author: Mr. Justice Paxson Gordon and Trunkey, JJ.

text:
    King versus Thompson and Wife.
    1. The temporary inability of the husband to support his wife, by reason of sickness, does not bring the wife within the protection of the Act of May 4th 1855, so as to entitle her to the privileges of a feme sole trader. There must be a desertion or a neglect or refusal on the part of the husband, something that involves the wilful non-performance of a duty on his part.
    2. Where suit is brought by husband and wife, in right of the wife for injuries sustained by the latter by reason of the alleged negligence of the defendant, no recovery can be had for any loss the husband may have sustained and for which lie alone could bring suit, or for expenses for which he alone was liable. If by reason of the accident the earning power of the wife is diminished, the loss in a legal sense is the loss of the husband.
    3. _ An opening in the sidewalk, such as is usual in a city for the purpose of light and ventilation to a dwelling, is not per se a nuisance.
    4. Where a person during the evening stepped into such an opening, while passing along a sidewalk of the usual width, lighted by street lamps, and there was also a light immediately over the opening, there was evidence of contributory negligence, and it was error not to submit it to the jury.

      5. Where the facts are ascertained the court may pass upon the question of negligence as a matter of law. Hoag v. Lake Shore & Michigan Southern Railroad Co., 4 Norris 293, followed.
    6. Where the court below refused to submit a point as presented, this court will assume the jury would have found the facts as stated in the point.
    October 10th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 79.
    Case by John Thompson and Elizabeth his wife, in right of said Elizabeth, against Robert H. King, to recover damages for injuries sustained by her from falling into an opening in the sidewalk, at a cellar window of a building of the defendant, on Liberty street, in the city of Allegheny. The opening in the sidewalk was for the purpose of light and ventilation, and was also used for taking in coal. It was about fifteen inches in width, three feet in length and projected from the wall of the house about sixteen inches. It was several feet deep and did not appear to have any cover or guard. Such openings are customary for the like buildings in the city of Allegheny. Mrs. Thompson the plaintiff, a washerwoman, on the evening of the accident was carrying home, assisted by her son, a small lad, a basket of clothes. Mrs. Thompson was on the inside, and in passing the house of the defendant stepped into the above-described opening and thereby received a serious injury. The street was lighted as usual, and there was also a light in a window immediately over the opening.
    At the trial, before Ewing, P. J., the plaintiffs offered to prove by Mrs. Thompson, the length of time she was unable to work and the expense to which she was subjected from the injury caused by the accident, to be followed by evidence, that for some time prior to the injury the husband of witness had been in bad health and she had been obliged to support herself and family. Admitted under objection. First assignment of error.
    Also, to prove the amount of the physician’s bill, and that Mrs. Thompson herself employed him, and was liable personally to pay the bill. Admitted under objection. Second assignment.
    The fifth point of the plaintiffs, and the answer of the court thereto, were as follows:
    If the jury should be of the opinion that plaintiffs are entitled to recover, they may allow the expenses of the care, including medical attendance and nursing, compensation for the physical and mental suffering caused by the injury, for the loss of time, and for any permanent or continuing reduction of power to earn money.
    Ans. “ The point is affirmed. If the jury find that prior to the accident Mrs. Thompson had been supporting herself by her own earnings, and that she contracted for her nursing and attendance of physician, otherwise it is refused, except as affirmed in the general charge.” Fourth assignment.

      The defendant’s second and fourth points and the answers thereto were as follows:
    2. If the jury find that the area in front of the cellar window was such as was usual and customary in the City of Allegheny, for lighting and ventilating cellars, and reasonably necessary for those purposes, then the defendant is not guilty of negligence or nuisance in maintaining it.
    Ans. “Refused.”
    4. If the sidewalk was ten feet wide, and there was a paved space, seven or eight feet wide, between the curb and trees on one side and the cellar window opening or area on the other side, whereon' persons using the sidewalk could pass with ease and safety, and that the way was lighted by a lamp in the window immediately at the opening and by gas lamps in the street, sufficient to enable the plaintiff to have avoided the accident of which she complains, then she is guilty of negligence and cannot recover.
    Ans. “ The fourth point is refused, with the explanation that to entitle her to recover for loss of time and nursing and doctor’s bill, the jury must be satisfied that the plaintiff, prior to the accident, was supporting herself from her own wages, and that she is personally liable for the doctor’s bill.”
    The answers to these points constituted the fifth and sixth assignments.
    The verdict was for the plaintiffs for $2319.75. Defendant asked for a new trial, which the court refused, but required the plaintiff to reduce the verdict to $1200, and judgment was entered for that amount. The defendant then took this writ, and, among others, assigned the foregoing errors.

      A. M. Brown, for plaintiff in error.
    There was not sufficient evidence of the suspension of the marital rights of the husband to relieve the wife of marital disabilities. Mrs. Thompson had no claim to the status of a, feme sole.

    In refusing his fourth point the defendant was debarred of his defence of contributory negligence: Waters v. Wing, 9 P. F. Smith 211.

      George W. Guthrie, for defendants in error.
    Mrs. Thompson was entitled to the privileges of a feme sole trader under the provisions of the Act of May 4th 1855, and to enable her to claim them no decree was necessary : Black v. Tricker, 9 P. F. Smith 13. Whether this opening was lawful was a question for the jury. No one can use a public street so as to make it insecure or hazardous : Shearman and Redfield on Negligence, sect. 383; Dillon on Municipal Corporations, sect. 794 ; Stewart v. Alcorn, 2 W. N. C. 401. A similar nuisance maintained by others does not make this one lawful: Appeal of the City of Philadelphia, 28 P. F. Smith 39.

      October 21st 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

This was an action on the case brought by the defendants in error, John Thompson and Elizabeth, his wife, in right of said Elizabeth, to recover damages for alleged injuries to the wife, caused by her falling into a cellar window opening of a building on Liberty street, Allegheny City. The plaintiff in error, Robert H. King, was the owner of the premises where the accident occurred. There was an opening in the sidewalk at the cellar window of the house, for the purpose of light and ventilation, which was used for taking in coal. This opening was about fifteen inches in width and less than three feet in length, thus projecting into the pavement from the front wall of the house fifteen or sixteen inches. The opening appeared to have been of the usual character for like buildings in the city.

Upon the trial of the case in the court below the plaintiff (Mrs. Thompson) was permitted to testify, against the objection of the defendant, as to the length of time she was unable to work from the injury caused by the accident, and the expense to which she was subjected; also the amount of the physician’s bill for medical attendance ; that she had employed the physician herself; to be followed by evidence that her husband had been in bad health, and that she had been obliged to support herself and family. The admission of • this evidence forms the subject of the first and second specifications of error. The fourth, alleging error in the answer of the court to the plaintiff’s fifth point, raises the same question. These three specifications may be considered together.

As this suit was brought for the use of the wife, it is manifest no recovery can be had for any loss the husband may have sustained, and for which he alone could bring suit. It is equally clear that the husband is entitled to the earnings of his wife, and is liable for her support and maintenance. If, by reason of the accident, the earning power of the wife was diminished, the loss, in a legal sense, is the loss of the husband. If physicians’ bills, medicines and expenses of nursing were incurred, the husband would be liable for their payment. This is the general rule. The exception is where the wife has been declared a feme sole trader, under the Act of 22d February 1718,1 Sm. Laws 99; Purd. Dig. 692, pi. 1, or the Act of 4th May 1855, Pamph. L. 430, Purd. Dig. 692, pi. 5, or is entitled to claim the immunities of a feme sole trader under said acts by reason of the causes enumerated therein. There was nothing in the case to bring Mrs. Thompson within the protection of either Act of Assembly. ' We have nothing but the offer to show that for some time prior to the injury her husband had been, in bad health, and that she had been obliged to support herself and family. The evidence in support of the offer was not printed in the paper-book. Assuming the offer to have been fully sustained, it does not come up to the requirements of the Act of 1855. Its language is: “Whensoever any husband, from drunkenness, profligacy or other cause, shall neglect or refuse to provide for his wife, or shall desert her, she shall have all the rights and privileges secured to a feme sole trader, under the Act of 22d of February 1718.” It requires something more than mere temporary inability, by reason of sickness of the husband, to support his wife, to bring the wife within the protection of this act. There must be a desertion or a neglect or refusal on the part of the husband — something that involves the wilful non-performance of a duty on his part.

The fifth specification alleges that the court erred in not instructing the jury as requested in the defendant’s second point, which was as follows: “ If the jury find that the area in front of the cellar window was such as was usual and customary in the city of Allegheny for lighting and ventilating cellars, and reasonably necessary for those purposes, then the defendant is not guilty of negligence- or nuisance in maintaining it.” This point ought to have been, affirmed. If the opening was merely the usual and customary opening of cellar windows in Allegheny, and was reasonably necessary for the purposes of light and ventilation, it certainly could not be held to- he a nuisance; nor could it fairly be said that the owner was- guilty of negligence in maintaining it. We must take a reasonable view of this question. If it has been customary time out of mind for property-holders in Allegheny to have such openings, it involves a tacit assent on the part of the municipal authorities, as well as a general acquiescence on the part of the public. More than this, if such openings exist at nearly every house, such fact must have been known to this plaintiff as well as others. And if reasonably necessary for light and ventilation, the property-owner is not chargeable with negligence for placing and keeping it there. The jury might have found against the custom, and that the opening was not necessary for the purposes indicated. But the- question should have been submitted to them, and it was error not to affirm the point.

