oil and the account re-stated. His application being refused, lie took an appeal to the Supreme Court, which appeal was non prossed and the record remitted. He then took a writ of certiorari to bring up the record, without having renewed his appeal and without giving security. Held, that the only ofiico of a certiorari in such cases was to bring up the record after an appeal had been duly entered, and that as there was no appeal pending in the present case the wrrit of certiorari had been improvidently issued and would be quashed.
    2. The action of the court below in refusing an application by an assignee for the benefit of creditors to have the confirmation of his account taken oil and his account re-stated, is not reviewable by tbe Supreme Court where the application is in the nature of an application for a rehearing.
    3. Where in such case the application is in the nature of a bill of review it must be founded either on error in law apparent on the record, without the aid of extrinsic evidence, or on matters dehors the record which have arisen or been newly discovered since the confirmation and could not by the exercise of reasonable diligence have been discovered before.
    4. Facts found by an auditor or master and approved by tile court below, will not be disturbed by the Supreme Court except for manifest error.
    October 24th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Sterrett and Green, JJ. Trunket, J., absent.
    Certiorari to the Court of Common Pleas of Somerset county: Of October and November Term 1881, No. 21.
    The material facts of this case, together with the matters assigned for error, are fully set forth in the opinion of the court.

      J. S. Ferguson (with him John B. Fdie and Jolm Boddy), for the appellant.

      W. H. Foonte, for the appellees.
   Mr. Justice Sterrett

delivered the opinion of the court, November 7th 1881.

The Act of June 14th 1836 provides that any person aggrieved by the definitive decree or judgment of the Court of Common Pleas, in any case relating to assignees for the benefit of creditors, may appeal to this court within one year after such decree or judgment: Provided, that in all cases the party appealing shall first give security in such sum as the Court of Common Pleas shall direct, conditioned to prosecute such appeal with effect, and shall also make oath or affirmation that such appeal is not intended for delay: Purdon, 1420, pi. 36.

The account of appellant, as assignee of Nehemiak Miller and wife, was filed in June 1878, and confirmed by the court. In November of the same year an auditor was appointed to distribute the balance in his hands, as shown by the account. The schedule of distribution reported by him was confirmed in February 1879. In August following, after creditors had applied to the court for attachment to compel payment of their distributive shares of the fund, the appellant presented his petition praying the court “ to take off the confirmation of the auditor’s report and the confirmation of Ids account, so as to permit a re-statement of said account in accordance with the ” facts presented in the petition. After notice to those interested the court appointed an auditor to talco testimony, find the facts and report an opinion on the law. The facts found by the auditor were accordingly reported to the court, together with his opinion, “that the confirmation of the account and the auditor’s report thereon, should not be taken off.” Exceptions filed thereto were overruled, and the report of the auditor was confirmed ; whereupon an appeal was taken by the assignee under the provisions of the act above referred to. The paper book furnishes no information as to what disposition was made of the appeal, but referring to the original record, brought up on the certiorari, we find that a judgment of non pros, was duly entered by this court on October 25th 1880, and a remittitur filed in the court below. Ordinarily this would be regarded as the end of that appeal, but the party complaining appears to have thought otherwise, and has again brought before us the same record without having renewed his appeal, and without having given security as required by the act. It is scarcely necessary to say that there is neither precedent nor authority for such a proceeding. Mere matters of form may sometimes be dispensed with, but an appeal from the definitive decree of an inferior court is a matter of substance, and must be taken in the manner and within the time prescribed by law. This has not been done. We have been asked to quash the appeal, but there is nothing upon which such a judgment can operate. The only office of a certiorari, in such cases as this, is to bring up the record after an appeal has been duly entered. Inasmuch as there was no appeal pending in this case the writ was improvidently issued, and should therefore be quashed.

Put, in view of the fact that the case was argued at length on the merits, as though an appeal were pending, we have examined the record and find no error therein.

