author: Mr. Justice Sterrett

text:
    Connecticut General Life Insurance Company versus McMurdy.
    1. A printed application in a life insurance company was referred to in the policy and made a part thereof. The application was headed ‘‘ Questions to be asked by the medical examiner, who will fully explain the questions and witness the answers and signature of the person examined.” At the time of an examination the medical examiner made certain verbal explanations of the meaning of these printed questions. Held, that the applicant for insurance might properly infer, from what was stated in the caption to the questions, that in answering them he should do so with reference to the construction and explanation given at the time, and if the questions were explained and answered in good faith, according to the interpretation put upon them at the time by the representative of the company, there could be no objection to proving the facts and submitting them to the jury, notwithstanding the insured warranted the truth of his answers to the questions.
    2. Where the questions of fact presented by an issue upon a first count are in some respects different from those involved in that upon the second count, and testimony that was strictly proper under the one might not have been admissible under the other, but no objection was made thereto, if the testimony was competent and relevant under either count, its admission generally was not such error as calls for reversal.
    3. Where different issues are thus tried together, a general verdict is a determination of all the material issues involved, and if the difference in the issues is material, a special verdict on each issue should be demanded.
    4. It seems, that where the damages are fixed by the pleadings, and the only question for the jury is whether the plaintiff is entitled to recover, and the verdict is a general one, the immateriality of one of several counts is no ground for reversal.
    February 4th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of July Term 1878, No. 96.
    Debt by Anna J. McMurdy against the Connecticut General Life Insurance Company, upon a policy of life insurance for $10,000, issued by the defendant company upon the life of John IT. McMurdy, the husband of plaintiff.
    The declaration consisted of two counts. The first alleged a contract of insurance, being the policy issued -by the company, and averred compliance with all the conditions and limitations of said policy-
    The second count averred a certain other contract of life insurance between the defendant and the insured, dated the 20th of March 1875, and consisting of a policy of life insurance, and a certain application therein referred to, and the contemporaneous explanation and agreement as to the meaning of certain portions of said application, and the answers thereto, more particularly detailed thereafter. ' Then followed a copy of the policy, with a copy of the application referred to therein, and the following averment of the contemporaneous explanation made by the defendant’s medical examiner: “And whereas, among the questions in the said application to be propounded to the insured by the defendant’s medical examiner (who, as is therein and thereby stated and agreed, was to fully explain the questions), were the following: (Form B.) 5. Have you ever had any of the following diseases? Answer (yes or no) opposite each. Fits or convulsions ? * * * 8. Have you ever had any malformation, serious illness, or personal injury, or undergone any surgical operation ? If so, state fully its nature, durations and results.
    “And whereas, the said John H. McMurdy was examined prior to and for the purpose of the contract of insurance, so as aforesaid entered into with him by the said defendant, by oiie William M. Orth, the medical examiner of the defendant at Lafayette, Indiana, and in the presence of the general agent for the defendant for the state of Indiana; and whereas, the foregoing questions were propounded in the presence of the said general agent to the said Mc-Murdy by the said defendant, through its medical examiner; and whereas, in answer to one of the said questions, the said insured began to describe a wound he had received, and the said defendant, through its said medical examiner, thereupon asked the said insured some questions as to its character and location, and then and there stated that the injury which the insured was describing did not amount to anything, and was not worth describing, and explained, by its said medical examiner, and by the presence and assent of the said Latson, its general agent for the state of Indiana, to the said insured, that the meaning of the questions in the application were to obtain from the insured a statement of all matters that would leave a permanent effect or would influence the general health of the insured afterwards. And the said defendant, through its said general agent Latson, then and there further stated to the insured that what it, the said defendant, desired to know were all such matters as would influence the risk or chances for life of the insured, and that any temporary hurt could have no permanent effect.
    “ Andhvhereas, the said insured had not had fits or convulsions, or any malformation, serious illness, personal injury, or any of the diseases mentioned in the said form B, nor undergone any surgical operation, any one of w'hich diseases, malformations or operations, or any two or more combined, had left a permanent effect on his health; but all such diseases, malformations, surgical operations, &c., if any such there had been, produced only a temporary hurt, and left no permanent effect upon the insured, and did not influence his general health, or the risk or chances for life, &c.”
    To both counts the defendant pleaded the general issue, and the following:
    1. A special plea, setting forth that the policy of insurance upon which suit was brought was issued upon an application signed by the plaintiff and the insured, in which the latter declared and warranted that each of the answers made to certain questions 'therein-after enumerated, were the full, complete and only answers made by the insured; that they were correctly recorded, and wholly and strictly true, and that no statements respecting the physical condition, health, personal or family history, of the insured, other than those therein made, had been made to any agent, solicitor, examiner or other person on behalf of the defendant; that it was agreed in this application that it should form the basis and become a part of the contract between the parties, and including all its provisions and conditions; that it was further agreed therein that if any answers made by the insured contained any untrue or evasive statement or misrepresentation, or concealment of facts, the policy granted upon the application should be void; that the insured had, in answer to the question propounded to him, whether he had ever had fits or convulsions, answered “No,” and that this answer was untrue, evasive and false, inasmuch as the insured had had fits or convulsions prior to making this answer and statement in the aforesaid applications, to wit, in certain months and years specified.
    2. A second special plea, to precisely the same effect as the first, except that the false negation made by the insured was stated to be in reply to the question whether he had ever had any malformation, serious illness or personal injury, or undergone any surgical operation ; in which case he was required to set forth its nature, duration and results. The answer- was stated to have been false, inasmuch as the insured had had a serious illness or personal injury prior to the time of making said answer, viz., a blow upon the head with a club, and another severe blow upon the head, causing a fracture of the skull, and that a serious illness resulted therefrom.
    To these pleas the plaintiff replied, denying that the insured had had fits or convulsions, serious illness or personal injuries, and issue was joined.
    At the trial, before Briggs, J., the plaintiff offered, in evidence the policy, dated March 20th 1875, and proved the death of the insured, June 5th 1875. The court, under objection, then admitted the report of Dr. Orth, the medical examiner of the company, as to the condition of the insured’s health at the time of the application. (1st assignment of error.)
    The court, also, under objection, admitted the answers to several questions put to Dr. Orth and to Mr. Latson, the agent of the company (the latter having been examined on a commission). From these answers it appeared that the insured was a man of extraordinary physical development, and seemed to be in perfect health; a man of correct habits, vigorous, well built, with perfect physique and stalwart frame, Said Mr. Latson: “ He seemed to be a man of the most perfect health I ever knew.”

      The admission of these several answers constituted the 2d, 5th, 6th and 7th assignments of error.
    The third assignment of error was the admission of the following interrogatory to Mr. Latson, and the answer thereto: “ Did you ever have any conversation with McMurdy in relation to the insurance upon his life ? If so, state what was the nature of the conversation ; what gave rise to it; whether or not you represented the company in any capacity ; and his question in regard to the policy and your answer thereto. Was any one else representing the company, or its interest, present at the time ? If yea, state who it was, and what, if any, were his answers to McMurdy’s question ?”
    Answer: “I had a conversation with John H. McMurdy in respect to insurance upon his life. I represented the Connecticut General Life Insurance Company as general agent for the state of Indiana. He, through me, made application for an insurance upon his life, and Dr. Orth was the examining physician for the company, and made the examination of John H. McMurdy for the insurance on his life, which he effected through me. During the examination I was present. In the form of application used at that time, most of the questions put to the applicant were for the examiner. Among the questions put by the examiner to the applicant was one to the effect whether he had ever had any serious illness or personal injury. In answer to this question, McMurdy began to describe a wound he had received in the leg while in the army. The doctor asked him some questions as to its character and location. After McMurdy’s reply the doctor remarked that it amounted to nothing; that it was not worth mentioning, and then explained to him that the intention of the question w'as to call out anything that would leave a permanent effect or would influence his general health afterwards. I remarked that what we wanted to know was anything that would influence the risk or chance for life, and that any temporary hurt could have no permanent effect. McMurdy said, ‘Well, answer “No” to that question then.’ ”
    The foregoing interrogatory and answer wrere read under objection to Dr. Orth, who was then asked, on behalf of plaintiff, if such conversation had occurred, to which the doctor replied, “ that it did, and that all ofthat conversation was in reference to the gunshot wound.” (Fourth assignment.)
    In the application for the policy, preceding the questions to be propounded in form B, was the following notice: “ Questions to be asked by the medical examiner, who will fully explain the questions and witness the answers and signature of the person examined.”
    Two physicians testified, on behalf of defendant, that they had attended McMurdy in 1871, when he had received a severe personal injury from a blow on the head, in a fight in Lafayette, Indiana; that a number of convulsions resulted therefrom; that he required two assistants to restrain him, and that he was kept under the influence of chloroform for forty-eight hours; the convulsions continued at intervals for about three days. ' The physicians never told McMurdy of the character of his attack or that he had had convulsions, but simply cautioned him to thereafter avoid becoming excited. It was also shown that the insured had been injured by a blow in the years 1871 and 1874, in Georgetown, Colorado, and that he again had convulsions. It was also in evidence that the explanation in regard to the gun-shot wound, was made after the insured had been examined, but before he had signed the application ; that Latson, the agent, was present and the conversation was in his presence. The testimony of the insured’s physician, during his last illness, was that he died of peritonitis, induced by exposure to the cold and wet while rowing on a lake.
    ' The defendant submitted the following points, to which are appended the answers of the court :
    1. The policy in suit was issued in consideration of an application, referred to in the policy, and made a part of the contract, which warranted that all the statements therein contained were true. In determining whether the answers to the questions put to the insured are true or false, it is not necessary to inquire whether the questions and answers are material to the risk or otherwise. If any of the answers are untrue or evasive, the policy is void, and the verdict must be for the defendant.
    Ans. “ In view of Latson’s testimony, I decline this point,'as it takes his testimony away from you, and his testimony must go to you.”
    2. If John II. McMurdy had fits or convulsions prior to the issue of the policy in suit, to wit, in March and April 1871, at Lafayette, Indiana, or in May and June 1871, at Georgetown, Colorado, or in the year 1874 at Georgetown, Colorado, and in the application he answered “ No,”, when asked if he ever had fits or convulsions, then his answer was untrue and evasive, and the verdict must be for the defendant.