The defendant’s fourth point called upon- the court to instruct the jury that, “ If the sidewalk was ten feet wide, and there was a paved space seven or eight feet wide between the curb and trees on one side, and the cellar window opening or area on the other side, whereon persons using the sidewalk could pass with ease and safety, and that the way was lighted by a lamp in the window immediately at the opening, and by gas lamps in the street, sufficient to enable the plaintiff to have avoided the accident of which she complains, then she was guilty of negligence, and cannot recover.” The court having refused to charge as thus requested, we must assume the jury would have found the facts as stated in the point. It has been held in a number of cases, the most recent of which is Hoag v. The Lake Shore & Michigan Southern Railroad Co., 4 Norris 293, that where the facts are ascertained the court may pass upon the question of negligence as a matter of law. What are the facts here? A sidewalk ten feet wide; a paved space from seven to eight feet wide between the curb and trees on the one side and the opening at the cellar window on the other; the street lighted by a lamp in the window, and gas lamps in the street sufficient to have enabled the plaintiff to avoid the accident. It is really difficult to see how the plaintiff succeeded in getting into the hole. The testimony does not enlighten us. It must be borne in mind that the opening came out only about sixteen inches from the cellar wall. In order to fall in the plaintiff must have walked so close to the house as to touch it with her dress. She was also within the line of the doorsteps, which usually project twice the distance into the sidewalk that the opening did. No prudent person walks within sixteen inches of the houses when passing over the sidewalks of a city. It cannot be done without peril. Even where a street is dimly lighted the line of the houses is always visible. It is proper enough to hold owners of property to a reasonable care over it; yet, at the same time, persons using public streets ought also to exercise some little caution. Without it, there is hardly a street in Allegheny or Pittsburgh where, by reason of some slight inequality in the pavement, a trifling hole, or a loose stone, the passer-by may not fall and sustain injury. The defendant’s fourth point ought to have been affirmed without qualification.

The judgment is reversed, and a venire facias de novo awarded.

Gordon and Trunkey, JJ.

Believing the fourth point was well refused, we dissent from so much of this opinion as reverses the court on that point.


source: Caselaw Access Project

author: Mr. Justice Sharswood

license: Public Domain

text:
    Shaffer versus Greer.
    1. The words “ grant, bargain and sell,” in a conveyance of land in fee-simple, constitute, under the Act of May 28th 1715, sect. 6, a covenant only against acts done or suffered by the grantor. Lessee of Gratz v. Bwalt, 2 Binn. 95, followed.
    2. The word “suffered,” however, necessarily implies that the covenant is not confined to the voluntary acts of the grantor, and it extends to and includes a tax for a municipal improvement assessed on the land during his title.
    3. By the terms of the act authorizing a municipal improvement the assessments were declared to be liens from the date of the commencement of the improvement. In covenant by a grantee to recover from his grantor the amount of an assessment paid by the grantee on this improvement commenced before the execution of the deed: Held, that the assessment was a charge on the land suffered by the grantor, for which he was bound to indemnify his grantee. Held, further, that the assessments being liens from the beginning of the improvement, no difference could be made between the work done before and that done after the execution of the deed.
    4. At the trial defendant offered to show that prior to the execution of the deed, plaintiff was several times on the premises and knew of the improvement going on, and was told by the defendant that the cost thereof would be a lien upon the property, which plaintiff would have to pay, to which plaintiff made no reply. Held, that this evidence was not sufficient to overcome the effect of the covenant as prescribed by the Act of 1715, and was properly rejected by the court.
    October 10th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1878, No. 137.
    Covenant by Wesley Greer against John S. Shaffer, to recover for an alleged breach of the implied covenant arising from the words, “grant, bargain and sell,” in a deed.
    On the 26th of November 1873, defendant, by deed of general warranty, did “grant, bargain and sell” to plaintiff a certain piece of ground situate on Devilliers street, Pittsburgh.
    Prior to said date, the councils of Pittsburgh enacted an ordinance for the grading, paving, &c., of said Devilliers street, and the contract for said improvement was made 23d July 1872, and work commenced thereon 18th November 1872, and completed 23d September 1874. An assessment of over six dollars per foot front was made upon the property conveyed by defendant to plaintiff, of which due notice to plaintiff was given by the city, and by him notice to pay the same given to defendant, to which he failed to respond, and plaintiff was compelled to pay the same to the city.
    The 6th section of the Act of January 6th 1864, Pamph. L. 1133, relating to Pittsburgh, is as follows: “That the said councils are hereby authorized whenever they may deem the same necessary, to cause to be graded, regraded, paved, repaved or macadamized, any public street, lane or alley, or any parts thereof, which is now or which may hereafter be laid out and opened in said city, * * * and to have the same set with curbstone; and the said councils are hereby authorized to levy and collect the cost and expense of the same from the owners of the property bounding or abutting on the portions of said streets, lanes or alleys thus improved by an assessment of an equal sum per foot front of said properties.” The city engineer is to make the assessment, deliver to the city treasurer, and the latter is to give notice to the lot-owners that unless paid within thirty days it will be filed as a lien against the property, and if not paid within the thirty days the treasurer hands the claim to the city solicitor who files the same.
    The 9th section of the Act, Pamph. Law 1135, provides:
    “ The assessment authorized by this act shall be liens upon the property assessed from the commencement of the improvements, for which they were made, and shall, if filed within six months after the completion of said improvements, continue liens for five years.”
    At the trial the defendant offered to show that prior to November 26th 1873, Greer, the plaintiff, was several times on the premises ; that at the.times when he was therein reference to the purchase of said property, the grading was going on, and the witness (defendant) called Greer’s attention to the fact that the improvement was in progress along the street, and defendant told plaintiff the cost of the same would be a lien upon the property, which plaintiff would have to pay, to which plaintiff made no reply. That prior to November 26th 1873, and at that time, the plaintiff knew of this improvement of Devilliers street by grading, paving and curbing being in progress.
    The court, Sterrett, P. J., sustained the objection to this evidence as incompetent and irrelevant.
    Among the points presented by the plaintiff were the following, to which are appended the answers of the court:
    2. The covenant implied from the words, “grant, bargain and sell” is, that the grantor (defendant) had done no act nor created any encumbrance, whereby the estate granted by him might be defeated. The lien created by the grading, curbing and paving of Devilliers street, as shown by the evidence in this case, is not an encumbrance covered by said implied covenant.
    Ans. “ This point is refused pro forma, and the question of law raised therein reserved for consideration by the court in bane.”

    4. Under the evidence in this case the defendant would not be liable on the covenant implied from the words “grant, bargain and sell” for more than the expense of the work up to and including the date of delivery of the deed, to wit, November 28th 1878.
    Ans. “Refused.”
    Yerdict for the plaintiff for $1854, subject to the opinion of the court on the question reserved: “ whether the words, ‘ grant, bargain and sell’ in the said deed, create such a covenant as enables the plaintiff to recover the money thus paid to the city by him.” After argument before the court in banc, Stowe, P. J. (Sterrett, P. J., having meantime been appointed a justice of the Supreme Court), delivered the following opinion:
    The lien arising from the improvement of Devilliers street dates back to the commencement of the work, under the provisions of section 19, Act January 6th 1864, Pamph. L. 1131 ; and was therefore an encumbrance upon the land at the time of the sale, although uncertain as to its amount, and we think must be treated as an act done or suffered by the grantor.
    “ Upon the idea of representation it may very well be said that it was an act done by the grantor, and indeed it does not seem to me to be straining language too far to hold that ‘ suffered’ in the sense allowed or permitted is sufficiently broad to cover the case.
    “ Being of opinion that the words ‘grant, bargain and sell’ imply a covenant against the encumbrance existing in this case at the time of the sale and conveyance, it is now ordered that judgment be entered for plaintiff upon the verdict of the jury upon the question of law reserved on payment of verdict fee.”

      The defendant took this writ, and among other errors assigned the rejection of the above testimony, the answers to the above points and the entry of judgment for plaintiff.