The petition to the court below is so drawn as to render it doubtful whether it was intended as a bill of review or merely an application for a rehearing. If the latter, the action of the court thereon is not reviewabie here. It is only by treating the petition as a bill of review that the assignee could have any standing in this court. As a general rule a bill of review must be founded either on error in law apparent on the record, without the aid of extrinsic evidence, or on matters of fact dehors the record, which have arisen or been newly discovered since the decree, and could not, by the exercise of reasonable diligence, have been discovered before. It is not pretended there is any error apparent on the face of the assignee’s account, or in the report of the auditor distributing the fund. The application is grounded solely on the allegation that “ since the filing of his account, and the auditor’s report thereon, such a new state of facts has arisen that should entitle ” him to equitable relief. After stating that he had deposited the proceeds of his assignors’ real estate in the banking house of I. O. Kimmel & Sons for safe keeping, and that lie considered it a safe depository, etc., he says, “ that since his account was made out and confirmed, I. O. Kimmel, individually, and I. O. Kimmel & Sons, have made an assignment for the benefit of their creditors, and that their estate will not pay their debts.” This is the only “new state of facts” of .which any mention is made in the petition. The extent of the bankers’ insolvency is not stated, and no particulars in regard thereto are given. Whether such newly discovered facts are sufficient to justify the granting of the relief asked for is more than doubtful; but, waiving the insufficiency of the petition, both as to form and substance, and recognizing the authority of a line of cases which limit the liability of trustees, we are of opinion that upon the facts found by the auditor, and conclusions drawn therefrom, all of which were approved by the court, the learned judge of the Common .Pleas was clearly right in refusing to take off the confirmation either of the assignee’s account or the auditor’s report.

The subjects of complaint in the first five assignments are, the refusal of the court to sustain exceptions to the auditor’s finding of facts and the inferences drawn by him therefrom. As to the former, the settled rule is that facts found by an auditor or master and aj)proved by the court, will not be disturbed except for manifest error. There was no such error in this case. On the contrary, the auditor was fully warranted not only in finding the facts as he did, but his inferences therefrom are substantially correct.

The fund deposited was the proceeds of the assignors’ real estate, sold by order of court, divested of liens. One of the creditors, whose liens were thus divested, was George J. Black, who held judgments for purchase money, first liens on the property, amounting, as the assignee himself says, “ to about two-thirds of the whole fund.” There was no possible excuse for the nonpayment of that amount. The law relating to sales by assignees divested of liens, expressly directs the application of the proceeds to payment of liens extinguished by virtue of such sale, and the assignee is required to give bond conditioned for the faithful appropriation of the money: Purdon 1973, pi. 1. The right of Mr. Black, as the first lien creditor, to two-thirds of the fund was conceded, and it was the clear duty of the assignee to pay as soon as he received the purchase money. If he had done so the amount remaining would have been comparatively small. There was no necessity for depositing money in bank, which should have been forthwith paid to those whose liens were divested by the sale, and permitting it to remain there for months. The excuse given by the assignee for not paying out the money to recognized lien creditors was, that his attorney advised him that he could not safely pay until the fund was distributed by an auditor. In this he is not borne out by the testimony of his attorney, Mr. Kimmel. lie testified that he told the assignee it was better not to pay out any money until an auditor was appointed to make distribution, “ except where he knew it would be safe to pay, where he knew it would be allowed.” They both knew that nearly the whole fund could have been safely paid. Some time after the money was deposited they did pay Mr. Black 01,000 on account of his extinguished liens, and it would have been equally safe to have paid the whole of it at an earlier date.

For these and other reasons given by the auditor, and concurred in by the court below, wre think the relief prayed for was rightly refused.

But, for the reason heretofore given, we can do nothing more than quash the writ on which the record was brought before us.