      Ans. “ This is so, unless you find that such answer was responsive to the explanation given by Latson touching the questions propounded in the examination. If you find that such answer was true, in view of Latson’s explanations of what was comprehended in the printed questions, it will not prevent a verdict for the plaintiff.”
    Three other points of like tenor with the last were presented, to which the court answered : “ Declined in view of Latson’s testi-
    mony. In other words, for me to answer these points affirmatively would exclude Latson’s testimony, and take it entirely away from you, and that I have no right to do. Whether the answers were true or false must be determined by you in view of Latson’s testimony and all the testimony before you. If you find they were true answers, then the verdict ought to be for the plaintiff. If you find they were untrue answers, then the verdict ought to be for the defendant.
    In the general charge the court, inter alia, said:—
    “ I say to you, that justice requires that McMurdy, or his widow, who comes here as his legal representative, as the lawful claimant for this money, in view of the terms of the policy, should not receive your verdict if you are satisfied Mr. McMurdy was guilty of fraud in procuring the policy. * * * “ [But, if the agent of this company deceived McMurdy by the explanation that he made, either during the propounding of those propositions, or by any statement that he made afterwards before they were delivered or sent on their voyage to the company, then the plaintiff is entitled to protection.”]
    “I have already said to you there is enough in this case to justify this company in requiring the fullest explanation to be made before they pay. If their agent has, by his explanations, qualified away their right, of that which would have protected them, he is the wrongdoer. [If he said to Mr. McMurdy, ‘If you have not been injured in such a way as to leave a permanent effect upon your health, we do not expect you to answer those questions categorically,’ and Mr. McMurdy, in good faith, acting upon that explanation, I say in good faith, for, if it was a shield to ease his conscience, that otherwise would have made him hesitate, that is a fraud; but if, in good faith, he answered these questions in view of the interpretation that was presented to him by the agent, then, there is no fraud; and, if such you find to be the case, you must read, in these interrogatories, the explanation made by the agent at the time, and then read his answer to the interrogatory in the light of such explanation.]
    “ If, then, the answer was false, under the warranty feature of the policy, it does not make any difference whether he knew it or not. The insurance company is entitled .to protection; for, when a man warrants an answer to be true, although he may not know of its falsity at the time, and he believes it to be true, he estops himself by this warranty.
    “ Where there is no warranty and a man states what he believes to be true, and it afterwards appears to be untrue, there being no fraud and no intention to defraud, he does not warrant it and is not estopped.
    “ You have heard the testimony of Latson, the general agent, and Dr. Orth’s testimony; and the doctor says that Latson witnessed the answers to the propositions. That shows that he was there; that a colloquy took place under what is called a review, and that certain answers were made. [If those answers went to all that had been said before, then all that was said before must be understood in view of those answers.] If it was the understanding of the parties that the explanation only had reference to the gun-shot wound, then it would be improper for you to carry the answer that was made beyond the single question, and it would have no effect whatever upon the other questions.
    “ [If the agent qualified the written questions and required the answer to come to these questions as qualified, then you must read in the questions themselves the explanation that was made at the time.]”
    Verdict for plaintiff for $11,610, and after judgment thereon, defendant took this writ, the errors assigned being those above noted, the answers to points and the portions of the charge in brackets.

      M. Arnold and W. S. Price, for plaintiff in error.
    The answers of the insured, by the terms of the policy are warranties, and if they are untrue or evasive, or conceal the facts, the policy is void. We contend, therefore, that the contract excludes any such conversations or statements by the examiner or agent as are here alleged, and the company is not bound thereby, and that it was error to admit testimony as to whether the injuries which the insured had received, and the facts about which he did not disclose, had affected his subsequent health: Seybert v. Etna Ins. Co., 4 Luz. Leg. Reg. 219 ; Smith v. Ins. Co., 12 Harris 320; Cooper v. Ins. Co., 14 Wright 299 ; Ryan v. World Mutual Ins. Co., 41 Conn. 168; Hartman v. Ins. Co., 9 Harris 466; Jeffries v. Life Ins. Co., 22 Wallace 47 ; Etna Ins. Co. v. France, 91 U. S. 510. It having been shown that the insured had fits and convulsions and serious illness and personal injuries prior to the application, it was attempted to evade the breach of warranty contained in the concealment of these facts by showing a conversation in regard to a gun-shot wound.

      A. Sydney Biddle, T>. G-. JEshleman and James W. Pawl, for defendant in error.
    The answers of the insured were true in response to the questions of the company, as propounded and explained by its agent the medical examiner. The question then is, admitting that the insured had had fits and serious personal injuries, were his answers to the questions asking these facts untrue, in view of the explanation authorized by the printed contract to be made to him (and admittedly made to him, the fact of the explanation being testified to by one of the defendants’ witnesses, and corroborated by its general manager for che state of Indiana, being uncontradicted, and being found to be true by the verdict of the jury) ?
    There were two issues tried in the case, whether the insured had convulsions, and if so, was his general health thereby affected at the time of the application ? There was no demand by the defendant, that the evidence should be limited to one particular issue The verdict of the jury was a general verdict upon both counts of the declaration, so that it is immaterial whether the second issue was maintainable or not under the findings on the facts. Where the measure of damages is not apparent on the record, and lies wholly within the discretion of the jury, if a general verdict is given, which is equivalent to a verdict on each count, and one of the counts be bad, a new trial to assess the damages must be granted, because, although the jury has determined the defendant’s liability to the plaintiff, non constat but that they have assessed the damages on one of the bad counts. But this is so only where the measure of damages is variable; as, for example, where the action is for negligence : if one of the counts is bad and there is nothing on the record to show the amount assessed on the good counts, a new trial to assess damages must be ordered. But the rule is exactly the opposite where the elements exist by which the amount of the verdict on the good counts is determinable. So, here, the verdict upon the first count, supposing the second totally irrelevant, was for the plaintiff, and the damages are fixed, being the amount of the policy, with interest thereon till the trial.
   Mr. Justice Sterrett

delivered the opinion of the court, June 2d 1879.

The questions of fact presented by the pleadings in this case justified the admission of the testimony complained of in the first seven assignments of error; and, in view of the testimony, properly before the jury, there was no error in the instructions of the court covered by the remaining assignments. The declaration, as originally filed, contained a single count in debt on the policy of insurance, averring in due form compliance with the terms and conditions thereof and the refusal of the company to pay the insurance money. Subsequently, an additional count was filed, based on a contract of life insurance between the defendant company ana the insured, consisting of a policy and the application therein referred to, together with a contemporaneous explanation o.f the meaning of certain. questions therein contained and the answers required to be made thereto. The questions referred to are contained in form B, entitled, “ Questions to be asked by the medical examiner, who will fully explain the questions and witness the signature of the person examined.” It was claimed that the authority of the medical examiner, to explain the questions to be answered by the applicant, was thus clearly recognised, and that the latter in answering might well be governed by such explanations as were made by the medical examiner. The defendant, without questioning the sufficiency of the second count, by demurrer or otherwise, pleaded nil debet, and two special pleas to both counts, and, in addition thereto, payment with leave to the first count. The special pleas were respectively traversed and thereupon issue was joined.

The questions of fact, raised by the issues on the first count, were substantially whether the plaintiff and her husband had complied with all the terms and conditions of the policy, required of them or either of them; and, more especially^ whether, prior to making the answers and statements referred to in the special pleas, the insured had been afflicted with fits and convulsions or had been seriously ill, or had received personal injuries from which serious illness had resulted.