      D. T. Watson, for plaintiff in error.
    The question is whether a municipal lien is an act of the owner within the meaning of the definition adopted in the construction of the implied statutory covenant arising from the use of the words “ grant, bargain and sell.” The sixth section of the Act of May 28th 1715, Purd. Dig. 472, pi. 75, is as follows:
    “And be it further enacted, that all deeds to be recorded in pursuance of this act, whereby any estate of inheritance in fee-simple shall hereafter be limited to the grantee and his heirs, the words grant, bargain, sell, shall be adjudged an express covenant to the grantee, his heirs and assigns, to wit: That the grantor was seised of an indefeasible estate in fee-simple, freed from encumbrances done or suffered from the grantor (excepting the rents and services due to the lord of the fee), as also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express words contained in such deed, and that the grantee, his heirs, executors, administrators and assigns, may, in any action, assign breaches, as if such covenants were expressly inserted. Provided, always, that this act shall not extend to leases at rack-rent, or to leases not exceeding one-and-twenty years, where the actual possession goes with the lease.”
    We say it is not such a lien as a municipal lien which is an adverse right given by the law against the will of the citizen, and is clearly no act of the grantor. Moreover, the assessment which constitutes the lien was made ten months after the delivery of the deed from Shaffer to Greer.
    It has been determined in the construction of the Act of 1715 that these words, “grant, bargain and sell” are a covenant that the grantor had done no act nor created any encumbrance by which the estate granted might be defeated; that it was simply a covenant against the vendor and his acts: Lessees of Gratz v. Ewalt, 2 Binn. 95; Whitehill v. Gotwalt, 3 P. & W. 323; Dorsey v. Jackman, 1 S. & R. 50; Funk v. Voneida, 11 Id. 111; Knepper v. Kurtz, 8 P. F. Smith 484.
    This being so, no recovery should be allowed in this case. By no act of Shaffer was the lien incurred. He did nothing to defeat the title he had granted. He in no way petitioned for or was privy to the action of the city in grading, paving and curbing Devilliers street. He was not even the owner of the property when the assessment which is complained of was made. How, then, could the assessment be said to be his act for -which he was liable under this implied covenant ? But it is said the councils of the City of Pittsburgh represent the property owners, and therefore when they passed the ordinance to grade, &c., it was the act of the property-owners, and the judgment below is sought to be justified on that ground. But this court had already settled that question against the views of the court below in Wilson v. City of Allegheny, 29 P. P. Smith 278. This court there said: “ A municipal lien is an adverse right given by the law against the will of the citizen.” If so, the assessment, the basis of the municipal lien, cannot certainly be said to be the act of the citizen or lot-owner. If not, then this assessment was no act of the lot-owner within the meaning of the above decisions. See also Seely v. City of Pittsburgh, 1 Norris 360; Hammett v. Philadelphia, 15 P. F. Smith 155.
    But again, the implied covenant arising from the statute is a covenant of seisin, and perhaps may be called for some purposes a covenant against encumbrances. It is one of those covenants that is broken as soon as made: Funk v. Voneida, supra; Rawle on Covenants 288 ; Cathcart v. Bowman, 5 Barr 319 ; Wilson v. Cochrane, 10 Wright 232.
    Z>. F. Patterson, for defendant in error.
    Funk v. Voneida, 11 S. & R. 109 ; Whitehill v. Gotwalt, 3 P. & W. 313; Seitzinger v. Weaver, 1 Rawle 377; Knepper v. Kurtz, 8 P. F. Smith 480, clearly limit the operation of the covenant upon which this suit is based to acts done or suffered by the grantor himself, or those claiming under him, of such a’character that the estate granted might thereby be defeated. Is the lien created by the improvement of the street while Shaffer owned the property within the protection of the covenant? The lien was undoubtedly of a character such as to defeat the estate granted. Was the creation of the lien an act done or suffered from the grantor ? The point has never been directly adjudicated; but, upon principle, the lien seems to be clearly within the covenant: O’Connor v. Pittsburgh, 6 Harris 187. The right to repave has been fully recognised in this state by the Supreme Court: Seely v. Pittsburgh, supra. No encumbrance can be placed upon any man’s property, otherwise than by his own act, or the act of those who legally represent him in that behalf. All municipal burdens, within the scope of the constitution, are imposed with the consent of the citizen, or, rather under authority conferred by the citizen; and a lien created by virtue of authority so conferred, constitutes an encumbrance upon real estate “done or suffered from” the owner; and if it is such an encumbrance as may defeat the estate conveyed by him who suffers it, it is within the covenant upon which this suit is founded. The whole system of governmental burdens rests upon the same principle of consent: Blossom v. Van Court, 34 Mo. 390; Caldwell v. Moore, 1 Jones 58; Pittsburgh v. Cluley, 16 P. F. Smith 449; Philadelphia v. Brooke, 31 Id. 23.

      November 11th 1878.
   Mr. Justice Sharswood

delivered the opinion of the court,

The early and leading case of Lessee of Gratz v. Ewalt, 2 Binn. 95, settled that the words “ grant, bargain and sell” in a conveyance of land in fee-simple, is, under the Act of May 28th 1715, sect. 6, 1 Sm. Laws 95, a covenant only against acts done or suffered from the grantor. The word “suffered” necessarily implies that it is not confined to the voluntary acts of the grantor, and it has never been doubted that he is liable on a judgment obtained against him by adverse proceedings. It is apparent that the same principle extends to and includes a tax assessed on the land during his title. Nor ought it to make any difference that such tax does not create personal liability. A tax on unseated lands would be such an encumbrance. And how does the case on this record differ from that ? It is unecessary to resort, in vindication of the rule, to the doctrine that the municipal, authorities, at the time the encumbrance was created, virtually represented the grantor, and he must be held to have given his assent. It is enough that he suffered a charge on the land — during his title — for which, as between him and his grantee, he was bound to indemnify him. Caldwell v. Moore, 1 Jones 58, is a case very much in point. It follows, too, we think, that no difference can be made between the work done before and after the deed. The lien was certain at the time of the conveyance — it related by the provisions of the statute to the commencement of the improvement: Blossom v. Van Court, 34 Missouri 390.

There was no error, we think, in rejecting the offer of evidence complained of in the first assignment. It was not an offer to prove that at the time the deed was executed, it was part of the consideration that the grantee should be liable to pay the assessment. By the provision of the Act of 1715, the effect of the covenant implied by the words, “grant, bargain and sell,” can only be limited “by express words contained in the deed.” At most, the offer was to show knowledge or notice of the encumbrance, and an expression of the opinion of the grantor that the grantee would have to pay it. The grantee was not bound to deny this, even supposing that he knew the law. The evidence offered was, therefore, irrelevant, and was rightly rejected. Judgment affirmed.


author: Per Curiam.

text:
    Walsh et al. versus Porterfield.
    1. An innkeeper is liable for the goods stolen in his house from a guest, unless stolen by the servant or companion of the guest. Houser v. Tully, 12 P. F. Smith 92, followed.
    2. Where evidence was produced, that the guest was intoxicated at the time of the alleged robbery, it was not error in the court to instruct the jury that if the guest was intoxicated, and this contributed in any way to the loss, he could not recover.
    3. Where on cross-examination, a part of a conversation has been brought out from a witness, the other side has a right to insist that the whole conversation should be given.
    October 11th 1878.
    Before Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Agnew, C. J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1878, No. 2.
    Case by John C. Porterfield, against Walsh & Anderson, to recover damages for the loss of certain property stolen from the plaintiff while a guest in defendants’ hotel.
    On the trial, it appeared from the evidence of plaintiff that he came to the hotel of defendants on Saturday, and remained there as a guest until Monday; that when he retired on Sunday evening he had about his clothes his watch, which cost $325, a valuable diamond pin, which cost $600, and which he was in the habit of wearing, and about $15 in money; that upon retiring he bolted or locked the door of his room, it being provided with both lock and bolt, and that upon rising on Monday morning he discovered that he had been robbed of his watch, pin and money.
    On discovering his loss, the plaintiff sent for one of the proprietors of the hotel, and communicated to him the fact.
    On cross-examination, the defendants’ counsel elicited a portion of the conversation which then ensued and stopped. The plaintiff’s counsel then insisted that the whole of this conversation should be given, in order to show that the landlord admitted that another guest had been robbed on the same night. It was objected that this was irrelevant, and because the plaintiff had not been cross-examined upon this conversation. The court overruled the objection and admitted the evidence.
    The defence offered evidence to show that the plaintiff was intoxicated on Sunday when he retired, and also on the Monday morning following; that they had a watchman on duty on the night of the robbery, and a safe provided for the reception of the valuables of guests, and had given notice thereof, as required by the Act of May 7th 1855.
    The following were among the points of the plaintiff, with the answers of the court, Eetterman, J., thereto:
    12. That it is not negligence contributing to loss, which will defeat recovery, that a guest having bolted and locked his door, goes to bed intoxicated, and thereby does not hear the operations of a robber on his room door in effecting an entrance.
    Ans. “That point as stated is affirmed. If he took every reasonable precaution to secure his property, although he may have been drunk, locked himself into his room, and during the night a burglar gained an entrance and robbed him, the mere fact of his being intoxicated would not be any defence.”
    13. The measure of damages is compensation for plaintiff’s losses, measured by the value of the property and money lost, interest on such values, and a reasonable allowance for necessary expenses and costs attending his efforts to secure compensation from defendants.
    Ans. “ That point is refused. The measure of damages must be the value of the property — the pin at $600, and the watch at $350, and whatever amount of money he had, and the interest. There is no testimony as to expenses incurred by Mr. Porterfield in attempting to get his property, and you have no right, in the absence of testimony, to assume that he put himself to any expense; and as to counsel fees and such as that he is clearly not entitled to anything. You limit yourself, if you find in his favor, to the value of the property at the time of the loss.”
    The ninth point of the defendants, which the court affirmed, was as follows:
    That if the jury believe from the evidence that the plaintiff was intoxicated on the night of the alleged robbery, and that this contributed in any way to his loss, he cannot recover.
    In their general charge, the court, inter alia, said:
    “At common law a hotelkeeper, or innkeeper was liable at all events for the goods and baggage of his guests. He held himself out as an innkeeper, and was required by law to receive all persons coming and desiring lodgings, and upon him was imposed the duty of strict care of the property of his guests whilst in his hotel. That law is the same to-day as it was years ago, except where it has been modified by our Acts of Assembly. * * *
    “It was in fact insuring, as it were, the safety of the property of guests, and it was immaterial (if a loss occurred or property -was stolen whilst the guest was in the hotel) by whom it was stolen, unless it was by the guest’s own servant or a fellow guest of the party who was robbed, or the negligence of the guest; and however vigilant the landlord might have been he was responsible to the party losing the property. That was the common-law liability. He was practically an insurer of the safety of the property whilst the guest remained in his house.”
    The verdict was for the plaintiff for $883.65, and after judgment thereon the defendants took this writ, assigning for error, inter alia, the admission of testimony, the answers to points, and the portion of the charge above noted.