Writ of certiorari quashed.


author: Mr. Justice Gordon

text:
    Liverpool and London and Globe Insurance Company versus Goehring.
    1. Where, id pursuance of the terms of a policy of insurance, the amount of a loss under the policy is submitted to arbitrators agreed upon by the insured and the company, the legal presumption is that such arbitrators have, in making their award, done their duty. This presumption can only be rebutted by clear evidence of fraud, misconduct or mistake.
    2. The facts of this particular case held not to disclose any evidence of fraud or misconduct on the part of the arbitrators.
    8. An award of arbitrators will not be set aside on the ground of mistake where it is doubtful whether a mistake has been committed, and where, even if it lias, the mistake is of so insignificant a character as to bo unworthy of attention.
    October 25th 1881.
    Before Siiarswood, O. «L, Mercur, Gordon, Paxson, Sterrbtt and Green, JJ. Trunket, J., absent.
    Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1880, No. 87.

      Debt, on a policy of fire insurance for $2,500, by Jacob Goehring against the above named company, to recover for a loss sustained by the destruction by fire of the plaintiff’s hotel. The policy contained, inter alia, the following clause:

      “ If differences shall arise between the parties touching any loss or damage after proof thereof has been received in due form, the matter shall, at the written request of either party, be submitted to two impartial arbitrators, mutually chosen, whose award and that of an umpire, if one is necessary, in writing, shall be binding upon the parties as to the amount of such loss or damage, but shall not decide the liability of this company under the policy.”
    After proofs of loss had been furnished, a dispute arose between the jaarties as to the amount of damage, whereupon the parties agreed in writing upon the appointment of two arbitrators to appraise the damage actually caused by said fire. Goehring was also insured in the Lycoming Eire Insurance Company, and the same appraisers were agreed on to appraise the damage under that [Dolicy. The arbitrators, after being sworn to perform their duties with impartiality, met at the site of the fire in the presence of Goehring and the representatives of the said insurance companies, and spent a considerable portion of the day in their investigations. They made a report, estimating the total damage at $4,013.89, of which amount the insurance company defendant agreed to pay their proportion. The plaintiff, however, declined to accept the award, and brought this suit against the company defendant.
    On the trial, before Hunter, P. J., the plaintiff claimed that the arbitrators had been guilty of misconduct, which vitiated their award. The plaintiff’s testimony on this point was as follows : “It was decided that the arbitrators should come down. So the Lycoming gentleman, and the Liverpool gentleman, and the two appraisers — Baker and Miller — came on according to the arrangement. I wanted to take Miller and Baker around the ruins and give them some instructions about the building and porch. But the Lycoming gentleman objected, and hurried them up. Miller seemed to be in just as big a hurry as the Lycoming gentleman was, and they would not give me any chance to show them anything about the building. I had left out some little things out of my memorandum and I wanted to explain to them. But they knew more about the building than I did, and they would not allow me to speak to the appraisers about it. They took them right off to the ’squire’s office and had them sworn in, and ran them down to the hotel to get them to work as quickly as possible. I went to the hotel -with them. Our friend Baker wanted a drink of water. The Lycoming gentleman said, ‘ Oh, no! you can’t have any water; you must have a pitcher of lemonade.’ lie stood at the head of the stairs and called on somebody to bring up some lemonade. Mr. Stewart got the lemonade and brought it up, when our friend there said to Baker, ‘ I suppose you would like to have a stick in it.’ Baker declined, and said he did not wish a stick in his. They then went into the room and locked themselves in and I went away. I saw that I was not to get any lemonade — that I was to be cut short — and I concluded there was no use of my staying there. Sometime in the forenoon 1 saw them promenading on the street with the insurance men — hunting up evidence, down to Fulton’s mill, and around the ruins of the building— but they took good care to stay away from me. When evening came, and just a short time before the train came, the insurance men walked down to my place and wanted me to come up to the hotel with them. When I went up the old gentleman said, ‘ They have made a very liberal award for you.’ 1 said, ‘ All the better.” They took me into the room where the appraisers were, and I got them to read the list over to me, so I could get a copy of it as they read it. Weeks wrote it off as they read it, for a copy for himself. I took the copy and then said that 1 would not accept the award, as they had left out the biggest part of my house. They had left out the back porch and had only fifty-one doors instead of fifty-nine, and had put the plastering too low, and I would not therefore accept the award.”
    The defendants produced evidence, including the testimony of the appraisers, negativing misconduct or fraud in the appraisement.
    The defendant presented, inter alia, the following point: 3. That there is no evidence sufficient to show fraud or misconduct on the part of the arbitrators. Answer. — It is for the jury to say, under all the evidence, if there was fraud or misconduct, and this must be clearly and satisfactorily proved.
    Verdict for the plaintiff for §2.517.33, and judgment thereon, whereupon the defendant took this writ of error, assigning for error the submission to the jury of the question of fraud and the refusal of the above point.