The questions presented by the issue on the second count, in addition to some of those raised by the first, were in substance whether the company, through its medical examiner and by the presence and assent of its general agent, had made the contemporaneous explanations of the questions therein averred, to wit': that the meaning of the questions was to obtain from the insured a statement of all matters that would permanently affect his general health; that all the company desired to know were such matters as would influence the risk or chances of life of the insured, and that a temporary hurt could have no effect: whether, prior to making the application, the insured had been afflicted with serious illness or any of the diseases mentioned, or had sustained severe personal injury, any one or more of which had produced a permanent effect on his general health1; and whether it was true, as averred, that the diseases, injuries, &e., mentioned in the second count, had produced only a temporary effect, without impairing his general health or diminishing his chances for life.

It will thus be seen that the questions of fact presented by the issue upon the first are in some respects different from those involved in that upon the second count. Hence, testimony that was strictly proper under the one might not have been admissible under the other, if it had been specially objected to on that ground; but, no such objection was made, and, if the testimony was competent and relevant under either count, its admission generally was not such error as calls for reversal. The court was not asked to distinguish between the two counts or instruct the jury to return a separate verdict as to each. In case the plaintiff under the evidence was entitled to recover, there was no room for controversy as to the amount. It was the same under each count, — the sum named in the policy, with interest. If there was a recovery at all, it could be neither more nor less.

The testimony, tending to prove the terms of the contract as laid in the second count, was introduced and submitted to the jury, who, by their general verdict on both counts, found in effect that all the material averments were true. If the contract of insurance, ,as claimed by the plaintiff below, was thus established, it was certainly competent and material, under the pleadings, to prove that at the time of making the contract the health of the insured had not been permanently affected as a life risk by any of the means complained of; that the effect of the injuries, sickness, &c., on his general health had been only temporary; that neither singly nor together had they produced any permanent effect on his health or rendered his insurable risk less valuable to the company. This of course involved an inquiry into his. general health. Much of the testimony, the admission of which is complained of, was of this character, and it appears to us that it was clearly competent under the issues presented by the pleadings. The report of Dr. Orth, the medical examiner of the company, as well as his testimony, was competent and relevant, at least under the second count. He testified that at the time he made the examination for the company, the health of the insured was good; that he was a man of correct habits so far as he knew, and his general appearance was good; that he met him every day and “ considered him a healthy man.” To the same effect, but more pointed and specific, was the testimony of Mr. Latson. His acquaintance with the insured commenced in 1866, and he was present when Dr. Orth made the examination for the company. Speaking of Mr. McMurdy’s health during the time he was acquainted with him, he says, he “ was a man of extraordinary physical development and seemed to be in perfect health. He was vigorous, well-built, with perfect physique and stalwart frame; he seemed to be a man of the most perfect health I ever knew.” This and other testimony of like nature had a direct and important bearing on one or more of the questions to be passed on by the jury; and without specially noticing the several assignments of error, in relation to the admission of testimony, it is sufficient to say that neither of them is sustained.

The testimony being properly before the jury, it was of course the province of the court to instruct them as to its bearing and effect in case they found the facts to be as claimed by the plaintiff. In view of the issues of fact presented by the. pleadings there was no material error in the instructions given to the jury either in the general charge or in answer to points submitted. In referring to the testimony, as to what occurred at the time the application for insurance was being prepared and the explanation then made of the purpose and meaning of certain questions, the learned judge said to the jury: if this explanation satisfies you that he acted in good faith, in answering these questions ; was guilty of no fraud, but answered them truly as he believed them to be in view of the explanations made at the time by the company’s agent, then his answers are not to be held as estopping recovery; simply because viewing them in their limited aspect as to the printed questions would be unfair to the plaintiff, if, in point of fact, the answers were super-induced by an explanation which the agent made at the time.” Again, in portions of the charge embraced in the eleventh and twelfth assignments of error, the jury were instructed that if the insured was misled by the statement or explanation of the agent, the plaintiff was entitled to protection against a strictly literal construction of the printed questions and answers thereto. The learned judge said, “ if in good faith the insured answered these questions in view of the interpretation that was presented to him by the agent, then, gentlemen, there is no fraud; and if such you find to be the case, you must read in these interrogatories the explanation made by the agent at the time, and then read his answers to the interrogatories in the light of such explanations.” In other portions of the charge and answers to points submitted the same views are expressed in different language, so that the jury could not fail to understand that, in connection with the answers of the applicant, it was their duty to consider not only the questions as they appeared in the printed form, but also the explanations and construction given to them by the company’s agent at the time. In view of the testimony before the jury there was no error in this. Indeed the learned judge could not have withheld the instructions complained of without ignoring the force of clear and uncontradicted testimony.

We have not overlooked the fact, so strongly insisted on by the learned counsel for the company, that the insured warranted the truth of his statements and answers to questions contained in the application. This would possess all the controlling effect claimed for it, if the company had not authorized its agent to construe and explain the questions. This authority as we have seen is clearly expressed on the face of the application. In fact it is made the duty of the medical examiner, not only to propound, but also to “fully explain” the questions contained inform B. Surely the object of this could not have been to deceive and entrap the insured. Any intelligent applicant for insurance would infer from what is stated in the caption to the questions that, in answering them, he should do so with reference to the construction and explanation given at the time. If the questions were explained and answered in good faith according to the interpretation put upon them by the representative of the company at the time, there could he no reasonable objection to proving the facts and, submitting them to the jury as was done in this case. If the court had excluded the testimony complained of, and held the plaintiff below to a strict construction of a warranty according to the letter of the questions as they appear in the printed form, a grave error would have been committed. As it was we discover no error in the record that would justify a reversal of the judgment.

■ Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Paxson,

license: Public Domain

text:
    Delaware and Hudson Canal Co. versus Carroll.
    1. Under the provisions of the Mine Ventilation Act of March 3d 1870, “mining-bosses” and “miners”,are fellow servants, and where the death of the latter is caused by the negligence of the former, the owner of the mine is not responsible therefor.
    2. The fact-that said “mining-bosses” are appointed under an Act of Assembly, which prescribes their duties, does not change this relation of “ fellow servant” where it is shown the requirements of the act in regard to their selection have been complied with, and it does not appear they were incompetent or that there was negligence on the part of the mine owner, in their employment.
    3. The action to recover damages for the death of the miner was brought by his widow, within a year, as required by the Act of Assembly. After the expiration of the year it was amended so as to bring in the children as plaintiffs, but no new cause of action was introduced. Held, that this amendment was properly allowed.
    4. Mullan v. Steamship Co., 28 P. F. Smith 25, distinguished.
    March 10th 1879.
    Before Sharswood,'C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Luzerne county: Of •January Term 1878, No. 228.
    Case by Mary Carroll, the widow, and minor children of John Carroll, deceased, against the Delaware and Hudson Canal Company, to recover damages for injuries resulting in the death of said John Carroll, alleged to have been caused by the negligence of the company.
    John Carroll was a miner, employed in the colliery of the company. On the 26th of May 1878, an explosion occurred which caused his death. Suit was brought in the name of the widow the 8th day of November 1873, and on the 23d day of November 1875, a rule was granted to show cause why the children of decedent should not be added as plaintiffs in the case. This rule was made absolute 1st June 1877, and the names of the children were added.
    There were engaged in the mine at the time of the accident a mine-boss, John P. Moore, two fire-bosses, James McDonald and Matthew Gray, and the usual miners and laborers. The court treated the case as if brought under the provisions of the Act of March 3d 1870, “ To provide for the health and safety of persons and property in coal mines.” The portions of the act material to this case are as follows. The eighth section is in these words :
    “ The better to secure the ventilation of every coal mine and colliery, and provide for the health and safety of the men employed therein, otherwise, and in every respect the owner or agent, as the case may be, in charge of every coal mine or colliery, shall employ a competent and practical inside overseer, to be called mining-boss, who shall keep a careful watch over the ventilating apparatus, over the air-ways, the travelling-ways, the pumps and sumps, the timbering; to see, as the miners advance in their excavations, that all loose coal, slate or rock overhead is carefully secured against falling ; over the arrangements for signaling from the bottom to the top, and from the top to the bottom of the shaft or slope, for the purpose of talking through; and all things connected with and pertaining to the safety of the men.at work in the mine. He or his assistants shall examine carefully the workings of all mines generating explosive gases, every morning, before the miners enter the coal mine or colliery, and shall ascertain that the mine is free from danger; and the workmen shall not enter the mine until such examination has been made and reported, and the cause of danger, if any exist, be removed; and he or his assistants shall also, every evening when the workmen leave the mine or colliery, go over the mine and see that the doors or passage-vrays are all properly closed, and that all the air-ways are free and unobstructed to the passage of air through them; and it shall be the duty of the mining-boss to measure the ventilation at least once per week, at the inlet and outlet, also at or near the face of all gangways; and all measurements to be reported to the inspector once per month.”
    The concluding or twenty-fourth section is as follows:
    “For any injury to person or property, occasioned by any violation of this act, or any wilful failure to comply with its provisions, by any owner, lessee or operator of any coal mine or opening, a right of action sh'all accrue to the party injured, for any direct damages he may have sustained thereby; and in any case of loss of life, by reason of such violation or wilful failure aforesaid, a right of action shall accrue to the widow and lineal heirs of the person whose life shall be lost, for like recovery of damages for the injury they shall have sustained.”
    The duty of the fire-boss, who was an assistant of the mining-boss, was to examine the chambers every morning before the men commenced work and ascertain whether fire-damp was present in the chamber. There was no evidence tending to prove that the mining-boss or the fire bosses were incompetent to discharge the duties of their respective positions, or that there was any negligence on the part of the company in their employment.
    The plaintiffs alleged that Moore, the mining-boss, was negligent ; that on the morning of the accident he failed to do his duty in a department which was exclusively under his oversight and control ; that he permitted dangerous and explosive gases, which had accumulated in a breast worked by Carroll, to remain there without warning Carroll of their presence; that when the latter came-to his work, on the morning referred to, he met the fire-boss, James McDonald, who was an assistant of the mining-boss, at the shanty of the latter in the mine, and near the base of the shaft, who told him that his breast or chamber was all right; that Carroll lighted his lamp, which was uncovered and called a naked light, and pro»ceeded into his chamber ; that immediately thereupon an explosion of gas took place, burning Carroll to such an extent that he died a few days afterwards.
    The defendants, while admitting that Moore was the mining-boss and McDonald was his assistant, and, that a quantity of explosive gas had accumulated, on the morning referred to, in the breast or chamber where Carroll was in the habit of working, alleged, on the contrary, that Carroll was warned of the fact, and instructed not to go in there until the assistant, or fire-boss, had brushed it out; that, notwithstanding this warning and instruction, Carroll lighted a naked or uncovered lamp, and in the absence, both of the mining-boss and his assistant, and without their knowledge, went into the forbidden chamber, thus causing'the explosion which cost him his life.
    John Dakin, a witness for the plaintiffs, testified “ Carroll and me went over together to the fire-boss, McDonald. Carroll went up to him and asked him how his place was this morning. ‘ It is all right, John,’ says he, ‘ there is no danger.’ Carroll went right up to his place then. I just hadn’t time to work or anything, only just took off my coat at the box when a little door-tender come running and said, there is two men burned.” * * *
    Carroll was burned so badly that when Dakin was carrying him “ the chunks of flesh fell off into my hands.” Carroll said about a-half hour after he was burned, “ but, wasn’t that (the fire-boss) a terrible man to tell me that there was no gas in there — to send me in to get roasted.”'
    McDonald testified that he was down at the shanty, at the foot of the shaft, on the morning of the accident, when John Carroll came there; and that he told Carroll there was some fire in his breast,
    ■or chamber, and that he must not go in there until he had brushed it out, which he would do as soon as he had attended to some other men who were in waiting.
    Matthew Gray, another witness on the part of the defence, said that he was present at the scene of the disaster soon after it occurred, when John P. Moore, the mining-boss, came up, and seeing the condition of Carroll, the mining-boss asked him “ how it was caused;” whereupon, Carroll replied that “it was his own fault, and that he had nobody but himself to blame for it.” Moore, himself, testified that he came there immediately after the explosion, and seeing Carroll standing on the outside of the gangway, he said to him, “ John, how is this ? did not the fire-boss tell you there was fire in your breast ?” whereupon, Carroll replied, “ Yes, I have nobody to blame but myself.”
    The verdict was for plaintiffs for $4000. The .defendants took this writ and made the following assignments of error :
    1. The court, Harding, P. J., erred in charging the jury as follows :

      “ The action is brought under the provisions of an Act of the General Assembly, passed March 3d 1870, entitled ‘ An Act to provide for the health and safety of persons and property in coal mines.’ ”
    2. In charging as follows:
    “They,” the company, “employed Mr. John P. Moore as their mining-boss, and upon him was imposed the various duties enumerated in the section of the Act of Assembly to which I have called your attention. ' These duties constituted a distinct branch of the mining operations carried on in that shaft.”
    “ The mining-boss was the agent of the company, appointed specially to oversee the workings and to maintain all- the instrumentalities indicated by the law as necessary to insure the health and safety of the workmen. He had entire charge of this branch of the business; and, hence, if he was guilty of neglect of duty, and the life of John Carroll was lost in consequence, the widow and children, plaintiffs here, may recover against the common employer. The negligence of the agent, or as in this case, the negligence of the mining-boss, is the negligence of the employer, and the latter is responsible therefor.”
    3. In charging as follows :
    “Was the mining-boss, John P. Moore, or his acknowledged assistant, James McDonald, guilty of negligence on the morning of May 26th 1873 ?”
    4. In charging as follows:
    “ If the testimony of John Dakin is true, the plaintiffs are entitled to recover.”
    5. The court erred in their answer to defendants’ fourth point, viz.:—
    “ The action in this case, so far as the children of the deceased are concerned, not having been brought within one year after the death of Carroll, cannot be sustained as to them, and no other or larger verdict can be found against the defendants than might be rendered if the widow were the only party on the record as plaintiff.”
    The answer thereto was: “ That proposition we negative. The action was brought within the year in the name of the widow. After the expiration of the year, it was amended so as to bring in the children. No new cause of action was introduced; hence, if the plaintiffs are entitled to recover, they are entitled to recover generally, without any difference; certainly without that difference noted in the point.”
    6. The court erred in permitting the addition of the minor children of John Carroll, as co-plaintiffs with Mary Carroll, widow, in whose name alone the suit was originally brought, after more than a year from the date of the death of John Carroll had expired.
    7. The court erred in their answer to the defendants’ fifth point, viz.:—

      “ Under all the testimony in the case, there was negligence on the part of Carroll which contributed to his injury, and therefore the verdict should bo for the defendants.”
    The answer thereto was: “We have clearly stated to you in the general charge, under what circumstances the verdict should be for the defendants. We cannot affirm this point.”
    8. The court erred in their answer to defendants’ sixth point, viz.:—
    “ There is no evidence in this case to establish the negligence of the company defendant; and if the fire-boss was guilty of any negligence or dereliction of duty, then it was the negligence, not of the company, but of a co-employee of the deceased, and therefore the plaintiffs cannot recover.”
    The answer thereto was: “We negatived that point in the general charge; we stated our view's at length in respect to the particular matter involved; we negative it again.”

      Stanley Woodward and Andrew T. McQlintoch, for plaintiffs in error.
    The court erred in assuming that the suit was brought under the Act of 1870. It was in fact brought under the Act of April 26th 1855, and the declaration is at common law, for death caused by negligence. There was no evidence, however, to show that defendants had not conformed to the Act of 1870; that the injury was the result of defective ventilation, or that those in charge of the mine were incompetent. The jury were misled by the charge, and in the submission of the case as entirely under the Act of 1870. There was no evidence that the duties imposed upon the mining-boss “ constituted a distinct branch of the mining operations,” or that the mining-boss had neglected a single duty, or ivas in any manner incompetent'to fulfil the duties of his position, or that he had any authority to employ or dismiss a single miner or laborer, or to employ or dismiss his assistants, the fire-bosses, or that he failed in any way to employ or select competent and careful assistants, or had in any way the right or duty to employ or select his assistants.
    It was error, therefore, to instruct the jury, as a matter of law, that the mining-boss was not a co-employee, but the agent of the company, and that under the evidence they might inquire into the question of his negligence.
    No distinction was taken by the court, in their charge, between the liability of the defendants for the negligence of Moore, the mining-boss, or of McDonald, the fire-boss, and the jury are left to infer that the same rule would apply, whichever of these employees the jury might find to have been guilty of negligence.
    The testimony of Dakin is in contradiction of the testimony of McDonald and Gray, the fire-bosses, in regard to notice to Carroll that there was gas in his chamber. It does not refer to Moore, the mining-boss, or prove any neglect on part of Moore. If taken as true, it only proves that McDonald, the fire-boss, was negligent in not warning Carroll of the presence of gas in his chamber. And assuming that McDonald did not discharge his duty, such failure was the negligence of a co-employee. The defendant certainly was at least entitled to have the question submitted to the jury, under the evidence, whether or not McDonald was the agent of the company, or a co-employee with Carroll; whether or not they were employed in the same general business, and fellow servants therein. That question was taken from the jury, and the binding instruction given, that “if John Dakin’s testimony was true,” they must find for the plaintiffs.
    Mullen v. Steamship Co., 28 P. F. Smith 25, does not sustain the charge of the court.
    The miner and the mine-boss and his assistant were “ acting together, under one master, in carrying out a common object,” employed in the same mine and in the same general business, and must, therefore, under the well-settled authorities, be held to be fellow servants: Morgan v. Vale of Neath Railway Co., Law Rep. 1 Queen’s B. 149; Howells v. Landore Siemens Steel Co., Law Rep. 10 Queen’s Bench 62; Murray v. Currie, Law Rep. 6 Common Pleas 24; Feltham v. England, Law Rep. 2 Queen’s Bench 33; Gallagher v. Piper, 111 Eng. C. L. 668; Murphy v. Smith, 115 Id. 361; Wilson v. Murray, Eng. L. Rep. 1 H. L. Scotch Cases 326 ; Caldwell v. Brown, 3 P. F. Smith 453. The principle governing this case was decided in the recent case of the Lehigh Valley Coal Co. v. Jones, 5 Norris 482, where a mining-boss was held to be a “ fellow servant.”