      Hampton Dalzell, for plaintiffs in error.
    The court stated the liability of the innkeeper too broadly; the real foundation for the rule seems to be the negligence of the landlord or his servants: Story on Bailments, sect. 470; Metcalf v. Hess, 14 Ill. 129 ; Merritt v. Claghorn, 23 Vt. 177; Kisten v. Hildebrand, 9 B. Mon. 72; Laird v. Eichard, 10 Ind. 212; Calye’s Case, 8 Coke 32; Dawson v. Chamny, 6 Ad. & E. 164; Burgess v. Clements, 4 M. & S. 306. The instructions of the court on the question of contributory negligence, through the intoxication of plaintiff, were contradictory and confusing. It was exclusively the province of the jury to fix the amount to be recovered. Houser v. Tully, 12 P. F. Smith 92, had reference simply to the liability of an innkeeper, with whom a special deposit had been made, and the rule laid down by Williams, J., was too broad and was obiter dictum.

      8. Schoyer, Jr., and H. B. Wilkins, for defendant in error,
    relied upon Houser v. Tully, supra, and Sibley v. Aldrich, 33 N. H. 563.
    October 21st 1878,
   The judgment of the Supreme Court was entered,

Per Curiam.

We adhere to the statement of the law as laid down by our late brother Williams, in Houser v. Tully, 12 P. F. Smith 92, as to the extent and character of the liability of innkeepers for the goods of their guests. An innkeeper is bound to pay for goods stolen in his house from a guest, unless stolen by the servant or companion of the guest. It is his duty to provide honest servants and to exercise an exact vigilance over all persons coming into his house as guests or otherwise. The learned judge below, in his charge to the jury, evidently adopted this oase as his chart, and there is no error in his instructions upon the law. He affirmed the defendants’ ninth point, that if the plaintiff was intoxicated, and this contributed in any way to the loss, he could not recover. The evidence of the whole conversation of the plaintiff, of which the defendants had drawn out a part in the cross-examination, was rightly admitted. The error in the answer to the plaintiff’s thirteenth point, stating the value of the articles stolen, was a mere slip of the tongue, and evidently did the defendants no injury. It was not intended as a binding instruction as to the value, nor was it so understood at the time. On the whole, we discover no substantial error on this record, which requires us to reverse the judgment.

Judgment affirmed.


author: Per Curiam..

text:
    Dicken versus Hall.
    1. Although the general rule is that notice of dishonor of a note should he given the day after it is received, where the parties live at the same place, or hy the next practicable mail, if the parties live at different post offices, and should be given at the residence or place of business of the person entitled to receive it, yet actual notice wherever received is good.
    2. Where an indorser is absent from home, and notice is sent him by mail without any previous direction, and he actually receives it as soon or sooner than if left at his place of business, and he is not in any way predjudiced thereby, it is good notice and binds him, and such notice is also good as to a prior indorser who is not injured or prejudiced by the delay.
    October 11th 1878.
    Before Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Agnew, O. J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 208.
    Assumpsit by J. G. Hall, as endorser, against J. C. Dicken, a prior endorser, on the following promissory note:
    “$525.05. Pittsburgh, October 12th 1876.
    Four months after date we promise to pay to the order of J. Charles Dicken, five hundred and twenty-five five one-hundreths dollars, at Workingman’s Bank, Allegheny City, Pa., without defalcation for value received.
    Reed Bros. Agents.”
    Endorsed.
    “Pay to the order of J. G. Hall.
    J. Chas. Dicken.”
    “Pay to the order of C. R. Kline, Cash.
    Jno. G. Hall.”
    “Pay to the order of Jas. A. Hill, Cash.
    C. R. Kline, Cashier.”
    “Pay to the order of F. L. Walther, Cash., for collection for account of Union Banking Co. of Philadelphia.
    Jas. A. Hill, Cashier.”
    At the trial the jury found the following facts, subject to the opinion of the court, whether, upon these facts, the defendant had had due legal notice of protest and non-payment. The note fell due and was duly protested on the 15th of February 1877, in Allegheny City. The notices of protest were duly forwarded to the Union Banking Company of Philadelphia, the last endorser, and by that bank duly forwarded to the Elk County Bank, the next prior endorser, at Ridgway, Pa., at which place they arrived on 19th of February. J. G. Hall, the next prior endorser, lived in Ridgway, was an attorney, had a law oifice and a law partner there, and was also a member of the Elk ,County Bank, a private banking company. On February 20th Kline, the cashier of the bank, mailed the notices of protest to J. Gr. Hall at Louisville, Kentucky, where he was temporarily. He did not go to his residence or place of business to give notice or make inquiry, but knowing of the absence of Hall and where he was, and Hall having no one in Ridgway expressly authorized to attend to his private business, he mailed the notices to him at Louisville. Hall received the notices on the 22d day of February, and on the same day mailed the notices to Pittsburgh to defendant, who was the next prior endorser. If these facts constituted due and legal notice to defendant, judgment was to be entered on the verdict (which was for plaintiff for $567.11), otherwise judgment for the defendant non obstante veredicto.

    The court in banc entered judgment on the reserved question for the plaintiff, White, J., delivering the following opinion:
    “If the bank in Ridgway had left the notice of protest at Hall’s residence in Ridgway or his place of business, no doubt the service would have been good. And if some one at Ridgway had received the notice for Hall and mailed the notice to Dicken, Dicken might have received the notice one or two days earlier than he did. The bank received notice on the 19th and had the 20th to give notice to Hall; Hall then had until the 21st to mail notice to Dicken. Hall received notice at Louisville on the 22d, and the same day mailed the notice to Dicken.
    “The principle of law is, that notice of dishonor must be given in a reasonable time. What is reasonable time depends upon circumstances. But the general rule is that it must be given the next day where the parties live at the same place or by the next practicable mail where they live at different post-offices. Where there are several endorsers living widely apart, or where the mails are infrequent, several days, even weeks, may intervene between the day of dishonor and the time when some endorsers may receive notice.
    “Although the residence or place of business is the usual and proper place for giving notice, it will be good if actually given anywhere. And if the endorser requests it, it may be sent to him at any place he may designate, and no doubt when sent according to his directions, it would bind him, although he might never receive it.
    “In this ease, however, Hall gave no instructions to the bank. But the bank knew he was absent from home and knew his post-office address, and sent the notice to him by mail. He received it only one day later than he would have been entitled to receive it had he been at home, and no doubt actually received it sooner than he would have done, had it been left at his residence or usual place of business. He had no person expressly authorized to attend to his private business in his absence, and if the notice had been left at his residence or place of business it would probably have been neglected or he would not have received it in time to give notice to his prior endorser. Hall therefore had no good ground of complaint against the hank. It was rather a favor to him that the notice was sent to him at Louisville. Otherwise he might have lost his claim upon the prior endorser.
    “Has Mr. Dieken any good ground of complaint? He says if the notice to Hall had been left at his residence in Ridgway, he (Dieken) would have received, or at least been entitled to receive, it one or two days earlier. There might be something in this if the delay had been to his injury or prejudice. But there is no allegation of that kind. Perhaps if the notice had been left at Hall’s residence in Ridgway it would have been neglected until too late to notify Dieken, and in that way he might have escaped entirely. But such a contingency hardly constitutes a good ground of defence, at least in foro consoientice.

    “In Byles on Bills 272, it is said: £If a party whose name is on a bill direct notice to be sent to him when absent at a distance from his residence, so that its transmission thither and thence to the prior parties will occupy more time than if the notice had passed through the ordinary place of residence, a notice to him at the substituted and more distant places will, it seems, not only be a good notice as against him, but also a good notice as against prior parties.’ The same doctrine is laid down in 1 Parsons on Notes and Bills 493, and Mr. Parsons goes farther and suggests, it may be the duty of the holder to send the notice to the party if he is absent from home and he knows his address.
    “The right of an endorser to direct notice to be sent to him when absent from home is reasonable and proper, and is sustained by authority. When thus sent to him without previous direction, and he actually receives it, and receives it as soon or sooner than if left at his place of business, and he is not in any way prejudiced thereby, we think it is a good notice, and binds him. And we think it is good also as to the prior endorser who is not injured or prejudiced by the delay.
    “We, therefore, direct judgment to be entered for the plaintiff on the reserved question.”
    The defendant assigned this entry of judgment for error.

      John S. Ferguson and J. Charles Fichen, for plaintiff in error.—
    The bank could not change the usual and ordinary place for the giving of notice and without the request of Hall, mail the notice to Louisville. The law requires that the notice should be left at the residence or place of business, and the duty rests upon the holder to give notice at the place the law designates.

      Gazzam Cochran, for defendant in error.
    The whole purpose and object of the rule requiring notice of dishonor to be given to an endorser of a bill or note, is to afford such endorser, as soon as may be reasonably possible after protest, an opportunity to secure himself against loss by reason of the maker’s default: Hallowell & Co. v. Curry & Co., 5 Wright 328.
    It seems also to be well settled that “ if one about to be absent, directs that notice be sent to him at a certain distant place, notice so sent to him and from him, to prior parties, will bind both him and the prior parties, although it would have reached him and them much sooner if sent to his residence:” 1 Parsons on Notes and Bills 493, 494; Byles on Bills 272 ; Shelton et al. v. Braithwaite, 8 M. & W. 252; Eastern Bank v. Brown, 17 Maine 356. The reason of this is, notice should be given at such place as it will be most likely to reach the endorser promptly: Chouteau v. Webster, 6 Metcalf 1; Bank of Columbia v. Lawrence, 1 Peters 578; U. S. Bank v. Carneal, 2 Id. 553.
    October 21st 1878,
   The judgment of the Supreme Court was entered

Per Curiam..