      Mdgar (6 Frank Cowan, for the plaintiff in error.

      John F. Wentling and James 8. 'Moorhead, for the defendant in error,
    cited Bobinson v. Biekley, 6 Cas. 385.
   Mr. Justice Gordon

delivered the opinion of the court, November 7th 1881.

As a copy of the policy of insurance upon which this suit was brought has not been furnished for our inspection, we are not prepared to say that the answers of the court below to the defendant’s 5 th aiíd 9th points are incorrect. Wo have, however, no hesitation in pronouncing the answer to the 3d point erroneous. We have examined the evidence with care, and have failed to discover that the arbitrators were guilty of the slightest misconduct. These arbitrators or appraisers were chosen by the parties under an agreement in writing duly and deliberately executed, and by the terms of that agreement they were to appraise and estimate the true cash value of the loss. They were chosen because they were practical builders, and were expected to make their own estimates, and from those estimates form their judgment.

Therefore, that tl'iey went to a planing mill to ascertain the price of lumber, and to a tinsmith to learn the price of roofing tin, so far from, being evidence of misconduct, was proof of care and consideration — of a disposition to inform themselves of the ruling prices of the materials that had composed the building. They examined the ruins, took what measurements wore necessary, listened to what information Goehring had to give them, received from him a plan of the building, and, if he is tr be believed, he put into their possession an estimate made for im by Greenawalt, an act that looks more like an attempt to improperly influence the arbitrators than any other in the case. Then, after they got all the information they thought necessary, and they were the sole and exclusive judges of what was necessary, they retired to a room in the hotel, and there by themselves, both' parties being excluded, they made their estimate and award. That this estimate was a fairly correct one is evidenced by the fact that Miller offered to rebuild the property for the amount of the award, a proposition which the plaintiff refused to accept. This, then, is the testimony of the arbitrators themselves, nor does the evidence of Goehring, when trimmed of its obvious exaggerations, seriously contradict it. Leaving out the testimony as to the manner in which these men did the work to which they were appointed, the legal presumption is that they did their duty, and that presumption is not rebutted by such evidence as that of the plaintiff. That the “ Liverpool gentleman ” and the Lycoming gentleman ” hurried the arbitrators up so that he had no time to make his explanations and to show them “ some little things ” which he had left out of his memorandum; the running of the arbitrators down to the hotel in order that they might get to work as soon as possible; the call of the “ Lycoming gentleman ” for lemonade instead of water, of which he imagined he was not to partake, and, finally, how that in the forenoon he saw the arbitrators promenading the street with the insurance men, hunting up evidence, down to Fulton’s mill and around the ruins of the building; but they took good care to stay away from me,” which means that, for his own purposes, he took good care to stay away from them. Such evidence as this, so evidently partial, and with such a tone of flippant exaggeration running through it, goes but a very little way to the overthrowing of the award of a'- board of appraisers of the plaintiffs own choosing. One-sided and warped as this testimony evidently is, it reveals nothing that in the slightest degree impeaches the integrity of the board of arbitrators. What if they were hurried up ? Perhaps that was necessary to expedite the business in hand, and, at all events, it was no fault of the arbitrators that the insurance men hurried them up.

That they were promenading the street in search of evidence, so far from being a misfeasance, was, as we have already shown, in the line of their duty.

Then, again, the mistake complained of, if mistake there was, which is doubtful, was of a character so insignificant as to be unworthy of attention. Even wrere it much more important than it is alleged to be, it could not be used to set aside tL award: Speer v. Bidwell, 8 Wr. 23.

The judgment is reversed.

A venire facias de novo was subsequently awarded.