      Henry W. Palmer, Charles Pike and John Lynch, for defendants in error.
    The company did not have the necessary appliances to supply the requisite quantity of fresh air, and are responsible for an accident resulting therefrom.
    The Lehigh Valley Coal Co. v. Jones, is distinguishable from this case. There was a superintendent in that case who had control of the mine. Here it was not shown that there was any other superintendent than the mining-boss. He was in charge of the mine and stands next to the company. He is the superintendent, and should be considered so under the ruling in the Lehigh Valley Coal Co. v. Jones, supra.

    In case of a corporation like the plaintiffs, “ It is not the company but the officer to whose care is committed this particular' department of its business, wrho is expected to use ordinary care in the conduct thereof, and whose negligence therein is the negligence of the company Mullen v. Steamship Co., 28 P. F. Smith 25. A master is liable for injuries suffered by his servants, where, by his own negligence or malfeasance, he has enhanced the risk to which the servant was exposed by the natural risk of the employment, or has knowingly, and without informing the servant, used defective machinery which has caused the injury: Wedgwood v. C. & N. W. Railroad Co., 41 Wis. Rep. 478 ; The Cumberland & Pa-. Railroad Co. v. The State of Maryland, use of Morgan, Court of Appeals, Maryland, 2 L. & E. Rep. 529; Cayzer v. Taylor, 10 Gray (Mass.) 474: Snow v. Housatonic Railroad Co., 8 Allen (Mass.) 441; Fifieldz;. Northern Railroad Co., 42 N. H. 225; Noyes v. Smith, 28 Vt. 59.
   Mr. Justice Paxson,

delivered the opinion of the court, May 7th 1879.

This was an action on the case brought by the widow and minor children of John Carroll, deceased, against the Delaware and Hudson Canal Company, to recover compensation for injuries to the said John Carroll, resulting in his death.

We are unable to say that the court below erred in its charge to the jury, as contained in the first specification, that the action was brought under the provisions of the Act of Assembly, passed March 3d 1870, entitled, “An act to provide for the health and safety of persons and property in coal "mines.” The declaration is not given, but wre infer from the points submitted, the charge of the court, and the manner in. which the case was tried, that the action was under the Act of 1870. The plaintiffs below evidently so regarded it, and it is no hardship to them to dispose of the case upon that theory.

Assuming then that the action was so brought, what are the responsibilities of the defendants under the act V The 24th sect, thereof provides (see Pamph. L. 1870, p. 12,) that “ For any injury to person or property occasioned by any violation of this act, or any wilful failure to comply with its provisions by any owner, lessee, or operator of any coal mine or opening, a right of action shall accrue to the party injured for any direct damages he may have sustained thereby; and in case of loss of life by reason of such violation or wilful failure aforesaid, a right of action shall accrue to the widow and lineal heirs of the person whose life shall be lost, for like recovery of damages for the injury they shall have sustained.” The duties enjoined by said act, so far as they relate to this case, are contained in the eighth section, which provides that “ the owner or agent, as the case may be, in charge of every coal mine or colliery, shall employ a competent and practical inside overseer, to be called a mining-boss,” &c. The section then goes on at considerable length to define the duties of the mining-boss, which are in brief to keep a careful watch over the ventilating apparatus, and examine daily the working of all mines generating explosive gases, and to see that they are in a safe condition before the men enter them in the morning, &c., for the better protection of the workmen from danger. The defendants employed one John P. Moore as their mining-boss, who was in charge of the works at the time the accident occurred by which Carroll lost his life. The contention of the plaintiffs is that Moore, the mining-boss, and James McDonald, his assistant, were guilty of negligence, and that such negligence was the cause of the injuries which resulted in Carroll's death; and that the defendants are liable in this action for such negligence.

It is too plain for argument that if the defendants have not violated said act they are not responsible. In what respect have they transgressed its provisions ? They employed a mining-boss, as required by the act, and there is no allegation that he was not a competent and practical man. No attempt was made to show that the defendants were guilty of negligence in employing a mining-boss; that they employed an incompetent man knowing him to be so, or employed him without knowledge of his capacity or fitness, or without making such inquiry as to his qualifications, as a man of ordinary prudence would do. The defendants having placed a mining-boss in charge of the works are not in-default. Much less have they been guilty of a violation of the act, which is the ground and the only ground upon which a recovery can be had. The negligence of the mining-boss, if it exists, might make him liable to the plaintiffs; it certainly cannot render the defendants liable under this Act of Assembly. We think, therefore, there was error in those portions of the ■ charge contained in the second, third and fourth specifications.

The fifth and sixth and seventh specifications are not sustained. The objection to joining the minor children as co-plaintiffs with the widow, notwithstanding more than a year had elapsed since suit brought, is purely technical, and without merit. The action was commenced by the widow within one year from the time the injm-y occurred. Bringing in the children subsequently by amendment, introduced no new cause of action, and worked no injury to any one, even if the suit were brought under the Act of 1855. The aforesaid Act of 3d March 1870, contains no provision limiting the time within which suit must be brought for a violation of its provisions. In regard to the seventh specification, it is sufficient to say that we do not think the court was required to say under the evidence that Carroll was guilty of contributory negligence.

It remains to consider the eighth specification, which refers to the defendants’s sixth point. The learned judge negatived it both in his general charge and in his answer. We think it was error to decline the point whether we regard this action as brought under the Act of 1870 or 1855. If under the former the defendants are not responsible for the negligence of the mining-boss, as has already been stated; if under the latter, the plaintiffs are met with the difficulty that the mining-boss was á co-employee of the deceased. There is no room for the allegation that a mining-boss under the Mine Ventilation Act of 1870 is an agent of the mine owner or a co-employer. He is clothed with no powers of engaging and discharging miners and laborers at pleasure. He is merely a fellow servant with the miner. He is nowhere in the act designated as the agent of the owner of the mines. His duties are specified in the same manner that the duties of the engineer are specified in the 16th sect., and as the duties of other employees are defined in various other sections. He has no general power of control. His duties are confined to special matters. That they are different from those of others of his fellow co-laborers, or even' that they are of a higher grade does not matter: Caldwell v. Brown, 3 P. F. Smith 453; Wright v. N. Y. Central Railroad Co., 25 N. Y. 565 ; Morgan v. Vale of Neath Railroad Co., Law Rep. 1 Q. B. 149. This view is not in conflict with Mullan v. The Steamship Co., 28 P. F. Smith 25. There the hands employed were under the charge of John Corcoran, the chief stevedore. He engaged and discharged them at pleasure. Under the evidence it was held that it was for the jury to pass upon the relations between the stevedore and the laborers, and to find whether they were engaged in a common employment. In the case in hand, the duties of the mining-boss are fixed by an Act of Assembly. It is not, therefore, essential that a jury should fix the relations between the mining-boss and the deceased.

The case of Howell et al. v. The Landore Siemens Steel Co., Limited, Law Rep. 10 Q. B. 62, is directly in point. There the defendants were the owners of a colliery within the Coal Mines Regulation Act of 1872 (35 & 36 Vict. c. 76), and they had appointed a certified manager, as required by sect. 26. A miner employed in the colliery was killed by an explosion of fire damp, caused by the negligence of the manager. It was held “ that the fact that the manager was appointed pursuant to the act did not put him in any different position from that he would have held had he been simply appointed manager; and that he was a fellow servant with the deceased, and the defendants were therefore not liable to the representatives of the deceased for his death.”