This judgment is affirmed upon the opinion of the learned judge below on the reserved question.

Judgment affirmed.


text:
    Bennett versus The Dollar Savings Bank.
    B. borrowed a certain sum from a bank, and gave his bond and mortgage to secure the loan. He failed to pay, and the bank proceeded to sell, and purchased the property at sheriff’s sale. B. alleged that there was a parol contract between the bank and himself, wherein it was agreed that the bank should sell the property and hold it for the benefit of B., and after the payment of his debt, interest and costs, was to return the balance to him. Held,, that as the bank already had the mortgage upon which it proceeded, and there was no new loan or evidence of other consideration, such contract was not supported by any consideration. Held, further, that this contract was not a parol mortgage but a mere parol agreement, the violation of which did not make the bank a trustee for B. by reason of the purchase at the sheriff’s sale.'
    October 11th 1878.
    Before Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkev, JJ. Agnew, C. J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 172.
    Assumpsit by John F. Bennett against The Dollar Savings Bank to recover damages for an alleged breach of contract.
    On the 29th of January 1864 Bennett borrowed from the defendant $16,000, giving to the bank his judgment-bond and mortgage in the penal sum of $32,000, conditioned for the payment of the loan on January 29th 1865, with interest, at the rate of eight per centum per annum, payable semi-annually. At tbe time tbe mortgage was executed it was tbe understanding of tbe parties that the loan might be continued from year to year by payment of the interest half yearly. The property embraced in the mortgage consisted of 220 acres of coal and 160 acres of surface land, and was then worth a large sum of money in excess of the said mortgage-debt, and was rapidly increasing in value.
    Bennett paid the first and second half years’ interest at maturity, and the parties agreed that the third semi-annual instalment of interest should be paid at the end of the second year.
    At the end of the second year, the interest being unpaid, Bennett, it was alleged, entered into a parol agreement with the bank substantially as follows, viz.: that Bennett would let the bank sell the property at sheriff’s sale, upon a judgment to be entered on the bond, and purchase it in at the lowest possible price, the bank to hold the property for its security, but, after its claim was satisfied, for the ultimate benefit of Bennett — Bennett, or he and the bank jointly, or failing in jointly doing it, the bank alone, to sell enough of the property to pay off the bank’s debt, with interest and costs, when the surplus of money and remainder of property should be restored to Bennett.
    Judgment was entered accordingly, and the property sold and bought by the bank for $5300.
    Upon the 15th of March 1870 the bank offered the coal at public auction and sold it for $47,050.
    The whole claim of the bank against Bennett at the time of this sale amounted to $26,822.03, leaving a surplus out of the proceeds of the coal under the alleged agreement of $20,227.97. Before the coal was sold Bennett had made arrangements to raise money to pay off the bank’s entire claim, and offered to pay it; but the bank increased its demands, from time to time, until it reached the sum of $31,600, which Bennett refused to pay.
    On the 15th of February 1871 the bank conveyed the 160 acres of surface land, without consideration, to George H. and James K. Bennett (sons of the plaintiff) in trust for themselves, their mother and brothers; and at the same time took a bond of indemnity from the grantees against any claim that the plaintiff might have against the bank on account of this transfer of title.
    When the plaintiff had closed his case the defendant moved for a nonsuit on the ground, inter alia, that the plaintiff had not proved a valid and sufficient consideration for the contract. Judgment of nonsuit was entered, and the court in banc, Stowe, P. J., presiding, subsequently refusing to take it off, this writ was taken and this action of’the court assigned for error.

      M. W. Aeheson, J. W. Kirher and Samuel Palmer, for plaintiff in error.
    More is alléged and shown by the.plaintiff than a mere naked verbal promise by the defendant. The bank was not content to rest upon its legal right to proceed upon its judgment-bond and take its chances of becoming the purchaser of the mortgaged premises as the highest and best bidder at the sheriff’s sale. In advance of the sheriff’s sale, and even before the entry of the judgment, the bank stipulated for, and exacted from the defendant, acquiescence by him in the proposed proceedings and in the purchase by the bank at the lowest possible price. The undertaking of the defendant was founded upon the two-fold consideration of benefit to the bank and injury to the plaintiff. The injury to the plaintiff is most obvious. His hands were tied by his contract. By reason of it he could not and did not interfere with the judicial proceedings, raise money or procure bidders. The testimony shows that it was in his power to arrest the sheriff’s sale and save a large part of his estate by a private sale of a portion. This he forbore to do. The transaction between the plaintiff and the bank was in fact but a mortgage. The arrangement was that the bank should hold the property as security, and only enough be sold to pay off the claim of the bank with interest, costs and expenses. That such a transaction is but a mortgage and may be established by parol evidence is shown by the cases of Maffitt’s Administrator v. Rynd, 19 P. F. Smith 380; Sweetzer’s Appeal, 21 Id. 264; Danzeisen’s Appeal 23 Id. 65. Where one procures a title to land which he could not have obtained except by a confidence reposed in him, and abuses the confidence, he becomes a trustee ex maleficio: Plumer v. Reed, 2 Wright 46; Beegle v. Wentz, 5 P. F. Smith 369; Seichrist’s Appeal, 16 Id. 237; Boynton v. Housler, 23 Id. 453.

      Thomas M. Marshall and George T. Oliver, for defendant in error.
    The contract was a nudum pactum, and without mutuality. Unless there is more in the transaction than the violation of a parol agreement, equity will not decree the purchaser to be a trustee: Kisler’s Appeal, 23 P. F. Smith 398; Kisler v. Kisler, 2 Watts 327; Robertson v. Robertson, 9 Id. 42; Harvey v. O’Conner, 10 Id. 320; Barnet v. Dougherty, 8 Casey 371; Kellum v. Smith, 9 Id. 158. If a promisee is induced to incur expense or perform some act which otherwise he would not have done, a purchaser may be estopped from denying the trust. But however this may be, mere acquiescence, or omission to take other steps to obtain the property, although induced by the promise, is not available for such a purpose: Jackman v. Ringland, 4 W. & S. 149 ; DeFrance v. DeFrance, 10 Casey 385; Sample v. Coulson, 9 W. & S. 62; Carhart’s Appeal, 28 P. F. Smith 100; Payne’s Executors v. Patterson, 27 Id. 135. There is no evidence of fraud, which is essential to hold the bank as a trustee ex maleficio.

    October 21st 1878,
   The judgment of the Supreme Court was entered

Per Curiam.

Whatever sympathy we may feel for the plaintiff who may have supposed that he had a binding contract with the defendants, we have failed, after a careful examination of all the testimony, to discover any evidence of consideration to support it. That it could not be regarded as a parol mortgage is evident from the fact that there was no new loan, and for their existing debt the defendants already had a regular valid mortgage, duly recorded, on which they proceeded and purchased at a sheriff’s sale. The only conceivable purpose of such a new parol mortgage must have been to keep the plaintiff’s other creditors at bay or to bar his wife’s dower, neither of which could be set up by the plaintiff to raise a trust. There is no evidence of fraud, as there was in Wolford v. Herrington, 24 P. F. Smith 311, where there was a distinct agreement by the purchaser that he would execute a declaration, which he at first evaded, before the acknowledgment of the sheriff’s deed and afterwards refused, giving the strongest evidence that he never had meant to execute such a paper. The case before us is entirely within the principle of Jackman v. Ringland, 4 W. & S. 149, Barnet v. Dougherty, 8 Casey 371, Kellam v. Smith, 9 Id. 158, and other cases of that class, which have held that where there is nothing more in the transaction than is implied from the violation of a parol agreement, equity will not decree the purchaser to be a trustee.

Judgment affirmed.


author: Mr. Justice Mercur

text:
    Barr et al. versus Moore.
    1. A libel may be defined to be any malicious publication, written, printed or painted, which by words or signs tends to expose a pei-son to contempt, ridicule, hatred or degradation of character.
    2. Art. 1, sect. 7, of the constitution, which declares, “no conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, when the fact that such publication was not maliciously or negligently made, shall be established to the satisfaction of the jury,” refers only to a trial on an indictment for libel and does not apply to a civil action to recover damages.
    3. Where a newspaper article charges a person with corrupt and mercenary acts as the chairman of the county committee of a political party ; that he is the champion of prostitutes and the lowest grades of criminals; with a wicked and corrupt disregard of his official oath as an attorney-at-law, and also strikes at his integrity as a man and tends to degrade his social standing as a citizen, such an article is per se libellous and is not privileged in its character, and the publishers, failing to establish its truthfulness, are liable for damages.
    4. Malice in its legal sense means a wrongful act done intentionally, without just cause or excuse, and, every utterance or publication, having the other qualities of slander or libel, if it be wilful and unauthorized, is in law malicious.
    5. Legal malice alone is sufficient to support an action.
    6. The fact that the alleged libel renders the defendant liable to an indictment does not prevent the jury from giving vindictive damages in a civil action for libel.

      7. It was error, for the purpose of .showing malice, to permit evidence to be given, that other articles of similar tenor and character as the alleged libellous one were subsequently published in the defendant’s newspaper, where neither the paper itself containing said articles was produced or any reason given for its non-production.
    October 12th and 14th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 177.
    Case for libel brought by William D. Moore against James P. Barr and others. The declaration set out that defendants were the editors and proprietors of “ The Post,” a daily morning newspaper, published in the city of Pittsburgh, which paper, on Monday the 16th of February 1874, contained as an editorial a libellous article concerning the plaintiff. This editorial, in substance, will be found in the opinion of this court.
    Defendants filed a special plea, “That they, the defendants, at the time of the publication of said alleged libellous article, as in said declaration stated, were the publishers, in the city of Pittsburgh, of a certain public newspaper, called the “Pittsburgh Post;” and at said time the said W. D. Moore was chairman of the county committee of the Democratic party, in said county of Allegheny, and in such public capacity his actions, sayings and doings were a proper subject for investigation and information, and that said alleged libel related to the official conduct of said W. D. Moore acting in a public capacity, and was proper for public information, and was written in reply to certain matter published by said Moore, chairman of the Democratic county committee, in certain newspapers of said city of Pittsburgh, shortly before the publication of said alleged libellous matter by said defendants. Nor was said publication maliciously nor negligently made.”
    The case was first trigd before Sterrett, P. J., in June 1875, when the verdict was for the plaintiff for $10,000. On motion a new trial was granted, on the ground that this verdict was excessive, and a new trial was had before Sterrett, P. J., in June 1877. At this trial it appeared that the spring political campaign in Allegheny county in 1864 was a particularly bitter one. Moore was the chairman of the Democratic county committee at this time, and John H. Elder was the Democratic candidate for city controller of Pittsburgh, and Peter Farley, the candidate of the same party for mayor of Allegheny City. On the Saturday preceding the election Moore, signing himself the chairman of the Democratic county committee, published a card in certain papers of the city of Pittsburgh, charging, first, that Elder was ineligible to the office of controller, and second, that he was unworthy of the support of Democrats, because he had supported at a recent election the Republican candidate for state treasurer. The card further asserted that there was no Democratic candidate for mayor in the city of Allegheny. Mr. Farley, it appeared, was running as the citizens’ candidate, with the understanding that the Democrats, who made no nomination, were to support him. On the morning after the publication of Moore’s card a number of Democrats collected at the office of the “Post,” at which meeting Barr was present, and severe complaint was made of this article. The next morning the alleged libellous article appeared in the “Post.” It appeared also from the testimony of Moore and others that Moore entertained feelings of hostility to Elder, and that the latter belonged to the “Barr faction” of the Democratic party, against whom a bitter feeling existed on the part of the faction to which Moore belonged.
    The defendants contended that the purpose of the article was to counteract the effect of Moore’s card, which promised to bring disaster upon the Democratic party, appearing on the eve of an election, coming from one in authority in the party, a.nd thus severely reflecting on two of its prominent candidates; and that it was the duty of the “Post,” as the organ of the party, to do all it could to remedy the mischief, and that with this view the article in question was written and published, and not with any desire to do Mr. Moore any peronal injury.
    Mr. Moore being on the stand, plaintiff’s counsel asked him if he had seen articles of the same tenor and character in the “ Post” subsequent to the one declared on as libellous in the next ten days or two weeks. Objected to as irrelevant, and on the ground that the newspaper itself was the best evidence of such publication. The objection was overruled and Moore stated that he had seen such articles. Mr. Barr, when subsequently called for the defence, contradicted this assertion, and said theré were no other publications of like tenor and effect, or in any way confirmatory of the one published, other than one or two communications and answers thereto, denying the right of Moore, as chairman of the county committee, to interfere with the city elections.
    The second point of the plaintiff was as follows: “That the publication charged in the declaration is libellous per se.” Affirmed.
    The following were among the points presented by defendants, with the answers of the court thereto:
    3. That if the jury believe from the evidence the plaintiff was chairman of the Democratic county committee, and as such caused to be published in the “Leader” the card given in evidence, his acts, conduct and publication of said card in that capacity were proper subjects for public information, and open to criticism by defendants as editors and publishers of “The Post;” and if the jury further finds from the evidence that the deféndants, without malice, in fact from good motives, and with probable cause to believe the charges contained in the alleged libellous article were true, published the same, such publication is in law privileged, and plaintiff cannot recover. Refused.

      6. That if the jury believe from all the evidence in the case, that the defendants published the articles contained in “ The Post,” given in evidence without malice in fact, or personal hatred towards the plaintiff, and had probable cause to believe he had, under certain circumstances of suspicion, induced by his acts, conduct and authorship of the card published in the “Leader,” violated his duty as chairman of the Democratic county committee, and by reason of his conduct as aforesaid, had placed himself in a position to warrant the belief in the mind of a cautious person that he vras guilty of the acts charged against him in said article published by them, there should be no recovery by the plaintiff. Refused.
    9. If the court should be of opinion, from all the evidence in this case, that an indictment would lie against the defendant for the publication of the alleged libellous article, then by reason thereof vindictive damages cannot be awarded by the jury. Refused.
    11. That as matter of law, under all the evidence in this case, vindictive or exemplary damages cannot be given by the jury, the evidence not showing a case warranting the jury to find the same. Refused.
    The court charged the jury, inter alia, as follows:
    “Whilst it may be justly claimed that the publication of the plaintiff’s article was, under the circumstances, well calculated to provoke a swift and sharp reply in terms calculated to counteract its real or supposed evil eflect, the publication complained of goes beyond this, and assails the personal character’ of the plaintiff in a way that was uncalled for. * * * Accordingly, we are asked in this case to say that the article complained of is libellous, and we instruct you as a matter of law that it is. It cannot be regarded as a privileged communication, its publication cannot be justified or excused, and inasmuch as its tendency was to injure the reputation of the plaintiff, we are of opinion it is libellous and actionable, and that your verdict should be in favor of the plaintiff. The amount which he is entitled to recover is a matter solely for your determination under the evidence before you. * * * While compensation simply is ordinarily, the measure of damages in libel, there are cases in which vindictive or exemplary damages are justifiable and proper. Where the evidence shows that the wrongful a.ct complained of was accompanied by circumstances of aggravation, where there has been express, wanton, or unmitigated malice on the part of the wrongdoer, the jury may, in assessing damages, go beyond simply compensation to the injured party, and in addition thereto, give such exemplary damages as the circumstances of the case may appear to warrant. Whether the present is a case in which you should give exemplary or vindictive damages or not, we are not called on to express or intimate any opinion.”
    The verdict was for the plaintiff for $3000, and after judgment thereon the defendants took this writ and assigned for error, inter alia, the admission of the evidence, the answers to points, and the portion of the charge noted above.

      Hampton cf Dahell, Wier $ Q-ibson, S. Schoyer, Jr., L. Q. Schoyer and A. K. McClure, for plaintiffs in error,
    contended that sect. 7, art. 1, one of the Bill of Rights, brought into the law of libel in this state an entirely new principle, which principle was that when matter complained of as a libel is matter proper for public information, and it is established that it is published without negligence and without malice, that a criminal prosecution cannot be maintained for such publication, and that further, this same clause of the constitution provided, in order to properly carry it into effect, that where a party sought to be charged with damages in an action for libel, can successfully bring himself within the requirements of the section and can prove what would acquit him on an indictment in a criminal suit, he can likewise by availing himself of its provisions entitle himself to a verdict in a civil suit.
    Political parties were recognised even by the courts in this state, and therefore, Mr. Moore, the leader of a great political party in the city of Pittsburgh, was acting in a public capacity and as such his acts and declarations were proper subjects of comment and review. All persons, such as public lecturers, preachers, officers of great corporations, lawyers, managers of public places of amusement, who draw public attention to them through their acts and the public duties they discharge, are “ men in public capacity,” within the meaning of the Bill of Rights. And newspaper comment on them, if not actuated by malice or marked by negligence, even though the article were untrue, can be published without subjecting the publisher to damages in a suit for libel. The 7th section has recently had a judicial construction in the Quarter Sessions of Philadelphia, and interpreted to be an extension of the privileges of the press beyond public offices, properly so called, to all those who assume to act in a public capacity, draw public attention, and put themselves in a relation to the community that a private citizen does not. It was there ruled that those occupying such positions are subject to fair report and criticism, and those who speak of them, are held only to an abuse of the privilege they are entitled to enjoy under the clause of the constitution : Commonwealth v. McClure, 3 W. N. C. 58; Commonwealth v. Taggart, and Commonwealth v. The World, both unreported.
    It is further contended, that the communication is a privileged one, and that the court should have charged the jury that where a person in a public capacity, so misbehaves himself as to create in the minds of ordinarily prudent people, a reasonable belief that he is acting contrary to his duty and is guilty of impropriety and dishonesty, he cannot recover damages from those who, without malice and from good motives, published what they have reason to believe of him upon probable cause, even though the charges may not be true: Chapman v. Calder, 2 Harris 365. The court should have charged that if defendants published their reply to Moore’s card, not maliciously or negligently, there could be no recovery: Kinyon v. Palmer, 18 Iowa 377; Edwards v. Chandler, 14 Mich. 475; Detroit Daily Post v. McArthur, 16 Id. 47; Kelly v. Sherlock, Law Rep. 1 Q. B. 686; Kelly v. Tinling, Id. 699.
    The case was not such an one as would entitle the plaintiff to vindictive damages, and the court should have so instructed the jury : Rose v. Story, 1 Barr 197; Amer v. Longstreth, 10 Id. 148; Forsyth v. Palmer, 2 Harris 96; Seely v. Alden, 11 P. F. Smith 392; Stanfield v. Phillips, 28 Id. 75.
    It was error to permit the plaintiff to testify as to the articles in the newspaper. The paper itself was the best evidence and should have been produced.