Judgment reversed.


author: Mr. Justice Trunkey

text:
    Black versus Black.
    On its face a paper was a will formally executed as such. The fifth clause, in which the residue of the maker’s real and personal estate was given to his son, contained the following: “ It being'understood that he, the said son, is to remain on the farm and assist in working it, and render his parents such assistance as their circumstances may require.” It was alleged by the son that this will was made in pursuance of a parol agreement made fourteen years previous, wherein it was stipulated that if he remained upon the farm, worked the same and rendered the aforesaid assistance to his parents, he should have the farm absolutely on the death of his father, and that a writing should be drawn to evidence this agreement. It appeared that the son was living on the farm with his family, cultivating fields and in exclusive occupancy of a part of the dwelling-house against his father’s consent. The father gave him three months’ notice to surrender possession, and upon refusal brought ejectment. Held, that he was entitled to recover possession.
    March 11th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Bradford county: Of January Term 1878, No. 27.
    Ejectment by John H. Black against Niram A. Black, for a farm, consisting of one hundred acres of land, in Bradford county. The defendant was the youngest son of the plaintiff, and when suit was brought was about forty years of age. On his part, it was alleged that about the time he became of age he entered into' a parol agreement with his father, that he would remain at home and aid in working the farm and render his parents such assistance as their circumstances might require, and that if he did so, then the farm should belong to him after his father’s death absolutely, and that defendant should have a writing to that effect. That in pursuance of this arrangement a will was made in 1857, wherein the farm was devised to defendant and the personal property divided between the plaintiff -s wife and his daughter, Nancy. It appeared that the defendant continued to live upon and work the farm up to 1871, with the exception of two years when he was in the army. In the meantime, Nancy was married, and in 1871 the plaintiff was induced to prepare another paper, in which all the personal property was bequeathed to defendant. This paper was in all respects a will and was formally executed as. such on the 13th of August 1871. Its fifth item was in these words :
    5th. I give and bequeath to my son, Niram A. Black, all the rest and residue of my estate, real and personal, after paying therefrom all my funeral expenses, and those of my said wife, and erecting suitable stones with appropriate inscriptions, to mark our final resting-place. It being understood that he, the said Niram, is to remain on the farm and assist in working it, and render his parents such assistance as their circumstances may require.
    After the execution of this paper, it appeared the defendant exercised rights of ownership over the property and attempted to assume entire control of the farm, to the exclusion of his father, among other acts, leasing the farm to one Sweatland, without his father’s consent, the one-half of the proceeds to be paid to defendant as landlord. An arrangement was made, however, by which the landlord’s share was paid to the father. While Sweat-land was in possession, the plaintiff informed defendant that he did not wish him to return to the place, but before Sweatland moved out the defendant took control and assumed the management of the farm, against the wishes of his father, and refused to surrender possession. On the 31st of December 1873, the plaintiff served a written notice on defendant to surrender possession on the 1st of Api’il following, and, upon a failure to comply therewith, this ejectment was brought on April 2d 1874.
    ' At the trial the plaintiff gave evidence of his title to the land and possession in defendant, and rested. The defendant set up as a defence, that his parol arrangement with his father and the will devising the property to him, gave him an interest in the property, and he had a right to do all he had done.
    The following were among the points presented by plaintiff, with the answers of the court, Morrow, P. J.
    1. That if the jury believe that N. A. Black made the agreement with his father, as per writing dated March 27th 1872, to pay him part of the proceeds of said farm, he became the tenant of J. H. Black, and that the tenancy continued till it was terminated by notice to quit from J. H. Black, the 1st of April 1874, and the plaintiff is entitled to recover.
    Ans. “ This point is refused. The paper referred to is to be construed in connection with the lease with Sweatland, and the circumstances under which the lease was made.”
    2. That if the jury believe from all the evidence that John H. Black agreed with his son Niram Black, under the will of the former, that he, the said Niram, should remain on the farm and assist in working it, and render his parents such assistance as their circumstances required during their lives, that such agreement gave him no right to, or control over the farm; and his staying on the farm and working with his father and improving it, could not give him such an interest as he could hold possession against his father’s consent.
    Ans. “Affirmed. In affirming it, however, we do not say that the defendant had not the right under the arrangement to remain on the farm with his father. The defendant cannot hold adversely to his father, but must remain in possession with him under the facts assumed in this point.”
    The following points were presented by defendant to which are appended the answers of the court.
    1. That, the papers of 1857 and of August 13th 1871, signed by J. II. Black, were (as far as the farm in controversy is concerned) irrevocable and entitle the defendant to remain on the farm, and the plaintiff cannot recover if the jury believe that since 1871 he has been on the farm assisting his parents as their circumstances required, or away from the farm by plaintiff’s consent.
    Ans. “ Affirmed; that is, if the jury find the agreement between the plaintiff and defendant was such as set up by the defendant and he performed the contract on his part.”
    2. That there being no evidence of ouster by the defendant of the plaintiff, nor proof of a denial of plaintiff’s right to remain in possession of the farm, the plaintiff cannot recover.
    Ans. “Affirmed.”
    Verdict for defendant, and after judgment thereon, plaintiff took this writ, inter alia, assigning for error, the answers to the above points.

      H. W. Patrick and JElhanan Smith, for plaintiff in error.
    The will, of itself, would not give any right in the land to the defendant during the life of his father; but it is contended, on the part of the defendant, that this will is connected with a parol contract between the defendant and his father that converts the will into a contract and renders it irrevocable. If it is a contract, then the whole arrangement is by parol, and is without consideration and void, and it is clear that no consideration could be added to it after-wards, by a concurrent possession of the land with the father. A nude promise can not be enforced either in equity or at law, and this is emphatically true in regard to a promise to give by will : McClure v. McClure, 1 Barr 874. The will itself was such an instrument as was revocable, and the plaintiff could have revoked it the next day: Bash v. Bash, 9 Barr 260. The arrangement alleged by defendant was that he should stay and assist his father. The will says, that it is understood that he should do so. Does this add to or take anything away from the will, or create any personal interest in the defendant in the land in question.
    The first point of plaintiff should have been affirmed; at least, it should have been submitted to the jury to say under all the evidence whether or not the relation of landlord and tenant did not exist, and if they found any existing to find for the plaintiff. The agreement was to pay a part of the proceeds of the farm for its use, and the farm was occupied by Sweatland by an arrangement made with defendant : Sterretti).Wright, 8 Casey 259; Clark v. Smith, 1 Id. 137.
    The second point also should have been affirmed. The defendant had been notified by his father, that he did not want his assistance, and had served on him notice to leave the premises; he had at the time the exclusive possession of a part of the house in which he lived. The point assumed that the defendant was holding against the consent of his father.
    The will in itself was a complete instrument; there was nothing that required parol testimony. It did not depend on whether or not the defendant performed or did not perform. If the will was revocable at the time it was made, it continued so. If a will is to be construed into a contract by parol testimony of arrangements made between the testator and his children during the life of the testator, it will be a fruitful source of litigation.

      Davies Camochan and Overton JElsbree, for defendant in error.
    The defendant sets up no present title to the farm. He has never claimed any right to exclusive possession. What he insists upon is simply that he shall not be turned out of doors and away from the farm, when it was agreed between him and his father he should remain during the lifetime of his parents.
    Defendant under the parol agreement and the instrument of writing has complied in every respect with what he promised to do. It is now urged this contract may be repudiated, first, because the agreement was by parol. We answer that the contract was in writing, and signed by the party to be charged. Second, It is said the instrument of writing is a will, and cannot take effect until after the death of plaintiff, and could be revoked at any time. We answer, the paper is in form a will, but the stipulation in the fifth item shows that it was intended to take effect in the lifetime of the plaintiff.
    The distinguishing feature of a will is, that it shall not take effect during the lifetime of the maker. It matters not as to the form, whether the instrument be in that usually adopted for a devise, or of a deed, provided it clearly appears that a will and no more was intended. And the test seems to be this, whether the instrument is to take effect wholly after the death of the maker, or whether it is to go into operation as to some parts, at least in his lifetime. In the former case the instrument is considered a will; in the latter, a deed: Bouv. Inst., sec. 2132, citing Allison v. Allison, 4 Hawks. (N. C.) 141, 171; Cumming v. Cumming, 3 Ga. 460, 484; Jackson v. Culpepper, Id. 569, 573, 574; Att’y Gen. v. Jones, 3 Price. Ex., ch. 368; Thompson v. Browne, 3 Mylne & K., ch. 32. In Johnston v. McCue, 10 Casey 180, the instrument was in every respect as to form and language a will. There was a contemporaneous agreement in writing, whereby the devisees promised to pay annually to the testator a certain sum of money. The principal instrument was, therefore, held to be a contract in consideration of the payments promised, that the lands should belong to the devisees at death of the testator, on condition of performance by them during his life of their agreements, and not revocable.
   Mr. Justice Trunkey

delivered the opinion of the court, May 5th 1879.

This controversy, between an aged father and his youngest son, is not grateful to witness, though conducted with less acrimony than is frequently exhibited in family disputes. At the trial a wide field was covered in the examination of witnesses, but the case is now brought within a narrow compass. It depends upon the construction of a writing which one party calls a will and the other a contract. If, taken as a contract, it gives the defendant no present right of possession, it need not be determined whether it is a will.