      1. M. Marshall and M. Swao'tzw elder, for defendant in error,
    argued that the libel complained of, was of a gross and offensive nature; that under the section of the Bill of Rights relied on by the plaintiffs in error, no new privilege and no new liberty was given to the press, and that under it, that which would acquit in a criminal case, could not be allowed to work a verdict for the defendant in a civil action for damages; but-that, even could it do this, and were the leader of a political party, a person that it was the privilege of a newspaper to attack, the attack could only be upon the individual in his public capacity, and a bitter personal libel, like the one complained of, would none the less subject the publisher to a suit for damages, and the .court was therefore right in ruling that this publication was a libel per se.

    November 18th 1878.
   Mr. Justice Mercur

delivered the opinion of the court,

This was an action to recover damages for the publication, by the plaintiffs in error, of an alleged libellous article. It appeared in a daily newspaper, of which they were the editors and proprietors. The plea admits the publication, and without averring any fact therein charged to be true, substantially claims that inasmuch as the defendant in error was chairman of the county committee of the Democratic party, his acts in such capacity were a proper subject for investigation and information, and as their article was in answer to a certain publication made by him, the alleged libellous article was proper for publication, and therefore they had a right to publish it.'

The first assignment of error is to the court having instructed the jury that the publication of the article charged in the declaration was libellous per se. Did the court err in so instructing ?

A.libel may be defined to be any malicious publication, written, printed or painted, which by words or signs tends to expose a person to contempt, ridicule, hatred or degradation of character : Runkle v. Myer et al., 3 Yeates 518 ; McCorkle v. Binns, 5 Binn. 340; Pittock v. O’Niell, 13 P. F. Smith 258. In 1 Am. Lead. Cas., § 116, after citing many English and American cases, the learned authors say, “ upon a consideration of the various cases on the subject, we may conclude that any publication injurious to the social character of another, and not shown to be true, or to have been justifiably made, is actionable as a false and malicious libel.”

Passing then to the publication complained of, rve find it reads: “ An Impostor. — A man who resides in Allegheny City named W. D. Moore, and who subscribes himself as chairman of the Democratic county committee, appeared in yesterday’s Sunday, papers in a card addressed to the Democratic voters of this city of Pittsburgh, for the writing of which he was paid a fee by the ring, and the publication of which was paid for out of the corruption fund of the McCarthy — Magee-Snodgrass ring, m which the impudent impostor attempts to dictate to the Democratic voters of this city. This man Moore is in the pay of the ring, and the fact does not surprise us in the least when we reflect that he has descended from the high calling of a clergyman to the recognised champion and professional defender of prostitutes and the lowest grade of criminals who throng the audience halls of our police and criminal courts; and he seems to follow his profession solely for the purpose of making money, and his opinions are moulded by the extent of his client’s means to pay, The money of the ring ; the money of the prostitute, and the money of the libertine and burglar, is all alike to him if he is duly intent on making money. Does this man Moore fancy that because he has bartered himself away that he has sold and transferred a single Democrat in fee simple to the ring robbers ?”

It needs no labored argument to prove that this language tended to expose the defendant in error to contempt, hatred and degradation of character. He is thereby charged with corrupt and mercenary acts, as chairman of the county committee; with being the recognised champion of prostitutes and the lowest grades of criminals, and substantially that his professional opinions, as an attorney of the courts, are not given with integrity and good faith, but are moulded and prostituted according to the amount of money he receives therefor. It impliedly charges a wicked and corrupt disregard of his official oath to behave “ with all good fidelity as well to the court as to the client.” It also strikes at his integrity as a man and tends to degrade his social standing as a citizen. It would be difficult to charge a more disreputable course of conduct or to present a darker picture of professional character. The learned judge was clearly right in holding the publication of the article charged in the declaration to be libellous per se.

The defendant in error was not a candidate for any office. Conceding his action as chairman of the Democratic county committee to have been a proper subject for an organ of his party to investigate and to criticise with considerable freedom, yet that fact affords no legal justification for the fierce onslaught made upon him. It goes far beyond answering, refuting and denying everything averred or intimated in the publication made by him. His publication proclaimed to the Democrats of the city of Pittsburgh, that their candidate for controller was ineligible to that office under the city ordinance; and that at a late preceding election for the office of state treasurer, he had actively and openly supported the opposition candidate, and opposed the nominee of his own party; and he notified the Democrats of Allegheny city, that they had no'Democratie candidate for mayor, nor was any man running, who was entitled by the usages of the party, to call himself their representative. Although this publication may have been in bad taste or even unjustifiable towards his party, and towards the one candidate nominated, and the other adopted and supported by it, yet it did not necessarily reflect on the moral character or integrity of either of them. If the answer of the plaintiffs in error had kept within the bounds of truth; if, by their plea they had averred the truthfulness of the facts which they alleged, and sustained that plea by evidence, a different case would be presented. They put in no such plea. They gave no evidence to sustain their allegations, nor could they, under the pleadings. Practically they admitted the charges made in their publication to be untrue. Although they were false in fact, yet it was urged that the article was so far a privileged com- ' munication, as to protect the publishers thereof against this action. To support this position, they invoke the aid of that part of art. 1, sect. 7, of the constitution of 1874, which declares “no conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made, shall be established to the satisfaction of the jury.” In answer we say this clause refers only to attempted “conviction” in a “prosecution,” and in no wise applies to a civil action to recover damages. It would be a clear perversion of language to extend it to any case other than a “prosecution” in which a “ conviction” is sought. It manifestly refers to the trial on an indictment for a libel.

The liberty of the press should at all times be justly guarded and protected; but so should the reputation of an individual against calumny. The right of each is too valuable to be encroached on by the other. Hence, another part of the section just cited declares “ the free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.” Thus it appears this right or liberty is not one of unlimited license; but it is restrained by a legal responsibility.

The high esteem in which reputation is held, and the protecting care which the organic law has thrown around it, are clearly expressed in the first section of the Declaration of Rights. It declares “all men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.” Thus reputation and property are put on the same high ground. The fundamental law affirms the. same inherent and indefeasible right in all men to protect the one as fully as the other. This language in the Declaration of Rights naturally flows from the doctrine of the common law. The natural right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation. The security of his reputation or good name from the arts of detraction and slander are rights to which every man is entitled by reason and natural justice. The reason given is that without this “it is impossible to have the perfect enjoyment of any other advantage or right:” 1 Blackstone’s Com. 134. The right to protect reputation being inherent in man and being indefeasible, it cannot be annulled by legislative action. A good reputation is too valuable to admit of its being falsely assailed without the law giving some redress to the person injured. The general liberty of the press must be construed in subordination to the right of any person calumniated thereby, to hold it responsible for an abuse of that liberty. It follows that the article published by the plaintiffs in error was not privileged, and having failed to establish its truthfulness, they are liable in damages.

Although malice is a necessary ingredient in slander and libel, yet it must be understood in its legal signification. In its common acceptation malice means ill-will against a person ; but in its legal sense it means a wrongful act done intentionally, without just cause or excuse, and therefore every utterance or publication having the other qualities of slander or libel, if it be wilful and unauthorized, is in law malicious. Legal malice alone is sufficient to support an action. If the words are actionable in themselves, as we have shown them to be in this case, and not being privileged, the publication of them is sufficient evidence of legal malice; 1 Am. Lead. Cas. 192. The falsity of the publication creates an implication of malice: Farley v. Ranck, 3 W. & S. 554.

We see nothing in the several assignments relating to damages, that calls for correction. The fact that an indictment may be sustained, does not preclude the jury from giving vindictive damages. When the act is both a public and private wrong, the public and the person aggrieved, each has a distinct and concurrent remedy: Foster v. Commonwealth, 8 W. & S. 77. If the party aggrieved makes out a case which justly calls for vindictive damages, his right thereto cannot be defeated by the fact that the plaintiffs in error may be punished for an injury to the public.

With one exception we find no error in the record. That error is found in the bill of exceptions, and is covered by the second assignment to the evidence. The learned judge erred in permitting the witness to testify that articles of the same tenor and character, wei-e afterwards published in the paper of the plaintiffs in error, without producing those articles, or giving any valid reason for their non-production. The best evidence of their contents was not given. No ground was laid for the admission of secondary evidence. Nor was the error cured by the fact that one of the plaintiffs in error afterwards testified that no such articles were published. The evi. dence was given for the purpose of swelling the damages. If true, such was its natural effect. How far it influenced the amount of the verdict we have no means of ascertaining. It is sufficient for us to say that it may have increased the amount. For this error and for this alone, evidently made in the hurry of the trial, the judgment must be reversed.

Judgment reversed, and venire facias de novo awarded.


text:
    O’Neill versus Whigham.
    Where a creditor holds stock, as collateral security for the payment of a promissory note, he is not bound at the maturity of the note and its non-payment to sell the stock, without notice from the debtor directing him to do so.
    October 12th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny eo'unty: Of October and November Term 1878, No. 48.
    Assumpsit by William Whigham, trustee of the Commercial Banking Company, against James O’Neill, on two promissory notes.
    In his affidavit of defence the defendant admitted the making and delivery of the notes, but averred that at the time of making the same he had transferred to the plaintiff, as collateral security, certain stock of the Pittsburgh and McKeesport Car Company, of the par value of $5000; that the transfer was duly made on the certificate of stock; that the plaintiff held this stock at the maturity of the notes, which were then worth $1400 more than the value of the notes; that plaintiff held the stock until more than a year after the maturity of the notes, until the stock had become worthless by reason of the destruction of the works of the car company; that this conduct was negligence on the part of plaintiff, who should have sold the stock and applied the proceeds to the payment of the notes and not having done so, he could not recover the value of the notes from defendant.

      The court entered judgment for want of a sufficient affidavit of defence, which was the error assigned.

      Hampton Sp Dalzell, for plaintiff in error.
    Where negotiable paper, not matured, is given as collateral security, the holder is bound to use all necessary diligence to collect and apply it in discharge of the debt for which it is pledged: Insurance Co. v. Smith, 1 Jones 120; Muirhead v. Kirkpatrick, 9 Harris 237; Grirard Fire Insurance Co. v. Marr, 10 Wright 507; Bank of United States v. Peabody, 8 Harris 454; Sellers et al. v. Jones, 10 Id. 423; Brown v. Ward, 3 Duer 663. This should be the rule as to stock.

      I). T. Watson, for defendant in error.
    It is not alleged that O’Neill ever requested the bank to sell the stock, or ever offered to sell it for them; or that the bank, in any shape, manner or form, contributed to the accident which caused a depreciation in the value of the stock. It is not alleged that O’Neill, if he had himself held the stock, would have sold it at such a ruinous discount, nor would any man of ordinary prudence or care do so. The beneficial interest was in the defendant, subject to a mortgage or pledge to the plaintiffs, and remained at the risk of the defendant.
    October 21st 1878,
   The judgment of the Supreme Court was entered

Per Curiam.

The negligence of the plaintiff in this case was simply delay, prompted by no notice, or any fact to indicate to him a necessity to sell the collateral, not only for his own benefit but for that of his debtor; and the cause of loss was an accident unforeseen, and not likely to be foreseen. The stock itself was at its par value for the $5000, while its market value was but about $1400. Had the plaintiff sold the stock without notice to or from the defendant, it might have raised a serious question as to the plaintiff’s liability for the sacrifice. It was in the power of the defendant to have caused a sale by the plaintiff at any time, or else to hold the stock at his own risk. Judgment affirmed.


text:
    Pennsylvania Railroad Co. versus Miller, et ux.

    A carriage was shipped on defendants’ railroad. The bill of lading given to plaintiff provided that except when the agents of the defendants were guilty of gross negligence, they were not to be responsible for any of the damages of railroad or of fire. The carriage reached its destination, much injured by fire. On inquiry by the plaintiff, as to the occasion of the fire and where it occurred, the defendants refused to give him any information in regard thereto. In an action by plaintiff for damages, Held, that by the refusal of defendants to give any account of the cause of the injury, a presumption of negligence arises which they must rebut, and this presumption is not, ipso facto, repelled by evidence that defendants exercised ordinary care, and the court properly left it to the jury to determine whether the defendants had been guilty of negligence or not.
    October 14th 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 63.
    Case by Thomas N. Miller and wife against the Pennsylvania Railroad Company for injury to a carriage of plaintiff, which, it was alleged, was occasioned by defendants’ negligence.
    At the trial before Ewing, P. J., it appeared that Mrs. Miller purchased a carriage in New York, which was delivered to the defendant at Jersey City, consigned to T. N. Miller, at Pittsburgh. When the carriage was delivered a bill of lading was given by defendants, which provided that except when their agents were guilty of gross negligence, the company was not responsible for injuries that might arise “from the damages of seas or railroad,” &c., “ or from fire,” &c. Two or three days after the shipment Mr. Miller received notice from the freight agent of the company of the arrival of the carriage in a damaged condition, and that inquiry would he made as to the occasion thereof. Mr. Miller called upon the agent and found the carriage badly injured, evidently by fire, and refused to accept it. The carriage was stored by the company and afterwards sold for charges.
    Mr. Miller being on the stand, the plaintiffs offered to prove by the witness that immediately after the phaeton was brought to Pittsburgh in its damaged condition, he applied to the defendant’s general freight agent at Pittsburgh, and to other proper officials of the company defendant, for information as to when, where and how the loss or damage occurred, but was refused and denied such information; that he went over the defendant’s road and traced the phaeton (in safety) to Altoona, and upon applying at that point to the proper official of the company for information as to how the loss occurred, was refused such information, and that the witness has repeatedly since asked such information of the defendant company, but has always met with a refusal. This as bearing upon the question of the defendant’s alleged negligence and as excusing the plaintiff from going into proof as. to the particulars of the damage.
    Counsel for defendant objects to the evidence as irrelevant; as under the bill of lading in evidence the defendants are only liable on proof by plaintiff of negligence. The narr. alleges such negligence, and offers no notice or suggestion of such evidence as is now offered.
    The court overruled the objection and admitted the evidence.
    On cross-examination the witness said that since suit brought he had made inquiries elsewhere, and learned that the fire had occurred during transportation. He further testified that Carpenter, the freight agent, promised to let them know what caused the fire as soon as he heard from the parties, but never furnished said information, and subsequently said that the company was not liable because it had a release.
    The defendants moved for a nonsuit, which the court refused. They then proved that the carriage had been properly loaded; that through some unknown cause the train had taken fire, and that the damage occurred in spite of the utmost efforts of the train hands to extinguish the flames.
    The court refused a point of the defendants, “that there is no evidence of negligence in this case that would justify the jury in finding against the defendant,” and in the general charge, inter alia, said :
    [“It was the duty of the defendant company in this case to have furnished some explanation of the manner in which the injury occurred ; and if you find that they refused to do so, and find that the company persistently refused to give information as to the circumstances until it was heard by witnesses on the stand in defence on trial of this case, then a presumption is raised against the defendant that the injury arose from the negligence of the defendants or its agent, and it throws the burden of proof on the defendants to rebut this presumption by evidence showing the circumstances under which the fire occurred.]
    “This they have undertaken to do. Notwithstanding you may find the facts that will throw on the defendants the burden of proof to exculpate them from negligence, yet you must find what the actual facts are from all the testimony, and from these determine whether or not in fact the fire to the carriage occurred by reason of the negligence of the defendants’ servants — that is, by the failure to do something, or the doing something, which a person of ordinary care and prudence would have done or refrained from doing under the circumstances of the case. That is, to find for the plaintiff you must find as a fact from the evidence, that the railroad company or some of its employees neglected to do something which a man of ordinary care and prudence would do to take care of this property; or that they did some affirmative, positive act that a person of ordinary care and prudence would not have done, and that that neglect —the want of the exercise of that prudence and care — contributed to and was the cause of this fire and injury, and you will take all the testimony in regard to that.”
    Verdict for plaintiffs for $1065.20, and after judgment, defendants took this writ, assigning, inter alia, for error the admission of the testimony, the answer to the point and the portion of the charge in brackets noted above.

      Hampton ¿-Dateell, for plaintiffs in error.
    The defendants below were special bailees for hire, not liable to the plaintiffs for damage resulting to their goods from fire, unless such fire was caused by the negligence of the defendant company, and the onus of proving such negligence was on the plaintiffs: Farnham v. Camden & Amboy Railroad Co., 5 P. F. Smith 53. The court, as we conceive, committed error in two particulars. First, it regarded the presumption which arises from defendants’ conduct in the first instance as independent proof in the case to be weighed with the other proof. Second, it submitted to the jury to find negligence when there was no evidence sufficient to authorize any inference of it.
    The presumption said to have arisen in this case afforded a prima facie inference merely, conclusive only in the absence of opposing evidence. Its office was simply to shift the onus probandi. It had no value as evidence upon the subject about which it was a presumption, in the presence of positive and direct testimony on that same subject: Walsh v. Washington Insurance Co., 32 N Y. 427; 2 Whart. on Ev., sect. 1245. If the presumption was not evidence of negligence, then there was none, and there being no evidence that ought reasonably to satisfy a jury that the fact sought to be proved is established, the case should not have been submitted to them: Wheelton v. Hardisty, 8 E. & B. 262; Toomey v. Railroad Co., 3 C. B. N. S. 146; Ryder v. Wombwell, 4 Law Rep. Ex. 32; Howard Express Co. v. Wile, 14 P. F. Smith 206; Reading Railroad Co. v. Yerger, 23 Id. 121.

      31. W. Acheson and J. L. Koethen, for defendants in error.—
    If goods are lost or injured while in the custody of a carrier under a special contract, and he gives no account of how it occurred, a presumption of negligence is of course: American Express Co. v. Sands, 5 P. F. Smith 140. The doctrine of that case is that the mere failure of the carrier to give an account of the loss raises a presumption of negligence. How much more so the refusal to furnish the owner with any information as to how the injury occurred. Mere silence is a presumption of negligence: Logan v. Mathers, 6 Barr 459; Brown v. Schock, 27 P. F. Smith 471; Bryant v. Stillwell, 12 Harris 317. The question of negligence was properly left to the jury: American Steamship Co., v. Brvan, 2 Norris 446; Safe Deposit Co. v. Pollock, 4 Id. 391.
    October 21st 1878,
   The judgment of the Supreme Court was entered

Per Curiam.

The fact was clear on the trial that the railroad company not only failed to give the plaintiffs any account of the fire, how, when and where it had occurred, but compelled the husband to go in search of the information himself, causing him trouble and expense. They therefore rested their case upon a fact clearly made out, which could be repelled only by satisfactory evidence on part of the company. But the giving of evidence by the defendant, did not ipso facto repel the presumption of negligence. It was a question for the jury whether the evidence satisfactorily accounted for the fire, and also for the conduct of the defendants towards the plaintiffs, for the latter bore on the credibility of the evidence of the former. The jury found against the defendants on the facts.

Finding no error, the judgment is affirmed.