The learned counsel for defendant puts his case thus: The defendant sets up no present title to the farm. He has never claimed any right to exclusive possession. What he insists upon is simply that he shall not be turned out of doors and away from the farm when it was agreed between him and his father he should remain during the lifetime of his parents.” The plaintiff claims to recover possession whether the writing is a will or contract. His second point asked instructions that if the jury believed there was an agreement, substantially as defendant alleged, the latter cannot hold possession. He prayed for no instruction as to the title, nor concerning rights defendant would have after the plaintiff’s decease.

On its face the paper is a will, formally executed as such. The fifth item, in which the residue of the maker’s real and personal estate is given to N. A. Black, contains the following: “ It being understood, that he, the said Niram, is to remain on the farm and assist in working it, and render his parents such assistance as their circumstances may require.” It is alleged by defendant that this will was made in pursuance of agreement, in parol, namely: “ The plaintiff agreed with defendant in 1857 that defendant should remain at home on the farm and assist in working it and render his parents such assistance as their circumstances might require, and that if he did so then the farm should belong to the defendant after his father’s death absolutely, and that defendant should have a writing to show that the farm would be his;” and consequently the will is irrevocable, and binding between these parties as a contract. If this be the contract, who- is entitled to possession of the farm during the vendor’s life ? His contract was to give it at his death, and putting it in form of a will, by its own operation, would vest the title then, and, by irresistible inference he was to retain possession till then. The consideration was services of the vendee to be rendered on the farm. These services were labor and assistance, not control of the farm nor seizure of its products. The vendee is not made tenant during the vendor’s life, to receive the income and dole out subsistence to his parents. Nor is there any provision for joint possession, for joint management, or an interest in common in the use and profits. The parents wished the son, who had just arrived at majority, to remain with them, and, as inducement, promised him the homestead at the father’s death. 'Such arrangements are not infrequent and have not been understood as vesting in the son present proprietorship, and subjecting the parents to his mercy. Often the parties live in peace for many years and end in strife, as in this case; but now is not a time, to descant on the folly of such loose agreements between parents and children. If the defendant offers to remain and the plaintiff forbids, if he tenders performance of the work and assistance required by his obligation, and holds himself in readiness for such performance, and the plaintiff refuses to receive, the contract will not fall by his delinquency.' He has as little right to remain on the farm by strong-hand, and compel acceptance of labor on it, as he would have to force a money consideration into the vendor’s pocket.

The record shows affirmance of defendant’s second point, to wit, “ There being no evidence of ouster by the defendant of the plaintiff, nor proof of a denial of plaintiff’s right to remain in possession of the farm, the plaintiff cannot recover.” It is said the affirmance is a slip of the pen, and it seems so from the charge. We refer to it only to call attention to the undeniable fact that the defendant is living on the land with his family, cultivating fields, and in exclusive occupancy of a part of the dwelling-house, against his father’s consent. The plaintiff’s second and third points should have been unqualifiedly affirmed, and defendant’s first point refused. It is unnecessary to remark upon other alleged errors in the trial.

It is evident that, following defendant’s marriage, there was an express or implied arrangement in reference to use of the farm, division of crops, and occupancy of the house; but there is no evidence that it was to continue for any definite time. Ample notice was given to defendant to quit, before commencement of the action.

The contract, as proved by defendant himself, was tersely and fairly stated by his counsel, and his rights thereunder have been considered as if it were well proved and valid. Impelled to the conclusion that, on his own showing, he has no defence against the plaintiff’s claim of possession, we refrain from expression of opinion as to sufficiency of proof to establish the alleged parol agreement, and defendant’s right to recover damages in case of breach thereof; or whether there is evidence to warrant submission of any question to a jury which would make the apparent will a contract.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    Borough of Pittston versus Hart.
    1. It is tlie duty of a municipality to keep the approaches to dangerous places on its streets so guarded as to protect travellers. It must keep its streets in such order that even “ skittish” horses may be employed without danger.
    2. At a point on one of the principal streets of a town of about ten thousand inhabitants, a railroad runs parallel with the street, but about twelve feet below its level. There is no railing at the side of the street. A team of horses became frightened at a passing engine, ran over this unguarded side, and the driver was seriously injured. Held, that the direct cause of the injury, was the want of a proper barrier at the side of the street, and that under the circumstances, the question of the negligence of the town authorities was properly left to the jury.
    March 12th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Luzerne county: Of July Term 1878, No. 70.
    Case by Hugh Hart against the Borough of Pittston, to recover damages for injuries to the plaintiff’s son and a team of horses, resulting from an accident alleged to have been caused by the negligence of defendant, in not constructing a railing along a dangerous portion of a street in said borough. The, material facts are stated in the opinion of this court.
    At the trial, before Handley, J., the defendant submitted the following points:
    1. That the borough of Pittston is not responsible for an accident caused by a runaway team of horses in its streets, such as the accident for which plaintiff claims damages.
    Ans. “ Refused.”
    2. That the borough of Pittston is not bound to erect, at the point of the accident, a railing or barrier strong enough to stop a running team of horses, if she is bound to erect any railing or barrier at all.
    Ans. “ This point we cannot affirm. It was the duty of the borough of Pittston, through her proper officers, to keep the approaches to this wall so guarded as to protect travellers. A highway must be kept in such order that even ‘ skittish’ animals may be employed without risk of danger.”
    In the general charge, the court, inter alia, said:
    “ Now, it is safe to say to you that if there had been a fence or a barrier placed upon the top of this wall, and young Hart was driving along this street in the borough, and this engine came along, in the manner testified to by the witness, he would, bearing in mind the condition of this place, have had more control over his team, and would have felt much safer in handling the team than he did, knowing that there was no guard whatever upon this wall. It was very natural for him, the moment he discovered there was danger, instead of attempting to take care of his team and his wagon, to take care of his own life. Whereas, if the road there had such a guard as the law requires, then of course he might, under the circumstances, have controlled his team and prevented them from passing over the wall.”
    The verdict was for plaintiff for $237.
    Defendant assigned for error the answers to the above points and the foregoing portion of the charge.

      G. S. Stark, for plaintiff in error.
    The borough is not liable for accidents caused by horses that have broken away from or are not under the control of their driver: Titus v. Northbridge, 97 Mass. 258; Fogg v. Nahant, 98 I'd. 578; Moulton v. Sanford, 51 Me. 127; JBabson v. Rockport, 101 Mass. 93.
    The fright and running of the horses were the proximate cause of the accident; the condition of the highway was the remote cause. The borough is not, therefore, liable: Penn. Railroad Co. v. Kerr, 12 P. E. Smith 353.
    The jury were instructed that Hart could have controlled his horses and prevented the accident, if there had been a barrier on the wall. After such a charge, it only remained for the jury to find the amount of damages.

      S. J. Strauss and H. W. Palmer, for defendants in error.—
    Travellers have a right to the whole width of a road as laid out, and if unlawful obstructions or pitfalls are allowed to remain on the margin, the road is not safe and convenient, as required by law : Stinson v. The City of Gardiner, 42 Me. 248; Johnson v. Whitefield, 18 Id. 286; Sherman & Redf. on Negligence, § 383; Bryant v. Biddeford, 39 Me. 194.
    Where a rail or barrier is necessary for the proper security of travellers on the road, which, from its nature, would be otherwise unsafe, and the maintenance of which would have prevented the injury, it is negligence not to construct and properly maintain such barrier: Lower Macungie v. Merkhoffer, 21 P. E. Smith 286; Newlin Township v. Davis, 27 Id. 317 ; Scranton City v. Dean, 2 W. N. C. 467; Sherman & Redf. on Negligence, § 391; Alger v. Lowell, 3 Allen (Mass.) 402; Hey v. Philadelphia, 31 P. F. Smith 44; Wharton on Negligence, § 968.
   Mr. Justice Gordon

delivered the opinion of the court, May 7th 1879.

The verdict and evidence in this case establish the following facts: Pittston is a large borough, having a population of some eight or ten thousand. The street upon which this runaway happened, is the main one of the town, and whilst its general width is some sixty-six feet, it narrows to a width of thirty-six feet, including the sidewalk, at the place of the accident. On the west side, and at the point mentioned, some twelve feet lower than the street, is the Lehigh Yalley Railroad, from the track of which up to a level with said street, is a perpendicular stone wall, built, no doubt, for the protection of the railroad. Notwithstanding the circumstances as above narrated made this a notoriously dangerous place, yet this part of the street was protected by neither fence, guard-wall or curb. On the 7th of May 1875, the plaintiff’s two-horse team, in charge of his son, a boy of eighteen years of age, was quietly, and under full control of the driver, passing along the way above described, when the horses took fright from an approaching locomotive, which, as the boy said, by reason of the curve in the road, seemed to be coming down the street, and, in spite of the efforts of the driver, rushed across the road and over the wall above described. The result was one horse killed, the other hurt, the wagon and harness broken, and the boy badly injured.

Complaint is made that the court below suffered the jury to pass upon the question, whether the borough officers were negligent in permitting this precipice to remain unfenced, and whether the plaintiff’s loss resulted from that neglect. But we do not see how the court could have refused so to do. The accident happened directly from the want of a barrier between the street and the cut. The driver was not in fault; he managed his team as well as he could under the circumstances, but he had so little of either time or space in which to control and quiet his horses that his efforts .were unavailing. It is true that without the frightening of the horses, there would have been no accident; but the horse is naturally a timid animal, and is so liable to fright that those having charge of the public highways ought to make reasonable provision for a matter so common and so likely to happen at any time. Horses abound, but horses that never frighten, or are never fractious, are exceedingly rare, and if roads were to be constructed only for such animals, there must needs be but little travelling upon them. We • think it was well said in the case of Lower Macungie Township v. Merkhoffer, 21 P. F. Smith 276, that it was no defence that by careful driving the accident might have been avoided, since that would fall far short of the purpose of a public highway. In the case of Newlin Township v. Davis, 27 P. F. Smith 317, the accident occurred through the fright of a horse upon a bridge, unprotected by side railings; but it was not, in that case, pretended that the omission of such railing was not per se neglect, or that the fright of the horse relieved the township of liability. Now, it is hard to understand why a precipice at the side of a narrow street, does not require fencing quite as much as the sides of a bridge. Such in fact is the very point in Macungie v. Merkhoffer, for there it was held, that the. township was bound to fill up, or fence off, a dangerous excavation at the side of a public road. We can readily understand and excuse the want of precautions of this kind in wild and sparsely-settled portions of the state, for the finances of the townships are exhausted in the making of roads even of an inferior character; but we can neither understand nor excuse the motive of a borough of ten thousand inhabitants, in refusing to properly guard a place on its main thoroughfare, so dangerous as that now under consideration, especially when the expense of so doing would be but trifling. In Hey v. Philadelphia City, 31 P. F. Smith 44, we have a much stronger case for the defence than the one in hand, for there the roadway was of good width and at least partially protected by the sidewalk and curb; besides this, the driver had left his seat by jumping from the buggy — the horse had torn away from him, and it was whilst in its undirected flight that it went over the river bank. Here, on the other hand, we have not only the proximity of the railroad, but a very narrow and wholly unprotected street, and we have also the driver maintaining his seat and endeavoring to guide his team to the very last moment. There is certainly, then, but little, if any, doubt but that the negligence of the borough authorities was the direct cause of the accident complained of, with its resulting damages.

Judgment affirmed.


text:
    Montz versus Morris.
    1. A member of a firm may, with the assent of his co-partners, set-off, in an action against him individually, a debt due to the firm by the plaintiff in the action.
    2. Proof of the account and of the assent of the partners to its use, are all that is required; it is not necessary that the account should be assigned to the defendant.
    March 12th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Luzerne county: Of January Term 1879, No. 142.
    This was an action brought by Thomas Morris, before an aider-man, against J. A. Montz, for the price of a cow sold to defendant. The alderman gave judgment for the plaintiff and defendant appealed to the Common Pleas.
    The pleas were non-assumpsit, payment, &c., which were amended during the trial, by adding “ payment with notice of defalcation, set-off and payment with leave.” At the trial, before Stanton, J., it appeared that Montz was a member of the firm of Landmesser & Co. To this firm Morris owed about one hundred dollars. When Montz bought the cow, he credited Morris with the price, fifty-five dollars, on the firm books. Without paying anything on his account, Morris demanded the money for the cow, claiming it was sold to Montz and not to the firm.
    Defendant offered to show that, after giving credit to the plaintiff for all payments, including that' of the cow, there remained a balance due to Landmesser & Co., from the plaintiff, of sixty-nine dollars.
    Plaintiff objected, upon the ground that any indebtedness of Morris to the firm could not avail the defendant in this case, he having no assignment of the claim, and that the firm debt could not be set-off against an individual debt; and further, that the offer was not made to prove indebtedness prior to the bringing of this suit. The court sustained the objection, on the ground that there was no assignment of the claim. (First assignment of error.)
    The defendant proposed to ask a witness : “ You have already stated that you are one of the partners ; state whether or not you assent to the use of the book-account of the firm by Mr. Montz as an off-set in this case ?” The court refused to allow the question, on the ground that it was leading. (Second assignment.)
    The defendant then offered the written assent of the members of the firm to the use of the account of said firm by Montz as a set-off. The court rejected this evidence for the reason that evidence of set-off, under the pleadings, was not then admissible.
    In the general charge, the court, inter alia, said: “You have the right, we say, to find, from the manner in which defence was made, how the defendant himself regards this case. Because it is a light to you in reaching a conclusion, to know whether the defendant, in the face of his own testimony; in the face of the testimony of the plaintiff, believes that he was acting for the firm or for himself. [You will notice that in this case there is more than the mere issue that he did not buy for himself. The defence filed yesterday, with our consent, a plea of set-off. That, as we construe it (for it is proper for us to give construction to the pleading in this ease) is in the nature of admission that this contract is between this plaintiff and this defendant; for otherwise it would be absurd for the defendant to claim the right to a set-off as against the plaintiff’s claim.”]

      Q. A. Crates, for plaintiff in error.
    A partner, when sued individually, may set-off a firm account: Wrenshall v. Cook, 7 Watts 464 ; Tustin v. Cameron, 5 Wharton 379 ; Craig v. Henderson, 2 Barr 261; Burke v. Maxwell’s Admrs., 31 P. F. Smith 139. No assignment of claim has ever been held necessary. All that was needed was the assent of the firm.
    The assent of the other members of the firm may be given to the-use of its accounts as set-off, by one of its members, in his individual suit, after suit brought, and upon the trial of the case: Smith & Co. v. Myler & Aber, 10 Harris 40 ; Hart v. Porter, 5 S. & R. 200; Silberburg v. Pincus, 6 Phila. 533 ; Todd v. Lorah, 25 P. E. Smith 155.

      Charles I). Foster and John McG-ahren for defendant in error.—
    The evidence offered under the first assignment of error was inadmissible under the plea of “ non-assumpsit and payment,” and for the further reason that in the offer made defendant did not attempt to show that he either had the assent of his copartners to use their claim as a set-off against his individual liability in this case, or that he held an assignment of their claim for that purpose; or that the debt alleged to be due the partnership, was contracted previous to the "commencement of this suit.
    After plaintiff rested it was too late for defendant to amend by adding the plea of set-off: 1 Tr.. & Haley Pr. 473; Glazer v. Lowrie, 8 S. & R. 498.
   Mr. Justice Sterrett

delivered the opinion of the court, March 24th 1879.

Great liberality has always been exercised in this state in the admission of either legal or equitable set-off; and it is always allowed when by so doing it is practicable to avoid circuity of action and unnecessary costs with safety and convenience to the parties concerned. Since Tustin v. Cameron, 5 Whart. 380, there has been no reason to doubt the right of one partner, with the assent of his copartners, to set-off, in an action against himself personally, a debt due to his firm by the plaintiff in the suit. This was what the plaintiff in error claimed the right to do; -and the burden of his complaint in the first three assignments of error, is that the court refused to permit it to be done. In the first place he denied his individual liability, and in answer to the allegation of the plaintiff below, contended that the claim for which he was sued individually, was the debt of Landmesser & Co., of which.he was a member, contracted by one of the partners in behalf of the firm, and the amount thereof credited to Morris on their boohs. Testimony to this effect was introduced by the defendant below; but, to meet the case presented by the plaintiff’s testimony, in case it should be believed by the jury, he also proposed, as an independent ground of defence, to present the account of the firm and, with the assent of his partners, set it off against the plaintiff’s claim. There was nothing in the state of the pleadings to forbid this, and the testimony should have been received. The reason for rejecting one of the offers was that the account of the firm against Morris, the plaintiff below, had not been assigned to the defendant. This was of course unnecessary. Proof of the account and assent of the partners to its use by the defendant as a set-off, wraS all that was required. The offer complained of in the second assignment of error was erroneously rejected on the ground that the question propounded to the witness was leading ; and that embraced in the third assignment was excluded on the broad ground that evidence of set-off was not admissible under the pleadings. This of course was error. The defendant below had a clear right to prove the account and show the assent of his partners to the use he proposed to make of it. After excluding what was, perhaps, the most available defence the defendant had, under the circumstances, the way was made comparatively clear for a verdict against him. The only other ground of defence, viz.: that the debt sued for was contracted by the defendant’s firm and not by himself individually, was greatly prejudiced, if not nullified, by that part of the charge specified in the sixth assignment, in which the jury were told, in substance, that the plea of set-off was practically an admission by the defendant that he himself had contracted the debt in suit. The reason given by the court for attributing'this novel effect to the plea of set-off was, because “ otherwise it would be absurd for the defendant to claim the right of a set-off as against the plaintiff’s claim.” This, with other portions of the charge complained of, was calculated to prejudice'and mislead the jury.

Judgment reversed, and a venire facias de novo awarded.